Aspen Daily News--Update on DA Investigation June 1,2010

Investigation by DA nears completion

Writer: Curtis Wackerle  Byline:Aspen Daily News Staff Writer

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.

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

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

========================================================
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.

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?

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.

Email by Marilyn Marks to Election Commissioners concerning 2nd meeting: Aspen Election Commission

[April 18 2010 email from Marilyn Marks to two volunteer Aspen Election Commissioners regarding 2nd meeting of 2010 Aspen Election Commission. More comments on the meeting are found here: http://aspenelectionreview.blogspot.com/2010/04/second-meeting-of-aspen-2010-election.html]

Bob and Ward,

I had the opportunity to listen to an audio recording of the most recent meeting.

I am pleased that so many topics were candidly discussed. Thank you for doing that.

I look forward to participating in future meetings.

It sounded as if I am requested to make a list of my concerns about the May 2009 election and submit those to the EC, although I have not heard this other than by listening to the tape. I will certainly do this. I am assuming that your request is for me to have that submitted by May 8^th?

I did hear a few topics where I feel that there is some confusion or lack of clarity of the history:

1.    I believe that Elizabeth clarified this, but my litigation has nothing at all to do with IRV, although that seems to be a common misunderstanding. My litigation is ONLY focused on ensuring that public records of ballot images are accessible by the public. That needs to be true throughout the state of Colorado whether we are dealing with  IRV TrueBallot created images or images created in traditional elections with the Hart BallotNow system.

2.    Millard’s complaint is a most serious complaint (far more serious than any of mine!), and  needs to be candidly discussed and the implications fully understood. I was concerned to hear that it was initially passed off as “IRV related,” and toward the end of the meeting, as not important unless IRV is used again.  Millard’s complaint has to do with a constitutional issue cloud that will hang over the City for at least 3 more years. The problem is not solved by “shuffling next time.”  While that is crucial, what is the remedy, or at least the acknowledgement of the problem that the community needs to be aware of? In my view, that is a philosophical matter that merits a full and candid discussion, not to be shied away from because it is uncomfortable. 

Criticism of Caleb Kleppner Guest Editorial in Aspen Times Sept. 17, 2009: Aspen Election Transparency

This is an email written by Harvie Branscomb to Caleb Kleppner of True Ballot Inc. Sept. 17th, 2009 in response to a guest editorial written by Kleppner for the Aspen Times.  This email was not responded to in written form but there was a telephone conversation between Caleb Kleppner and Harvie Branscomb. This email, critical of the Caleb Kleppner's op-ed statement,  corresponds to the recent email of Marilyn Marks to members of the Aspen Election Commission linked here: http://aspenelectionreview.blogspot.com/2010/04/city-of-aspen-trueballot-inc.html

An open records request was filed to learn about city cooperation in the writing of this op-ed.  The result is found in the form of a pdf by clicking here .  On the pdf you will find Marilyn Marks Sept. 17, 2009 criticism of the op-ed as well as an email from Caleb Kleppner to Aspen City Clerk Kathryn Koch offering to cooperate on writing the op-ed and also a submission of a draft to Kathryn Koch for edits or modifications.
[above is by Harvie Branscomb]

Caleb

...

You have taken the salesman’s route of promoting transparency in Aspen, which is my agenda too, but you have rested your case on some misconceptions about the election which force me to argue with you.  I am sorry you did that, because I want to support the transparency of True Ballot’s system regardless of the election method. Unfortunately by glossing over facts as you (and the City of Aspen) have done, the public does not get a clear picture of what took place and where it needs to be improved.  I have been circumspect in my criticisms of the Aspen election, but this new publication forces me to expose additional details as I know them to the public.

Here are the line by line exceptions I have to your editorial. Please give me your rebuttal ASAP. As a first hand observer, I will rely on your corrections of my statements where your corrections are definitive from  your first hand experience.

(original guest editorial from the Aspen Times, interspersed with commentary by Harvie Branscomb in yellow.)

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.

HB>; Caleb, you are correct, and this editorial of yours is an example of that, unfortunately.  This letter will seek to elaborate on your distortions. I think perhaps you are correct about the big picture, but this picture must not be founded upon mistaken facts.

Discussion of ballot text for possible future Aspen voting methods for November ballot question: Aspen Election

A discussion and questions about the presentation of voting methods for future Aspen elections on the ballot for the November coordinated election.

From: Harvie Branscomb [mailto:harvie@media.mit.edu]
Sent: Friday, April 16, 2010 1:36 AM
To: 'Mick Ireland', Aspen City Council, Aspen Election Commission
Subject: deciding the method of voting

…

Several voting systems will be identified to be placed on the ballot.  One of them will be similar or same as the IRV used in 2009.

Another one is likely to be plurality/winner takes all, no majority required

Another one is likely to be vote for one, majority required, runoff if necessary (or vote for 2 if CC)

Another one could be e.g. approval voting (each candidate can receive one vote per voter, voter votes for as many as preferred, majority required, runoff likelihood reduced

Another could be e.g. district or party primary, followed by general election, etc.

Will the IRV choice be represented by exactly what was done in 2009 or by an improved description? This seems to be a key question. I now think that calling rank choice voting “IRV” is a mistake.  I now see it as “RRV” or reduced runoff voting- a system that makes runoffs much less likely but would call for a runoff in case a true majority of ballots was not achieved by the winner(s) of the rank choice vote.

Aspen response to Marks' response to Aspen's motion for attorney's fees: Aspen Transparency Litigation

On April 16, 2010 the City of Aspen filed this brief to support the argument that plaintiff Marilyn Marks should pay a total of over $67,000 in legal fees calculated at a rate of $385/hr, although city attorneys are paid far less than that. This motion is allowed by the decision of the court to dismiss the case, although that dismissal took place months after the motion was filed and only two days before a critical deposition was to be taken and two weeks before the hearing date where evidence would have been heard. 


Here we see Aspen arguing that although it failed to follow one of the court rules it had some reason not to be aware of the rule.  We then see the city argue that the Marks case is frivolous and vexatious- largely referring to the existing record in the case and claiming, again, that Marks' recent pleading,  that shows the uncertainty of the accuracy of representation of the paper ballot by the TIFF image, "is again an effort to change the facts to avoid attorneys’ fees, to avoid the dismissal, or to challenge the election."
[above is opinion by Harvie Branscomb] 

Click here for a pdf copy of the memorandum (as also found in text below)

Click here for a pdf copy of Defendant's Exhibit A (Colorado Court Rules - Determination of Motions)

Click here for a pdf copy of Defendant's Exhibit B (Court transcript from Jan. 28 2010)



DEFENDANT’S MEMORANDUM BRIEF IN REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR ATTORNEY’S FEES AND PLAINTIFF’S REQUEST FOR HEARING

Second Meeting of Aspen 2010 Election Commission- comments

At 3PM on Thursday April 8, 2010 the Aspen Election Commission met with 5 people in attendance- two of them the Aspen City Attorneys and other others being Jack Johnson (ex-City Council and currently a candidate for County Commissioner), Elizabeth Milias (ex-Aspen Election Commission) and Harvie Branscomb (Eagle County Canvass Board and editor of this blog).

The meeting was very calm and reasonable and productive.  The Commission decided to take in written complaints/compliments/suggestions by May 8 and looks like it will have a public brainstorming session sometime after that. The Commission primarily discussed how it would interface with the public, how it might help avoid any retribution for coming forward with complaints, and whether or not it would weigh in on the method of IRV voting or the choice of voting methods. Apparently one conclusion was to wait for a determination of what voting system would be used in the next election before further discussing IRV related details, but in the mean time to ask citizens to come forward with comments.
--

[Here are comments on the meeting by Elizabeth Milias, followed by an email sent by Harvie Branscomb to the Commission following the meeting.]

I found the following to be interesting points made at yesterday's meeting of Aspen's Election Commission:

• The "confidential memo" that outlines the EC's roles and responsibilities (as prepared by City Attorney John Worcester) remains confidential and privileged. The EC has received a copy, but its contents are not yet available to the public. It is up to Council to release this document to the public.

• The EC has determined that its individual members can have private meetings with citizens who wish to discuss election issues.

• The EC recognizes that there exists the potential for reprisals against citizens who bring forth election complaints and challenges, but the commission will not be part of this behavior.

• Citizens are welcome to write, call, present to, and lobby EC members regarding election issues, and despite Marilyn Marks being deemed "corrupt" for doing just this following the May 2009 election, this is now ok.

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).

Aspen Daily News and Aspen Times polls regarding Marilyn Marks' transparency suit

Here is the Aspen Times poll as of April 3, 2010:
http://apps.aspentimes.com/utils/polling/poll_results.php?poll_ident=1744

Which side would you like to see prevail in the ongoing legal wrangling over Aspen’s election ballots?

The city of Aspen		48.65% (198)
Marilyn Marks		26.29% (107)
Who cares?		25.06% (102)
407 votes

 Aspen Daily News poll:

Should the city of Aspen seek to recoup more than $50,000 from Marilyn Marks after her suit against the city was thrown out?

Yes  64% (242 votes)

No   36% (134 votes)

Total votes: 376

Above are the poll results as of April 3 2010. The live poll can be found at this link:  http://www.aspendailynews.com/poll/should-city-aspen-se

Site Navigation by Timeline - Use this article to enter this site through links to a list of events

Timeline for Aspen Election Review:  (updated 3/24/2010)

 [ this document will be frequently updated with both new events and older materials which have not yet been linked]

How Aspen Violated Colorado Ranked Choice Voting Rules

[Mike LaBonte,  an election quality advocate from Massachusetts posted  the following summary of one portion of his work related to the Aspen election on the BlackBoxVoting.org website on January 7, and accepted the invitation to post it here as well.   --posted by M. Marks.]

Colorado state law has a section CRS 1-7-1003 allowing for ranked choice voting. It describes a form of instant runoff voting (IRV) for single seat elections, and a form of single transferable vote (STV) for multiple seat elections. It also has a clause allowing IRV for multiple seat elections with a condition:
 A local government may also conduct an election pursuant to this subsection (4) using the principles of instant runoff voting specified in subsection (3) of this section to ensure that each elector has equal voting power and that an elector's lower ranking of a candidate does not count against the candidate to whom the elector gave the highest rank.

 Put another way, in an election in which candidate A is a winner, it must not be possible to have a set of ballots with candidate A ranked #1 and various other lower ranked choices, which upon changing only the lower ranked choices can make candidate A lose. Imagine that you ranked candidate A number 1 and that was your only vote in an election that candidate A wins. Now imagine you had instead ranked candidate A number one and candidate B number 2, and now candidate A loses! It can happen if the 2nd rank vote for candidate B moves B ahead of A in an early round, and A is eliminated even though A would have picked up more votes in a later round. This is one form of non-monotonic behavior. To be fair, a regular series of regular non-instant runoffs potentially has the same effect.


The method chosen by Aspen for their City Council race appears to attempt to utilize that last clause in CRS 1-7-1003 above. They did not use STV, but rather a separate IRV race for each council seat.


It can be proven with the ballot data from the Aspen May 5, 2009 election that a change in the outcome of the City Council race was possible, due to non-monotonicity. In that election Derek Johnson won seat 1 and Torre won seat 2. Briefly, if every voter who ranked Torre number 1 had also ranked Jack Johnson number 2, with no other candidates ranked, Jack Johnson would have won seat 1 and Derek Johnson would have won seat 2. Torre's victory would have changed to a loss, and his supporters would have caused it by their 2nd place rankings for Jack Johnson.


Although there is a debate about Aspen's non-release of actual ballot images, much information from that election has been made public, to their credit. Everything needed to reproduce the counting has been provided, including the "ballot string" files (interpreted from the actual ballots that we can't see) and configuration files for using the ChoicePlus Pro software used in the actual election. I have attached a zip archive with 2 subfolders. Folder "may5_original_camb" reproduces the counting using the Aspen rules, just to prove my setup replicates the original results. Folder "torre1_jjohnson2_camb" uses ballots modified as described above, in which voters who ranked Torre number 1 hypothetically defeated him by also ranking Jack Johnson number 2. It didn't happen that way. But it could have, and that is what Colorado state law seems to prohibit.

The files supporting this work are at: http://www.bbvforums.org/forums/messages/8/aspen_nonmono_irv-80803.zip

Marilyn Marks to Aspen City Council about May 5 2009 IRV Election Instant Runoff Voting

Marks to Aspen City Council Instant Runoff Voting Aspen May 5 09 Election

Harvie Branscomb to Aspen City Council about May 5 2009 IRV Election Review Instant Runoff Voting

Branscomb to Aspen City Council About 5-5-09 IRV Election Review