A Denver court will rule on whether state lawmakers can keep using secret ballots to help rank and decide the fate of some bills at the statehouse after a conservative group called Advance Colorado filed a suit on Wednesday. The suit will challenge the so-called “quadratic voting” system used and supported by Colorado Democrats.
The court case is poised to settle a months-long debate between transparency advocates who allege the private bill ranking survey illegally shuts the public out of decisions, and lawmakers who say it is a helpful data point as they debate dozens of bills competing for funding.
Michael Fields, of Advance Colorado, said the legal challenge he filed against the House and Senate on Wednesday aims to also reveal how lawmakers have been weighing in on dozens bills behind the scenes. Fields said the lawsuit was filed on behalf of a Douglas County resident who unsuccessfully tried using an open records request to get results showing how each individual lawmaker voted in this year’s survey.
He saidthe lawsuit is about accountability.
“The point of (the quadratic voting system) is to be secret and not let people know how individuals are voting or what they prioritize,” Fields said. “I think that violates the law and that there should be transparency. It should be open to the public, there should be discussions and you should be able to hold these elected officials accountable for their views on stuff.”
Fields’ lawsuit alleges the secret survey “denies the public the right to hold individual legislators accountable for the way they prioritize legislation and allows certain bills to be killed or advanced in a secret process instead of being subjected to public discussion and debate.”
House Speaker Julie McCluskie, D-Dillon and Sen. President Steve Fenberg, D-Boulder, didn't immediately respond to requests from KUNC to talk about the lawsuit on Thursday. However, Fenberg told the Denver Poston Wednesday the system doesn't violate state law.
Democrats ranked 140 bills on March 24 while the public wasn’t able to watch.
Only bills that need government funding are included in the secret survey, and lawmakers do not reveal how they individually voted in the process.
In the end, lawmakers tasked with deciding which bills to advance to a public vote have a spreadsheet of how dozens of bills ranked in the process in both the House and the Senate.
Sen. Chris Hansen, D-Denver, introduced the survey to the Capitol in 2019 to help lawmakers decide which of dozens of bills should get a piece of the state’s limited budget.
“It's a secret ballot, essentially,” Hansen said in a 2021 interview with RadicalxChange, the nonprofit that helped him set up and run the private voting system website. “You're filling this thing out in your pajamas, you know, in the comfort of your own home sitting by yourself. And so, you know, we get a better indication of people's actual preferences.”
The anonymous nature of the survey has drawn criticism and concern from the Colorado Freedom of Information Coalition in recent months. And even some lawmakers themselves have questioned the process.
Former State Sen. Kerry Donovan, D-Vail, told KUNC last year she blamed the secret survey for the death of her bill aiming to improve wildfire investigations.
“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 at the time. “Is (the survey), you know, away from the important sunshine of the public and the press? It is.”
After learning more about the quadratic votes and how they were impacting legislation, transparency advocates alleged they violated the open meetings law.
“These are some of the most important decisions that legislators make,” Jeff Roberts, the head of the Colorado Freedom of Information Coalition said. "And I think the public is entitled to know, and probably a lot of people want to know how their legislators weighed in on various measures that cost state tax dollars.”
Lawmakers defended the practice and continued using it this spring despite receiving a letter from the CFOIC calling for an end to the practice.
“There's no real accountability concern in my mind because a bill doesn't live or die based on the outcome of the survey,” Senate President Steve Fenberg, D-Boulder, told KUNC in April.
Lawmakers have withheld records about the survey results in previous years, saying they are protected “work product” they’re not required to share with the public.
But Fenberg and House Speaker Julie McCluskie agreed in April to release the anonymous results of the survey for the first time in response to an open records request.
They still maintained the records were not public documents.
Transparency advocates said they still didn’t think the secret survey was legal after the results were released because they did not show how individual lawmakers voted in it.
This is the second lawsuit filed against state lawmakers this month over alleged open meetings violations. The other one, from two Democratic House representatives, alleges they’ve held private caucus meetings and used an encrypted messaging app to discuss pending votes.
An initial court hearing hasn't been scheduled yet.
