-Aspen's historic May 5, 2009 IRV election audited as single ballots-
5/5/09 Aspen CO held an instant runoff election (IRV) for mayor and 2 council members. Interpreted contents of each ballot, scanned by True Ballot, were publicly released. Open records requests for a CD of image scans were denied. Aspen has been sued to protect records from destruction and to allow inspection of the scanned ballot files. A Court of Appeals ruling holds that unidentifiable ballots are public records.
I am an election quality activist living near Aspen who has followed this issue long before it became a topic for discussion around Aspen. In 2007 Colorado Clerks and SOS forwarded an "election cleanup bill" that contained a change to open records law that would have prevented public access to voted ballots outside of a court order. I and other activists mounted a successful rejection of that portion of the bill after a lively debate on the Senate floor between a Democratic ex-clerk-and-recorder Senate President and a transparency loving Democratic Senate Majority Leader. The ex-clerk-and-recorder argued that voted ballots are private records. After airing the issue in public, and some involvement by members of the Colorado Press Association, the problematic section of the bill was removed.
Email from one of Aspen's Election Commissioners to the City Council regarding process of decision-making for Aspen's Supreme Court Appeal of Marks v. Koch, the ballot transparency case: (Date:Thu, 6 Oct 2011 08:29:05)
I am requesting that the CC, at their next meeting, or a special meeting, schedule time to hear public input relative to the appeal of the Mark vrs Koch case. After the public has had an opportunity to express their thoughts the CC should properly vote to enter into executive session to resolve the matter. There are energies being spent to challenge the process the CC followed to enter into executive session and decide to appeal the case. At question is the legality of entering into executive session from a work session as opposed to a special session or a normal meeting. The outcome may be the same. The process would not be in question.
On October 4th, 2011 the City of Aspen provided the following press release indicating its intention to appeal the Colorado Court of Appeals ruling against Aspen Clerk Kathryn Koch to the Colorado Supreme Court.
Aspen, Colorado – October 4, 2011 – The Aspen City Council has directed staff to appeal the Marks v. Koch case to the Colorado Supreme Court. At issue in the lawsuit, which was originally filed in 2009, is the right of citizens to expect that their cast ballots will remain secret. The City maintains it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain forever secret.
This case is not about election transparency. The 2009 municipal election was one of the most transparent elections in City and state history. This case involves the sanctity of the secret ballot. The City believes that the Court of Appeals was in error when it held that the Colorado Constitution does not protect the secrecy of ballots. Because the decision of the Court of Appeals will have statewide ramifications for all future elections, the City believes that it is important to ask the State Supreme Court to review the Court of Appeals’ decision and once again protect all citizens’ right to a secret ballot. The City has until November 14, 2011 to ask the Supreme Court to review the case. In the meantime, the Appellate Court’s decision will be stayed and all cast ballots from the May 2009 election will remain locked up.
Will ask Supreme Court to reconsider Marks lawsuit from May ‘09 election
The city of Aspen has decided to appeal a recent ruling against it and in favor of a voting transparency activist to the Colorado Supreme Court.
The Colorado Court of Appeals last week ruled in favor of local resident Marilyn Marks in her suit against City Hall, which refused to release to Marks digital copies of ballots cast in the May 2009 election, in which she was a losing mayoral candidate. The city, in denying Marks’ Colorado Open Records Act (CORA) request to inspect the ballots, claimed that doing so would violate state law guaranteeing secrecy in voting and would cause injury to the public interest.
Judge James Boyd of the 9th Judicial District ruled in the city’s favor in March 2010, granting a motion to dismiss on the city’s argument that releasing the ballot images would violate state law and the state Constitution. A three-judge panel of the appellate court reversed Boyd’s decision in a long-awaited opinion issued last week, ruling that ballots could be lawfully released, so long as there was nothing on them that could be used to identify an individual voter.
In a document dated Sept. 29, 2011 the Colorado Court of Appeals delivered a unanimous decision for the plaintiff, Marilyn Marks in the 2009 case against Aspen City Clerk Kathryn Koch who declined to provide a CD containing scans of Aspen Municipal Election ballots in response to a Colorado Open Records Act request. Judge James Boyd had dismissed the case shortly before it was to have been heard on a several month old motion by the City of Aspen.
The decision of the Court of Appeals is available here: Opinion.pdf
Media coverage of the decision is here:
Colorado Court of Appeals rules voted ballots should be public records
By Sara Burnett The Denver Post
Posted: 09/29/2011 09:39:45 AM MDT
Updated: 09/29/2011 09:39:52 AM MDT
The Colorado Court of Appeals ruled today that electronic images of voted ballots should be open for public inspection, provided the voter's identity cannot be discerned from the ballot.
The ruling could have a major impact on Colorado election law, though today's decision likely is not the end of the fight.
This morning on KDNK in Carbondale, Conrad Wilson reported the story of my CORA request for voted ballots in several counties and the SOS position that there is no exemption for voted ballots in CORA. http://www.kdnk.org/article.cfm?mode=detail&id=1280241798407)
In his interview, he talked with Rich Coolidge who stated that SOS office did not know what advice to give, because there is no exemption for voted ballots, and reportedly they are concerned about “protecting voter identity.”
Note my correspondence with Delta County on the matter. Read from the bottom up, after Delta county denied access on the grounds that inspecting ballots would cause “injury to the public interest.”
From: Marilyn R Marks
The Colorado SOS seems to have forgotten that elections and election records belong to the public!
The following email was reportedly sent to clerks and election officials in all Colorado counties, in an effort to deny the public’s right to examine voted ballots. This communication resulted from my Open Records request of several counties to examine 2008 and 2009 voted ballots. The SOS attempts to put the decision back to each clerk, which of course makes for confusing and inconsistent practice county to county. I have received a denial from Delta County while two other counties are scheduling appointments for me to examine ballots. Three other counties have asked for more time to do more research.
With primary elections in process and general elections in the fall, resolution and consistency need to be immediately addressed in favor of total transparency. For example, Michigan’s voters have the right to verify (http://www.ag.state.mi.us/opinion/datafiles/2010s/op10324.htm ) the election of their U.S. Senator, Governor or local county clerk. Why should Coloradoans have less right to verify the election of our representatives who will be serving side by side with their officials?
The SOS rationale is curious that ballot inspection causes them “serious concerns about the potential for adverse effect” on voter confidence!
Marilyn Marks
Aspen, CO
From: State Election Division
>
Date: July 20, 2010 4:26:03 PM MDT
Subject: Open records requests for voted ballots
As we discussed on the conduct of elections call this morning, our office has received several questions regarding open records requests for voted ballots that have been received over the past few days. Although our office has previously provided guidance that voted ballots are not records subject to inspection under CORA and we have serious concerns about the potential for adverse effect on the confidence in elections and finality in the outcome, we are unable to identify an exception in Title 1 generally protecting ballots from public inspection.
Under the Colorado Open Records Act, it is the responsibility of the custodian of a record to decide whether it is subject to public inspection. Because county clerks are the custodian of ballots, we recommend you consult with your county attorney in determining how best to respond to requests to inspect ballots given that these records may be in storage and we are currently conducting the primary election. If you or your county attorney has identified some additional legal basis for denying access to these records, we would ask that you share the information with our office and other counties. If you allow inspection of the ballots, keep in mind that you cannot disclose any ballot with information that would identify the voter, or any other confidential voter information. This would include, for example, a provisional ballot in the affidavit envelope, or a rejected mail-in ballot in its envelope.
Mike LaBonte has been analyzing the IRV proponents claims that there were -0- "invalid" votes for mayor and only 23 for City Council in Aspen's IRV election. He makes it clear that the error rate was much higher, between errors caught, where the ballot could be re-voted, and errors that the Accu-Vote scanner did not catch. (and in most cases, was not programed to catch.) Total error rate was approximately 12.4%, (before re-voting) a very high rate indeed, implying to me that there was considerable confusion in attempting to rank the complex matrix of choices. Some intended rankings by voters did not get counted at all, because of the way that the rules were written. See Mike LaBonte's analysis:
IRV is sometimes criticized as being too complicated for voters to understand. To prove that this is not a problem, proponents like to point out that the percentages of invalid ballots for IRV elections are usually low, usually between 0% and 1%. So what does it mean to have an invalid ballot in an IRV election?
Strictly speaking, the answer lies in the rules for each locality. However, it is common for a valid IRV ballot to be judged effectively by one rule: there must be no overvote in the first ranking of each race. Let's take a look at some valid and invalid IRV ballots:
Harvie's well written letter ( posted below) received an ill-considered response from an anonymous Aspen blogger, calling himself "We Deserve Better." Among other things "We" writes: "Unlike Harvie Branscomb, who seems to have a real problem with facts and objectivity, the vast majority of Aspen voters understand what's going on with the Marks self- promotion tour. For the record, Mark's election reform efforts are self-serving, anything but "heroic", selfish and clearly the rantings of a sore loser, in my opinion. Wrapping the Marks election reform
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.
Marilyn Marks' comment: Although the City does not have a copy of the complaint, Mr. Springer, claims that the complaint has "no merit," -- presumably without reading it. He also claims that the there were "no violations of any election laws." If it is not a violation of election law to leave the keys on/in the ballot box, I can't imagine what would be a violation. That is one example of many--like failing to use certified software. Interestingly he claims that it is the "most open, honest, well-run election" in Colorado. Surely many jurisdictions will take issue with that!
An investigation by the district attorney’s office into the city of Aspen’s May 2009 election that was set off when losing mayoral candidate Marilyn Marks filed a criminal complaint is nearing completion.
“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.
Dear Editor: City Council and staff don't seem to mind pursuing their expensive defense against Marilyn Marks' effort to obtain reasonable transparency of election records. Ironically, they are now generally fighting against transparency promised prior to last May's election. The engagement of high profile Denver-based criminal defense counsel shows their intention to gear up. Will Aspen simply protect their many election irregularities with big-time lawyers or instead solve the underlying problems and make sure anonymous records become accessible? I am hoping for the latter. There is transparency news from Michigan. Activists there were seeking actual paper ballots for audit purposes, while Marilyn only seeks indestructible electronic copies. Last week they received good news from their attorney general. He advised that Michigan's voted ballots are indeed public records and can be inspected and audited subject to open records request. The statement is posted at http://aspenelectionreview.blogspot.com/2010/05/text-of-michigan-attorney-generals.html
But in Aspen, Marilyn Marks has been confronted with aggressive obstacles to obtaining mere digital copies of similar records. Her transparency litigation will move to the Appeals Court if Judge Boyd refuses to reconsider, again with Aspen voters footing the bill for efforts
Dear Editor: As an engineer and volunteer election official in Massachusetts, I became interested in Aspen's new municipal election system, which combines approval voting and instant runoff voting to create a unique system. Using the published election data files and software, I have been able to reproduce the mayor and City Council race results. I am not aware of anyone in Aspen who has tallied those races, but I highly recommend that Aspen city officials try it. However, reproducing the tally results from “ballot strings” does not mean I have verified the election. To verify an election one must look at the ballots; no less than full transparency will do. But currently Aspen taxpayers are funding an expensive battle to fight election transparency. Aspen, of all places.
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.
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.
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.
====================
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)
--------------------------------------------------------------------------------
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 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. --------------------------------------------------------------------------- [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?
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The Aspen Election Commission met May 5 (the one year anniversary of the controversial 2009 Municipal Election) to hold its first hearing for complaints. The independent commissioners heard Millard Zimet's complaint regarding non-anonymous election processing.
The video recording of the proceedings may be reviewed at: http://www.grassrootstv.org/Show.aspx?ShowID=9062
