-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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Saturday, November 19, 2011

Can we keep a secret? Column by Jack Johnson annotated by Harvie Branscomb and Marilyn Marks

Heading 1There are many misunderstandings projected by Jack Johnson’s column below.  Citizens are accustomed to being lied to or misled in the newspaper, but in this case, the misunderstandings are stacked upon a context of consistent misinformation put forth from a variety of sources that ought to be dependable and credible, but may not be. What is so aggravating about this column is that it comes at a time when people like me are trying to dissect the facts out of the usual mudslinging to propose legislation to implement what Colorado's constitution actually calls for – anonymous ballots.  I hope our legislators are reading Jack’s column not just with a grain of salt, but with a whole box of it.  
Black text is published text by Jack Johnson (former Pitkin County Commissioner, candidate for Aspen City Council, May 2009, as printed in a column in the Aspen Daily News). I have applied strikeout on the defective portions that I would not have included in the column, if I were writing it. (Harvie Branscomb)
Red text in brackets [] is by Marilyn Marks ( candidate for Mayor, May 2009)
Blue text in brackets [] is by Harvie Branscomb (Colorado Voter Group, Coloradans For Voting Integrity)
Can we keep a secret?
Aspen Daily News Staff Report - (wrong- this is actually a regular bi-weekly column by Jack Johnson)
Friday, November 18, 2011
Election law is complex. It is also important. Marks v. Koch seeks to overturn a century’s worth of election law and should be reviewed by the Colorado Supreme Court.
[The election law has not been overturned in any way. The Open Records Law, which has been in place for over 40 years and which allows ballots to be public records, has merely been upheld. It is modeled after the same open records law that permitted the Bush/Gore ballots or the Coleman/Franken ballots to be reviewed by the press and public to reach their own conclusions.]     No elected or appointed official in Aspen invented Colorado election law or the secret ballot. They are only charged — for our benefit and upon our behalf — with interpreting and implementing it. Average citizens, the press and even loud-mouthed local public policy columnists all very much take the secret ballot for granted. We have forgotten, if we ever knew, how hard it was to win the right to such because much of the intellectual thought regarding election law and the right to a secret ballot was settled in the 19th century.
[Actually “secret” ballots were allowed until 1947, and Colorado ballots were traceable if an official peeked at the concealed ballot number on the voted ballot. Before 1947, three election officials with separate keys had to collaborate to open the ballot box. They could then remove ballots stuffed by ineligible voters or fraudulent officials by checking the identities of the ballots using the printed numbers. That’s not what we now (misleadingly) call the “secret ballot,” but there was a requirement to keep ballots as secret as possible using a glass ballot box and three keys. “Secrets” to be shared with and by election officials are subject to abuse. So, in 1947, the constitution was changed to guarantee that ballots are anonymous and the officials could obtain no “secrets” about how we vote. Believe it or not, that is what we now call the “secret ballot” or “Australian ballot.The only “secret” is your privacy in the act of voting the anonymous ballot. The contents of ballots are no longer “secret” as that was a dangerous proposition. You can perhaps begin to understand how poor a term the phrase “secret ballot” is. It is utterly and essentially confusing. And that confusion is particularly rampant in Aspen. That’s a confusion that is not at all remedied by Jack’s confused opinion. ] In a nutshell, ballots are cast and then counted. Results are determined and announced. Some people celebrate and drink beer and cheer the results, others not so much. Later, audits are performed and tests for accuracy are conducted.
[The first such completed audit in Aspen was in 2011. Counties have  had post-election audits only since about 2005. They were added in response to the removal of the natural oversight of precinct-voted, precinct-hand-counted, paper ballot elections, and the substitution of heavily centralized, mechanized elections.]
This all occurs in public [—actually, much occurs in the clerk’s office after hours and behind closed doors or inside a difficult-to-verify vote-counting device] and at specific times and places determined by law [but also at the whim of the clerk].
Then there exists a “contest” period during which the results may be challenged. Anyone can request a recount and have one conducted. But when recounts are conducted they occur under very strict procedures and are overseen by a judge.
[No, the recount is performed by the Election Commission and local citizen election officials. No court is involved. Johnson has confused a “recount” with an “election contest.” The right to request a recount, even though they have to pay for it, is reserved to very specific individuals, “interested parties” generally meaning those who stand to lose in the election. A “logic and accuracy” test is performed before the election, but often this test is not intended to verify the accuracy of the voting equipment, rather the successful design of the ballot and compatibility with voting system software and hardware. Only through extra testing beyond what is required have I been able to detect errors in voting equipment such as that used by Aspen. Such equipment was determined to be worthy of replacement after I obtained the results of tests I performed in Eagle County.]   After the contest period is over ballots are sealed in the ballot box for six months and then destroyed.
[No, the ballots are sealed on election night; the ballot box may be entered later for various needed functions, including auditing, canvassing, recounts, election complaints, etc. In municipal elections ONLY, ballots are destroyed 6 months after “the” election, not 6 months after the contest period ends, as Johnson incorrectly states. In county, state and federal elections the ballots are preserved for at least 25 months, and may be maintained for years. ]
However, during these six months a judge can order a recount if sufficient proof of fraud can be shown.
[ “If sufficient proof” of fraud (or other errors) can be shown is the key phrase here. Without citizen oversight and access to the actual voted ballots, it is virtually impossible to obtain “sufficient proof of” anything. Therefore, the ability to contest, at great expense, is simply obstructed by lack of information. The opportunity to launch a contest, knowing that one will be denigrated in public in a manner I personally now associate with Jack Johnson, is very unattractive, but usually rendered impossible when the transparency isn’t available. However, there are other criteria for a contest other than fraud.]
If one has evidence of fraud or corruption it should be produced, shown to the judge and if a recount is ordered it will be under court supervision.
[ No, recounts are NOT under court supervision. Johnson is referring to an election contest—a very different process.  Johnson is referring to whatever the court would order—that process we probably wouldn’t call a “recount” since recount is defined in statute.]
That’s what the law prescribes and it does so to protect our right to both verify the outcome of an election while also protecting our right to a secret ballot.
[Our law doesn’t offer a “right to a secret ballot” in those words. It calls for “secrecy in voting” and anonymity of ballots. The right to “verify an election” isn’t fulfilled with a recount because the recount process is reserved only for “interested parties” or in county run elections specifically the losing candidates and ballot question committees. These potential losers are also subject to ridicule if they start asking any questions, as Jack Johnson has amply demonstrated through his previous actions.  Neither is the “right to verify an election” fulfilled in the “contest” process because that is expensive and requires access to evidence that may have been withheld by the clerks—the very obstacle that Johnson seems ironically to advocate for. The “right to verify” is fulfilled through our access to the election records, including the anonymous ballots or election-judge-verified copies of them. Johnson assumes that the public can verify any election by asking for a recount and/or mounting a court-supervised election contest. Both are expensive, barring most candidates or public from such an activity. But, in county, state and federal elections in Colorado, ONLY the LOSING candidate may request a recount, thereby making “verification” through a “recount” off limits to all but a few well-funded and brave losing candidates. Even then, Colorado recount laws require recounting on the same or similar machines, which may just replicate the error in the first count, and no real verification is possible. Election contests are available only to those who can prove that the outcome of the election would change if the court considers the evidence. That is hardly a way to verify any election, even if the applicant had the scores of thousands of dollars to mount an election contest. Jack’s claim is incorrect.]  Secret ballots were an improvement in election law history because they made vote buying all but impossible and made it easier to vote one’s conscience without influence from others.
[ Secret “ballots” aren’t called for in law. “Secret ballot” is a voting method, not a description of a physical ballot. This is a very common and big misunderstanding, but it can be corrected by visiting Webster’s. This fundamental confusion in the terminology makes “secret ballot” the most poorly selected political rhetorical term, frame, or sound bite ever invented. It is not the ballot that is secret. What is secret is the act of marking the ballot and protecting the marks from others’ view until the ballot can be safely and anonymously placed inside a secrecy sleeve or envelope and cast into a ballot box. It is a secret process, not a secret entity. Thus “secret” or “Australian” ballot is a voting process or method where the ballots are sheets of paper, marked by the voter in private, and cast in such a way that they are rendered anonymous and untraceable. ][Unlike precinct voting, mail-in ballots make vote buying and selling quite easy and leave no trace of the nefarious activity.]
There are other reasons but secret ballots, recounts overseen by courts, [recounts are not overseen by the courts] employing uniform legal procedures and the eventual destruction of ballots are progressive improvements to our voting system and should be respected and strongly defended.
[Modern election law, based on the requirement for anonymously cast ballots, does not require destruction of those records. Aspen’s law does, and it should be changed. There is no reason to destroy anonymous ballots. Prior to 1947 there indeed was a reason to destroy marked, identifiable ballots. I would hope that the Florida 2000 ballots have been archived and well preserved as an important piece of history.] [Indeed, the destruction of the ballot is not at all a progressive improvement to our voting system. It is the opposite—an antiquated concept from a historical era when we made the mistake of leaving secrets on ballots in the form of fully traceable ballots. Johnson is exercising wishful thinking in characterizing any court’s handling of elections as a “uniform legal procedure.” Bush v. Gore is a great example of how that isn’t what happens—and looking closer at that example, recounts are not what always result, either. Sometimes recounts are actually stopped by court contests.]  Why not turn over the ballots for “public” inspection as Marks v. Koch seeks? There are at least two types of secrecy in voting — one is that of voting in private so that no one else knows how we are voting while we are actually voting. Privacy screens and sleeves, no identifying marks traceable to an individual voter, etc., preserve this type of secrecy.
[Jack gets this part right—“secrecy in voting” is the phrase in the constitution. And it means privacy of the voting process. ]
But there is another aspect of secrecy more difficult to explain but equally important.
[yes, it’s hard to explain because Johnson has it wrong. ] [ The missing part of the equation is the anonymity—Jack has dropped this essential piece out of the picture. ]
Procedures for counting and the methods for the examination of ballots after they’ve been cast, counted, audited, certified — these were put into law to protect this sort of secrecy.
[No, the counting, auditing, and certification process is required to be in public—NOT in private. That is why we have citizen watchers and allow the press to observe the counting process. Anonymous ballots create no need for secret counting of votes!] [All through the election process the assumption is that watchers will be checking the accuracy… and when they are allowed to, they actually find and help correct errors—and this has been the result of watching by both Marilyn Marks and myself in recent elections in Pitkin County. ]
Eventual destruction of said ballots ensures secrecy forever.
[I can’t deny that destruction guarantees a secrecy, but this is utterly contrary to the public interest, now that the 1800s requirement of numbering ballots has been changed. The strongest reason to destroy the ballots was to get access to the sealable ballot boxes when they were needed for the next election. There is no mention of “election finality” in law that I am aware of. With recent technological advances, we can keep records of ballots forever—making historical revisiting of election questions possible for the first time. ] [Anonymous ballots do not need to be secret or destroyed. County, state and federal ballots are NOT required to be destroyed.]   The main issue in Marks v. Koch is whether or not ballots and their images (from 2009) are subject to Colorado’s sunshine laws. If so, they should be available for public inspection. District Judge Boyd ruled that ballots were constitutionally exempt from the sunshine laws and held there is no difference between a ballot and a copy of that ballot.
[Judge Boyd dismissed the case on a motion that was around 5 months old days before a deposition of True Ballot, Inc ( the election contractor) and two weeks before a court hearing at which evidence would have been presented. The Boyd decision was based only on procedural motions and not a full discovery of the facts or merits of the case. Scans of ballots are a topic not confined to Aspen 2009. Many existing voting systems are based on creating scans of ballots as a first step, and a very logical and efficient means of verifying elections is made available by this new technological opportunity.]
The Colorado Court of Appeals recently ruled in effect that copies aren’t originals and since the constitution says nothing about copies the city of Aspen should make the copies available.
[No, the Court reaffirmed that BOTH the paper ballots and their copies are both public records available to anyone who asks. ]   It is certainly true that copies aren’t originals or we wouldn’t call them copies, would we? So the letter of the law is being upheld but the spirit is completely and, wrongly, being ignored. Would the court rule your original tax return is secret but if someone in the IRS made a copy it could be published in the paper? If a copy were made of your medical records could they be read aloud over the airwaves? Of course not. This is sophistry.
[Johnson’s analogy fails in that tax returns and medical records ARE confidential documents, (ie.  contain confidential information that is identifiable) for which copies are not materially different, and also confidential. Ballots are NOT confidential records, so their copies are not confidential either. ]
The relevant section of the constitution was written in 1889 or something and never amended.
[ The constitution was materially amended in 1947 to provide anonymity of the ballot as a preferable substitute for security and destruction as the primary means of providing privacy of the vote. Even the City of Aspen petition to the Supreme Court describes this change. ]
So this flap rests on the notion of whether copies are originals and we have two conflicting opinions. Of course the Supreme Court should hear it. The outcome is too important not to. Why? For one reason because the reactionary and (nosey) forces wishing to look at the image of your 2009 ballot are now doubling down and want to see your actual ballot from 2011.
[Aspen substantially revised its election law as a home rule city in order to achieve substantially modernized election practices. All parties close to the records believe that the 2011 ballots are in fact anonymous, other than perhaps a very few exceptions. The records requests for inspection of some of these ballots are to prove that this is the case. The current interpretation of the law calls for the clerk to withhold any ballots from the inspection that are not anonymous. By requesting the ballots, we can find out how many of the ballots are considered to be traceable. Jack is implying that anyone requesting to see voted ballots may have a dishonorable motive for inspection, but under the law, and by common sense, such a motivation wouldn’t matter if it were true. ]   Fortunately the city has denied this effort and proactively seeks a ruling from the District Court.
[The City is in effect saying that the Court of Appeals was not a clear interpretation of the law, but clear interpretation was the goal for the 16 page decision.]
I voted in that election and Elizabeth Milias and Harvie Branscomb seek to review ballots similar to mine — perhaps even my exact ballot for all I know.
[ “For all I know” in this case isn’t much. According to law, Jack should have no reason to know which ballot is which.  It isn’t “Jack’s” ballot. It’s one of many ballots, all of which belong to the public. This implied ownership is another frame that is poisoning this controversy in opposition to transparency. If Jack created an identifiable ballot, he has violated the constitution as well as Colorado Statute 31-10-1517. ] [No one examining the ballots will ever know Jack’s ballot from anyone else’s anonymous ballot. ]
For the reasons I briefly outlined above, I believe I would suffer harm from their inspection of any ballots and most definitely from inspection of mine.
[ Again, we see Jack’s false presumption of ownership of a ballot and assumption that each contains secrets. If Marilyn were election judge, would Jack be concerned about Marilyn possibly knowing how Jack voted because Marilyn has full access to a ballot that was marked by Jack? If the constitution serves Jack as it should, he would have no such concern. ] [What possible harm could that be for the inspection of ballots that cannot be traced to a voter?]
No one should be allowed to take the ballots home and come up with their own count over a box of wine while watching American Idol.
[Here is sophistry. Jack is bringing in imaginations about context and motivation that are irrelevant, and he is mixing the justifiable concern about integrity of physical ballots with an overblown concern over access to what is really anonymous content. ] [Why not? We can take other public records home and review them and even make false claims about them if we want. Others can check our credibility. By all means, we should be allowed to create our own accurate or inaccurate re-tabulations from COPIES, of course. That is the American way. Would Johnson have blocked the Washington Post from recounting the Bush/Gore ballots? Sounds like it.]
I want the city to vigorously defend my right to a secret ballot as outlined in the state constitution. I ask the court to uphold my right to a secret ballot. The desire to personally count the ballots does not trump my right to a secret ballot.
[This is argumentation by repetition of a false frame. There is no “right” to a “secret ballot”. The constitution calls for anonymity and “secrecy in voting”. Not “secrets” hidden on ballots. Jack is using rhetoric to support his false view of the constitution and readers do not deserve this heavy handed treatment. ] [There is no need to have these rights compete or to trump each other. Rights to an anonymous ballot in fact facilitate the right to have anyone count the ballots. ]    I intend to explore more issues raised in Marks v. Koch in upcoming columns. If you have any questions about elections in Aspen and Pitkin County or questions about a particular matter of policy that you’d like see discussed, please email me at writejacknow@gmail.com. All responsible and serious queries and emails will be responded to.
[Evidence shown to me suggests that Jack might respond with a brush-off to responsible and serious queries, as he has to mine in the past. Do try to ask Jack, but also please post to this blog if you have a question or comment to make. Harvie Branscomb – annotating in blue]
Here is the link to the column on the Aspen Daily News website: http://www.aspendailynews.com/section/columnist/150249

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