Aspen’s May election under review
July 27, 2009
ASPEN – A small group of Instant Runoff Voting junkies plan to do an independent review of Aspen’s May election, and the two people leading the effort couldn’t be more politically opposite.
City Hall critic and former mayoral candidate Marilyn Marks has joined forces with Harvie Branscomb, co-chair of the Eagle County Democratic Party, to launch the review.
“He called me out of the blue,” Marks said of Branscomb, who contacted her two weeks after the May 5 election. “While we are politically opposite, we have a shared passion to ensure the election’s integrity and transparency.”
They both presented individual and lengthy presentations to the Aspen City Council on Tuesday, providing their analyses of what worked and what didn’t with the first-ever IRV system tried in Aspen.
Branscomb is a supporter of Aspen Mayor Mick Ireland, while Marks, who lost the election to Ireland by 177 votes, is arguably his biggest critic and political enemy.
Branscomb told the council he is raising private funds to pay for the review, which will include himself, an election lawyer and an election activist from the Front Range. The team will be designed to be a bipartisan effort.
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“I have no agenda with respect to the election other than its unique benefits,” he said. “I want to document the process on setting up this particular election and its side effects.”
Marks said she plans to help raise money and support the effort with whatever election information and analysis she has done, but she is not officially part of Brancomb’s team.
Part of that information includes Marks’ Colorado Open Record Act request for all, or a portion of, the 2,600 ballots casts by Aspen voters.
City attorney John Worcester has denied that request, arguing that voters’ ballots should be private, per the city’s home rule charter and the council’s intent to keep them from public review.
Branscomb told the council Tuesday that he plans to challenge that position because in order to do a full audit of the election, his team must start from the beginning, which are the paper ballots. Individuals’ votes ought to be checked against how the scanning machines interpreted them, he argues.
“I am intending to push that further,” he told the council. “Ballots should be open and investigated by the press and the public … I don’t anticipate losing that discussion.”
Jim True, special counsel for the city of Aspen, said plenty of regulatory stop gaps prevent ballots from ever being public.
“Under the Constitution, state statute and our charter requirements, the ballots should not be released,” he said, adding the concept of a secret ballot is to ensure the purity of elections and to avoid voter fraud. “There are a number of issues that could become a factor if the ballots were made public … It’s a debatable issue but I think our position is certainly consistent with the law and is defensible.”
Days after the election, city clerk Kathryn Koch conducted an audit of the paper ballots, randomly selecting 10 percent to make sure they correctly corresponded with the “strings” of the digital scans. Candidates were assigned a number, and they appeared on the ballot images in order of how voters ranked them. The audit showed that 100 percent of the 265 ballots selected matched up correctly with the digital images.
“We are confident the strings correspond with the ballots,” True said.
But that audit isn’t enough to have a complete analysis of the election, argue Marks and Branscomb.
Marks is adamant that she has no intention of over turning the election’s results, or has any self-interest in the review.
“I’m in no way wanting to challenge the election,” she said, adding if she wanted to she would have done that shortly after the election – on the basis that there was no comprehensive logic and accuracy test done before Election Day or a full-scale audit afterward. She also said she purposely waited until after the contesting period to provide the council with her analysis and open records request.
“The review is meant to watch the process all the way through and being able to ensure the ballots are read and tabulated correctly,” she said. “It can no way undercut or change the election results.”
Marks argues that ballots already are public record because their digital images were flashed on screens in council chambers on election night. She also argues that the identity of voters can’t be revealed because no names are attached to them.
“Ballots must be anonymous,” she said. “I’m not asking for the identity of the ballots.”
The point of the audit is to capitalize on the transparency of Aspen’s election since each ballot has been documented and recorded as a digital image, which is unique to elections held around the country.
“I think it’s important to use all of the tools of transparency,” she said. “This is just one step … to take the ballot image and trace it all the way back.”
Aspen’s IRV system has attracted interest from election officials and interested parties from around the country. Branscomb’s review is intended to point out positives and negatives of Aspen’s system, and improve upon on it for future elections.
“This is about looking forward, not backward,” Marks said.
Where Marks and Branscomb also are opposite is in their positions on IRV. Branscomb is a proponent of the method, while Marks favors a traditional runoff election held a month after the May election when candidates who received the highest amount of votes face off.
The council last week agreed to put a non-binding advisory question to voters this fall to see if they want to continue with the IRV system, or if an alternative should be sought. If voters want a different election system, it will require another public vote to change the city charter.
Marks plans to push for a charter amendment this fall instead of an advisory vote. She’ll gather signatures on a petition for a referendum if she has to, she said.
“The public knows whether it likes IRV; let’s get it resolved,” Marks said.
Branscomb, who also served on the Coloradans for Voter Integrity and testified in front of the state Legislature on election law, said officials who oversee state election laws are on the cusp of rewriting auditing rules, and Aspen’s IRV system is a good case study that ought to be fully reviewed – the results of which should be shared with the Colorado Secretary of State’s office.
“Aspen is ready for that kind of transparency,” he said, adding the local election is a unique combination of innovative techniques. “It’s important for the rest of Colorado.”
He said his main concern is to protect the ability for citizens to be able to run their own elections and oversee the quality of them.
As for Marks’ open records request, she and Branscomb said they hope the council and the city’s attorney office will have a change of heart and release the ballots.
If not, Marks said she intends to use the remaining funds from her campaign war chest to legally challenge the decision.
“I’m hoping that I won’t have to spend a dime on it,” she said. “I really believe the council intended to have everything be totally transparent.”