Response to Mike LaBonte

Mike LaBonte

I have posted and attempted to answer the questions you posed on this blog, although better answers might come from the Aspen city attorneys, (if they choose to answer).

You have dipped your toe into a nasty but tiny swarm of anonymous bloggers who have done little or nothing to discuss public policy and a lot to attempt to discredit, without any decent justification, good people in Aspen pursuing actual transparency of elections and election reform where needed. Jack Johnson has personally succeeded in initiating a smear campaign which seems to have inappropriately resulted in removal of the two citizen members of the Election Commission (the third being the Clerk, who remains as Chair) without any due process.  This is a dangerous result and a terrible precedent for any kind of citizen oversight for the future.

2005-2009 Links to media- discussion of ballot release and election review

There are so many links in media to this topic I have archived the 2009 activity here and started a new list for 2010. [H. Branscomb]

2010 links to media coverage are here:  http://aspenelectionreview.blogspot.com/2010/01/2010-links-to-media-coverage-of-aspen.html

The two Aspen Colorado papers and three state-wide and several national blogs have been covering the topic of the Aspen May 5 IRV election and the upcoming Aspen Election Independent Review and numerous letters to editor. Here is a perhaps not complete collection of them:


DemocraticUnderground.com
12/15/09: ASPEN ELECTION NOT OUT OF CONTROL (satirical video)
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=385x413321

Black BoxVoting.org
12/15/09: (CO) 12/09 - ASPEN'S SLIPPERY SLOPES: CONSTITUTIONAL RIGHTS VIOLATIONS and BLOCKING RIGHT TO PUBLIC RECORDS -
http://www.blackboxvoting.org/


Huffington Post:
11/23/09: Guest Opinion: Marilyn Marks http://www.huffingtonpost.com/wires/2009/11/23/guest-opinion-marilyn-mar_ws_367225.html

Colorado Independent:
11/23/09: Election dispute, lawsuit, squabbling continue in Aspen http://coloradoindependent.com/42856/election-dispute-lawsuit-squabbling-continue-in-aspen

1/1/2010: Aspen Daily News:  Year in Review, item #9:
9. Aspen’s election and subsequent fallout

Almost eight months after Aspen’s last municipal election, city officials complain about the amount of time still taken up by election-related issues, and losing mayoral candidate Marilyn Marks is soliciting donations from around the country to fund her lawsuit against the city.

The basics of the situation are this: The city in May held its first election using instant runoff voting, a controversial method in which voters rank their choices. In IRV, if no candidate gets enough votes to win in the first count, lower-ranking candidates are eliminated and their votes are redistributed using voters’ ranked preference, so that government agencies can conduct elections without having to go to a later runoff round. Using this method, Ireland was re-elected and Derek Johnson and Torre won council seats. Voters also rejected a proposal for the Aspen Art Museum to buy public land for a new facility.

Even before the election, Marks, who is no fan of IRV, tried to stop the method from being used. After the election was conducted, Marks raised questions about voting procedures used during the election, and requested to see photographic images of the physical ballots cast. The images would be used to cross-check one of the two voting machines used in City Hall. The city claims that releasing the ballot images would be unconstitutional and Marks sued. The case is pending.

Meanwhile, the city’s official Election Commission, which in the past functioned mostly on election night to resolve voter intent and eligibility questions, was targeted as a forum for Marks and others to pursue their goal of a broader election review. The commission requested funds for its own attorney, with two of the three members saying they couldn’t rely on the advice of the city attorney’s office because of a perceived conflict of interest since city attorneys helped design IRV.

Then, former city Councilman Jack Johnson, who was voted out of office in the May election, read through election commissioner e-mails, which showed a few meetings between two of three election commissioners that were not conducted using a public meeting process, as well as heavy lobbying by Marks for the commission to use its yet-undefined powers to analyze the pros and cons of the May election.

In the drama that followed, the city determined that the current Election Commission was in violation of the City Charter because the commissioners’ terms technically ended in July. The commission was disbanded and the city is currently seeking to form a new Election Commission.
— Curtis Wackerle
[full article here: http://www.aspendailynews.com/section/home/138557 ]


Below the break are:
Aspen Public Radio (KAJX):  6 radio programs
Aspen Times: 48 articles or editorials or columns or letters to editor
Aspen Daily News: 40 articles or editorials or columns or letters to editor
and others.

Election Transparency Litigation: Marks v. Koch

Marilyn Marks filed a complaint in District Court to cause the City of Aspen to protect and allow inspection of the digital images of ballots from the May 5 2009 municipal election which were stored on a CD by the contractor who tabulated the election, True Ballot, Inc.  The suit has already been successful in protecting the CD from destruction.  The suit has the remaining purpose to obtain access to inspect these public records of which all were displayed to the public on May 5 2009, and hundreds are still available for viewing as part of a GrassRootsTV program from election night.  If the City's motion to dismiss is not accepted by the court, there is a court date set for January 22, 2010 when a hearing may be taking place.

7 Documents and 5 exhibits are on-line in hypertext form. Click on a link to open the outline of the documents, then click again to enter the document:

VERIFIED COMPLAINT AND APPLICATION FOR ORDER DIRECTING CUSTODIAN TO SHOW CAUSE

Elizabeth Milias' lawyer responds to complaints against her

ROBERT A. MCGUIRE, ATTORNEY AT LAW, LLC

1624 Market Street, Suite 202
Denver, Colorado 80202
http://www.lawram.com/
December 24, 2009

Mr. John P. Worcester
City Attorney
City Hall
130 S. Galena Street, 2nd Floor
Aspen, CO 81611

VIA FIRST-CLASS MAIL AND EMAIL

RE: My Letter of November 20, 2009, Discussing City Council’s Violations of Due Process

Dear Mr. Worcester:

I refer to certain allegations made by Mr. Jack Johnson in his complaint submitted to Aspen City
Council on or about October 26, 2009, and to my letter of November 20, 2009, regarding the same.

To date, neither I nor my client, Ms. Elizabeth Milias, has received any response from your office
answering the constitutional due process concerns that I raised in connection with the Council’s
handling of Mr. Johnson’s complaint.

Although Council wisely chose on November 23 not to conduct its promised public rumination of
Mr. Johnson’s allegations outside of the appropriate legal process for handling complaints against
City officials, the City’s subsequent failure to make any public statement disposing of Mr. Johnson’s
allegations has had the troubling effect of leaving Ms. Milias under a cloud of unresolved accusation.

KAJX Covers Better Bad News' Lampoon of Aspen's May Election

Click on this link to hear  Aspen Public Radio Station KAJX Christmas coverage including an interview with BetterBadNews, the creator of the video, and  Harvie Branscomb, the creator of this blog.

http://www.aspenpublicradio.org/news_archive_detail.php?story=558

Click on the link below to see the 5 minute YouTube video made by volunteer artists in Berkeley who found humor in some of the bizarre events in Aspen's May election.

http://www.betterbadnews.com/2009/12/14/aspen-mayor-promotes-voter-animosity/

posted by Marilyn Marks 12.25.09

Mayor Ireland (who is interviewed in the radio piece itself) gives election quality advocates in Colorado his reaction to an email alerting them to the KAJX Christmas Day story about betterbadnews.com. Note that KAJX made the decision to report this week old story on Christmas Day.

Email from Mick Ireland to election quality advocates in Colorado on Fri 12/25/2009 11:50 AM

How foolish of me to not see the humor in a "satire' about people beating people with hockey sticks at my direction and stealing elections and generally being corrupt. It's just hilarious to see yourself depicted that way by people you have never me and who have made no attempt to hear our side of the story. Very funny Al and thanks for the Christmas present! One would not bear even a single day going by without ripping on the mayor of Aspen.
 
Posted by Harvie Branscomb 12/25/09 12:32 PM

Aspen City Attorney Jim True and Mayor Mick Ireland separately respond to my letter

[Responses received by Harvie Branscomb concerning the 12/21/09 email to Jim True (Aspen Special Counsel) regarding election questions. This letter was printed in the 12/24/09 Aspen Times as a letter to the editor, and also appears in this blog as the previous post:]

Thu 12/24/2009 11:45 AM
Harvie:
Thank you for your recent email and attached letter. As I stated in the paper, I am happy to discuss these matters and address all of the questions that have been raised by you and anyone else. However, it is not my intent to do so in the papers.
It is my understanding that the City will address election issues, either directly with Council or with the assistance of the new Election Commission.

Thank you.

James R. True
Special Counsel
920-5108

cc: John Worcester
-------------------------------------------------------------------
[response from Harvie Branscomb to Aspen Special Counsel Jim True 12/27/09]
Thanks Jim True.
No doubt some other members of the public are as interested as I in the answers to these questions and in any substantive argumentation against any of my hypotheses or assumptions contained in these questions. Will you then be prepared to respond by email or by letter? Please let me know of any consideration you expect in handling answers to my questions and which medium you propose to use. I note that you waited until publication in the newspaper to answer my email and have not attempted to answer any of the questions yet to my knowledge. As time goes by I expect others will add to my original list of questions, at which time I will forward them on.

As you probably can guess we have recognized that the nature of the conversation has changed substantially since Marilyn Marks and I conversed with you and Mr. Worcester for a couple of hours in City Hall on the occasion when one of you told us that City Council had the right to decide to make the CD of ballot images available to the public. At that time we quite reasonably assumed that our goal was to convince the City Council of the value of full transparency. Much of what we are being told seems to have changed since then. I assure you that the source of any hostility being experienced is not resulting from my intention or that of Marilyn Marks, neither of which (intention) has really changed since mid May, 2009 before I first spoke to you. It is with regret that I have to mention that I have heard that the mayor expressed himself with an obscene gesture towards Ms. Milias this morning. I hope that isn’t a harbinger of more hostility to come.

Thanks very much and please enjoy your holiday.
Harvie Branscomb
---------------------------------------------------------------------

[the following email was received from Mayor Mick Ireland, originally addressed to Colorado Voter Group, a listserv which delivers mail to Colorado based election reform advocates including Mick Ireland and Harvie Branscomb]

Thu 12/24/2009 9:25 AM 
More propaganda from Ms. Marks special friend. In fact, the marketing funds were discussed by a group of citizens solicited by staff, none of whom was appointed by the council. The Election Commission is an official body spelled out by the Home Rule Charter, appointed by council.
The simple fact is that Ms. Marks directed the activities of the Election Commission including decisions by that body to ask for “special” counsel at taxpayer expense to push for her agenda of a ballot recount (aka “review”).
The constant repetition/invitation to have someone sue to overturn the election result is not lost on Aspen residents. O, sure you would never ask the results be overturned (or as Ms. Marks puts it in her e-mails to her campaign treasurer “voided”) but it is clear that you and your friends would do your best to raise money on a national scale to achieve that end.

Happy Holidays.

Mick Ireland
920-2858
515 Indepndence Place
Aspen CO 81611

[Harvie Branscomb's note: "Voiding" the election was mentioned once in a subject line of an email from Marilyn Marks that was never intended to be published. The inclusion of that phrase in no way logically demonstrates that Marilyn Marks, or for that matter any other election quality advocate such as myself,  is interested in "voiding" or "overturning" the Aspen election.  Unfortunately it seems impossible to disabuse Mr. Ireland of his extreme case of suspicion that we election quality advocates are engaged in such an attempt.]

[the following was contributed by Marilyn Marks as a comment]

Marilyn Marks said...
Harvie,

I am quite sure that Ireland understands that if someone wanted to overturn or void the election they would have started legal proceedings months ago. He knows that no one has even threatened such multi-year litigation, much less filed it. I'm not sure why he continues to make claims that voiding the election is our mission. If it were, surely we'd be well into the process by now.
I wish he would address the specific questions rather than make personal attacks.

Marilyn
December 24, 2009 10:47 PM

Election Questions (letter by Harvie Branscomb to the Aspen Attorney Jim True)

(as published in the Aspen Times, click here to see original and blog commentary)

Election questions

Thursday, December 24, 2009

Aspen Times Editor's note: The following letter was addressed to Jim True, special counsel for the city of Aspen.

Dear Editor:

I was glad to read your letter to editor generously offering to answer questions. What might a citizen risk by asking questions? From my perspective, two voluntary commissioners were recently dismissed following an unjust smear campaign that prevented their pursuit of election quality improvements. It appears to me that their principal error was to ask difficult questions.

It has been reported that the city knowingly skirted the law by holding a secret meeting to discuss spending marketing funds. Were election commissioners railroaded from their roles for a similar but unintentional technical infraction after questioning election impropriety?

Aspen Mayor Mick Ireland to the "voting rights community"

Aspen Mayor Mick Ireland's message of December 20, 2009
(followed by a copy annotated by Harvie Branscomb and Marilyn Marks)

Subject: Why we don't need your help in running our elections and why a recount is not needed

 

To the "voting rights community"

There are many of us in Aspen who do not support the intervention of people who do not live here in our elections.  It should be noted that the litigation you ask us to financially support is being funded in part by Ms. Marks, the candidate who lost the election and another unknown part is coming from people who have no direct knowledge of Ms. Marks and her ongoing campaign to discredit the City of Aspen.  It is odd that you claim those who disagree with her are conducting a “smear” campaign, while excusing her tactics as a candidate, which are of record and met with widespread disapproval by the electorate including some of her supporters.

How Aspen Violated Colorado Ranked Choice Voting Rules

[Mike LaBonte,  an election quality advocate from Massachusetts posted  the following summary of one portion of his work related to the Aspen election on the BlackBoxVoting.org website on January 7, and accepted the invitation to post it here as well.   --posted by M. Marks.]

Colorado state law has a section CRS 1-7-1003 allowing for ranked choice voting. It describes a form of instant runoff voting (IRV) for single seat elections, and a form of single transferable vote (STV) for multiple seat elections. It also has a clause allowing IRV for multiple seat elections with a condition:
 A local government may also conduct an election pursuant to this subsection (4) using the principles of instant runoff voting specified in subsection (3) of this section to ensure that each elector has equal voting power and that an elector's lower ranking of a candidate does not count against the candidate to whom the elector gave the highest rank.

 Put another way, in an election in which candidate A is a winner, it must not be possible to have a set of ballots with candidate A ranked #1 and various other lower ranked choices, which upon changing only the lower ranked choices can make candidate A lose. Imagine that you ranked candidate A number 1 and that was your only vote in an election that candidate A wins. Now imagine you had instead ranked candidate A number one and candidate B number 2, and now candidate A loses! It can happen if the 2nd rank vote for candidate B moves B ahead of A in an early round, and A is eliminated even though A would have picked up more votes in a later round. This is one form of non-monotonic behavior. To be fair, a regular series of regular non-instant runoffs potentially has the same effect.


The method chosen by Aspen for their City Council race appears to attempt to utilize that last clause in CRS 1-7-1003 above. They did not use STV, but rather a separate IRV race for each council seat.


It can be proven with the ballot data from the Aspen May 5, 2009 election that a change in the outcome of the City Council race was possible, due to non-monotonicity. In that election Derek Johnson won seat 1 and Torre won seat 2. Briefly, if every voter who ranked Torre number 1 had also ranked Jack Johnson number 2, with no other candidates ranked, Jack Johnson would have won seat 1 and Derek Johnson would have won seat 2. Torre's victory would have changed to a loss, and his supporters would have caused it by their 2nd place rankings for Jack Johnson.


Although there is a debate about Aspen's non-release of actual ballot images, much information from that election has been made public, to their credit. Everything needed to reproduce the counting has been provided, including the "ballot string" files (interpreted from the actual ballots that we can't see) and configuration files for using the ChoicePlus Pro software used in the actual election. I have attached a zip archive with 2 subfolders. Folder "may5_original_camb" reproduces the counting using the Aspen rules, just to prove my setup replicates the original results. Folder "torre1_jjohnson2_camb" uses ballots modified as described above, in which voters who ranked Torre number 1 hypothetically defeated him by also ranking Jack Johnson number 2. It didn't happen that way. But it could have, and that is what Colorado state law seems to prohibit.

The files supporting this work are at: http://www.bbvforums.org/forums/messages/8/aspen_nonmono_irv-80803.zip

Aspen Times poll about releasing ballots

As of Dec. 02, 2009:

http://apps.aspentimes.com/utils/polling/poll_results.php?poll_ident=1465

Marilyn Marks responds to email fragments

comments originally posted on AspenPost.net

1. Comment by Marilyn Marks November 23rd, 2009 at 7:56 pm
Thanks, Michael, for posting these excerpts. It's about time some of this starts coming to light so reader can see for themselves, rather than listening to twisted logic. I've added a few comments to some of the excerpts. Sorry to use caps---didn't know how else to distinguish your posting from my comment.

Aspen Election Commission Emails: Key Excerpts
Marilyn Marks Press Release, 5/6/09: “Marilyn Marks has announced that she will not contest the Aspen Mayor’s race election results based on procedural election questions raised by Jim Perry and others. Marks said, ‘I certainly honor the voice of the people in this election. While the variety of challenges which might be successfully asserted could possibly change the outcome of the election, given the small 133 vote margin, I believe that our community’s time and energy would be better spent by uniting to address our near-term economic challenges and positive programs. Election challenges are expensive and divisive, and delay the important work at hand.”

“I have complete confidence in the Election Commission to resolve any remaining questions regarding the election procedures or ballots. Their work will only add to ensuring the integrity of the election process in future elections.

”I FEEL THIS WAY MORE STRONGLY THAN EVER. I HAD NO IDEA HOW DIFFICULT THE TASK OF ADVOCATING FOR FUTURE REFORMS WOULD BE. THERE'S A LONG ROAD YET AHEAD.

Marks to Election Commissioner Chris Bryan, 5/9/09: “I feel that I have numerous sound grounds on which to challenge, but politically, I don’t want to do that. But the point is to make sure that the Election Commission is at least aware of these issues—for future elections, and to answer any other candidate’s questions which might arise.”

“Hopefully you and Ryan [her attorney] can speak on Monday.

”YES. AFTER I CONCLUDED ON MAY 6 THAT I DON’T WANT TO CONTEST THE ELECTION, I SPENT CAMPAIGN FUNDS TO HAVE MY ATTORNEY WORK WITH CHRIS TO REGISTER ISSUES WITH THE COMMISSION FOR FUTURE ELECTIONS AND ANY CANDIDATES WHO DID STILL HAVE QUESTIONS. [SOME ARE PRETTY LEGALLY COMPLEX, OR SEEMED SO AT THE TIME. SO I NEEDED MY LAWYER’S HELP.]

11/24/09 Comment for Aspen Times and Aspen Daily News

Submitted by harvie on Tue, 11/24/2009 - 7:29am.
Message:
From: City
To: citizens

1) Don't ask to see any copies of your anonymous ballots- something about them is too dangerous to be released- we will keep them briefly & destroy them for you.

2) Don't even think about questioning the City Council concerning elections. We will find a way to demonize you or disappear your citizen role on a technicality, without warning, and without discussion. We have two attorneys who advise us secretly. We can & will take you down if we so choose. We can & will meet in secret to discuss these matters.

3) You on citizen boards who are naive enough to communicate by email instead of phone, someone will get your emails and embarrass you and we might even help someone to do so. Please be kind to us elected officials about CORA infractions, but don't expect the same treatment.

4) Trust us (we who are elected) to be sure your election is just fine. We set the rules.

(We, the City Council, appoint the citizen's board. The city's chief election official, our employee, is the Chair. Independent citizen oversight is tiring now & a waste of time & something which might have been a good idea once or twice in the bad old days when people used guns to get elected.)

(posted as a comment on the following two articles:)
Aspen Daily News: 11/24/09: Council moves to appoint new election commission
http://www.aspendailynews.com/section/home/137748

Aspen Times: 11/24/09: Aspen seeks new members for election commission
Controversial citizen board out of compliance with city charter
http://www.aspentimes.com/article/20091124/NEWS/911239958/1077&ParentProfile=1058

11.19.09 Aspen Times http://www.aspentimes.com/

Email by Marilyn Marks to Aspen City Council 10/27/09

Mayor Ireland, Council members Johnson, Romero, Skadron and Torre:

I want to go on public record by emphatically objecting to Jack Johnson’s false allegations and implications suggesting that any inappropriate meetings or communications took place between myself and the Election Commission. I will be brief here and make no attempt to answer his many tawdry allegations, although I would be happy to answer in detail any questions you have.

Thanks to the Mayor for giving me a chance to respond last night in public comment. And thank you Mick for reminding me to respond to the false allegation that I had private meetings with Chris and Elizabeth together. Despite Johnson’s claims to the contrary, to the best of my recollection, I have only had one conversation with the two of them (outside of the public meetings of the EC and the City Council.) That was in the Sister Cities Room with the press present while we were awaiting the EC item on the agenda of City Council in September. Our conversation was all social as I recall, and certainly not private. The set of separate conversations that took place in that room, adjacent to the City Council meeting wouldn’t be construed as a meeting of the Election Commission.

I did however, on at least three occasions (possibly more), visit Kathryn Koch’s office along with Elizabeth to informally discuss the IRV process, election process and voter education on IRV. Some of those discussions were before I was a candidate, and some after, but my recollection is vague on the details of what was discussed at which meeting. I don’t believe I retained any written records from those meetings. But if asked, I will go through old notebooks to check.

Millard Zimet's commentary about his complaint

Mick! Marilyn! SEX! Now that I’ve got your attention, let’s talk about your rights under the Colorado Constitution to have a secret ballot election.

I recently filed a complaint with the Aspen Election Commission, asking the Commission to determine whether Aspen’s May 2009 election was a secret ballot election as required under the Colorado Constitution. I’d like a few moments of your time to explain why I did that and why your rights are at stake.

They know where you voted and they know when you voted. Each precinct has a log, where you are signed into the system in the order that you entered. That log is a public document, and the campaigns of all the serious candidates monitor the logs so they can keep track of who voted and who didn’t. Big Brother government is the keeper of the logs, but many people have full copies of them.

Can they find out how you voted? Decide for yourself. The City scanned all the ballots. Then they released data (called the “Strings”) showing how each ballot was voted.

Unfortunately the City didn’t “shuffle”, or otherwise randomize, the order of the Strings before they released that data. And the City never shuffled the ballots. Rather, the City says they “cut” the ballot deck, and took some other sorting measures, when they scanned the ballots.

Harvie Branscomb and Al Kolwicz: Guest opinion: Make computer files open to public

Harvie Branscomb and Al Kolwicz:

Guest opinion
Make computer files open to public
Harvie Branscomb and Al Kolwicz
Special to The Aspen Times
Aspen, CO
Colorado

Part of a bipartisan team of election integrity experts, we are working on ways to increase transparency and independent verification of elections. We believe that more transparency and independent verification yields more voter confidence.

Over the years, we have served on the canvass board, the post-election audit team, and the logic and accuracy test team of numerous Colorado elections. We actively contribute to the development of Colorado election statutes and rules. We are each technically savvy. And, we are active contributors to both national and local election system improvement efforts.

This experience has taught us ways to improve and increase public confidence in the election system.

Aspen's May 5, 2009 election was unique in several important ways. It was Colorado's first instant runoff election (IRV). It was the first time that the computer-based TrueBallot vote interpretation and counting system was used in a Colorado public election. It was the first time that a Colorado election jurisdiction created a portable electronic file (TIF) containing the image of each ballot, and a separate portable file containing the interpretation of the ranking and vote on each ballot.

Aspen's data offers researchers a unique opportunity to analyze and report on ways to use increased transparency and independent verification in future elections. Areas of study will include post-election auditing, canvassing, and potential improvements in election statutes and rules.

Guest Editorial August 20, 2009 in Aspen Daily News Aspen IRV Election Review

The Citizens of Aspen are asking: whose election is this anyway? Does it belong to the government-- made up of the very officials who are candidates in each election? Or is it the people’s election? Apparently this question remains open in Aspen.

In an Aspen election, you see the stub which connects the ballot to you being removed before you cast your ballot. In case of mail-in you may trust an election judge to do this. Once the stub is removed no-one else can trace the ballot to you - including the City of Aspen election officials. But the City is claiming the law says they must keep the ballots secret to protect your privacy. Not so.

You alone might be able to recognize your own ballot from the way you have voted, if you remember the many rankings on your ballot. The protection of the anonymity of the ballot is demanded by the Colorado Constitution as the City has pointed out. If the City has counted any ballots containing identifying marks in any election, it has violated the law. Should the voters be able to learn whether this has happened? The City says you are not allowed to find out- by law. The City says trust: but don’t verify.

Marilyn Marks to Aspen City Council about May 5 2009 IRV Election Instant Runoff Voting

Marks to Aspen City Council Instant Runoff Voting Aspen May 5 09 Election

Harvie Branscomb to Aspen City Council about May 5 2009 IRV Election Review Instant Runoff Voting

Branscomb to Aspen City Council About 5-5-09 IRV Election Review