Manipulative process taints a ballot bill

We must admit we’re torn about House Bill 1036, which now authorizes the inspection of voted ballots and is awaiting Gov. John Hickenlooper’s signature.

Oh, we have no problem with the ballot portion of the bill. It’s the other part of the bill that restricts public access to some non-election records that is troubling. Even more so is the last-minute tying of these two bills together, which is indicative of the problems and manuevering of this Legislature.

The ballot portion of the bill was originally Senate Bill 155, amended onto HB 1036 in the final week of the Legislature’s regular session. It declares that voted ballots are now public documents and must be available for public inspection, except for the 45 days immediately before and after an election.

That makes sense. No one should be able to see voted ballots — whether mail-in or those cast at early voting places — before Election Day. In the month and a half after an election, the voted ballots are being used by clerks to certify the election and could be part of an official recount.

The measure also includes provisions to protect voter anonymity and ensure the integrity of election records.

It’s a rational response to a Pitkin County judge’s ruling that voted ballots are public documents, with no restriction.

It represents a significant change from what county clerks in Colorado originally wanted, which was to declare all voted ballots exempt from the Colorado Open Records Act.

We don’t share the concern of some observers about language in the bill that grants “interested parties” access to copies of the voted ballots during the 45 days following an election, when the ballots are off-limits to the general public.

As Mesa County Clerk Sheila Reiner noted, those “interested parties” — candidates, political parties and issue committees that fight for or against ballot issues — already have partial access to election records that the general public doesn’t immediately after an election to challenge election results or to request and monitor a recount.

Our problem with House Bill 1036 is with the original portion of that bill, which has nothing to do with elections.

It makes it easier for public officials to withhold information related to civil or administrative investigations of state officials. It was promoted as a bill to protect public officials who are merely accused of wrongdoing. But open-records experts say it could be used to keep from public view any noncriminal reports about the behavior of public officials that leads to their firing or reprimand. The final version is not as restrictive as the bill was when it was originally introduced, however.

So HB 1036 , as amended with SB 155, restricts public access to some documents while opening others for public scrutiny. This sort of legislative manipulation, tying two such disparate bills together to try to win approval of one, adds to public distrust of and contempt for our Legislature.


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May 18, 2012

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

Dear Editors:

  Today’s editorial – “Manipulative process taints a ballot bill” – is itself “tainted” by the inaccuracy and illogic of the Sentinel’s analysis of the issues underlying SB 155.

  First, readers should properly ask themselves:  if SB 155 “makes sense”, why wasn’t it publicly considered in legislative committees and openly debated on the floor, rather than tacked onto an unrelated bill at the last minute? 

  Second, while the Sentinel properly insists that “no one should be able to see voted ballots – whether mail-in or cast at early voting places – before Election Day”, such is not currently the case.  Rather, at least in Mesa County, early voted and mail-in ballots are routinely “seen” by partisan elections officials “before Election Day”.

  Third, as the Colorado Court of Appeals (not “a Pitkin County judge”) recently ruled (with – not “with no”—restrictions), anonymous (only) voted ballots have always been public records subject to the Colorado Open Records Act (“CORA”), precisely because transparency is essential to insuring election integrity before results are certified.

  Fourth, it is the exception – not the rule – when “voted ballots are being used by clerks to certify the election and could be part of an official recount”.  Indeed, there is no evidence that any clerks’ post-election duties have ever been disrupted by citizens’ CORA requests – precisely because CORA already affords adequate protections for the clerks in such exceptional circumstances.

  Fifth, the Sentinel’s editorial entirely ignored the underlying reason why “county clerks originally wanted . . . to declare all voted ballots exempt from” CORA – because those clerks’ locally discretionary procedures allow a voter’s identity to be “linked” to his/her ballot, thereby unconstitutionally violating the principle of a “secret ballot”.   

  Therefore, it makes “no sense” to “blackout” public access to anonymous voted ballots while tolerating continued linkage of voted paper ballots with voters’ identities.

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

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