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• 1. Marilyn Marks  |  November 23rd, 2009 at 7:56 pm

  Thanks, Michael, for posting these excerpts. It's about time some of this starts coming to light so reader can see for themselves, rather than listening to twisted logic.

  I've added a few comments to some of the excerpts.
  Sorry to use caps---didn't know how else to distinguish your posting from my comment.

  Marilyn Marks Press Release, 5/6/09: “Marilyn Marks has announced that she will not contest the Aspen Mayor’s race election results based on procedural election questions raised by Jim Perry and others. Marks said, ‘I certainly honor the voice of the people in this election. While the variety of challenges which might be successfully asserted could possibly change the outcome of the election, given the small 133 vote margin, I believe that our community’s time and energy would be better spent by uniting to address our near-term economic challenges and positive programs. Election challenges are expensive and divisive, and delay the important work at hand.”

  “I have complete confidence in the Election Commission to resolve any remaining questions regarding the election procedures or ballots. Their work will only add to ensuring the integrity of the election process in future elections.”
  I FEEL THIS WAY MORE STRONGLY THAN EVER. I HAD NO IDEA HOW DIFFICULT THE TASK OF ADVOCATING FOR FUTURE REFORMS WOULD BE. THERE'S A LONG ROAD YET AHEAD.

  Marks to Election Commissioner Chris Bryan, 5/9/09: “I feel that I have numerous sound grounds on which to challenge, but politically, I don’t want to do that. But the point is to make sure that the Election Commission is at least aware of these issues—for future elections, and to answer any other candidate’s questions which might arise.”

  “Hopefully you and Ryan [her attorney] can speak on Monday.”
  YES. AFTER I CONCLUDED ON MAY 6 THAT I DON’T WANT TO CONTEST THE ELECTION, I SPENT CAMPAIGN FUNDS TO HAVE MY ATTORNEY WORK WITH CHRIS TO REGISTER ISSUES WITH THE COMMISSION FOR FUTURE ELECTIONS AND ANY CANDIDATES WHO DID STILL HAVE QUESTIONS. [SOME ARE PRETTY LEGALLY COMPLEX, OR SEEMED SO AT THE TIME. SO I NEEDED MY LAWYER’S HELP.]

  Marks to Election Commissioner Elizabeth Milias, also her campaign treasurer, 6/1/09, 1:46 PM: “RE: Automatic Recount Required?—confidential” “After we talk, I’ll tell you what their still argument [sic] might be. After [election activist] Harvie Branscombe and Ryan and I talked this morning, we concluded that we should ask. I’d rather explain by phone.”

  I FELT AND STILL FEEL THAT MICHAEL BEHRENDT’S 43 VOTE LOSS MERITED AN AUTOMATIC RECOUNT UNDER THE RULES THAT WERE INTENDED TO BE ADOPTED. HOWEVER THROUGH A COMBINATION OF MISUNDERSTANDINGS IN THE PUBLIC MEETIING AND A SCRIVNER’S ERROR MADE THE ADOPTED PROCEDURE LITERALLY IMPOSSIBLE TO FOLLOW . THE ADOPTED PROCESS LANGUAGE WAS FLAWED, AND NO ONE COULD HAVE EVER QUALIFIED FOR A RECOUNT. THE ARITHMETIC INTENDED VERSUS WHAT WAS WRITTEN IN THE LAW WERE BOTH QUITE CONVOLUTED. HAVING SPENT ½ HOUR WORKING THROUGH IT WITH EXPERTS, I WANTED TO TALK THROUGH THE MATH WITH ELIZABETH, NOT TRY TO WRITE A MEMO ABOUT THE MATH. WE NEVER HAD THAT CONVERSATION. THIS WAS NOT ABOUT A RECOUNT FOR ME. I DIDN’T QUALIFY. I THINK BEHRENDT DID.

  Marks to Milias, 6/3/09: “After considerable hours of analytical work, trying to resist the concept, Harvie has finally concluded quite solidly that he agrees the IRV method we chose (actually it is a problem that plagues all of them) is completely against the state law on prohibiting a system that causes a voter’s lower ranking for a candidate to count against the higher ranking of another candidate…. So voters were misled. Totally…. We used an illegal method to vote and elect our officials and were WARNED it was illegal, and did it anyway. I’d say we are 6-8 weeks away from that disclosure being teed up. [Red] Ant [blog] will be on it like ‘white rice.’”

  WE’VE PUBLISHED IT SEVERAL TIMES IN PRINT, BUT FEW PEOPLE REALLY GET IT THAT THE METHOD WAS AGAINST COLORADO LAW. HOPEFULLY THE CITY WILL FIX IT IF WE KEEP IRV. SOMEONE COULD HAVE CHALLENGED THE ELECTION ON THAT BASIS.

  Marks to Assistant City Attorney Jim True copied to election integrity activist Harvie Branscombe, 6/7/09: “I hope that people remember that, if a challenge were desired, that would have been done long ago, before the deadline passed. The point is to share the information with the public while the election is still fresh and on our minds—to scrub the data and let it see the light of day and allow the informed debate…. I hope that you will remind people than I’m informed enough to know that time for an election challenge is past, and the preponderance of work has been in analyzing the Council race.”

  YES. IT WOULD HAVE BEEN DONE LONG AGO.

  Marks to Milias, 9/3/09: “I have promised to raise private money for their audit if the EC does not engage them with City funds.”

  YES. THE AUDIT WAS ALWAYS INTENDED TO BE PRIVATELY FUNDED. THERE WAS A BRIEF, VERY INFORMAL DISCUSSION, OF THE EC DESIRING TO COMMISSION AN AUDIT. BUT THE MATTER DIED BEFORE ANY SUBSTANTIVE DISCUSSIONS WERE HELD.

  “In the meantime, the City will get the FOM (Friends of Mick) Citizen task force appointed to oversee an election review and undertake their own ‘audit.’ Once the FOM ‘election review’ is organized, it gets almost impossible for you to get the funds from the City for a grownup, professional review.”

  Marks to Bryan, copied to citizen Millard Zimet, 9/3/09: “FW: thoughts—shared with Elizabeth.” “I suppose I could go ahead and start trying to raise those funds, but I feat that it will cause CC to undercut your position, and say ‘why should we contribute for audit fees that someone else is willing to do?’ And I fear that donors might say, ‘why isn’t the EC getting the funds from the City.’ Also, if I am raising much of the funding, it can too easily appear to be ‘Marilyn’s audit.’ Do you have any recommendations?”

  ITS STILL A PROBLEM, AND THE FUND-RAISING WILL NEED TO BE FROM A DIVERSE GROUP, OF THE TYPE OF PEOPLE WE HAVE BEEN TALKING TO.

  Milias to Bryan, 9/3/09: “I asked MM about the budget issue.”

  AND I SAID THERE IS NOTHING IN THE BUDGET AS I READ THE BUDGET.

  Marks to Bryan, 9/3/09, 2:55 PM: “Also, in terms of independent counsel, do you know Mark Hamilton with H&H? I worked with him on Ordinance 30 and was very impressed with his knowledge of municipal code and law…. I’m terribly picky with attorneys, having had lots of good and bad experiences with the big NY firms in my business career.”

  I WAS ASKED IF I HAD ANY NAMES TO ADD TO THE LIST OF SUGGESTIONS. SEVERAL PEOPLE WERE ASKED. I ADDED THIS NAME, BUT DON’T KNOW IF HE WAS CONTACTED.

  Marks to Milias, 9/7/09: “Despite the ‘majority’ requirement, Torre and Derek didn’t get a majority of the votes cast. Mick barely did (after allocating Andrew and LJ votes)…. I wonder what you and Chris would have said to this obvious violation of the charter requirement to have 50% + 1 of votes cast. Mick had a more reasonable shot at meeting that standard than CC [City Council]. They didn’t even come close.”

  YES. IT IS AN ISSUE WHERE WE FAILED TO MEET THE CHARTER REQUIREMENT. IT NEEDS TO GET FIXED BEFORE THE NEXT ELECTION. MOST PEOPLE DO NOT KNOW THAT WE SEATED TO COUNCILMEN WHO DIDN’T MET THE REQUIREMENT TO BE SEATED. ITS NOT BLAPHEMOUS TO SAY THIS OR KNOW IT. MICK DID GET THE MAJORITY REQUIRED.
  I WANT TO BRING THESE ISSUES TO LIGHT. DO WE REALY WANT THEM TO BE TICKING TIME BOMBS FOR THE NEXT ELECTION?
  I HAD TRIED TO TALK WITH CITY OFFICIALS ABOUT ALL OF THESE FROM FEBRUARY ON. BUT TO NO AVAIL. IT’S WHY WE NEED A FUNCTIONING ELECTION COMMISSION.

  Marks to City Councilor Steve Skadron, 9/13/09, 10:23 AM: “The courts would not look kindly on what happened (that the City conducted an unconstitutional non-secret ballot election), and the Colorado Supreme Court’s remedy to that in the past was to declare a non-secret ballot void. NO ONE WANTS TO DO THAT. HAVING A RE-DO OF THE ELECTION WOULD BE DISASTROUS. The Election Commission can hear these complaints on a non-partisan basis….”

  EXACTLY! THAT IS MY REASON FOR WANTING THE ELECTION COMMISSION TO WORK WITH THE CITY COUNCIL ON THIS MASSIVE ISSUE OUTSIDE OF ANY CONTEXT OF LITIGATION.

  Marks to Milias, Bryan, 9/13/09, 10:27 AM: “I’m trying to position this as a good alternative to the nuclear remedy of a voided election. I don’t see how the City can continue to take the position that they have ‘secret, indentifying’ data that they cannot release, as every time they take that position, they are reinforcing Millard’s claim that they did not conduct a secret ballot election as required by the constitution.”

  “POSITION THIS” –“THIS” WAS A REVIEW BY THE EC AND AN AUDIT AND A PROMISE OF FUTURE REFORMS.

  Marks to Milias, 9/17/09: “This is another one of those issues which could possibly void the election, if litigated. Elizabeth, that is why you and Chris and Kathryn need to try to find a way to get the Election Commission functioning as a vehicle for citizens to resolve issues without litigation. First of all, litigation is unfair to people without lots of resources. The average citizen needs a place for resolution. But even more serious, is the highly unusual issues we are dealing with in this election. Issues which are so fundamental and courts might be forced to void the election, which would be a disaster. I bring this up not only as it relates to Millard’s complaint of the non-secret ballot election, where there is a legal precedent for a voided election, but also with respect to the above serious issue of violating the charter in terms of the majority support the CC candidates. I have no idea whether that potential litigation regarding violation of the charter is time-barred, but regardless, it would not be a good fact if combined with other litigation, one would think. And who knows, once it gets to the guy in black robes—the plaintiffs can’t control the result. Their remedies could likely be too disruptive. It would be so much better to settle these matters with guarantees of better practices, and election reforms, and transparency. From what I understand that is all Millard wants as well. I have told Dwayne [Romero] that I have just exhausted my ideas for who can help talk with the City about a constructive path to reforms rather than the risks of litigation. As you know I’ve tried everything.”

  Marks Press Relapse, 10/9/09: Marks filing with Colorado State District Court: “It is important to understand that none of the races are being, or can be, contested. That deadline was passed in late May.”
  CORRECT!
  Marks to Election Commission, 10/10/09: “As some of us have repeatedly said to the Election Commission, it is unfortunate that the Election Commission feels too cautious to act to deal with issues of this type, and reinforcing that the only recourse is for those with the financial resources and stomach to take on private litigation. There should NOT be a financial barrier to fairness in elections. That is why we need a functioning election commission, who will fight for the rights of the voters and the candidates.” (All in bold.)

  I BELIEVE IT NOW MORE THAN EVER!

  Milias to Bryan, 10/31/09: “CB. Just heard from MM—I’m glad you two spoke. I will get you a draft agenda later today.”

  I DON’T REMEMBER WHAT THE CONVERSATION WAS, BUT I’M ALWAYS HAPPY TO HAVE THE OPPORTUNITY TO MATKE A PITCH FOR ELECTION INTEGRITY ISSUES WITH SOMEONE AS SMART AS CHRIS.

  I am happy to answer any questions. MarilynRMarks [at]gmail[dot]com

• 2. harvie_branscomb  |  November 24th, 2009 at 10:46 am

  I would like to add my thanks to Michael Conniff for selecting a characteristic set of quotes from the dozens of emails which Jack Johnson selected out of reportedly over 2600 pages. I think you did a good job of presenting Marilyn in her own words. I also think Curtis Wackerle (Daily News) and Carolyn Sackariason (Aspen Times) did the community a good service with their recent pairs of articles on Monday and Tuesday 11/23/09 and 11/24/09 considering how deep the issues actually are and how impossible it is to compress them into a single article. They did miss the big picture however. That big picture is about the future of citizen oversight regarding elections, which is the principal protection we have against a corruption of democratic process.

  Harvie

• 3. harvie_branscomb  |  November 24th, 2009 at 10:49 am

  from http://www.coloradoforethics.org/
  Ethics Headlines

  Council moves to appoint new election commission
  The Aspen Daily News, Nov 24, 2009
  Colorado ethics panel clarifies gift-ban questions
  The Denver Post, Nov 24, 2009
  Aspen election commission under fire over e-mail exchanges
  The Aspen Times, Nov 23, 2009
  Election commissioners’ terms not in line with charter
  The Aspen Daily News, Nov 23, 2009

  Quote on the border of the front page:
  “Nothing about elections should be hidden behind closed doors, including the certification process.”
  Colorado Voter Group board member Harvie Branscomb commenting on proposed changes to rules governing the state’s certification of voting equipment, as quoted in The Colorado Statesman, 10/23/2009.

  [Aspen is in 3 out of 4 articles at the top of Ethics Watch on 11/24/09 at 10AM]

• 4. harvie_branscomb  |  November 24th, 2009 at 10:52 am

  Very pleased to note that links (at least one) are now possible in my comments. I assume this applies to all who comment. Thanks very much.

• 5. Jack Johnson  |  November 24th, 2009 at 12:55 pm

  Re: the above.

  I suppose the ability to so delude oneself as to be unable to see the truth behind the simple meaning of your own words is a trait--though I suspect not a commendable one.

  I maintain the truth is that the Aspen Election Commission was secretly manipulated by Marilyn Marks to further her own goals (including overturning the election) at public expense. Read and decide for yourself—they are your documents.

  I’ve stored the documents on “File Factory” in two files. The first is http://www.filefactory.com/file/a17c1f0/n/jack_ORA_docs.pdf. This is the comprehensive file that includes all the documents I reference with the exception of the “essential” emails. These “essential” emails (the most blatant examples of wrong-doing) are located at http://www.filefactory.com/file/a1d9bg6/n/essential_docs.pdf.

  At the bottom of File Factory page, select the “download now” button. Select it again after it counts down to zero.

  The wrong-doing begins in earnest on August 22, 2009 with and email from Marks to Elizabeth Milias “are you and Chris willing to use your authority?”

• 6. harvie_branscomb  |  November 24th, 2009 at 10:03 pm

  Jack Johnson:
  Thanks for finally making it possible to read the emails with your hand written notes and page numbering. That makes it easier to see what you are saying. My response to your comment, and a continuation of this thread is located at:

  http://aspenelectionreview.blogspot.com/2009/11/marilyn-marks-responds-to-email.html

  Feel free to post any of your comments over there.
  Harvie Branscomb

• 7. Post Staff  |  November 27th, 2009 at 8:37 am

  Comment by harvie branscomb 11/24/09 9:26 PM:

  When I spoke to you, Jack Johnson, by chance meeting the evening you unveiled your TV announcement you told me (and refused to reconsider) that "you- [ meaning Harvie] are duped". I (Harvie) have since considered that I might have been or even now be duped by Marilyn Marks. In return though, I have to suggest that you consider if you are the one who is duped or delusional about Marilyn Marks.

  Jack you may have inadvertently revealed a misunderstanding you ought to come to terms with before you start turning your imaginations into an info-war against your perceived enemies. Well its too late now, but you still have a chance to apologize.

  That you can even write in a blog comment, in public, the suggestion that anyone could be "unable to see the truth behind the simple meaning of [their] own words" is indicative of a problem.

  Have you considered what you have written here? Is the "truth" something other than the author's own meaning? Since you wrote it, I will give you the chance to explain, because to any sensible person, it is still the author who can best interpret the meaning of their own words.

  If anyone is the final authority of the meaning of words, it must be the author! No you say? When the words mean something other than what was intended, that is the definition of a failure to communicate. Not a delusion on the part of the author, but a possible delusion or at least a misunderstanding on the part of the reader.

  Another way to put this is- if the intention of the author differs from the meaning to the reader- it is actually the intention of the author which prevails in importance, not the understanding of the reader- particularly in the context of emails converted by surprise from private screeds into widely distributed public possessions, as you have spectacularly arranged.

  Where is your common sense and where is your sense of decency and proportionality.

  What is happening between you and Marilyn Marks is a simple but systematic failure to communicate. It is easy to see how this is happening. You have refused to talk with her (and with me for that matter), and prefer to limit your exposure to certain selected emails from a cache of thousands of pages, gratuitously provided through the combination of our generous transparency laws and the naivete of certain citizen volunteers who didn't happen to benefit from the political training you and your friends have as well as a scrupulously complete record of emails compiled at Garfield and Hecht at great expense.

  Unlike you, they didn't know how to hide unpleasant or confusing language from texts accessible by CORA request. In fact they were simply unaware of the possibility that their emails would be accessible by CORA request. Moreover, if they were not legally on the Election Commission at the time then you have invaded and trampled upon their privacy.

  You say you maintain what the truth is in spite of what the authors of the words say. I think you really ought to listen to what the authors of these emails say when they talk about what their words mean rather than calling them delusional... really now... Are you serious? You say you are.

  Harvie Branscomb

• 8. Michael Conniff  |  November 27th, 2009 at 9:06 am

  Harvie:

  "Is the 'truth' something other than the author's own meaning?"

  In response, in re Mailyn Marks, I would say the following: yes, the truth can be completely different than the author's own meaning.

  In response to a challenge from Mitch and from you, I went through the offending emails over and over to (a) produce the excerpts you've all now read; and (b) to produce my own analysis.

  My own analysis will be forthcoming but I will give you a sneak preview on the fly.

  First, I believe that Marilyn Marks believes what she says when she says it., But that doesn't mean it's true.

  For example, in her own press release, it says: " "Marilyn Marks has announced that she will not contest the Aspen Mayor’s race election results based on procedural election questions raised by Jim Perry and others. Marks said, ‘I certainly honor the voice of the people in this election. While the variety of challenges which might be successfully asserted could possibly change the outcome of the election, given the small 133 vote margin, I believe that our community’s time and energy would be better spent by uniting to address our near-term economic challenges and positive programs. Election challenges are expensive and divisive, and delay the important work at hand.”

  Here's what she said: "I believe that our community’s time and energy would be better spent by uniting to address our near-term economic challenges and positive programs. Election challenges are expensive and divisive, and delay the important work at hand."

  Yet her actions absolutely belie these words, however well-meant they might have been at the time. Her election challenges, including manipulating the Election Commission, writing their indemnification language, and ultimately filing suit" has been "expensive and divisive." And that ain't the half of it.

  I feel it's important to take you to task for something you said to me. To whit, you said the breaking of the rules by Milias and Bryant were "trivial" and insignificant"--these words despite your insistence on real election reform and integrity.

  And who would better know your meaning than you? Et tu, Brute? I look forward to seeing you stand by these words, which stand contrary to everything you've stood for in your election career.

  Best, Michael!

• 9. Marilyn Marks  |  November 27th, 2009 at 2:40 pm

  Michael,
  As desperately as you are trying to twist the facts, your efforts can't work.

  "Yet her actions absolutely belie these words, however well-meant they might have been at the time. Her election challenges, including manipulating the Election Commission, writing their indemnification language, and ultimately filing suit" has been "expensive and divisive." "

  I will ask you, as Harvie already has, to read the litigation I have filed. It has NOTHING to do with an election challenge, contest, overturning, etc. It is a public policy issue on an Open Records matter of the public being able to access ballot images, which are pulbic records.

  Once the court grants access, no surprises or tabulation total changes are expected. It is merely a routine audit step that needs to be completed. It is very important that our government not be able to set precedent of withholding public records of any kind in the future. That is the full extent of this litigation. When the court finds in the public's favor and the images are released, few will hear anything about it. It will not exciting news. It will just allow a routine audit step to be accomplished with no fanfare.

  Yes, the election policy wonks across the state will breathe a sigh of relief when the court re-affirms that these are indeed to remain accessible records. That is the entire and full extent and effect of that litigation. It has NOTHING to do with who won the election,and can't.

  You and Jack purposely mischaracterize litigation that has NOTHING to do with my former candidacy.

  Despite your claims and Jack's, I have repeatedly said that I firmly believe that Mick won the election. I have spent scores of hours reviewing the detailed data on the 3 seats----more on the CC than the mayor's race. I konw the numbers well,and have NO reason to believe that the mayor's race outcome would change based on any additional review.. The review is for PROCESS improvements including nailing down known buggy software. Without a review of the images, that cannot be adequately done.

  As interesting as you and Jack find it to speculate that an election contest is my motive, it is just not true. If my motive were to overturn the election, I'd have gone to court long ago. I"m not afraid of the court system. I choose to work on reform and public policy issues, not overturning the election.

  As for indemnification language, remember that MY litigation could ONLY legally be filed against one individual---the clerk---not the Elec Commission. They had no potential liability . Therefore indemnification efforts for them would have been silly. The indemnification suggestion was because I had heard from the MN plaintiffs that they might include individuals in their upcoming Federal case. I had previously notified the CC, and notified the EC some time later. That is the email you saw. Find falut if you will. Is your suggestion that I should NOT have notified the EC of that information? Should I not have notified the CC either of out of state litigation I became aware of?

  What could possibly be wrong with suggesting that our EC investigate indemnification if a potential Federal suit from out of state might be coming at them?

  It is quite clear that you and Jack are on another mission---not one of seeking the truth or doing legitimate reporting or caring about responsible journalism.

  Marilyn

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