11/17/2012 Email from Marilyn Marks, Colorado Election Integrity activist, to Members of the Boulder Canvass Board regarding personal liability risks. Friends, I could go on for a while about how insulting and ridiculous this attached memo from Boulder County is. I’m sure that some of you have already done that. I did make some informal annotations on it, again noting that I am not an attorney and can’t give legal advice. I debated with Hilary Rudy at the SOS at length, but to no avail. She feels that the memo is somewhat adequate for this election and the remainder of questions should be addressed AFTER you certify this election! Obviously that is not a rational conclusion. She said that SOS would address again on Monday. I fear that the SOS will not address this adequately in a timely way to properly protect the canvass board. Before anyone believes that the issues are unrealistic and don’t happen in real life, I urge you to read the paragraph near the end on our Aspen experience to which Harvie Branscomb can attest and provide many press reports. In 2009 the newly election City County threatened to file criminal charges against the Election Commission (Canvass board) because two of them had a private lunch to discuss how to schedule public meetings and bring forth the idea of an election audit. The City claimed violation of the Open Meetings laws and CORA. One member had not saved all of her emails related to the election and was threatened with all sorts of punishment by the city. So the City of Aspen believes that the Election Commission (canvass board) is a public body! The controversies went on for months in the media. One of the EC members is the best litigator in town and they were willing to attack even him to avoid having an audit of the election. As some of you know, we have a case in court this month in Douglas county on this very topic of the Sunshine Laws and a canvass board’s private meetings. I “CORA requested” some Douglas County canvass board minutes in July. The County took ME to court asking the court to allow them to withhold the minutes. After the judge mentioned that the County may have to pay my legal fees, the county is suddenly deciding that the County is not the responsible party, but that the canvass board members are. So the County brought the suit, caused me to have to respond, and now that I’m seeking fees from the county, they are trying to hang the canvass board members based on a lawsuit that the county (not the canvass board) initiated. To make the point of how wrong Boulder is in claiming that the canvass board is not a public body and has no risk----I’m creating a scenario below to make the point. I use the real case of the Pitkin County election and the very tight 9th Judicial District DA’s race---where the incumbent is down by about 100 votes today. There is very likely going to be an automatic or optional recount. (None of the things below have happened, but they are an easily imagined realistic scenario in this highly contested close race that will likely be decided in a recount here in Pitkin, Garfield and Rio Blanco counties. You can substitute either name. I have no basis to believe that either candidate would litigate, but this is merely used for example.) Let’s say for the sake of the example, the race turns around based on provisionals and a recount so that the incumbent (Beeson) wins by 10 votes. And Caloia, the challenger, and a litigator herself, decides that the election was not fair and is considering filing an election contest in the court. Caloia wants to gather her evidence before she does so. (Again, these scenarios are imaginary, not real.) 1. Under CORA Caloia requests the canvass board related emails that were sent between the 2 Republican CB members and their party chair in the 2 months prior to election day to plan how they would organize the canvass steps, and data they wanted to see during the canvass. The clerk does not have a copy of the emails. Caloia can initiate litigation against the 2 canvass board members if they refuse to provide the information or provide incomplete information. Who defends them? 2. Caloia’ s neighbor Sam filed a complaint under 1-7-514 (2)(b) with the Canvass Board regarding the touchscreen machine he voted on. The machine was not calibrated properly and he and two friends were unable to successfully cast their vote for Caloia. The canvass board didn’t feel they had the expertise to handle the technical issue, and merely acknowledged his complaints. Caloia or Sam sues the board for violation of their duty. Who defends them? 3. Caloia’ s watcher attended the post-election audit and observed numerous errors being made in the manual counting and reconciliation by the 2 canvass board members involved in the post-election audit. The watcher attempted to “assist in the correction of discrepancies” but the canvass board members stated that they were not allowed to talk with the watcher, effectively ignoring the errors he was observing. Caloia and the watcher can sue the 2 canvass board members for violation of duty. Who defends them? 4. There was an automatic recount due to the close race. Under 1-10.5-107, the canvass board conducted the recount, and frequently took votes on their decisions and the clerk usually voted a minority view. Caloia claims that the canvass board did not follow all the SOS Recount protocols and sues the canvass board for violation of duty. Who defends them? 5. During the recount, Caloia used her rights under CORA to observe all ballots and noted that numerous provisional ballot votes for DA had not been counted as the canvass board, relying on the provisional board, used the SOS policy manual to determine which races to count because the clerk insisted that they do so. Caloia argues that the policy manual is wrong and that her DA race is a “statewide” race under the Title 1 definition, (this is truly live and important argument now in this race.) Caloia sues the canvass board for not abiding by the law and allowing a flawed SOS policy manual to trump the law, costing her the race. Who defends the canvass board? 6. Attempting to get more first-hand knowledge of what decisions the canvass board was making during both the initial certification and the recount, Caloia sends friends and her attorney to the meeting as members of the public. They were turned away and not allowed to attend this meeting as the clerk declared that the meetings were not public. Caloia could not send a watchers as the Democratic party watcher slot was already filled with the person who only cared about the CU Regent race.. Caloia sues the canvass board under the Sunshine Laws for their decisions made behind closed doors. She seeks a reversal of the decisions they made in how to conduct the recount. She points out that during a recount, the CB “conducts” the recount—not the clerk, and purposely excluded her attorney from the meeting. Who will defend the canvass board? 7. Both Beeson and Caloia felt that the canvass board did not thoroughly try to verify the provisional ballot applications and the resulting ballots and that numerous errors were made in counting the provisionals. The clerk had told the canvass board that they could not verify the provisional ballot applications, as they were “confidential.” The canvass board relied on the clerk’s judgment and did not override her opinion. Caloia sues the canvass board for violation of duty that required them to properly verify the result of counting provisional ballots. Caloia sues the canvass board for violation of duty. Who defends them? 8. Caloia alleged before the recount that numerous signatures on mail ballots were missing, fraudulent and deficient although the ballots had been counted. She asked that the canvass board attempt to estimate the potential impact on her race. The clerk told them it was impossible, so they did not try. Caloia sues the canvass board for not attempting an analysis of whether the problem ballots could have made a difference. Who defends them? 9. The canvass board attempts to reconcile the number of voters per the poll books and the votes cast. The clerk refuses to allow them to see the poll books, claiming that they contain information on provisional voters. So the canvass board just accepts the numbers the clerk delivers to them on the number of voters in the poll-books. Caloia sues charging the canvass board with violation of their duty for failure to verify the number of voters. Who defends them? 10. After conducting the recount, the majority of the board voted to certify the corrected abstract, although the clerk took the minority position that the SOS rules require that on Ballot Now, the votes be reported as originally counted (this is true and part of the Douglas County controversy.) Caloia sues the canvass board for not following the SOS Rule rather than the law. Who defends the canvass board? 11. Three of the canvass board members went to lunch together on the day of the recount. They discussed their concerns about the reliability of the ballot scanner. They exchanged some information that was supplied to them privately by an election judge about the poor reliability history of the machine. They came back from lunch and asked a few questions and the clerk insisted that there was no time for this, and forced the work to the next steps of the recount. Caloia sues the canvass board for this “private meeting” that involved important information she should have had access to. Who defends the canvass board? It is not hard to imagine disgruntled candidates having issues with a canvass board in a close race and recount. Because the canvass board conducts the recount, it would be logical to sue the board that conducting the recount. The clerk is merely one member of the board, and does not control the recount process. The point of these examples is merely to show that the Boulder County analysis is terribly flawed and wouldn’t satisfy many people’s real world concerns as canvass board members. Again, I am not an attorney and my concerns cannot be relied on for legal analysis or advice. My view is simply as a layman activist. While Boulder County may claim that no one might sue the canvass board, in Aspen our municipal Election Commission (same as canvass board for a county) resigned in 2009 because the just-elected mayor and city council threatened to prosecute them for “criminal behavior” for having one lunch meeting together for the sole purpose of determining how to insist on having a public meeting that the clerk refused to call. They wanted an audit of the results, and the city refused. The city used their one private lunch meeting to discredit both the R and the D (one of whom was a litigator), and threaten them into resigning and dragged them through press with a huge campaign to force them out to avoid any audit of the election. The City alleged "collusion" and all sorts of crimes against them for having one private lunch meeting to plan to insist on an audit and public meeting. The City appointed their replacements, and by the next election tried the same with them. The citizen members had to go outside to get legal help and pay it out of their own pockets. (I can get you hundreds of pages of documented proof of this fairly recent nightmare here.) So it absolutely can and does happen. And related litigation is still ongoing---litigation that the city brought that will involve the commission members having to come to court. This is not intended to be a scare tactic. Harvie Branscomb and I have seen this happen to people we know here in a very analogous situation. The Election Commission was doing a diligent job and trying very hard to get to the bottom of some election questions, and the city council went to war against them to drive them to resign after they began to hint that an audit would be in order. In closing, I don’t have any solutions to offer,-- only cautions at the moment. If I were a Boulder Canvass board member, I’d be very hesitant to make any meaningful decisions until this is resolved. I’d also be cautious about being certain that all meetings are public and recorded. I am sorry you are having to deal with this. Marilyn