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Aspen Election Commission takes up alleged breach of voter privacy

Janet Urquhart
The Aspen Times
Aspen, CO Colorado

ASPEN – Aspen’s Election Commission, with just two of its three members present, appeared to agree Wednesday that steps should be taken in future city elections to ensure the anonymity of ballots, though they did not concede voter privacy was breached in the City Council election a year ago.

Commission members Bob Leatherman and Ward Hauenstein took up a complaint from Aspen resident Millard Zimet, who alleged he could figure out how some citizens voted by extrapolating data released by the city after the May 2009 election, the first in which Aspen used instant runoff voting, or IRV.

Before the discussion began, City Clerk and commission member Kathryn Koch departed, after City Attorney John Worcester read a prepared statement explaining that City Hall critic and 2009 mayoral candidate Marilyn Marks had filed an affidavit with the district attorney’s office alleging criminal misconduct on the part of some city government officials. The city has retained outside criminal counsel and would not be participating in Wednesday’s proceedings, Worcester said, though both he and James True, special counsel to the city, remained at the meeting.

Worcester said later that he hadn’t seen the affidavit, but learned of it Friday.

Zimet’s written complaint alleged, in part, that the data produced by IRV, used in conjunction with a list kept at the Precinct 3 polling place that recorded voters’ names in the order they were issued ballots was, through the process of elimination, sufficient to identify how Mayor Mick Ireland voted in the election. Zimet demonstrated his approach Wednesday, identifying what he thought were the votes cast by Councilman Dwayne Romero.

Zimet urged the commission to take whatever steps are necessary to make sure a voter’s right to cast an anonymous ballot isn’t compromised in the future, whether it’s by doing away with IRV or limiting the data that’s collected and/or made available.

“I want to make sure you don’t release any voting data of this nature again,” he said. “It’s very bad precedent.”

Hauenstein suggested Zimet was guilty of wrongdoing by making a citizen’s ballot public just to see if he could, and Leatherman read an affidavit from Ireland, received by the commission on Wednesday, denying he cast the ballot that Zimet identified as his. Zimet concluded Ireland had only ranked some in the field of candidates; Ireland said he ranked them all in order of preference.

“First, I must say I find it repugnant, if not violation of the law, for any citizen to publicize how another person voted,” Ireland wrote.

He concluded: “I can say without any hesitation or doubt whatsoever that this string does not represent how I voted. It is not my ballot,” he said.

“I’d like to apologize to Mr. Ireland, if I have his string [of data] wrong,” Zimet responded.

“Isn’t it bad enough that I can make the argument … and make you think about it?” he asked the commission, pressing for action despite Ireland’s rebuttal.

Special council True, violating what he called the “gag order” over the criminal matter, said there is no way to figure out who voted how with the information Zimet had at his disposal.

“It is all speculative, it is all guesswork,” he said. “There is no way that anyone can tell how anyone else voted with any degree of certainty.”

Marks has sued the city, seeking release of the ballot images produced by IRV – something Zimet did not have – so that the accuracy of system can be verified. The city has refused, arguing that unique or unintentional markings on a ballot, used in conjunction with the strings of data produced for each ballot by IRV, could be used to identify an individual voter’s ballot.

A district court judge has ruled in the city’s favor; the case is now headed for appeal.

Hauenstein called for ballots to be formally shuffled in future elections – something that was apparently not done last May – to better mix them up before they are tallied.

Though the ballots weren’t purposefully shuffled, they do get jumbled in the process of conducting an election, former City Councilman Jack Johnson told the commission. He said he has twice been a poll worker in Aspen elections.

Hauenstein also suggested shuffling the strings of data produced by IRV, to further obfuscate the connection between a ballot and its resulting data string.

But election activist Harvie Branscomb urged the commission to leave the data in its original order in order to aid in verifying election results. Connecting a data string with a particular ballot doesn’t matter, he said, if the connection between the ballot and the voter is severed.

Branscomb urged discontinuing the practice of keeping a list with voters’ names recorded in the order they receive a ballot, even if the list isn’t a completely accurate reflection of the order in which people actually cast their ballots. Hauenstein agreed.

The City Council intends to ask voters in November if they want to continue using IRV, Hauenstein noted. If the system is dumped, the issues raised by Zimet may be mute, he said.

In the meantime, Leatherman said he wanted some time to mull over recommendations for tweaking the system before taking action. No date for a subsequent Election Commission meeting was set.

Marks, who attended Wednesday’s meeting and spoke briefly, urged the commission to seek a practical balance between the need for transparent elections and voter privacy.

Her criminal complaint, she said in an e-mail following the meeting, was filed with the district attorney’s office because that was the only available avenue to pursue her concerns about election irregularities.

“I do not want to see anyone fined, criminalized, etc. I only want improved elections in the future,” she wrote.

janet@aspentimes.com


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