Tuesday, May 04, 2010

Aspen - Both transparency and trustworthy elections are required. There can be no tradeoff.

May 4, 2009

TO:  Aspen Independent Election Commissioners

Dear Commissioners Hauenstein and Leatherman

I am writing in regard to tomorrow’s Election Commission meeting. Please permit me to first introduce myself. I have lived and worked in Colorado since 1966. For more than a decade, I have worked to improve Colorado’s election system. I am a Trustee and co-founder of Colorado Voter Group. I have served on multiple Boulder County Canvass Boards and voting equipment test boards. I have actively participated in Colorado’s equipment certification process, and contributed to the development of election rules, and have testified numerous times before state and local governmental bodies. I have testified in court as an expert witness on election system matters. I have closely monitored with much interest Aspen’s May 2009 election and its follow on activities. I have worked closely with Nick Koumoutseas of TrueBallot, the vendor whose system was used in the election. I have had a private demonstration of the TrueBallot system including a description of the database tables and macros, and the software used to capture, interpret and correct votes. I have also explored the software used to calculate the selection of the winners. In addition, I have analyzed the database and strings, as well as the first-pass vote interpretations published by Aspen. I have studied Title 31 and have in-depth knowledge of Title 1, the Colorado Election Rules, and Colorado Constitution Article VII Section 8.

My interest in the May 2009 election is due to the ranked choice methodology used for the election. The Colorado legislature has instructed the Secretary of State to prepare a report of Colorado IRV experience by February 2011. As of now, it appears that Aspen’s will be the only Colorado IRV election completed before the report deadline. I hope that by detailed analysis of this election we can make a significant contribution to the Secretary of State’s report to the legislature. We expect this report to significantly influence future legislation.

Clean government does not just happen. The public needs protection from potentially tyrannical governments. Therefore, protection must be independent of government. It must work to serve public, not government, interests. The Aspen Election Commission should strive to become such a protector. You have statutory authority, and your tools are transparency and trustworthy elections.

Transparency means that public information is public and affordable. Government has the power, but not the right, to withhold or destroy information that might undermine its power. The Commission can and should facilitate the public’s access to all non-private election-related information.

A trustworthy election is one that can be independently verified. Voters are supposed to exercise power over government through elections. However, once elected, officials wield an awesome power that can be turned against the public. Officials, through appointments and laws, can hide and misrepresent information and events. And, unmonitored, officials can rig elections in order to pick the winners. The Commission can and should do all in its power to give people access to the all of the information needed to independently verify elections.

In 1946, Coloradoans voted for a constitutional amendment to reject the “trust government” approach. (See attached report, 1946 Ballot Issue No. 1.) Until then, Colorado ballots were voter-identifiable; each ballot was linked to a specific voter. Now, cast ballots must be anonymous – that is, there must be no way for anybody (including government, election judges, even the voters themselves) to be able to determine who voted which ballot. The 1945 amendment also requires voting in private – that is, there must be no way for anybody other than the voter to see what choices the voter is marking on their ballot.

Anonymous ballots and private voting are now the law in Colorado. Creating information that could have been used to connect voters and ballots is now illegal. Information that can be used to prove how a person voted must never be created.

Voter-identifiable ballots could be used to support directed product marketing, fundraising, and electioneering activities. Anonymous ballots and private voting are our protections against intimidation and vote selling. Government employers with access to voter-identifiable ballots can punish employees that do not vote as told. Officials can leak or even sell this information to others who can similarly punish those who do not vote as told. Jobs, promotions and raises can be withheld. Contracts can be withheld or even withdrawn. Housing opportunities or permits can be denied. A market for vote selling is created. Buyers can verify, or plausibly threaten to verify, that “what they bought is what they got”.

Aspen officials have admittedly violated the law. They created and operated an election system that does not provide for anonymous ballots.

1. Their violation is now being exploited by these same officials in their efforts to justify their refusal to produce election records in response to an open records request.

2. There is no public effort underway to enforce the anonymous ballot requirement for future elections.

3. There is no public effort underway to identify and hold accountable those responsible for the violation.
To restore voter confidence in Aspen elections, I recommend that the Commission:

1. Using your legal authority, assert your independence and your intent to represent the public.

2. Define, adopt, and implement a policy of strict compliance with requirements for open election records including, but not limited to, copies of: (a) pollbooks, (b) ballots, and (c) the interpretation of the votes on each ballot.

3. Define, adopt, and implement a policy of strict compliance with requirements for anonymous ballots, private voting, open election records, and trustworthy elections.

4. Reproduce and shuffle copies of the May 2009 ballots and make these PDF files or photocopies available for open records requests.

5. If there are ballots that you believe contain voter-identifiable information, (a) create a team that includes someone who is free from government influence, (b) swear the team as election judges, and (c) instruct them to make anonymous replacement ballots by hand-duplicating these ballots before they are copied.

6. Refer the officials suspected of the anonymous ballot violation to law enforcement.
Both transparency and trustworthy elections are required. There can be no tradeoff.

Good things happen when election records cannot be used to determine a voter’s votes. Copies of pollbooks and ballots can be published for public inspection, as can the interpretation of each and every vote on each and every ballot. The public can verify for itself that the correct ballots were included in the count, and that each vote was correctly interpreted and counted. Although not a complete verification that an election is trustworthy, it is a very important first step.

I am available to discuss these matters with you more fully. And I most sincerely hope that you will accept these recommendations.

Yours truly,

Al Kolwicz

Trustee, Colorado Voter Group

1946 BALLOT ISSUE NO. 1 – Referred

The right to vote using an anonymous ballot was created by the people of Colorado when they adopted a referred amendment to the Colorado Constitution. A brief history follows.

Article VII, Sec. 8 of the 1876 Constitution says:
All elections by the people shall be by ballot; every ballot voted shall be numbered in the order in which it shall be received, and the number be recorded by the election officers on the list of voters opposite the name of the voter who presents the ballot. The election officers shall be sworn or affirmed not to enquire or disclose how any elector shall have voted. In all cases of contested elections, the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law.
On November 7, 1946, an election was held in which there was a contest to adopt an amendment to the Colorado Constitution. As follows:

1946 BALLOT ISSUE NO. 1 – Referred

TITLE - Amendment to Article VII of the Constitution of the State of Colorado providing for secret ballots
The Rocky Mountain News opposed the amendment in its editorial of November 2, 1946, saying:

Reject the Amendments

Both the proposed amendments referred to the people by the last General Assembly are dangerous and should be voted down.

Amendment No. 1 rules out the use of numbered ballots. The aim is to protect the secrecy of the ballot. If adopted, however, this proposal would make virtually impossible the tracing of ballots and would prevent the investigation of election frauds, such as is now underway in Kansas city. The disadvantages would far outweigh the advantages.

According to a report, Legislative Council Staff to Interim Committee on Judiciary, August 11, 1977, the 1946 Amendment No. 1 was passed by the following vote:

FOR 118,470 (56%)
AGAINST 92,203 (44%)
TOTAL 210,673

The Secret Ballot Amendment was put into law by the 1947 General Assembly:

HB47-0248 – ELECTIONS – Amends present statutes to provide for putting into effect the amendment to the constitution of the state providing for a secret ballot. April 22, 1947. (From Digest of Senate and House Bills Enacted by the 36th General Assembly of the State of Colorado (1947 Regular Session - http://www.state.co.us/gov_dir/leg_dir/olls/PDF/digest1947.pdf )
I have not researched the Denver Post or news articles before November 1946. Nor have I researched the actual language of the General Assembly in 1946 that adopted the referred measure or 1947 that adopted HB47-0248. These documents are available at CU Norlin and the Legislative Council.

There is no ambiguity in what Article VII Sec. 8 means. Prior to November 1946 ballots were given serial numbers. After November 1946 ballots were not permitted to have serial numbers or other marks that could be used to identify the voter of a ballot. Colorado voters clearly knew what they were doing when they changed the constitution.

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