Lawsuits may be on the way challenging a controversial bill signed by Gov. John Hickenlooper last Thursday that creates a separate class of the public allowed to review ballots following an election.

House Bill 1036 allows an “interested party” — including political parties and representatives of issue committees, or stakeholders involved in the outcome of an election — to examine the voted ballots, but excludes access to others, such as the press and watchdog groups.

The sponsors of the legislation in its initial form were Sens. Rollie Heath, D-Boulder and Jeanne White, R-Hayden, and Reps. Lois Court, D-Denver, and Carol Murray, R-Castle Rock. The bill purported to protect transparency in elections while preserving the integrity of ballots in connection with requests for public inspection under the “Colorado Open Records Act,” or CORA.

The lawmakers worked closely with the Colorado County Clerks Association to solidify in statute that ballots are open to the public under CORA, but not immediately available to all members of the public.

County clerks had raised concerns that during the approaching presidential election, Colorado would be closely watched as a swing state. Given the potential for a recount, county clerks wanted clarity on ballots as public records before national media and watchdog groups started asking for access.

The list of opponents of the bill included an array of diverse organizations and individuals ranging from the Ute Mountain Tribe, Coloradans for Voting Integrity, Citizen Center, Citizens for Fair Government, Colorado Voter Group, the Colorado Union of Taxpayers, Colorado Common Cause, and the American Civil Liberties Union of Colorado, among others.

Although no concrete plans have been initiated, the Ute Mountain Ute Tribe is seriously considering legal action.

Attorney Jennifer Weddle says the case will come down to two points. The first deals with the legislative action on the bill itself. HB 1036 began as Senate Bill 155, but it was grafted onto HB 1036 in the waning hours of the regular legislative session to save the bill from dying on the calendar. Weddle and the Ute Mountain Ute Tribe are concerned that attaching the bill to HB 1036 as an amendment violates the single subject statutory rule.

“The extreme actions that the assembly took in passing this totally un-vetted and unrelated bill by pasting it into another are wholly different than the kinds of reasoned decisions that the assembly makes all the time to create umbrella documents where you can put seemingly related matters,” she said.

The second argument that will be made if a lawsuit is filed is that the bill violates federal discrimination claims by creating two classes of people.

“It really creates a separate class of political insiders,” said Weddle, adding that the Ute Mountain Ute Tribe is a sovereign government and political entity independent of the “interested party” language provided in HB 1036.

“I don’t know what they thought they were crafting with this bill,” said Weddle. “The only thing it changes is CORA. It creates two classes of people, one that has rights under CORA and one that does not.”

Harvie Branscomb, a Colorado Voter Group trustee, agrees that the law is unconstitutional and aimed at disenfranchising certain members of the public.

“Colorado elections have gone behind closed doors through increased mechanization and centralization,” he said. “Digital scanning technology is just beginning to make sharing of untraceable ballots cheap and easy. This is no time to shutter a window through which citizens could do their own independent count of an election contest.”

Opponents have the support of several major media outlets, including the Denver Post, which has also argued through multiple editorials that the law limits transparency.

The Colorado Press Association supported the bill, despite concerns from some of its own members including Curtis Hubbard, the editorial page editor at the Post and a member of the CPA’s board of directors. The CPA has said that the law simply struck a compromise to get away from completely exempting the ballots under CORA, which several county clerks had been doing.

Hickenlooper himself acknowledged that the bill is “imperfect,” but he pointed out that with the approaching presidential election, it was more important to offer clarity to ballot transparency rules than to not sign the bill.

“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,” the governor said in a prepared statement. “This bill clarifies the security and chain of custody for ballots throughout the election season, making certain our elections are properly administered.”

The Colorado County Clerks Association thanked the governor for his action, saying that voters are now ensured transparency.

“This bipartisan bill creates a level of transparency for Coloradans that is unprecedented in state statutes,” said Donetta Davidson, executive director of the Colorado County Clerks Association and a former secretary of state of Colorado. “As future elections are decided by narrow margins, Coloradans will be thankful for years to come that legislators came together to create a set of rules that protect individuals and provide maximum transparency.”

Lawsuits over ballot transparency

Questions regarding ballot transparency first mounted following a lawsuit by Aspen resident Marilyn Marks, which sought to fulfill a response to a records request for images of voted ballots following her unsuccessful run for mayor in 2009. Her request was denied and she sued, winning on the appellate level, with the court ruling last fall that images of the voted ballots should be open for public inspection. That case has been appealed to the Colorado Supreme Court and stakeholders are awaiting a briefing in August.

“That will decide the constitutionality, as well as the open records status of ballots as public records,” explained Marks.

“Aspen is saying that the law that just passed is unconstitutional,” she added, referring to HB 1036, which oddly bolsters her case for access to ballots despite Marks’ opposition to the bill. “They are saying it is unconstitutional because the press and the public should not be able to see ballots.”

In connection with the Aspen case is a separate federal lawsuit filed on behalf of Marks’ Citizen Center, a non-profit dedicated to advocating for citizens’ rights. The case seeks to halt alleged practices by the secretary of state and county clerks that reveal the identity of voters who cast a ballot.

As part of Marks’ case against Aspen, it was revealed that ballot anonymity is not guaranteed and that ballots could be traced to individual voters. Ballots must remain anonymous under Colorado law — even to government officials — so Marks became concerned.

The case names Secretary of State Scott Gessler, as well as six county clerks from Mesa, Larimer, Jefferson, Boulder, Chaffee and Eagle counties.

Blocking access to public records

In what it called a “shocking” twist, the plaintiff Citizen Center was ordered to refrain from submitting any CORA requests to any of the defendants. The order applies to any public records during discovery in the case and was sought by state and county attorneys for Gessler and his fellow defendants on June 4. Magistrate Judge Michael J. Watanabe approved the order.

For Marks and her members, the order is devastating as many of the Citizen Center’s members are working closely on campaigns and other public matters in which being able to make CORA requests through the secretary of state’s office and county clerks is imperative. An attorney for the Citizen Center has filed an emergency motion for reconsideration and stay, but Watanabe has given the defendants until June 22 to file any response — cutting it close to the June 26 Colorado primary election.

“People are resigning (from our organization) because they’re working on campaigns — we have three poll watchers, one’s a journalist, one’s a government worker — they can’t risk being held in contempt of court…” said Marks. “If we lose them all, we will lose our standing and we will lose the case.”

At least six of Citizen Center’s members, including Marks, have filed declarations with the court stating their opposition to the order. Mesa County attorney Bill Hugenberg, a self-described “monitor of the activities of local government,” declared that CORA requests are crucial to his ability to keep watch over government.

“My opinion is that, when read with an abundance of caution, the purported ‘order’ imposes a potential ‘chilling effect’ on individual Citizen Center members — such as myself — who retain a bona fide interest in promoting open government independent of the subject matter of the pending litigation and who might otherwise submit legitimate public records requests unrelated thereto,” Hugenberg wrote in his declaration.

Journalist Teresa Benns, a staff reporter with the Center Post-Dispatch in Center, Colo., wrote in her declaration that “accessibility to open records and open meetings is key to everything I do as a reporter.”

“I have done a great deal of investigative reporting in the course of my career and without the ability to obtain the necessary records, I would have been unable to report on both routine government business and expose many dangers to public safety and welfare,” Benns stated.

Also offering declarations was Boulder County resident Albin David Kolwicz, founder of Colorado Voter Group, Larry Wayne Sarner, a political activist, and Mary C. Eberle, a founding member of Citizen Center.

Attorneys for Gessler and the county clerks, however, argued that the purpose of the temporary CORA prohibition is “to prevent Plaintiff from using CORA as a means to exceed the discovery limits included in this Order.” The point is that a scheduling order only allows for certain records requests, so CORA requests beyond the order could have unintended impacts on the case.

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