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.

Election Activist Mike LaBonte Comments on Michigan's Public Access to Ballots

 Laws regarding freedom of access to voted ballots are often fuzzy at best, and seem downright restrictive at worst. Michigan Attorney General Mike Cox has written a very enlightened opinion responding to a question from Michigan Secretary of State Terri Lynn Land. Cox concludes:

"Voted ballots evidence the electors' preferences, and ultimately support the election or defeat of candidates and the approval or disapproval of ballot proposals in an election. They are the primary source for election results. Therefore, voted ballots are "writings" that record meaningful content and constitute "public records" for purposes of the FOIA."

He then goes on to address common misunderstandings of "secret ballot":

"Importantly, the question you pose does not raise "secrecy of the ballot" concerns because, as described above, a ballot is no longer traceable to the elector who voted it once the stub with its unique serial number is removed and the ballot is placed in the tabulator. Once placed in the tabulator, the voter's ballot and the selections recorded upon it become anonymous."

The opinion is thorough, well written, and a great read for those who wish to better understand the issues of election transparency, even for those outside of Michigan.

http://www.bbvforums.org/forums/messages/150/MI_AG_7247-80970.pdf

http://www.bbvforums.org/forums/messages/150/MI_AG_7247att-80971.pdf


This is yet another victory in the fight for election transparency. One state at a time people are realizing that the genius of the Australian ballot system lies in it's ability to simultaneously provide private voting and ballot transparency.

Michigan's Ballots are Pubilc Documents---Why Not Aspen's?

The Michigan Attorney General recently handed down an opinion confirming that voted ballots in Michigan are public documents.
If Michigan citizens can look at their ballots? Minnesotans' theirs, Floridians theirs, why not Aspen?
If Longmont, Colorado citizens can be involved in post elections using real ballots why are Aspen's ballots secret?
If El Paso County (Colorado Springs) can have extensive citizen post election audits, why do Aspen's ballots have to be hidden away from all but the city officials?
See a full explanation from the Michigan AG's opinion, demonstrating that ballots are to be non-traceable to the voter. The same facts and logic should apply in Aspen.

http://www.glassballotbox.org/storage/MichiganCase.pdf

Text of Michigan Attorney General's Opinion on Voted Ballots and FOIA

Copied from: http://www.ag.state.mi.us/opinion/datafiles/2010s/op10324.htm

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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich. Dept. of Attorney General Web Site - http://www.ag.state.mi.us)
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STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

ELECTIONS:

FREEDOM OF INFORMATION ACT:

PUBLIC RECORDS:

SECRETARY OF STATE:

Access to ballots voted at an election under the Freedom of Information Act

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?

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.

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)

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

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

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

Plaintiff's Surreply regarding Defendant's Motion to protect TrueBallot from deposition - Marks v. Koch (Aspen Election Transparency Suit)

On Feb. 23, 2010, the attorney for Marilyn Marks filed a 3 page memorandum further pursuing opposition to the City of Aspen request for a protective order to prevent deposition of TrueBallot, Inc. by Marilyn Marks. This memorandum, shown here below the break, refers to additional case law which is pertinent to what argument is to be used in the balancing test which would form the basis for denying the Plaintiff the right to obtain testimony by deposition.

Above is opinion by Harvie Branscomb.
Click here for the original pdf of the SurreplyToMotionForProtectiveOrder.pdf
Previous coverage of the Marks v. Koch transparency case is located here: http://aspenelectionreview.blogspot.com/2010/02/reply-in-support-of-defendants-motion.html

2010 links to media coverage of Aspen election activity and review

 Because of the massive coverage on this topic from 2009 the archive of the past year has been separated into another post here: http://aspenelectionreview.blogspot.com/2009/08/links-to-media-discussion-of-ballot.html

Below the break are links to 2010 coverage:

Reply in Support of Defendant’s Motion for a Protective Order- Marks v. Koch (Aspen Election Transparency Suit)

On February 16, 2010 the Aspen City attorneys filed a memorandum in support of their motion for a protective order to prevent or limit Marilyn Marks from deposing TrueBallot Inc. staff (who were election consultants to the City of Aspen and were personally involved in tabulating the Aspen May 5 IRV election as well as creating the CD containing ballot images of the 2,544 ballots cast in that election).  Marilyn Marks seeks to inspect the CD containing the ballot images.

The memorandum by the Defendant appears to seek to impair the discovery of facts in the course of the litigation.  The Defendant is arguing that the Plaintiff is attempting to contest the election outside of legal time constraints and making suggestions about that motive.  Defendant is also appears to be making the argument that benefit to the public interest is not among the possible  reasons to inspect ballot images, and that testimony by TrueBallot may show "errors and irregularities" which may be of interest, but not relevant to the case at bar. On the other hand, the possibility of learning about "errors and irregularities" does seem to me to be a reason to inspect the ballot images.

Above is opinion by Harvie Branscomb.  Below the break is the memorandum.  Here is the link to the earlier coverage of the case: http://aspenelectionreview.blogspot.com/2010/02/marks-v-koch-plaintiff-response-to-city.html

Here is a link to the original pdf of the Reply Memorandum. What is below was transcribed from the pdf which is in (non search-able) image format. Please report any errors in what is below to harvie -at- media.mit.edu.

Marks v. Koch - City Motion for Protective Order - Ballot Image Transparency Litigation - Aspen CO-

The case brought by Marilyn Marks against the City of Aspen CO to obtain access to inspect a CD containing images of 2,544  ballots was further complicated on Thursday Feb. 4 2009 by a motion by the City of Aspen to obtain a protective order to prevent the plaintiff from deposing the company, TrueBallot Inc., which was contracted by the City of Aspen to perform tabulation of Colorado's first public IRV election, the municipal election in Aspen on May 5 2009.  The text of the memorandum supporting the request for the protective order is below the break, as are two proposed protective orders, one of which prevents all deposition of TrueBallot in this case and one prevents depositions which query about the means of creation of TIFF images of ballots, or the pre or post election processes of the election.

It is ironic that the City of Aspen promoted the idea of transparency about its election prior to undertaking the first public IRV election in Colorado. They contracted with a company whose primary service is providing a fully transparent means of tabulating an election, including single ballot audit ability and several tools to allow  the public to fully verify the election.  But the City chose to withhold one of those tools, a CD of ballot images, from the public. Marilyn Marks, an ex-candidate in the election, issued an open records request to the City for access to the CD and was rejected.  Upon pursuing a suit to obtain that transparency under law, the City is now choosing to try to prevent  Marilyn Marks, from learning  more under oath from the company which provided Aspen citizens with access to that transparency in order to support her case for transparency.

Surely there is no reason why it would harm the public to know more about how their election was performed.
[above is opinion by H. Branscomb]

Previous coverage of the case including filed documents are located at this link:
http://aspenelectionreview.blogspot.com/2010/02/marks-v-koch-ballot-imagetransparency.html