KDNK Reports on SOS Memo Looking to Deny Inspection of Ballots

This morning on KDNK in Carbondale, Conrad Wilson reported the story of my CORA request for voted ballots in several counties and the SOS position that there is no exemption for voted ballots in CORA. http://www.kdnk.org/article.cfm?mode=detail&id=1280241798407)

In his interview, he talked with Rich Coolidge who stated that SOS office did not know what advice to give, because there is no exemption for voted ballots, and reportedly they are concerned about “protecting voter identity.”
Note my correspondence with Delta County on the matter. Read from the bottom up, after Delta county denied access on the grounds that inspecting ballots would cause “injury to the public interest.”
From: Marilyn R Marks

Colorado SOS Seeks to "Protect" Ballots from Owners' Inspection

The Colorado SOS seems to have forgotten that elections and election records belong to the public!

The following email was reportedly sent to clerks and election officials in all Colorado counties, in an effort to deny the public’s right to examine voted ballots. This communication resulted from my Open Records request of several counties to examine 2008 and 2009 voted ballots. The SOS attempts to put the decision back to each clerk, which of course makes for confusing and inconsistent practice county to county. I have received a denial from Delta County while two other counties are scheduling appointments for me to examine ballots. Three other counties have asked for more time to do more research.


With primary elections in process and general elections in the fall, resolution and consistency need to be immediately addressed in favor of total transparency. For example, Michigan’s voters have the right to verify (http://www.ag.state.mi.us/opinion/datafiles/2010s/op10324.htm )  the election of their U.S. Senator, Governor or local county clerk. Why should Coloradoans have less right to verify the election of our representatives who will be serving side by side with their officials?


The SOS rationale is curious that ballot inspection causes them “serious concerns about the potential for adverse effect” on voter confidence!



Marilyn Marks

Aspen, CO


From: State Election Division

>


Date: July 20, 2010 4:26:03 PM MDT

Subject: Open records requests for voted ballots


As we discussed on the conduct of elections call this morning, our office has received several questions regarding open records requests for voted ballots that have been received over the past few days. Although our office has previously provided guidance that voted ballots are not records subject to inspection under CORA and we have serious concerns about the potential for adverse effect on the confidence in elections and finality in the outcome, we are unable to identify an exception in Title 1 generally protecting ballots from public inspection.


Under the Colorado Open Records Act, it is the responsibility of the custodian of a record to decide whether it is subject to public inspection. Because county clerks are the custodian of ballots, we recommend you consult with your county attorney in determining how best to respond to requests to inspect ballots given that these records may be in storage and we are currently conducting the primary election. If you or your county attorney has identified some additional legal basis for denying access to these records, we would ask that you share the information with our office and other counties. If you allow inspection of the ballots, keep in mind that you cannot disclose any ballot with information that would identify the voter, or any other confidential voter information. This would include, for example, a provisional ballot in the affidavit envelope, or a rejected mail-in ballot in its envelope.

Aspen's IRV Election Ballot Error Rates

Mike LaBonte has been analyzing the IRV proponents claims that there were -0- "invalid" votes for mayor and only 23 for City Council in Aspen's IRV election. He makes it clear that the error rate was much higher, between errors caught, where the ballot could be re-voted, and errors that the Accu-Vote scanner did not catch. (and in most cases, was not programed to catch.)   Total error rate was approximately 12.4%, (before re-voting)  a very high rate indeed, implying to me that there was considerable confusion  in attempting to rank  the complex matrix of choices. Some intended rankings by voters did not get counted at all, because of the way that the rules were written.  See Mike LaBonte's analysis:

Thursday, June 10, 2010

Valid ballot - What does it mean for IRV?

IRV is sometimes criticized as being too complicated for voters to understand. To prove that this is not a problem, proponents like to point out that the percentages of invalid ballots for IRV elections are usually low, usually between 0% and 1%. So what does it mean to have an invalid ballot in an IRV election?

Strictly speaking, the answer lies in the rules for each locality. However, it is common for a valid IRV ballot to be judged effectively by one rule: there must be no overvote in the first ranking of each race. Let's take a look at some valid and invalid IRV ballots:

Branscomb Responds to Critics of His Aspen Times Letter

Harvie's well written letter ( posted below)  received an ill-considered response from an anonymous Aspen blogger,  calling himself "We Deserve Better."  Among other things "We" writes:
"Unlike Harvie Branscomb, who seems to have a real problem with facts and objectivity, the vast majority of Aspen voters understand what's going on with the Marks self- promotion tour.
For the record, Mark's election reform efforts are self-serving, anything but "heroic", selfish and clearly the rantings of a sore loser, in my opinion. Wrapping the Marks election reform

Branscomb Letter to Editor--Amid low blows, Marks takes the high road--June1,2010

Dear Editor:

Tim Cooney throws some nasty punches but is wildly off the mark attempting to knock Marilyn Marks' election reforms. Tim's 90-word cluster bomb was cleverly buried in his letter responding to Elizabeth Milias on The Aspen Club (“Can't trust the know-it-alls,” Friday, May 28, The Aspen Times). (http://www.aspentimes.com/article/20100528/LETTER/100529828/1020&parentprofile=1061)

Marilyn Marks' election reform work is neither “self-interested,” nor born of “vanity.” Equally ill-informed anonymous Aspen Times bloggers have been bleating like annoyed lambs “why doesn't she just let it go?” Some officials claim Marks is still on a “political campaign” and imply that campaigning is bad for the public. Contrary to all of this complaining about criticism — civic-minded citizens will be thanking Marilyn for an extremely tough effort to confront real mistakes made by a few people currently holding power.

Notice of Appeal Filed--Marks vs. Koch

 Notice of appeal in the CORA case to access Aspen's ballot images was filed today:
http://www.glassballotbox.org/journal/2010/6/1/marks-vs-koch-notice-of-appeal-filed.html

This litigation seeks to make public the ballot images from the IRV election in May 2009 in the Aspen Municipal election.

Update on DA Investigation--KAJX June 1, 2010

Aspen Public Radio reports on the District Attorney's investigation of Aspen's May election irregularities.

http://www.aspenpublicradio.org/news_archive_detail.php?story=688

 Marilyn Marks' comment: Although the City does not have a copy of the complaint, Mr. Springer,  claims that the complaint has "no merit," -- presumably without reading it.  He also claims that the there were "no violations of any election laws."  If it is not a violation of election law to leave the keys on/in the ballot box, I can't imagine what would be a violation.  That is one example of many--like failing to use certified software.
Interestingly he claims that it is the "most open, honest, well-run election" in Colorado. Surely many jurisdictions will take issue with that!

Aspen Daily News--Update on DA Investigation June 1,2010

Investigation by DA nears completion

Writer: Curtis Wackerle  Byline:Aspen Daily News Staff Writer

An investigation by the district attorney’s office into the city of Aspen’s May 2009 election that was set off when losing mayoral candidate Marilyn Marks filed a criminal complaint is nearing completion.

Harvie Branscomb's Letter to Aspen Daily News--Open Access to Ballots

The national trend toward open access

Editor:

“Voted ballots, which are not traceable to the individual voter, are public records subject to disclosure under the Freedom of Information Act,” wrote the Attorney General of Michigan in a May 13, 2010, opinion. His decision shines a new and positive light on Marilyn Marks’ request to a local court for access to digital images of Aspen’s May 2009 ballots.

Michigan voter rights advocates, like Marilyn, sought access to voted ballots from recent elections for auditing purposes. Their Attorney General’s ruling reinforces a fundamental principle that ballots are public records because they are anonymous and must not be traceable to an individual. Michigan’s constitution says only “preserve the secrecy of the ballot.” Colorado’s constitution requires “secrecy in voting,” meaning privacy, and says “no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it,” meaning anonymous. Colorado’s requirement of ballot anonymity is very specific.

City talks down, lawyers up (Letter in Aspen Times May 22) Harvie Branscomb

The following letter was published May 22, 2010 in The Aspen Times
http://www.aspentimes.com/article/20100522/LETTER/100529945/1020&parentprofile=1061

Dear Editor:
City Council and staff don't seem to mind pursuing their expensive defense against Marilyn Marks' effort to obtain reasonable transparency of election records. Ironically, they are now generally fighting against transparency promised prior to last May's election. The engagement of high profile Denver-based criminal defense counsel shows their intention to gear up. Will Aspen simply protect their many election irregularities with big-time lawyers or instead solve the underlying problems and make sure anonymous records become accessible? I am hoping for the latter.
There is transparency news from Michigan. Activists there were seeking actual paper ballots for audit purposes, while Marilyn only seeks indestructible electronic copies. Last week they received good news from their attorney general. He advised that Michigan's voted ballots are indeed public records and can be inspected and audited subject to open records request. The statement is posted at  http://aspenelectionreview.blogspot.com/2010/05/text-of-michigan-attorney-generals.html

But in Aspen, Marilyn Marks has been confronted with aggressive obstacles to obtaining mere digital copies of similar records. Her transparency litigation will move to the Appeals Court if Judge Boyd refuses to reconsider, again with Aspen voters footing the bill for efforts

Fighting Good Public Policy--(LaBonte Letter in Aspen Times)

Dear Editor:
As an engineer and volunteer election official in Massachusetts, I became interested in Aspen's new municipal election system, which combines approval voting and instant runoff voting to create a unique system.
Using the published election data files and software, I have been able to reproduce the mayor and City Council race results. I am not aware of anyone in Aspen who has tallied those races, but I highly recommend that Aspen city officials try it.
However, reproducing the tally results from “ballot strings” does not mean I have verified the election. To verify an election one must look at the ballots; no less than full transparency will do. But currently Aspen taxpayers are funding an expensive battle to fight election transparency. Aspen, of all places.

Election Activist Mike LaBonte Comments on Michigan's Public Access to Ballots

 Laws regarding freedom of access to voted ballots are often fuzzy at best, and seem downright restrictive at worst. Michigan Attorney General Mike Cox has written a very enlightened opinion responding to a question from Michigan Secretary of State Terri Lynn Land. Cox concludes:

"Voted ballots evidence the electors' preferences, and ultimately support the election or defeat of candidates and the approval or disapproval of ballot proposals in an election. They are the primary source for election results. Therefore, voted ballots are "writings" that record meaningful content and constitute "public records" for purposes of the FOIA."

He then goes on to address common misunderstandings of "secret ballot":

"Importantly, the question you pose does not raise "secrecy of the ballot" concerns because, as described above, a ballot is no longer traceable to the elector who voted it once the stub with its unique serial number is removed and the ballot is placed in the tabulator. Once placed in the tabulator, the voter's ballot and the selections recorded upon it become anonymous."

The opinion is thorough, well written, and a great read for those who wish to better understand the issues of election transparency, even for those outside of Michigan.

http://www.bbvforums.org/forums/messages/150/MI_AG_7247-80970.pdf

http://www.bbvforums.org/forums/messages/150/MI_AG_7247att-80971.pdf


This is yet another victory in the fight for election transparency. One state at a time people are realizing that the genius of the Australian ballot system lies in it's ability to simultaneously provide private voting and ballot transparency.

Michigan's Ballots are Pubilc Documents---Why Not Aspen's?

The Michigan Attorney General recently handed down an opinion confirming that voted ballots in Michigan are public documents.
If Michigan citizens can look at their ballots? Minnesotans' theirs, Floridians theirs, why not Aspen?
If Longmont, Colorado citizens can be involved in post elections using real ballots why are Aspen's ballots secret?
If El Paso County (Colorado Springs) can have extensive citizen post election audits, why do Aspen's ballots have to be hidden away from all but the city officials?
See a full explanation from the Michigan AG's opinion, demonstrating that ballots are to be non-traceable to the voter. The same facts and logic should apply in Aspen.

http://www.glassballotbox.org/storage/MichiganCase.pdf

Text of Michigan Attorney General's Opinion on Voted Ballots and FOIA

Copied from: http://www.ag.state.mi.us/opinion/datafiles/2010s/op10324.htm

====================
The following opinion is presented on-line for informational use only and does not replace the official version. (Mich. Dept. of Attorney General Web Site - http://www.ag.state.mi.us)
--------------------------------------------------------------------------------

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

ELECTIONS:

FREEDOM OF INFORMATION ACT:

PUBLIC RECORDS:

SECRETARY OF STATE:

Access to ballots voted at an election under the Freedom of Information Act

Harvie Branscomb's Letter of Complaint to Aspen Election Commission 5.10.10

(Harvie had asked for a few days extension of time on the 5.10.10 filing deadline and was denied that opportunity by Ward Hauenstein.  He sent this letter as his official filing to be supplemented in the near future.) --comment by m.marks.
---------------------------------------------------------------------------
[what follows is an emailed letter by Harvie Branscomb to Aspen Election Commissioners- some typos in the original text have been corrected by Harvie 5/11/10]


Ward and Bob (and Kathryn when and if she sees this): 5/10/10



Both of you -independent members- of the EC already responded to my midnight email- thanks very much. I guess the pressure I have been under for the past week must be obvious in my mistake about the date of a requested extension. A week ago I took on an additional and unexpected responsibility to a great number of people where the schedule was out of my control.


If I could have spent the past week on a 'charrete' to prepare a submission to you, I might not be ready by now. Please recall that until the newspaper announcement of April 27, the public did not know of a format or deadline for submissions. My research, yet far from complete, has not been compiled to press the button at any moment in a certain “complaint” format that is worthy of a formalized review. Therefore I take exception to Ward’s assumption that a year is enough time to compile a complaint. The full year of experience learning about the election, and more importantly about the various responses to post election queries, has led to a huge body of knowledge, much of it worthy of some kind of comment or complaint. 

Fortunately Marilyn Marks is aware of much of that knowledge and she is also quite qualified technically and intellectually and emotionally to present to you. I hope that she does, and I support her efforts in that regard. It is likely that she too would not have been able to meet the deadline without having had to organize her documents for her District Attorney complaint. The effort is hugely time consuming, as I hope you will appreciate. I want to present accurate, well-documented data that is easy to follow. That is likely a 40 to 50 hour project. To ask that it be completed in less than 2 weeks is asking a lot.


Unfortunately, and that would be an understatement, Marilyn is discredited by too many people for character failures that she does not have, and for having been a candidate in the election, which is no reason at all to discredit her. In fact it gives her every reason to be highly knowledgeable, and demonstrates that she is serious about elections and better government. Candidates should be encouraged to come forward with what they know. Why not?

Election Commission Update

On May 10, Election Commission Complaints were due.
See above for Harvie Branscomb's complaint letter.
Marilyn Marks' complaint  filing linked as follows:
http://www.glassballotbox.org/storage/MarksECDocument5.10.pdf

http://www.glassballotbox.org/storage/EC%20Complaint.zip

========================================================
The Aspen Election Commission met May 5 (the one year anniversary of the controversial 2009 Municipal Election) to hold its first hearing for complaints. The independent commissioners heard Millard Zimet's complaint regarding  non-anonymous election processing.
The video recording of the proceedings may be reviewed at:
http://www.grassrootstv.org/Show.aspx?ShowID=9062

Marilyn Marks has proposed that the Election Commission conduct a Re-scanning, and Re-Tabulation audit procedure intended to provide some mitigation  for the lack of pre-election and post election system testing.
That proposal is at http://www.glassballotbox.org/journal/2010/5/9/proposal-to-election-commission-for-re-scanningre-tabulation.html

Complaints are due to  the Election Commission Monday, May 10. They  will be posted here as they become available.

The City of Aspen announced that the District Attorney has opened an investigation into the May 2009 election. http://www.aspentimes.com/article/20100507/NEWS/100509873
and
http://www.sfexaminer.com/breaking/das-office-investigates-aspen-elections-claims-93241559.html

Colorado Voter Group's Al Kolwicz Writes Aspen Election Commission Re: Anonymous Ballots

Al Kolwicz , Colorado Voter Group , 2867 Tincup Circle,Boulder CO, 80305
http://www.coloradovotergroup.org/

May 4, 2009
Commissioner Ward Hauenstein, Aspen Independent Election Commissioner
Commissioner Bob Leatherman, Aspen Independent Election Commissioner
Dear Commissioners Hauenstein and Leatherman

I am writing in regard to tomorrow’s Election Commission meeting. Please permit me to first introduce myself. I have lived and worked in Colorado since 1966. For more than a decade, I have worked to improve Colorado’s election system. I am a Trustee and co-founder of Colorado Voter Group. I have served on multiple Boulder County Canvass Boards and voting equipment test boards. I have actively participated in Colorado’s equipment certification process, and contributed to the development of election rules, and have testified numerous times before state and local governmental bodies. I have testified in court as an expert witness on election system matters. I have closely monitored with much interest Aspen’s May 2009 election and its follow on activities. I have worked closely with Nick Koumoutseas of TrueBallot, the vendor whose system was used in the election. I have had a private demonstration of the TrueBallot system including a description of the database tables and macros, and the software used to capture, interpret and correct votes. I have also explored the software used to calculate the selection of the winners. In addition, I have analyzed the database and strings, as well as the first-pass vote interpretations published by Aspen. I have studied Title 31 and have in-depth knowledge of Title 1, the Colorado Election Rules, and Colorado Constitution Article VII Section 8.

My interest in the May 2009 election is due to the ranked choice methodology used for the election. The Colorado legislature has instructed the Secretary of State to prepare a report of Colorado IRV experience by February 2011. As of now, it appears that Aspen’s will be the only Colorado IRV election completed before the report deadline. I hope that by detailed analysis of this election we can make a significant contribution to the Secretary of State’s report to the legislature. We expect this report to significantly influence future legislation.

Clean government does not just happen. The public needs protection from potentially tyrannical governments. Therefore, protection must be independent of government. It must work to serve public, not government, interests. The Aspen Election Commission should strive to become such a protector. You have statutory authority, and your tools are transparency and trustworthy elections.

Transparency means that public information is public and affordable. Government has the power, but not the right, to withhold or destroy information that might undermine its power. The Commission can and should facilitate the public’s access to all non-private election-related information.

Marilyn Marks Response to Zimet and Election Commission on Transparency and IRV

From: Marilyn R Marks Sent: Tuesday, May 04, 2010 2:54 PM

To: 'RDLNKP; 'Ward Hauenstein'; 'Kathryn Koch'

Cc: 'Jim True'; 'John Worcester'; 'Harvie Branscomb'; 'elizabeth.milias'Millard Zimet'; 'Mike LaBonte'; 'Al Kolwicz'; 'Don Davidson'
Subject: FW: May 2009 Election--balancing privacy and transparency
Commissioners,

The philosophical debate shaping up for tomorrow is fascinating. A full public discussion will no doubt be informative.
In fact, despite how deeply involved I am in the subject, the debate between Harvie’s and Millard’s positions has caused me to go do more research and come to different conclusions of my own. Not that that is important, but it is the intelligent debate by knowledgeable people of differing viewpoints which I found so personally valuable. So, I hope that some of that debate can be heard tomorrow.
See my comments below directly commenting on Millard’s.

From: Millard Zimet Date: May 4, 2010 9:54:07 AM MDT
To: rdlnkp
Cc: ward.hauenstein Kathryn.Koch Jim.True John.worcester

Subject: Re: May 2009 Election

Bob et al:


Sorry to bother you again, but there's another point I need to make sure you understand in advance of tomorrow's Election Commission meeting, namely: Marilyn Marks does not speak for me.


MRM>>I hope I did not say anything to imply that I was attempting to speak for him in my support his complaint. In fact, as you know, I submitted my own complaint on this point that is intended to stand alone.

Millard Zimet Comments to Election Commission on Privacy and Transparency

From: Millard Zimet Date: May 4, 2010 9:54:07 AM MDT

To: rdlnkp

Cc: ward.hauenstein Kathryn.Koch@ci.aspen.co.us, Jim.True@ci.aspen.co.us, John.worcester@ci.aspen.co.us

Subject: Re: May 2009 Election

Bob et al:

Sorry to bother you again, but there's another point I need to make sure you understand in advance of tomorrow's Election Commission meeting, namely: Marilyn Marks does not speak for me.

The reason why I got involved in this election matter back in August was because I became worried that my vote was not secure. That is still my primary focus. I hope I have been able to show you that the votes of many voters are not secure.

Marilyn Marks and Harvie Branscomb are interested in election transparency. They are now concerned that my secret ballot issue will negatively impact their election transparency agenda. I told them (and the City) of this inevitable conflict back in August, but nobody seemed to care at that time.

Election Integrity Activist LaBonte Supports Election Commission Review of Zimet Complaint

From: Mike LaBonte Date: Fri, Apr 30, 2010 at 2:40 PM  Subject: Regarding the Zimet complaint

To: Kathryn.Koch;  Ward Hauenstein  Robert Leatherman
Hello Election Commissioners,
I have read the recent letter to you from Millard Zimet at http://www.glassballotbox.org/storage/Zimet4.29Complaint.pdf.   As an outsider to Aspen I would like to point out that while the topic of ballot anonymity may be discussed relatively rarely, it is widely regarded as one of the founding principles of how we vote in modern times. Practices such as inspecting ballots for legal compliance and shuffling them are in general either codified or taken for granted, although some election officials may mistakenly depend too much on their optical scanners and ballot boxes to perform some degree of randomization. Adopting a strong protocol for maintaining ballot anonymity would not only be a good practice, indeed, Aspen voters like all other voters certainly must already expect that their ballots can not be traced back to them, not even by election workers. Otherwise who would vote?

Election Commission to Hear Zimet Complaint Alleging Unconstiutional Election

Millard Zimet updated his complaint on the alleged unconstitutional nature of the May election, because of the lack of voter anonymity.
The complaint will be heard by the Election Commission on May 5 at 3:30 p.m. in a City meeting room.

The complaint update details how he determined Mayor Mick Ireland’s likely voting data from cast vote records improperly collected in order of poll book entries, and then  publicly released by the city. (the ballots were not shuffled, nor were the ballot image files, before being scanned or released.)

Mayor Ireland declared Zimet’s complaint to be of “no substance,” and that the Commission has “nothing to act on.”
The meeting will surely be interesting. The legal advice will apparently be offered by the City Attorneys who helped design this system and did not require the randomizing of ballot records. Additionally they represent the elected officials.

His complaint update as of 4.29.10 is posted at:
http://www.glassballotbox.org/storage/Zimet4.29Complaint.pdf
The original and 1st update of the complaint are

City View of Aspen Election Commission Role and Responsibilities Finally Disclosed

On April 21, 2010, five months after this  confidential memo was written for City Council, the City Attoney's views of the Election Commission's authority and appropriate roles was made public. One wonders why  this document wasn’t always public.
 In February the City asked for applicants for the new Election Commission, but would not disclose  the City’s view of  what their duties or level of authority would be. It should be noted that this memo was written as a confidential document for City Council at the time that the former Election Commission was under fire by Jack Johnson and some Council members on trumped up charges, after the EC began to explore their duties and discuss the outstanding election irregularities.
 Shortly after this memo was written, the Council declared the Election Commission to be retroactively terminated. I believe that the Council did not like the breadth of authority that the Election Commission held to review and control the process of elections in accordance with state and local law. They had to be dismissed so that the CC could avoid having them follow through on their  interest in independent reviews and audits, and a clear definition of their roles.
(comment by Marilyn Marks)
http://www.glassballotbox.org/storage/Election%20commission%20duties%20-%20public.pdf

Harvie Branscomb comments on news about Aspen Election Commission

From: Harvie Branscomb
Sent: Thursday, April 22, 2010 10:21 AM
To: Curtis Wackerle (Aspen Daily News reporter)
Cc: Marilyn R Marks; Al Kolwicz; Ward Hauenstein; Bob Leatherman;  Jim True; John Worcester; Kathryn Koch; Harvie Branscomb
Subject: Re: May 8 deadline
(referenced article : http://www.aspendailynews.com/section/home/140270 )


Curtis
I realized after reading your well written article that I might have misled you slightly. The lock the key was left in unlocks a small door on the ballot box that allows access to two buttons that if simultaneously pressed will activate the override function that causes the voting machine to accept any ballot with any number of errors on it. My research shows that use of this function can lead to misinterpreted ballots.


I'm not sure you understand that the "ballot box" is the stand that holds up the voting machine. The ballots fall from the voting machine into the box. There are several locks on the box/stand that are opened by the same keys as Kathryn Koch confirmed at the second election commission meeting. Two of the locks open doors that allow access to storage areas for voted ballots. I don't think your article is written in a manner that will confuse and I don't think it needs any correction. I am only explaining this to you in case someone objects on technical grounds. No doubt Kathryn Koch will correct me if I am wrong. It is odd that the Mayor brought up this canard again at the end of the Monday night CC/EC meeting.

I think you listed two of the most easy to understand (and to resolve) issues. That was appropriate. Your readership will relate to those and perhaps they will remember other similar problems to report and come forward. You might have noted that the EC would like to hear about positive qualities of the election too. I plan to offer a number of those in my comments.
But I also want to point out four other issues that simply overshadow the procedural problems on or around election day.

Provocative bill to take Colorado to a universal mail-in ballot will not be introduced

Colorado Secretary of State Bernie Buescher speaking to the newly appointed Best Practices and Vision Commission just announced that the 69 page bill being prepared for late introduction to take the state to a universal mail-in ballot with "service centers" and election day registration will not be introduced this year.  The Best Practices group (citizens, clerks, legislators and representatives of parties) will consider this among other issues. It's first meeting was today.  One of the interesting revelations of the first discussion was to note that most municipalities do not check signatures on mail-in ballots (and are not required to do so).

The following press release (after the break)  from the Colorado Secretary of State is misleading. It offers a false alternative- between "touch screens in polling centers" and "mail ballots fed through high speed scanners".  Neither of these is technically necessary in a traditional polling place counted election. In fact both of these are the same two limited choices that would have been forced on voters as a result of the "Modernization Bill" that will not be introduced this year.  The real choice (still available to many voters in Colorado) is between paper ballots counted in precinct polling places using reliable paper poll books, and on the other hand vote centers or service centers dependent on electronic pollbooks and functional networks and high tech centralized facilities for counting paper ballots requiring moving ballots to where they are counted (either from precincts or by mail).

The conversation about mail ballots has not exposed the deleterious effects it has on citizen oversight. Too often the discussion is framed in a promotional manner.

The Secretary of State did express a set of goals for the Best Practices and Vision Commission that features accuracy high on the list and does not mention convenience or cost.  If he meant to place convenience and cost at a lower priority than accuracy of counting and eligibility then I compliment him on setting goals properly.  Watch the Secretary of State's website for audio recordings from these meetings: www.sos.state.co.us/pubs/pressrel/PR20100319Members.htm

Email by Marilyn Marks to Election Commissioners concerning 2nd meeting: Aspen Election Commission

[April 18 2010 email from Marilyn Marks to two volunteer Aspen Election Commissioners regarding 2nd meeting of 2010 Aspen Election Commission. More comments on the meeting are found here: http://aspenelectionreview.blogspot.com/2010/04/second-meeting-of-aspen-2010-election.html]

Bob and Ward,

I had the opportunity to listen to an audio recording of the most recent meeting.

I am pleased that so many topics were candidly discussed. Thank you for doing that.

I look forward to participating in future meetings.

It sounded as if I am requested to make a list of my concerns about the May 2009 election and submit those to the EC, although I have not heard this other than by listening to the tape. I will certainly do this. I am assuming that your request is for me to have that submitted by May 8^th?

I did hear a few topics where I feel that there is some confusion or lack of clarity of the history:

1.    I believe that Elizabeth clarified this, but my litigation has nothing at all to do with IRV, although that seems to be a common misunderstanding. My litigation is ONLY focused on ensuring that public records of ballot images are accessible by the public. That needs to be true throughout the state of Colorado whether we are dealing with  IRV TrueBallot created images or images created in traditional elections with the Hart BallotNow system.

2.    Millard’s complaint is a most serious complaint (far more serious than any of mine!), and  needs to be candidly discussed and the implications fully understood. I was concerned to hear that it was initially passed off as “IRV related,” and toward the end of the meeting, as not important unless IRV is used again.  Millard’s complaint has to do with a constitutional issue cloud that will hang over the City for at least 3 more years. The problem is not solved by “shuffling next time.”  While that is crucial, what is the remedy, or at least the acknowledgement of the problem that the community needs to be aware of? In my view, that is a philosophical matter that merits a full and candid discussion, not to be shied away from because it is uncomfortable. 

Criticism of Caleb Kleppner Guest Editorial in Aspen Times Sept. 17, 2009: Aspen Election Transparency

This is an email written by Harvie Branscomb to Caleb Kleppner of True Ballot Inc. Sept. 17th, 2009 in response to a guest editorial written by Kleppner for the Aspen Times.  This email was not responded to in written form but there was a telephone conversation between Caleb Kleppner and Harvie Branscomb. This email, critical of the Caleb Kleppner's op-ed statement,  corresponds to the recent email of Marilyn Marks to members of the Aspen Election Commission linked here: http://aspenelectionreview.blogspot.com/2010/04/city-of-aspen-trueballot-inc.html

An open records request was filed to learn about city cooperation in the writing of this op-ed.  The result is found in the form of a pdf by clicking here .  On the pdf you will find Marilyn Marks Sept. 17, 2009 criticism of the op-ed as well as an email from Caleb Kleppner to Aspen City Clerk Kathryn Koch offering to cooperate on writing the op-ed and also a submission of a draft to Kathryn Koch for edits or modifications.
[above is by Harvie Branscomb]

Caleb

...

You have taken the salesman’s route of promoting transparency in Aspen, which is my agenda too, but you have rested your case on some misconceptions about the election which force me to argue with you.  I am sorry you did that, because I want to support the transparency of True Ballot’s system regardless of the election method. Unfortunately by glossing over facts as you (and the City of Aspen) have done, the public does not get a clear picture of what took place and where it needs to be improved.  I have been circumspect in my criticisms of the Aspen election, but this new publication forces me to expose additional details as I know them to the public.

Here are the line by line exceptions I have to your editorial. Please give me your rebuttal ASAP. As a first hand observer, I will rely on your corrections of my statements where your corrections are definitive from  your first hand experience.

(original guest editorial from the Aspen Times, interspersed with commentary by Harvie Branscomb in yellow.)

Caleb Kleppner
Special to The Aspen Times

Some recent commentary on the instant runoff (IRV) election has distorted the facts and missed the big picture about Aspen's May election.

HB>; Caleb, you are correct, and this editorial of yours is an example of that, unfortunately.  This letter will seek to elaborate on your distortions. I think perhaps you are correct about the big picture, but this picture must not be founded upon mistaken facts.

Discussion of ballot text for possible future Aspen voting methods for November ballot question: Aspen Election

A discussion and questions about the presentation of voting methods for future Aspen elections on the ballot for the November coordinated election.

From: Harvie Branscomb [mailto:harvie@media.mit.edu]
Sent: Friday, April 16, 2010 1:36 AM
To: 'Mick Ireland', Aspen City Council, Aspen Election Commission
Subject: deciding the method of voting

…

Several voting systems will be identified to be placed on the ballot.  One of them will be similar or same as the IRV used in 2009.

Another one is likely to be plurality/winner takes all, no majority required

Another one is likely to be vote for one, majority required, runoff if necessary (or vote for 2 if CC)

Another one could be e.g. approval voting (each candidate can receive one vote per voter, voter votes for as many as preferred, majority required, runoff likelihood reduced

Another could be e.g. district or party primary, followed by general election, etc.

Will the IRV choice be represented by exactly what was done in 2009 or by an improved description? This seems to be a key question. I now think that calling rank choice voting “IRV” is a mistake.  I now see it as “RRV” or reduced runoff voting- a system that makes runoffs much less likely but would call for a runoff in case a true majority of ballots was not achieved by the winner(s) of the rank choice vote.

Aspen response to Marks' response to Aspen's motion for attorney's fees: Aspen Transparency Litigation

On April 16, 2010 the City of Aspen filed this brief to support the argument that plaintiff Marilyn Marks should pay a total of over $67,000 in legal fees calculated at a rate of $385/hr, although city attorneys are paid far less than that. This motion is allowed by the decision of the court to dismiss the case, although that dismissal took place months after the motion was filed and only two days before a critical deposition was to be taken and two weeks before the hearing date where evidence would have been heard. 


Here we see Aspen arguing that although it failed to follow one of the court rules it had some reason not to be aware of the rule.  We then see the city argue that the Marks case is frivolous and vexatious- largely referring to the existing record in the case and claiming, again, that Marks' recent pleading,  that shows the uncertainty of the accuracy of representation of the paper ballot by the TIFF image, "is again an effort to change the facts to avoid attorneys’ fees, to avoid the dismissal, or to challenge the election."
[above is opinion by Harvie Branscomb] 

Click here for a pdf copy of the memorandum (as also found in text below)

Click here for a pdf copy of Defendant's Exhibit A (Colorado Court Rules - Determination of Motions)

Click here for a pdf copy of Defendant's Exhibit B (Court transcript from Jan. 28 2010)



DEFENDANT’S MEMORANDUM BRIEF IN REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR ATTORNEY’S FEES AND PLAINTIFF’S REQUEST FOR HEARING

TrueBallot certifies Aspen May 5, 2009 election "fair and accurate" on April 12, 2010

The following was produced as a response to a Colorado Open Records request for the certification called for in the agreement between TrueBallot, Inc. and the City of Aspen.   The contract, signed by the City Clerk on April 23, 2009  states that "upon completion of the tabulation of the ballot, TBI and/or John Seibel, Esq. shall, if no substantial irregularity has occurred, certify the ballot as fair and accurate."  The original contract in pdf form can be found by clicking here.  The open records request was sent on April 8 2010 and the following letter was written on April 12, 2010.

TrueBallot, Inc
Election Services & Solutions
3 Bethesda Metro Center
Suite 700
Bethesda, Maryland 20814
(301) 656-9500
FAX (301) 656-3558
http://www.trueballot.com

John L. Seibel
President
john@trueballot.com

April 12, 2010

Kathryn Koch
City Hall
130 S. Galena St.
Aspen, CO 81611

Dear Ms. Koch:

I believed that we provided a certification of the May, 2009 Aspen City election at the time of the election when all of the election data was presented.  However, in the event that certification was not provided, please accept as this letter as certification that the tabulation of the ballots in May, 2009 Aspen city election as presented on May 5, 2009 and subsequently amended to correct an insubstantial error in the final tabulation of the results in the Mayor's race, were fair and accurate.

Sincerely,
TrueBallot, Inc

John L. Seibel, President

City of Aspen &TrueBallot Inc. Misrepresentations and False Statements Concerning Aspen Election Transparency

(I wrote the following email to the new Election Commission asking for their review of the false claims and  misinformation which the City of Aspen has helped to promote about the May election.) Marilyn Marks
[this posting contains opinion by both  Caleb Kleppner and Marilyn Marks]

From: Marilyn R Marks
Sent: Saturday, April 17, 2010 2:59 PM
To: 'Ward Hauenstein'; Bob Leatherman.
Cc: 'Elizabeth Milias'; 'Harvie Branscomb'; 'Millard Zimet'

Subject: City Complicity in Misinformation campaign and request of new Election Commission

Bob and Ward,
I had to retrieve the attached  [following] document for my litigation, and as I reread it, I thought that it was a good example, without too many technicalities, of the cultural issue I mentioned in my last email to you. See the guest editorial printed in the Aspen Times on September 17, which I have attached with my footnotes of the numerous misrepresentations.

This almost completely false editorial written by True Ballot executive, Caleb Kleppner, was written with the apparent approval and involvement of City officials. Kleppner delivered a draft for review to Kathryn Koch on September 2 for her approval.

The City staff knew or had reason to know that these statements are materially misleading, and did not attempt to stop them from being printed. The city’s vendor TBI knew these statements to be false as well.

Upon the publication of the editorial, I made my objections known to the City and to True Ballot. Harvie Branscomb wrote to TrueBallot asking for corrections as well.

Both organizations refused to publicly correct the clear misrepresentations, although they made no claims to us that their statements were correct as written.

This is the type of information battle we have had to attempt to combat. But only through the small efforts of letters to the editor. Note that this was published at the approximate time of the prior Election Commission being denied access to independent counsel. Given the kind of misrepresentations in this document, the need for independent perspective is surely quite clear.

The previous election Commission is criticized for not seeking an additional written view of their duties from City staff who, by this time had shown their complicity with the efforts to misinform and mislead. Also, there was an obvious and inherent conflict of interest by city attorneys wrote and opined on the election procedures and acted as one of the judges for certifying the election. It would have been improper for the EC to ask clearly conflicted attorneys to opine on the EC roles and responsibilities, given the state of the election irregularities.

I am requesting that you review this document with staff and ask that a correcting published document be written and submitted to the Aspen Times. To leave such false information and misrepresentations in the public record is disingenuous and self-serving at best. It is most certainly irresponsible.

I see it as part of the duty of the election commission to clear up misinformation from the past and help the information flow to the public.

Thank you for your service.
Marilyn Marks

----------------------------------------
(Caleb Kleppner submitted a draft of this editorial to Kathryn Koch on September 2 for approval prior to publication)
Aspen Times
Thursday, September 17, 2009

Marks' reply to Aspen regarding motion to reconsider: Aspen Election Transparency

On April 13, The attorney for Marilyn Marks filed a response to the City of Aspen response to her motion to reconsider. The text of the response is below the break and follows Marilyn Marks' comments written to accompany the filing as provided to the Aspen Election Commission.


The original pdf of the filing is available by clicking here.

The filing argues that 1) Colorado law does not allow the presumption that ballots cease to be anonymous once they are voted; 2) the TIFF files are not “ballots,” and they should not be treated as “ballots” for purposes of municipal statutes; 3) contests are not the only circumstance in which municipal statute allows ballots to be removed from the ballot box; 4) “substantial compliance” is the appropriate standard for the Defendant to observe in performing her duties under Title 31, and allowing an open records law inspection of the TIFF files is consistent with substantial compliance; and 5) the Court’s review of the legislative history of the municipal law is particularly appropriate in view of the Court’s decision to interpret the term, “ballots,” to include the TIFF files.

Link to previous filings in the Marks v. Koch Aspen Election Transparency Litigation:
http://aspenelectionreview.blogspot.com/2010/04/memorandum-in-opposition-to-motion-to.html

Second Meeting of Aspen 2010 Election Commission- comments

At 3PM on Thursday April 8, 2010 the Aspen Election Commission met with 5 people in attendance- two of them the Aspen City Attorneys and other others being Jack Johnson (ex-City Council and currently a candidate for County Commissioner), Elizabeth Milias (ex-Aspen Election Commission) and Harvie Branscomb (Eagle County Canvass Board and editor of this blog).

The meeting was very calm and reasonable and productive.  The Commission decided to take in written complaints/compliments/suggestions by May 8 and looks like it will have a public brainstorming session sometime after that. The Commission primarily discussed how it would interface with the public, how it might help avoid any retribution for coming forward with complaints, and whether or not it would weigh in on the method of IRV voting or the choice of voting methods. Apparently one conclusion was to wait for a determination of what voting system would be used in the next election before further discussing IRV related details, but in the mean time to ask citizens to come forward with comments.
--

[Here are comments on the meeting by Elizabeth Milias, followed by an email sent by Harvie Branscomb to the Commission following the meeting.]

I found the following to be interesting points made at yesterday's meeting of Aspen's Election Commission:

• The "confidential memo" that outlines the EC's roles and responsibilities (as prepared by City Attorney John Worcester) remains confidential and privileged. The EC has received a copy, but its contents are not yet available to the public. It is up to Council to release this document to the public.

• The EC has determined that its individual members can have private meetings with citizens who wish to discuss election issues.

• The EC recognizes that there exists the potential for reprisals against citizens who bring forth election complaints and challenges, but the commission will not be part of this behavior.

• Citizens are welcome to write, call, present to, and lobby EC members regarding election issues, and despite Marilyn Marks being deemed "corrupt" for doing just this following the May 2009 election, this is now ok.

UNDERSTANDING WHAT “SECRET BALLOT” MEANS IN COLORADO - an illustrative chart

		UNDERSTANDING WHAT “SECRET BALLOT” MEANS IN COLORADO THE INTERSECTION OF PRIVACY (SECRECY IN VOTING) AND ANONYMOUS BALLOTS (the character of the process of voting interacts with the character of the produced record -these combine to produce election integrity while allowing full records transparency) SECRET DOES NOT EQUAL ANONYMITY! ANONYMOUS BALLOT (NO VOTER IDENTITY)
		NO	YES
PRIVACY (SECRECY IN VOTING)	YES	Not Anonymous but Private Example: Ballot with a serial number that can be tied to the poll book number. Ballot is voted in private (no one watching). Someone with access to poll book and ballot can learn how the voter votes. Was legal in Colorado until 1946, now illegal. Ex: Ballot marked by voter to identify own ballot  (illegal)	Anonymous and Private Example: A ballot marked in private. No voluntary or involuntary identifying marks. (A proper and legal ballot.) Ballot may be viewed by the public; images of ballots may be given to the public without sacrificing the privacy of the vote. Allows full public verifiability of an election.
	NO	Not Anonymous and Not Private Ex: Ballot with a serial number tied to the pollbook marked within view of a poll worker. (illegal) Ex: Ballot purposely marked with voter’s initials while candidate looks on. (illegal)	Anonymous but Not Private Ex. Ballot with no identifying marks, but poll worker watches the voter marking his ballot. (illegal) Ex: Voting in clerk’s office with no privacy booth, where other voters or candidates can watch. (illegal)

Memorandum in Opposition to Motion to Amend Judgment- Aspen Transparency Litigation- April 6 2010

link to previous filings in this case: http://aspenelectionreview.blogspot.com/2010/03/marks-v-koch-plaintiff-files-for.html

Download the pdf of the filing by clicking here, or read it below the break and below the comments.

Submitted comments by Mike LaBonte,  a Massachusetts citizen election official, Al Kolwicz of Colorado Voter Group, and Harvie Branscomb (editor of this blog).

What’s being hidden, and why? (Letter to Editor by Al Kolwicz) Aspen Transparency Litigation

What’s being hidden, and why?

Does anybody know why the City of Aspen is fighting so desperately to prevent public review of the May 2009 election files?

Is there something within the computer files that if disclosed could embarrass City officials?  If so, City resources shouldn’t be used to protect these officials.

Are officials misusing the powers of government for political purposes?  Are they intending to crush anyone who opposes their objectives?

Let’s think about it.  The City has refused a second public viewing of scans of ballots.  Nowhere in Colorado’s Constitution or Open Records Act, or Colorado’s election law or Aspen municipal codes, are officials exempt from producing these files (not the ballots) in response to an Open Records request.  Yet Aspen has refused every such request.

conversations with the new Election Commissioners- Aspen Election Citizen Oversight

[email by Harvie Branscomb to Aspen Election Commissioners April 7, 2010- three other messages to the EC follow, all after the break]
--response received from Bob Leatherman, Commissioner--
Your email is acknowledged and has been read. Thank you for taking the time to put it together. Leatherman
--
Kathryn, Bob and Ward,

Sorry I couldn’t  attend the organizational meeting of the Election Commission.  I will try to attend tomorrow’s meeting.  I am an unpaid citizen volunteer who has spent almost full time working on the aftermath of the historic Aspen single ballot audit-able election since May 12 2009 (Note that the fact that it was IRV is of relatively less interest to me).

I have served many times as Canvass Board Member for Eagle County Elections.   I have great hopes that some of the serious advantages of your May 5 2009  election, as well as most of the deficiencies, particularly in the public process and documentation areas,  will be addressed with your appointment.  Clearly the previous Election Commission did not and probably was not allowed to serve the public with a reasonable process. I hope you will take steps to make sure that does not happen to your election commission, even though it has been appointed under similar circumstances, contrary to the terms of the Aspen Charter. One hopes that this does not mean you will have to operate on tip-toes to avoid stepping on someone’s idea of politically correct.

Aspen Daily News and Aspen Times polls regarding Marilyn Marks' transparency suit

Here is the Aspen Times poll as of April 3, 2010:
http://apps.aspentimes.com/utils/polling/poll_results.php?poll_ident=1744

Which side would you like to see prevail in the ongoing legal wrangling over Aspen’s election ballots?

The city of Aspen		48.65% (198)
Marilyn Marks		26.29% (107)
Who cares?		25.06% (102)
407 votes

 Aspen Daily News poll:

Should the city of Aspen seek to recoup more than $50,000 from Marilyn Marks after her suit against the city was thrown out?

Yes  64% (242 votes)

No   36% (134 votes)

Total votes: 376

Above are the poll results as of April 3 2010. The live poll can be found at this link:  http://www.aspendailynews.com/poll/should-city-aspen-se

Site Navigation by Timeline - Use this article to enter this site through links to a list of events

Timeline for Aspen Election Review:  (updated 3/24/2010)

 [ this document will be frequently updated with both new events and older materials which have not yet been linked]

Letter by Millard Zimet to Aspen Election Commissioners -

MILLARD J. ZIMET

1315 Mountain View Drive

Aspen, CO 81611

millard [at] sopris [dot] net

Via Email:

Kathryn Koch

Ward Hauenstein

Robert Leatherman

April 2, 2010

Dear Aspen Election Commissioners:

I’m sorry I was out of town for your meeting held earlier this week.  I’m writing to introduce myself to the new Election Commission members, and to briefly explain the issues that have concerned me arising from the May 2009 election.

My initial concern was whether other people could tell how I voted. The Colorado Constitution requires secret ballot elections, and living in a small town I want to make sure my voting choices remain anonymous. My concern was heightened when I learned that the City of Aspen had not shuffled the ballots and had publicly released both the precinct logs (showing the names and order of the voters as they signed in at each precinct) and the strings generated from the ballot scans (showing how each ballot was voted). I investigated and determined that, because the ballots and strings hadn’t been shuffled, if I could find my string then I could see how the voters listed near me on my precinct log voted, and vice versa.  So I concluded that my ballot was not secure.  That led me to file my complaint dated August 30, 2009, because I felt (and still do feel) that the City of Aspen violated my constitutional right (as well as the constitutional rights of all Aspen voters) to a secret ballot election.  The City of Aspen has never responded in writing to my complaint, and has never denied the facts alleged in my complaint.

to aspenpost.net blogger/editor Michael Conniff (a.k.a. the Con-Man)

to aspenpost.net blogger/editor Michael Conniff (a.k.a. the Con-Man)

Michael your penchant for going negative astounds and disappoints me. I left town the day after getting you and Marilyn together for a pleasant and amiable chat and before I managed to return from a very important meeting on election auditing and citizen activism in DC, you are fighting her again. Did she start this recent fight? I don't think so. All she did is respond to your initial faint praise which she and I both recognized as the most you could possibly do to be nice to her. And we were both thankful for your effort.

I appreciate that you appreciate her work on election reform in which you say she is helping me. I need all the help I can get but Marilyn is so well suited to pursuing election reforms I can only say I am providing her some minor help with my full time volunteer effort. There was no lack of transparency of the election commission. NONE. ZIP. NADA. In fact there was plenty of transparency- thousands of pages of it. I do not believe you read all of THOSE pages. (continued)

City looks to profit from citizen activist temporary loss in court

Another perspective on this news: Aspen decides to charge $385/hr for their salaried lawyers' time.  This would, if the court agrees, net Aspen a nice profit on their effort to prevent access to public records and deposition of the election contractor by their citizens.  (opinion by Harvie Branscomb)

http://www.aspendailynews.com/section/home/139875

City looks to hit Marks with $70K legal bill

by Curtis Wackerle, Aspen Daily News Staff Writer

Friday, March 26, 2010

The city of Aspen is seeking $70,850 from Marilyn Marks to recoup attorneys’ fees and other expenses related to her lawsuit seeking digital copies of ballots from last May’s election.

In a motion filed Thursday in Pitkin County District Court, the city said that attorney John Worcester spent 129 hours on the case, while special counsel Jim True spent 45 hours on the case. Although Worcester and True are both on salary, another Aspen attorney, Maria Morrow, wrote in an affidavit that attorneys of Worcester and True’s “skill and experience” could reasonably bill out at the rate of $385 “in this area for a claim of this nature.” This brings the total attorneys’ fees to $67,047.

Punitive process: Aspen to voters, in a nutshell (letter by Harvie Branscomb)

Punitive process

Thursday, March 25, 2010

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Editor:

Aspen to voters, in a nutshell: Trust us. Of course we will do no wrong. We tried a really cool, completely new, election system. We promised transparency but didn’t fully give it to you, sorry. We gave you only enough to give you cause for concern, but not enough for confidence. If you are concerned, though, don’t come to us. We won’t respond positively to you, but you will hear jokes about how much of our time you are wasting. We hope you like jokes. Don’t go to the secretary of state, either. They don’t have jurisdiction over our election. We do. If you still have concerns don’t go to the Election Commission. Even if they listen to you, we can and will make them disappear. Don’t go to the court system either, because if you do we will do everything we can to dismiss your case; we will try to prevent you from getting the information you need; we will see if we can demonize you by making claims about your motives in the legal briefs; we will sue you afterward to punish you for trying. It will cost you a bundle to even try to get a day in court, and we will do our best to make sure you fail and no one else like you ever asks again.

Harvie Branscomb
El Jebel