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:

Marks to again view Pitkin County ballots - a one-sidedly cautionary report on ballot access

Saturday, November 19, 2011

Marks to again view Pitkin County ballots

Inspection request modified to involve 100 ballots from latest election

Janet Urquhart
The Aspen Times
Aspen, CO Colorado

The Aspen Times

[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.

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

Secret meetings about public documents?

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.