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Colorado lawmakers might keep using secret ballot system that transparency advocates say is illegal

Scott Franz/Capitol Coverage
The Colorado State Capitol building is shown silhouetted against the sky.

Democrats who control the state legislature are continuing to defend their use of an online survey they fill out in secret to help determine which bills should live or die.

Leaders of the House and Senate said this month they’re considering using the system again this spring despite allegations from a transparency group that it violates the state’s open meetings laws.

When the Colorado Freedom of Information Coalition read a KUNC report in October about how the so called quadratic voting system was quietly killing bills at the statehouse, the group did something it said it rarely does.

It sent a letter to the top lawmakers at the Capitol saying the system was illegal and called on them to stop using it.

CFOIC director Jeff Roberts said the voting system deprives the public of its right to “observe important decision making in real-time.”

“We believe that this system violates the open meetings law, the prohibition against using secret ballots, and the Colorado Supreme Court's ruling in the 1980s that legislative caucus meetings must be open to the public,” Roberts said.

It’s been more than three months since CFOIC sent the letter to the statehouse. Lawmakers did not respond to it.

When they returned to the Capitol this month to kick off the legislative session, KUNC wanted to know what they thought of concerns being raised about their voting system.

Speaker of the House Julie McCluskie, D-Dillon, is one of the lawmakers defending it.

“It isn't a vote,” McCluskie said of the quadratic voting system last week. “And it's not crafting policy. It isn't, you know, drafting the words that go on a page for a piece of legislation. It is simply a collection of where people think dollars should be spent.”

McCluskie said it’s difficult for lawmakers to find consensus on which bills should be funded without using a private survey. She added the quadratic votes are “not binding” and instead are a “single data point” for lawmakers as they decide which bills should get the funding they need to pass.

“This is really done to be more inclusive and more equitable, so independent legislators can weigh in without the pressure of their colleagues,” she said.

Other lawmakers have described the quadratic voting differently than McCluskie. They say it can determine which bills make it to the floor for votes. And they say it can also kill bills without a final public vote.

Former State Sen. Kerry Donovan was one of the highest ranking lawmakers at the Capitol last year.

She told KUNC this fall the secret survey killed a bill she ran to improve wildfire investigations.

That bill passed unanimously in the Senate, but did not get a public hearing or additional vote in the House before lawmakers ended their session. The bill effectively died without any public explanation.

Donovan said the bill’s fate was sealed in the secret survey.

“I don't think it's outside the realm to say that if this bill had ranked higher in the preference polling process, that it would be law and we would be investigating the causes of wildfires in the state to a more complete level,” she said.

Speaker McCluskie said last week she doesn’t know yet whether lawmakers will continue to use it.

“Right now we're way far away from that part of our process,” she said.

Senate President Steve Fenberg, D-Boulder had a similar answer, saying he also hasn’t decided whether to use it again.

He said in a statement the results of the private survey are not “definitive.”

Lawmakers typically use quadratic voting survey in April after they determine how much money they have to pay for bills that require government funding. 

Scott Franz/Capitol Coverage

Meanwhile, some members of the public are calling on lawmakers to end the secret ballot system. Kevin Bommer leads the Colorado Municipal League, a group that lobbies on behalf of cities and towns.

"If something like this was occurring at the local level, legislators would be tripping over themselves to introduce legislation to prohibit it, and rightfully so," he said.

Bommer said the public expects debates over bills to happen in public where they can "see it, hear it and have a chance to participate in it."

He added the quadratic voting system can fuel accusations that the fate of bills are predetermined.

“The public often don't trust government,” he said. “Why give them a reason to even think that there's yet another way not to trust government?”

Jeff Roberts at the Freedom of Information Coalition is also hoping the secret ballots stop, or a compromise emerges.

“If they do keep on using it, is there a way they can adjust it so it can be open to the public?,” he asked. "I understand that it's an efficient way of finding out how the caucus members stand. And efficiency is important, but transparency is also important."

Roberts said it appears the system is being used in the same way as a caucus meeting, which the state's highest court has ruled must be open to the public.

Lawmakers denied KUNC's open records requests for the quadratic survey results going back to 2019.

Scott Franz is an Investigative Reporter with KUNC.
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