Gov. John Hickenlooper is weighing a controversial bill that some believe creates a separate class of the public in reviewing ballots following an election, with the aim of maintaining anonymity while also allowing for transparency. House Bill 1036 — which began as Senate Bill 155, but was grafted onto HB 1036 in the waning hours of the regular legislative session — would solidify in statute that ballots are open to the public under the Colorado Open Records Act, but not immediately available to all members of the public. Instead, the bill would create a category known as an “interested party,” which would include political parties and representatives of issue committees, or stakeholders involved in the outcome of the election. Those “interested parties” would be granted access to ballots starting 45 days before any election and until the election is certified, while the rest of the public — including the press and watchdog groups — would be prohibited from reviewing the ballots until the election is certified by county clerks.
A growing coalition of opponents is asking the governor to veto the bill, arguing an unfair balance in transparency, while also noting that the bill was scheduled for hearings with little notice and limited debate. Included in that coalition is the Ute Mountain Ute Tribe, Coloradans for Voting Integrity, the Aspen-based Citizen Center, Citizens for Fair Government, Colorado Voter Group, and the Colorado Union of Taxpayers, to name a few. Last week Colorado Common Cause and the American Civil Liberties Union of Colorado joined those who oppose the bill and likewise urged the Governor to use his veto pen.
The origins of the bill are anchored in good intentions, following a lawsuit filed by Aspen resident Marilyn Marks seeking to halt alleged practices by clerks that reveal the identity of voters who cast a ballot. After an unsuccessful run for mayor in 2009, Marks requested to review images of ballots that were cast at the time. Her request was denied over concerns that the ballots could be traced to individual voters. She sued and won on the appellate level, with the court ruling last fall that images of the voted ballots should be open for public inspection, but that the ballots must remain anonymous. Amid the court cases, Marks, who founded the Citizen Center, has immersed herself in a fight for ballot transparency and anonymity. “That’s what CORA is about, a public record. That’s been on the books since 1967, so why do we have to start having two classes of people?” Marks continued. “It’s a slippery slope.”