Veto pressure mounts as Hickenlooper reviews open-records elections bill
By John Tomasic
Friday, June 01, 2012 at 11:32 am
In the weeks since the Colorado legislative session ended, calls for Gov. John Hickenlooper to veto House Bill 1036 have come from the political left, right and center, from government watchdog organizations, citizen rights and tax reform activists and from representatives of the sovereign Ute Mountain Ute tribe in southwest Colorado. Whatever happens by next Thursday, when the deadline to sign the bill arrives, wrangling over its contents and legitimacy will continue indefinitely.
“Litigation will follow a signature from the governor. It’s a certainty,” Jennifer Weddle, attorney for the Ute Mountain Ute, told the Colorado Independent. She said the tribe is deeply concerned the bill would limit protection against the kind of voter suppression efforts that have plagued Indian voters in the United States for decades.
“Whether a suit is filed by the [tribe], by an individual member of the tribe or by a Colorado citizen. The process by which the bill was passed was so broken that litigation is certain.”
The “process” referred to by Weddle is the rushed melding of House Bill 1036 with Senate Bill 155 undertaken in the chaotic final hours of the legislative session, which ended two weeks ago.
The House bill (pdf), sponsored by Littleton Republican Jim Kerr, would allow officials to deny open records requests tied to ongoing state investigations, including police investigations, for example, and investigations into energy-industry accidents.
The Senate bill (pdf), sponsored by Boulder Democrat Rollie Heath, would limit records requests on elections materials and voter ballots in particular.
Both bills have their detractors. Durango-based environmental attorney Travis Stills, for one, told the Independent that some state officials would undoubtedly leverage the new law to foil attempts to monitor public health threats.
“Getting information regarding illegal spills and permitted pollution releases can already be made difficult by some state officials who habitually attempt to protect polluters,” Stills wrote in an email. “The ability to use Colorado Open Records Act requests could be thwarted by simply declaring an ongoing investigation and then maintaining an open investigation indefinitely. Simply opening an investigation could close the agency records.”
Despite such concerns, the House bill passed through legislative committees and was debated in the full chamber. Detractors voiced their concern on the record.
The Senate bill, however, was never fully debated in House committees or in the House chamber, and has raised alarms across the state, partly for the way it would grant select groups of political insiders access to ballots while excluding the public. That kind of hierarchical access, critics say, goes against the spirit of the Colorado Open Records Act, which was designed to increase government transparency and accountability. The say that new hieararchy would set a bad precedent and might lead to further erosion of the Act’s effectiveness.
Weddle said that she and others have made the case to Hickenlooper that setting the bill aside now so that it can be brought before lawmakers again next year and very likely improved through the normal legislative process would save valuable tax money that will otherwise be spent on attorney fees.
“Late-night cutting and pasting into a wholly unrelated title does not give rise to viable law,” she wrote on May 25 in a letter to the governor’s Chief Legal Counsel Jack Finlaw. “In addition to being the right thing to do, [a] veto would save Colorado the cost of the certain litigation challenging the grotesque passage of the bill…”
Senate Bill 155 was one of dozens killed without debate in the House when leadership clashed on the second-to-last day of the session over the fate of a gay-rights civil unions bill and Republican Speaker of the House Frank McNulty exited the chamber during an hours-long recess to run out the clock.
Desperate to recoup some of the losses, lawmakers resurrected more than a few of those bills, including SB 155, by tacking them onto other bills, passing them quickly and sending them onto the governor.
But Colorado law prohibits legislators from considering anything but single subject bills as a way to guard against passage of unexamined and never debated material.
Heath has defended his bill as a carefully crafted response to concerns brought to him, on the one side, by the state’s county clerks, who feared being overburdened by multiplying records requests in busy election periods and, on the other side, by elections watchdogs and members of the public determined to keep ballots open to public inspection and also to safeguard voter anonymity.
“There was more outreach on this bill than any other I ever did,” Heath told KGNU’s Jim Pullen in a May 23 interview. He described early and what he thought were constructive meetings with activists and clerks.
Longtime state voting integrity activist Joe Richey, however, told Pullen that the extended and potentially overlapping periods created by the bill in which public access to ballots is barred would severely limit review.
“[The bill] shuts down the citizen oversight piece in elections with its rolling blackouts,” he said.
Boulder County Clerk Hillary Hall described the bill as “one of the most progressive [in the nation].”
“We’re trying to balance all three pieces,” she said, “transparency, voter anonymity and the ability to execute the job that we [clerks] have been elected to do.”
Heath suggested part of his intent was to protect Colorado elections from records requests that might be intentionally submitted to bog down the clerks and gum up the work of tallying and reporting voting results.
Richey said he knew of no instances where any such attacks on vote counting had occurred anywhere in the nation. He and Weddle said they are seeking to protect the right of the public to conduct oversight in the crucial weeks before a close or contested election is certified and the public is forced to live with the results.
Weddle, who specializes in American Indian legal issues and is election protection coordinator for the National Congress of American Indians, said open records laws have been key in the work of protecting native American voting rights. She said that the timeliness of responses to records requests is what’s at stake with Heath’s bill.
“Open records laws allow you to find out what’s going on at a time when it matters. Accessing the ballots after the fact, when elections have been certified and voters disenfranchised, means the loss of right already has been endured.”
Weddle said that Colorado in general and the clerks in Montezuma and La PLata counties where members of the Ute tribe cast ballots have been “shining stars” in protecting the vote, a stark contrast when compared to states like South Dakota where vote suppression and election challenges are a “way of life.”
“We wouldn’t want any of that to spread here,” she said.
She said the governor’s staff has been extremely receptive to Ute concerns with the bill.
“Everyone there without exception has been very willing to meet with us and has been very respectful,” she said.
Hickenlooper’s office told the Independent he was reviewing the bill.