CItizen Center sues Colorado Secretary of State and 6 county clerks

Read the actual court complaint as filed here: CitizenCenter_complaint_as_a_pdf

A new non-profit in Colorado sues SOS and 6 clerks over unconstitutional ballot traceability. Supportive documentation is located here: http://bit.ly/citizencentersuit

I learned only at the last moment of this project by The Citizen Center http://thecitizencenter.org (a new non-profit organized recently by Marilyn Marks) to bring  a suit in federal court against 6 Colorado counties' clerk and recorders as well as the Secretary of State and saw this specific information this morning. 

The counties include Eagle county, the county where I live and often serve as Canvass Board member. A number of county clerks (but not all) included in the suit have published specific details of the traceability of ballots apparently for the purpose of supporting arguments that ballots should be kept private to election officials and not made available to the public. An approach that acknowledges traceability and fails to achieve anonymity of ballots appears to be inconsistent with two constitutions. That is I believe the basis of the argument this suit will make.

Ballot transparency a statewide debate; poll favors transparency

Ballot transparency a statewide debate

Issue might wind up before Colorado Legislature

Janet Urquhart
The Aspen Times,  Aspen, CO Colorado

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.

Why insist on secrecy but dismiss anonymity?

http://www.aspentimes.com/article/20111124/COLUMN/111129937/1021

Maurice Emmer and Harvie Branscomb: Guest opinion

Why insist on secrecy but dismiss anonymity?

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.

A little history, not made up:

Pitkin County Press release differs from Aspen Times article

 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 (12^th 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:

Can we keep a secret? Column by Jack Johnson annotated by Harvie Branscomb and Marilyn Marks

There 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. ]

Aspen's appeal to hide voted ballots from the public: action and reaction

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.

Aspen Daily News

Make ballot publication an election standard

Wednesday, November 16, 2011

Letter to Editor by Mitch Trachtenberg, Trinidad CA

http://www.aspendailynews.com/section/letter-editor/150185