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 seeks Colorado Supreme Court decision to block election transparency

Yesterday, 11/11/11 triggered a numerologists millenial festival, but for seekers of fully verifiable and adequately overseen elections with unrestricted citizen involvement, it was a cloudy day in Colorado. The City of Aspen, usually considered to be a bastion of progressive public policy, revealed in a press release that it had filed a petition for a writ of certiorari to the Colorado Supreme Court to attempt to overturn an illuminating Court of Appeals ruling that ballots are public records and accessible through open records laws, and that digital copies of ballots need not be treated the same as original paper ballots under law.  Aspen argues that ballots are to remain "secret".  In practice that means accessible to a few rather than to all.

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.