[EL] Posting full news articles to the list

[Rick Hasen]

Bev and all list members,

Please be careful not to post more than snippets of news articles to the 
list.  For copyright reasons, please give no more than a short excerpt 
and a link to articles.

Thanks for your cooperation.

Rick

On 9/9/11 8:05 AM, Bev Harris wrote:
> Black Box Voting is involved in Colorado litigation to affirm the public right
> to examine ballots as part of the public record. These lawsuits are proceeding
> on several fronts since Colorado election clerks seem unwilling to follow
> either the law or a recent court decision. Obstruction of the Colorado Open
> Records Act regarding elections records has been taking place in four
> locations: The city of Aspen, Saguache County, and now Mesa County and
> Jefferson County.
>
> The Aspen case is now before the Colorado supreme court; a lower court has now
> affirmed public right to examine ballots in Saguache County.
>
> The Colorado Clerks Association, a quasi-governmental organization with
> participation paid for by taxpayers, but an organization which claims it is not
> subject to either public records law or sunshine laws for its meetings, is the
> primary opponent to public right to examine crucial election records.
>
> The fight for public rights is being reported by Colorado media, including the
> Denver Post (as you will see below in excerpt from their article, the Post is
> clearly on the side of citizen rights) and today, the Valley Courier. Below is
> my commentary on the issue and court cases. - Bev Harris
>
> ***
>
> http://www.bbvforums.org/forums/messages/8/81711.html
>
> A Colorado court has knocked down an anti-democratic effort by Colorado election
> clerks who have been trying to block the public from inspecting ballots in
> Saguache County, ruling that citizens indeed DO have the right to examine voted
> ballots (which are, by the way, anonymous).
>
> Public examination of ballots doesn't entirely guarantee that the count was
> correct, but this is a key component of the public right to self-governance.
>
> Public right to validate its own elections lives at the very core of our
> constitutional right to self-govern. It is our tax money that pays for our
> government; we own it. If government workers are allowed to be in position to
> install themselves and choose representatives for us, we do not have true
> control over selecting our representation. If we lack the ability to see and
> authenticate our own choosing process, we actually are choosing our
> representation only if those holding certain positions inside government want
> to allow it. In a word: Unconstitutional.
>
> Secrecy is antithetical to democratic systems, but if secrecy is allowed in the
> choosing process itself, it crushes the bedrock on which the democratic system
> sits. The public can never cede the choosing process over to government
> insiders, based on "trust", because to do so actually removes the democratic
> system, quietly replacing it with a pseudo, a con, a wish, a pretender.
>
> The public must be able to see and authenticate four things in public elections:
> 1. Who can vote (voter list)
> 2. Who did vote (participating voter list)
> 3. Chain of custody
> 4. The count
>
> Several states have enacted laws to prohibit the public from exercising its
> right to validate its own elections. In Colorado, ballots are a public record
> but certain election clerks have refused to comply with the Colorado Open
> Records Act, denying public requests to inspect ballots and copies of ballots.
>
> New Hampshire, in an act of legislative subterfuge (key records on this now
> missing from New Hampshire state archives), quietly passed a law in 2003
> containing an obscure paragraph which excludes ballots from right to know law.
> (more: http://www.bbvforums.org/forums/messages/8/81673.html )
>
> The public used to be able to look at ballots in Washington State, but
> Washington recently changed the definition of "ballot" in its election
> statutes, and is now using this changed definition clause to block citizens
> from examining ballots.
>
> Colorado clerks have tried to block the public from examining ballots to compare
> with election results. An exception: El Paso County, whose clerk allowed the
> public to inspect ballots there.
>
> Examining ballots after they have been taken out of public view does not suffice
> to validate the count, because #3, chain of custody, is missing. The same
> government workers who have access to altering vote counts control the chain of
> custody. The best way to use ballot examination to validate the count is at
> polling places on Election Night. Any method that allows the public to see and
> authenticate the count, before ballots leave public view, is better than what
> we are doing now.
>
> The Colorado decision validates public right to examine ballots in Colorado.
> Florida routinely allows ballot examinations by the public. Michigan citizens
> recently examined and videotaped voted ballots. As excerpt from the Denver Post
> below points out, the sky doesn't fall, bug-eyed lunatics don't take over, the
> government doesn't collapse when the public is allowed to examine its own
> election documents:
>
> * * * *
>
> Denver Post - Sept. 4, 2011, by Vincent Carroll
> http://www.denverpost.com/carroll/ci_18808723#ixzz1Wxz0g5cM
>
> There, that wasn't so terrible, was it? Democracy didn't sputter out when
> citizen volunteers were allowed to inspect - and yes, handle - ballots cast by
> residents of Saguache County in a recent recount of last fall's contested
> results.
>
> Unwashed barbarians did not desecrate the sanctuary of our election priesthood,
> as Colorado's county clerks all but predicted earlier this year when they were
> denouncing the proposal. "We believe ballots are sacred," the president of the
> Colorado County Clerks Association declared in commentary published in The
> Post, adding that "the integrity of our elections is worth fighting for."
>
> Yes, the integrity of our elections is worth fighting for. And that's why the
> precedent in Saguache County is so important.
>
> The breakthrough began when a judge ruled last month that "voted ballots are
> election records" under the Colorado Open Records Act - a fact that should have
> been obvious to county clerks but wasn't. Judge Martin Gonzales added that the
> law "does not prohibit disclosure of ballots if the identity of the person who
> cast the ballot cannot be discerned."
>
> And yet how could it be discerned? Ballots contain no voter information, and the
> law actually bars voters from marking them in any way that could reveal who
> they are.
>
> So it follows that voted ballots must be available to you and me just like other
> public records.
>
> ... At a hearing last April in another open elections case, the state court of
> appeals heard perhaps the silliest argument yet for concealing voted ballots.
> According to a lawyer for Aspen, which is fighting an attempt by former mayoral
> candidate Marilyn Marks to see digital copies of ballots from the 2009
> election, an election judge might accidentally leave a chocolate smudge on a
> voter's ballot and later recognize that ballot if it became a public document.
>
> Fortunately, at least one member of the three-judge panel seemed skeptical of
> this goofy theory. If we're lucky, the appellate court will issue a ruling that
> goes even further than Gonzales did, since he exempted from release ballots
> whose "content or structure may disclose the identity of the voter." Yet how
> could such ballots exist so long as voters follow the law?
>
> The stakes are enormous. In Saguache, the recount found fewer valid votes in all
> three races it looked at than the county's certified totals. And while the
> winning margins weren't threatened, the findings did at least prove that clerks
> are not infallible.
>
> Read more: Carroll: The sky didn't fall after all - The Denver Post
> http://www.denverpost.com/carroll/ci_18808723#ixzz1Wxz0g5cM
>
> * * *
>
> ALSO:
>
> Valley Courier -
> Thursday, Sep 8th, 2011 BY: Teresa L. Benns
> http://www.alamosanews.com/v2_news_articles.php?heading=0&page=72&story_id=21935
>
> Mesa, Jeffco clerks seek court order to withhold CORA-requested ballots
>
> DENVER — In an attempt to obtain a court ruling differing from Saguache District
> Judge Martin Gonzales’ recent decision that ballots are public records, two
> Colorado county clerks have simultaneously requested court orders to withhold
> voted ballots from public inspection.
>
> Mesa County Clerk Sheila Reiner and Jefferson County Clerk Pamela Anderson filed
> almost identical documents seeking the decisions yesterday in Grand Junction
> and Golden. Both clerks received Colorado Open Record Act (CORA) requests from
> Aspen election integrity advocate Marilyn Marks last month and both refused to
> supply the documents Marks requested.
>
> Marks sought three specific types of voting records: the record of how each
> anonymous electronic ballot was voted, primarily, but also computer audits and
> system logs. Both clerks claim to have destroyed the computer audits and system
> logs, despite the fact that federal and state law requires a two-year retention
> period.
>
> Denver attorney Robert McGuire, acting for Marks, filed suit against both clerks
> late Wednesday night for the right to review the CORA-requested documents
> rather than simply responding to the requests for court decisions.
>
> “I chose to take a more active stance in the matter and litigate the issue
> [because] it is too important to leave to a more passive process,” Marks
> commented on the suit.
>
> ... In her e-mail to Marks denying the request for electronic ballots, Mesa
> County Clerk Reiner wrote: “The EL155 is the iVotronic ballot log. This file
> contains images of ballots, listed by precinct, and shows how someone voted.
> This log is also printed for the extensive auditing process with the major
> political parties.”
>
> She claims that the “law is clear and the ballots must be kept secret.”
>
> As Marks points outs, this means that only an elite cadre of clerks and
> politicos would be able to examine votes, not the public.
>
> ...The files the two clerks seek to withhold are the same files produced by the
> Electronic Systems&  Software (ES&S) voting system, which have been used in
> other states to test the reliability of the touch screen voting system. In
> fact, the very record types that both county clerks claim to be “secret” have
> been posted to the web by South Carolina election activists
> (http://www.scvotinginfo.com ) and the South Carolina state auditor:
> (http://www.scvotes.org/2011/08/03/2010_general_election_audit_files.) The
> South Carolina legislature has now taken up the subject of the questionable
> reliability of these voting systems based on their findings in reviewing this
> election data.
>
> “The public should be asking what is wrong in Colorado that election files
> available in other states for election quality reviews and academic work cannot
> be accessed here,” Marks said in an e-mail Thursday. “Public access to election
> records is a fundamental requirement of democracy. Citizens and the press must
> be able to verify their elections in order to fully exercise their rights to
> self-governance.”
>
> Mary Eberle, a member of Coloradans for Voting Integrity, e-mailed Thursday: “It
> is unfortunate that expensive litigation of the type filed against Jefferson
> and Mesa counties is necessary to gain citizen access to the most basic of
> public records - the records of the citizens’ will at the ballot box. With the
> success we expect from this latest legal effort, all other Colorado counties
> will enjoy the same level of election transparency the citizens of Saguache are
> beginning to experience.”
>
> Eberle participated as an observer in the citizens’ review of Saguache 2010
> votes last week to try and verify the troubled election in Saguache. While
> numerous problems and tabulation errors were exposed, the process made all the
> ballots available to anyone to see and count.
>
> A review of all the ballots found none to be “personally identifiable,” counting
> judges and observers at the review agreed.
>
> * * * * *
>
> (Note from Bev Harris: Thanks to Paul Lehto, a scholar on election rights, for
> expertise on framing the rights issues. Thanks also to Deborah Sumner and Nancy
> Tobi (Democrats), who helped me research the quiet action to exclude ballots
> from right to know law in New Hampshire, and to Colorado litigant Marilyn Marks
> (Republican), Harvie Branscombe (Democrat), Al Kolwicz (Republican) and the
> other Colorado voting rights advocates, and to members of the Tea Party in
> Washington State, whose efforts to examine ballots and audit logs were refused
> recently, citing the newly revised ballot definition clause in Washington
> election statutes.)
>
> The effort to enforce the public right to see and validate our own election
> records is truly nonpartisan.
>
> Bev Harris
> Founder - Black Box Voting
> http://www.blackboxvoting.org
>
> * * * * *
>
> Government is the servant of the people, and not the master of them. The
> people, in delegating authority, do not give their public servants the right
> to decide what is good for the people to know and what is not good for them to
> know. We insist on remaining informed so that we may retain control over the
> instruments of government we have created.
>
>
>
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-- 
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org