Ballot bill becomes law

Late last week, Gov. John Hickenlooper signed into law House Bill 1036 that, among other things, establishes new rules for how and when ballots may be examined, especially in the weeks surrounding an election.

We realize this amounts to inside baseball for most voters, legislation that is mostly of concern to county clerks, political-party operatives and a handfull of others. But it is important, nonetheless.

As Hickenlooper put it in his signing message: “The approaching 2012 general election could be the largest in Colorado’s history, and with our position in the national spotlight, we must ensure the integrity of the election process. This bill clarifies the security and chain of custody for ballots throughout the election season, making certain our elections are properly administered.”

That part of HB 1036 is a compromise that was hammered out among Colorado’s county clerks, a bipartisan group of state lawmakers and others. It is a sensible means of providing public access to voted ballots while protecting election integrity.

Previously, there was disagreement over whether voted ballots were covered under the Colorado Open Records Act. Many clerks believed the ballots were exempt from CORA, but a Colorado Court of Appeal decision last year held that they are public documents and must be available for public inspection under CORA.

County clerks initially sought legislation to make the voted ballots exempt, fearing that voter anonymity could be jeopardized. But, in meetings with the bill’s sponsor and various interested groups, they eventually agreed to the compromise that lists voted ballots as public documents under CORA. However, the law exempts them from public inspection in the weeks immediately preceeding an election and for a period of time after an election, when vote canvassing and potential recounts may occur. There are also provisions in the bill to protect voters from being identified through their ballots.

Unfortunately, due to last-minute legislative gamesmanship, the ballot provisions were grafted onto another piece of legislation about which we are less enthusiastic. This part of HB 1036 makes it more difficult for the public to have access to documents and records related to noncriminal investigations of public officials and it was supported by the heads of a number of state agencies.

However, we are concerned that it makes it more difficult to obtain information about public officials who may be fired or disciplined for administrative reasons, although the final version of the bill is less problematic than the original.

That question aside, the ballot provisions are necessary and timely. With the primary election coming up later this month, and the important general election less than five months away, we understand the urgency that county clerks felt to get the rules under which they operate clarified. Hickenlooper’s signing of HB 1036 does just that.


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June 13, 2012

Grand Junction Daily Sentinel
734 South 7th Street
Grand Junction, CO 81501

Dear Editors:

  As today’s editorial (“Ballot bill becomes law”) suggests, “he who respects the law and loves sausage should observe neither being made”.  Newly enacted amendments to the Colorado Open Records Act (“CORA”) aptly illustrate that venerable epigram.

  HB12-1036 originally dealt only with “access to documents and records related to non-criminal investigations of public officials” (records related to ongoing criminal investigations were already exempt from CORA) and was (not surpisingly!) “supported by the heads of a number of state agencies”.

  SB12-155 was the “CORA blackout bill” sponsored by the Colorado County Clerks Association (“CCCA”) – a nominally taxpayer-funded organization that refuses to disclose its outside funding sources and whose lobbying efforts were bankrolled by the electronic voting machine industry – which sought to deny public access to voted ballots.

  As the Sentinel chronicled, the latter bill was modified and then grafted onto the former at the last minute – with only abbreviated deliberation – and therefore sparked controversy both as to both substance and process.

  As to substance, many election law experts and voting rights advocates – and The Denver Post – urged the governor to veto SB12-155 so that it could be duly considered separately. 

  As to process, because both bills created new exceptions to CORA, the combined bill will likely survive threatened legal challenges based on the Colorado Constitution’s “single subject” mandate.  Facing a “both or neither” choice, Governor Hickenlooper signed the bill into law.

  Now that the CCCA has obtained its CORA “blackout” period, the public’s – and the Sentinel’s – attention should return to the underlying issues made less transparent by SB12-1036, to wit:  Colorado elections are being run by officials (including Mesa County Clerk and Recorder Sheila Reiner) whose submissions to the federal district court insist that “there is no fundamental constitutional right to a secret ballot” and whose procedures make voted ballots traceable to voters’ identities.

              Bill Hugenberg
              543 Rim Drive
              Grand Junction, CO 81507
Word Count = 300         257-1998

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