UPDATE: This version of the story corrects an earlier version that incorrectly states “recall” law in Colorado. The corrected version states “recount” law. The Colorado Statesman regrets the error.
Gov. John Hickenlooper is weighing a controversial bill that some believe creates a separate class of the public in reviewing ballots following an election, with the aim of maintaining anonymity while also allowing for transparency.
House Bill 1036 — which began as Senate Bill 155, but was grafted onto HB 1036 in the waning hours of the regular legislative session — would solidify in statute that ballots are open to the public under the Colorado Open Records Act, but not immediately available to all members of the public. Instead, the bill would create a category known as an “interested party,” which would include political parties and representatives of issue committees, or stakeholders involved in the outcome of the election.
Those “interested parties” would be granted access to ballots starting 45 days before any election and until the election is certified, while the rest of the public — including the press and watchdog groups — would be prohibited from reviewing the ballots until the election is certified by county clerks.
A growing coalition of opponents is asking the governor to veto the bill, arguing an unfair balance in transparency, while also noting that the bill was scheduled for hearings with little notice and limited debate. Included in that coalition is the Ute Mountain Ute Tribe, Coloradans for Voting Integrity, the Aspen-based Citizen Center, Citizens for Fair Government, Colorado Voter Group, and the Colorado Union of Taxpayers, to name a few. Last week Colorado Common Cause and the American Civil Liberties Union of Colorado joined those who oppose the bill and likewise urged the Governor to use his veto pen.
The origins of the bill are anchored in good intentions, following a lawsuit filed by Aspen resident Marilyn Marks seeking to halt alleged practices by clerks that reveal the identity of voters who cast a ballot. After an unsuccessful run for mayor in 2009, Marks requested to review images of ballots that were cast at the time. Her request was denied over concerns that the ballots could be traced to individual voters. She sued and won on the appellate level, with the court ruling last fall that images of the voted ballots should be open for public inspection, but that the ballots must remain anonymous.
Amid the court cases, Marks, who founded the Citizen Center, has immersed herself in a fight for ballot transparency and anonymity. “That’s what CORA is about, a public record.”
“That’s been on the books since 1967, so why do we have to start having two classes of people?” Marks continued. “It’s a slippery slope.”
The “slippery slope” she addresses has been proliferated in HB 1036, ac-cording to critics of the bill. As Gary Hayes, chairman of the Ute Mountain Ute Tribe, writes in a letter to Hickenlooper asking for the governor to veto the bill, “SB 12-155’s restriction of CORA rights to political parties and candidates impermissibly creates classes of Colorado citizens who would be unable to meaningfully engage in the political process if they were not part of a political party or on the ballot themselves.”
Critics are also warning the governor that Colorado could become a national embarrassment like Florida following the 2000 presidential election in which Florida was asked to produce ballots to determine the outcome of the race between George W. Bush and Al Gore. The outcome of the presidential race was not known for more than a month as the courts weighed complicated and confusing election laws in Florida over differing vote-counting standards across the state.
County clerks in Colorado wanted legislation to address standards in Colorado in an effort to avoid such a national embarrassment in the event of a close count in Colorado in 2012, especially given the state’s swing status. Clerks had originally proposed exempting the ballots from CORA, but they realized the potential for national criticism given a close presidential race in Colorado.
“We thought about taking that away, and then after I worked with some of the people that had been very involved with the… Florida case, after some of the counties there got into trouble, we wanted the process to be more like what we designed the bill to do,” said Donetta Davidson, the former secretary of state of Colorado and current president of the Colorado County Clerks Association.
She points out that recount law in Colorado already calls for prohibiting the release of ballots to the general public until the election has been certified. But some critics of the bill are worried that by prohibiting some members of the public from examining ballots until after the election is certified — especially the national media — then Colorado is set up for humiliation on the national stage.
“The national press and all Americans will look to you as governor to explain why Colorado no longer guarantees secret ballots, independent oversight of elections, and an open legislative process,” Marks writes to Hickenlooper in a letter also calling for a veto.
She points out that Colorado law is specific in that CORA states, “All public records shall be open for inspection by any person at reasonable times.” The Colorado Constitution also states, “All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it.”
Oddly, the Colorado Press Association is supporting the bill, despite concerns from its own members, including the Denver Post and Boulder Daily Camera. The CPA’s lobbyist, Greg Romberg, says Colorado recount law is already explicit, and that the CPA wanted to strike a “reasonable compromise” to get away from completely exempting the ballots under CORA, to offering a common standard for the press to rely on.
“We believe it’s a benefit to our members to have a defined consistent program that they could know what to expect, rather than having different rules in 64 different county clerk offices,” said Romberg.
The original sponsor of SB 155, Sen. Rollie Heath, D-Boulder, says he didn’t even want to re-address the recount law in his bill, noting the constitution’s explicit statement and Colorado statute. But Heath felt it was necessary given potential complications.
“People have totally misconstrued what they did. I’m not sure they read the statute or the bill. There were always two parties — interested parties only apply to recounts,” said Heath. “All we did was pick up the language for the recount and put it in there to make sure there are no misunderstandings.”
He says the bill was never meant to address potential abuses of anonymity, which is a matter for the secretary of state’s office to address.
In the meantime, Secretary of State Scott Gessler does not believe there are instances of anonymity abuse. In February, he told The Colorado States-man, “I don’t think anyone’s anonymity has ever been compromised…” His office said on Tuesday that the secretary’s opinion has not changed.
For his part, Hickenlooper is still weighing the bill. His office said on Wednesday that there is no new news to report.
Of complication is that because SB 155 was tacked onto HB 1036, Hickenlooper must address not only the merits of the CORA elections component, but also HB 1036 itself, which would clarify that the current exemption from CORA for investigative files applies to civil, administrative, or criminal law enforcement purposes. The attorney general’s office has supported the bill and asked Hickenlooper to sign it.
The governor has until June 8 to sign or veto the bill.