A Denver judge heard arguments Thursday in a lawsuit that alleges a secret ballot system state lawmakers use to prioritize bills violates open meetings law.
Judge David Goldberg appeared skeptical of some of the arguments the legislature is using to defend the practice they call quadratic voting.
Under the system, lawmakers log on each spring to a website and anonymously use digital tokens to vote for the bills they think should get a piece of the state budget.
Supporters say the system helps make lawmaking more efficient. But critics, including the Colorado Freedom of Information Coalition, have raised transparency concerns, saying it illegally shuts the public out of an important part of the legislative process.
The judge who will rule on the lawsuit appears to share some of the transparency concerns.
“Aren’t you providing a mechanism, a cloak, under which these legislators can hide to avoid letting the public know how strong they feel about matters of public importance?,” Goldberg said Thursday as he questioned a defense attorney for the legislature.
Defense attorneys said they disagreed with that description of their so-called quadratic voting tool, which Democrats have been using since 2019.
Attorney Ed Ramey said the anonymous bill ranking is not a meeting that would need to be held publicly under the open meetings law. He said it was a “data point” and compared it to a form of traffic control to help lawmakers move some bills through the process more efficiently and avoid a "time suck."
“It’s not a meeting of any sort, electronic or otherwise, because nothing about merit or substance or essence (of bills) is discussed,” Ramey said. “It’s not a secret ballot, no action, policy, resolution or rule is being taken. It’s just leadership looking at the temperature of the collective.”
Goldberg also appeared skeptical of the defense teams' efforts to downplay the survey's significance.
The judge said the voting process appears to “go way beyond a mere data point.”
“When you allocate a token (in this anonymous survey), you are expressing the importance of bills,” Goldberg said. “Your admission that it’s a data point means that it is something that is important, that is taken into account, that means something.”
The conservative Public Trust Institute sued the legislature in July over quadratic voting, alleging it “denies the public the right to hold individual legislators accountable for the way they prioritize legislation.”
The group says it also allows certain bills to be killed or advanced in a secret process instead of being subjected to public discussion and debate.
Suzanne Taheri, a lawyer representing the plaintiffs, said Thursday she wants the court to declare quadratic voting an open meeting and allow the public to see the votes as each lawmaker casts them.
“These lawmakers’ constituents have a right to know how they prioritize those bills, and what positions they were taking in the quadratic voting system,” she said.
Judge Goldberg said quadratic voting is “obviously a very valuable tool for whichever party is in power to ensure they can get as many bills (passed) as possible.”
“I don’t have a problem with quadratic voting itself,” he said. “I’m troubled by the fact that the data may not be kept... From an open meeting and open records (perspective), it seems to me someone is expressing an opinion on the merit, essence or substance (of bills), or making it known to others by weighing in or participating in the process.”
A defense attorney said they think the data that would reveal how individual lawmakers voted on bills during the process is “destroyed” by the company the legislature uses to run the anonymous survey.
“We don’t want to know how individual lawmakers ranked bills," defense lawyer Ramey said of the individual voting record. “We don’t want (the data) to exist. It’s designed to block all that.”
State Sen. Chris Hansen, D-Denver, introduced quadratic voting to the Capitol as an experiment on the House Appropriations Committee in 2019, when several big bills were competing against each other for funding.
“It's a secret ballot, essentially,” Hansen said in a 2020 interview with RadicalxChange, a nonprofit that helped him set up the 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.”
Hansen said the data is more useful to lawmakers if it's provided anonymously.
“We're getting people's unvarnished, uninfluenced version of what they would really like to see funded,” Hansen told KUNC.
KUNC news was first to reveal the transparency concerns about the secret ballot system last year, including from lawmakers themselves.
Former State Sen. Kerry Donovan blamed the secret survey for the death of a bill she sponsored to improve wildfire investigations.
“I don't think it's outside the realm to say that if this bill had ranked higher in the (quadratic voting) process, that it would be law and we would be investigating the causes of wildfires in the state to a more complete level,” she told KUNC at the time.
As part of their defense of the voting system, lawyers for the legislature on Thursday offered examples of the survey not predicting the outcome of some legislation.
For example, a proposal to create an “In God We Trust” license plate ranked at the bottom of the anonymous survey and passed last year.
In other cases, the outcome of some legislation has mirrored the survey results.
Democrats took the secret survey on March 24 to rank 140 bills that need some amount of state funding to pass.
Senate President Steve Fenberg, D-Boulder, told KUNC last spring the survey was being used to help decide how to allocate $130 million available in the state budget to pay for new laws.
Judge Goldberg said he's expecting to rule on the quadratic voting lawsuit before the end of the month.
