Aspen Election Review

Ballot transparency a statewide debate; poll favors transparency

2011-11-29T11:58:00.000-07:00

Ballot transparency a statewide debate

Issue might wind up before Colorado Legislature

Janet Urquhart
The Aspen Times, Aspen, CO Colorado

ASPEN — A candidate's request to inspect ballots cast in Aspen's 2009 municipal election has set in motion similar efforts around Colorado. The end result might be new rules that govern the review of ballots or that withhold them from public inspection altogether.

Meanwhile, Aspen resident and 2009 mayoral candidate Marilyn Marks is expected to review on Tuesday 100 ballots cast in Pitkin County's Nov. 1 election. Rather than simply eye the ballots, though, Marks has suggested that county Clerk and Recorder Janice Vos Caudill and a group of election officials look over 100 to 200 ballots with Marks and discuss whether any of them are “identifiable.”

The potential to link a voter to a particular ballot via various election information that is available to the public through the Colorado Open Records Act (CORA) has emerged as a concern among county clerks across the state as they respond to ballot requests from Marks and others.

Vos Caudill, however, indicated last week that she would select unidentifiable ballots for Marks' inspection and leave it at that. Copies of 25 of the ballots, of Marks' choosing, will be provided to her in digital form on a disc, Vos Caudill said.

Vos Caudill, along with other county clerks around the state, fear that in some instances, a voter could be linked to a particular ballot if ballots are made public along with other information. Already available through a CORA request, she noted, are the names of individuals who voted in a particular election, the date they voted, the method by which they cast the ballot (mail-in, early voting or at the polls) and the style of ballot they cast. Ballot style refers to the questions on a particular ballot; an Aspen voter likely would see different questions on a countywide ballot than a Basalt voter would, for example, while other measures could appear on both ballots.

Marks initially asked to see 605 ballots from the Nov. 1 Pitkin County election — the ballots that were tallied on one day, on one particular machine — which were randomly chosen for a post-election, state-mandated audit. Instead, she will see 100 of the audited ballots.

The county conducted a mail-only election this fall, though some people dropped off their mail-in ballots in person. The group of 605 ballots includes some from all 10 county precincts, according to Vos Caudill. The group of audited ballots happened to include 49 from Precinct 10 — the Redstone area. Four different styles were among the 49, she said. Two of the styles were each cast by five voters. If all five ballots of one style reflected the same vote on any issue, it would be possible to identify how five people actually voted on a particular measure, Vos Caudill explained.

Marks doesn't disagree, though she believes that the vast majority of ballots probably aren't identifiable in that way. “I think there might be a tiny, tiny handful,” she said.

“That's where we do have a legitimate problem,” Marks conceded. “We need to find a way to design a ballot so we don't have so many customized ballots.”

In Mesa County, one of several jurisdictions Marks is suing over release of ballots, Clerk and Recorder Sheila Reiner demonstrated to the editorial board of The Daily Sentinel in Grand Junction how an anonymous ballot can be connected to a particular voter.

Boulder-based Colorado Voter Group subsequently filed a complaint with the Colorado Secretary of State's Office that charges Mesa County with failing to maintain an elections system that protects the anonymity of ballots.

Larimer County Clerk and Recorder Scott Doyle, president of the Colorado County Clerks Association, has also said making ballots a matter of public record could allow people to find out how citizens voted, according to a report in the Loveland Reporter-Herald.

The clerk's association may push legislation to exempt cast ballots from CORA, according to Vos Caudill. The association's executive and legislative committees are scheduled to meet next month, she said, and the organization may work to have a bill addressing the issue introduced at the Statehouse when the legislative session begins in January.

“Exactly what it will look like, I don't know,” Vos Caudill said. She said the responsibility to balance the need for election transparency and voter privacy belongs in the Legislature. It's the clerks' responsibility to present the facts and their concerns, she said.

But Marks believes that reports emerging from clerk's offices around the state — that some ballots are identifiable — could have a chilling effect on voting. She said she's aware of individuals who refused to vote this year because of such claims.

Nonetheless, Marks doesn't want ballots exempt from CORA. Rather, she is calling for other safeguards to ensure election data can't be used to link a particular voter to a particular ballot.

The Colorado Secretary of State's office is taking that tack as well, and has drafted a set of proposed rules to guide the inspection of ballots. At present, clerks aren't responding to such requests with any uniformity, according to Marks.

Meanwhile, Marks' lawsuit against the city of Aspen over its refusal to make its 2009 ballots available for public scrutiny remains unresolved. The city's action was upheld by 9th District Court Judge James Boyd last year, but in September, the state Court of Appeals overruled his decision. The city has appealed the appellate court's ruling to the Colorado Supreme Court, but that doesn't mean the high court will consider the case.

Marks, who lost to Mick Ireland in the mayor's race that year, has said she has no interest in challenging the results of the 2009 election. Her request to see the ballots is about election transparency, she said.

“If the council cannot show us the ballots because the ballots are identifiable, they are acknowledging that they conducted an unconstitutional election,” she said last month, when the city announced it would appeal the appellate court's decision.

“The citizens need to have the right to verify an election,” she said last week.

The city, in deciding to file the appeal, maintained that it's a citizen's constitutional right to vote their conscience, knowing that their ballot will remain “forever secret.”

The question of whether ballots should be open to public review at any time, for any reason, belongs with the Legislature, the city said in a recent guest opinion in The Aspen Times written by communications director Mitzi Rapkin.
janet@aspentimes.com

[click link to read article with comments (if any)]

http://www.aspentimes.com/article/20111128/NEWS/111129881/1077
--

Secrets in the city

by Sheldon Fingerman, Aspen Daily News Columnist

Monday, November 28, 2011

No matter how many times the city explains it, I still don’t understand why they are pushing the ballot issue all the way to the Supreme Court. The problem seems to be that ballots need to be anonymous — forever. Well, I would like to see someone go through those ballots and pick mine out, and isn’t that the issue?

Remember the hanging chads in the Florida election? We saw many of the ballots on TV as officials held them up to the light using magnifiers and whatnot to see how votes were cast. Were you able to pick out my uncle’s ballot as you watched the reports on TV? Neither could I.

We used to punch holes in ballots here in Aspen, too, but now we fill in an oval with a black marker. Unless you have a very special way of filling in that oval, and you tell someone about it, there is no way anyone can pick out your ballot from the pile.

And, getting back to never, ever seeing the ballots; anyone who watched Grassroots TV saw each ballot pass by. How on earth would you know whose ballot each one was?

After we vote the ballot is placed in a machine that records the results, so no human ever sees each ballot, and if they did what would it tell them — that someone voted for Mick and someone else voted for Marilyn?

Most of my friends are pretty opinionated, and not one of them gives a damn whether anyone sees those ballots. The only people who do are those who work for the city, and I’m beginning to wonder what they trying to hide. Seems the city has better things to do with my money.

... unrelated portion of column not copied here, but linked:

http://www.aspendailynews.com/section/columnist/150384

Go with the constitution: a letter to editor by Harvie Branscomb

2011-11-25T11:22:00.006-07:00

http://www.aspendailynews.com/section/letter-editor/150357

Go with the constitution

Friday, November 25, 2011

Carolyn Sackariason’s article, “Litigious days at City Hall” (Aspen Daily News, 11/21/11), includes a mystifying yet illuminating sentence: “The city, however, contends that releasing the ballots, even if they’re kept anonymous, will substantially injure the public interest because voters could potentially be identified.”

This sentence captures the essence of an epic controversy over who should see ballots. Aspen has withheld the prepared CD of the 2009 ballot scans that could have accompanied disks I and others received of the vote patterns and GrassRootsTV’s recording of ballot scans projected at City Hall on election night.

The sentence reveals the prevailing misunderstanding about why democracy needs anonymity and what ought to be secret in our voting method that is quirkily, but inaccurately, known as secret ballot. It isn’t what’s on the ballot that’s supposed to be secret — it’s the identity of the person who voted it. Our state constitution calls it “secrecy in voting,” never mentions a secret ballot, and specifically requires that no one can know who voted a particular ballot. That’s anonymity. It is a beautiful thing that Aspen may have forgotten.

It makes not a whit of sense for the city to say “even if they’re kept anonymous … voters could potentially be identified,” because anonymous means, exactly, that voters can’t be identified. A true secret-ballot election happens when voters vote in private, mark ballots that are anonymous and untraceable, and then cast them into a precinct ballot box. Then ballots are counted in public where anyone can see them without risk of finding out who voted on which ballot. Ideally everyone who wants to see ballots can count them. Seems strange now, but Aspen in 2009 was about to demonstrate the benefits of such a verifiable election until officials changed their minds and started legal arguments to drag clouds across the sunshine law with the intention of keeping ballots away from public scrutiny.

Carolyn Sackariason has demonstrated that Aspen officials seem to prefer their own definition of anonymous. It goes like this: Anonymity exists only while ballots remain perpetually secret, though they still can be seen by a handful of election officials and their private election contractor. Those ballots inexplicably lose their anonymity, however, when seen by the press or average citizens.

Which of these sounds best to you? One, that officials hide all the ballots including some they believe are traceable, or two, officials run a constitutional election, show anyone the anonymous ballots, and no one can figure out which ballot was marked by whom. Either anonymity as described and required by Colorado’s constitution works or it doesn’t. I say go with the constitution, not Aspen’s perversion of it.

Harvie Branscomb
El Jebel

Why insist on secrecy but dismiss anonymity?

2011-11-23T10:53:00.014-07:00

http://www.aspentimes.com/article/20111124/COLUMN/111129937/1021

Maurice Emmer and Harvie Branscomb: Guest opinion

Why insist on secrecy but dismiss anonymity?

November, 23 2011
Maurice Emmer and Harvie Branscomb
Special to The Aspen Times
Aspen, CO Colorado

We both write repeatedly about the importance of election transparency. We present facts. We don't make things up. Stories about revealing ballot “secrets” often sound like scary tales told to children. They are designed to frighten, not inform. Jack Johnson's scary story recently published in another paper might trigger your instinct to fight, but that's what fiction and political propaganda are intended to do.

Johnson's column, and recent announcements by the city of Aspen, misconstrue election and open-records law as well as misrepresent the Marks v. Koch case and the Court of Appeals' unanimous opinion in favor of ballot transparency. As untrue assertions have become Aspen's norm, here we try to separate fact from fiction.

A little history, not made up:

Before 1947, Colorado ballots were marked with unique numbers and were not anonymous. Voters might mark their ballots in secrecy, but their votes were traceable through deliberate numbering. A 1947 constitutional amendment outlawed any marks on ballots that make them traceable. This revolutionary change facilitated effective privacy of Coloradans' voting process and is the foundation of our civil right to expect our votes to remain secret. This voting method — sometimes referred to as the “secret ballot” — ironically does not allow for secrets on ballots.

However, opponents of election transparency talk endlessly about “secret ballots.” Hate to tell you, there's no such thing. “Secret ballots” have no place, indeed no meaning, in our election law. Voters are entitled to privacy while voting and a system designed to prevent tracing a ballot to a voter. These safeguards ensure NO ONE learns how anyone else voted. They ensure what everyone wants: Nobody knows how I voted.

Many states understand that a properly implemented anonymous ballot prevents anyone from tracing your votes to you. Anonymous ballots are no more traceable to the voter than newspapers abandoned on a bench are traceable to the purchaser by later readers of the paper. Anonymous ballots are not like tax returns and medical records (a badly chosen analogy attempted by Johnson). If you leave your tax return on a bench, anyone who finds it knows it is yours. Ballots are different.

So why the huge official resistance to public viewing of anonymous ballots? Could public officials benefit from abusing a system where ballots are kept “secret”? That kind of secrecy protects any errors and misconduct in the election process. That kind of “secret ballot” would not serve the public interest.

Johnson argues it's unnecessary to permit the public (including the press) to see ballots because of adequate quality controls on Aspen elections. How dependable are they?

Election audit methods are immature. 2011 saw Aspen's first complete election audit. Audits are only a part of much-needed verification because current centralized counting methods are more complex and harder to verify than hand-counted ballots were in precincts. The centralization and use of mail-in ballots alone should make citizens demand more and easier independent ways to validate election results.

So-called accuracy tests aren't sensitive enough. Access to recounts and challenges is limited and expensive. Modern post-election reviews are often impossible to oversee.

Given the spotty functionality of existing checks and remedies, we reject Johnson's comforting us that existing controls justify endorsement of secrecy of post-election records.

What of Marks v. Koch? Under the Colorado Open Records Act (CORA), Marks sought public disclosure of images of ballots in a city of Aspen election. CORA makes most public records available for public inspection on request, not requiring a reason to be given, only a willingness to pay direct costs. The local District Court dismissed the case at Aspen's request. The District Court's brief explanation made sense only to Aspen officials. Marks appealed; the Colorado Court of Appeals unanimously agreed that the District Court and the city were utterly, completely, totally wrong.

The Appeals opinion says ballot images are public records and must be released. The reasoning: 1) The Colorado Constitution requires anonymous ballots. 2) Anonymous ballots are not exempt from being public records; the voter's identity cannot be known. 3) A ballot not anonymous for any reason is exempt from disclosure, thus protecting the voter's identity.

Why the fuss about that logic? We don't get it.

The constitution guarantees citizens' rights to “secrecy in voting” and anonymous ballots. The Court of Appeals correctly found that ballots should have no identifying marks and therefore may be disclosed with stated protections for the rare ballot that may for some reason be identifiable.

Aspen officials seem emphatic about securing permanent secrecy of ballots but meanwhile disregard the ballots' constitutional anonymity. They and Johnson seem bent on preventing citizens from independently discovering whether those anonymous ballots were counted properly.

Maurice Emmer is a retired tax lawyer living in Aspen and active in the Pitkin County Republicans. Harvie Branscomb is a citizen activist living in El Jebel and Eagle County Democratic Party official.

This article is written in response to the following column in the Aspen Daily News:

http://www.aspendailynews.com/section/home/143298

(apparently this link has now failed)

Here is the link to the same article as annotated on this blog:

http://aspenelectionreview.blogspot.com/2011/11/can-we-keep-secret-column-by-jack.html

Pitkin County Press release differs from Aspen Times article

2011-11-20T22:21:00.000-07:00

In the previous blog posting I annotated the Aspen Times article (http://aspenelectionreview.blogspot.com/2011/11/marks-to-again-view-pitkin-county.html) that seems based upon the contents of the following Pitkin County press release. That article promoted confusions that I felt the needed to be pointed out, such as the use of the misleading terms "anonymity in voting" and "secret ballot".

The Colorado constitution refers to a different combination of terms: "secrecy in voting" and anonymous ballots - and there is a big difference. Looking at the final paragraph of the Pitkin County press release below, one can see that the Pitkin County Clerk does understand this difference and is careful to use the correct terminology.

However, the Pitkin County Clerk also seems to have concluded that transparency and anonymity are essentially in conflict and that both may not be achievable simultaneously. She has also used an oxymoron when she writes "anonymity of their ballots" - since once rendered anonymous, personalization of the ballot does not exist. So I find myself glaring at the irony of the use of the word "their" next to the word "ballots".

Here is a better wording I would prefer to see used in place of what is in the release: "I will work to assure that each Pitkin County individual has the ability to exercise his or her right to vote with confidence in the anonymity of ballots cast in this county and the untraceability of individual votes on those ballots."

The two concepts that are irrevocably in conflict are "secrecy" and "transparency" of ballots.

On the other hand, anonymity and transparency of ballots are perfect compliments to each other. The author of the press release may have failed to realize this. Both the press release and the article contain no reference to the benefits to be obtained from transparency of ballots. I hope the Pitkin County Clerk and Recorder will come to understand these important principles and will then somehow help convey her understanding to fellow clerks. I have highlighted the paragraph in the text shown below that was not reflected in the Aspen Times article. I continue to have a reservations about the conclusion that the judicial process produced "partial answers on an ad-hoc basis."

The Appeals Court decision, far from ad-hoc, allows the clerks to have discretion to withhold identifiable ballots. Judge Gonzales (12^th JD) in the Gessler v Myers case in August also wrote in separate but consistent opinion,“ An election record, including a voted ballot, may be disclosed as long as the identity of the voter is not disclosed."

This interpretation is not inconsistent with Colo. Const. art. VII, § 8 that states that a ballot cannot “be

marked in any way whereby the ballot can be identified as the ballot of the person casting it.”

Clerk Vos Caudill seems to see complexity where others see relative clarity and simplicity. If Vos Caudill can identify the voter from looking at the ballot, then she shouldn’t disclose the ballot in an identifiable form. But if voter markings explain that ability to identify, she should be considering referring those ballots to law enforcement. Markings rendering a ballot identifiable are illegal.

Sometimes the way ballots are printed focuses on a very small number of eligible voters in a split precinct. Low turnout can create the ability to identify the voter associated with a unique ballot style. That problem is easily predicted and such a unique ballot can be withheld from public inspection until the small-split-precinct matter is addressed systematically. If an election official cannot identify the voter from looking at the ballot, the ballot should be eligible for inspection by the public.

Harvie Branscomb 11/20/2011 - the Pitkin County release follows the break:

Date: November 17, 2011 – FOR IMMEDIATE RELEASE

Contact: Janice Vos Caudill, Pitkin County Clerk and Recorder (970-429-2710; janice.vos@co.pitkin.co.us)

COUNTY CLERK TO COMPLY WITH BALLOT REVIEW REQUEST

Aspen, Colorado – Pitkin County Clerk and Recorder Janice K. Vos Caudill announced today that she will grant Marilyn Marks’ request under the Colorado Open Records Act (“CORA”) to inspect 100 anonymous voted ballots and provide copies of 25 voted ballots cast in the 2011 Coordinated Election. The inspection will occur the week of November 21.

The 100 anonymous ballots will be selected from 605 ballots cast on AccuVote-OS machine, serial number 836336. The same machine was randomly selected by the Secretary of State to undergo the statutory post-election audit. Under the Election Code, the Secretary of State randomly selects specific pieces of electronic voting equipment used by each county in an election, and boards of election judges then manually verify that the specified machine accurately tabulated the votes. Pitkin County’s 2011 post-election audit was conducted on November 10^th, and the results of the audit may be viewed on the Colorado Secretary of State’s website at www.sos.state.co.us (under elections/voting systems program/post-election audit). Due to time constraints and the volume of work in the Clerk and Recorder’s office, Marilyn Marks offered to reduce the scope of her CORA request from all of the 605 ballots that were the subject of the post-election audit to 100 of those ballots.

The Clerk and Recorder made this decision to review the ballots based on the September 29, 2011 Colorado Court of Appeals opinion in Marks v. Koch, Secretary of State Election Alert 2011-04, and after consulting with Pitkin County Attorney John Ely.

Unlike municipalities, counties are administrative subdivisions of the state, and county clerks are required to implement and enforce a variety of state laws, including judicial opinions, Colorado Revised Statute Title I, Election Rules, orders and directives promulgated by the Secretary of State.

“State election laws and rules are very complicated,” Vos Caudill said. “County clerks understand that breaking the seals that secure voted ballots and releasing voted ballots for public inspection may have unintended consequences that could cause harm. The proliferation of election-related data, advances in database technology, and the interpretation of CORA to encompass voted ballots may unwittingly combine to produce public harm and injury by enabling the identification of a voted ballot with a particular voter. It is imperative these risks be addressed in a thoughtful and systematic review of all applicable laws and regulations by the General Assembly, the Election Division of the Department of State, county clerks and election personnel, and community members. The people of Colorado and clerks deserve clarity versus litigation that, at best, provides partial answers on an ad hoc basis,” Vos Caudill said.

“My foremost concern as Clerk and Recorder for Pitkin County is to continue our proud legacy of honest, fair and verifiable elections in a manner that is both transparent and ensures the anonymity of ballots cast by Pitkin County electors. However, achieving these disparate but extremely important objectives is becoming increasingly difficult, and may be completely impractical due to the unique facts and circumstances of any given future election. Until there is clarity in law and rule, I will work to assure that each Pitkin County individual has the ability to exercise their right to vote with confidence in the anonymity of their ballots and the secrecy of their individual votes,” Vos Caudill said.

###

[highlighting and font color by Harvie Branscomb 11/20/2011]

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

2011-11-19T16:06:00.001-07:00

Heading 1

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 Aspen Times

[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.

Links to reporter and article:
janet@aspentimes.com

http://www.aspentimes.com/article/20111119/NEWS/111119821/1077&ParentProfile=1058

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

2011-11-19T16:03:00.003-07:00

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?

AspenDaily 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. Kochseeks to overturn a century’s worth of election law and should be reviewed bythe Colorado Supreme Court.~~

[The election law has not been overturned in any way. The OpenRecords Law, which has been in place for over 40 years and which allows ballotsto be public records, has merely been upheld. It is modeled after the same openrecords law that permitted the Bush/Gore ballots or the Coleman/Franken ballotsto be reviewed by the press and public to reach their own conclusions.] No elected or appointed official in Aspen invented Colorado election law or thesecret ballot. They are only charged — for our benefit and upon our behalf —with interpreting and implementing it. Average citizens, the press and evenloud-mouthed local public policy columnists all very much take the “secret ballot” for granted. We haveforgotten, if we ever knew, how hard it was to win the right to such becausemuch of the intellectual thought regarding election law and the right to asecret ballot was settled in the 19th century.

[Actually “secret” ballots were allowed until 1947, and Coloradoballots were traceable if an official peeked at the concealed ballot number onthe voted ballot. Before 1947, three election officials withseparate keys had to collaborate to open the ballot box. They could then remove ballotsstuffed by ineligible voters or fraudulent officials by checking the identitiesof 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 aspossible using a glass ballot box and three keys. “Secrets” to be sharedwith and by election officials are subject to abuse. So, in 1947, theconstitution was changed to guarantee that ballots are anonymous and theofficials 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 yourprivacy in the act of voting the anonymous ballot. The contents of ballots areno longer “secret” as that was a dangerous proposition. You can perhaps beginto understand how poor a term the phrase “secretballot” is. It is utterly and essentially confusing. And that confusion isparticularly rampant in Aspen. That’s a confusion that is not at all remediedby Jack’s confused opinion. ]In a nutshell, ballots are cast and then counted. Results are determined andannounced. Some people celebrate and drink beer and cheer the results, othersnot so much. ~~Later,~~ audits are performed and tests for accuracy are conducted.

[The first such completed audit in Aspen was in2011. Counties have had post-electionauditsonly since about 2005. They were added in response to the removalof the natural oversight of precinct-voted, precinct-hand-counted, paper ballotelections, and the substitution of heavily centralized, mechanized elections.]

This all occurs in public [—actually, much occurs in the clerk’soffice after hours and behind closed doors or inside a difficult-to-verify vote-countingdevice] and at specific times and places determined bylaw [but also at thewhim of the clerk].

Then there exists a “contest” period during which the results maybe challenged. ~~Anyone can request a recount and have one conducted. But whenrecounts are conducted they occur under very strict procedures and are overseenby a judge.~~

[No, the recount is performed by the Election Commission and localcitizen election officials. No court is involved. Johnson has confused a“recount” with an “election contest.” The right to request a recount, even thoughthey have to pay for it, is reserved to very specific individuals, “interestedparties” generally meaning those who stand to lose in the election. A “logicand accuracy” test is performed before the election, but often this test is notintended to verify the accuracy of the voting equipment, rather the successfuldesign of the ballot and compatibility with voting system software andhardware. Only through extra testing beyond what is required have I been ableto detect errors in voting equipment such as that used by Aspen. Such equipmentwas determined to be worthy of replacement after I obtainedthe results of tests I performed in Eagle County.] ~~After the contest period is over ballots are sealed in the ballot box forsix months and then destroyed~~.

[No, the ballots are sealed on election night; the ballot box may beentered later for various needed functions, including auditing, canvassing,recounts, election complaints, etc. In municipal elections ONLY, ballots aredestroyed 6 months after “the” election, not 6 months after the contest period ends, as Johnsonincorrectly states. In county, state and federal elections the ballots arepreserved for at least 25 months, and may be maintained for years. ]

However, during these six months a judge can order a recount ifsufficient 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 tothe actual voted ballots, it is virtually impossible to obtain “sufficientproof of” anything. Therefore, the ability to contest, at great expense, issimply 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 associatewith Jack Johnson, is very unattractive, but usually rendered impossible whenthe transparency isn’t available. However, there are other criteria for a contestother 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 referringto an election contest—a very different process. Johnson is referring to whatever the courtwould 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 rightto ~~both~~verify the outcome of an election ~~while also protecting our right to asecret ballot~~.

[Our law doesn’t offer a“right to a secret ballot” in those words. It calls for “secrecy in voting” andanonymity of ballots. The right to “verify anelection” isn’t fulfilled with a recount because the recount process isreserved only for “interested parties” or in county run electionsspecifically the losing candidates and ballot question committees. These potentiallosers are also subject to ridicule if they start asking any questions, as JackJohnson has amply demonstrated through his previous actions. Neither is the “right toverify an election” fulfilled in the “contest” process because that is expensive andrequires access to evidence that may have been withheld by the clerks—the very obstaclethat Johnson seems ironically to advocate for. The “right to verify”is fulfilled through our access to the election records, including theanonymous ballots or election-judge-verified copies of them. Johnson assumes that thepublic can verify any election by asking for a recount and/or mounting a court-supervisedelection contest. Both are expensive, barring most candidates or public fromsuch an activity. But, in county, state and federal elections in Colorado, ONLYthe LOSING candidate may request a recount, thereby making “verification” througha “recount” off limits to all but a few well-fundedand brave losing candidates. Even then, Colorado recount laws requirerecounting on the same or similar machines, which may justreplicate the error in the first count, and no real verification is possible. Electioncontests are available only to those who can prove that the outcome of theelection would change if the court considers the evidence. That is hardly a wayto verify any election, even if the applicant had the scores of thousands ofdollars to mount an election contest. Jack’s claim is incorrect.] ~~Secret ballots were an improvement in election law history because they madevote buying all but impossible and made it easier to vote one’s consciencewithout influence from others.~~

[ Secret “ballots” aren’t called for in law. “Secret ballot” isa voting method, not a description of a physical ballot. This is a very commonand big misunderstanding, but it can be corrected by visiting Webster’s.This fundamental confusion in the terminology makes “secret ballot” the most poorlyselected political rhetorical term, frame, or sound bite ever invented. It is notthe ballot that is secret. What is secret is the act of marking the ballot andprotecting the marks from others’ view until the ballot can be safely and anonymouslyplaced inside a secrecy sleeve or envelope and cast into a ballot box. It is asecret process, not a secret entity. Thus “secret” or “Australian” ballot is avoting process or method where the ballots are sheets of paper, marked by thevoter in private, and cast in such a way that they are rendered anonymous anduntraceable. ][Unlike precinct voting, mail-in ballots make vote buying andselling quite easy and leave no trace of the nefarious activity.]

~~There are other reasons but secret ballots, recounts overseen bycourts~~, [recounts are not overseenby the courts] ~~employing uniform legal procedures and the eventual destruction ofballots are progressive improvements to our voting system and should berespected and strongly defended.~~

[Modern election law, based on the requirementfor anonymously cast ballots, does not require destruction of those records.Aspen’s law does, and it should be changed. There is no reason to destroyanonymous ballots. Prior to 1947 there indeed was a reason to destroy marked,identifiable ballots. I would hope that the Florida 2000 ballots have beenarchived and well preserved as an important piece of history.] [Indeed, thedestruction of the ballot is not at all a progressive improvement to our votingsystem. It is the opposite—an antiquated concept from a historical era when wemade the mistake of leaving secrets on ballots in the form of fully traceableballots. Johnson is exercising wishful thinking in characterizingany court’s handling of elections as a “uniform legal procedure.” Bush v. Gore is agreat example of how that isn’t what happens—and looking closer at thatexample, recounts are not what always result, either. Sometimes recounts areactually 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 inprivate so that no one else knows how we are voting while we are actuallyvoting. Privacy screens and sleeves, no identifying marks traceable to anindividual voter, etc., preserve this type of secrecy.

[Jack gets this part right—“secrecy in voting” is the phrase inthe constitution. And it means privacy of the voting process. ]

But ~~there is another aspect of secrecy more difficult toexplain but equally important.~~

[yes, it’s hard to explain because Johnson has it wrong. ] [ The missing part ofthe equation is the anonymity—Jack has dropped this essential piece out of thepicture. ]

~~Procedures for counting and the methods for the examination ofballots after they’ve been cast, counted, audited, certified — these were putinto law to protect this sort of~~ ~~secrecy.~~

[No, the counting, auditing, and certification process is requiredto be in public—NOT in private. That is why we have citizen watchers and allowthe press to observe the counting process. Anonymous ballots create no need forsecret counting of votes!] [All through theelection process the assumption is that watchers will be checking the accuracy…and when they are allowed to, they actually find and help correct errors—andthis has been the result of watching by both Marilyn Marks and myself in recentelections in Pitkin County. ]

Eventual destruction of said ballots ensures secrecy forever.

[I can’t deny that destruction guarantees a secrecy, but this isutterly contrary to the public interest, now that the 1800s requirement ofnumbering ballots has been changed. The strongest reason to destroy the ballotswas to get access to the sealable ballot boxes when they were needed for the nextelection. 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—makinghistorical revisiting of election questions possible for the first time. ] [Anonymous ballots do notneed to be secret or destroyed. County, state and federal ballots are NOTrequired 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 beavailable for public inspection. District Judge Boyd ruled that ballots wereconstitutionally exempt from the sunshine laws and held there is no differencebetween a ballot and a copy of that ballot.

[Judge Boyd dismissed the case on a motion that was around 5months old days before a deposition of True Ballot, Inc ( the electioncontractor) and two weeks before a court hearing at which evidence would havebeen presented. The Boyd decision was based only on procedural motions and nota full discovery of the facts or merits of the case. Scans of ballots are atopic not confined to Aspen 2009. Many existing voting systems are based oncreating scans of ballots as a first step, and a very logical and efficientmeans of verifying elections is made available by this new technologicalopportunity.]

The Colorado Court of Appeals recently ruled in effect that copiesaren’t originals ~~and since the constitution says nothing about copies thecity of Aspen should make the copies~~ ~~available.~~

[No, the Court reaffirmed that BOTH the paper ballots and their copiesare both public records available to anyone who asks. ] It is certainly true that copies aren’t originals or we wouldn’t call themcopies, would we? So the letter of the law is being upheld ~~but the spirit iscompletely and, wrongly, being ignored.~~ Would the court rule your originaltax return is secret but if someone in the IRS made a copy it could bepublished in the paper? If a copy were made of your medical records could theybe read aloud over the airwaves? Of course not. ~~This is sophistry.~~

[Johnson’s analogy fails in that tax returns and medical records AREconfidential documents, (ie. containconfidential information that is identifiable) for which copies are notmaterially different, and also confidential. Ballots are NOT confidentialrecords, so their copies are not confidential either. ]

~~The relevant section of the constitution was written in 1889 orsomething and never amended.~~

[ The constitution was materially amended in 1947 to provideanonymity of the ballot as a preferable substitute for security and destructionas the primary means of providing privacy of the vote. Even the City of Aspenpetition to the Supreme Court describes this change. ]

~~So this flap rests on the notion of whether copies are originalsand we have two conflicting opinions.~~ Of course the Supreme Court should hear it. Theoutcome is too important not to. Why? For one reason because the reactionaryand (nosey) forces wishing to look at the image of your 2009 ballot are nowdoubling down and want to see your actual ballot from 2011.

[Aspen substantially revised its election law as a home rulecity in order to achieve substantially modernized election practices. Allparties close to the records believe that the 2011 ballots are in factanonymous, other than perhaps a very few exceptions. The records requests forinspection of some of these ballots are to prove that this is the case. Thecurrent interpretation of the law calls for the clerk to withhold any ballotsfrom the inspection that are not anonymous. By requesting the ballots, we canfind out how many of the ballots are considered to be traceable. Jack isimplying that anyone requesting to see voted ballots may have a dishonorablemotive for inspection, but under the law, and by common sense, such amotivation wouldn’t matter if it were true. ] ~~Fortunately the city has denied this effort and proactively seeks a rulingfrom the District Court.~~

[The City is in effect saying that the Court of Appeals was nota clear interpretation of the law, but clear interpretation was the goal forthe 16 page decision.]

I voted in that election and Elizabeth Milias and Harvie Branscombseek to review ballots similar to mine — perhaps even my exact ballot for all Iknow.

[ “For all I know” in this caseisn’t much. According to law, Jack should have no reason to know which ballotis which. It isn’t “Jack’s” ballot. It’sone of many ballots, all of which belong to the public. This impliedownership is another frame that is poisoning this controversy in opposition totransparency. If Jack created an identifiable ballot, he has violated theconstitution as well as Colorado Statute 31-10-1517. ] [No one examining theballots will ever know Jack’s ballot from anyone else’s anonymous ballot. ]

For the reasons I briefly outlined above, I believe I would sufferharm from their inspection of any ballots and most definitely from inspectionof mine.

[ Again, we see Jack’s false presumption of ownershipof a ballot and assumption that each contains secrets. If Marilyn wereelection judge, would Jack be concerned about Marilyn possibly knowing how Jackvoted because Marilyn has full access to a ballot that was marked by Jack? Ifthe constitution serves Jack as it should, he would have no such concern. ] [What possible harm couldthat 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 withtheir own count over a box of wine while watching American Idol.~~

[Here is sophistry. Jack is bringing in imaginations aboutcontext and motivation that are irrelevant, and he is mixing the justifiableconcern about integrity of physical ballots with an overblown concern overaccess to what is really anonymous content. ] [Why not? We can takeother public records home and review them and even make false claims about themif we want. Others can check our credibility. By all means, we should beallowed to create our own accurate or inaccurate re-tabulations from COPIES, ofcourse. That is the American way. Would Johnson have blocked the WashingtonPost from recounting the Bush/Gore ballots? Sounds like it.]

I want the city to vigorously defend my right to a secret ballotas outlined in the state constitution. I ask the court to uphold my right to asecret ballot. The desire to personally count the ballots does not trump myright to a secret ballot.

[This is argumentation by repetition of a false frame. There isno “right” to a “secret ballot”. The constitution calls for anonymity and“secrecy in voting”. Not “secrets” hidden on ballots. Jack is using rhetoric tosupport his false view of the constitution and readers do not deserve thisheavy 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 countthe 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 orquestions about a particular matter of policy that you’d like see discussed,please email me at writejacknow@gmail.com. All responsible andserious queries and emails will be responded to.

[Evidence shown to mesuggests that Jack might respond with a brush-off to responsible and seriousqueries, as he has to mine in the past. Do try to ask Jack, but also please postto 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

Lots of press coverage of the transparency issue in Colorado

2011-11-18T12:34:00.001-07:00

By Katharhynn Heidelberg

Montrose Daily Press Senior Writer
http://www.montrosepress.com/news/article_dad52732-119d-11e1-bc5c-001cc4c03286.html

[copy of full version shown below]

As a dispute over whether images of ballots are subject to public records law heads to the state Supreme Court, the county clerks in Montrose and other counties are doing all they can to keep citizens' votes private.

They do not accept a recent Court of Appeals ruling that requires Aspen's city clerk to release digital copies of ballots cast in a 2009 mayoral race there.

The race's unsuccessful candidate, Marilyn Marks, challenged under the Colorado Open Records Act the Aspen city clerk's decision not to provide her with the copies. Aspen, which had cited municipal election code and the potential for "substantial injury to the public interest," won at the district court level. An appeals court agreed with Marks, however: constitutional voter-secrecy requirements only protect a voter's identity, not the content of the ballot.

Earlier this week, Aspen filed a petition with the state Supreme Court to appeal the decision — but county clerks who see the Marks ruling as a threat to voter privacy aren't waiting to see how the high court moves on the issue. They want to at least strike a balance between public information and voter privacy. "They're looking at all possible options. I know an exemption (from CORA) has been discussed; I believe that suggestion even came from one of the legislators," said William Mast, Montrose County assistant chief deputy clerk and recorder. "I think they are mostly looking for middle ground, where individuals can feel comfortable with the process without necessarily giving up their voters' rights."

The fear is that a member of the public, using the ballot images in concert with other information, can identify unique ballots, thereby compromising the voter secrecy afforded by the state Constitution. People could be coerced into marking their ballots a certain way in order to identify themselves — and therefore their votes — to others looking at the ballot images, Mast said.

The practice of marking ballots to identify the person casting it is prohibited by the Constitution. So is inducing another to show how he or she marked a ballot.

If ballots are subject to CORA, the curious could use released ballots with information from elections database systems and different counties' business practices during audits. The combination could sound the death knell for voter secrecy, Mast said. "It wouldn't be a simple process, but with the public release of ballots and other publicly available information, the idea is, you could discern the identity of the voter," Mast said.

"It's a little bit different in a smaller area like Montrose than, say, Douglas County, where they have so many different districts and splits."

But there are still risks, Mast says, especially in small precincts such as Precinct 11, for voters in the northeastern Montrose County community of Maher. Those who make the drive to vote in person, as opposed to mail, could see their voter privacy compromised, were someone else to obtain copies of ballots cast in the precinct. Though it is located in Montrose County, Maher votes on some Delta County districts and issues. It would therefore be quite easy to discern who the voters were by looking at the ballots from Precinct 11. "We release our information based on precinct style and method," Mast said. "We think (privacy) is their right to keep. You can't do that when you release the image of an electronic ballot. They're vulnerable in that they live in an area with a small number of voters and choose to come in on Election Day. "But I don't think anyone should have to choose their method of voting to protect their privacy. That seems unreasonable."

Mast added that clerks are also concerned with possible voter intimidation and vote buying.

"Coercion is always a concern. Given the political environment in Montrose County, it's a very real possibility," he said. "There have been some contentious issues here in the past couple of years that we've had to face. You don't want to put people into a situation where they face those kinds of coercive pressures."

Practical steps can be taken, though, said Rich Coolidge, spokesman for Colorado Secretary of State Scott Gessler. "What the secretary is doing is trying to find a practical solution where ballots can be made available while preserving the privacy that voters expect," Coolidge said. Gessler is working with clerks and acknowledges concerns in certain precincts where, in limited circumstances, voters could be identified by ballot, he said. And there are certain ballots, such as those cast by overseas voters, that "absolutely" won't be released. "We can put in safeguards to protect voters' privacy, but at the same time, there are large pools of ballots that can be made available," Coolidge said. "We've seen it done in other states and in other jurisdictions."

Mast said he understands each side's position, but he does not think ballot images should be made public. "Individually, everyone casting a ballot knows what their ballot says. I don't believe (others) have any business knowing what their ballots said."

Mike Easterling

managing editor

Montrose Daily Press

(970) 252-7030

MikeE@montrosepress.com

Identifiable anonymous ballots?

Letter to the Editor by Scott Writer

Friday, November 18, 2011

http://www.aspendailynews.com/section/letter-editor/150251

Boiling down the ballots (letter to editor by Aspen City Council member Torre)
http://www.aspentimes.com/article/20111116/LETTER/111119895/1020&parentprofile=1061

On ballots, magic and transparency (letter to editor by Marilyn Marks, Marks v. Koch plaintiff)
http://www.aspentimes.com/article/20111115/LETTER/111119905/1020&parentprofile=1061

Protect voter anonymity

Editorial By The Grand Junction Daily Sentinel
Tuesday, November 15, 2011
http://www.gjsentinel.com/opinion/articles/protect_voter_anonymity

A response to the above editorial by Al Kolwicz (submitted for publication):

Dear Editor Silbernagel,
Here are some suggested corrections to your November 15th editorial, “Protect voter anonymity”.

The problem is not that ballots are public records. It is that Clerk Reiner is violating the state Constitution and has devised an election system that enables government to determine which voter cast a specific vote and/or a specific ballot. This is against the law, and an affront to the people.

A reasonably competent design would not have this flaw. It would ensure that votes and ballots are anonymous – as required by the Colorado Constitution.

Why, one might ask, does Mesa County’s election system have this obvious flaw, and more to the point, why is Clerk Reiner defending rather than seeking ways to remove the flaw?

Why do some county clerks want to exempt anonymous ballots from Colorado’s Open Records Act? Are they fearful that the public will discover more flaws in the system, for example are votes not being interpreted and counted correctly?

The state Constitution does not, as the editorial states, prohibit election officials from disclosing how any voter voted. It requires that votes and ballots be anonymous so that nobody, not even the election officials, can know how you voted.

If officials were permitted to know how individuals voted, the data could be leaked and the door would be open to voter coercion and intimidation. Reiner has confessed to the court that she collects data that can be used to find out how you voted, and shares this data with partisan canvass board appointees from the two major parties.

Do the voters of Mesa really want government officials, partisan appointees, and election workers to know how they vote? Government employees and people seeking government approvals or contracts will be hard pressed to vote their conscience knowing that government might use their vote against them.

No, the problem is not anonymous ballots as public records. It is Mesa County’s flawed and unconstitutional election system and Clerk Reiner’s unwillingness to accept responsibility for correcting the flaw.

Surely Clerk Reiner knows that, because she violates the Colorado Constitution, Mesa County elections can be voided. We don’t need this in 2012, or ever. It would be best if Reiner spent her time correcting rather than defending her illegal system. We are happy to assist.
Al Kolwicz
Colorado Voter Group
http://www.coloradovotergroup.org/
2867 Tincup Circle
Boulder, CO 80305
303-494-1540
AlKolwicz@qwest.net

Aspen's appeal to hide voted ballots from the public: action and reaction

2011-11-15T13:59:00.053-07:00

This group of letters about ballot transparency from Nov. 12 to Nov. 16, 2011 starts with a letter by a national hero of election transparency, Mitch Trachtenberg. Mitch is one of the founders of the Humboldt County Election Transparency Project (humetp.mitchtrachtenberg.com).

In a cooperative effort between election officials and citizen activists, Humboldt County California has published ballot scans on-line for at least 5 elections with very positive results that include the discovery of a serious bug in Diebold GEMS software that had not been publicized. This is one of many examples of cases where citizen activism and oversight have improved elections practice.

See also Mitzi Rapkin's pitch on behalf of the City of Aspen for keeping ballots secret. This column lacks credibility in several areas and deserves an annotated version that will I hope be coming soon.

Heading 1

Aspen Daily News

Make ballot publication an election standard

Wednesday, November 16, 2011

Letter to Editor by Mitch Trachtenberg, Trinidad CA

http://www.aspendailynews.com/section/letter-editor/150185

Keeping votes private and counts accurate

Letter to Editor by Torre, Aspen City Council member, Wednesday, November 16, 2011

http://www.aspendailynews.com/section/letter-editor/150183

Aspen Times
Boiling down the ballots (letter same as above in Aspen Times)
Letter to Editor by Torre, Aspen City Council member Nov. 16, 2011
http://www.aspentimes.com/article/20111116/LETTER/111119895/1020

Why the city is appealing ballot viewing decision

by Mitzi Rapkin, Aspen Daily News Columnist (City of Aspen staffer responsible for communications)

Tuesday, November 15, 2011

http://www.aspendailynews.com/section/columnist/150162

City fighting a  losing ballot battle

by Maurice Emmer, Aspen Daily News Columnist

Tuesday, November 15, 2011

http://www.aspendailynews.com/section/columnist/150163

State: Marilyn Marks owes more than $55,000 in taxes

(this article is not related to elections, but is probably in part motivated by disrespect for Marilyn Marks' citizen activism on behalf of election quality )

by Chad Abraham, Aspen Daily News Staff Writer

Tuesday, November 15, 2011

http://www.aspendailynews.com/section/home/150170

Real Aspen blog:

http://www.realaspen.com/article/949/City-of-Aspen-petitions-Colorado-Supreme-Court-over-ballot-ruling-in-case-against-Marilyn-Marks

"Secret ballot" - doesn't mean ballots are secret or contain secrets

2011-11-14T14:13:00.000-07:00

[bold and color are annotations by Harvie Branscomb 11/14/2011]

Wikipedia, in its first sentence referring to "secret ballot" says:
"The secret ballot is a voting method in which a voter's choices in an election or a referendum are anonymous."

It later goes on to explain, referring specifically to the USA and quoting the Merriam Webster disctionary:
In the United States the practice became known as the "Australian ballot", defined as having four parts:^[13]

an official ballot being printed at public expense,
on which the names of the nominated candidates of all parties and all proposals appear,
being distributed only at the polling place and
being marked in secret.

Note that this definition primarily refers to the ballot not as an object, but rather as a voting method, a process. Note that "being marked in secret" is the crucial characteristic of the ballot when referred to as a noun - not being "kept as a secret".

We should also recognize that in Colorado in recent news there is a different and easily confused reference to "secret ballot", too. There are multiple references to the method of voting used by a municipal board in Fort Morgan, Colorado. The Denver Post explains: http://www.denverpost.com/news/ci_18621046

This Fort Morgan controversy over a "secret ballot" is also about transparency - and the "secret ballot" as described was used to violate the expected transparency to the public of the voter intention of the elected official. In that case, public benefit falls in favor of transparency of the content of the ballot including traceability to the voter, an elected official. When only constituents are voting, we seek transparency of the content of the ballot without traceability to the voter- ie. anonymity. Colorado clerks are telling us, ironically, that their "secret ballot" is going to protect the secrets of voters by hiding the ballots with their secrets dangerously attached - quite the opposite goal.

Senator Brophy seeks changes to the open meetings law according to the Denver Post:
"State lawmakers expressed shock at the ruling, questioning whether voters would be able to hold their elected representatives accountable without access to full voting records. Several, including state Sen. Greg Brophy, R-Wray, said they would work to change the open-meetings law if the ruling stands."

I welcome this proposed effort to improve upon open-meetings laws. Colorado Clerks have been using a loophole in the law to claim privacy of their semi-annual meetings and all their deliberations even those that involve the Colorado Secretary of State, and those that are intended to produce promotion and lobbying for statewide policy. One such example is the recently revealed intention to obtain an exemption in the Colorado Open Records Act for voted ballots - those voted by the "secret ballot" method - meaning that they are supposed to be marked in secret and kept anonymous. The Colorado Constitution Article VII Section 8 specifically gives us those two instructions in the following form:
http://www.michie.com/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=3ef75299.6c2d406b.0.0&nid=40d#JD_cocartvii-8

Here is the pertinent portion (bold style annotation not in original):

"All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it. The election officers shall be sworn or affirmed not to inquire or disclose how any elector shall have voted. In all cases of contested election in which paper ballots are required to be used, the ballots cast may be counted and compared with the list of voters, and examined under such safeguards and regulations as may be provided by law. Nothing in this section, however, shall be construed to prevent the use of any machine or mechanical contrivance for the purpose of receiving and registering the votes cast at any election, provided that secrecy in voting is preserved."

One would prefer that the phrase "secret ballot" and "ballot secrecy" did not come up in policy debates, as it works as a confusing and often strategic frame to argue against transparency of the anonymous contents of ballots. An "anonymous ballot" voted in private and counted in public is the goal we with our 1948 amended constitution are trying to achieve. When you see the phrase "your ballot" or "ballot secrecy" be aware you may be subject to a fear campaign intended to simplify elections by obstructing much needed citizen oversight.

Another definition:

http://www.businessdictionary.com/definition/secret-ballot.html

Definition: secret ballot

A method of voting that ensures that all votes are cast in secret, so that the voter is not influenced by any other individual, and at the time of voting no one else knows who the voter chose. A secret ballot can be ensured in many different ways, primarily by using enclosed voting areas, or simply a place to record your answers that is far enough away from all other voters. Secret ballots are used in virtually all United States Presidential elections, and can also be used in any other voting process where the voters may want to remain anonymous or free from outside influence.

Colorado election officials predict legislative effort to block ballot transparency

2011-11-14T12:29:00.001-07:00

Grand Junction Sentinel (11/14/2011)

Voters' secret ballots may not be so secret after ruling

[annotations in brackets and in red by Harvie Branscomb 11/14/2011]
[ Ballots are not the property of individual voters. Ballots containing any secrets at all are unconstitutional if the marks (printed or hand marked) on them are identifiable to an individual. Colorado law does not call for "secret ballots"... it calls for anonymous untraceable ballots. Unfortunately this clerk and others are taking the position that they alone and their employees have the right to access and even hide such secrets. What they are saying is that they have not taken and are not taking the steps necessary to make the ballots anonymous. This is extremely troubling. ]

Sheila Reiner

By Charles Ashby
Monday, November 14, 2011

The state’s county clerks plan to ask the Colorado Legislature when it reconvenes in January to make ballots exempt from the Colorado Open Records Act.
[ The clerks attempted the same thing in 2007 and were quickly rebuffed by the Colorado Senate who removed that portion of an election "cleanup" bill before passage. The Colorado Press Association and citizens lobbied successfully to keep the status quo - so voted ballots remained accessible to the public under Colorado Open Records Law, with appropriate safeguards for maintenance of physical ballot integrity.]

The clerks say a Colorado Court of Appeals ruling in August that ballots are public records has turned election law on its head and could allow someone to find out how people voted, no matter how careful clerks are in guarding voter secrecy. [ The Court of Appeals did not change any law - it merely clarified the appropriate interpretation, namely that ballots are public records and only those that are traceable to a voter must be withheld from the public. ]

But fixing the problem could be more problematic than most people think, Mesa County Clerk Sheila Reiner said. Reiner and Jefferson County Clerk Pam Anderson, who are facing identical lawsuits demanding to make their ballots public, say doing so would identify individual voters and how they voted. As a result, they think ballots should be made exempt from open-records laws. [ If Reiner and Anderson are holding ballots that are provably traceable, they have conducted an unconstitutional election. If they are holding back these ballots, they may be interfering with our rights to know the weaknesses of our own elections. Their procedures, and perhaps some less fortunate aspects of Colorado's law should be changed to make all elections compatible with the constitution. ]

“Secretary of State (Scott) Gessler is working on rules to accommodate this process, but we don’t believe the rules should be created because we don’t think the ballots should be made public record,” Reiner said. “What we’re asking the legislators for is a CORA exemption. This is a problem.”

Some people disagree, saying a balance can be struck that maintains election transparency without violating secrecy laws. [There is no "secrecy law" for ballots in Colorado. There is a requirement for "secrecy in voting to be maintained if voting devices are used. The constitutional provision for privacy of the vote is clear - make the ballots anonymous and then all of them are harmless public records that can provide the benefit of direct citizen oversight. Oversight by citizens and campaigns will help establish election credibility based on facts instead of the current public relations statements by clerks that typically rely upon a lack of complaints to demonstrate quality. Citizen verification becomes only more important when our election procedures have been almost entirely mechanized (electronic voting systems and electronic pollbooks) and heavily centralized ( extensive use, sometimes required, of mail-in ballots, the resulting heavy use of central counting, and also new voting methods employing early voting, vote centers and aggregated precincts). ]

Samantha Johnston, executive director of the Colorado Press Association, said there is an argument to be made for keeping ballots open records, and the press association is working with a coalition formed by Secretary of State Scott Gessler to find that balance.

“We wholeheartedly believe that voted ballots are a public record; however, we understand some of the concerns raised by the clerks,” she said. “We don’t have any answers yet, though.”

Current law allows anyone to get a list of Coloradans who cast their ballot, and by what method they used, such as mail-in or electronic voting machine.

Reiner said operatives for both major political parties routinely get such lists because they use them to track trends and to know which voters, by name, to target in the future.

The law requires the clerks to maintain a detailed record of each election, which is needed in case results are challenged or a recount is necessary. [ A detailed record of each election is required in order to know if the election is accurate. It is also necessary in order to be able to improve upon election weaknesses. More often than not, when citizens do take the time to investigate election practices they find problems that require solutions. The Saguache County election in 2010 is a clear example. (http://glassballotbox.org) ]

In 2007, the Legislature helped create the problem when it changed the law to require clerks to report by precinct. [ In 2007 the clerks attempted to have the CORA law amended to exempt voted ballots - such that there would be no access at all, including by decision of a court. Then Bill SB07-083 was amended to allow access by a court, and finally amended to remove from the bill the change to CORA when heavy resistance from the public and press was encountered. ]

The combined effect of those laws, coupled with the court ruling that allows people to get copies of the actual ballots, now makes it possible to see how individuals voted, Anderson said. [ The "combined effect of those laws" allows some voters choices to be revealed in current published election results. That is a problem of greater magnitude, yet it hasn't been reported. Clerks are falsely blaming the legislature for a problem that they ought to have long ago arranged to correct. They have had access to private information that they have no legal right to. The problem is principally with the failure to shuffle ballots between the time they are identifiable (e.g. when they are in signed envelopes) and when they are counted and reported. A secondary failure is due to combining special districts and statutory districts onto the same ballot page when these cause particular voters to vote on a very rare arrangement of contests that potentially identifies them. This is a clear violation of the Colorado Constitution. This kind of unusual ballot style isn't efficient and it does tend to reveal voter intent even in aggregate vote totals. All of this can be corrected by proper planning for the election, largely under the control of the election officials. ]

“When that precinct-reporting law was proposed, the clerk did testify, saying ... it would also erode the anonymity of certain voters,” said Anderson, who also is vice president of the Colorado County Clerk’s Association. “But how do we balance these values of transparency and accessibility and privacy? That’s what the legislation will need to address.” [ The clerks primarily did not want to report by precinct because it is inconvenient and expensive- if they were concerned about anonymity, they would have made a better argument at the time and arranged to achieve anonymous ballots, as the constitution requires. Yes, legislation should address how to achieve the requirements of the Colorado Constitution. ]

In ruling on a case from the 2009 mayoral race in Aspen, the court said digital copies of ballots are subject to the state’s open-records law and must be made public as long as they don’t identify who cast them. Aspen officials announced Friday that they plan to appeal that. [ Does Aspen's appeal becomes an argument in favor of the clerks' position? Colorado required all of Aspen's IRV cast vote records (digital representations of each ballot's pattern of votes) to be made public. In addition, Aspen arranged for the public to view all or most of the ballots in projections on election night and in a streamed television show. Aspen promised that everyone would be able to verify by counting the election themselves, but then failed to produce the CD that was made for the purpose of enabling citizen oversight. Aspen's particular experience is unusual and its attempt to overturn the unanimous Court of Appeals decision is inexplicable. ]

Regardless of the legal outcome of that case, clerks and other groups plan to continue meeting with officials in Gessler’s office to address the matter, either though rule-making or a bill in the Legislature.
Gessler spokesman Richard Coolidge said the Secretary of State’s Office is looking at several possible solutions, including what other states have done. [ I hope that citizen groups that do not also have the special interests of the Colorado County Clerks and Recorders are also being asked to the Secretary's table. I myself have not been asked, nor has either of the two groups I am affiliated with - Coloradans For Voting Integrity (http://cfvi.us) or Colorado Voter Group (http://coloradovotergroup.org). The Secretary's own think tank - the Best Practices and Vision Commission has previously refused to take up this issue. ]

Several have found a balance between maintaining voter secrecy while allowing public access to actual ballots, he said. [ "Secrecy in voting" is the operational phrase, but "voter secrecy" almost captures the intent. "Secret ballot" is an antiquated phrase that no longer applies to Colorado elections after a 1947 constitutional amendment called for removal of numbers on ballots that made each ballot traceable and led to the need for secrecy. After 1948, when Title 1 was enacted for county run elections, ballots became harmless public records that merited preservation for 25 months and access under CORA when it was enacted. That replaced a draconian requirement to keep ballots locked in a glass ballot box under three keys, and destruction by burning, shredding or burial 6 months after the election so the (valuable) ballot box could then be re-used. Unfortunately the legislature did not update the municipal law in Title 31, and left the draconian terms for ballot destruction for city election officials to deal with. It is this outdated law that forms the basis for Aspen's argument that ironically seeks to put a shroud of secrecy over all of Colorado's ballots. ]

Grand Junction Republican legislators Sen. Steve King and Rep. Ray Scott agreed that part of the problem stems from political parties, who find voting patterns invaluable information in running elections. Knowing who voted and when is helpful, but how people voted can give a campaign a tremendous advantage in targeting an election.

Still, both lawmakers agreed ballot secrecy shouldn’t be compromised to accomplish that.
“It becomes scary when you start talking about how we now have become so focused on (voter) patterns ... it gets right down to individual groups and eventually to individuals,” King added. “That’s politics.”
[ The Representatives might benefit from a read through the Colorado Revised Statutes and Colorado Constitution and note that "ballot secrecy" isn't among our laws. Citizen access to each ballot pattern and each scanned ballot is by far the most effective way verify and add credibility to an election. That transparency eliminates the need to rely upon the perfection of election officials including those who also run for the office of County Clerk and Recorder every four years. ]

Aspen seeks Colorado Supreme Court decision to block election transparency

2011-11-12T10:54:00.001-07:00

Yesterday, 11/11/11 triggered a numerologists millenial festival, but for seekers of fully verifiable and adequately overseen elections with unrestricted citizen involvement, it was a cloudy day in Colorado. The City of Aspen, usually considered to be a bastion of progressive public policy, revealed in a press release that it had filed a petition for a writ of certiorari to the Colorado Supreme Court to attempt to overturn an illuminating Court of Appeals ruling that ballots are public records and accessible through open records laws, and that digital copies of ballots need not be treated the same as original paper ballots under law. Aspen argues that ballots are to remain "secret". In practice that means accessible to a few rather than to all.

Aspen's filing linked below is full of references to the presumed "secret ballot" that isn't actually provided for in Colorado's laws. What we see in Colorado's constitution is "secrecy in voting" and a careful definition of an anonymous ballot - but nothing to suggest that these anonymous ballots must remain secret, or that they contain secrets that need to be protected. What Aspen's legal team does point to is an outdated requirement for destruction of municipal ballots after being locked only six months in the ballot box, a provision that also previously pertained to the much more numerous ballots in county, congressional and statewide elections. When the Colorado constitution replaced ballot secrecy with ballot anonymity in 1947,  the destruction requirement for county ballots was replaced with a preservation requirement for 25 months- but this change was not echoed in the municipal law for reasons that Aspen would like to pretend are significant.

Adding insult to injury, Aspen is attempting to insulate itself from liability for the costs of the plaintiff's legal fees that the city is legally responsible for in case of a loss in its defense of an open records case where it has been shown to have illegally refused access to public records. It appears that Aspen will attempt to argue that even after rejecting numererous reasonable and sensibly constrained open records requests for ballots and ballot scans, that it was simply responsibly seeking the advice of the court in how to interpret the statutes - while in fact it was emphatically arguing that the plaintiff's original case had no merit and was vexatious and worthy only of dismissal. Now that the Court of Appeals has ruled unanimously with an extensive opinion concerning the merits of the plaintiff's argument, the presumptuous early tactic of the city does not lend any credibility to its efforts.  The City of Aspen deserves no credit for taking any kind of high road in this controversy. One hopes that the Supreme Court will recognize this in the historyand the details of the city's filing.

Considerable sums of money will be needed in advance to pursue the pro-bono argument against Aspen, and I am here making the preliminary ask for donations to the cause. Meanwhile our attention turns to the legislature where there will certainly be an effort taken by the Colorado County Clerks Association to change the law, as interpreted by the Court of Appeals, to make any Supreme Court decision superfluous. While there is only one city arguing like Aspen is, and there are only 64 county clerks, they are ultra powerful as lobbyists, and if that wasn't enough, they hire paid lobbyists in addition. That leaves citizens themselves to protect their interests via their right to provide voluntary citizen testimony at the legislature.  We will also look for help from the few reasonably well-funded organizations that might take up the side opposing the clerks in this fight. Any person or organization with any interest at all is asked to contact me, Harvie Branscomb at 970-9631369 to express an interest.

What follows are two news reports from Aspen's papers, and my letter to editor printed today concerning the secret methods used by the city attorneys to bolster the positioning of their case in place of open public policy discussions.

Aspen files to appeal ballot-images ruling

http://www.aspentimes.com/article/20111112/NEWS/111119955/1077

Public records in secret sessions (letter to editor by Harvie Branscomb)
Dear Editor: Monday night the Aspen City Council met in executive (secret) session to discuss in part two Colorado Open Records Act requests seeking to inspect the 2011 ballots. One of the requests is written by me. I delivered mine to a meeting of the...
11/12/2011 12:07am
http://www.aspentimes.com/article/20111112/LETTER/111119962/1020

Aspen Daily News report 11/12/2011:

City files appeal to high court over ballot ruling
by Chad Abraham, Aspen Daily News Staff Writer
Saturday, November 12, 2011
http://www.aspendailynews.com/section/home/150132

Here are recent references to Aspen City Council discussions of this matter that took place in public and were recorded:

Aspen City Council meeting October 24, 2011
http://aspenpitkin.granicus.com/MediaPlayer.php?view_id=3&clip_id=545

At 27:15 Marilyn Marks makes a 3 minute comment including a query about the process by which Aspen has or will decide to appeal the Marks v. Koch case..At 36:00 the discussion resumes. The relevant portion about transparency ends at 38:45 but the mayor continues to discuss elections until 44:00
Aspen City Council work session Nov. 2, 2011:
See the video at 3:23:00

http://aspenpitkin.granicus.com/MediaPlayer.php?view_id=3&clip_id=553

Aspen Election Commission Meetings:
Meeting Nov. 1, 2011 (expected to be streamed but approximately first 45 minutes failed - the following link is of the entire meeting)
Election Commission Special Meeting 11/1/11
(as of 11/12/2011 the above link did not work - please contact grassrootstv.org about it)

Meeting Nov. 9, 2011 (probably not video recorded for public real time streaming- a recording has been requested of the Election Commission)

Email from Election Commissioner Ward Hauenstein:
Greeting all,

I invite you all to the Election Commission meeting November 9, 2011 at 4pm in the Sister Cities room.

In strict conformity to the state of Colorado Open Meetings Laws I have not included the other two members of the Election Commission in this email. I ask the city attorney or some member of the city council to forward this email to them.There are currently two items for consideration.

Item #1: Two pending CORA request made to the Election Commission for viewing paper ballots of the 2011 election

Item #2: Update on the Election Commission decision to seek independent council on issues discussed at the last Election Commission meeting of November 1, 2001.
Item #1
The two pending CORA requests of the Election Commission need replies from the body that it was requested from. At this meeting the Election Commission will discuss the CORA requests with due consideration to the following:

• What is the current law of the land in light of the Appeals Court ruling of September 29, 2011 in Koch versus Marks

• What is the scope of the stay – 2009 tiff images or more extensive

• Does the Appeals Court ruling applies to paper ballots or just tiff images
The city of Aspen attorney’s opinion is that the ruling applies to tiff image only. John and Jim correct us all if this is not your opinion. Mick has made it clear to me that his opinion is that the ruling applies to tiff images only. Three counties, including Pitkin, have allowed CORA requests of paper ballots within the past year. In my reading of the opinion I believe the ruling applies to paper and tiff images.
Item #2
The Election Commission voted 2-1 in favor of seeking to retain independent council for opinions on questions that are in substantial doubt. The Election Commission needs to follow the law. The Election Commission needs to perform the duties assigned it by the City of Aspen Charter and the State of Colorado. Independent council has been engaged. A request for funding has been made of the city of Aspen.

I extend the invitation to all parties with an opinion on the issues listed above. My personal belief is that free and open discussion of the issues serves democracy best. Diversity is welcome.
With Respect,
Ward Hauenstein

FYI, this is how the county is responding to similar records requests:

County Clerk to Comply with Ballot Review Request

Tuesday, October 18, 2011 (265 reads)
Pitkin County Clerk and Recorder Janice K. Vos Caudill announced today that she will grant Marilyn Marks’ request under the Colorado Open Records Act (“CORA”) to inspect five to ten anonymous voted ballots cast in the 2010 General Election... (continued)
http://aspenpitkin.com/Whats-New-/Press-Releases/newsid378/346/

Aspen's press release:
PRESS RELEASE
City of Aspen Files Appeal to Supreme Court in Marks Lawsuit
Contact: Jim True, City Special Counsel; 970-920-5108 or jim.true@ci.aspen.co.us ; John Worcester, City Attorney; 970-920-5055 or john.worcester@ci.aspen.co.us

Aspen, Colorado – November 11, 2011 – The City of Aspen has filed a Petition for Writ of Certiorari with the Colorado Supreme Court in the Marks v. Koch case. At issue in the case, which was originally filed in 2009 by Marilyn Marks, is the right of citizens to expect that their cast ballots will remain forever secret following an election. The City maintains it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain secret.

The case is not about election transparency. The 2009 municipal election was one of the most transparent elections in City and state history. The case involves the sanctity of the secret ballot. The City believes that the Court of Appeals was in error when it held that the Colorado Constitution and state law do not protect the secrecy of ballots. For more than a century, laws in all 50 states require elections to be held by secret ballot. Because the decision of the Court of Appeals would have important ramifications for all future elections if allowed to stand, the City believes that it is important to have the Supreme Court review the lower court’s decision.

The plaintiff, Marilyn Marks, now has 10 days to file an Opposition Brief and the City will have an additional 5 days to file a Reply Brief. The Supreme Court has complete discretion in deciding whether it will grant the request for appeal. It may not be until 2012 that the City gets an answer.

In the meantime, the Appellate Court’s decision will be stayed and all cast ballots from the May 2009 election will remain locked up.
The Petition to the Supreme Court is online at http://bit.ly/tf9JSQ
###

Secret meetings about public documents?

2011-11-10T18:16:00.001-07:00

Two separate public bodies in Aspen held secret sessions to discuss my open records request- whew! The irony overwhelms me.
Last night the Aspen Election Commission met to discuss my records request to inspect Aspen’s 2011 ballots, that were voted in a conventional election (not IRV) under procedures that were extensively discussed and enacted prior to the election, and conducted by an experienced election manager from Pitkin County, who is also a lawyer and who understands well the importance of anonymity. I have reason to believe that these ballots are in fact anonymous for all practical purposes and would like to demonstrate the fact to counteract widespread myths that Aspen ballots might be traceable. I issued an open records request to inspect Aspen’s 2011 ballots, that are slated for immediate destruction according to the antiquated state law concerning municipal elections.
The city lawyer had already responded to my records request with a rejection minutes after a previous secret session was held with the city council a few days ago. After that rejection was issued, one election commissioner, Ward Hauenstein, justifiably expected to respond to my request as a member of the Election Commission, the same entity to which it was tendered in person by myself. He called yesterday’s meeting of the commission. We know that under the Aspen City Home Rule Charter the Election Commission has co-extensive powers with the City Clerk (who is also one of three members of the Commission) hence it could take a different position than the clerk acting by herself.
During the rather shocking meeting last night, the City Attorney badgered Ward about whether Ward wanted the advice of himself (city attorney), and if so, then would Ward also accept the same advice, or would he merely use the advice of independent counsel to detract from his advice instead. It was one of the more sophomoric pleas I have ever listened to. Nevertheless it had a purpose, as it led later to a motion to enter “executive session” made by the clerk, the merits of which were only weakly questioned by commissioners if discussed at all, and then took the discussion behind closed doors so that we in the public could no longer hear what the attorney was saying to Aspen’s Election Commission, presumably about my simple open records request. The move behind closed doors required the acceptance of the Election Commission to consider the city attorney as part of a privileged relationship, and may have indirectly provided facts on the ground to support the conclusion that the Election Commission does not consider the city attorney to be conflicted. I hope this is not the final conclusion over the question of conflict of interest, as I am of the opinion that the Aspen attorney is subject to a conflict in this matter. It can be argued he provided ample evidence to that effect during the meeting.
One member of the city council somehow also was allowed access to this secret session, much to my surprise… confirming that there probably is an improper channel of influence between the City Council and the Election Commission. The two public bodies are now acting in practice as one and the same from the point of view of attorney client privilege. The fact that the city attorney does not consider himself to be conflicted in his attempt to simultaneously represent two independent public bodies that have in principle and for excellent reasons the ability to take different positions is a matter of deep concern for onlookers like myself.
Also, judging from the responses of two of Aspen’s election commissioners and the city attorneys, the Colorado Court of Appeals has failed to clarify the issue of concern namely which ballots if any are public records in Colorado. All of these just mentioned people apparently have various interpretations of the meaning of the unanimous Court of Appeals decision that differ from my understanding of what I read – a clear statement that voted ballots are subject to open records laws except those that can be traced, and that TIFF files (digital copies) are not the legal equivalent of physical ballots.
One would hope that after two years consideration in court, citizens would be able to read the court’s interpretation and agree on what it means. It seems to me that those who refuse to accept the court’s message may be strategically pretending to fail to understand with the hope that either the court system will see confusion and reverse itself, or the legislature will step in and revise the law to fit a minority interpretation. This is an example of how pathetic our system of governance is – even the most expensive and considerate mechanisms of remedy are failing to produce consensus and conclusion among the interested parties. An appeal to the Supreme Court is being framed as a necessary and ordinary response, rather than an escape valve for unusual cases of recognized failure to provide justice.
Here are three texts from one newspaper today relating to this issue. Note that the headline of the first is incorrect. The Election Commission voted to pursue independent counsel – and that vote was 2-1, so it would be more correct to say that a majority of the election commission want an outside opinion.

Aspen Times Nov. 10 edition:

Aspen election commissioner wants outside opinion
11/10/2011 5:16am
http://www.aspentimes.com/article/20111110/NEWS/111119998/1001&parentprofile=1058

City of myths
Special to The Aspen Times by Maurice Emmer

Aspen, CO, Colorado
http://www.aspentimes.com/article/20111110/COLUMN/111109822/1021&parentprofile=1061

Pointers for the press (satirical letter by Marilyn Marks)
http://www.aspentimes.com/article/20111110/LETTER/111109815/1020&parentprofile=1061

Boulder Daily Camera, Nov. 10 edition:
Election transparency is essential

Should Coloradans be prevented from making the types of anonymous-ballot reviews that citizens of Florida, Minnesota, Michigan, Connecticut, South Carolina and other states enjoy? As our law stands, parties, campaigns, academicians and press may verify election results.

In the next few days, however, Aspen officials intend to petition the Colorado Supreme Court to overturn case law reaffirming citizens' and media's rights to authenticate Colorado's elections by reviewing anonymous ballots. If Aspen is successful, Colorado will be forced to accept whatever election results the clerks announce. So, in effect, Aspen plans to devote its considerable resources to fight election transparency across Colorado in the face of the 2012 presidential election.

As a purple state, Colorado will be a political battleground in 2012. One can imagine a scenario where the electoral college vote turns on Colorado. As Colorado law now stands, if Obama wins or loses by a small margin, the parties, campaigns and press can test the count for themselves. We need to keep the option to check election results, not just in formal recounts, but whenever we want to assure ourselves that nothing is amiss in our elections.
The Colorado Constitution guarantees anonymous ballots. It is up to the clerks to implement processes that back up this guarantee. Even the clerks themselves should not know how a person voted.
Anonymous voted ballots should remain basking in the Sunshine of the Colorado Open Records Act. The Daily Camera published an effective lead editorial that helped defeat a 2007 effort by county clerks to impose a similar blackout. As a member of Coloradans for Voting Integrity, I call on readers to implore Aspen officials to halt their attack on election transparency. Please email public_comment@ci.aspen.co.us today and ask Aspen's leaders not to appeal to the Colorado Supreme Court.

MARY C. EBERLE
Boulder

Emails from citizens:
Dear Councilpersons,
Boulder County Democrats might be especially interested in Aspen's fight against ballots as open records because the majority of county clerks are Republicans, and county clerks can make many decisions on the close calls or gray areas surrounding a voted ballot without significant local oversight. Even inadvertent mistakes can happen, such as counting a batch twice or deleting a batch as occurred in 2010 in Saguache County, Colorado. Citizen oversight is absolutely necessary.
As a life-long registered Democrat, I am dismayed that the supposedly Democratic stronghold of Aspen is fighting ballots as open records, after we have seen the successful review of Florida's 2000 election by the media consortium (http://www.aei.org/docLib/20040526_KeatingPaper.pdf).
Michael A. Rowe, Boulder
--

Response to: Colorado Secret Ballot Battle: Can You Collect Too Much Data?

2011-10-28T10:05:00.002-06:00

Harvie Branscomb responding to Doug Chapin and his blog posting here on the University of Minnesota Program for Excellence in Election Administration:

Colorado Secret Ballot Battle: Can You Collect Too Much Data?

I am an election quality activist living near Aspen who has followed this issue long before it became a topic for discussion around Aspen. In 2007 Colorado Clerks and SOS forwarded an "election cleanup bill" that contained a change to open records law that would have prevented public access to voted ballots outside of a court order. I and other activists mounted a successful rejection of that portion of the bill after a lively debate on the Senate floor between a Democratic ex-clerk-and-recorder Senate President and a transparency loving Democratic Senate Majority Leader. The ex-clerk-and-recorder argued that voted ballots are private records. After airing the issue in public, and some involvement by members of the Colorado Press Association, the problematic section of the bill was removed.

Increasing mechanization and centralization of election processing has led naturally to less citizen oversight. Decreased trust in election "judges" and "hand counting" has aggravated this loss of oversight. The predominance of cost and convenience issues has also led to bypassing inefficient opportunities for citizen oversight. Yet citizen oversight of the most idiosyncratic nature continues to demonstrate that it improves election quality by discovering errors. Access to ballots has historically been difficult because of geographical issues and physical ballot integrity. But recently more and more voting systems use scanners that produce or could produce copies of ballots that are almost as good for interpretation as the original paper. Technology has presented us with a way to cheaply and conveniently offer the best possible opportunity for oversight imaginable - access to each ballot, and, ideally, access to each officially counted cast vote record. With both of these data points in hand, citizens, campaigns and press can identify weak points in the election interpretation and vote aggregation process, as was done in the Coleman Franken contest. Any trouble with the election can be isolated and converged upon and corrected for.

Doug Chapin's brief essay makes several assumptions that may be incomplete. First it refers twice to "secret ballot" or "ballot secrecy." This is a misleading stereotype that distracts from what in Colorado is the intended mode of operation of the election system: "voting in private" (some may say "voting in secret") on anonymous ballots and "counting (including some hand interpretation of ballots) in public". In Minnesota this expansion of the phrase "secret ballot" may be obvious to most people who experience elections.

In Colorado it is not obvious. In Colorado ballots should not contain secrets. In Colorado we do not offer a hand counted recount except in very rare cases. In Colorado we have little or no respect for "hand counts" in general. In Colorado, our clerks association wants to hide ballots so that only election officials and courts may see them. The phrase "secret ballot" makes a perfect watchword for this intention... but sometimes opacity evangelists invoke religious fervor by adding "sanctity of the ballot" to their rhetoric.

In the one Colorado public election where ballots were shown publicly on election night by digital projection, the entire voting system (IRV) was removed from the city charter in a subsequent election with no indication that the beneficial transparency would return.

Please refrain from using the phrase "secret ballot" when you intend to describe something that is beneficial to the public like anonymous cast ballots. Making ballots really into "secrets" is a big mistake that leaves open doors for voter intimidation either real or imagined. In Colorado, it is simply unconstitutional.

I'll take all three questions together as they are somewhat inseparable.

Election administration and its checks and balances in citizen oversight benefit from reporting relatively small and equivalent portions of the aggregate vote counts because abnormalities that may involve errors become visible when the election is "subdivided". Also valuable political information resides in the differences when they are not due to errors. When the chunks relate to geography the political benefit appears. When the chunks relate to voting equipment, differences in procedures and human manipulation, integrity benefits accrue. But precincts are gradually becoming obsolete in states that are migrating to the mail-in ballot... such as Colorado. Perhaps we can end the use of ballot by precinct, if we can provide an alternate "subdivision" that serves the above two purposes.

Ideally for both purposes, the individual cast vote record is produced and published for each voter. The question remains, what other defining characteristics would be associated with that anonymous record in order to retain its anonymity.

Colorado has thousands of special districts of which many coordinate their election contests onto county ballots. These districts' boundaries pay no heed to precinct boundaries nor do they honor legislative district lines. When the intersections of these boundaries define a small number of voters, of whom only one might vote, then a unique ballot style becomes possible (as well as incredibly inefficient). The solution for this is to inhibit the creation of special districts that are orthogonal to existing districts, or decide not to coordinate their elections, or separate special district contests by moving them to an independently counted page on the ballot and independent cast vote records. The benefit of this disaggregation is present in what I call the "Swiss system" where each contest resides on a separate currency shaped piece of paper. Some compromise towards the Swiss method could involve paginating the ballot in a manner to eliminate rare ballot styles. In some cases it may be necessary to transport ballot pages for special districts to other counties for counting to avoid a spit that crosses county boundaries.

The risk of exposing individual voter intent due to many ballot styles, some unique, isn't limited to ballots being published. It is present in the published aggregate vote counts by precinct and sometimes even in the county wide vote. (Fortunately special districts do not cross state lines, or we could have an interstate problem here too.)

Colorado has the maximum known number of voting methods- including at present - precinct polling place, aggregated precinct polling place, early voting, vote center, optional mail-in by election, permanent check-off mail-in, UOCAVA, and provisional. These result in at least 5 different categories that vote counts are separately aggregated into for vote totals, and among these there are those that are reported on election night, and then perhaps more reported incrementally later that also involve a "subdivision" of aggregate vote sub-counts that may contain unique ballot styles.

Colorado in particular, but any state that is using special districts, or redistricting without concern for this issue, should look at legislation to prevent unique ballot styles from entering their elections- not just to insure privacy of the ballot, but privacy in voting that may be interfered with in the reported subdivisions of the vote, even county-wide.

Ballot style isn't the only potential obstacle here. Write-in handwriting, coded write-in name, obtuse and cryptic marks, coding within well formed vote marks, initials and signatures on ballots all are possible data that could allow either the same voter or in some limited cases another person to identify a ballot- whether that person is in the public or an election official handling ballots. We will need to educate voters not to make marks that would allow identification of "the" ballots (not "their" ballots - ballots are public not private). These problems are largely soluble, within reasonable limits. And we need to talk about "public" not "private" ballots.

There is apparently another recently revealed source of traceability of ballots that relates to failure by officials to shuffle ballots- and this shuffling isn't quite as obvious or easy as it would seem. Apparently at least one large county in Colorado (Larimer) has batched its incoming vote center voters and mail-in ballots where the voter identity stored in the statewide computer database is aware of the batch the ballot resides in. When this batch isn't shuffled into other batches prior to counting and reporting, the character of the printed ballot itself often gives away the voter's identity because of the known list of voters for the batch. This is, in my opinion, simply poor election administration. If it is a problem, then we are looking at an indication that we have not fully protected the integrity of our voting system in its design. It may be that I have misunderstood the problem, as well. The full information about the problem isn't available to the public either.

There is a complaint filed by a citizen at our Secretary of State's office that will presumably cause an investigation and rulemaking that will end this particular election administration error. One wonders if other states have similar problems with lack of shuffling (across batch, across days, across every reporting or batching "subdivision" except those that contain political information (precinct) or technical significance for voting integrity oversight (machine/procedure)). You can see that some compromise needs to be reached when designing the algorithm for shuffling because it begins to counteract the opportunities for obtaining desirable information from the electorate, and symptoms of election errors or fraud. One example of this kind of beneficial shuffling is to hold back some election night ballots of the same ballot style as those that might be coming in as late counted ballots, so that the incremental vote counts added later do not reveal the contribution of one voter per ballot style. This is an obvious and necessary remedy to maintain privacy in voting regardless of how well hidden the ballots are. (The alternative is to hold back all the votes until every vote is counted- this itself involves a compromise because ballot chain of custody is far more problematic over a period of days than it is over minutes or hours.)

Repeat after me... "voting in private on anonymous ballots and counting in public". That is what "secret ballot" really, ideally, means.

Lots more information about the history of this discussion is found on http://aspenelectionreview.blogspot.com

More feedback on Aspen's decision to pursue hidden ballots

2011-10-06T12:01:00.001-06:00

Email from one of Aspen's Election Commissioners to the City Council regarding process of decision-making for Aspen's Supreme Court Appeal of Marks v. Koch, the ballot transparency case: (Date: Thu, 6 Oct 2011 08:29:05)

I am requesting that the CC, at their next meeting, or a special meeting, schedule time to hear public input relative to the appeal of the Mark vrs Koch case. After the public has had an opportunity to express their thoughts the CC should properly vote to enter into executive session to resolve the matter. There are energies being spent to challenge the process the CC followed to enter into executive session and decide to appeal the case. At question is the legality of entering into executive session from a work session as opposed to a special session or a normal meeting. The outcome may be the same. The process would not be in question.

Nobody I have communicated with question that executive session is a proper process. At question are public notice and the manner in which executive session was evoked. I know the arguments pro and con. I have expressed my beliefs. CC and CoA attorneys have every right to appeal and there are valid arguments to do so.

I am appealing for a better political process and better public relations approach. I am appealing to someone in CC to show leadership to request that the process be in the light of day without the feel of a dark smoke filled room. I know that there is no longer smoke but you get the point.

With respect,

Ward Hauenstein

News Reports

Grand Junction Sentinel

Votes should be secret, Aspen says in appeal

The Aspen City Council voted Tuesday to appeal to the Colorado Supreme Court a lower court’s ruling that election ballots are public records. Last week, a three-judge panel of the Colorado ...

Articles | Posted: 10/04/2011 | Author: Charles Ashby

[site requires registration]

http://www.gjsentinel.com/news/articles/votes_should_be_secret_aspen_s

KMTS News, October 5th [a substantially false report of the facts]
http://www.kmts.com/news/news-october-5th
--

AspenPublicRadio Morning Newscasts: October 4, 2011
http://www.aspenpublicradio.org/news_archive_detail.php?story=8909
--

ElectionLawBlog.org

“Aspen to appeal ruling over ballot images; Political activist Marilyn Marks: ‘Voters should be up in arms’”

Posted on October 5, 2011 8:06 am by Rick Hasen

The Aspen Times reports.

--
Letters to Editor:

No harm in viewing ballots

Letter to the Editor by Ward Hauenstein [Aspen Election Commissioner]

http://www.aspendailynews.com/section/letter-editor/149484
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What is there to hide?

Letter to the Editor by James H. Perry

Thursday, October 6, 2011

http://www.aspendailynews.com/section/letter-editor/149482
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Secret ballot baloney

Letter to the Editor by Elizabeth Milias
http://www.aspendailynews.com/section/letter-editor/149483
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Something fishy at City Hall

Letter to the Editor by Glen Silva

Dear Editor: Election ballots and their facsimiles are public property. This is very obvious to any normal thinking person.

http://www.aspentimes.com/article/20111006/LETTER/111009913/1020&parentprofile=1061
--

A couple of classics from the past on this issue:

Make ballots public - Letter to the Editor by James Perry
[August 19, 2009]
http://www.aspentimes.com/article/20090819/LETTER/908189974

Aspen Ballots: An issue for us all - a blog posting by Luther Weeks of CTVotersCount.org
[last update 10/25/2010]
http://www.ctvoterscount.org/aspen-ballots-an-issue-for-us-all/

Aspen Council decides to ask Colorado Supreme Court for ballot secrecy

2011-10-05T21:29:00.002-06:00

On October 4th, 2011 the City of Aspen provided the following press release indicating its intention to appeal the Colorado Court of Appeals ruling against Aspen Clerk Kathryn Koch to the Colorado Supreme Court.

PRESS RELEASE

City of Aspen to Appeal Marks Lawsuit

Contact: Jim True, City Special Counsel; 970-920-5108 or jim.true@ci.aspen.co.us; John Worcester, City Attorney; 970-920-5055 or john.worcester@ci.aspen.co.us

Aspen, Colorado – October 4, 2011 – The Aspen City Council has directed staff to appeal the Marks v. Koch case to the Colorado Supreme Court. At issue in the lawsuit, which was originally filed in 2009, is the right of citizens to expect that their cast ballots will remain secret. The City maintains it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain forever secret.

This case is not about election transparency. The 2009 municipal election was one of the most transparent elections in City and state history. This case involves the sanctity of the secret ballot. The City believes that the Court of Appeals was in error when it held that the Colorado Constitution does not protect the secrecy of ballots. Because the decision of the Court of Appeals will have statewide ramifications for all future elections, the City believes that it is important to ask the State Supreme Court to review the Court of Appeals’ decision and once again protect all citizens’ right to a secret ballot. The City has until November 14, 2011 to ask the Supreme Court to review the case. In the meantime, the Appellate Court’s decision will be stayed and all cast ballots from the May 2009 election will remain locked up.

###

Mitzi Rapkin

Community Relations Director

City of Aspen

970.920.5082 o

970.319.2791 c

www.aspenpitkin.com

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City to appeal ballot ruling

by Curtis Wackerle, Aspen Daily News Staff Writer

Wednesday, October 5, 2011

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Will ask Supreme Court to reconsider Marks lawsuit from May ‘09 election

The city of Aspen has decided to appeal a recent ruling against it and in favor of a voting transparency activist to the Colorado Supreme Court.

The Colorado Court of Appeals last week ruled in favor of local resident Marilyn Marks in her suit against City Hall, which refused to release to Marks digital copies of ballots cast in the May 2009 election, in which she was a losing mayoral candidate. The city, in denying Marks’ Colorado Open Records Act (CORA) request to inspect the ballots, claimed that doing so would violate state law guaranteeing secrecy in voting and would cause injury to the public interest.

Judge James Boyd of the 9th Judicial District ruled in the city’s favor in March 2010, granting a motion to dismiss on the city’s argument that releasing the ballot images would violate state law and the state Constitution. A three-judge panel of the appellate court reversed Boyd’s decision in a long-awaited opinion issued last week, ruling that ballots could be lawfully released, so long as there was nothing on them that could be used to identify an individual voter.

Neither court considered the argument that releasing the ballots would cause substantial injury to the public interest, which is grounds for withholding what would otherwise be public record under CORA. The city, in its appeal to the Supreme Court, will argue that the public injury argument should have a full hearing.

“We never got a chance to show there is harm,” Aspen Mayor Mick Ireland said.

The city argues that releasing ballots after each election to anyone who wants to see them — which both sides consider to be the implication of the appellate court’s ruling — would invite a host of negative consequences including fraud and disenfranchisement. For one, vote buying could become a possibility because if someone could mark their ballot in a clandestine manner, and that ballot became public, the person could then prove they voted in such a way. However, Marks correctly points out that marking ballots for such a purpose is illegal. The city argues that the fact that something’s illegal wouldn’t prevent all cases.

The public could also lose confidence in the anonymity of the ballot if even the perception existed that there were analysts capable of cross-checking the ballots with precinct logs to determine who voted how, the city argues.

“At issue in the lawsuit ... is the right of citizens to expect that their cast ballots will remain secret,” according to a city press release issued Tuesday. “The city maintains it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain forever secret.”

There could also be the consequence of never-ending election contests and disputes, especially when freelance recounters were not given all the ballots, because some of those ballots did have discerning markings on them, the city argues.

There is also the issue of how election officials would decide which ballots should be held back because of markings or other identifying characteristics.

“To tell clerks to sift through all ballots ... is crazy,” City Attorney John Worcester said.

Worcester and city special counsel Jim True met with City Council in a closed-door executive session Monday night to consult on whether or not to appeal. A press release announcing the determination — draft copies of which were seen in the hands of city attorneys prior to the executive session — was sent out Tuesday afternoon. City Council was unanimous in its direction to appeal, Ireland and Worcester said, although there was discussion of the pros and cons.

Ireland said he was certain he wanted to appeal shortly after reading the appellate court’s 16-page opinion last week.

Councilman Adam Frisch, while clarifying that he in general supports Marks’ efforts at a higher degree of transparency in elections, said he backed the appeal because the case is precedent setting with statewide implications. The state’s highest court should have the opportunity to sort the issue out, said Frisch, who admitted that he read just parts of the appellate court’s opinion.

A balance must be struck that respects both voter privacy and verifiable elections, Frisch said.

Marks said she was dismayed that the city didn’t take public input before deciding to appeal to the Supreme Court, which could end up costing the city hundreds of thousands of dollars if it loses. The city is spending public time and resources to fight election transparency, she said.

“The secretary of state [Scott Gessler] would tell them they are going to lose this case,” Marks said. “ ... I have a real problem with the process they went through.”

Marks suggested that the city is trying to pull off a massive snow job on the population.

“They think they are going to fool the public here,” Marks said.

At issue is the difference between “anonymous” and “secret” ballots, she said, arguing that secret ballots are not a right, but anonymous ballots are.

“The press release about the right to ‘secret ballots’ is preposterous,” Marks wrote in an email. “The city seems to be arguing that in Aspen, officials may strip voters of their constitutional right to an anonymous, untraceable ballot and replace that hard-won human right with a ballot that is meant to be a ‘secret’ — a secret that Big Brother is supposed to keep.

“When voters hear this ludicrous argument about rights to ‘secret ballots,’ I hope they will understand that the city is claiming that officials have the ‘right’ to know how we vote so long as they keep the ‘secret’ among themselves. The argument smacks of not-so-subtle voter intimidation.”

The Supreme Court has to decide to take the case.

Also at issue are the growing attorney’s fees Marks has racked up, as well as the city through the hours spent by its attorneys on the case. The Court of Appeals ruled that the city must reimburse Marks for her fees, but that directive is stayed until the Supreme Court weighs in. Marks said her attorney’s fees are in the “six figures” but would not elaborate.

When the city won at the district court level, it filed to recoup attorney’s fees from Marks for the time Worcester and True — who are salaried employees — spent on the case. It estimated that their time devoted to the case as of March 2010 was worth $67,047, at $385 an hour.

The Supreme Court, depending on how it decides the case should it chose to take it, could award either party the right to recoup fees, or determine that no such directive is necessary.

curtis@aspendailynews.com

http://www.aspendailynews.com/section/home/149442

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[note that the ballot scan shown in the photo in the newspaper and below is a live and very publicly viewable ballot, as it was on election night, and as it should be]

October, 5 2011 4:40 am

Aspen to appeal ruling over ballot images

Political activist Marilyn Marks: 'Voters should be up in arms'

The Aspen Times

A ballot from Aspen's 2009 election is displayed on a screen at City Hall. It was the city's first and only use of Instant Runoff Voting. The city is now appealing a court decision that would make the ballot images public.

Janet Urquhart / Aspen Times file

ASPEN — In a somewhat expected move, the city of Aspen has decided to appeal last week's state appellate court judgment that said local political activist Marilyn Marks has a right to inspect ballot images from the 2009 mayoral election.

“The Aspen City Council has directed staff to appeal the Marks v. Koch case to the Colorado Supreme Court,” says a statement released Tuesday from the City Attorney's Office. “At issue in the lawsuit, which was originally filed in 2009, is the right of citizens to expect that their cast ballots will remain secret.”

The city maintains that it is residents' constitutional right to vote their consciences knowing that their ballots will remain “forever secret,” the prepared statement says. The lawsuit against City Clerk Kathryn Koch, who declined Marks' request to view ballot images from the spring election that Marks lost, states that the Colorado Open Records Act and other state laws allow public ballot inspection as long as it is not possible to discern a voter's identity.

“This case is not about election transparency,” the city's statement reads. “The 2009 municipal election was one of the most transparent elections in city and state history. This case involves the sanctity of the secret ballot.”

According to the city, the Court of Appeals erred when it held that the Colorado Constitution does not protect the secrecy of ballots. Because the appellate court decision will have statewide ramifications for future elections, the city has deemed it important to ask the State Supreme Court to review the ruling.

Officially, the city has until Nov. 14 to ask the higher court to review the case. In the meantime, the appellate court's decision will be put on hold, meaning all ballots and ballot images from the May 2009 election will remain inaccessible to Marks or anyone else.

Reached by e-mail Tuesday, Marks described as “ludicrous” the city's argument about protecting voters' rights by keeping ballots secret.

“My first impressions of the city's decision and announcement is to shake my head in disbelief that City Council believes that their constituents are going to be fooled by their absurdly illogical and dishonest arguments,” Marks said. “The press release about the right to ‘secret ballots' is preposterous. The city seems to be arguing that in Aspen, officials may strip voters of their constitutional right to [examine] an anonymous, untraceable ballot and replace that hard-won human right with a ballot that is meant to be a secret — a secret that Big Brother is supposed to keep.”

She added, “I hope [voters] will understand that the city is claiming that officials have the ‘right' to know how we vote so long as they keep the ‘secret' among themselves. The argument smacks of not-so-subtle voter intimidation.”

According to Marks, voters should be “up in arms,” especially in Aspen, where local government plays a huge role in the economy, providing housing, jobs, contracts and permits.

“City Council members know quite well that the Colorado Constitution guarantees anonymous ballots, which cannot be traced to the voter,” she said. “They like to fudge on the terminology (‘secret' versus ‘anonymous') in order to intimidate voters and suggest that the ballots are traceable and the voters choices kept secret among those officials who get to look at them and determine how people voted.

“No one, particularly government officials, can know how we vote in an election that is legally conducted under our constitution,” she continued. “If the council cannot show us the ballots because the ballots are identifiable, they are acknowledging that they conducted an unconstitutional election.”

Marks said that if government officials who run elections can do so without public accountability and verifiability of the election, “What's to keep them from announcing anyone they wish as the winner?”

She added that council members should consider reviewing the ballots from the Pitkin County election in November 2010, which included races for U.S. Senate, Congress, governor and other elected posts.

“Those ballots are open for anyone to see,” she said. “They are public records, right across the street from City Hall. Can anyone trace them back to the voters? No, of course not. They are anonymous pieces of paper. So, why should the city of Aspen need to keep their ballots secret?”

A three-judge appellate panel issued its decision last Thursday, overturning 9th District Court Judge James Boyd's ruling in March 2010 that upheld the city's decision to withhold the ballot images from public scrutiny.

asalvail@aspentimes.com

http://www.aspentimes.com/article/20111005/NEWS/111009943/1077&ParentProfile=1058

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City of Aspen appeals to Supreme Court on ballot review case

October 4, 2011, 10:22 pm

By Catherine Lutz

http://www.aspenbusinessjournal.com/article/id/987/sid/13

[see comments at the end of this not fully balanced story]

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Letters to Editor:

Public access to public Information: Letter to Editor by Scott Writer

http://www.aspentimes.com/article/20111003/LETTER/111009984&parentprofile=search

The City needs to back off: Letter to Editor by Mary Eberle

http://www.aspendailynews.com/section/letter-editor/149425

Did the City attack the messenger? Letter to Editor by Neil Siegel

http://www.aspentimes.com/article/20111005/LETTER/111009927/1020&parentprofile=1061

City of Aspen should throw in the towel: Letter to Editor by Richie Cohen

http://www.aspentimes.com/article/20111005/LETTER/111009926/1020&parentprofile=1061

Don't release ballot images: Letter to Editor by Millard Zimet

http://www.aspendailynews.com/section/letter-editor/149436

[ note that Mr. Zimet seems confused... his concern about violating the privacy of the voter intent can be used with the cast vote records or "strings" that for the 2009 election were already released publicly... any release of ballots or ballot images from that election would not reveal any more about the contents of the votes that were mistakenly released in an order that is not unrelated to the order in which voters appeared to vote- a list that is also a public record. The simple solution to Mr. Zimet's concern is to shuffle the ballots before they are numbered for release to the public, so that a correlation of voter to ballot cannot be made using simple matching of the lists. Mr. Zimet's letter isn't relevant to the issue of whether or not ballots are to be public records in future elections. ]

Aspen Election Review

Ballot transparency a statewide debate; poll favors transparency

Issue might wind up before Colorado Legislature

Janet UrquhartThe Aspen Times, Aspen, CO Colorado

Secrets in the city

Go with the constitution: a letter to editor by Harvie Branscomb

Go with the constitution

Why insist on secrecy but dismiss anonymity?

Pitkin County Press release differs from Aspen Times article

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

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

Lots of press coverage of the transparency issue in Colorado

Aspen's appeal to hide voted ballots from the public: action and reaction

Keeping votes private and counts accurate

(this article is not related to elections, but is probably in part motivated by disrespect for Marilyn Marks' citizen activism on behalf of election quality )

"Secret ballot" - doesn't mean ballots are secret or contain secrets

Colorado election officials predict legislative effort to block ballot transparency

Aspen seeks Colorado Supreme Court decision to block election transparency

Secret meetings about public documents?

Response to: Colorado Secret Ballot Battle: Can You Collect Too Much Data?

More feedback on Aspen's decision to pursue hidden ballots

Aspen Council decides to ask Colorado Supreme Court for ballot secrecy

Janet Urquhart
The Aspen Times, Aspen, CO Colorado