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 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?

Provocative bill to take Colorado to a universal mail-in ballot will not be introduced

Colorado Secretary of State Bernie Buescher speaking to the newly appointed Best Practices and Vision Commission just announced that the 69 page bill being prepared for late introduction to take the state to a universal mail-in ballot with "service centers" and election day registration will not be introduced this year.  The Best Practices group (citizens, clerks, legislators and representatives of parties) will consider this among other issues. It's first meeting was today.  One of the interesting revelations of the first discussion was to note that most municipalities do not check signatures on mail-in ballots (and are not required to do so).

The following press release (after the break)  from the Colorado Secretary of State is misleading. It offers a false alternative- between "touch screens in polling centers" and "mail ballots fed through high speed scanners".  Neither of these is technically necessary in a traditional polling place counted election. In fact both of these are the same two limited choices that would have been forced on voters as a result of the "Modernization Bill" that will not be introduced this year.  The real choice (still available to many voters in Colorado) is between paper ballots counted in precinct polling places using reliable paper poll books, and on the other hand vote centers or service centers dependent on electronic pollbooks and functional networks and high tech centralized facilities for counting paper ballots requiring moving ballots to where they are counted (either from precincts or by mail).

The conversation about mail ballots has not exposed the deleterious effects it has on citizen oversight. Too often the discussion is framed in a promotional manner.

The Secretary of State did express a set of goals for the Best Practices and Vision Commission that features accuracy high on the list and does not mention convenience or cost.  If he meant to place convenience and cost at a lower priority than accuracy of counting and eligibility then I compliment him on setting goals properly.  Watch the Secretary of State's website for audio recordings from these meetings: www.sos.state.co.us/pubs/pressrel/PR20100319Members.htm

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. 

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

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

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.

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.

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]

Letter by Millard Zimet to Aspen Election Commissioners -

MILLARD J. ZIMET

1315 Mountain View Drive

Aspen, CO 81611

millard [at] sopris [dot] net

Via Email:

Kathryn Koch

Ward Hauenstein

Robert Leatherman

April 2, 2010

Dear Aspen Election Commissioners:

I’m sorry I was out of town for your meeting held earlier this week.  I’m writing to introduce myself to the new Election Commission members, and to briefly explain the issues that have concerned me arising from the May 2009 election.

My initial concern was whether other people could tell how I voted. The Colorado Constitution requires secret ballot elections, and living in a small town I want to make sure my voting choices remain anonymous. My concern was heightened when I learned that the City of Aspen had not shuffled the ballots and had publicly released both the precinct logs (showing the names and order of the voters as they signed in at each precinct) and the strings generated from the ballot scans (showing how each ballot was voted). I investigated and determined that, because the ballots and strings hadn’t been shuffled, if I could find my string then I could see how the voters listed near me on my precinct log voted, and vice versa.  So I concluded that my ballot was not secure.  That led me to file my complaint dated August 30, 2009, because I felt (and still do feel) that the City of Aspen violated my constitutional right (as well as the constitutional rights of all Aspen voters) to a secret ballot election.  The City of Aspen has never responded in writing to my complaint, and has never denied the facts alleged in my complaint.

to aspenpost.net blogger/editor Michael Conniff (a.k.a. the Con-Man)

to aspenpost.net blogger/editor Michael Conniff (a.k.a. the Con-Man)

Michael your penchant for going negative astounds and disappoints me. I left town the day after getting you and Marilyn together for a pleasant and amiable chat and before I managed to return from a very important meeting on election auditing and citizen activism in DC, you are fighting her again. Did she start this recent fight? I don't think so. All she did is respond to your initial faint praise which she and I both recognized as the most you could possibly do to be nice to her. And we were both thankful for your effort.

I appreciate that you appreciate her work on election reform in which you say she is helping me. I need all the help I can get but Marilyn is so well suited to pursuing election reforms I can only say I am providing her some minor help with my full time volunteer effort. There was no lack of transparency of the election commission. NONE. ZIP. NADA. In fact there was plenty of transparency- thousands of pages of it. I do not believe you read all of THOSE pages. (continued)

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.

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

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:)

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