Defendants reply to Surreply regarding Protective Order - Marks v. Koch (Aspen Election Transparency Suit)

Below the break is the memorandum by the Aspen City Attorney responding to the Plaintiff's surreply regarding the City's request for a protective order to prevent or to limit the deposition of election tabulation contractor TrueBallot Inc. by Marilyn Marks.  This is the fifth document in the series discussing the access to TrueBallot's testimony.  The City again fails to acknowledge that Plaintiff (and the public) has a reason to inspect the ballot images- namely to be able to understand and be able to correct for errors and irregularities in the election system to protect the quality of the election process for the future. The City acknowledges only two possible such motivations- contesting the election or determining how individual voters voted.  The city has not only mis-characterized Marilyn Marks' motives,  but in addition, the motivation for requesting public information by CORA is not relevant according to law.

Above is opinion by Harvie Branscomb.
Previous coverage of the case is found here: http://aspenelectionreview.blogspot.com/2010/02/plaintiffs-surreply-regarding.html

Plaintiff's Surreply regarding Defendant's Motion to protect TrueBallot from deposition - Marks v. Koch (Aspen Election Transparency Suit)

On Feb. 23, 2010, the attorney for Marilyn Marks filed a 3 page memorandum further pursuing opposition to the City of Aspen request for a protective order to prevent deposition of TrueBallot, Inc. by Marilyn Marks. This memorandum, shown here below the break, refers to additional case law which is pertinent to what argument is to be used in the balancing test which would form the basis for denying the Plaintiff the right to obtain testimony by deposition.

Above is opinion by Harvie Branscomb.
Click here for the original pdf of the SurreplyToMotionForProtectiveOrder.pdf
Previous coverage of the Marks v. Koch transparency case is located here: http://aspenelectionreview.blogspot.com/2010/02/reply-in-support-of-defendants-motion.html

2010 links to media coverage of Aspen election activity and review

 Because of the massive coverage on this topic from 2009 the archive of the past year has been separated into another post here: http://aspenelectionreview.blogspot.com/2009/08/links-to-media-discussion-of-ballot.html

Below the break are links to 2010 coverage:

Reply in Support of Defendant’s Motion for a Protective Order- Marks v. Koch (Aspen Election Transparency Suit)

On February 16, 2010 the Aspen City attorneys filed a memorandum in support of their motion for a protective order to prevent or limit Marilyn Marks from deposing TrueBallot Inc. staff (who were election consultants to the City of Aspen and were personally involved in tabulating the Aspen May 5 IRV election as well as creating the CD containing ballot images of the 2,544 ballots cast in that election).  Marilyn Marks seeks to inspect the CD containing the ballot images.

The memorandum by the Defendant appears to seek to impair the discovery of facts in the course of the litigation.  The Defendant is arguing that the Plaintiff is attempting to contest the election outside of legal time constraints and making suggestions about that motive.  Defendant is also appears to be making the argument that benefit to the public interest is not among the possible  reasons to inspect ballot images, and that testimony by TrueBallot may show "errors and irregularities" which may be of interest, but not relevant to the case at bar. On the other hand, the possibility of learning about "errors and irregularities" does seem to me to be a reason to inspect the ballot images.

Above is opinion by Harvie Branscomb.  Below the break is the memorandum.  Here is the link to the earlier coverage of the case: http://aspenelectionreview.blogspot.com/2010/02/marks-v-koch-plaintiff-response-to-city.html

Here is a link to the original pdf of the Reply Memorandum. What is below was transcribed from the pdf which is in (non search-able) image format. Please report any errors in what is below to harvie -at- media.mit.edu.

Court Requested to Permit Video Recording of Marks v. Koch (Aspen Election Transparency Suit)

Given the widespread interest in the historic Aspen May 5 IRV election,and the subsequent transparency litigation to obtain access to a CD of recorded scanned ballots, election officials and election quality advocates across the state and the country, and GrassRoots TV, the local public access station, have requested that Judge Boyd allow non-commercial recording to be permitted for the March 22/23 hearing.

The request has gained the support of several election quality advocacy groups and publications.  If the court were to grant permission for the "Expanded Media Coverage" the benefit would be transparency on the subject of transparency, which can be nothing but conducive of good public policy.

It appears that the tentatively scheduled dates for the hearing will remain March 22 and 23 in the Pitkin County Courthouse in Aspen. 

The letters linked here are those for which I have received copies. These were filed with the court and the attorneys for each party.

I obviously support the taping of the proceedings but will not file a statement with the court because I will be a witness at the hearing.

Members of the public can express their desire for transparent access to the court if they wish.

When the court rules, I will post the ruling here.

Marks v. Koch - Plaintiff response to City motion for protective order

Previous coverage of the case is found here:
http://aspenelectionreview.blogspot.com/2010/02/marks-v-koch-city-motion-for-protective.html

On February 11, Marilyn Marks' attorney filed a brief in opposition to the City of Aspen motion for a protective order to prevent a deposition of TrueBallot Inc., the company which tabulated the May 5, 2009 election for the City of Aspen.  That response is found here, below the break.

Questions Mailed to Aspen Special Counsel Jim True, February 8 2010

Attorney Jim True

Special Counsel, City of Aspen, Colorado

February 8. 2010

Special Counsel True:

My initial research over the past 8 months into the Aspen May 5 2009 election has unexpectedly led to the rise of more questions than have been answered. Even so, over a hundred articles, op-eds and letters in the press have been generated already.  I believe this discussion has only just begun. 

I am archiving (http://aspenelectionreview.blogspot.com) the discussion about this election for other jurisdictions and future historians as is well justified by the unique and historic nature of this election: first IRV in Colorado, possibly the first single ballot audit public election in the USA, one of the first elections with publicly accessible ballot interpretations, one of the first in which ballot images were shown in public while they were being interpreted by a combination of machine and by hand, and the first public election in which a CD of pre-existing ballot images was withheld from an open records request. 

In addition there turn out to be numerous other variances from ordinary or expected procedure, not the least of which was the post election activation of the Election Commission by public request and the strange treatment of it thereafter.  I hope that election activists and election officials around the nation can learn from the experience in Aspen which my research has uncovered.  My hope is to leave a clear track record in favor of public involvement and oversight in a people’s election, and not a conclusion that the public can be adequately served by election officials acting in substitution for or adverse to citizen involvement.

As you know from a previous letter to editor, I have questions for the City of Aspen.  Here is an edited and improved version of the questions.  The answers to these questions I will post on the above web site when they are received.  Thanks very much for your participation in explaining how the Aspen election system works and what happened in Aspen in regards to this past municipal election of May 5, 2009.

1. What might a citizen risk by asking questions? From my perspective, two volunteer commissioners were recently relieved of their role 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.

Adjunct questions:

1b. What was their error or errors?

1c. Were the commissioners dismissed? 

1d. When did their tenure end and  

1e. why? 

1f. Will new commissioners engaged in a manner consistent with City Charter? 

1g. Could they also be subject to some kind of a retroactive termination of their duties?


2. Please describe the decision-making process through which Chris Bryan and Elizabeth Milias came to be non members of the Election Commission (CC discussion, vote, etc.).   

2b. Was due process followed and

2c. were they treated correctly and informed of their role,

2d. of their tenure and

2e. of their responsibilities?  

2f. Were any commissioners told that their role is “ceremonial”? 

2g. Is their role ceremonial?

3. Were there procedural defects reported for the May 5 election, such as less-than-private early voting, keys left in ballot box, insufficient testing, last minute changes to software setup, non-random and incomplete auditing, failure to audit the tabulation in time, etc.?  

3b. Will there be a public airing and discussion of these and other problems? 

3c. What steps will be taken to prevent future errors in following election procedures? 

3d. Is there any benefit to be obtained when citizens point out election problems quietly and responsibly as opposed to loudly and publicly?

4. Does the city believe that the ballots and digital images cannot legally be removed from the locked ballot box for inspection?

4b. If so, wasn't it illegal to open the box on May 7 for a part of an audit?

5. Does Ordinance Sec. 2.26.050 require:  “At a minimum, the City Clerk shall arrange the counting of ballots so that the candidates and their representatives may observe the ballots as they are counted?”  

5b. If so, why are voted ballots not subsequently allowed to be seen by the public, except for a part of an audit?

6. What powers do you believe the Colorado law says the Election Commission has under the City Charter and state law? Colorado law appears to give power to the Election Commission for purposes of checks and balances.

6b. In your view, who or what entity provides election oversight or checks and balancesfor Aspen elections?

7. Should City Council members select two election commissioners while essentially employing the third, knowing their own re-election might depend on an Election Commission decision?

8. Are citizen members of the Election Commission expected to avoid representing their party's interests?

8b. Are candidates expected to refrain from advocating to commissioners?

9. If future election commissioners learn that election officials have made a mistake do they have any ability to overrule the officials?

9b. Could they become subject to some kind of retroactive termination of their tenure for questioning the city attorney's advice?

9c. What protects them from a future smear campaign which renders them impotent if they disagree with City Council?

10.  If it is recognized that irregularities occurred, and since the Election Commission asked, why wasn't the Election Commission allowed to be advised by outside counsel?

11. Does the city inform its citizen volunteers regarding the rules regarding open records and open meetings?

11b. Were Kathryn Koch's meetings with Elizabeth Milias or with Chris Bryan (but not together) more acceptable than the few meetings Milias and Bryan had without Koch?

12. Are the recently applied standards for Election Commission meetings and records applied to the Housing Frontiers Board and the Financial Advisory Board?

12b. Do these groups announce meetings or take minutes?

13. When were the two election commissioners dismissed, or did their term simply end in July? 13b. As a commission member by law, is Kathryn Koch as a lone member of the Election Commission now a quorum by herself and therefore perpetually in a public meeting subject to CORA?

 14. Is it possible for someone to overturn the election after the deadline for contests is over?

15. Why was the software configuration changed (presumably to the Cambridge method) the evening before the polls opened without notifying the press, candidates or public? 

15b. Why do the currently posted results of the election on the City website show indications of use of the Cambridge method and an incorrect threshold for all three contests. 

15c. Why does the posted election report show all three winners won with 1273 votes? 

15d. Why are most of the election records previously publicly available no longer on the city web site?

16. After the tabulation error was found by True Ballot, why wasn’t the public notified for 10 days (past the recount deadline)?

17. Was a post election public audit to verify the IRV tabulation (not just the interpretation of individual ballots) performed?

17b. Wasn’t a full hand count to verify the IRV process anticipated on several occasions by council members prior to the election?

17c. Could a full hand count of the election have been performed to check the unique TrueBallot machine-based tabulation and resultant outcome?

18. The City stated in a formal press release that there was a “staff audit of the IRV process.”  What  “staff audit” of the IRV process took place?

18b. What did it consist of?  

18c. Which contests were audited and

18d. to what extent (i.e. what parts of the IRV process were not audited)?

19. Has any City representative stated that someone could use the ballot images to match the ballot contents with the poll book list to identify how voters voted?

19b. Is this not a problem with similarly sequenced ballot data strings?

20. The Charter calls for a majority of votes cast to win a council seat.  Does the language in the Charter actually mean that a majority of voters voting need not have voted for the winner to satisfy the law?

21.  Was the public told that a lower ranking on IRV cannot hurt a first ranked candidate’s chances of winning? 

21b. Is the unique Aspen method for the City Council contest contrary to a provision of state law?

22. Were the Diebold machines used to officially count the Art Museum vote? 

22b. If not, where is the result from the TrueBallot process posted?

22c. Were we told that the Diebold machines were not used for official counts?

23. Why was the early voting ballot box in City Hall not always locked?

24. Does the law allow early voting for city elections? 

24b. Why were the absentee voting procedures not followed for 803 “early voters?”

25. Q. With respect to the IRV ballots, what definitions does the city use for each of the following terms:

Secret
Anonymous
Secure
Issued
Cast
Undervote
Overvote
Spoiled

26. Q. With respect to the definitions, above, where in the law is each definition specified?

27. How many ballots were accepted by the AccuVote machines but rejected for any IRV round due to improper marking?

28. Why do Aspen rules require #1 and or #2 choices to be ranked to be eligible for IRV counting, when common IRV practice is to ignore gaps. For example, if only #3 and #5 are ranked these are usually regarded as #1 and #2 choices.

29. Is there a legal challenge process for the voters who did not find their string in the published list of ballot strings?

30. [not applicable to be answered by the City]

31. Are any materials from the L&A tests (both AV-OS and IRV) available to the public?

31b. Were any incorrectly or poorly marked ballots tested?

32. Since the software counting method had to be adjusted during the course of election eve, isn't it fair to say that the system used was not fully tested?

 33. Was the True Ballot tabulation system required to be certified by law?

33b.  Was it?

34: Question: If you can get an image of everyone's ballot, will you be able to see who the voter was? 

34b. I know that when I vote there seems to be a number tied to that ballot and they ask for an ID when I show up.  Also, in the last mail only election I had to put my name on the envelope the ballot came in.  What's to prevent the person who gets the ballots from looking at each ballot and who sent that ballot in?

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? 

36b. 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, and should that counsel be paid for by the City?  If not, why not?

39: Question: If the EC is not a client of the City Attorney does it have a right to counsel? 

39b. 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 True Ballot Inc. by deposition? 

40b. What public interest could be served by blocking this disclosure from the company which tabulated the election?

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?

41b. Has the City taken steps which have caused an increase in the cost of litigation such as filing extensive briefs and a motion for a protective order?  

41c. Isn’t the cost  of litigation is a direct cost to Marilyn Marks but instead an indirect cost to the City because it is 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"? 

43: Question: Why can't the city provide information about the seals which protect the election records?

44: Has Jack Johnson paid for his CORA request?

44b. Should the city pay for such a request?

45: How do “public records” become accessible to the public?

45b. Can private agendas be served by a selective process through which “public records” become public?

Sincerely,

signed by Harvie Branscomb

Harvie Branscomb

PO  Box 2720

Basalt CO, 81621

970-963-1369

harvie [at] media [dot] mit [dot] edu

cc: City Council, Election Commission & assorted others by electronic means

new: KDNK News: Media coverage of Aspen election & Marks v. Koch transparency suit

 KDNK News: Hearing date set for Aspen's '09 election

The City of Aspen's May 2009 election has spiraled into a lawsuit that looks like it could finally make its way to court. Former Aspen Mayoral candidate Marilyn Marks wants access to ballot images to verify the method for counting votes. But so far the city has refused saying it would violate state law. On Thursday a judge scheduled a hearing for late March. KDNK's Conrad Wilson reports.

Download mp3 file

---- older media reports follow below the break----

Marks v. Koch - City Motion for Protective Order - Ballot Image Transparency Litigation - Aspen CO-

The case brought by Marilyn Marks against the City of Aspen CO to obtain access to inspect a CD containing images of 2,544  ballots was further complicated on Thursday Feb. 4 2009 by a motion by the City of Aspen to obtain a protective order to prevent the plaintiff from deposing the company, TrueBallot Inc., which was contracted by the City of Aspen to perform tabulation of Colorado's first public IRV election, the municipal election in Aspen on May 5 2009.  The text of the memorandum supporting the request for the protective order is below the break, as are two proposed protective orders, one of which prevents all deposition of TrueBallot in this case and one prevents depositions which query about the means of creation of TIFF images of ballots, or the pre or post election processes of the election.

It is ironic that the City of Aspen promoted the idea of transparency about its election prior to undertaking the first public IRV election in Colorado. They contracted with a company whose primary service is providing a fully transparent means of tabulating an election, including single ballot audit ability and several tools to allow  the public to fully verify the election.  But the City chose to withhold one of those tools, a CD of ballot images, from the public. Marilyn Marks, an ex-candidate in the election, issued an open records request to the City for access to the CD and was rejected.  Upon pursuing a suit to obtain that transparency under law, the City is now choosing to try to prevent  Marilyn Marks, from learning  more under oath from the company which provided Aspen citizens with access to that transparency in order to support her case for transparency.

Surely there is no reason why it would harm the public to know more about how their election was performed.
[above is opinion by H. Branscomb]

Previous coverage of the case including filed documents are located at this link:
http://aspenelectionreview.blogspot.com/2010/02/marks-v-koch-ballot-imagetransparency.html