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
[the editorial has been annotated with footnotes by Marilyn Marks]

Guest Opinion: Instant runoff election a model of transparency and verifiability

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.

The big picture is that the election was a model of transparency, verifiability and honesty, (1) and the post-election audit (2) was among the most thorough ever conducted. It also had the highest voter turnout in a municipal election in Aspen history and elected a clear majority winner for mayor without a June runoff election.

Let's start with transparency. Ballots were first counted in polling places using the county's Premier Accu-vote optical scanners. Then, in plain view of the public and cable viewers, TrueBallot Inc. scanned every ballot using commercial imaging scanners, processed the data on the images, and publicly reviewed every ballot not once but twice to make sure the computer interpretation of ballots matched human interpretation of voter intent. (3) These images were projected publicly in City Hall and broadcast on cable television. (4) The Election Commission reviewed all (5) potentially ambiguous ballots (6) to assure that they were counted as the voter intended according to state law. (7) The IRV tallies were conducted and announced on Election Night.

In this election, unlike virtually any other public election in the country, members of the public could observe the removal of ballots from voting machines, (8) the transportation of the ballots to City Hall, (9) the removal of ballots from sealed bags in City Hall, the scanning of ballots, and the review of ballots (9) for voter intent.

But there's more. The city adopted an ordinance to make all election data public, (10) and the city clerk has provided CD-ROMs with all of the election data (11) to anyone who asked. This means that members of the public can perform independent verifications of the election results, (12) and several have done so. The city also explained on its website what data would be produced in each stage of the processing and how to independently verify (13) all of the data.

It was also conducted honestly, with ample public notice of the rules and procedures that would be in effect, full observation of all steps, and full release of election data. (14) And yes, when we made a mistake in the IRV tally for mayor — a mistake that affected a small number of ballots only after a candidate had already reached a majority of votes and therefore been elected — the city made that information public (15) . But more importantly, the data necessary to verify the IRV tallies was already public (16) , so if there had been any error affecting the outcome, it would have come to light. (17)

And if all that wasn't enough, the city conducted a post-election audit that far exceeded anything required by law. (18) First, the city randomly chose 10 percent of the ballots (19) to make sure that the rankings on those ballots matched the electronic information stored. There were no discrepancies. Then the city performed independent verification that every ballot was tallied correctly in the IRV tallies. (20 ) The independent tally for mayor is posted on the city's website, and again, there were no discrepancies in the mayoral and council tallies. (21)

You really can't have more transparency and verifiability than that, unless you make the actual ballot images public. Right now, state law doesn't permit the city to release the ballot images, but if it did, I'm sure it would happily release them. Of course, the city already publicly verified a random sample of 10 percent of the ballots, (22) which should give rational members of the public pretty high confidence that all of the ballots were recorded correctly. (23)

Whether you like IRV or hate IRV, Aspen's election was a model of transparency and verifiability, and American elections would be improved if they incorporated elements of Aspen's election.
Caleb Kleppner is a vice president at TrueBallot Inc., which has run elections for municipalities, labor unions, associations, state Democratic and Republican parties, and others over the past 15 years.

Marilyn Marks' footnotes:

(1) There is no way that this vendor can attest to the “honesty” of an election.

(2) There was no post-election "audit" that met normal required audit standards. It certainly was not among the “most thorough ever conducted.” The only independent “audit step” taken was a non-random sampling of ballots to compare to cast vote records. No tallying of the sample was attempted. The “audit’ fell woefully short of what is required by the Secretary of State.

(3) There was no “review of every ballot” even once, much less twice by humans. There was no “human interpretation” of the ballots for voter intent.

(4) Only a few hundred images were broadcast on TV.

(5) The Election commission only reviewed tiff files of some ambiguous ballots as determined by TrueBallot Inc certainly not “all” ambiguous ballots.

(6) The “ballots” were not reviewed, instead, a tiff file of unknown, and undocumented quality was reviewed.

(7) There was very limited review of voter intent, and requirements such as review of the written in votes were ignored.

(8) The public could not view the removal of the ballots from the voting machines.

(9) The public could not observe the transportation to city hall, unless inside information was obtained in order to do this.

(10) NOT “All” election data was made public, ---the fundamentally important tiff files, for example, were not.

(11) The clerk has not NOT provided a CD-ROM with "all" of the election data.  In particular the tiff files are missing.

(12) No one can independently verify the tabulations without access to either the ballots or the images.

(13) While the city did explain this with a TBI prepared document, that document itself says that access to ballots and images is required to verify the tabulation.

(14) “the full release of all election data,” has not happened.

(15) The city did not make that information public when informed, but waited until the period for election contest had passed before releasing this information to the public.

(16) The information necessary to verify the tallies was not public, as tiff files have not been released.

(17) There is no assurance that any error would have been publicized. While I had noted the error, I had not publicly mentioned it as I was still attempting to determine the potential source of the error.

(18) As noted above the small post-election test did not come close to meeting the legally required audit steps found in the Secretary of State rules as adopted by Aspen Ordinance #3, 2009.

(19) The sample selection was not in any way random and excluded the most high risk population of ballots.

(20) The city performed NO verification that the ballots were tallied correctly.

(21) There were indeed discrepancies in the mayor’s race. The worksheets, if any, for the council race have not been disclosed. The worksheets were not independently prepared, but prepared by TBI.

(22) The sample was not random, and the tallies were not verified.

(23) There is no reason than anyone should have confidence in the correct recording of the ballots. This statement is unsubstantiated.