Commentary on Dismissal of Marks v. Koch - Aspen Election Transparency

Here is an original opinion piece written by Harvie Branscomb on March 10, 2010. A linked html version of the Court ruling is found here: http://aspenelectionreview.blogspot.com/2010/03/judge-dismisses-marks-v-koch-case-aspen.html

On Wednesday District Court Judge Boyd decided, months into the process of litigation, to dismiss a case brought against the Aspen City Clerk to obtain public access to anonymous digital ballot images from a May 5 first-time in Colorado Instant Runoff Voting municipal election. The dismissal comes two days before an important deposition of the election contractor would have explained the election process on public record and a mere two weeks before the planned trial date.
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Civilized society normally keeps ample records of how it makes decisions--much more so now with inexpensive digital record-keeping--allowing historians as well as the general public to help policy makers with productive improvements. Election policy too would benefit from guidance by similarly complete historical records. Instead, hundred year old laws are being interpreted to require consistent destruction of all records.

Colorado ballots were once kept “secret”, (meaning kept in a manner in which no one would be able to know how anyone voted,) simply because each ballot was deliberately marked with an identification of the voter. Since 1946 Colorado voters’ ballots have been constitutionally protected from identifying marks. Ballots are now therefore anonymous and no longer need to be kept locked away, other than for their physical protection. The old municipal law as it stands actually prevents audits or administrative recounts. It is due for a rewrite.

Contrary to Aspen’s position, anonymous and recently available digital records do not have to be considered identical to ballots and either locked away or destroyed. The public is best served by easy access to them. If Marks v. Koch had been allowed to proceed, this assertion would have been argued and proved in court for the benefit of all. Clerk Crnich of Humboldt County California would have come to Aspen to testify about the benefits of the four public elections she has performed in which all ballots were successfully published on-line with substantial side benefits. Now, only if an appeal is won, will her advice be heard in court.

The court appears to have decided that Marilyn Marks, the plaintiff, has no viable argument, yet the court has not yet heard that argument. The judge acted only two days before a vital deposition was to be taken. This blocked a long-fought-for opportunity to obtain valuable information from the election contractor TrueBallot. That deposition would have informed the court and the public on the relationship of ballot images to the paper originals. It would have given a good indication of how beneficial to the public those images could be.

The judge’s decision was to agree with local officials’ intentions that evidence of how Aspen’s election was performed should remain unseen by the public--even in court.

Elections are unfortunately becoming shrouded in unnecessary additional secrecy, complexity and obscurity. Evidence about election quality is regularly destroyed whether or not required by law, as it is for municipal elections. A “secret ballot” isn’t something the Constitution guarantees. The Colorado ballot must be anonymous while the act of voting must be done “in secret.” Following the ancient language of the municipal code, ballots are still regularly and legally hidden and destroyed by city officials who might sometimes, unlike Clerk Crnich, find publication troubling. Aspen went further by imaginatively arguing that even the digital records of the ballots must be hidden and destroyed, yet ballot scans have not been handled like ballots in practice.

On Wednesday we saw a judge make a surprising decision by refusing to allow discovery of facts or hearing of extensive and well researched arguments about whether or not ballot images in digital files are legally identical to paper ballots. His decision will also prevent us from hearing discussed in court whether ballot transparency is in the public interest. Despite an aggressive resistance to this discussion by the City of Aspen, and its failure to answer reasonable questions that have been formally posed, the discussion must continue. The public’s interest in accessibility to its own election records is far more important than the smudgy politics of Aspen.

Bravo to Marilyn Marks for investing her valuable time, her intelligence, and her limited resources in this vital but thankless project. I will do my best to help her succeed in proving the public value of ballot accessibility. Even that transparency is only one stepping stone on the rocky road to a better election. Better election means: a more accurate, reliable, accessible, more transparent and verifiable, and more secure and anonymous election.

Harvie Branscomb
Carbondale