[OVC-discuss] Fwd: ASPEN'S SLIPPERY SLOPES: Constitutional rights violations, denial of crucial records

From: Edward Cherlin <echerlin_at_gmail_dot_com>
Date: Tue Dec 08 2009 - 21:00:26 CST

This seems to be a small point in favor of machine-marked paper ballots.

---------- Forwarded message ----------
From: Bev Harris <bev@blackboxvoting.org>
Date: Tue, Dec 8, 2009 at 16:10
Subject: ASPEN'S SLIPPERY SLOPES: Constitutional rights violations,
denial of crucial records
To: echerlin@gmail.com

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 -- in order to stand up for your rights,
it helps to familiarize yourself with the arguments for your rights.
During a political bruise-fest following the City of Aspen's May 2009
election, important public policy issues have emerged. Below is the
gist of an argument that may ultimately have a big impact on whether
your government must honor your rights -- no matter what state you
live in.

You can discuss this here:
http://www.bbvforums.org/forums/messages/8/80769.html

VOTING RIGHTS CONFLICT OF NATIONAL IMPORTANCE

During post-election jockeying between mayor-elect Ireland and former
candidate Marilyn 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.

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.

ARGUMENT FOR 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.

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...

END QUOTE -----------------------

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.

ASPEN'S ARGUMENT: 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.

HUH?

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".
END QUOTE -----------------------

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. "
END QUOTE -----------------------

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."
END QUOTE -----------------------

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.

ASPEN'S ARGUMENT: "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.'"
END QUOTE -----------------------

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.

ASPEN'S ARGUMENT: "THE PUBLIC SHOULDN'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.
END QUOTE -----------------------

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.
END QUOTE -----------------------

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.

ARGUMENTS REGARDING 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

* * * * *

If we are to stay on top of election issues for the crucial 2010
elections, Black Box Voting needs your support. General donations, or
your year-end donations, just follow the usual procedure:
online: http://www.blackboxvoting.org/donate.html
or by mail:
Black Box Voting
330 SW 43rd St Suite K PMB 547
Renton WA 98057

If you wish to restrict your donation to the Aspen Open Records
Litigation, note that Fund raising for the Aspen Open Records Lawsuit
is through a restricted Black Box Voting fund for the Aspen Project.
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a notation in some way on your online donation, that it is for the
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-- 
Edward Mokurai (默雷/धर्ममेघशब्दगर्ज/دھرممیگھشبدگر ج) Cherlin
Silent Thunder is my name, and Children are my nation.
The Cosmos is my dwelling place, the Truth my destination.
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