Harvie Branscomb's Letter of Complaint to Aspen Election Commission 5.10.10

(Harvie had asked for a few days extension of time on the 5.10.10 filing deadline and was denied that opportunity by Ward Hauenstein.  He sent this letter as his official filing to be supplemented in the near future.) --comment by m.marks.
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[what follows is an emailed letter by Harvie Branscomb to Aspen Election Commissioners- some typos in the original text have been corrected by Harvie 5/11/10]


Ward and Bob (and Kathryn when and if she sees this): 5/10/10



Both of you -independent members- of the EC already responded to my midnight email- thanks very much. I guess the pressure I have been under for the past week must be obvious in my mistake about the date of a requested extension. A week ago I took on an additional and unexpected responsibility to a great number of people where the schedule was out of my control.


If I could have spent the past week on a 'charrete' to prepare a submission to you, I might not be ready by now. Please recall that until the newspaper announcement of April 27, the public did not know of a format or deadline for submissions. My research, yet far from complete, has not been compiled to press the button at any moment in a certain “complaint” format that is worthy of a formalized review. Therefore I take exception to Ward’s assumption that a year is enough time to compile a complaint. The full year of experience learning about the election, and more importantly about the various responses to post election queries, has led to a huge body of knowledge, much of it worthy of some kind of comment or complaint. 

Fortunately Marilyn Marks is aware of much of that knowledge and she is also quite qualified technically and intellectually and emotionally to present to you. I hope that she does, and I support her efforts in that regard. It is likely that she too would not have been able to meet the deadline without having had to organize her documents for her District Attorney complaint. The effort is hugely time consuming, as I hope you will appreciate. I want to present accurate, well-documented data that is easy to follow. That is likely a 40 to 50 hour project. To ask that it be completed in less than 2 weeks is asking a lot.


Unfortunately, and that would be an understatement, Marilyn is discredited by too many people for character failures that she does not have, and for having been a candidate in the election, which is no reason at all to discredit her. In fact it gives her every reason to be highly knowledgeable, and demonstrates that she is serious about elections and better government. Candidates should be encouraged to come forward with what they know. Why not?


Given your requirement for having subject matter of my complaint documented to you by 5 p.m., I can do no more than to provide the bullet points of the areas of concern that I think ought to concern you (and every other Aspen voter- and to a great degree- every other American voter). (I will supplement my concerns with a more complete filing as soon as practical if allowed.)


1) The Aspen election operates under a mélange of laws that are not consistent. This either makes the election impossible to run, or permits wild variations in practices depending on the whim of the decision-maker. Under the advice of the Aspen City Attorney’s office, the latter approach has been taken. Aspen should revisit its adherence to Title 31. Title 31 is highly outdated, rarely updated, and many cities do not operate under its law.


Only Title 31 requires destruction of ballots and keeping them under special restrictions. Title 1 is far more reasonable and practical in regard to access to ballots. Operating an election under Title 31 or under home rule or both will eliminate oversight and jurisdiction by the Secretary of State’s office, and that prevents an independent administrative remedy from being taken by dissatisfied citizens. County elections operate under Title 1. Title 1 is a mess, but Title 31 is not any better, and very different. Aspen supposedly operates under the Secretary of State rules, and these are written to fit with Title 1. This is a can of worms- and needs to be resolved. You as election commission can wade into this topic and come out of it with a clean statutory basis for Aspen elections. Please do. This is a complaint, about the May 5 election- inconsistent and outdated statutory and legal basis for an election.


2) There are dozens of instances of improper actions taken regarding the actual election processing. I assume that Marilyn has done a good job of listing these. If you are effective, in spite of having the City Clerk as a member of your committee, you will be able to prevent many repetitions of past failures, but only by being very aware of the failures, why they happened, what is wrong about them, how they interact with Charter, Ordinance, Title 31 and SOS rules, and the Colorado Constitution. Common sense will take you part of the way, but technical knowledge and legal knowledge, and decidedly independent of the players who have led Aspen to its past practices, will be the only effective guide to resolving these issues. This is a complaint- a record of election errors and a lack of a independent technical and legal framework needed to understand, learn from and move on away from those errors.


3) Because the public is gradually becoming aware of these real issues (and Marilyn and I have both been reticent for almost a year now to make a 'big deal' out of these errors and infractions- perhaps a big mistake on our part…), whether or not the unique IRV method of voting is further pursued in Aspen, you really ought to be sure to arrange for very good election management, but even more important, very good, very much encouraged citizen oversight in future elections to achieve a reasonable amount of public confidence. 

It would be inappropriate to presume that the election officials, including yourselves, are sufficiently informed and experienced to carry of a future election without having access to a lot more good advice than has been accessed in preparing for previous elections. This remains the case, even if the “traditional” election methods are used. We have already seen enough to know that the conventional election will not be accurate in Aspen without reform. You will need to push Aspen to practice maximum openness and full record keeping according to standards for best practices as well as according to law (one hopes, the best law). 

Complaint- Smart and highly motivated candidates and voters, complex voting systems, and experimental methods do not mix well with less than full transparency, and cannot be managed by people with extensive but inappropriate experience. In fact, good candidates will be discouraged from entering the race without improved and fair election procedures.


4) Auditing of elections is finally being seen as essential- and election officials are gradually learning how to do it- in some cases in a meaningful way, but often not. Make sure the level of expertise and willingness to be open matches the audience. Numerous statements have been made to Aspen voters that their “audit” was convincing. My understanding is that it- “the partial interpretation check”- has been misrepresented and was not a sufficient test to determine if a hand count of ballots would have overturned the outcome. That is the standard for election audits that is being put into recent laws. The access to the single ballot's cast vote record is a key part of doing a very efficient and accurate audit. The fact that this record of vote patterns can be released to the public opens up many avenues for election analysis, almost all of which are beneficial. Access to ballot images by election officials or better yet the public is needed to establish the accuracy of ballot interpretations. In conventional Diebold counted elections, errors may be lost in the oversimplification that takes place when the voting machine keeps track only of the running total of the vote. 

Complaint- the “audit” wasn’t of a meaningful 10%, it wasn’t of a random selection, it wasn’t a count at all, and it avoided the most high–risk ballots. This “audit” needs to be done properly, just in order to prove that it can and will be done correctly in the future. I do not suggest to have election judges practicing their audit on a live election. And citizens deserve to see how an IRV election would properly be counted and audited.


5) Aspen has a host of impediments to citizen oversight inherent in its character. Most of these deserve observation, analysis and remediation. I am staggered by the extent to which citizen activism in Aspen is met with a range of emotions from disregard to outrage. Activism regarding elections is essential to election quality. I hope Aspen is unique in its tendency to question and besmirch the character of those who are asking the questions and requesting to observe the critical processes of elections. If so, then there is a chance to stop this disease here before it spreads. 

There is a hierarchy of opportunities to obtain access to election information according to common practice and law, and in Aspen, Marilyn Marks, with my help, or I with Marilyn Marks’ help, have attempted to activate each in turn, as each previous layer failed to provide results. At most layers, inappropriate responses by the officials responsible have made the oversight process difficult to impossible and results not forthcoming. Each of these layers ought to be examined in detail- and the only way to do this is to observe someone who is attempting to exercise them one by one. We have been doing the exercising , and you as election commissioners could be doing the overseeing of our oversight. I assume you would be interested in the results. Here is a brief list: (any of these ought to be able to produce results). and each amounts to a complaint, to be explained if there is an opportunity.


6) Here are the layers to that onion of citizen access to election oversight- and a snapshot of outcome at each level…each is a complaint unto itself:


a) Election commission chair and 33% of the vote is the person whose role is to manage the election- leading to a lack of independence of the Election Commission (EC). The EC is also expected to take advice from potentially conflicted city attorneys


b) Election commissioners were appointed after all major election decisions were made, were not included in detailed election planning, were brought in to observe from behind a fixed table- and had no proper access to information


c) Election commissioners publicly voiced dissatisfaction with election preparation- and were told that they are “ceremonial”


d) Election commissioners potential role in certifying was rendered moot


e) A private approach to City councilors and City attorneys- and lengthy or numerous meetings held, led to no response other than verbal suggestions to discontinue pursuit of goals (although most councilors refused to have meetings.)


f) public approach to City Council via the appropriate pre-planned work session and via public comments at other meetings- ineffective and met with occasional derision and dismissive claims of outsidership


g) an open records request to access what are presumably public election records- denied


h) further carefully limited open records requests- limited based on responding to the reason for the previous rejections- denied


i) seeking support in the community- Aspen Times, Su Lum declare support for ballot transparency- but no result forthcoming


j) an approach to the 2009 election commission-eventually led to blockage and then dissolution of the commission when, after months, commissioners decided that the EC could potentially take action if it were adequately advised and funded


k) ironically, a requirement to release “open records” extrapolated onto an unprepared election commission- led to hundreds of emails released that were then cherry-picked and uniquely used as presumed evidence of wrongdoing- the public records involved were never fully published- in fact only limited portions, annotated for political effect, were published and promoted- this leads to a complaint regarding the lack of transparency and accessibility to public records already extracted via CORA and the opportunity to pretend that a subset of the records is the “public record”


l) shortly prior to the destruction date for ballots, a suit filed to pursue the CORA rejection- is spun to the public as a vexatious suit- a motion to dismiss disregarded until 2 days before a critical deposition and then case dismissed, at great cost to the citizen plaintiff, but but the city chooses to move to charge $385/hour for staff time as what must be seen as a punitive measure to try to prevent future open records requests of a similar nature


m) city official and some citizens insist that the only proper approach to pursue election complaints is through the DA… upon quietly filing what Marks only witnessed, and is not pursuing in court, a leak from the DA’s office leads to an official pronouncement at the EC meeting that the city is hiring a criminal attorney and is planning to communicate no further with the EC pending resolution of the complaint (that they had no reason to know about until charges, if any, were filed). Marks (not a plaintiff, but merely a witness and whistleblower) is accused of attempting to prove criminal behavior on the part of election officials.


Probably I left something out? Yes there are other parts of the saga that merit review by Aspen’s Election Commission and then recording for posterity, as a testament to anyone who thinks that elections and their operation are performed with common sense and rational logic- and that if something diverges it can easily be found, discussed and solved. Perhaps the right election commission can take a stand to resolve some of these complaints on behalf of citizens, all of whom are potential questioners of a future election. The story told by the above 13 observations is- don’t be asking questions about elections in Aspen… which reminds me of my next to last complaint:


6 n)- I asked 45 questions, some of them by letter to editor and all of them by physical letter to Jim True, Aspen Attorney, and to Election Commission, that at the time consisted only of Kathryn Koch. (http://aspenelectionreview.blogspot.com/2010/02/questions-mailed-to-aspen-special.html)  I have received no reply. Each of these questions merits an answer from someone. I complain then about the non-responsiveness of those who are behind many of the decisions that drove those 13 events above briefly described. Open Records requests only provide answers to questions for which there is already a written or emailed answer. Most of election activities do not, apparently, generate such records.


7) Please examine my past open records requests to the city and the rejections I have received to determine if there should be an alternative way for citizens to gain access to important information about an election, such as what seals are on the locked containers or where the containers are located. The lack of effectiveness of CORA requests is just another complaint to be addressed- perhaps, again, at the legislature- but at first it could be resolved by a change of policy in Aspen.


There have been basically three goals of my citizen activism in and around Aspen regarding elections: 1) to obtain access to enough information to understand the unique election- which means as much information as possible but at least enough to verify the accuracy of the results, 2) to reinforce the beneficial extra transparency involved in Aspen’s election practices undertaken and to promote the special audit ability and election verifiability (not particularly IRV related) in future Aspen elections and to provide a real history to advise legislators and election officials for other elections, 3) to fully understand and take action to avoid future mistakes in election practice- and to avoid and to overcome any systematic error or potential for fraudulent manipulation should it arise. 

The approaches taken by myself (and others) to achieve these goals have been varied, appropriate, and layered. They have not been rushed or made loudly or inappropriately. These approaches have each and every one failed in respect to each of the three stated goals. The question is why? 

If I were on an election commission in Aspen now, I would be wanting to know why there is so much resistance to answer questions about elections- and how Aspen can reorganize itself structurally to make citizen participation in elections successful, rewarding, affirming of election quality, and contributory to confidence based upon real verification by really independent citizens of any political leaning whatsoever.


Clearly the presumption that Marilyn Marks is a partisan is an unacceptable excuse for discrediting her. If elections are to be fair and accurate they must operate, and must be overseen and must be criticized and defended under conditions where extreme partisans are the actors, and even where criminals are the actors or the actors are acting as criminals do. Nothing can be presumed. The extent to which Marilyn is considered a partisan (when in fact I don’t find her to be particularly partisan) only strengthens her role as a test case for a successful citizen verification of an election. If Marilyn cannot verify the election, who can? She has repeatedly stated, and I know it to be true, that she believes that Mick Ireland clearly beat her at the polls. How will Aspen achieve a correct resolution of an election dispute in the future, when the players ARE anxiously expecting to have the outcome of the dispute put them into office? 

Marilyn is an excellent test case for checking the functioning of the oversight and resolution systems of the election. The results so far are very troubling. They are so troubling that I am now thinking this pursuit of the past year could be the most important role I have undertaken in my life, a role that I cannot back down from without giving up all hope. I feel that conceptually my back is up against the wall- defending basic principles of election quality-- of citizen access to their own election -- of access to mechanisms to defeat fear and intimidation and retribution which seem to be rampant in Aspen- from personal conversations. 

Things I have encountered in the past year are on a level of what I consider to be of staggering significance. If Aspen is one of the most well educated cities in the US, surely it can be the place that can heal itself. But first it must recognize its own ailment. I think the role you have signed up for is to lead this effort… but it may need to take a route more like a Truth and Reconciliation Commission: http://en.wikipedia.org/wiki/Truth_and_reconciliation_commission  to come to the truth and then to a solution. I recognize that this is a bit of an exaggeration as – so far- lives are not at stake. But the level of angst that is erupting among some of Aspen’s civic leaders to our very ordinary and technical questioning, and our simple pursuit of ought-to-be-public election records suggests that we might want to reassess how much of a problem there is for civic minded citizens around Aspen.


I can understand a need for a certain amount of clarity and bureaucracy and some organization of the timing of information flow- but I also hear that it is commonplace for things like bid deadlines to be extended. This brief letter will have to substitute for my report on my past year’s activities. I appreciate any leniency you may show in allowing me to supplement the record and introduce additional information in the future as these discussions continue. I have much more to supply, and only the essence is herein included.


Harvie Branscomb
El Jebel resident
Election Reform advocate and citizen activist

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Marilyn Marks Election Commission Complaint may be found at:

http://www.glassballotbox.org/journal/2010/3/24/glass-ballot-box-project-aspen-election-transparency.html