-Aspen's historic May 5, 2009 IRV election audited as single ballots-
5/5/09 Aspen CO held an instant runoff election (IRV) for mayor and 2 council members. Interpreted contents of each ballot, scanned by True Ballot, were publicly released. Open records requests for a CD of image scans were denied. Aspen has been sued to protect records from destruction and to allow inspection of the scanned ballot files. A Court of Appeals ruling holds that unidentifiable ballots are public records.
Search this and related blogs
Showing posts with label "aspen election". Show all posts
Showing posts with label "aspen election". Show all posts
ASPEN — A candidate's request to inspect ballots cast in Aspen's 2009 municipal election has set in motion similar efforts around Colorado. The end result might be new rules that govern the review of ballots or that withhold them from public inspection altogether.
Meanwhile, Aspen resident and 2009 mayoral candidate Marilyn Marks is expected to review on Tuesday 100 ballots cast in Pitkin County's Nov. 1 election. Rather than simply eye the ballots, though, Marks has suggested that county Clerk and Recorder Janice Vos Caudill and a group of election officials look over 100 to 200 ballots with Marks and discuss whether any of them are “identifiable.”
The potential to link a voter to a particular ballot via various election information that is available to the public through the Colorado Open Records Act (CORA) has emerged as a concern among county clerks across the state as they respond to ballot requests from Marks and others.
Carolyn Sackariason’s article, “Litigious days at City Hall” (Aspen Daily News, 11/21/11), includes a mystifying yet illuminating sentence: “The city, however, contends that releasing the ballots, even if they’re kept anonymous, will substantially injure the public interest because voters could potentially be identified.”
This sentence captures the essence of an epic controversy over who should see ballots. Aspen has withheld the prepared CD of the 2009 ballot scans that could have accompanied disks I and others received of the vote patterns and GrassRootsTV’s recording of ballot scans projected at City Hall on election night.
The sentence reveals the prevailing misunderstanding about why democracy needs anonymity and what ought to be secret in our voting method that is quirkily, but inaccurately, known as secret ballot. It isn’t what’s on the ballot that’s supposed to be secret — it’s the identity of the person who voted it. Our state constitution calls it “secrecy in voting,” never mentions a secret ballot, and specifically requires that no one can know who voted a particular ballot. That’s anonymity. It is a beautiful thing that Aspen may have forgotten.
November, 23 2011
Maurice Emmer and Harvie Branscomb
Special to The Aspen Times
Aspen, CO Colorado
We both write repeatedly about the importance of election transparency. We present facts. We don't make things up. Stories about revealing ballot “secrets” often sound like scary tales told to children. They are designed to frighten, not inform. Jack Johnson's scary story recently published in another paper might trigger your instinct to fight, but that's what fiction and political propaganda are intended to do.
Johnson's column, and recent announcements by the city of Aspen, misconstrue election and open-records law as well as misrepresent the Marks v. Koch case and the Court of Appeals' unanimous opinion in favor of ballot transparency. As untrue assertions have become Aspen's norm, here we try to separate fact from fiction.
In the previous blog posting I annotated the Aspen Times article (http://aspenelectionreview.blogspot.com/2011/11/marks-to-again-view-pitkin-county.html) that seems based upon the contents of the following Pitkin County press release. That article promoted confusions that I felt the needed to be pointed out, such as the use of the misleading terms "anonymity in voting" and "secret ballot".
The Colorado constitution refers to a different combination of terms: "secrecy in voting" and anonymous ballots - and there is a big difference. Looking at the final paragraph of the Pitkin County press release below, one can see that the Pitkin County Clerk does understand this difference and is careful to use the correct terminology.
However, the Pitkin County Clerk also seems to have concluded that transparency and anonymity are essentially in conflict and that both may not be achievable simultaneously. She has also used an oxymoron when she writes "anonymity of their ballots" - since once rendered anonymous, personalization of the ballot does not exist. So I find myself glaring at the irony of the use of the word "their" next to the word "ballots".
Here is a better wording I would prefer to see used in place of what is in the release: "I will work to assure that each Pitkin County individual has the ability to exercise his or her right to vote with confidence in the anonymity of ballots cast in this county and the untraceability of individual votes on those ballots."
The two concepts that are irrevocably in conflict are "secrecy" and "transparency" of ballots.
On the other hand, anonymity and transparency of ballots are perfect compliments to each other. The author of the press release may have failed to realize this. Both the press release and the article contain no reference to the benefits to be obtained from transparency of ballots. I hope the Pitkin County Clerk and Recorder will come to understand these important principles and will then somehow help convey her understanding to fellow clerks. I have highlighted the paragraph in the text shown below that was not reflected in the Aspen Times article. I continue to have a reservations about the conclusion that the judicial process produced "partial answers on an ad-hoc basis."
The Appeals Court decision, far from ad-hoc, allows the clerks to have discretion to withhold identifiable ballots. Judge Gonzales (12th JD) in the Gessler v Myers case in August also wrote in separate but consistent opinion,“ An election record, including a voted ballot, may be disclosed as long as the identity of the voter is not disclosed."
This interpretation is not inconsistent with Colo. Const. art. VII, § 8 that states that a ballot cannot “be
marked in any way whereby the ballot can be identified as the ballot of the person casting it.”
Clerk Vos Caudill seems to see complexity where others see relative clarity and simplicity. If Vos Caudill can identify the voter from looking at the ballot, then she shouldn’t disclose the ballot in an identifiable form. But if voter markings explain that ability to identify, she should be considering referring those ballots to law enforcement. Markings rendering a ballot identifiable are illegal.
Sometimes the way ballots are printed focuses on a very small number of eligible voters in a split precinct. Low turnout can create the ability to identify the voter associated with a unique ballot style. That problem is easily predicted and such a unique ballot can be withheld from public inspection until the small-split-precinct matter is addressed systematically. If an election official cannot identify the voter from looking at the ballot, the ballot should be eligible for inspection by the public.
Harvie Branscomb 11/20/2011 - the Pitkin County release follows the break:
[The following news report includes substantial space given to discussing speculations about problems with public ballot access, and no space given to the potential benefits. For that reason I have annotated the article here, in blue. Harvie Branscomb]
ASPEN — Elections activist Marilyn Marks will have an opportunity to inspect 100 ballots cast in the Nov. 1 Pitkin County election and obtain digital copies of 25 of them.
The cost of labor and copies will run Marks about $117, estimated Pitkin County Clerk and Recorder Janice Vos Caudill.
Marks last week made an open-records request to view 605 ballots cast in the recent election — those that were selected for a required, post-election audit.
According to a press release issued by Vos Caudill on Friday, Marks offered to reduce the scope of her request, given time constraints and the volume of work at the clerk's office, and inspect just 100 of the 605 audited ballots. Twenty-five of the 100 ballots, of Marks' choosing, will be scanned and provided to her on a disc, Vos Caudill said.
The clerk, who was out of town on Friday, said she anticipates selecting the ballots to be viewed on Monday and laying them out for Marks' inspection on Tuesday.
This is the second time Marks will look at a sampling of county ballots; last month, she asked to see five to 10 ballots from the county's November 2010 election and was provided 10 to inspect in the clerk's office.
Marks, the Aspen resident embroiled in a legal battle with the city of Aspen and three other Colorado counties over the right to view election ballots, said her latest request to Pitkin County is intended to facilitate the establishment of policies and procedures for complying with such requests. Being able to view ballots cast in an election is a matter of election transparency, according to Marks.
The exercising of the CORA law is important because it demonstrates the lack of negative impact of the process of inspection to those who fear such negative impacts. In fact, there are many benefits to be obtained from public verification of elections including by occasional inspection of ballots under appropriate controls. Sadly not one of them is mentioned in this article, nor are these benefits often mentioned in other news reports. It would appear that each records request in Aspen will be answered by an opportunity for the Clerk to advertise fears over misuse of the contents of ballots, rather than a celebration of the benefits of citizen oversight. This article simply reveals that Pitkin’s clerk is not particularly friendly to public oversight.
Heading 1There are many misunderstandings projected by Jack Johnson’s column below. Citizens are accustomed to being lied to or misled in the newspaper, but in this case, the misunderstandings are stacked upon a context of consistent misinformation put forth from a variety of sources that ought to be dependable and credible, but may not be. What is so aggravating about this column is that it comes at a time when people like me are trying to dissect the facts out of the usual mudslinging to propose legislation to implement what Colorado's constitution actually calls for – anonymous ballots. I hope our legislators are reading Jack’s column not just with a grain of salt, but with a whole box of it.
Black text is published text by Jack Johnson (former Pitkin County Commissioner, candidate for Aspen City Council, May 2009, as printed in a column in the Aspen Daily News). I have applied strikeout on the defective portions that I would not have included in the column, if I were writing it. (Harvie Branscomb)
Red text in brackets [] is by Marilyn Marks ( candidate for Mayor, May 2009)
Blue text in brackets [] is by Harvie Branscomb (Colorado Voter Group, Coloradans For Voting Integrity)
Can we keep a secret?
Aspen
Daily News Staff Report - (wrong- this is actually a regular bi-weekly column by Jack Johnson)
Friday,
November 18, 2011
Election law is complex. It is also important. Marks v. Koch
seeks to overturn a century’s worth of election law and should be reviewed by
the Colorado Supreme Court.
[The election law has not been overturned in any way. The Open
Records Law, which has been in place for over 40 years and which allows ballots
to be public records, has merely been upheld. It is modeled after the same open
records law that permitted the Bush/Gore ballots or the Coleman/Franken ballots
to be reviewed by the press and public to reach their own conclusions.] No elected or appointed official in Aspen invented Colorado election law or the
secret ballot. They are only charged — for our benefit and upon our behalf —
with interpreting and implementing it. Average citizens, the press and even
loud-mouthed local public policy columnists all very much take the “secret ballot”for granted. We have
forgotten, if we ever knew, how hard it was to win the right to such because
much of the intellectual thought regarding election law and the right to a
secret ballot was settled in the 19th century.
[Actually “secret” ballots were allowed until 1947, and Colorado
ballots were traceable if an official peeked at the concealed ballot number on
the voted ballot.Before 1947, three election officials with
separate keys had to collaborate to open the ballot box. They could then remove ballots
stuffed by ineligible voters or fraudulent officials by checking the identities
of the ballots using the printed numbers. That’s not what we now (misleadingly)
call the “secret ballot,” but there was a requirement to keep ballots as secret as
possible using a glass ballot box and three keys. “Secrets” to be shared
with and by election officials are subject to abuse. So, in 1947, the
constitution was changed to guarantee that ballots are anonymous and the
officials could obtain no “secrets” about how we vote. Believe it or not,
that is what we now call the “secret ballot” or “Australian ballot.” The only “secret” is your
privacy in the act of voting the anonymous ballot. The contents of ballots are
no longer “secret” as that was a dangerous proposition. You can perhaps begin
to understand how poor a term the phrase “secret
ballot” is. It is utterly and essentially confusing. And that confusion is
particularly rampant in Aspen. That’s a confusion that is not at all remedied
by Jack’s confused opinion.]
This group of letters about ballot transparency from Nov. 12 to Nov. 16, 2011 starts with a letter by a national hero of election transparency, Mitch Trachtenberg. Mitch is one of the founders of the Humboldt County Election Transparency Project (humetp.mitchtrachtenberg.com).
In a cooperative effort between election officials and citizen activists, Humboldt County California has published ballot scans on-line for at least 5 elections with very positive results that include the discovery of a serious bug in Diebold GEMS software that had not been publicized. This is one of many examples of cases where citizen activism and oversight have improved elections practice.
See also Mitzi Rapkin's pitch on behalf of the City of Aspen for keeping ballots secret. This column lacks credibility in several areas and deserves an annotated version that will I hope be coming soon.
Heading 1
Aspen Daily News
Make ballot publication an election standard
Wednesday, November 16, 2011
Letter to Editor by Mitch Trachtenberg, Trinidad CA
Two separate public bodies in Aspen held secret sessions to discuss my open records request- whew! The irony overwhelms me.
Last night the Aspen Election Commission met to discuss my records request to inspect Aspen’s 2011 ballots, that were voted in a conventional election (not IRV) under procedures that were extensively discussed and enacted prior to the election, and conducted by an experienced election manager from Pitkin County, who is also a lawyer and who understands well the importance of anonymity. I have reason to believe that these ballots are in fact anonymous for all practical purposes and would like to demonstrate the fact to counteract widespread myths that Aspen ballots might be traceable. I issued an open records request to inspect Aspen’s 2011 ballots, that are slated for immediate destruction according to the antiquated state law concerning municipal elections.
Tim Cooney throws some nasty punches but is wildly off the mark attempting to knock Marilyn Marks' election reforms. Tim's 90-word cluster bomb was cleverly buried in his letter responding to Elizabeth Milias on The Aspen Club (“Can't trust the know-it-alls,” Friday, May 28, The Aspen Times). (http://www.aspentimes.com/article/20100528/LETTER/100529828/1020&parentprofile=1061)
Marilyn Marks' election reform work is neither “self-interested,” nor born of “vanity.” Equally ill-informed anonymous Aspen Times bloggers have been bleating like annoyed lambs “why doesn't she just let it go?” Some officials claim Marks is still on a “political campaign” and imply that campaigning is bad for the public. Contrary to all of this complaining about criticism — civic-minded citizens will be thanking Marilyn for an extremely tough effort to confront real mistakes made by a few people currently holding power.
Marilyn Marks' comment: Although the City does not have a copy of the complaint, Mr. Springer, claims that the complaint has "no merit," -- presumably without reading it. He also claims that the there were "no violations of any election laws." If it is not a violation of election law to leave the keys on/in the ballot box, I can't imagine what would be a violation. That is one example of many--like failing to use certified software. Interestingly he claims that it is the "most open, honest, well-run election" in Colorado. Surely many jurisdictions will take issue with that!
An investigation by the district attorney’s office into the city of Aspen’s May 2009 election that was set off when losing mayoral candidate Marilyn Marks filed a criminal complaint is nearing completion.
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
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.
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.
========================================================
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
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.
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.
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.
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.
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?
Millard Zimet updated his complaint on the alleged unconstitutional nature of the May election, because of the lack of voter anonymity. The complaint will be heard by the Election Commission on May 5 at 3:30 p.m. in a City meeting room.
The complaint update details how he determined Mayor Mick Ireland’s likely voting data from cast vote records improperly collected in order of poll book entries, and then publicly released by the city. (the ballots were not shuffled, nor were the ballot image files, before being scanned or released.)
Mayor Ireland declared Zimet’s complaint to be of “no substance,” and that the Commission has “nothing to act on.” The meeting will surely be interesting. The legal advice will apparently be offered by the City Attorneys who helped design this system and did not require the randomizing of ballot records. Additionally they represent the elected officials.
Ballot transparency a statewide debate
