-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

Marks to again view Pitkin County ballots - a one-sidedly cautionary report on ballot access

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Saturday, November 19, 2011
Marks to again view Pitkin County ballots
Inspection request modified to involve 100 ballots from latest election
Janet Urquhart
The Aspen Times
Aspen, CO Colorado

[The following news report includes substantial space given to discussing speculations about problems with public ballot access, and no space given to the potential benefits.  For that reason I have annotated the article here, in blue. Harvie Branscomb]   

ASPEN — Elections activist Marilyn Marks will have an opportunity to inspect 100 ballots cast in the Nov. 1 Pitkin County election and obtain digital copies of 25 of them.

The cost of labor and copies will run Marks about $117, estimated Pitkin County Clerk and Recorder Janice Vos Caudill.

Marks last week made an open-records request to view 605 ballots cast in the recent election — those that were selected for a required, post-election audit.

According to a press release issued by Vos Caudill on Friday, Marks offered to reduce the scope of her request, given time constraints and the volume of work at the clerk's office, and inspect just 100 of the 605 audited ballots. Twenty-five of the 100 ballots, of Marks' choosing, will be scanned and provided to her on a disc, Vos Caudill said.

The clerk, who was out of town on Friday, said she anticipates selecting the ballots to be viewed on Monday and laying them out for Marks' inspection on Tuesday.

This is the second time Marks will look at a sampling of county ballots; last month, she asked to see five to 10 ballots from the county's November 2010 election and was provided 10 to inspect in the clerk's office.

Marks, the Aspen resident embroiled in a legal battle with the city of Aspen and three other Colorado counties over the right to view election ballots, said her latest request to Pitkin County is intended to facilitate the establishment of policies and procedures for complying with such requests. Being able to view ballots cast in an election is a matter of election transparency, according to Marks.

The exercising of the CORA law is important because it demonstrates the lack of negative impact of the process of inspection to those who fear such negative impacts. In fact, there are many benefits to be obtained from public verification of elections including by occasional inspection of ballots under appropriate controls. Sadly not one of them is mentioned in this article, nor are these benefits often mentioned in other news reports.  It would appear that each records request in Aspen will be answered by an opportunity for the Clerk to advertise fears over misuse of the contents of ballots, rather than a celebration of the benefits of citizen oversight. This article simply reveals that Pitkin’s clerk is not particularly friendly to public oversight.

Jurisdictions that have not complied argue that releasing ballots could jeopardize the anonymity of the voting process, and Vos Caudill acknowledged the risk that releasing ballots for public scrutiny poses.

This sentence is seriously misleading. Ballots are either anonymous or they are not. Releasing them does not change whether they are anonymous – but this sentence is about the voting process – and that simply isn’t anonymous, as actual live voters do participate without attempting to incognito. Here is a proper restructuring of the above sentence.  “Jurisdictions that have not complied argue that allowing inspection of voted ballots could jeopardize the “secrecy in voting” requirement of the Colorado constitution, but this requires an extrapolation that “voting” is something other than the process of a voter expressing their voter intent at a polling place. Secrecy at the time of voting is necessary to protect the privacy of the voter, but once the anonymous marks on paper are separated from the voter by casting the untraceable ballot into the ballot box (or equivalent), no one, not even an election official, can identify the ballot.  This is what the constitution calls for.

When clerks claim that “secrecy” of ballots is necessary to maintain voter privacy they are also admitting that their elections contain non-anonymous ballots, and therefore violate the other constitutional requirement that far more securely guarantees voter privacy. The second requirement is that ballots be marked (hand marked by a voter or printed by an election official) in a manner such that no one can identify a ballot.  Both signatures (if any) on ballots and rare printed ballot styles, either of which reveal voter identity, are unconstitutional and could lead to voided ballots, or even voided elections.  “Secrecy in voting” (the process) and anonymity of ballots (the objects) are what the constitution provides for, not “anonymity of the voting process” and “secrecy of the ballot.”  Clerks often mix and confuse these two constraints as seems to be the case in this article.

The proliferation of election-related data that is public information could conceivably lead to the linking of a particular ballot with a specific individual, she conceded. Voter intimidation is among the potential consequences, Vos Caudill said. 

Unfortunately, voter intimidation is possible today without broad public  access to ballots.  Law prevents officials from revealing how anyone voted, but it is also illegal to engage in voter intimidation.  If one law can be broken, as implied by Vos-Caudill,  the other can too – and we can’t just assume that only the unwashed public will violate these laws.  Without citizen oversight and full compliance with the constitutional requirement of anonymity of the ballots, voter intimidation can take place if ballots are traceable— and our concern over this would also apply to the hand full of partisan election workers who regularly see the marks on ballots .   Sunshine would favor the discovery of such tactics.

Also, at a macro level there is evidence of mass intimidation in Aspen as demonstrated by often promoted concerns that ballots might possibly be traceable – a disservice to citizens that this article itself engages in.  If ballots are traceable, then certain elite people with legal access to ballots (for the purpose of counting, auditing, etc.) may be able to recognize some of them. Among these elite are people who have influence over city policy.  Constitutional anonymity of ballots defuses this concern.  

It is also important to realize that when all voters in an election sub-tally have voted for the same candidate, we know how all of them voted. When there are very few voters eligible to vote in a split precinct (not a problem with Aspen’s ballot) and only one turns out, we also learn how that person voted.  And in some counties, clerks are apparently actually storing the information necessary to trace ballots, and failing to adequately shuffle ballots - a process that would surely render them untraceable.  In Pitkin County’s recent election, one such mistake was about to be made when election watcher Marilyn Marks notified the clerk about it before the damage was done. That is a demonstration of how election oversight works to improve elections.

So in contrast to the above printed sentence, it is also important to acknowledge that “the proliferation of election-related data that is public information does in fact lead to better election conformance with law as well as discovery of election inaccuracies and also improvements to future election processing.  Why isn’t this side of the coin even mentioned here in this article?

Like Marks, Vos Caudill said she and other county clerks around the state want the state Legislature to address whether cast ballots are public record. In Marks' lawsuit with the city of Aspen, the Court of Appeals has ruled in her favor. The city has filed an appeal with the state Supreme Court.

Contrary to the above statement, Marks does not agree that the legislature should address whether ballots are public records. She recognizes what has only become more clear, thanks to the Colorado Court of Appeals, that cast ballots are public record (except for those that are not anonymous). Anyone who finds this unclear, and supports dark ballots, has failed acknowledge that the 2007 Colorado Senate refused to exempt ballots from Colorado Open Records Act. These dark ballot proponents among whom are quite a few Colorado Clerks and Recorders and Aspen City Council members have also failed to accept the unanimous clarification provided by the Court of Appeals along the same lines and are seeking a reversal by the Supreme Court.

“The people of Colorado and clerks deserve clarity versus litigation that, at best, provides partial answers on an ad hoc basis,” Vos Caudill said in her press release.

The City of Aspen forced citizens like myself and Marilyn Marks to resort to litigation by failing to respond to a series of polite requests followed by a series of reasonable and limited legal records requests.  The City claimed it was a vexatious attack on government, but has changed its tune entirely since the Court of Appeals provided an answer in the form of a clarification that was anything but partial or “ad-hoc”.  The above quote demonstrates a lack of understanding of the role of the Appeals Court in addressing transparency, relegating the opinion of the Court to insignificance.

Vos Caudill said her response to Marks' latest request is based on the appellate court ruling and her consultation with the county attorney.

A Clerk and Recorder who truly understood the public benefit of transparency would happily respond to such a records request, glad that the court has recently provided her protection from any claims of improper fulfillment of duty.  I don’t understand why this and other records requests are described as if onerous and malodorous, when they are anything but.

As with last month's ballot inspection, the opening of a sealed canister containing the ballots, the selection of the ballots and Marks' inspection of them will be videotaped, Vos Caudill said.

“It's a new process and it's prudent to be careful,” she said.

It is important to recognize that integrity of the physical paper ballots is of great importance, and video will ensure that this integrity is maintained. Copies of ballots made by scanning remove these integrity concerns. That is one of the reasons why Aspen’s 2009 election was potentially the most verifiable election in history – a CD of scans of ballots had already been made, waiting for a delivery to the public that hasn’t yet been fulfilled.  It may yet require years and hundreds of thousands of dollars to be spent to retain the status quo accessibility of the public to its own election records.

Vos Caudill said members of the public who have concerns or wish to discuss the release of ballots are welcome to email her at janice.vos@co.pitkin.co.us or call her at (970) 429-2710.

Likewise I would be interested in talking to the public about this issue.  Post a comment to this blog or contact Harvie Branscomb 970-9631369.

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