-Aspen's historic May 5, 2009 IRV election audited as single ballots- 5/5/09 Aspen CO held an instant runoff election (IRV) for mayor and 2 council members. Interpreted contents of each ballot, scanned by True Ballot, were publicly released. Open records requests for a CD of image scans were denied. Aspen has been sued to protect records from destruction and to allow inspection of the scanned ballot files. A Court of Appeals ruling holds that unidentifiable ballots are public records.

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Sunday, April 18, 2010

Email by Marilyn Marks to Election Commissioners concerning 2nd meeting: Aspen Election Commission

[April 18 2010 email from Marilyn Marks to two volunteer Aspen Election Commissioners regarding 2nd meeting of 2010 Aspen Election Commission. More comments on the meeting are found here: http://aspenelectionreview.blogspot.com/2010/04/second-meeting-of-aspen-2010-election.html]

Bob and Ward,
I had the opportunity to listen to an audio recording of the most recent meeting.
I am pleased that so many topics were candidly discussed. Thank you for doing that.
I look forward to participating in future meetings.

It sounded as if I am requested to make a list of my concerns about the May 2009 election and submit those to the EC, although I have not heard this other than by listening to the tape. I will certainly do this. I am assuming that your request is for me to have that submitted by May 8th?

I did hear a few topics where I feel that there is some confusion or lack of clarity of the history:

1.    I believe that Elizabeth clarified this, but my litigation has nothing at all to do with IRV, although that seems to be a common misunderstanding. My litigation is ONLY focused on ensuring that public records of ballot images are accessible by the public. That needs to be true throughout the state of Colorado whether we are dealing with  IRV TrueBallot created images or images created in traditional elections with the Hart BallotNow system.

2.    Millard’s complaint is a most serious complaint (far more serious than any of mine!), and  needs to be candidly discussed and the implications fully understood. I was concerned to hear that it was initially passed off as “IRV related,” and toward the end of the meeting, as not important unless IRV is used again.  Millard’s complaint has to do with a constitutional issue cloud that will hang over the City for at least 3 more years. The problem is not solved by “shuffling next time.”  While that is crucial, what is the remedy, or at least the acknowledgement of the problem that the community needs to be aware of? In my view, that is a philosophical matter that merits a full and candid discussion, not to be shied away from because it is uncomfortable. 

I urge you to read all the documents which Millard has submitted. He demonstrates the ability to see how some named individuals voted. With some analysis, hundreds of voters’ choices can be known with a reasonable degree of certainty. The opportunity for abuse is considerable. I was pleased that you spoke of reprisals and retribution as real issues. It is abundantly clear from our recent experience with the former EC and my litigation that in fact the City engages in retribution. When voting choices of City employees, city vendors, permit applicants, board applicants, housing applicants are known by City officials or decision makers, the misuse of that information is devastating.  Landlords, employers, lenders can know how applicants voted.  That is an  anathema to U.S. democratic principles of the last 125 years. Those who once believed that officials would not “punish” them for lack of loyalty now know better. Some people have said to me that  they will never vote  in an Aspen municipal election again, between the fact that their May choices may have been known, and the City’s position that the ballots are non-anonymous and hold “secrets” that only the City officials can see.  For such a subject to be passed off as “we’ll do better next time” is more than troubling.

As you consider the seriousness of this topic, it becomes obvious why the court’s historic solution to this constitutional violation is the voiding of an election where ballots are not anonymous.  (Taylor v.  Pile)  There is no easy remedy of forcing decision makers to “forget” what they know, or “not look” at the illicit  public information that the City has collected.  Millard Zimet, and others, including myself,  have avoiding taking this matter to court where voiding  the Aspen election seems to be the  only potential legal  remedy.  Instead we have waited months to have the EC discuss a more “community-friendly” solution that what would be likely decided in the court.  Bringing this complaint to the former EC may indeed led to the sudden disappearance of the former EC, as they contemplated whether and how they should discuss this most serious of issues. I was wrongly accused repeatedly of attempting to use the EC and City funding to “void” the election. That is an absurd, illogical, impossible and irrational proposition on its face. But it had “sound bite” quality, akin to the “secret ballot” sound bite, and I was vilified for attempting to discuss the issue.  If I had wanted to attempt to void the election through litigation of this nature, I would have filed this rather straightforward ready-made claim with the court last summer, just after the election. (I didn’t need to hide behind the rather flimsy skirts of the EC! )  Instead I chose to attempt to encourage the EC to discuss the problem  that Millard raised, and keep it out of court.  Here we are almost a year after the election and it still has not been discussed.

I fear that it is not clear to the new EC that, because this is a constitutional matter, such a claim is not a time-barred election law claim. (as an election recount, or contest is.) Litigation could be filed by any number of people for years to come.  The candidates elected in this non-anonymous ballot election serve for an additional three years. Additionally, the damages that can result  in the future from potential plaintiffs who may claim that they were fired, denied permits, jobs, housing, etc. because decision makers knew they votes is impossible to predict or quantify or stop.

I can understand the desire to stay away from such a sensitive subject. But in not attempting to discuss the issue to search for partial solutions, the message is that concerned citizens should go to the court or DA .

My request is that this subject be given the candid discussion it merits, even if solutions are not obvious. Sunshine on this problem may be the best remedy of all. Hiding the facts will only heighten the opportunity for abuse of the information.

In closing on this subject and transitioning to the next, I hope that you are aware of the public vilification and actually illegal punitive actions taken against the former EC and me for even raising this topic for discussion.  I urge you to talk with Elizabeth privately about her substantial legal bills in attempting to clear her name from the effects of the illegal retribution at the hands of the City for emails which mentioned “voiding the election,”  among other issues. NO one I know of had any interest in voiding the election, and that was made clear in written documentation repeatedly. However, the mere mention of the problem was treated as a criminal offense, when it should have been recognized as a discussion of a logical topic and  Colorado Supreme Court’s traditional remedy for problems such as we have.  If ANY citizen wanted to exercise his legal rights to make this constitutional claim and ask for a voiding of the election as relief he should not be vilified for doing so. In fact, there would be a very good reason for citizens to do so. What is wrong with Aspen when such serious legal issues and traditional relief cannot be mentioned without retaliation?

[In fact, I have now likely written more to YOU in this  email  than to the former EC on the subject of non-anonymous elections being voided by the court. The former EC got vilified and then  disabled for less! Let’s hope the same does not happen to you!]

Perhaps it is becoming clearer as to why the former EC needed expert outside counsel to help them structure their discussions and hearings. It is quite clear that the City Attorneys cannot advise on this matter given their conflict of interest, no matter how objective their perspective is.  They are, as Chris Bryan, so articulately stated, legally conflicted on this and other serious matters, no matter how objective they might be. The former EC could not appropriately ask legally conflicted counsel for advice on this matter. Sadly, when Council saw these issues unfolding and the inability to control the outcome, the EC was “disappeared.”

All of this is clearly a matter of public record now. I initially attempted to deal with this issue in mid-summer by asking repeatedly to meet with Mick privately.  I wanted to see this issue handled by Council directly, before it was laid out as a road map for plaintiffs. Mick refused to see me or discuss this or any other election matters.

3.    Retribution and Reprisal
There is much to say on this subject. So much that I won’t add to the length of this email by addressing it. I will do that at a later date. I heard Ward say that he feels that I bring it on myself in the way I deal with Council. To that I would reply that much of the back story and background attempts to make progress are not known to the public, but regardless, NO citizen should be attacked or treated in a punitive manner for dissent. In this one issue, Harvie, Elizabeth, Chris and I have all suffered varying degrees of personal, slanderous, libelous, and damaging attacks.  Three of us have had an illegal “investigation” launched against us by the City. There is much yet to be exposed on what has happened. The EC must help create a safety net and shield for citizens against the wrath of the government when sensitive election issues are raised.

4.    IRV
As I have written before, I believe that helping define IRV (and what form of IRV is to be proposed for the November ballot) is an important  role for the EC, unless it is delegated to a special purpose task force. IRV has many different flavors and needs considerable thought to make it work with local and Colorado laws. The 2009 flavor does not comply with such laws. In fact, the voting method for CC is not even considered IRV. The public voted for IRV in 2007, and was given something different than IRV for the CC race. I heartily disagree with Ward that IRV will only be changed by the court system (although there is NO current litigation on that matter,), or by a vote to amend the Charter. IRV as voted by people was not defined, leaving a blank slate for Aspen’s voting method.  Whether it is EC or another committee, November voters need to be given some specifics on IRV when attempting to determine whether to “keep it” or repeal it. They need to know what “it” is, and that needs some clear direction.
I heard Bob say that  IRV  saves money. It may in very large cities,-- but not in Aspen.  Even as a fiscal conservative, I would put saving money as the last reason to give short shrift to an election process. Bob, I’d like to talk with you more about IRV philosophically, but for Aspen, the cost of running an IRV election was high, with over $10,000 in outside consulting, not to mention the hundreds of hours of staff and Council time which had to go into devising the system, which must  be revised again.  And we did not spend nearly enough on voter education efforts.  And it failed to produce a majority vote for either Council seat.
5.    Next Steps
I am unclear of next meetings and content. I believe that I understand that the Worksession on April 20 will be for purposes of discussing the ballot language for the potential IRV charter amendment question.  And a future meeting will be held for discussion of election problems where input is to be submitted by May 8.

Thank you again for your service and dedication, and your willingness to discuss sensitive subjects.

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