[The following is a letter from the Colorado Secretary of State concerning the use of serial numbers on ballots and ballot image accessibility to the public. The yellow annotation is by H. Branscomb to focus on the ballot image transparency issue. The letter to the editor in the Aspen Daily News linked here is based on the following letter from the Secretary. http://www.aspendailynews.com/section/letter-editor/138940 ]
The original pdf of the Secretary's letter is here: Buescher to Kolwicz
Friday, January 29, 2010
Report prepared for Aspen by Scott Adler on Release of Cast Election Ballots for Public Inspection
The following is a Disclosure of Testimony by the City of Aspen for Marks v. Koch for expert witness E. Scott Adler. This document was partially converted for the web by H. Branscomb and annotated with yellow background on some key phrases. The original and complete pdf is located here: Disclosure of Testimony. Please report any transcription errors to H. Branscomb as a comment to this blog.
Assessing the Impact of the Release of Cast Election Ballots for Public Inspection
Report prepared for the matter of Marks v. Koch, 09 CV 294
E. Scott Adler
Associate Professor of Political Science
University of Colorado, Boulder
January 21, 2010
REPORT OF SUMMARY OF EXPERT WITNESS TESTIMONY
It is my contention that the release of election ballots or ballot images for public inspection would cause substantial injury to the public interest. I base this position on my knowledge of research on the history of American elections and studies of contemporary voter behavior, election administration and public opinion.
Latest Questions for City Attorney regarding elections and Marks v. Koch
[We are collecting questions and answers about Aspen's election and also public verifiability of elections in general on this site. Please contribute your own questions (anonymous questions ok). Also please participate in discussing answers to these questions (answer please under your own real name). You may use the blog comments for this or contact Harvie Branscomb at 970-9631369. Thanks]
New Questions asked by Harvie Branscomb based on developments since January 1st:
35: Question: The Colorado Bar Association says it doesn't address the condition that the Election Commission (EC) and the City are directly adverse to one another. Why wasn't this possibility considered in the query to the Ethics Committee?
36: Question: The Ethics Committee replied that it doesn't know if the EC is a client of the City Attorney. Is the EC a client of the City Attorney? If the City Attorney has no answer for this, how would one find out the answer to this question?
37: Question: If the EC is a client of the City Attorney is that representation subject to the consent of the Election Commission, as the CBA indicates?
38: Question: If the EC refuses the representation of the City Attorney, does it have a right to counsel, paid for by the City?
39: Question: If the EC is not a client of the City Attorney does it have a right to counsel? Is it expected to pay independently for that counsel?
40: Question: Why would the City want to file a motion for a protective order to prevent Marilyn Marks from obtaining testimony from the True Ballot Inc. by deposition? What public interest could be served by blocking this communication?
41: Question: Why is the City Attorney complaining to Judge Boyd about the cost of defending the litigation against the City Clerk for inspection of ballot images when the City has taken steps which have caused an increase in the cost of litigation such as filing extensive briefs, when the cost of litigation is a direct cost to Marilyn Marks but most of which is an indirect cost to the City covered by salary and overhead?
42: Question: Why can't the city provide copies of the spoiled ballots which are classified as "other election records"? Why can't the city provide information about the seals which protect the election records?
[ the Open Records Requests and City responses will be posted elsewhere on this site. H. Branscomb ]
---- previous questions are included below the break ----- (no answers to questions has been received from the city as of Jan 29, 2010)
New Questions asked by Harvie Branscomb based on developments since January 1st:
35: Question: The Colorado Bar Association says it doesn't address the condition that the Election Commission (EC) and the City are directly adverse to one another. Why wasn't this possibility considered in the query to the Ethics Committee?
36: Question: The Ethics Committee replied that it doesn't know if the EC is a client of the City Attorney. Is the EC a client of the City Attorney? If the City Attorney has no answer for this, how would one find out the answer to this question?
37: Question: If the EC is a client of the City Attorney is that representation subject to the consent of the Election Commission, as the CBA indicates?
38: Question: If the EC refuses the representation of the City Attorney, does it have a right to counsel, paid for by the City?
39: Question: If the EC is not a client of the City Attorney does it have a right to counsel? Is it expected to pay independently for that counsel?
40: Question: Why would the City want to file a motion for a protective order to prevent Marilyn Marks from obtaining testimony from the True Ballot Inc. by deposition? What public interest could be served by blocking this communication?
41: Question: Why is the City Attorney complaining to Judge Boyd about the cost of defending the litigation against the City Clerk for inspection of ballot images when the City has taken steps which have caused an increase in the cost of litigation such as filing extensive briefs, when the cost of litigation is a direct cost to Marilyn Marks but most of which is an indirect cost to the City covered by salary and overhead?
42: Question: Why can't the city provide copies of the spoiled ballots which are classified as "other election records"? Why can't the city provide information about the seals which protect the election records?
[ the Open Records Requests and City responses will be posted elsewhere on this site. H. Branscomb ]
---- previous questions are included below the break ----- (no answers to questions has been received from the city as of Jan 29, 2010)
Colorado Bar Association Answers Aspen City Attorney on Conflict of Interest
Aspen Daily News coverage of the Colorado Bar Association Ethics Committee reply to a request from Aspen to advise about conflict of interest for a city employed attorney advising the Aspen Election Commission is here:
http://www.aspendailynews.com/section/home/138642
Note that although not covered in the above article, the letter does not advise that there is no conflict of interest. It also says that the Ethics Committee was not informed that the City and Election Commission are directly adverse to one another. This might be a misrepresentation of what could occur Aspen were the Election Commission to take any action viewed as adverse by the City Council.
The letter does say that if the Election Commission is a "client" of the city attorney then the Election Commission's consent is required if there is a significant risk of conflict of interest. I think this important finding ought to have been reported in the above article. The Ethics Committee declined to advise on whether or not the EC is a "client" of the city attorney as this is a matter of law, and apparently would have to be determined in court. If the EC is a client, they are allowed to decline to be served by the City Attorney. If not, then they presumably have the right to have access to counsel. As I read it, either way, the City would not be able to force the EC to be represented by the City Attorney.
[above is opinion by Harvie Branscomb]
The actual letter from the Colorado Bar Association Ethics Committee regarding conflict of interest of a city attorney in advising both the City Council and the Election Commission is below the break.
http://www.aspendailynews.com/section/home/138642
Note that although not covered in the above article, the letter does not advise that there is no conflict of interest. It also says that the Ethics Committee was not informed that the City and Election Commission are directly adverse to one another. This might be a misrepresentation of what could occur Aspen were the Election Commission to take any action viewed as adverse by the City Council.
The letter does say that if the Election Commission is a "client" of the city attorney then the Election Commission's consent is required if there is a significant risk of conflict of interest. I think this important finding ought to have been reported in the above article. The Ethics Committee declined to advise on whether or not the EC is a "client" of the city attorney as this is a matter of law, and apparently would have to be determined in court. If the EC is a client, they are allowed to decline to be served by the City Attorney. If not, then they presumably have the right to have access to counsel. As I read it, either way, the City would not be able to force the EC to be represented by the City Attorney.
[above is opinion by Harvie Branscomb]
The actual letter from the Colorado Bar Association Ethics Committee regarding conflict of interest of a city attorney in advising both the City Council and the Election Commission is below the break.
Thursday, January 28, 2010
2nd conference - Jan. 28, 2010 - Marks v. Koch - Election Transparency Litigation - Aspen CO-
Marilyn Marks filed suit against the City of Aspen Municipal Clerk to gain recourse for the City's refusal to provide access to a CD containing recorded images of the ballots which were cast in Aspen Colorado's May 5 municipal election. That election was the first in Colorado employing IRV voting techniques and one of the first in the country providing individual ballot accessibility for auditing. Each ballot was individually interpreted and a record of the interpretations was made public. A corresponding CD of scanned ballot images was created but not made public. The suit seeks to gain access to the historic CD in order to be able to complete a public verification of the election and to pave the way for future election verifiability by understanding the nature of any opposition to ballot image verification in public.
The original filings in the case including the City's motion to dismiss is contained in the following link:
http://aspenelectionreview.blogspot.com/2009/12/election-transparency-litigation-marks.html
A first trial management conference took place January 8 in Aspen Colorado. This led to an order to try a conference call with True Ballot Inc. in order to establish stipulated facts in lieu of testimony by True Ballot Inc. (the company which was retained by the City to tabulate the election.)
A second trial management conference took place in Glenwood Springs on Jan. 28. During that conference the Judge did not decide on the motion to dismiss. He ruled to allow a deposition of True Ballot Inc. The City of Aspen advised that it would file a motion for a protective order preventing the deposition. A further trial management conference was set for Feb. 18 and a tentative trial date was set for March 22 and 23. A ten page double space limit was set on filings regarding the motion for a protective order.
The transcript from the first case management conference with Judge Boyd in Aspen Colorado on Jan.8 2010 is here: http://aspenelectionreview.blogspot.com/2010/01/marks-v-koch-ballot-imagetransparency.html
Below the break is the transcript of the second conference with Judge Boyd in Glenwood Springs on Jan 28 2010.
[above is opinion based on the understanding of H. Branscomb]
The original filings in the case including the City's motion to dismiss is contained in the following link:
http://aspenelectionreview.blogspot.com/2009/12/election-transparency-litigation-marks.html
A first trial management conference took place January 8 in Aspen Colorado. This led to an order to try a conference call with True Ballot Inc. in order to establish stipulated facts in lieu of testimony by True Ballot Inc. (the company which was retained by the City to tabulate the election.)
A second trial management conference took place in Glenwood Springs on Jan. 28. During that conference the Judge did not decide on the motion to dismiss. He ruled to allow a deposition of True Ballot Inc. The City of Aspen advised that it would file a motion for a protective order preventing the deposition. A further trial management conference was set for Feb. 18 and a tentative trial date was set for March 22 and 23. A ten page double space limit was set on filings regarding the motion for a protective order.
The transcript from the first case management conference with Judge Boyd in Aspen Colorado on Jan.8 2010 is here: http://aspenelectionreview.blogspot.com/2010/01/marks-v-koch-ballot-imagetransparency.html
Below the break is the transcript of the second conference with Judge Boyd in Glenwood Springs on Jan 28 2010.
[above is opinion based on the understanding of H. Branscomb]
1st conference - Jan 8 2010 - Marks v. Koch- Ballot ImageTransparency Litigation - Aspen Colorado
Marilyn Marks filed suit against the City of Aspen Municipal Clerk to gain recourse for the City's refusal to provide access to a CD containing recorded images of the ballots which were cast in Aspen Colorado's May 5 municipal election. That election was the first in Colorado employing IRV voting techniques and one of the first in the country providing individual ballot accessibility for auditing. Each ballot was individually interpreted and a record of the interpretations was made public. A corresponding CD of scanned ballot images was created but not made public. The suit seeks to gain access to the historic CD in order to be able to complete a public verification of the election and to pave the way for future election verifiability by understanding the nature of any opposition to ballot image verification in public.
The original filings in the case including the City's motion to dismiss is contained in the following link:
http://aspenelectionreview.blogspot.com/2009/12/election-transparency-litigation-marks.html
A first trial management conference took place January 8 in Aspen Colorado. This led to an order to try a conference call with True Ballot Inc. in order to establish stipulated facts in lieu of testimony by True Ballot Inc. (the company which was retained by the City to tabulate the election.)
A second trial management conference took place in Glenwood Springs on Jan. 28. During that conference the Judge did not decide on the motion to dismiss. He ruled to allow a deposition of True Ballot Inc. The City of Aspen advised that it would file a motion for a protective order preventing the deposition. A further trial management conference was set for Feb. 18 and a tentative trial date was set for March 22 and 23. A ten page double space limit was set on filings regarding the motion for a protective order. Below the break is the transcript from a case management conference with Judge Boyd in Aspen Colorado on Jan.8 2010:
[above is opinion based on the understanding of H. Branscomb]
The original filings in the case including the City's motion to dismiss is contained in the following link:
http://aspenelectionreview.blogspot.com/2009/12/election-transparency-litigation-marks.html
A first trial management conference took place January 8 in Aspen Colorado. This led to an order to try a conference call with True Ballot Inc. in order to establish stipulated facts in lieu of testimony by True Ballot Inc. (the company which was retained by the City to tabulate the election.)
A second trial management conference took place in Glenwood Springs on Jan. 28. During that conference the Judge did not decide on the motion to dismiss. He ruled to allow a deposition of True Ballot Inc. The City of Aspen advised that it would file a motion for a protective order preventing the deposition. A further trial management conference was set for Feb. 18 and a tentative trial date was set for March 22 and 23. A ten page double space limit was set on filings regarding the motion for a protective order. Below the break is the transcript from a case management conference with Judge Boyd in Aspen Colorado on Jan.8 2010:
[above is opinion based on the understanding of H. Branscomb]
Saturday, January 16, 2010
Letter to City Council re: IRV and Needed Charter Changes
From: Marilyn R Marks
Sent: Saturday, January 16, 2010 9:04 AM
To: 'micki@ci.aspen.co.us' ; 'stevesk@ci.aspen.co.us '; 'Torre@ci.aspen.co.us '; 'dwayner@ci.aspen.co.us '; 'Derek.Johnson@ci.aspen.co.us'
Cc: 'public_comment@ci.aspen.co.us'; 'John Worcester'; 'Jim True'; 'Kathryn Koch'
Subject: Follow up to Neil Siegel letter re: voting methods
Mayor Ireland and Council members Johnson, Romero, Torre, and Skadron:
If you did not see Neil Siegel’s letter in the Aspen Times Friday, I direct your attention to that letter at http://www.aspentimes.com/article/20100115/LETTER/100119881/1020&parentprofile=1061 , where he encourages Council to address the IRV election process decisions, as the voters have also asked. I want to add my voice to his, to again ask that this issue be addressed immediately. There is little time left to make an effective change in time for the May 2011 election, should the voters want to retain IRV. Obviously, a change back to traditional runoffs does not require as much planning time.
Aspen voters appeared basically split on the question of IRV in November. It seems that for that reason and the legal insufficiency of the current IRV system, the voting system must be addressed right away.
When I presented my overview of IRV issues to you in July, I stated that if the City started at that time there would be little time to adequately address the Charter and Code changes necessary to even offer an IRV methodology for May 2011 that complies with state and local law. Now, six months later, I have not seen any progress.
Sent: Saturday, January 16, 2010 9:04 AM
To: 'micki@ci.aspen.co.us' ; 'stevesk@ci.aspen.co.us '; 'Torre@ci.aspen.co.us '; 'dwayner@ci.aspen.co.us '; 'Derek.Johnson@ci.aspen.co.us'
Cc: 'public_comment@ci.aspen.co.us'; 'John Worcester'; 'Jim True'; 'Kathryn Koch'
Subject: Follow up to Neil Siegel letter re: voting methods
Mayor Ireland and Council members Johnson, Romero, Torre, and Skadron:
If you did not see Neil Siegel’s letter in the Aspen Times Friday, I direct your attention to that letter at http://www.aspentimes.com/article/20100115/LETTER/100119881/1020&parentprofile=1061 , where he encourages Council to address the IRV election process decisions, as the voters have also asked. I want to add my voice to his, to again ask that this issue be addressed immediately. There is little time left to make an effective change in time for the May 2011 election, should the voters want to retain IRV. Obviously, a change back to traditional runoffs does not require as much planning time.
Aspen voters appeared basically split on the question of IRV in November. It seems that for that reason and the legal insufficiency of the current IRV system, the voting system must be addressed right away.
When I presented my overview of IRV issues to you in July, I stated that if the City started at that time there would be little time to adequately address the Charter and Code changes necessary to even offer an IRV methodology for May 2011 that complies with state and local law. Now, six months later, I have not seen any progress.
Monday, January 4, 2010
Add yours to this list of questions about Aspen's May 5 IRV election
[We are collecting questions and answers about Aspen's election and also public verifiability of elections in general on this site. Please contribute your own questions (anonymous questions ok). Also please participate in discussing answers to these questions (answer please under your own real name). You may use the blog comments for this or contact Harvie Branscomb at 970-9631369. Thanks]
1.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.
1.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.
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