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.]
[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. ]
[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 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. ]
[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?]
[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.]
[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]
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