A Denver district court judge has ruled that a secret ballot system Democratic state lawmakers have used since 2019 to help decide which bills should live or die, violates Colorado’s open meetings law.
Judge David H. Goldberg said in his ruling, lawmakers so-called quadratic voting system is a “serial meeting” designed to “thwart” the purpose of the Open Meetings Law.
"Voting to determine the prioritization of pending legislation is undisputedly tied to the formation of public policy," Goldberg wrote. "Consequently, the use of quadratic voting can only be considered "discussing public business" under the (Colorado Open Meetings Law) definition of meeting."
He also said lawmakers are using secret ballots to adopt positions in violation of the Open Meetings Law.
He ordered state lawmakers on Friday to stop using quadratic voting, saying the ban “serves the public interest as the public has a constitutional right to an open legislative process.”
Lawmakers “did employ a secret ballot to adopt a position, which is precisely the type of activity prohibited by (the Colorado Open Meetings Law),” Goldberg wrote in his ruling. “The public was thus deprived of the ability to know how their elected representatives voted to prioritize pending legislation, hampering their ability to hold their representatives accountable for how they cast their votes.”
The conservative Public Trust Institute and Douglas County resident David Fornof 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 Public Trust Institute 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, praised the judge’s order on Friday.
“We’re really pleased they won’t be able to use the process in the future,” she said. “It’s unfortunate we can’t get the records of how these votes have been cast or impacted in the past, but the main request we were making was they should stop using the process unless they make it open.”
She added she hopes the ruling will set a precedent that will prevent other governments from using secret ballots to help make policy decisions.
"All governments need to take a look at these rulings and instead of trying to do workarounds, they need to just be open with their votes," she said.
Under the quadratic voting 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 said 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 formation of public policy in Colorado is public business and may not be conducted in secret,” Jeff Roberts, the head of the Freedom of Information Coalition, said. “It sounds to me like this system is contributing to the formation of public policy in secret.”
Former State Sen. Kerry Donovan told KUNC she blamed the quadratic voting process for the death of her bill in 2022 aiming to improve wildfire investigations in the wake of the Marshall Fire.
“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.
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She added the secret ballot process was “away from the the important sunshine of the public and the press.”
Judge Goldberg said he had his own concerns about the transparency of the system at a court hearing last month.
“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 as he questioned a defense attorney for the legislature.
Attorneys for lawmakers defended the quadratic voting system at a hearing last month.
Attorney Ed Ramey said the anonymous bill ranking was 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."
A message left for a spokesperson for House Speaker Julie McCluskie to get reaction to the judge's order was not immediately returned Friday afternoon.
KUNC has also reached out to a lawyer representing state lawmakers for reaction to the judge's order.
Judge Goldberg dismissed some parts of the lawsuit against lawmakers.
The conservative group was seeking data that would show how individual lawmakers voted in the secret ballot process.
Goldberg said he lacked jurisdiction to order the records' release and noted there was a dispute as to whether those records even existed.
