new: KDNK News: Media coverage of Aspen election & Marks v. Koch transparency suit

 KDNK News: Hearing date set for Aspen's '09 election

The City of Aspen's May 2009 election has spiraled into a lawsuit that looks like it could finally make its way to court. Former Aspen Mayoral candidate Marilyn Marks wants access to ballot images to verify the method for counting votes. But so far the city has refused saying it would violate state law. On Thursday a judge scheduled a hearing for late March. KDNK's Conrad Wilson reports.

Download mp3 file

---- older media reports follow below the break----

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

Letter from the Colorado Secretary of State concerning ballot transparency

[The following is a letter from the Colorado Secretary of State concerning the use of serial numbers on ballots and ballot image accessibility to the public. The yellow annotation is by H. Branscomb to focus on the ballot image transparency issue.  The letter to the editor in the Aspen Daily News linked here is based on the following letter from the Secretary.  http://www.aspendailynews.com/section/letter-editor/138940 ]

The original pdf of the Secretary's letter is here: Buescher to Kolwicz

Report prepared for Aspen by Scott Adler on Release of Cast Election Ballots for Public Inspection

The following is a Disclosure of Testimony by the City of Aspen for Marks v. Koch for expert witness E. Scott Adler.  This document was partially converted for the web by H. Branscomb and annotated with yellow background on some key phrases.  The original and complete pdf is located here: Disclosure of Testimony. Please report any transcription errors to H. Branscomb as a comment to this blog.

Assessing the Impact of the Release of Cast Election Ballots for Public Inspection

Report prepared for the matter of Marks v. Koch, 09 CV 294

E. Scott Adler

Associate Professor of Political Science

University of Colorado, Boulder

January 21, 2010

REPORT OF SUMMARY OF EXPERT WITNESS TESTIMONY

      It is my contention that the release of election ballots or ballot images for public inspection would cause substantial injury to the public interest.  I base this position on my knowledge of research on the history of American elections and studies of contemporary voter behavior, election administration and public opinion.

Latest Questions for City Attorney regarding elections and Marks v. Koch

[We are collecting questions and answers about Aspen's election and also public verifiability of elections in general on this site. Please contribute your own questions (anonymous questions ok). Also please participate in discussing answers to these questions (answer please under your own real name).  You may use the blog comments for this or contact Harvie Branscomb at 970-9631369.   Thanks]

New Questions asked by Harvie Branscomb based on developments since January 1st:
 

35: Question:  The Colorado Bar Association says it doesn't  address the condition that the Election Commission (EC) and the City are directly adverse to one another. Why wasn't this possibility considered in the query to the Ethics Committee?

36:  Question: The Ethics Committee replied that it doesn't know if the EC is a client of the City Attorney. Is the EC a client of the City Attorney?  If the City Attorney has no answer for this, how would one find out the answer to this question?

37: Question: If the EC is a client of the City Attorney is that representation subject to the consent of the Election Commission, as the CBA indicates?

38: Question: If the EC refuses the representation of the City Attorney, does it have a right to counsel, paid for by the City?


39: Question: If the EC is not a client of the City Attorney does it have a right to counsel?  Is it expected to pay independently for that counsel?

40: Question: Why would the City want to file a motion for a protective order to prevent Marilyn Marks from obtaining testimony from the True Ballot Inc.  by deposition?  What public interest could be served by blocking this communication?

41: Question: Why is the City Attorney complaining to Judge Boyd about the cost of defending the litigation against the City Clerk for inspection of ballot images when the City has taken steps which have caused an increase in the cost of litigation such as filing extensive briefs, when the cost  of litigation is a direct cost to Marilyn Marks but most of which is an indirect cost to the City covered by salary and overhead?

42:  Question: Why can't the city provide copies of the spoiled ballots which are classified as "other election records"?  Why can't the city provide information about the seals which protect the election records?


[ the Open Records Requests and City responses will be posted elsewhere on this site. H. Branscomb ]

---- previous questions are included below the break ----- (no answers to questions has been received from the city as of Jan 29, 2010)

Colorado Bar Association Answers Aspen City Attorney on Conflict of Interest

Aspen Daily News coverage of the Colorado Bar Association Ethics Committee reply to a request from Aspen to advise about conflict of interest for a city employed attorney advising the Aspen Election Commission is here:
http://www.aspendailynews.com/section/home/138642

Note  that although not covered in the above article, the letter does not advise that there is no conflict of interest.  It also says that the Ethics Committee was not informed that the City and Election Commission are directly adverse to one another.  This might be a misrepresentation of what could occur Aspen were the Election Commission to take any action viewed as adverse by the City Council.

The letter does say that if the Election Commission is a "client" of the city attorney then the Election Commission's consent is required if there is a significant risk of conflict of interest.   I think this important finding ought to have been reported in the above article.  The Ethics Committee declined to advise on whether or not the EC is a "client" of the city attorney as this is a matter of law, and apparently would have to be determined in court.  If the EC is a client, they are allowed to decline to be served by the City Attorney. If not, then they presumably have the right to have access to counsel. As I read it,  either way, the City would not be able to force the EC to be represented by the City Attorney.
[above is opinion by Harvie Branscomb]




The actual letter from the Colorado Bar Association Ethics Committee regarding conflict of interest of a city attorney in advising both the City Council and the Election Commission is below the break.

2nd conference - Jan. 28, 2010 - Marks v. Koch - Election Transparency Litigation - Aspen CO-

Marilyn Marks filed suit against the City of Aspen Municipal Clerk to gain recourse for the City's refusal to provide access to a CD containing recorded images of the ballots which were cast in Aspen Colorado's May 5 municipal election.  That election was the first in Colorado employing IRV voting techniques and one of the first in the country providing individual ballot accessibility for auditing.  Each ballot was individually interpreted and a record of the interpretations was made public.  A corresponding CD of scanned ballot images was created but not made public.  The suit seeks to gain access to the historic CD in order to be able to complete a public verification of the election and to pave the way for future election verifiability by understanding the nature of any opposition to ballot image verification in public.

The original filings in the case including the City's motion to dismiss is contained in the following link:
http://aspenelectionreview.blogspot.com/2009/12/election-transparency-litigation-marks.html

A first trial management conference took place January 8 in Aspen Colorado. This led to an order to try a conference call with True Ballot Inc. in order to establish stipulated facts in lieu of testimony by True Ballot Inc. (the company which was retained by the City to tabulate the election.) 

A second trial management conference took place in Glenwood Springs on Jan. 28.  During that conference the Judge did not decide on the motion to dismiss. He ruled to allow a deposition of True Ballot Inc.  The City of Aspen advised that it would file a motion for a protective order preventing the deposition.  A further trial management conference was set for Feb. 18 and a tentative trial date was set for March 22 and 23.  A ten page double space limit was set on filings regarding the motion for a protective order.

The transcript from the first case management conference with Judge Boyd in Aspen Colorado on Jan.8 2010 is here: http://aspenelectionreview.blogspot.com/2010/01/marks-v-koch-ballot-imagetransparency.html

Below the break is the transcript of the second conference with Judge Boyd in Glenwood Springs on Jan 28 2010.
[above is opinion based on the understanding of H. Branscomb]

1st conference - Jan 8 2010 - Marks v. Koch- Ballot ImageTransparency Litigation - Aspen Colorado

Marilyn Marks filed suit against the City of Aspen Municipal Clerk to gain recourse for the City's refusal to provide access to a CD containing recorded images of the ballots which were cast in Aspen Colorado's May 5 municipal election.  That election was the first in Colorado employing IRV voting techniques and one of the first in the country providing individual ballot accessibility for auditing.  Each ballot was individually interpreted and a record of the interpretations was made public.  A corresponding CD of scanned ballot images was created but not made public.  The suit seeks to gain access to the historic CD in order to be able to complete a public verification of the election and to pave the way for future election verifiability by understanding the nature of any opposition to ballot image verification in public.

The original filings in the case including the City's motion to dismiss is contained in the following link:
http://aspenelectionreview.blogspot.com/2009/12/election-transparency-litigation-marks.html

A first trial management conference took place January 8 in Aspen Colorado. This led to an order to try a conference call with True Ballot Inc. in order to establish stipulated facts in lieu of testimony by True Ballot Inc. (the company which was retained by the City to tabulate the election.) 

A second trial management conference took place in Glenwood Springs on Jan. 28.  During that conference the Judge did not decide on the motion to dismiss. He ruled to allow a deposition of True Ballot Inc.  The City of Aspen advised that it would file a motion for a protective order preventing the deposition.  A further trial management conference was set for Feb. 18 and a tentative trial date was set for March 22 and 23.  A ten page double space limit was set on filings regarding the motion for a protective order.  Below the break is the transcript from a case management conference with Judge Boyd in Aspen Colorado on Jan.8 2010:
[above is opinion based on the understanding of H. Branscomb]

Letter to City Council re: IRV and Needed Charter Changes

From: Marilyn R Marks
Sent: Saturday, January 16, 2010 9:04 AM
To: 'micki@ci.aspen.co.us' ; 'stevesk@ci.aspen.co.us '; 'Torre@ci.aspen.co.us '; 'dwayner@ci.aspen.co.us '; 'Derek.Johnson@ci.aspen.co.us'
Cc: 'public_comment@ci.aspen.co.us'; 'John Worcester'; 'Jim True'; 'Kathryn Koch'
Subject: Follow up to Neil Siegel letter re: voting methods

Mayor Ireland and Council members Johnson, Romero, Torre, and Skadron:

If you did not see Neil Siegel’s letter in the Aspen Times Friday, I direct your attention to that letter at http://www.aspentimes.com/article/20100115/LETTER/100119881/1020&parentprofile=1061 , where he encourages Council to address the IRV election process decisions, as the voters have also asked. I want to add my voice to his, to again ask that this issue be addressed immediately. There is little time left to make an effective change in time for the May 2011 election, should the voters want to retain IRV. Obviously, a change back to traditional runoffs does not require as much planning time.

Aspen voters appeared basically split on the question of IRV in November. It seems that for that reason and the legal insufficiency of the current IRV system, the voting system must be addressed right away.

When I presented my overview of IRV issues to you in July, I stated that if the City started at that time there would be little time to adequately address the Charter and Code changes necessary to even offer an IRV methodology for May 2011 that complies with state and local law. Now, six months later, I have not seen any progress.

Add yours to this list of questions about Aspen's May 5 IRV election

[We are collecting questions and answers about Aspen's election and also public verifiability of elections in general on this site. Please contribute your own questions (anonymous questions ok). Also please participate in discussing answers to these questions (answer please under your own real name).  You may use the blog comments for this or contact Harvie Branscomb at 970-9631369.   Thanks]

1.What might a citizen risk by asking questions? From my perspective, two voluntary commissioners were recently dismissed following an unjust smear campaign that prevented their pursuit of election quality improvements. It appears to me that their principal error was to ask difficult questions.

Response to Mike LaBonte

Mike LaBonte

I have posted and attempted to answer the questions you posed on this blog, although better answers might come from the Aspen city attorneys, (if they choose to answer).

You have dipped your toe into a nasty but tiny swarm of anonymous bloggers who have done little or nothing to discuss public policy and a lot to attempt to discredit, without any decent justification, good people in Aspen pursuing actual transparency of elections and election reform where needed. Jack Johnson has personally succeeded in initiating a smear campaign which seems to have inappropriately resulted in removal of the two citizen members of the Election Commission (the third being the Clerk, who remains as Chair) without any due process.  This is a dangerous result and a terrible precedent for any kind of citizen oversight for the future.

2005-2009 Links to media- discussion of ballot release and election review

There are so many links in media to this topic I have archived the 2009 activity here and started a new list for 2010. [H. Branscomb]

2010 links to media coverage are here:  http://aspenelectionreview.blogspot.com/2010/01/2010-links-to-media-coverage-of-aspen.html

The two Aspen Colorado papers and three state-wide and several national blogs have been covering the topic of the Aspen May 5 IRV election and the upcoming Aspen Election Independent Review and numerous letters to editor. Here is a perhaps not complete collection of them:


DemocraticUnderground.com
12/15/09: ASPEN ELECTION NOT OUT OF CONTROL (satirical video)
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=385x413321

Black BoxVoting.org
12/15/09: (CO) 12/09 - ASPEN'S SLIPPERY SLOPES: CONSTITUTIONAL RIGHTS VIOLATIONS and BLOCKING RIGHT TO PUBLIC RECORDS -
http://www.blackboxvoting.org/


Huffington Post:
11/23/09: Guest Opinion: Marilyn Marks http://www.huffingtonpost.com/wires/2009/11/23/guest-opinion-marilyn-mar_ws_367225.html

Colorado Independent:
11/23/09: Election dispute, lawsuit, squabbling continue in Aspen http://coloradoindependent.com/42856/election-dispute-lawsuit-squabbling-continue-in-aspen

1/1/2010: Aspen Daily News:  Year in Review, item #9:
9. Aspen’s election and subsequent fallout

Almost eight months after Aspen’s last municipal election, city officials complain about the amount of time still taken up by election-related issues, and losing mayoral candidate Marilyn Marks is soliciting donations from around the country to fund her lawsuit against the city.

The basics of the situation are this: The city in May held its first election using instant runoff voting, a controversial method in which voters rank their choices. In IRV, if no candidate gets enough votes to win in the first count, lower-ranking candidates are eliminated and their votes are redistributed using voters’ ranked preference, so that government agencies can conduct elections without having to go to a later runoff round. Using this method, Ireland was re-elected and Derek Johnson and Torre won council seats. Voters also rejected a proposal for the Aspen Art Museum to buy public land for a new facility.

Even before the election, Marks, who is no fan of IRV, tried to stop the method from being used. After the election was conducted, Marks raised questions about voting procedures used during the election, and requested to see photographic images of the physical ballots cast. The images would be used to cross-check one of the two voting machines used in City Hall. The city claims that releasing the ballot images would be unconstitutional and Marks sued. The case is pending.

Meanwhile, the city’s official Election Commission, which in the past functioned mostly on election night to resolve voter intent and eligibility questions, was targeted as a forum for Marks and others to pursue their goal of a broader election review. The commission requested funds for its own attorney, with two of the three members saying they couldn’t rely on the advice of the city attorney’s office because of a perceived conflict of interest since city attorneys helped design IRV.

Then, former city Councilman Jack Johnson, who was voted out of office in the May election, read through election commissioner e-mails, which showed a few meetings between two of three election commissioners that were not conducted using a public meeting process, as well as heavy lobbying by Marks for the commission to use its yet-undefined powers to analyze the pros and cons of the May election.

In the drama that followed, the city determined that the current Election Commission was in violation of the City Charter because the commissioners’ terms technically ended in July. The commission was disbanded and the city is currently seeking to form a new Election Commission.
— Curtis Wackerle
[full article here: http://www.aspendailynews.com/section/home/138557 ]


Below the break are:
Aspen Public Radio (KAJX):  6 radio programs
Aspen Times: 48 articles or editorials or columns or letters to editor
Aspen Daily News: 40 articles or editorials or columns or letters to editor
and others.

Election Transparency Litigation: Marks v. Koch

Marilyn Marks filed a complaint in District Court to cause the City of Aspen to protect and allow inspection of the digital images of ballots from the May 5 2009 municipal election which were stored on a CD by the contractor who tabulated the election, True Ballot, Inc.  The suit has already been successful in protecting the CD from destruction.  The suit has the remaining purpose to obtain access to inspect these public records of which all were displayed to the public on May 5 2009, and hundreds are still available for viewing as part of a GrassRootsTV program from election night.  If the City's motion to dismiss is not accepted by the court, there is a court date set for January 22, 2010 when a hearing may be taking place.

7 Documents and 5 exhibits are on-line in hypertext form. Click on a link to open the outline of the documents, then click again to enter the document:

VERIFIED COMPLAINT AND APPLICATION FOR ORDER DIRECTING CUSTODIAN TO SHOW CAUSE

Elizabeth Milias' lawyer responds to complaints against her

ROBERT A. MCGUIRE, ATTORNEY AT LAW, LLC

1624 Market Street, Suite 202
Denver, Colorado 80202
http://www.lawram.com/
December 24, 2009

Mr. John P. Worcester
City Attorney
City Hall
130 S. Galena Street, 2nd Floor
Aspen, CO 81611

VIA FIRST-CLASS MAIL AND EMAIL

RE: My Letter of November 20, 2009, Discussing City Council’s Violations of Due Process

Dear Mr. Worcester:

I refer to certain allegations made by Mr. Jack Johnson in his complaint submitted to Aspen City
Council on or about October 26, 2009, and to my letter of November 20, 2009, regarding the same.

To date, neither I nor my client, Ms. Elizabeth Milias, has received any response from your office
answering the constitutional due process concerns that I raised in connection with the Council’s
handling of Mr. Johnson’s complaint.

Although Council wisely chose on November 23 not to conduct its promised public rumination of
Mr. Johnson’s allegations outside of the appropriate legal process for handling complaints against
City officials, the City’s subsequent failure to make any public statement disposing of Mr. Johnson’s
allegations has had the troubling effect of leaving Ms. Milias under a cloud of unresolved accusation.

KAJX Covers Better Bad News' Lampoon of Aspen's May Election

Click on this link to hear  Aspen Public Radio Station KAJX Christmas coverage including an interview with BetterBadNews, the creator of the video, and  Harvie Branscomb, the creator of this blog.

http://www.aspenpublicradio.org/news_archive_detail.php?story=558

Click on the link below to see the 5 minute YouTube video made by volunteer artists in Berkeley who found humor in some of the bizarre events in Aspen's May election.

http://www.betterbadnews.com/2009/12/14/aspen-mayor-promotes-voter-animosity/

posted by Marilyn Marks 12.25.09

Mayor Ireland (who is interviewed in the radio piece itself) gives election quality advocates in Colorado his reaction to an email alerting them to the KAJX Christmas Day story about betterbadnews.com. Note that KAJX made the decision to report this week old story on Christmas Day.

Email from Mick Ireland to election quality advocates in Colorado on Fri 12/25/2009 11:50 AM

How foolish of me to not see the humor in a "satire' about people beating people with hockey sticks at my direction and stealing elections and generally being corrupt. It's just hilarious to see yourself depicted that way by people you have never me and who have made no attempt to hear our side of the story. Very funny Al and thanks for the Christmas present! One would not bear even a single day going by without ripping on the mayor of Aspen.
 
Posted by Harvie Branscomb 12/25/09 12:32 PM

Aspen City Attorney Jim True and Mayor Mick Ireland separately respond to my letter

[Responses received by Harvie Branscomb concerning the 12/21/09 email to Jim True (Aspen Special Counsel) regarding election questions. This letter was printed in the 12/24/09 Aspen Times as a letter to the editor, and also appears in this blog as the previous post:]

Thu 12/24/2009 11:45 AM
Harvie:
Thank you for your recent email and attached letter. As I stated in the paper, I am happy to discuss these matters and address all of the questions that have been raised by you and anyone else. However, it is not my intent to do so in the papers.
It is my understanding that the City will address election issues, either directly with Council or with the assistance of the new Election Commission.

Thank you.

James R. True
Special Counsel
920-5108

cc: John Worcester
-------------------------------------------------------------------
[response from Harvie Branscomb to Aspen Special Counsel Jim True 12/27/09]
Thanks Jim True.
No doubt some other members of the public are as interested as I in the answers to these questions and in any substantive argumentation against any of my hypotheses or assumptions contained in these questions. Will you then be prepared to respond by email or by letter? Please let me know of any consideration you expect in handling answers to my questions and which medium you propose to use. I note that you waited until publication in the newspaper to answer my email and have not attempted to answer any of the questions yet to my knowledge. As time goes by I expect others will add to my original list of questions, at which time I will forward them on.

As you probably can guess we have recognized that the nature of the conversation has changed substantially since Marilyn Marks and I conversed with you and Mr. Worcester for a couple of hours in City Hall on the occasion when one of you told us that City Council had the right to decide to make the CD of ballot images available to the public. At that time we quite reasonably assumed that our goal was to convince the City Council of the value of full transparency. Much of what we are being told seems to have changed since then. I assure you that the source of any hostility being experienced is not resulting from my intention or that of Marilyn Marks, neither of which (intention) has really changed since mid May, 2009 before I first spoke to you. It is with regret that I have to mention that I have heard that the mayor expressed himself with an obscene gesture towards Ms. Milias this morning. I hope that isn’t a harbinger of more hostility to come.

Thanks very much and please enjoy your holiday.
Harvie Branscomb
---------------------------------------------------------------------

[the following email was received from Mayor Mick Ireland, originally addressed to Colorado Voter Group, a listserv which delivers mail to Colorado based election reform advocates including Mick Ireland and Harvie Branscomb]

Thu 12/24/2009 9:25 AM 
More propaganda from Ms. Marks special friend. In fact, the marketing funds were discussed by a group of citizens solicited by staff, none of whom was appointed by the council. The Election Commission is an official body spelled out by the Home Rule Charter, appointed by council.
The simple fact is that Ms. Marks directed the activities of the Election Commission including decisions by that body to ask for “special” counsel at taxpayer expense to push for her agenda of a ballot recount (aka “review”).
The constant repetition/invitation to have someone sue to overturn the election result is not lost on Aspen residents. O, sure you would never ask the results be overturned (or as Ms. Marks puts it in her e-mails to her campaign treasurer “voided”) but it is clear that you and your friends would do your best to raise money on a national scale to achieve that end.

Happy Holidays.

Mick Ireland
920-2858
515 Indepndence Place
Aspen CO 81611

[Harvie Branscomb's note: "Voiding" the election was mentioned once in a subject line of an email from Marilyn Marks that was never intended to be published. The inclusion of that phrase in no way logically demonstrates that Marilyn Marks, or for that matter any other election quality advocate such as myself,  is interested in "voiding" or "overturning" the Aspen election.  Unfortunately it seems impossible to disabuse Mr. Ireland of his extreme case of suspicion that we election quality advocates are engaged in such an attempt.]

[the following was contributed by Marilyn Marks as a comment]

Marilyn Marks said...
Harvie,

I am quite sure that Ireland understands that if someone wanted to overturn or void the election they would have started legal proceedings months ago. He knows that no one has even threatened such multi-year litigation, much less filed it. I'm not sure why he continues to make claims that voiding the election is our mission. If it were, surely we'd be well into the process by now.
I wish he would address the specific questions rather than make personal attacks.

Marilyn
December 24, 2009 10:47 PM

Election Questions (letter by Harvie Branscomb to the Aspen Attorney Jim True)

(as published in the Aspen Times, click here to see original and blog commentary)

Election questions

Thursday, December 24, 2009

Aspen Times Editor's note: The following letter was addressed to Jim True, special counsel for the city of Aspen.

Dear Editor:

I was glad to read your letter to editor generously offering to answer questions. What might a citizen risk by asking questions? From my perspective, two voluntary commissioners were recently dismissed following an unjust smear campaign that prevented their pursuit of election quality improvements. It appears to me that their principal error was to ask difficult questions.

It has been reported that the city knowingly skirted the law by holding a secret meeting to discuss spending marketing funds. Were election commissioners railroaded from their roles for a similar but unintentional technical infraction after questioning election impropriety?

Aspen Mayor Mick Ireland to the "voting rights community"

Aspen Mayor Mick Ireland's message of December 20, 2009
(followed by a copy annotated by Harvie Branscomb and Marilyn Marks)

Subject: Why we don't need your help in running our elections and why a recount is not needed

 

To the "voting rights community"

There are many of us in Aspen who do not support the intervention of people who do not live here in our elections.  It should be noted that the litigation you ask us to financially support is being funded in part by Ms. Marks, the candidate who lost the election and another unknown part is coming from people who have no direct knowledge of Ms. Marks and her ongoing campaign to discredit the City of Aspen.  It is odd that you claim those who disagree with her are conducting a “smear” campaign, while excusing her tactics as a candidate, which are of record and met with widespread disapproval by the electorate including some of her supporters.

How Aspen Violated Colorado Ranked Choice Voting Rules

[Mike LaBonte,  an election quality advocate from Massachusetts posted  the following summary of one portion of his work related to the Aspen election on the BlackBoxVoting.org website on January 7, and accepted the invitation to post it here as well.   --posted by M. Marks.]

Colorado state law has a section CRS 1-7-1003 allowing for ranked choice voting. It describes a form of instant runoff voting (IRV) for single seat elections, and a form of single transferable vote (STV) for multiple seat elections. It also has a clause allowing IRV for multiple seat elections with a condition:
 A local government may also conduct an election pursuant to this subsection (4) using the principles of instant runoff voting specified in subsection (3) of this section to ensure that each elector has equal voting power and that an elector's lower ranking of a candidate does not count against the candidate to whom the elector gave the highest rank.

 Put another way, in an election in which candidate A is a winner, it must not be possible to have a set of ballots with candidate A ranked #1 and various other lower ranked choices, which upon changing only the lower ranked choices can make candidate A lose. Imagine that you ranked candidate A number 1 and that was your only vote in an election that candidate A wins. Now imagine you had instead ranked candidate A number one and candidate B number 2, and now candidate A loses! It can happen if the 2nd rank vote for candidate B moves B ahead of A in an early round, and A is eliminated even though A would have picked up more votes in a later round. This is one form of non-monotonic behavior. To be fair, a regular series of regular non-instant runoffs potentially has the same effect.


The method chosen by Aspen for their City Council race appears to attempt to utilize that last clause in CRS 1-7-1003 above. They did not use STV, but rather a separate IRV race for each council seat.


It can be proven with the ballot data from the Aspen May 5, 2009 election that a change in the outcome of the City Council race was possible, due to non-monotonicity. In that election Derek Johnson won seat 1 and Torre won seat 2. Briefly, if every voter who ranked Torre number 1 had also ranked Jack Johnson number 2, with no other candidates ranked, Jack Johnson would have won seat 1 and Derek Johnson would have won seat 2. Torre's victory would have changed to a loss, and his supporters would have caused it by their 2nd place rankings for Jack Johnson.


Although there is a debate about Aspen's non-release of actual ballot images, much information from that election has been made public, to their credit. Everything needed to reproduce the counting has been provided, including the "ballot string" files (interpreted from the actual ballots that we can't see) and configuration files for using the ChoicePlus Pro software used in the actual election. I have attached a zip archive with 2 subfolders. Folder "may5_original_camb" reproduces the counting using the Aspen rules, just to prove my setup replicates the original results. Folder "torre1_jjohnson2_camb" uses ballots modified as described above, in which voters who ranked Torre number 1 hypothetically defeated him by also ranking Jack Johnson number 2. It didn't happen that way. But it could have, and that is what Colorado state law seems to prohibit.

The files supporting this work are at: http://www.bbvforums.org/forums/messages/8/aspen_nonmono_irv-80803.zip

Aspen Times poll about releasing ballots

As of Dec. 02, 2009:

http://apps.aspentimes.com/utils/polling/poll_results.php?poll_ident=1465