It was perhaps inevitable that Gov. John Hickenlooper would sign a controversial bill governing public access to voted ballots that we and many concerned observers had urged him to veto. After all, the bill was vocally supported by elected county clerks. Not only do they understand the business of conducting elections better than anyone, they claimed the sky might fall if he didn’t sign the bill. The governor obviously had reservations about House Bill 1036, which he outlined in his signing message, but they unfortunately weren’t strong enough for him to defy the opinion of the expert Chicken Littles. Too bad. Colorado now has an election system with a privileged class of people — not only candidates but also political parties and representatives of issue committees that gave money to ballot measures — who may inspect voted ballots when everyone else, including the media, is excluded. Those of us in the non-privileged majority will not have access to voted ballots until after elections are certified — too late, citizen activists persuasively argue, for effective public oversight. Many of those activists, it should be noted, have followed election issues closely for years and know a thing or two about them, too.
Ironically, the legislation was supposedly about protecting citizen access to election records, even though the courts had done a pretty good job in that regard during the run-up to the legislative session. It seems clear in retrospect that the bill was designed in part to help clerks keep the pesky public at bay and to insulate current procedures that the clerks themselves admit leave some ballots traceable.
If you thought the state constitution mandates that ballots be anonymous and untraceable, you’d be correct. So why didn’t the legislature try to do something to ensure that election procedures do not undermine this fundamental expectation? Rather than try to resolve underlying problems that lead to potentially traceable ballots, the new law simply grants clerks broad discretion to hold back problematic ballots from open-records requests. Meanwhile, it provides no incentive for officials to change the procedures that create potentially traceable ballots in the first place.