LETTER: Choose transparency and sunshine in Colorado’s election process

Senators Heath, Bacon, Boyd, Grantham, and Neville, and Representatives Court, Kerr, Coram, Baumgardner, Duran, Todd, Casso, Liston, and Waller:

In your role as members of the Senate and House State Affairs Committees and as representatives of your voters, you will be the first see the legislation asking you to greatly reduce Colorado’s election transparency just at the time Colorado takes the 2012 national election stage under glaring spotlights.

I urge you to consider the negative public policy aspects and Colorado’s 2012 risk as you study the reduced transparency proposals being heavily promoted to Sen. Heath and Rep. Court by the Colorado County Clerks Association.

Last week, three major Colorado newspapers (Denver Post, Daily Camera, and Grand Junction Sentinel) strongly encouraged lawmakers to choose election transparency and sunshine over darkening Colorado’s ballot-counting rooms. In fact, current Colorado laws for open records and election transparency are reasonably strong. No substantive changes are required. We need compliance and enforcement — NOT legislation to weaken Colorado’s long-standing transparency statutes.

Elected officials should encourage, not discourage, the press’s and public’s rights and efforts to verify and oversee elections. Our elected county clerks through the publicly funded Colorado County Clerks Association seem to be tone deaf to their constituents’ interest in having transparent, verifiable elections. The clerks declare their convenience and workload trump the most important instrument of our democracy, and they threaten to create an embarrassing national problem for Colorado if the 2012 presidential, congressional, and/or state House and Senate races are close or contested. Reviewing close elections by the press or public will be impossible on a timely basis under the new blackout proposals. When elected officials enact laws and adopt policies to reduce transparency of their own elections, the public is sure to take disapproving notice as the press last week warned.

An alarmingly dangerous issue for Colorado’s elections has been exposed by this emerging debate between the public and the clerks. As the Daily Camera explains, many counties have “gone dark” in adopting problematic processes that can link the voter to the ballot — a clear violation of Colorado’s constitution. The courts could declare Colorado elections void because of this fundamental civil rights violation. Tellingly, the current legislative proposals from the Clerk’s Association seek to conceal this violation of the constitution by exempting those ballots from the Open Records Act.

On Friday, Sen. Heath generously allowed me to present my public policy concerns to him, and I am confident that he will consider those concerns as the legislation is drafted under his leadership. Despite our agreement on many issues, Sen. Heath and Rep. Court may perceive a need for legislation where I see instead the need for enforcement and compliance with the solid statutes on the books today.

No meaningful problem has been cited in maintaining press and citizen oversight of elections as affirmed by the courts in 2011 (Gessler v Myers [12th JD], and Marks v Koch [Court of Appeals]). No evidence of administrative problems emanating from press and citizen oversight of elections and reviews of voted ballots has appeared after the rights were affirmed and exercised by the press and citizens last year. (It should be noted that following the Gessler v Myers decision in Saguache County, journalists from the Center Post-Dispatch, Denver Post, and Pueblo Chieftain observed the citizens’ public ballot-count operation. These journalists were given access to review all voted ballots and results as the citizens counted. There have been no complaints from that exercise involving the public and press.) In fact, in a landslide election last week, after over a year of community discontent and costly litigation, the people of Saguache recalled the county clerk who fought public access to election records.

The public’s right to know and to verify their elections are the public policy issues at stake, and I welcome any opportunity to discuss them with you. In the meantime, I urge you to discourage the introduction of legislation intended to dilute long-standing open government policies or a reduction in Colorado’s election transparency. It seems that the nation, which will be looking on in 2012, will expect the same level of election transparency in Colorado that is routinely enjoyed in many other states.

Marilyn Marks

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