A. Open Records
1. Ballots should be affirmed as not exempt from the Colorado Open Records Act.
Other states (among them Florida, Michigan, Minnesota, Wisconsin, Idaho, and California) provide citizen-level verification and oversight of ballots and/or ballot images (even via the Internet) for increased transparency and confidence in elections.
a. The law should require unusually marked ballots (including ballots marked with information that identifies the voter) to be duplicated prior to any publication or machine processing—both for election accuracy and to maintain anonymity. The Colorado constitution requires anonymity for each ballot after it is cast. An amendment to either statute or rule is needed to clarify how anonymity and accuracy are to be obtained by duplication of unusual ballots.
b. To discourage unconstitutional identifying marks on ballots, statute should require instructions concerning marking the ballot to include “THE COLORADO CONSTITUTION REQUIRES THIS BALLOT TO BECOME ANONYMOUS WHEN THE STUB IS REMOVED. DO NOT SIGN OR MARK THIS BALLOT IN ANY IDENTIFIABLE MANNER.”
c. The sunshine law would benefit from an amendment to specifically detail election records that are subject to the law—including all nonpersonalized election records and ballots that are required to be rendered anonymous.
d. C.R.S. 1-1-104 defines the term “ballot.” A legislative declaration in the form of an explanatory paragraph should be added to discourage the common misuse of the term “secret ballot” and replace it with the terms “voting privacy” and “ballot anonymity,” which are more consistent with the constitution (Article VII, Sect. 8).
e. Ballots must be anonymous and not traceable to the voter through any means including the existing, voter-linked, ballot serial numbers used on some systems in Colorado (e.g., Hart systems).
2. Accessibility of Open Records
It is against the public interest that most public records are never published and only fall into the hands of a few private parties who know those records exist and request them. In some cases, cost is a prohibitive obstacle to the production of public records. Some additional attention ought to be paid to the unregulated costs and procedures that become obstacles to government employees’ fulfillment of CORA requests.
a. Statute should promote the actual publication of public records in easily accessible form via a government website in instances where this is reasonable.
b. All items that have been provided in response to each Open Record request should be described on at least one government website. The description of each such item should indicate the requestor, the list of documents provided, and the location where members of the public may access the same documents, if not on the website itself.
3. Election Legislation
History reveals that election legislation is frequently discussed and written in private. Election legislation is also often introduced late in the session, perhaps encouraging or even necessitating unamended passage. These practices shut out public input and severely reduce the chances of thoughtful consideration of the bills’ merits.
a. To combat this historical pattern, the work-in-progress exception (C.R.S. 24-72-204 (2)(a)(III) and 24-72-204 (3) (a)(XIII)) should be lifted for bills concerning Title 1 and election portions of Title 31 to allow the public access to drafts of documents produced by governmental departments or Legislative Services.
b. Election bills involving Title 1, Title 31 (Articles 10 and 11), and Title 32 (Article 1) should be required to be introduced at least 60 days prior to final passage. Furthermore, passage upon third reading in the first house should have to occur at least 30 days prior to final passage. This would guarantee at least 30 days of consideration by each body.
c. To ensure easier access by the public to potentially public documents, the nature of any delegation of responsibility or authority for documents required either by statute or by rule ought to be regularly and prominently published on the pertinent authority’s website.