Memorandum in Opposition to Motion to Amend Judgment- Aspen Transparency Litigation- April 6 2010

link to previous filings in this case: http://aspenelectionreview.blogspot.com/2010/03/marks-v-koch-plaintiff-files-for.html

Download the pdf of the filing by clicking here, or read it below the break and below the comments.

Submitted comments by Mike LaBonte,  a Massachusetts citizen election official, Al Kolwicz of Colorado Voter Group, and Harvie Branscomb (editor of this blog).

Mike LaBonte said...

Aspen's position on this is stunning in that it conveys a nearly complete misunderstanding of the principles of the Australian ballot system, also known in the U.S. as the Massachusetts ballot. The Wikipedia Secret ballot entry explains: Provisions are made at the polling place for the voter to record their preferences in secret. The ballots are specifically designed to eliminate bias and to prevent anyone from linking voter to ballot. The voting part is secret, not the cast ballots. The use of pre-printed ballots that are marked in a manner such that everyone's mark will look just about the same as everyone else's is specifically to allow the ballots to be viewed, with no possibility of discovering which voter cast each ballot. After all, in hand count districts we can't have the poll workers knowing who cast each vote. As an election official I am horrified that by apparently maintaining ballot sequence to match the voter checkin lists, in place of the standard practice of randomizing the ballots after removal from the ballot boxes, Aspen has actually thwarted the principle of voter identity protection. Even worse, this memorandum indicates the belief of Aspen officials that the identification of which voter cast each ballot is normal and unavoidable, and are actually announcing that fact in an attempt to thwart ballot transparency. This means they have been improperly collecting voter data to which only they have access. While the effort to achieve full transparency by publishing ballot images has only been made in a few places, everyone who understands the Australian ballot knows how important it is to randomize the ballots, and that an examination of ballots could take place at any time without revealing anyone's sacred, secret vote.

April 7, 2010 11:23 AM  

Comments by Al Kolwicz, Colorado Voter Group

The opening sentence aggravates me.  “… the paper ballots … that Plaintiff wishes to inspect …”  You explicitly do not request access to the paper ballots.

“the manner in which the paper ballots were marked” means to me “left handed” “back to front”  “red pen” “number 2 pencil” etc.   I suspect the author is intending to say that “nobody should see the voter mark their ballot”.  That ballots are to marked in “private”.

This of course is different than anonymous.  A hypothetical ballot that is inscribed with the voter’s name is not anonymous.  However, it still might be privately marked. 

Privacy is intended to come as a consequence of the Private Voting booth.  Nobody is supposed to see the ballot as the voter marks it, or as the voter carries to and casts their marked ballot into the locked ballot box.  In Title 1 elections, there is a “100 foot from the polling place barrier which prevents electioneering within the barrier.  The polling place is to provide private marking areas and security shields with which to shield the votes on the ballot as it is transported by the voter from the private voting booth for casting into the ballot box.

The use of the word secret is mysterious.  36-10-616 does not use the term “secret”.  Article VII, Section 8 of the Constitution uses the sentence: “Nothing in this section, however, shall be construed to prevent the use of any machine or mechanical contrivance for the purpose of receiving and registering the votes cast at any election, provided that secrecy in voting is preserved.”  However, “secrecy in voting” here refers to the requirement that “private” voting must be provided by voting equipment, and has nothing to do with “anonymity”. 

Anonymity comes from this same article VII.  “All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it.”  This means no distinguishing marks on the ballots.

As an aside, there is a set of  considerations regarding marks:

Does the mark identifying the ballot as belonging to a particular voter:

1.      Do so to the voter alone?

2.      Do so to somebody other than the voter?

3.      Do so to many people other than the voter?

Is the person claiming to be able to identify the ballot as belonging to a particular voter:

1.      Suspect that this is true?

2.      Prove in a court of law that this is true?

This is important because a person who remembers their votes might find many ballots with the same vote selections.  Assuming five identically marked ballots, without additional identifying marks, the voter could suspect that they can identify their own ballot, but could not prove it.  People often misremember their votes.

Finally, we have asked for the city to remove non-anonymous ballot images.

 --end of Al Kolwicz comments--

Harvie Branscomb said...

The city's new argument is confounding and confusing at best. And in any case it is obviously dug in to do battle against election transparency. First they announce that the ballots from the election are anonymous only if they are kept under lock and key. Hey, ballots are either anonymous or they aren't. Locking them doesn't change their anonymity- any more than failing to hear a tree fall means it didn't fall. Its good to see the city trying to use the word anonymous instead of secret, because "secret" ballots aren't guaranteed by the constitution. It says “no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it”. On the other hand, ballots (paper objects) are still required by an old municipal law in Title 31 to be kept under lock and key since the times ballots were purposefully identifiable as to voter, but this law says nothing about ballot images that reside on various CDs and hard drives. The city claims that the Title 31 Municipal law has been updated recently and therefore cannot be seen as obsolete, but almost everyone I have talked to with experience about election law understands that Title 31 is very much out of date. This includes legislators. The ballot locking and destruction characteristics of the municipal elections under Title 31 are in direct conflict with preservation of ballots and records for all other elections held under Title 1. Ballots and ballot images are entirely different things- ballots must be protected against theft, against degradation, against intended or accidental marks after the election. Ballots cannot be viewed remotely or instantaneously and cheaply copied. Ballot images are relatively immune to theft and degradation, and are very difficult to mark. They can be copied and kept virtually forever at almost zero cost. They also by necessity have less than 100% of the info contained on a paper ballot. Ballot images from Aspen went to Maryland. The ballots (pieces of paper) stayed in Aspen. Ballot images were shown on screens and in a television show. Ballots were not. Very different treatment. The city argues (ironically- given what the city already arranged to have done with the ballot images) that the ballots and ballot images must be treated the same. The Colorado Constitution calls for "secrecy in voting". Voting is a verb which relates to a very specific human activity, not the mechanical state of storage of ballots or their images. The Constitution calls for privacy of ballots but not secrecy. The ballot (generally today understood to mean a physical object that can be marked) is not protected as a "secret" but as a valuable original documentary record for which we might need to know the color of ink, the pressure applied to the paper, etc. Ballot images do not contain that information and do not serve the purposes required of ballots, contrary to the argument made by the City of Aspen lawyers. Ballot images neither require protection nor secrecy. They do, like ballots, require anonymity Most surprising, the city appears to admit here that they are in possession of some number of illegally (contrary to Colorado Constitution) non-anonymous ballot images. One wonders how many of these rogue ballot images might have been used in the counting of the election? This discussion keeps on getting more surprising. Thankfully the city this time left out its usual side-swipes on Marilyn's motives that seem more aimed at producing one-sided newspaper coverage than convincing an unbiased judge. On all points made by the city, there are good counter arguments or clarifications to be made. Let's hope the judge recognizes the defects with the city's arguments. Above is opinion by Harvie Branscomb.

[Here is the text of the memorandum from the City of Aspen attorneys]

Case Number: 09 CV 294 Div.: 3
Plaintiff: Marilyn Marks, Defendant: Kathryn Koch

KATHRYN KOCH’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO AMEND JUDGMENT

Comes now the Defendant, Kathryn Koch, by and through her undersigned counsel, and hereby submits the following memorandum in opposition to Plaintiff’s Rule 59(a)(4), C.R.C.P, motion to amend the court’s Order on Pending Motions entered on March 10, 2010. 

Plaintiff states five reasons in support of her motion to amend the court’s order. For the reasons that follow, none of these stated reasons supports her motion. 

1. The ballot images are anonymous only so long as they remain locked up and unavailable to public inspection.

Plaintiff argues that the paper ballots and the ballot images she seeks to inspect are anonymous and thus because they are anonymous “a CORA inspection of” them could not violate the secrecy in voting requirement of Article VII, Section 8, of the Colorado Constitution. While it is true that Plaintiff alleged that the ballot images are anonymous in her Complaint and therefore the court must accept that allegation as true, that fact does not change the court’s analysis in the least. The manner in which the paper ballots were marked by voters is secret and will continue to be secret only so long as they remain locked away and are not made available for public inspection.

The original ballots provided to all voters were anonymous; that is to say, each ballot was indistinguishable from all other ballots. Once they were marked by voters and cast, they could no longer be considered to be anonymous. Distinguishing marks placed on the ballots, whether intentionally or unintentionally made, render the ballots no longer anonymous. However, even if no longer anonymous, they remain secret so long as they are not made available for public inspection. Plaintiff’s argument in this regard makes no sense.

Even if Plaintiff is correct in stating that the public release of the ballot images would not be contrary to Article VII, Section 8, of the Colorado Constitution, she ignores the fact that it

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would still be contrary to Section 31-10-616(1), C.R.S. 

2. Copies of ballots, or ballot images, should be treated no differently than the original ballots. 

Plaintiff argues that the court was in error to hold that the UPCBPREA “subjects the TIFF files to the requirements of Section 31-10-616(1), C.R.S., as though the TIFF files were themselves ‘ballots’.” Plaintiff’s Motion, ¶18. In essence, Plaintiff continues to argue that copies of ballots or images of the original ballots are somehow different than the original ballots and therefore are not subject to §31-10-616(1), C.R.S. The only mention in the court’s Order to this evidentiary rule is paragraph 11 of the Order which states: “Colorado law recognizes copies of public records, including electronic imaging”, as the equivalent of the originals. §13-26-102, C.R.S.” This statement is, of course, an accurate statement of the law in Colorado. The court obviously noted this provision of evidentiary law to point out that the courts and administrative agencies in Colorado may admit into evidence copies of documents as if they were originals. In other words, the Colorado rules of evidence recognize the general rule that a duplicate is admissible to the same extent as an original. Thus, a copy of a cast ballot deserves the same protection from public inspection as original ballots. The court’s statement in this regard hardly deserves to be reconsidered.

Although Defendant does not wish to belabor the point, she must emphasize that regardless of the application of the UPCBPREA, what Plaintiff argues is that any protected document becomes unprotected simply by the use of a photocopy machine. As Defendant has previously argued, the position Plaintiff wishes the court to take simply eviscerates the

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plain language of Section 31-10-616(1), C.R.S., and would eviscerate all protections outlined throughout CORA and other statutes. Plaintiff’s position is simply untenable. 

3. Plaintiff misreads Section 31-10-616(1), C.R.S. 

Plaintiff refuses to read Section 31-10-616(1), C.R.S. in a logical and rational manner.

Instead, she invites the court to interpret the statute so as to lead to an absurd result. Section 31-10-616(1), C.R.S. reads as follows: 

31-10-616. Preservation of ballots and election records. (1) The ballots, when not required to be taken from the ballot box for the purpose of election contests, shall remain in the ballot box in the custody of the clerk until six months after the election at which such ballots were cast or until the time has expired for which the ballots would be needed in any contest proceeding, at which time the ballot box shall be opened by the clerk and the ballots destroyed by fire, shredding or burial, or by any other method approved by the executive director of the department of personnel. If the ballot boxes are needed for a special election before the legal time for commencing any proceedings in the way of contests has elapsed or in case such clerk, at the time of holding such special election, has knowledge of the pendency of any contest in which the ballots would be needed, the clerk shall preserve the ballots in some secure manner and provide for their being kept so that no one can ascertain how any voter may have voted. 

(Emphasis added.) Plaintiff suggests that the court misapplied the statute in holding that contest proceedings are the only circumstance in which ballots may be accessed after an election.  Plaintiff correctly points out that the ballot box must necessarily be opened in order to conduct a recount of the results. Section 31-10-1207, C.R.S., requires a recount to be taken if the election is close or if “an interested party” agrees to pay for a recount. A recount, when required to be conducted, is part of the election process and not conducted “after an election.” An “election” does not end when all the ballots are cast. The Municipal Election Code sets forth multiple steps

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that must take place after all the ballots are cast. For example, a critical part of the election process is the tabulation of the ballots cast. For this step in the election process to proceed, the ballot boxes may well need to be opened. This step of the election is not performed “after the election,” but as part of the election itself. Section 31-10-616(1), C.R.S., states that ballots “shall remain in the ballot box in the custody of the clerk until six months after the election…” The statute does not mean that the ballot box may not be opened after the ballots are cast, but rather, that the ballot box is to remain closed after all procedural steps of an election are completed. The only exceptions are stated in the statute: (a) if the ballots are “needed in any contest proceeding;” or, (b) if the “ballot boxes are needed for a special election.” Even in these situations, “the clerk shall preserve the ballots in some secure manner and provide for their being kept so that no one can ascertain how any voter may have voted.” The phrase in §31-10-616(1), C.R.S., “after the election” must, necessarily, mean after all the procedural steps necessary to conduct an election are completed. 

Plaintiff’s request for the court to “reconsider and reverse” its holding is without merit. 

4. Substantial Compliance is not the Proper Standard.

Plaintiff argues that the court should adopt a “substantial compliance standard” in determining whether the Defendant may release for public inspection the ballot images. In other words, Plaintiff suggests that if the Defendant made the ballot images available for public inspection, the Defendant would be in substantial compliance with Section 31-10-616(1), C.R.S. Thus, the release of the ballot images would not be contrary to any state law. 

Even if substantial compliance is the proper standard to apply to this case, substantial

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compliance with Section 31-10-616(1), C.R.S. can only mean that the City Clerk may not take any action that would fail to secure the ballots and ballot images in a manner that provides for their “being kept so that no one can ascertain how any voter may have voted.” Anything less could not be considered even close to compliance with the requirements of the statute.

Plaintiff’s argument that Defendant can make the ballot images available for public inspection and still be in “substantial compliance” with state law is simply frivolous.

5. The legislative history of Section 31-10-616(1), C.R.S., is immaterial to the issues before the court. 

Plaintiff finally argues that the court should interpret §31-10-616(1), C.R.S., with reference to its legislative history in order to hold that the statute doesn’t mean what it clearly states. If the statute is obsolete, the state Legislature should amend it. It should be noted, however, that §31-10-616, C.R.S., was amended three times since 1946 when Plaintiff believes the statute became obsolete. See Source note showing legislative history of §31-10-616(1), C.R.S., (the entire section was repealed and reenacted in 1975, subsection (1) was amended in 1979 and again in 1996.) The weakness of Plaintiff’s argument is actually emphasized in examining the most recent amendment to the statute. The 1996 Session Laws, reveal that the legislature approved a change in the sentence which addresses the destruction of the ballots. Prior to 1996, the ballots could be destroyed “by any other method approved by the state archivist.” (Emphasis supplied.) The 1996 amendment changed “state archivist” to “Executive Director of the Department of Personnel.” See, Chapter 273, Section 135, Session Laws of Colorado 1996. If this section of the Code was obsolete, as Plaintiff argues, then the Legislature had the ability, if not the duty, to
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address that in the 1996 amendment, in the 1979 amendment, or when it was repealed and
reenacted in 1975. It is simply impossible to argue, as Plaintiff attempts, that this statute is
obsolete and thus, to be ignored.

CONCLUSION

Plaintiff has failed to explain why the court should exercise its discretionary powers to amend its Order on Pending Motions. The reasons provided by Plaintiff in the instant motion were previously addressed in Defendant’s Memorandum in Support of her Motion to Dismiss or should have been presented in Plaintiff’s various pleadings filed in this action.
The sum and substance of Plaintiff’s arguments for requesting an amendment is the same arguments she has presented throughout her case: (a) that an image of a ballot is not the same as an original ballot; and, (b) that Section 31-10-616(1), C.R.S., does not mean what it clearly states.


Defendant urges the court to summarily deny Plaintiff’s motion as there are no grounds to amend the court’s previously entered Order on Pending Motions.

DATED this 6th day of April, 2009
Respectfully submitted,
s/ John P. Worcester John P. Worcester City Attorney
s/ James R. True James R. True Special Counsel
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CERTIFICATE OF SERVICE

I hereby certify that on this 6^th day of April, 2010, a true and correct copy of the foregoing MEMORANDUM IN IN OPPOSITION TO MOTION TO AMEND was filed electronically with Nexis/Lexis to the following person(s):
Robert A. McGuire, Esq. 1624 market Street, Suite 202 Denver, Colorado 80202
ram@lawram.com
s/ Janet Raczak
Paralegal
JPW-4/6/2010-142848-G:\john\word\plead\Marks - CORA\memo in suppoprt of motion to dismiss.doc