Ballot access: Open Records bill draws calls for veto

The bill was never really debated in the Senate where it was introduced, then it was tacked on to a House bill amid the blizzard of activity that marked the last days of the Colorado legislative session. Government watchdog and elections groups on the right and left are now asking Gov. John Hickenlooper to veto it, arguing the bill would deny citizens the right to inspect voter ballots and "gut" the state's Open Records Act.

"HB 1036 creates two classes of citizen access to open records: a special class of 'interested parties,' who will have access to ballots; and a second class – that is, all other people in the State of Colorado – who will not have that access," says the letter sent to Hickenlooper on Wednesday. "This special treatment of certain citizens and groups, and the corresponding discrimination against all others, undercuts entirely the public policy underlying CORA, which is that 'all public records shall be open to inspection by any person at reasonable times.'"
An inside look at an election booth for illustrative purposes. The filling out of the ballot was done in private.
Photo by Troy Hooper

Signatories to the letter include former Colorado Speaker of the House Terrance Carroll, members of the Colorado Lawyers Committee Election Law Task Force, the Colorado Union of Taxpayers, Colorado Common Cause, Colorado Ethics Watch and the ACLU of Colorado.

Senate Bill 155 (pdf) was sponsored by Boulder Democrat Rollie Heath and Hayden Republican Jean White. It meant to address concerns that public requests to view cast ballots would bog down county clerks in busy election periods and that ballots submitted to public inspection might be traced back to individual voters. It was voted in a rush out of House committee last Tuesday and died on the House floor as part of the dozens of bills caught in the crossfire when activity ground to a halt during a battle over a gay-rights civil unions bill. The bill was then attached to House Bill 1036 sponsored by Littleton Republican Jim Kerr and passed.

The Denver Post characterized Heath and White's SB 155 as dubious.

"When we first wrote about this bill in March, we described it as a flawed measure that left too much discretion to county clerks and failed to improve procedures that fueled worries about voted ballots being linked to specific voters. But we were also relieved that the clerks had retreated from their earlier opposition to any public access to voted ballots.

“The more we consider this complex bill, however, the worse it looks — and our unease is heightened by its crude handling. Not only was it appended to an unrelated measure having nothing to do with elections, it also was rushed through the House with little notice and limited debate.”

The Open Records Act is a main tool used to promote government transparency and accountability. Citizens with complaints and questions rely on the Act to counteract official neglect and stonewalling, as do journalists, often.

Messages left with the governor's office seeking comment were not immediately returned.

The full letter to Hickenlooper:


To: Governor John Hickenlooper
From: Jenny Flanagan; Dan Sweetser; John Zakhem; Geoffrey Klingsporn,
Terrance Carroll; Jennifer Weddle; Elena Nunez, Colorado Common Cause;
Luis Toro, Colorado Ethics Watch; Denise Maes, American Civil
Liberties Union of Colorado

Date: May 16, 2012 Re: Request for Veto of House Bill 12-1036
Delivered Via E-Mail

Dear Governor Hickenlooper:

We write to ask that you veto House Bill 12-1036, which threatens to gut CORA, one of our few elections accountability tools. Specifically, HB 1036 now contains the language originally proposed by Senate Bill 12-155 addressing the availability – or non-availability - of ballots under the Colorado Open Records Act (CORA). For the first time, HB 1036 creates two classes of citizen access to open records: a special class of “interested parties,” who will have access to ballots; and a second class – that is, all other people in the State of Colorado – who will not have that access. This special treatment of certain citizens and groups, and the corresponding discrimination against all others, undercuts entirely the public policy underlying CORA, which is that “all public records shall be open to inspection by any person at reasonable times” (emphasis added).

All citizens should be treated in the same manner with respect to CORA requests. But HB 1036 denies access to ballots at precisely the time when those who are denied have a fundamental interest in the transparency of their government and the integrity of the election – that is, before the election is certified. To deny access is to strip the majority of citizens of any meaningful ability to participate in the verification process for the election.

What HB 1036 Does to CORA

The offensive scheme established by HB 1036 begins by expressly mandating that election officials “shall not fulfill a request...for public inspection” of ballots (emphasis added) during the period beginning 45 days prior to the election and concluding either with the date on which the election is certified or the recount is complete, whichever is later. During this blackout period, no member of the public can have access to the ballots, EXCEPT for the special class of “interested parties.” Those who can have access to the ballots during the blackout period are political parties, candidates and representatives of the various ballot issues or questions. The preferential treatment offered to these “interested parties” is an affront to the public policy underlying CORA. These citizens are no more “interested” than any other citizen in Colorado. It is contrary to all good public policy to allow special treatment to some at the expense of everyone else.

Unintended Consequences

The very real possibility of overlapping instances of the blackout period specified in HB 1036 exacerbates the problem by leaving very few times in a calendar year that an ordinary citizen may have access to ballots. For example, there are 4 scheduled elections in El Paso County in 2012 (April 3, May 8, June 26 and November 6). The blackout periods for each of these elections overlap to create almost 9 months total in 2012 where these public records would be accessible only to “interested parties” under HB 1036.

County Clerks Deserve the Same Extension as Legislators in Session – Not More

We agree with the principle that, to the extent that CORA requests during an election period are a burden on the election officials during an extremely busy period, an extension of time to respond to a CORA request may be justified. For instance, CORA currently allows a 10-day extension for requests made to a legislator in active general assembly session – arguably an equally busy time period. Nothing about an election, however, justifies a 90-day blackout period, a cure that far exceeds the pain, and which operates at the expense of the public and the policy of open records.

There Was No Chance to Debate this Major Policy Shift

Various individuals and organizations attempted to bring these concerns to the attention of the sponsors of SB 12-155. After being laid over in Senate Committee for weeks with no attention, SB 12-155 passed the Senate with virtually no floor debate on Friday May 4, passed the House Committee on State, Veterans and Military Affairs without real notice or debate last Tuesday, and then died as a consequence of that evening’s recess. It was then resurrected as part of the rescue operation last Wednesday when it was grafted into HB 12-1036. At no point in this process was there a thoughtful and reasoned public discussion or debate on the provisions of this bill or consideration of reasonable alternatives to the abridgement of rights that is represents.

For all these reasons, we respectfully request that you not allow HB 12-1036 to become law in Colorado. If enacted, it will unnecessarily restrict Colorado citizens’ right to election information at exactly the time when that information matters most, namely, before the election is certified. This is wholly contrary to Colorado’s established principles of open and transparent government.

Thank you for your consideration.

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