Harvie Branscomb's Letter to Aspen Daily News--Open Access to Ballots

The national trend toward open access

Editor:

“Voted ballots, which are not traceable to the individual voter, are public records subject to disclosure under the Freedom of Information Act,” wrote the Attorney General of Michigan in a May 13, 2010, opinion. His decision shines a new and positive light on Marilyn Marks’ request to a local court for access to digital images of Aspen’s May 2009 ballots.

Michigan voter rights advocates, like Marilyn, sought access to voted ballots from recent elections for auditing purposes. Their Attorney General’s ruling reinforces a fundamental principle that ballots are public records because they are anonymous and must not be traceable to an individual. Michigan’s constitution says only “preserve the secrecy of the ballot.” Colorado’s constitution requires “secrecy in voting,” meaning privacy, and says “no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it,” meaning anonymous. Colorado’s requirement of ballot anonymity is very specific.

City talks down, lawyers up (Letter in Aspen Times May 22) Harvie Branscomb

The following letter was published May 22, 2010 in The Aspen Times
http://www.aspentimes.com/article/20100522/LETTER/100529945/1020&parentprofile=1061

Dear Editor:
City Council and staff don't seem to mind pursuing their expensive defense against Marilyn Marks' effort to obtain reasonable transparency of election records. Ironically, they are now generally fighting against transparency promised prior to last May's election. The engagement of high profile Denver-based criminal defense counsel shows their intention to gear up. Will Aspen simply protect their many election irregularities with big-time lawyers or instead solve the underlying problems and make sure anonymous records become accessible? I am hoping for the latter.
There is transparency news from Michigan. Activists there were seeking actual paper ballots for audit purposes, while Marilyn only seeks indestructible electronic copies. Last week they received good news from their attorney general. He advised that Michigan's voted ballots are indeed public records and can be inspected and audited subject to open records request. The statement is posted at  http://aspenelectionreview.blogspot.com/2010/05/text-of-michigan-attorney-generals.html

But in Aspen, Marilyn Marks has been confronted with aggressive obstacles to obtaining mere digital copies of similar records. Her transparency litigation will move to the Appeals Court if Judge Boyd refuses to reconsider, again with Aspen voters footing the bill for efforts

Fighting Good Public Policy--(LaBonte Letter in Aspen Times)

Dear Editor:
As an engineer and volunteer election official in Massachusetts, I became interested in Aspen's new municipal election system, which combines approval voting and instant runoff voting to create a unique system.
Using the published election data files and software, I have been able to reproduce the mayor and City Council race results. I am not aware of anyone in Aspen who has tallied those races, but I highly recommend that Aspen city officials try it.
However, reproducing the tally results from “ballot strings” does not mean I have verified the election. To verify an election one must look at the ballots; no less than full transparency will do. But currently Aspen taxpayers are funding an expensive battle to fight election transparency. Aspen, of all places.

Election Activist Mike LaBonte Comments on Michigan's Public Access to Ballots

 Laws regarding freedom of access to voted ballots are often fuzzy at best, and seem downright restrictive at worst. Michigan Attorney General Mike Cox has written a very enlightened opinion responding to a question from Michigan Secretary of State Terri Lynn Land. Cox concludes:

"Voted ballots evidence the electors' preferences, and ultimately support the election or defeat of candidates and the approval or disapproval of ballot proposals in an election. They are the primary source for election results. Therefore, voted ballots are "writings" that record meaningful content and constitute "public records" for purposes of the FOIA."

He then goes on to address common misunderstandings of "secret ballot":

"Importantly, the question you pose does not raise "secrecy of the ballot" concerns because, as described above, a ballot is no longer traceable to the elector who voted it once the stub with its unique serial number is removed and the ballot is placed in the tabulator. Once placed in the tabulator, the voter's ballot and the selections recorded upon it become anonymous."

The opinion is thorough, well written, and a great read for those who wish to better understand the issues of election transparency, even for those outside of Michigan.

http://www.bbvforums.org/forums/messages/150/MI_AG_7247-80970.pdf

http://www.bbvforums.org/forums/messages/150/MI_AG_7247att-80971.pdf


This is yet another victory in the fight for election transparency. One state at a time people are realizing that the genius of the Australian ballot system lies in it's ability to simultaneously provide private voting and ballot transparency.

Michigan's Ballots are Pubilc Documents---Why Not Aspen's?

The Michigan Attorney General recently handed down an opinion confirming that voted ballots in Michigan are public documents.
If Michigan citizens can look at their ballots? Minnesotans' theirs, Floridians theirs, why not Aspen?
If Longmont, Colorado citizens can be involved in post elections using real ballots why are Aspen's ballots secret?
If El Paso County (Colorado Springs) can have extensive citizen post election audits, why do Aspen's ballots have to be hidden away from all but the city officials?
See a full explanation from the Michigan AG's opinion, demonstrating that ballots are to be non-traceable to the voter. The same facts and logic should apply in Aspen.

http://www.glassballotbox.org/storage/MichiganCase.pdf

Text of Michigan Attorney General's Opinion on Voted Ballots and FOIA

Copied from: http://www.ag.state.mi.us/opinion/datafiles/2010s/op10324.htm

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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich. Dept. of Attorney General Web Site - http://www.ag.state.mi.us)
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STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

ELECTIONS:

FREEDOM OF INFORMATION ACT:

PUBLIC RECORDS:

SECRETARY OF STATE:

Access to ballots voted at an election under the Freedom of Information Act

Harvie Branscomb's Letter of Complaint to Aspen Election Commission 5.10.10

(Harvie had asked for a few days extension of time on the 5.10.10 filing deadline and was denied that opportunity by Ward Hauenstein.  He sent this letter as his official filing to be supplemented in the near future.) --comment by m.marks.
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[what follows is an emailed letter by Harvie Branscomb to Aspen Election Commissioners- some typos in the original text have been corrected by Harvie 5/11/10]


Ward and Bob (and Kathryn when and if she sees this): 5/10/10



Both of you -independent members- of the EC already responded to my midnight email- thanks very much. I guess the pressure I have been under for the past week must be obvious in my mistake about the date of a requested extension. A week ago I took on an additional and unexpected responsibility to a great number of people where the schedule was out of my control.


If I could have spent the past week on a 'charrete' to prepare a submission to you, I might not be ready by now. Please recall that until the newspaper announcement of April 27, the public did not know of a format or deadline for submissions. My research, yet far from complete, has not been compiled to press the button at any moment in a certain “complaint” format that is worthy of a formalized review. Therefore I take exception to Ward’s assumption that a year is enough time to compile a complaint. The full year of experience learning about the election, and more importantly about the various responses to post election queries, has led to a huge body of knowledge, much of it worthy of some kind of comment or complaint. 

Fortunately Marilyn Marks is aware of much of that knowledge and she is also quite qualified technically and intellectually and emotionally to present to you. I hope that she does, and I support her efforts in that regard. It is likely that she too would not have been able to meet the deadline without having had to organize her documents for her District Attorney complaint. The effort is hugely time consuming, as I hope you will appreciate. I want to present accurate, well-documented data that is easy to follow. That is likely a 40 to 50 hour project. To ask that it be completed in less than 2 weeks is asking a lot.


Unfortunately, and that would be an understatement, Marilyn is discredited by too many people for character failures that she does not have, and for having been a candidate in the election, which is no reason at all to discredit her. In fact it gives her every reason to be highly knowledgeable, and demonstrates that she is serious about elections and better government. Candidates should be encouraged to come forward with what they know. Why not?

Election Commission Update

On May 10, Election Commission Complaints were due.
See above for Harvie Branscomb's complaint letter.
Marilyn Marks' complaint  filing linked as follows:
http://www.glassballotbox.org/storage/MarksECDocument5.10.pdf

http://www.glassballotbox.org/storage/EC%20Complaint.zip

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The Aspen Election Commission met May 5 (the one year anniversary of the controversial 2009 Municipal Election) to hold its first hearing for complaints. The independent commissioners heard Millard Zimet's complaint regarding  non-anonymous election processing.
The video recording of the proceedings may be reviewed at:
http://www.grassrootstv.org/Show.aspx?ShowID=9062

Marilyn Marks has proposed that the Election Commission conduct a Re-scanning, and Re-Tabulation audit procedure intended to provide some mitigation  for the lack of pre-election and post election system testing.
That proposal is at http://www.glassballotbox.org/journal/2010/5/9/proposal-to-election-commission-for-re-scanningre-tabulation.html

Complaints are due to  the Election Commission Monday, May 10. They  will be posted here as they become available.

The City of Aspen announced that the District Attorney has opened an investigation into the May 2009 election. http://www.aspentimes.com/article/20100507/NEWS/100509873
and
http://www.sfexaminer.com/breaking/das-office-investigates-aspen-elections-claims-93241559.html

Colorado Voter Group's Al Kolwicz Writes Aspen Election Commission Re: Anonymous Ballots

Al Kolwicz , Colorado Voter Group , 2867 Tincup Circle,Boulder CO, 80305
http://www.coloradovotergroup.org/

May 4, 2009
Commissioner Ward Hauenstein, Aspen Independent Election Commissioner
Commissioner Bob Leatherman, Aspen Independent Election Commissioner
Dear Commissioners Hauenstein and Leatherman

I am writing in regard to tomorrow’s Election Commission meeting. Please permit me to first introduce myself. I have lived and worked in Colorado since 1966. For more than a decade, I have worked to improve Colorado’s election system. I am a Trustee and co-founder of Colorado Voter Group. I have served on multiple Boulder County Canvass Boards and voting equipment test boards. I have actively participated in Colorado’s equipment certification process, and contributed to the development of election rules, and have testified numerous times before state and local governmental bodies. I have testified in court as an expert witness on election system matters. I have closely monitored with much interest Aspen’s May 2009 election and its follow on activities. I have worked closely with Nick Koumoutseas of TrueBallot, the vendor whose system was used in the election. I have had a private demonstration of the TrueBallot system including a description of the database tables and macros, and the software used to capture, interpret and correct votes. I have also explored the software used to calculate the selection of the winners. In addition, I have analyzed the database and strings, as well as the first-pass vote interpretations published by Aspen. I have studied Title 31 and have in-depth knowledge of Title 1, the Colorado Election Rules, and Colorado Constitution Article VII Section 8.

My interest in the May 2009 election is due to the ranked choice methodology used for the election. The Colorado legislature has instructed the Secretary of State to prepare a report of Colorado IRV experience by February 2011. As of now, it appears that Aspen’s will be the only Colorado IRV election completed before the report deadline. I hope that by detailed analysis of this election we can make a significant contribution to the Secretary of State’s report to the legislature. We expect this report to significantly influence future legislation.

Clean government does not just happen. The public needs protection from potentially tyrannical governments. Therefore, protection must be independent of government. It must work to serve public, not government, interests. The Aspen Election Commission should strive to become such a protector. You have statutory authority, and your tools are transparency and trustworthy elections.

Transparency means that public information is public and affordable. Government has the power, but not the right, to withhold or destroy information that might undermine its power. The Commission can and should facilitate the public’s access to all non-private election-related information.

Marilyn Marks Response to Zimet and Election Commission on Transparency and IRV

From: Marilyn R Marks Sent: Tuesday, May 04, 2010 2:54 PM

To: 'RDLNKP; 'Ward Hauenstein'; 'Kathryn Koch'

Cc: 'Jim True'; 'John Worcester'; 'Harvie Branscomb'; 'elizabeth.milias'Millard Zimet'; 'Mike LaBonte'; 'Al Kolwicz'; 'Don Davidson'
Subject: FW: May 2009 Election--balancing privacy and transparency
Commissioners,

The philosophical debate shaping up for tomorrow is fascinating. A full public discussion will no doubt be informative.
In fact, despite how deeply involved I am in the subject, the debate between Harvie’s and Millard’s positions has caused me to go do more research and come to different conclusions of my own. Not that that is important, but it is the intelligent debate by knowledgeable people of differing viewpoints which I found so personally valuable. So, I hope that some of that debate can be heard tomorrow.
See my comments below directly commenting on Millard’s.

From: Millard Zimet Date: May 4, 2010 9:54:07 AM MDT
To: rdlnkp
Cc: ward.hauenstein Kathryn.Koch Jim.True John.worcester

Subject: Re: May 2009 Election

Bob et al:


Sorry to bother you again, but there's another point I need to make sure you understand in advance of tomorrow's Election Commission meeting, namely: Marilyn Marks does not speak for me.


MRM>>I hope I did not say anything to imply that I was attempting to speak for him in my support his complaint. In fact, as you know, I submitted my own complaint on this point that is intended to stand alone.

Millard Zimet Comments to Election Commission on Privacy and Transparency

From: Millard Zimet Date: May 4, 2010 9:54:07 AM MDT

To: rdlnkp

Cc: ward.hauenstein Kathryn.Koch@ci.aspen.co.us, Jim.True@ci.aspen.co.us, John.worcester@ci.aspen.co.us

Subject: Re: May 2009 Election

Bob et al:

Sorry to bother you again, but there's another point I need to make sure you understand in advance of tomorrow's Election Commission meeting, namely: Marilyn Marks does not speak for me.

The reason why I got involved in this election matter back in August was because I became worried that my vote was not secure. That is still my primary focus. I hope I have been able to show you that the votes of many voters are not secure.

Marilyn Marks and Harvie Branscomb are interested in election transparency. They are now concerned that my secret ballot issue will negatively impact their election transparency agenda. I told them (and the City) of this inevitable conflict back in August, but nobody seemed to care at that time.

Election Integrity Activist LaBonte Supports Election Commission Review of Zimet Complaint

From: Mike LaBonte Date: Fri, Apr 30, 2010 at 2:40 PM  Subject: Regarding the Zimet complaint

To: Kathryn.Koch;  Ward Hauenstein  Robert Leatherman
Hello Election Commissioners,
I have read the recent letter to you from Millard Zimet at http://www.glassballotbox.org/storage/Zimet4.29Complaint.pdf.   As an outsider to Aspen I would like to point out that while the topic of ballot anonymity may be discussed relatively rarely, it is widely regarded as one of the founding principles of how we vote in modern times. Practices such as inspecting ballots for legal compliance and shuffling them are in general either codified or taken for granted, although some election officials may mistakenly depend too much on their optical scanners and ballot boxes to perform some degree of randomization. Adopting a strong protocol for maintaining ballot anonymity would not only be a good practice, indeed, Aspen voters like all other voters certainly must already expect that their ballots can not be traced back to them, not even by election workers. Otherwise who would vote?