Branscomb Letter to Editor--Amid low blows, Marks takes the high road--June1,2010

Dear Editor:

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.

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.

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.

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.

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

TrueBallot certifies Aspen May 5, 2009 election "fair and accurate" on April 12, 2010

The following was produced as a response to a Colorado Open Records request for the certification called for in the agreement between TrueBallot, Inc. and the City of Aspen.   The contract, signed by the City Clerk on April 23, 2009  states that "upon completion of the tabulation of the ballot, TBI and/or John Seibel, Esq. shall, if no substantial irregularity has occurred, certify the ballot as fair and accurate."  The original contract in pdf form can be found by clicking here.  The open records request was sent on April 8 2010 and the following letter was written on April 12, 2010.

TrueBallot, Inc
Election Services & Solutions
3 Bethesda Metro Center
Suite 700
Bethesda, Maryland 20814
(301) 656-9500
FAX (301) 656-3558
http://www.trueballot.com

John L. Seibel
President
john@trueballot.com

April 12, 2010

Kathryn Koch
City Hall
130 S. Galena St.
Aspen, CO 81611

Dear Ms. Koch:

I believed that we provided a certification of the May, 2009 Aspen City election at the time of the election when all of the election data was presented.  However, in the event that certification was not provided, please accept as this letter as certification that the tabulation of the ballots in May, 2009 Aspen city election as presented on May 5, 2009 and subsequently amended to correct an insubstantial error in the final tabulation of the results in the Mayor's race, were fair and accurate.

Sincerely,
TrueBallot, Inc

John L. Seibel, President

Marks' reply to Aspen regarding motion to reconsider: Aspen Election Transparency

On April 13, The attorney for Marilyn Marks filed a response to the City of Aspen response to her motion to reconsider. The text of the response is below the break and follows Marilyn Marks' comments written to accompany the filing as provided to the Aspen Election Commission.


The original pdf of the filing is available by clicking here.

The filing argues that 1) Colorado law does not allow the presumption that ballots cease to be anonymous once they are voted; 2) the TIFF files are not “ballots,” and they should not be treated as “ballots” for purposes of municipal statutes; 3) contests are not the only circumstance in which municipal statute allows ballots to be removed from the ballot box; 4) “substantial compliance” is the appropriate standard for the Defendant to observe in performing her duties under Title 31, and allowing an open records law inspection of the TIFF files is consistent with substantial compliance; and 5) the Court’s review of the legislative history of the municipal law is particularly appropriate in view of the Court’s decision to interpret the term, “ballots,” to include the TIFF files.

Link to previous filings in the Marks v. Koch Aspen Election Transparency Litigation:
http://aspenelectionreview.blogspot.com/2010/04/memorandum-in-opposition-to-motion-to.html

UNDERSTANDING WHAT “SECRET BALLOT” MEANS IN COLORADO - an illustrative chart

		UNDERSTANDING WHAT “SECRET BALLOT” MEANS IN COLORADO THE INTERSECTION OF PRIVACY (SECRECY IN VOTING) AND ANONYMOUS BALLOTS (the character of the process of voting interacts with the character of the produced record -these combine to produce election integrity while allowing full records transparency) SECRET DOES NOT EQUAL ANONYMITY! ANONYMOUS BALLOT (NO VOTER IDENTITY)
		NO	YES
PRIVACY (SECRECY IN VOTING)	YES	Not Anonymous but Private Example: Ballot with a serial number that can be tied to the poll book number. Ballot is voted in private (no one watching). Someone with access to poll book and ballot can learn how the voter votes. Was legal in Colorado until 1946, now illegal. Ex: Ballot marked by voter to identify own ballot  (illegal)	Anonymous and Private Example: A ballot marked in private. No voluntary or involuntary identifying marks. (A proper and legal ballot.) Ballot may be viewed by the public; images of ballots may be given to the public without sacrificing the privacy of the vote. Allows full public verifiability of an election.
	NO	Not Anonymous and Not Private Ex: Ballot with a serial number tied to the pollbook marked within view of a poll worker. (illegal) Ex: Ballot purposely marked with voter’s initials while candidate looks on. (illegal)	Anonymous but Not Private Ex. Ballot with no identifying marks, but poll worker watches the voter marking his ballot. (illegal) Ex: Voting in clerk’s office with no privacy booth, where other voters or candidates can watch. (illegal)

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).

What’s being hidden, and why? (Letter to Editor by Al Kolwicz) Aspen Transparency Litigation

What’s being hidden, and why?

Does anybody know why the City of Aspen is fighting so desperately to prevent public review of the May 2009 election files?

Is there something within the computer files that if disclosed could embarrass City officials?  If so, City resources shouldn’t be used to protect these officials.

Are officials misusing the powers of government for political purposes?  Are they intending to crush anyone who opposes their objectives?

Let’s think about it.  The City has refused a second public viewing of scans of ballots.  Nowhere in Colorado’s Constitution or Open Records Act, or Colorado’s election law or Aspen municipal codes, are officials exempt from producing these files (not the ballots) in response to an Open Records request.  Yet Aspen has refused every such request.

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]

City looks to profit from citizen activist temporary loss in court

Another perspective on this news: Aspen decides to charge $385/hr for their salaried lawyers' time.  This would, if the court agrees, net Aspen a nice profit on their effort to prevent access to public records and deposition of the election contractor by their citizens.  (opinion by Harvie Branscomb)

http://www.aspendailynews.com/section/home/139875

City looks to hit Marks with $70K legal bill

by Curtis Wackerle, Aspen Daily News Staff Writer

Friday, March 26, 2010

The city of Aspen is seeking $70,850 from Marilyn Marks to recoup attorneys’ fees and other expenses related to her lawsuit seeking digital copies of ballots from last May’s election.

In a motion filed Thursday in Pitkin County District Court, the city said that attorney John Worcester spent 129 hours on the case, while special counsel Jim True spent 45 hours on the case. Although Worcester and True are both on salary, another Aspen attorney, Maria Morrow, wrote in an affidavit that attorneys of Worcester and True’s “skill and experience” could reasonably bill out at the rate of $385 “in this area for a claim of this nature.” This brings the total attorneys’ fees to $67,047.

Punitive process: Aspen to voters, in a nutshell (letter by Harvie Branscomb)

Punitive process

Thursday, March 25, 2010

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Editor:

Aspen to voters, in a nutshell: Trust us. Of course we will do no wrong. We tried a really cool, completely new, election system. We promised transparency but didn’t fully give it to you, sorry. We gave you only enough to give you cause for concern, but not enough for confidence. If you are concerned, though, don’t come to us. We won’t respond positively to you, but you will hear jokes about how much of our time you are wasting. We hope you like jokes. Don’t go to the secretary of state, either. They don’t have jurisdiction over our election. We do. If you still have concerns don’t go to the Election Commission. Even if they listen to you, we can and will make them disappear. Don’t go to the court system either, because if you do we will do everything we can to dismiss your case; we will try to prevent you from getting the information you need; we will see if we can demonize you by making claims about your motives in the legal briefs; we will sue you afterward to punish you for trying. It will cost you a bundle to even try to get a day in court, and we will do our best to make sure you fail and no one else like you ever asks again.

Harvie Branscomb
El Jebel

Marks v. Koch: last ten days: City brings out big stick: Aspen Transparency Litigation

Just the last ten days of media coverage related to the Aspen Election Review:  breaking news, Aspen brings out the big stick.  Harvie Branscomb

Mar. 13, 2010:  Guest opinion: A blow to election transparency (Guest opinion by Marilyn Marks)

http://www.aspentimes.com/article/20100313/COLUMN/100319909&parentprofile=search

Mar. 13, 2010: Bravo, Marilyn (letter by Harvie Branscomb)

http://www.aspentimes.com/article/20100316/LETTER/100319851/1020&parentprofile=1061

Media Coverage of Marks v. Koch Dismissal Aspen Election Transparency

Links to other media coverage of this topic are here:

2010: View

2009: View

Below the break are recent articles (since March 11 2010) on the Aspen election review and litigation topics

Bullet Voting in Aspen's IRV Election - Memo by Millard Zimet

MEMORANDUM

To:       Aspen City Council

From:   Millard Zimet

Re:       Bullet Voting in the May 2009 Election

Date:   March 15, 2010

­­________________________________________________________________________

The purpose of this memo is to observe the actual voting data generated by Aspen’s May 2009 Mayoral and City Council IRV elections with regards to bullet voting, and to observe whether bullet voting impacted the outcomes of those elections.  This memo is expressly not to be construed as an attack upon any person, elected official, candidate, government official or entity, political party, or political persuasion.

The data in this memo is derived from the strings, which I have previously sent to you in Excel format.  If you want to replicate the data contained in this memo, please take those strings and use the “filter” function in Excel to sort the data.

[continues below the break]

Letter to Aspen City Council regarding Dismissal of Marks v. Koch and attached letter to editor

The printed version of the March 12 2010 letter to the editor of the Aspen Daily News by Harvie Branscomb is available on line here:  http://www.aspendailynews.com/section/letter-editor/139658


It was re-titled "Ballots brouhaha" by the paper.


Here below the break is an extended cover letter to the Aspen City Council containing a copy of the letter as submitted:

Commentary on Dismissal of Marks v. Koch - Aspen Election Transparency

Here is an original opinion piece written by Harvie Branscomb on March 10, 2010. A linked html version of the Court ruling is found here: http://aspenelectionreview.blogspot.com/2010/03/judge-dismisses-marks-v-koch-case-aspen.html

On Wednesday District Court Judge Boyd decided, months into the process of litigation, to dismiss a case brought against the Aspen City Clerk to obtain public access to anonymous digital ballot images from a May 5 first-time in Colorado Instant Runoff Voting municipal election. The dismissal comes two days before an important deposition of the election contractor would have explained the election process on public record and a mere two weeks before the planned trial date.
(continued below the break:)

Judge Dismisses Marks v. Koch case - Aspen Transparency Suit

The following is the order made March 10 2010 by the District Court dismissing the Marks v. Koch case and making the planned deposition of TrueBallot Inc on March 12 moot as well as vacating the hearing set for March 22 and 23 for which extensive plans for arguing the merits of the case had been made.

Link to the rest of the coverage of this case is here: 

http://aspenelectionreview.blogspot.com/2010/02/defendants-reply-to-surreply-regarding.html

The link to the original document (transferred by OCR into search and screen-friendly text below the break): Order on Pending Mot.pdf

Defendants reply to Surreply regarding Protective Order - Marks v. Koch (Aspen Election Transparency Suit)

Below the break is the memorandum by the Aspen City Attorney responding to the Plaintiff's surreply regarding the City's request for a protective order to prevent or to limit the deposition of election tabulation contractor TrueBallot Inc. by Marilyn Marks.  This is the fifth document in the series discussing the access to TrueBallot's testimony.  The City again fails to acknowledge that Plaintiff (and the public) has a reason to inspect the ballot images- namely to be able to understand and be able to correct for errors and irregularities in the election system to protect the quality of the election process for the future. The City acknowledges only two possible such motivations- contesting the election or determining how individual voters voted.  The city has not only mis-characterized Marilyn Marks' motives,  but in addition, the motivation for requesting public information by CORA is not relevant according to law.

Above is opinion by Harvie Branscomb.
Previous coverage of the case is found here: http://aspenelectionreview.blogspot.com/2010/02/plaintiffs-surreply-regarding.html