Note: This is a Colorado Voter Group press release on signing of Colorado HB 12-1036 (CORA ballot transparency)
June 7, 2012
Boulder – Colorado Governor Hickenlooper has signed the controversial, two-subject HB-1036 which deals with open records and elections.
By shielding all election records, including untraceable ballots, from public inspection, the bill blocks the public from looking for election discrepancies until after election results have been certified. “After certification is too late to constructively correct any errors or fraud we may discover,” says Mary Eberle of Coloradans for Voting Integrity.
A secretive non-profit organization called Colorado County Clerks Association lobbied heavily to get the bill passed and signed into law. A band of citizens and non profit public interest groups energetically resisted the efforts of at least five professional lobbyists working for the CCCA and professional lobbyists working for other associations of officials through the legislative session.
Harvie Branscomb is an unpaid election integrity advocate from Eagle County, and a Colorado Voter Group Trustee. He followed the election part of the bill from its inception to today's signing. Branscomb spent weeks tracking the bill with frequent trips to the Capitol, and repeated attempts to communicate with legislators and public. He asked the Legislature to preserve election transparency by giving Coloradans the constitutionally mandated "secret ballot" voting method that calls for every ballot to be untraceable and available to count in public. He wound up instead working to stop a bill that hides from citizens and the press our tabulated sometimes traceable ballots but allows the clerks and other election officials to see them and "interested parties" to see and copy them.
Branscomb is disappointed and says, “Colorado elections have gone behind closed doors through increased mechanization and centralization. Digital scanning technology is just beginning to make sharing of untraceable ballots cheap and easy. This no time to shutter a window through which citizens could do their own independent count of an election contest."
Branscomb asks: "Clerks and legislators were unwilling to give us even one "Sunshine Day" to access untraceable voted ballots during the period when canvass boards are checking election quality. Why not?”
(see attached http://cfvi.us/HB1036notes)
Notes from the contest over SB 155/ HB 1036 6/7/2012
Harvie Branscomb for Colorado Voter Group
Citizens representing the public’s interest and nonprofits such as Coloradans For Voting Integrity, Colorado Voter Group, Citizen Center, ACLU, Common Cause, Colorado Union of Taxpayers, and Colorado Ethics Watch today lost our effort to resist the self-serving intentions of elections officials. Although the Colorado Open Records Act specifies that all records not designated to be closed records are open records, these officials professed that CORA did not apply to ballots. Thus, for these elections officials, the new law purportedly supports unprecedented transparency. But, in fact, they have successfully promoted a bill that trims and delays citizen access to crucial election records until the election results are set in concrete.
Starting from December 13th, the Legislature could have gone in one of two directions. It could have achieved the clerks’ and public's goals by reinforcing the requirement that any ballot to be tabulated must be anonymous and untraceable. This would have cleared the way for full transparency of anonymous ballots that would enable any citizen to independently verify the actual election results. Citizens could give feedback to officials about ballots that were imperfectly interpreted. Citizens could have been encouraged to become involved in making our elections more accurate and at the same time learn how secure and accurate our elections are.
Or the Legislature could have done what it actually did. The new law makes it easier for problematic ballots and problematic printing, handling, and storage of ballots by election officials to continue without exposing the evidence of the problem. Meanwhile the new law requires county clerks to locally create policies to prevent ordinary citizens from accessing some or all of the ballots in the form in which they are tabulated. Redaction and withholding of critical information from ballots are, as of today, legally anticipated means to be used at the discretion of individual clerks. Each custodian will make their own policy decisions, placing a firewall between the tabulated ballots and the public. Meanwhile the traceable ballots deliberately remain accessible to election insiders without exposing the evidence of their existence.
HB 1036 was claimed by proponents to protect clerks' resources at election time and to provide clarity and consistency between counties. Considering the many tools the existing CORA law gave to custodians to avoid and delay fulfillment of requests, the extra protection was completely unnecessary. The bill, if anything, fails to set standards to ensure that counties act consistently, other than defining the terms of the absolute blackout period. The Governor's press release refers to chain of custody and security features that either do not exist or are not unique to the new law.
More unfortunately, the new law guides Colorado into a regressive direction by failing to exploit the vast potential that digital scanning offers for publication of trustworthy replicas of expressions of voter intent on anonymous ballots. The new law defines "ballot" for public inspection purposes as either paper or equally a digital image or electronic representation of a vote. For a successful use of scans and cast vote records in the future, we need to be able to treat original paper and electronic versions differently. The new law takes us in the opposite direction with a regressive basic definition of ballot. The new law blacks out access to "internal batch reports" used in auditing ballots--data that best-practices of election auditing would presumably expect to be made public. There are many other defects of the new law that others have called out.
There was a signing ceremony for HB 1036 at the Colorado Capitol the day before the deadline to sign. Although the ceremony was not announced to the public, the legislative principals and clerks were present in numbers--and one lone activist--Mary Eberle, who went to the Capitol on the chance of finding a signing going on after we heard the rumor that the bill would be signed. Apparently we were not invited, just as we had not been invited to any of many important semi-private gatherings about the bill since January 13th.
We know well that the deck has been stacked against ordinary citizens and many of those who act on our behalf throughout the process. We have known this since we were first and briefly invited into what could have been the beginning of an unprecedented open process of making a bill. We citizens without official roles were invited to two meetings at the Capitol--one Dec. 13 and one Jan. 13. We were not invited to any of at least 5 later meetings that were held to determine the content and process to be taken with the bill once it was drafted. But I managed to attend 3 of these meetings anyway, and my voice was in some cases perceptibly reacted to; in many other cases it was aggressively disregarded. What little access we had, both in the two winter meetings and in those later unannounced ones that I managed to attend, has actually been used against us. The bill’s proponents harp on their openness to us and how much of our input was incorporated into the bill. Yes, they allowed improved wording and they corrected some flawed logic, but the overarching content of the bill was and is anti-transparency.
An outstanding and unprecedented effort was made to ask the Governor to veto, with hundreds of pages of citizen appeals. But it seems likely judging from today's signing ceremony that citizen input had little chance for success. We were resisting well-funded efforts of at least 5 paid professionals--experts at manifesting legislation on behalf of election officials. Their job was to promote a bill to legislators who generally tend to side with fellow elected officials, and particularly when these are also election officials.
We understand that there may be litigation launched against this law. There are procedural and content justifications for contesting its legality. Of course the value of litigation is the subtext of our experience at the Capitol. Litigation works to produce positive outcomes... even as it inevitably produces negative attitudes and consumes outrageous sums of money. Citizen advocacy at our Legislature and Department of State has only a marginal effect if any at all. I'm sorry to come to that conclusion, but in Colorado, at present it is an inescapable conclusion. Thus ends the 2012 Legislative session, which we started with such high but misplaced hopes.
June 1, 2012
Re: Request for Veto of HB 1036
Dear Governor Hickenlooper,
Do we have to argue about the value of putting more eyes and ears on public elections? Must we remind ourselves how sunshine laws are intended to empower citizens who wish to engage in oversight of government and industries that affect their lives?
In the area of elections citizen oversight has helped produce more accurate, accessible and secure elections.
You surely understand that the Colorado State Constitution and the Colorado Open Records Act defend the right of members of the electorate to inspect election records, including voted ballots.
CORA requests should be honored in a timely manner, not after the election has been certified, for a number of reasons: to help a candidate decide if a recount is going to be productive, to be used as evidence to justify an election contest, to identify ballots that should be added to Colorado’s upcoming risk-limiting audit, and to provide technical feedback. No member of the electorate should be excluded from reviewing untraceable tabulated ballots before election certification.
By utilizing all eyes and ears, especially those with technical backgrounds, local election officials will consistently improve election systems and improve confidence in election accuracy. HB 1036 closes those eyes and ears during the critical period of time before the election is certified.
Please veto HB 1036.
CFVI would be happy to provide you with supporting documents upon request. Don’t hesitate to contact me to discuss this further.
CFVI President, 720-352-4093
By John Tomasic
Friday, June 01, 2012 at 11:32 am
Gov. John Hickenlooper is facing a decision over House Bill 1036. His veto will protect your right as a citizen to verify results of upcoming elections.
May 15, 2012
Via hand delivery, email, and fax
The Honorable John Hickenlooper
Governor of Colorado
136 State Capitol
Denver, CO 80203-1792
RE: Request for Veto of HB12-1036
Dear Governor Hickenlooper:
HB12-1036 deserves a veto to prevent municipal and county clerks from obtaining special exemptions from open records law that make those clerks less accountable to the public in their crucial role as handlers of the public's most critical records of decision-making. The clerks are heavily lobbying for the contents of HB12-1036 though it would come at a great cost to the public interest. Legislators are uncomfortable speaking truth back to those who have considerable control over elections. As a result, almost no meaningful debate has been held over the details and side effects of this legislation. But it has numerous flaws, each of which alone merits the veto. Please consider these and do not allow the bill to become law.
CORA is a vital law that protects citizens from having their government operate in a nontransparent way. Undercutting CORA is a very serious measure and is not necessary for maintaining election transparency or ballot integrity or voter privacy.
1. There is no evidence HB12-1036 is necessary. Few records requests for anonymous voted ballots and other election records have been made and by only a handful of election-integrity advocates. The requests were mostly for purposes of gathering information about election and transparency policies that could not be obtained through simply asking questions. No request was time intensive. Some requests have been successfully and uneventfully completed; other requests were delayed or rejected and the requesters taken to court by the clerks, as allowed by existing CORA.
2. Title One statutes and existing CORA limitations already protect clerks from interference with their operations, protect voters from loss of their privacy, and protect ballots from being accessed before they are tabulated. People who are inspecting voted ballots under CORA do not see traceable or never-tabulated ballots unless the clerks have failed to follow the constitution on anonymity, the statutory requirements to protect voter intent, and the recent interpretation of the Colorado Court of Appeals that requires custodians to withhold specific identifiable ballots.
3. Citizens deserve an unfettered CORA law because we cannot predict when and how CORA will be needed to understand how election officials have treated our elections. Clerks are the ones being overseen. It is odd that we would give them a driving role in defining the contents of HB12-1036 that limit how much oversight we can have and when.
4. Existing oversight via canvass boards and watcher rules does not necessarily give the public, including campaigns, adequate access to be able to protect the election from fraud as well as error. Some clerks do not voluntarily provide credentialed officials and watchers from the campaigns adequate access to ballots so that they could recognize and repair or even report on fraud or error in eligibility and tabulation.
5. HB12-1036 eliminates the ability to verify election results from past elections for vast periods of time. An uncooperative county clerk could black out a total of 74 days per election:
• the 45 blackout days before election day from HB12-1036 plus
• the possible CORA-provided delays (3 business days for record gathering plus 7 business days if there are extenuating circumstances),
• plus at least 14 (primary) or 17 (general electi0n) days after election day.
A very small municipal election triggers the same excessively long HB12-1036 blackout of all ballots from all elections, so the CORA blackout rolls around the year in some counties.
6. For public records purposes, HB12-1036 defines “ballots” as not only paper ballots but also digital images and electronic representations of votes cast. However, many digital images and electronic representations are immune from risk of interference, aging, or degradation. Electronic versions of ballots are far more valuable and safe for use as public records, yet they are tied by HB12-1036 to that bill’s restriction of the traditional paper form. This is a step backward into the past.
7. The bill blocks all access to "internal batch reports" generated for the purpose of auditing ballots. These internal batch reports constitute a record that must be timely and publicly available in order to make the audit meaningful to the community at large without requiring additional trust of officials performing the audit.
8. HB12-1036 actually aggravates lack of clarity and inconsistency in the way ballots will be handled in counties by requiring each clerk to make a separate policy decision defining “groups of discrete individuals” and classes of marks that may be considered to create traceability of ballots.
9. Unfairly and contrary to the basic principles of CORA, HB12-1036 defines "interested parties" who will enjoy much better access to public records than the general public or press.
10. Clerks would like to claim special privileged exemptions from CORA. Given how much power and discretion they exert over a crucial function of democracy, it is arguable that they should experience more oversight than other public servants, not less. In Saguache, Pitkin, Boulder, and Eagle counties, citizen oversight of clerks and extra citizen participation—much of these efforts dependent upon CORA—have clearly led to improved election practices in those counties. Clerks with good practices have, under CORA, assisted citizens with understanding those practices, for example, the Gilpin County Clerk and Recorder.
Please also consider the faulty and egregious path that HB12-1036's legislative intent followed on its way to your desk at the Governor’s Office. Standard deliberative process was violated numerous times. Much of the resistance to the bill has arisen only in the final days of the first session when other avenues for discussion were cut off. A Governor's veto represents the public's best hope to see the short-sighted agenda of county and city election officials resisted and the public interest in election verification fully served.
Please veto HB12-1036.
Harvie Branscomb, Director, for the Board
Coloradans for Voting Integrity