Harvie Branscomb comments on news about Aspen Election Commission

From: Harvie Branscomb
Sent: Thursday, April 22, 2010 10:21 AM
To: Curtis Wackerle (Aspen Daily News reporter)
Cc: Marilyn R Marks; Al Kolwicz; Ward Hauenstein; Bob Leatherman;  Jim True; John Worcester; Kathryn Koch; Harvie Branscomb
Subject: Re: May 8 deadline
(referenced article : http://www.aspendailynews.com/section/home/140270 )


Curtis
I realized after reading your well written article that I might have misled you slightly. The lock the key was left in unlocks a small door on the ballot box that allows access to two buttons that if simultaneously pressed will activate the override function that causes the voting machine to accept any ballot with any number of errors on it. My research shows that use of this function can lead to misinterpreted ballots.


I'm not sure you understand that the "ballot box" is the stand that holds up the voting machine. The ballots fall from the voting machine into the box. There are several locks on the box/stand that are opened by the same keys as Kathryn Koch confirmed at the second election commission meeting. Two of the locks open doors that allow access to storage areas for voted ballots. I don't think your article is written in a manner that will confuse and I don't think it needs any correction. I am only explaining this to you in case someone objects on technical grounds. No doubt Kathryn Koch will correct me if I am wrong. It is odd that the Mayor brought up this canard again at the end of the Monday night CC/EC meeting.

I think you listed two of the most easy to understand (and to resolve) issues. That was appropriate. Your readership will relate to those and perhaps they will remember other similar problems to report and come forward. You might have noted that the EC would like to hear about positive qualities of the election too. I plan to offer a number of those in my comments.
But I also want to point out four other issues that simply overshadow the procedural problems on or around election day.




One is the difficulty encountered by the 2009 election commission in having even a first meeting of three commissioners to discuss issues brought by the public. There are people in Aspen who have not heard about the obstacles that two members of that 2009 Election Commission faced in trying to become effective. All this was after they were deemed "ceremonial" by a city attorney on (I think) election day.



The second is the misunderstanding that was left by the reporting on the Colorado Bar Association letter to John Worcester. This letter was commented upon by attorney Worcester as if an exoneration and written up as a defeat for Milias and Bryan. I think it was no such thing. If you read the letter carefully you see that the CBA ethics committee advised that the client (the EC) has the right to decide if there is a conflict and to refuse representation by the city attorney. This is the topic of one of my questions to the city attorney that remain unanswered and something that the public and the current election commission deserves to understand better. Again, no doubt the attorneys cc:d by this email will comment if they feel the need. I hope they do. If they do, please make sure I receive a copy.



The third is the "disbanding" of that commission as you so aptly put it. As I said in the CC meeting I don't know what adjective to use. The facts surrounding that "disbanding" (such as the timing and circumstance of the vote taken by CC and the lack of due process taken following an "investigation") are I think ugly but do illuminate the attitude of CC towards the public in regard to oversight on elections. The disbanding was the most problematic component of the 2009 municipal election, by far, in my opinion.






The fourth is the aggressiveness with which the CC or Clerk have pursued not only defense of the Marks transparency suit, but pursued a punitive sanction against her. It would be hard not to see the motion to collect $385/hr for Worcester's and True's time as an attempt to intimidate any other similar efforts by Marilyn or someone like her. Even the law itself puts a bias in favor of the plaintiff in a CORA suit by automatically returning court costs to a plaintiff whose case overturns an open records request rejection. There ought to be no presumption that it is natural for the government to pursue its costs or something well in excess of its costs under the circumstances.



The context to these problems is that municipal elections held under Title 31 are orphaned by a failure by the legislature to update the language in statute and failure to provide for any administrative oversight by the Secretary of State. These Title 31 elections, like Aspen's, are running rogue so to speak, with no one monitoring except those involved in the election itself-- city councillors whose re-election depends on it, a City Clerk and staff lawyers whose jobs depend on City Council and who have principal administrative responsibility, and Election Commissioners that serve in Aspen, apparently, subject to the whims of the council. As Marilyn points out, cities do not have to subscribe to Title 31. Many are operating under the much more up to date (yet still recognized to be much in need of reform) Title 1.



All of those facts about the election aftermath make it hard to envision that any additional citizens will come forward to participate in questioning the actions taken by the city. If they do, I will be surprised and glad to see it. Once all the problems are on the table, the light at the end of a long tunnel will be visible.



Being the only administrative resource for non-criminal complaints, if an election commission fails to perform, the only alternative is a costly litigation that in Aspen will be prohibitively expensive. The cost of litigation combined with the social cost of dealing with value systems represented by Jack Johnson's anti-democratic "let us shut up" message will most likely inhibit inquiries about elections, leaving elections everywhere in at least minor disarray. The public deserves to have a structural check and balance to break past these obstacles.


Many people feel that it is the responsibility of the press to perform the function of asking questions, and in some cases the press does. But there are a lot of people in Aspen who no longer even expect the existing press to perform that role. I hope you will prove them wrong and thanks for the continuing coverage of a traditionally dry but extremely important topic.



(In Aspen the story is getting less dry day by day.)



Harvie Branscomb






On Apr 21, 2010, at 7:59 PM, Harvie Branscomb wrote:






Curtis



I dont have a tight list. i am trying to figure out how to get adequate information together for the EC by the 8th. So much is happening on the statewide and national level in addition to Aspen. Today was the first meeting of the Best Practices and Vision Commission in Denver that I thought I would have a good chance of being appointed to. I testified for about 20 minutes on may 5, 2009 at the Secretary of State's office (while Aspen was voting) on what the BP & V Commission should do.



I would really like to figure out how to communicate these issues to the Aspen public. I'll take a stab at it for you, but it will not be in the next few hours.
What i am more interested in is making a concise description of how Aspen's election was better than others. I am working on a related document for a national group working on improved audits.



Apparently when simplifying the description of election problems we go immediately into the weeds when someone counters that simplified statements like "the keys were in the ballot box" or "the ballot box was unlocked" are untrue. These statements might technically be false, but for all practical purposes such a short description is both relevant and adequate to get across the problem. A tight list would contain descriptions written like the above statements. A more careful and longer list says: "a set of keys that matches all locks on the Accuvote system was left in one of the locks where another one of the nearby locks give access to the voted ballots." Which do you prefer to print?


I would need guidance to go with the shorter description... and even then the Mayor might disagree on the basis of excessive attention to detail, leaving no opportunity for rebuttal.



What to do? You also might want to take a look at the Aspen Times Blog to see what conversation is there on the (consistently most commented upon) articles about elections. 



Harvie



On Apr 21, 2010, at 1:36 PM, Curtis Wackerle wrote:



Hi Harvie,



I am putting together a story on the new Election Commission seeking out any complaints or issues people had with the 2009 election. I’ll be noting the May 8th deadline. Could you pass along the various lists you have put together detailing what you see as the issues? I remember reading something from you last fall that was about 5 pages long. I understand you have put together a tighter list. That would be of great interest for my reporting. If you can get back to me, I’d really appreciate it.



Thanks, --



Curtis Wackerle



Aspen Daily News