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| (CO) 12/09 - ASPEN'S SLIPPERY SLOPES:... |
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Bev Harris
Board Administrator
Username: Admin
Post Number: 10913
Registered: 12-2004
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Tuesday, December 8, 2009 - 3:19 pm: | 
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Black Box Voting is now formally involved in a crucial public policy fight in Aspen, Colorado. Part of our role is to educate the public on the necessary argumentation to protect our rights. During a political bruise-fest following the City of Aspen's May 2009 election, important public policy issues have emerged.
Perhaps it began when Aspenite Marilyn Marks uncovered overspending and underdisclosing on a government housing project, then ran for mayor and lost. Using her blog, "The Red Ant," Marks had exposed massive cost overruns and significantly misleading cost estimates on the Nov. 2005 ballot to approve Aspen's Burlingame Ranch "affordable housing" project. She later decided to run for mayor, dueling it out with incumbent Mayor Mick Ireland, a staunch advocate of the Burlingame Ranch project. Marks and Ireland share a backbone for contentious issues, and neither one is afraid of a good fight.
Ireland beat Marks in the mayoral election by a nose.
VOTING RIGHTS CONFLICT OF NATIONAL IMPORTANCE
During post-election jockeying between mayor-elect Ireland and former candidate Marks, a voting rights conflict of national importance was exposed. When the City chose to deny a crucial open records request by Marilyn Marks, she filed a lawsuit to compel compliance with Colorado Open Records Laws.
OVERVIEW: No rational person can favor unaccountable elections. Elections that are unaccountable to the people they purport to serve fail to recognize that the people are the sole legitimate and ultimate source of power in any democratic system of government. Concealment of Aspen's ballot images violates a high-level right: The right of the public to examine and authenticate all essential components of public elections. Ultimately, Aspen's decision to conceal ballot images from public scrutiny violates all of the following:
(1) the Constitutional frame ("We the People...do hereby ordain...),
(2) the Declaration of Independence (governments are formed to "secure these rights" and "derive their just powers from the consent of the governed") and
(3) the Universal Declaration of Human Rights (holding the sole source of legitimate political authority is the people of a nation).
AT ISSUE IN ASPEN:
Can a local government legally prohibit a citizen from examining anonymous digital images of the ballots? The City of Aspen seems to think so.
BACKGROUND:
quote:
(From Marks' legal complaint) On election night, the tabulation of ballots under the new IRV rules was conducted by TrueBallot, Inc. ("TBI"), a Maryland corporation engaged in the business of election and ballot administration, under a Balloting Agreement between TBI and the City of Aspen...The first step of the TBI tabulation process was to scan the original paper ballots cast in the election and save each resulting digital photographic image as a single computer file in tagged image file format ("TIFF")
...On June 4, 2009, counsel for the Defendant [City of Aspen] denied the Plaintiff's [Marilyn Marks] CORA [Colorado Open Records Request] request to inspect digital photographs created from ballots...
Aspen initially tried to dispense with Marks's public records request by claiming that Aspen does not have to comply with Open Records laws because of its Home Rule Charter. Home Rule, however, does not trump constitutional rights. Then someone in Aspen government circles decided to use open records laws themselves to get a bunch of Marks's e-mails; the city has not recently repeated the absurd contention that Aspen is exempt from open records laws.
ANONYMOUS BALLOTS "MAY NOT BE ANONYMOUS"
When Marks asked to review the anonymous ballot images, which are not the ballots, but rather, scanned images of the ballots created on a CD by a vendor, Aspen denied her request to examine anonymous ballot images on the grounds that they may not be anonymous.
¿QUE?
Aspen officials also contend that a scanned copy of a ballot IS a ballot. Then they admit that it isn't.
The City of Aspen filed a motion to dismiss the case, using an approach that reminds me of the unskilled early courtroom moves in the film "My Cousin Vinny." As you may recall, when the judge asked Vinny to enter a plea, he kept trying to argue the case, to which the judge retorted:
"Apparently you want me to skip the arraignment and move directly to the trial, and then skip the trial and move directly to a verdict..."
Marks' Attorney Robert McGuire responds to Aspen's motion to dismiss:
quote:
(From Marks' response to Motion to Dismiss) - "The City of Aspen tries to get the court to dismiss the case by arguing the merits of the case, rather than by finding a valid cause for dismissal... the affirmative defenses of constitutional infirmity and contrary state statute are based on erroneous constructions of the Colorado Constitution and Colorado statutes and therefore do not entitle the Defendant to judgment as a matter of law; and because the defense of "substantial injury to the public interest" under CORA requires the Court to resolve a disputed issue of material fact, which renders judgment on the pleadings inappropriate".
You might want to grab a stiff drink and settle into your favorite armchair for what follows. Here is a rundown of the case so farm, from the Marks v. City of Aspen litigation files:
The city contends that examining the anonymous ballot images may threaten ballot anonymity because the images may not be anonymous.
quote:
(From Marks' response to Motion to Dismiss) "...Furthermore, the Defendant's broader concern that the Plaintiff's inspection of the requested records might threaten ballot secrecy generally can only be understood to mean that the Defendant believes the ballots used by the City of Aspen contain some kind of information that makes them personally identifiable.
"...If it is indeed the Defendant's position that the ballots are somehow inherently personally identifiable (through inspection of the TIFF files), then the ballots themselves must violate the anonymity in balloted voting that is required by Article VII, Section 8, of 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 Defendant asserts that the constitutional provision for secrecy in voting will be violated by allowing the Plaintiff to inspect the requested records, that secrecy must already be breached by virtue of the government's own possession of those same records. "
The City of Aspen presented a series of points that misquote Colorado law, tucking in Aspen's own extra words "or images of ballots" whenever they found it handy to conflate the two, like this:
From court papers filed by the City of Aspen:
quote:
"As noted below, §31-10-616, C.R.S., specifically prohibits the city clerk from making available for public inspection the ballots, OR IMAGES OF THE BALLOTS."
Problem is, the law doesn't say "or images of the ballots." And ballots are considered to be a public record in Colorado.
Public ballot examinations are not uncommon throughout America. Some states, like the 2008 presidential race in Humboldt County, California and the Minnesota senate race, have already published digital ballot images on the Internet. In some states, like Ohio, citizens may have to wait for a retention period to expire before they examine ballots, as Richard Hayes Phillips and Paddy Shaffer did when they examined Ohio's 2004 presidential ballots in 2006. Sometimes citizens can examine the ballots as soon as the contest period has expired. And as you may recall, news organizations used sunshine laws, also know as open records laws, to examine every ballot cast in the 2000 presidential election in the state of Florida.
PUBLIC CONTROLS: THE GOVERNMENT SHOULD BE POWERLESS TO WITHOLD EVIDENCE OF ITS OWN LEGITIMACY FROM THE PUBLIC
Voting is the right that protects all other rights. The founders of our system of government, the framers of the United States Constitution, wrote and spoke about government being powerless to tinker with the mechanisms of its own legitimacy, because such tinkering would conclusively demonstrate that the government was trying to break free from the only thing it was created to serve: the people of the United States of America.
The Aspen city government, in effect, is trying to say that the government must engage in non-transparency, forcing the public to simply take the word of the government rather than allowing the public to authenticate elections.
"IN THE INTEREST OF PUBLIC INTEREST, WE MUST CONCEAL CRUCIAL ELEMENTS OF PUBLIC ELECTIONS FROM THE PUBLIC"
The City of Aspen then turns the concept of "the public interest" on its head, claiming that crucial evidence from public elections must be concealed from the public, citing harm to "the public interest" if the public is allowed to authenticate its own election records:
From court papers filed by the City of Aspen:
quote:
"CORA requires the custodian of a public record to refuse to disclose a public record if in her opinion 'disclosure of said record would do substantial injury to the public interest.'"
The Aspen court documents explain that allowing inspection of ballot images would be against the public interest because there must be "finality" in elections. But this confuses two principles. Finality in elections is achieved by setting deadlines for canvassing, certification and contesting elections in court. In fact, nothing will now change the outcome of the May 2009 Aspen mayoral election. As we saw when the media examined all Florida ballots from the 2000 election, finally publishing their findings in late 2001, a sunshine law examination has nothing to do with altering election outcomes. Freedom of information rights are not based on changing a result, they are based on the public right to know.
"THE PUBLIC CAN'T SEE CONTENT OF THE BALLOTS."
The City of Aspen then really dives into the rabbit hole, claiming that the public must not be allowed to examine the CONTENTS of cast ballots (ie., the votes on the ballots) because it will violate the secret ballot because someone might have made an illegal mark on a ballot. It should be noted that Marks's lawsuit requests examination of the "anonymous" scanned ballot images. She even invites public officials to withhold ballot images with hand written write-ins or any other identifying marks that Aspen officials might think would compromise political privacy.
Article 8 of the Colorado Constitution prohibits voters from making identifying marks on their ballots. By taking the position that voters (or, perhaps, government or election officials) might have broken the law by placing identifying marks on the ballots, the Aspen government is taking the position that only the government can see these marks, and that the government, if it finds them, can cover up evidence of a crime by refusing to show them to the public. If the government is saying "We're going to withhold these on the grounds that it may compromise secret ballots," what they are asserting as a defense is commission of a crime.
And it's also absurd. Since there is no exemption for the government to see items but not the public, following a line of reasoning that the content of ballots cannot be examined by the public would mean that elections could not be counted by anyone.
quote:
(From Marks' response to Motion to Dismiss) - The Defendant asserts that Article VII, Section 8, of the Colorado Constitution prohibits the public disclosure of "ballots and copies of ballots" cast in an election. (Def.'s Mem. Supp. Mot. Dismiss at 7.) This contention is erroneous both because the public's inspection of the TIFF files cannot violate secrecy in voting where the underlying ballots themselves comply with the Colorado Constitution and because TIFF files created from underlying ballots that are illegally marked to be personally identifiable should not be constitutionally shielded from public disclosure purely as a result of their illegality.
...The Defendant argues that the Colorado Constitution requires the actual content of the ballot itself to be kept secret... she mistakenly characterizes as supporting her argument that secrecy in voting goes to the "contents or information contained on ballots."
... Furthermore, the Defendant's interpretation that the contents of a ballot are themselves required to be secret ultimately cannot be correct, since requiring the contents of ballots to be secret would produce the absurdity that votes in an election could not constitutionally be counted. After all, the government is nowhere exempted from the requirements of Article VII, Section 8; so if secrecy in voting shields a ballot’s content from the eyes of the public, then it must equally shield that ballot's content from the eyes of the government, including from a government tabulator who can only count votes by accessing the "content or information contained on the ballots."
Because the Defendant's interpretation produces an absurdity and because the plain language of Article VII, Section 8, supports the more reasonable conclusion that secrecy in voting protects the anonymity of ballots, rather than their contents, the Defendant's interpretation of the scope of the constitutional requirement of secrecy in voting must be rejected under Rodriguez, 112 P.3d at 696. The plain language of Article VII, Section 8, is properly interpreted only to require that ballots be anonymous, not that their contents should also be secret.
Aspen goes on to speculate that voters might have violated their own anonymity in some way that is undetectable by government officials, apparently claiming that such voters should be shielded from exposure. But making identifying marks on ballots violates the law. Taking such a position would be to say that the public right to know must be thwarted because someone might have committed a crime, or at least, violated a statute.
quote:
(From Marks' response to Motion to Dismiss) - The Defendant raises the possibility that some voters may have marked their ballots in a way that makes those ballots personally identifiable. Her position is not only that illegally marked ballots should benefit from the constitutional protection of secrecy in voting, but also that the mere possibility that some underlying ballots may be illegally marked justifies restricting the public's right of inspection of all of the TIFF files. The Court should reject this argument, since a voter who has illegally marked his own ballot can hardly be justified in relying upon the protection of Article VII, Section 8, when it is that voter's own illegal act that has compromised the anonymity of his ballot.
There are less draconian steps to protect voter privacy than concealing all the ballots from the public. But even if there weren't, the right to see the ballots would trump the right to privacy.
All rights are not equal. It is rare that two rights come into conflict with each other, but when they do, the inalienable rights trump lower level rights. For example: It is generally our right to own assets. But if you own some slaves as an asset, your right to ownership comes into conflicts with a higher level right. The right to liberty trumps the right to ownership.
The right to public control of elections is an exceptionally high level right, because it controls public sovereignty over the instruments of government which we have created. So if there was a conflict between ballot privacy and public right to authenticate every essential component of the election, the right to privacy would have to yield.
Ballots have been subject to public examination for a very long time with no evidence that some sort of large-scale vote buying or coercion scheme connects up to public inspection under Freedom of Information laws. There is no reason to believe that the right to privacy will be compromised in Aspen.
But the City of Aspen's own process and promises have been inconsistent regarding the supposed need to conceal ballot images. On election night, every ballot was projected in scanned sequence in the public tabulation room on large flat screens. Election night TV coverage (still available on internet archives) broadcast hundreds of ballot images on television as commentators were explaining the process! The ballot by ballot projection was planned and executed under the promise of "everyone can test the election" maximum transparency. Then, inexplicably, the City’s position changed.
THE LARGER PUBLIC POLICY ISSUES
Because elections are the ultimate source of any public official's power, granted only with permission of the public, public right to know and authenticate every essential part of elections cannot legitimately be removed by government officials.
Germany's constitution was signed off on by the USA itself, and modeled generally upon US concepts. Germany's constitution is required to incorporate human rights provisions which the US not only voted for, but formally adopted and ratified as a treaty. The German high court affirmed the following constitutional principles for public elections in March, 2009. The court ruled that:
1. All essential steps of the process must be fully open to public observation.
2. Government checks may not substitute for public observation.
3. Expert technical knowledge may not be required of the public in order to observe all essential steps of an election.
By fighting for the right to examine ballot images, Marilyn Marks is performing an important service in pursuit of the original principles of citizen sovereignty, which were carved out by the founders of our democratic system of government.
LINKS TO ASPEN COURT DOCUMENTS
http://www.bbvdocs.org/CO/pitkin/Aspen-Marks-Open-Records-Complaint.pdf
http://www.bbvdocs.org/CO/pitkin/Aspen-Marks-motion-to-dismiss.pdf
http://www.bbvdocs.org/CO/pitkin/Aspen-Marks-Response-to-Motion-to-Dismiss.pdf
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Bev Harris
Board Administrator
Username: Admin
Post Number: 10947
Registered: 12-2004
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Wednesday, January 13, 2010 - 1:02 pm: |
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Thanks for the rousing discussion on the important topics in Aspen, Colorado. The discussion has been archived -- but is still live for more contributions -- and can now be found here:
http://www.bbvforums.org/forums/messages/133/80770.html
Locking this thread to make way for newer items. |
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