Notes from Colorado Voter Group regarding HB 1036 signed by Governor
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.