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.
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As you recall, the IRV Task Force spent months of arduous and complex work to devise the system that was approved March 9, just barely in time for the May elections. No one litigated the Federal, State and local legal issues which are problematic in our form of IRV that resulted from those months of well-intentioned work. That, coupled with the dismissal of the election commission who could have reviewed the problems have resulted in the issues going unaddressed to my knowledge.

The months of study I have done of the methodologies and processes in the May election cause me more concern about the scores of uncorrected violations of applicable law. Addressing IRV does not begin to resolve them all, but it at least reduces the complexity, which exacerbates the other irregularities.

Timing—

Given that the Charter must be changed even to keep IRV in place for the next election as an alternative, that would require a Council approved method and presumably new procedures by mid September. My months of experience in working with IRV would suggest that finding an acceptable IRV method that meets state law and local law for the Council race will be difficult indeed, and will require a team of legal and mathematical consultants, and months of work to bring the public along.

The IRV Task Force did not fully understand the constraints and complexities of the IRV system, and it took six months to create a very flawed system, with embedded problems that were not understood at the time.

If any change is possible for the 2011 elections, I believe that it must be addressed either by Council or in the courts right away. But leaving IRV unchanged is not an option if the method is to comply with the law.

Key Issues—

--Aspen Charter calls for IRV for the Council race. IRV is not a term that applies to multi-seat races. A different type of “ranked choice voting” must be selected by the voters if that is what the voters want.

--Aspen Charter calls for winners to be selected by 50%+1 of votes cast. Aspen voters indicated in the last two Charter amendments on the subject that they want majority support for their elected officials. That concept is not consistent with IRV. While Ireland won a majority after redistribution of votes, no Council candidate reached the predetermined and required threshold of 50%+1. IRV in the Council race became a “plurality” not a majority, as required by the Charter. (The mayor’s race was also susceptible to this problem, but Mick’s number of votes overcame that potential issue. The problem must be addressed for both mayor and Council future races.)

-Colorado Law Prohibits Aspen’s form of Council IRV—Colorado law allows a multi-seat race to take place under IRV- like rules so long as a voter’s lower rankings do not hurt the higher ranked candidate. (As discussed below by election official and election quality advocate Mike LaBonte, of Haverhill, MA, Aspen’s style of Council IRV is easily demonstrated to violate the requirements.)

--Non-monotonicity is legally questionable. The Federal constitutionality of methods that allow non-monotonicity (of the type that happened to Behrendt) may be challenged in Federal court before the next election, and be pending in 2011 before the court. IRV (mayor’s race and CC race are both subject to non-monotonicity.)

Violations of Secretary of State Election Rules The considerable “Election Rules of the Colorado Secretary of State” (http://www.sos.state.co.us/pubs/rule_making/8_ccr_1505_1_sos_election_rules_as_amended_12_08_09.pdf  ) were appropriate adopted by adoption Sec 2.26.030 of Aspen’s Municipal Code. However, many of the rules were not adhered to in the May election. It takes only a few minutes of reading to see the scores of violations encountered in the May election. For example, the True Ballot system was not certified and tested as required by the SOS. As you may know, numerous software errors and problems have been noted as a result of using inadequately tested software.

It seems clear that if IRV is maintained for 2011, hand counting will have to be performed as there is inadequate time and money to debug and reconfigure the TrueBallot system and have it certified, as the law requires.

There are scores of other requirements that also must be adhered to in order to conduct properly controlled and transparent elections. Preparing to do so will take months of administrative efforts and changes. May’s election violated laws on ballot security, voting privacy, early voting, absentee voting, voter intent rules, voting system certification, Logic and Accuracy Testing, and post election audits to name a few. The amount of remediation work should not be underestimated.

Aspen voters deserve an election system that is well-planned, well-documented and in compliance with all election laws. We are far from that state today. Waiting until November to address the official status of IRV will create a host of additional complexities to prepare for the May election as “keeping the old IRV” is not an option.

Recommendation:

1. Conduct a special election in late spring or early summer to allow voters to choose between IRV /Ranked Choice Voting concept and traditional run-offs. (Would require new and possibly temporary IRV/Ranked choice Charter language?)

2. If IR/Ranked Choice prevails, begin work to modify Charter language and procedures for voter approval in November, if new Charter language needs additional revision to comply with procedures. November ballot may need an option to return to traditional run-off it new IRV procedures are not satisfactory to voters.
(I realize this is a convoluted and complex recommendation. Perhaps CoA legal counsel can create a more streamlined approach. The problem is that the current method cannot be retained, and any new IRV method will take voter approval. Waiting until November to know what the voters want likely will not leave enough time between November and March to prepare for the May election with procedure manuals and new vote tabulation procedures if the voters choose to keep IRV/Ranked Choice.)

Regardless of whether my recommendation above is the best approach, if we are to have any other than a legally prohibited ranked choice voting method in May 2011, this subject needs immediate review and direction.

See below for a report on How Aspen Violated Colorado Ranked Choice Voting Rules.

(I will be unable to speak to this in public comment time at Council session. Therefore I wanted to deliver this for your earliest consideration.)

Thank you for your consideration.

Marilyn Marks

(Following article excerpted from Harvie Branscomb’s Aspen Election Blog at http://aspenelectionreview.blogspot.com/  )


How Aspen Violated Colorado Ranked Choice Voting Rules

(http://aspenelectionreview.blogspot.com/2010/01/how-aspen-violated-colorado-ranked.html )

[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