CO Court Asked to Order Release of Election Records

 Colorado State District Court Asked to

 Order Release of Digital Ballot Images

October 9, 2009  Aspen, Colorado 

Marilyn Marks, a local citizen activist, filed documents yesterday with Colorado State District Court in an action to compel the City of Aspen to release the photographic images (TIFF files) of ballots cast in the May 2009 election. The filing also requests that the court require the City to preserve those election records, as the City has stated that those records are facing destruction on November 5.  The filing comes in response to a multi-month dispute over the City’s denial of Marks’ Colorado Open Records Act request.

Marks  was a mayoral candidate in the election and did not contest the election, but chose to research and advocate for future election reforms, including the repeal of Instant Runoff Voting.

Marks began making formal public document requests for a copy of the City’s CD of these digital files on June 1, and states that the images are required in order to perform a comprehensive review of the May IRV election.  She believes that the new IRV election system was implemented with inadequate testing and a non-standard and grossly incomplete audit. Crucial configuration settings of the software were changed without notice, after public testing and immediately before the election, she says.  Only after the period for legal contest was closed, the City disclosed software and tabulation errors which could have been prevented with adequate testing.  Additionally, in analyzing the detailed rankings data, other issues arose regarding the scanning and tabulation software which require the original photographic images to properly investigate and resolve, Marks states.

Marks praised the City for the transparency for the IRV election where a “see for yourself” system was planned. The City stated numerous times that all data has been released to allow anyone to independently tabulate and verify the election. “Unfortunately,” Marks says, “that’s not possible until the ballot ranking data  can be checked against the source image record.  The good intentions and best efforts by the election officials achieved the planned transparency up to a point. But mysteriously, the shades were drawn just after election day.”

“It is important for Aspen and other communities currently considering IRV elections, that the records not be destroyed as they are needed to create solutions for problems one would expect to find when using new election methods. The City’s planned near term destruction of these records forced this litigation. I had hoped that this would be resolved without the expense of lawyers and dependence on the court. However the City has shown no willingness to cooperate with an election review designed to work toward future improvements,”   Marks said.

“It is important to understand that none of the races are being, or can be contested. That deadline was passed in late May,” she emphasized. “It is imperative to use facts, as contained in these hidden records to thoroughly analyze the system, and not make guesses based on incomplete information after the original records are destroyed.”

On election night, the ballot images were projected one by one on large television screens in the tabulation center for the public to observe, as many were being broadcast on Grassroots TV. The City claims that those TIFF files are confidential, “secret,” and private records. Marks says, “Clearly the City is incorrect, since election night video coverage  showing scores of those  ballot images may be seen at http://vod.grassrootstv.org/cablecast/public/Show.aspx?ChannelID=1&ShowID=8097.”

Marks says that she believes that  most, if not all, of the ballot images have no personal or identifying information on them, in compliance with Colorado law.  “Yet, to my surprise, the City apparently disagrees,” she said.

The City has claimed that if the ballot images are shown again, voter anonymity may be violated as ballot images could possibly be traced to the voter. “City officials have said, that the ‘ballots are anonymous only as long as they are locked up.’  As the  legal complaint states, ‘If it is indeed the City’s  position that the ballots are somehow inherently personally identifiable, then the ballots themselves must violate the anonymity in balloted voting that is required by the Colorado Constitution.

The Colorado Constitution’s guarantee of secrecy in voting means that a voter’s ballot should not be personally identifiable to anyone, including the government. To the extent that the City asserts that the constitutional provision for secrecy in voting will be violated by allowing the public to inspect the requested records, that secrecy must already be breached by virtue of the government’s own possession of those same records’.”  

Marks states that a number of tabulation, software and process issues have been noted in limited reviews of the election data. She is encouraging a comprehensive review by an independent bi-partisan team headed by Harvie Branscomb, a well known election integrity specialist and advocate. She has also requested that Aspen’s Election Commission require the City to preserve all other election records which can be legally retained.

The Aspen Times called for the city to release the ballot images in its editorial of August 12. Fair Vote.org, the most prominent IRV advocacy group, has as well. Many citizens have advocated for the release of the ballots by signing an informal petition. Now, Marks says, citizens are relying on the court to require the City to fulfill the original promise of transparency of election records which would allow any citizen to verify the outcome.

A copy of the documents filed with the court  are linked below.

Contact:

MarilynRMarks@gmail.com  970 429 7535

http://theredant.squarespace.com/storage/091008%2001-Complaint%20and%20Application.pdf

http://theredant.squarespace.com/storage/091008%2004-Exhibits%2001-09%20pp1-25%20200dpi.pdf

Update on October 16 by Marilyn

Today the Court granted our requrest to prevent the planned destruction of the ballot images, (TIFF files.)

The City also requested preservation of the original ballots themselves. The Court granted that request as well.

Great news that all election records are preserved at least until the litigation process is complete. Additionally, the Election Commission agreed to preserve all other election records until March 2011.

The audit review process will continue at a patient pace working toward a set of recommendations for better election practices in the future.

Marilyn

Update on October 17 by Marilyn

Aspen Daily News Article on the Court Order to Preserve TIFF files of Ballots

http://www.aspendailynews.com/section/home/137091

Be sure to note the clarifying  on line comments which distinguish the ballots from the TIFF files of the images, which is what is being sought.

Please also note, (copied from my on line comments)--

I DO NOT ANTICIPATE ANY SIGNIFICANT PROBLEMS WITH THE SOFTWARE OR IMAGES WHICH COULD HAVE IMPACTED THE OUTCOME OF ANY OF THE RACES.  Even in the extremely remote chance of some significant software tabulation problem, the certified results and election winners are NOT subject to change. No election contests could be filed after May 22nd. All defeated candidates chose to forego any election contest.

 I did as well, with the advantage of having had my mathematician nephew re-tabulate the election using the data strings just after the election. While he noted some software bugs of unknown origin, we concluded that the outcome would not change. In fact, in the mayor’s race, it appeared that I had picked up a few of votes that should have been Mick’s, --just making Mick’s margin of victory greater. Therefore it was clear that there was no need to contest the election during the available contest period, but to work to gain access to the documents to identify software or processing bugs so that they would not occur again in the future.

Comments

[WDB]

Thought I would come over to see how much noise has been created by this incredibly self serving lawsuit. WOW. Where is everyone???

A few possibilities. First, people are posting, but the Red Ant is removing their posts because they speak the truth, and we all know how much ants hate the truth. Second, everyone is taking an off-season vacation and isn't paying attention to this garbage. But I thought they had email in Tobago, or wherever locals go before the snow falls. Third, NO ONE CARES !!!

I vote for #3.

[Claire Mitchell]

We are circulating a petition here in Burlington to repeal IRV. FairVote's claims of voter satisfaction are not true.
We understand through the election experts here that the Aspen election IRV process was flawed and controversial. But other than your site we cannot find election data. We were told it was on the city website and RedAnts had good analysis. I find your analysis but not Aspen city election website. Is it because of your lawsuit? how do we find the City records?
Claire