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Colorado Democrats defend use of secret ballots at the Capitol but say they will release results

People sit at desks in a semicircle facing a speaker at the front of a room in the Capitol with a chandelier overhead
Lucas Brady Woods
State lawmakers debate a gun-control bill on the House floor on Monday, Mar. 27, 2023. Democrats are continuing to use a secret survey they fill out anonymously to help decide which bills should get a piece of the state's limited budget.

When Colorado residents go to the state Capitol this month to lobby for the bills they care most about, many will never know their bill might face a hidden obstacle.

The reality many residents may not be aware of is that Democratic lawmakers —who control the fate of all bills at the Capitol — likely already weighed in on their favorites on March 24. That's the date they cast secret ballots for the bills they cared about the most.

In the secret ballot system, also called "quadratic voting" among lawmakers, Democratic senators and representatives fill out an anonymous survey. Each lawmaker gets 99 digital credits, and they are asked to spend them by clicking on the bills they support. Only bills that would require funding are included in the survey. Bills ranked at the bottom of that secret survey are viewed as a lower priority and have a lower chance of getting passed.

Even after the legislative session ends, the public won’t know how each lawmaker individually ranked the bills during the closed-door secret ballot process. The results of the secret ballot proceedings have not been released publicly since lawmakers started using it in 2019.

Lawmakers say the survey helps them decide which bills should get a piece of the state’s limited budget. Lawmakers can't afford to fund all of the dozens of bills competing against each other, so they conduct the survey to identify the top priorities.

The Colorado Freedom of Information Coalition told lawmakers last fall that the quadratic voting system violates Colorado open meetings law and “deprives the public of its right to observe decision making in real time.”

Lawmakers are sticking with the secret survey despite the transparency concerns, however. That leads back to March 24, when Democrats logged on to a website and anonymously ranked this session's bills.

Aren't the voters entitled to know how their lawmakers prioritize legislation that involves spending money from the state budget?,”’ Freedom of Information Coalition Director Jeff Roberts said last week after learning lawmakers were sticking with the survey. “Voting or communicating electronically like they're doing this, there's not a way for the public to participate in that, to observe that.”

KUNC filed an open records request last year seeking several yearsworth ofsecret survey results, but the request was rejected. Lawmakers denied it saying the results were considered "work product" and could thus be withheld under the state's open records law. KUNC submitted another records request on April 3, 2023 for access to this year’s results.

Senate President Steve Fenberg, D-Boulder, said the response to this year's records request from KUNC will likely be different than the last time.

I think it is protected 'work product,' but it's something that, like, I don't think needs to be hidden,” Fenberg said last week. “I'm totally comfortable just providing (the results) to people to the extent that folks find it interesting.”

Lawmakers used the“extenuating circumstances” exemption in the open records law to give themselves more time to respond to this year's request for the survey results because they are in the middle of a legislative session. Normally, governments have three business days to provide the records.

Fenberg said the survey is helping lawmakers get a pulse this month on which bills should get a piece of the roughly $130 million the state has in its budget to pay for new laws this session.

It basically is a tool for members to sort of state, like, ‘I kind of like these bills,' and you know, 'These aren’t bills that I would prioritize,'” he said.

Despite the survey’s secretive nature, Fenberg said it is more transparent than the previous process through which lawmakers would decide which bills to prioritize.

Generally speaking, leadership would just say, ‘here's what's being funded, here's what's not,’” Fenberg said. “I think this is actually a much more open, transparent and inclusive process. But again, it's just one factor. It's one data point. It doesn't actually determine the results.”

The results of the secret survey, once released, will show how Democrats ranked all of the bills that would need funding to become law. But Fenberg said the results would not show how each individual lawmaker voted because the survey is filled out anonymously.

Jeff Roberts at the Freedom of Information Coalition said releasing the results is a step in the right direction, but he said he still doesn’t think it brings the secret ballot process into compliance with the open meetings law.

What's the harm in releasing the results, by lawmaker? 'This is how Representative X prioritized these bills, or Senator X,'” Roberts said. “It's good that they plan to release results in aggregate form when they have not been willing to do that in the past, but I think the public is entitled under the open meetings law to the specific results."

House Speaker Julie McCluskie, D-Dillon, did not respond to KUNC’s request for an interview about the decision to continue using quadratic voting, although she defended the secret survey in an interview with KUNC in February.

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

Colorado is one of only a handful of governments using the secret survey system to help make budgetary decisions during legislative session.Officials in Nashville,Tennessee used"quadratic voting"last summer to help craft the city's budget. The results of that survey, however,were reeased to the public the same night lawmakers filled it out.

Scott Franz is an Investigative Reporter with KUNC.
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