The never-ending war
July 19, 2010
The Vietnam War was said to be the war most discussed yet least understood. Some may feel that way about the unfinished “war” over Aspen’s May 2009 election.
It is not a war in which Marilyn Marks seeks to overturn Mick Ireland’s victory in the mayor race. She never disputed that outcome. Like most wars, the trouble began well before most people knew there was a war, while the new IRV-based voting system was being developed inside City Hall. As Marilyn and others questioned the statements and decisions made before the election it seemed like only a series of unimportant skirmishes.
Now it is the district attorney’s turn to ask questions, and only the DA’s office knows where that is headed. Meanwhile, to better understand the known issues it may help to put them into a few categories:
May 2009 promises broken
This would include promises that all hardware and software used would be certified and that the election would be fully transparent and fully audited. Efforts were made, but none of those were fully completed. Only some of the ballots were displayed, and only some of the vote marks were audited. Whether or not there were legal breaches depends on the fuzzy area of Aspen’s election law. Based on the promises made, Marilyn Marks requested ballot images to complete an audit. But that transparency was denied.
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May 2009 basic election execution issues
Keys were left hanging from a ballot box in City Hall that collected more than 800 early voting ballots, the public software test did not work out, most of the tallying was performed by a private company using uncertified systems, voters’ ballot data were collected roughly in the order voted without shuffling to preserve anonymity, corrected tally results were announced after the incorrect ones were certified, etc. As an election official I know that mistakes happen. But this is a bit much, and if nothing else there has to be better oversight in the future.
Ongoing legal issues of the in-place Aspen election laws
Besides the aforementioned potential legal issues complicated by Aspen’s home-rule status, the unique City Council election system is clearly not the right kind of IRV system for multiseat races, and is illegally susceptible to bullet voting. If IRV is repealed after a vote in November, reverting back to prior election laws, many of the legal issues might go away. However, the status of ballot transparency must still be resolved. The civil court case filed by Marilyn Marks to obtain ballot images under CORA is waiting for appeal. That issue extends beyond Aspen, really.
Unfortunately there is not enough space here to repeat all of the details and evidence that have been provided, and I haven’t even brought up most of the issues. But I hope putting the key issues into these categories is helpful to some. The main point is that some issues relate only to May 2009, some are tied to the IRV election system, and others would exist even if IRV had never been adopted. If improvements are not made, May 2011 could be a repeat of 2009, or worse.
A lawyer may be needed to resolve the legal questions, and local ordinances should be beefed up to fill in some gaps. For example, Aspen could have laws requiring elections to be conducted only by sworn public election workers using either hand tally or certified systems, all tallying performed in the precincts, every document related to elections automatically posted, and early voting must be conducted observing all requirements of regular polling places. In some cases existing laws merely need be enforced. Having good elections takes public vigilance, but it shouldn’t become a war.