A secret ballot system at Colorado’s statehouse is quietly killing bills
Democrats who control the state legislature are increasingly using a survey they fill out in secret to help determine whether bills live or die. The results are kept from the public, raising questions about transparency and potential violations of the state’s sunshine law.
Each April, lawmakers click on a personalized link to the anonymous survey. They then use digital tokens to vote for the bills they think should get a piece of the budget each year.
They have four days to cast their votes for their top priorities, and party leaders end up with a bar chart showing how popular bills are.
It’s called quadratic voting. State Sen. Chris Hansen, D-Denver introduced it 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 survey gives more elected officials a voice and takes drama out of decision-making.
And it’s no longer in a trial phase. Hansen claims all of the Democrats at the Capitol are now using it, and Republican senators tested it out this year, too.
But the off-book voting system has become part of the fabric of decision-making, and some lawmakers and government transparency advocates are sounding the alarm.
They say the secret votes are stifling public discussions about critical issues and may even violate open meeting laws.
“The formation of public policy in Colorado is public business and may not be conducted in secret,” said Jeff Roberts, the head of the Colorado Freedom of Information Coalition. “It sounds to me like this system is contributing to the formation of public policy in secret.”
A secret ballot
When quadratic voting first landed at the Capitol in 2019, it got the attention of several media outlets, generating articles in the Colorado Sun, Bloomberg News and Wired Magazine.
But in August, Sen. Hansen and other party leaders denied a records request from KUNC seeking the outcome of the surveys, which would show the public how lawmakers ranked dozens of bills.
“The value of the survey is higher if we can use it internally,” Hansen said. “That's been our experience.”
Hansen said the survey results are considered work product, and lawyers at the Capitol support withholding them from the public.
But some other top lawmakers and government transparency advocates are starting to raise concerns.
The voting system is also making it harder for some lawmakers to explain to their constituents exactly why some of their biggest bills are dying.
Death by secret ballot
State Sen. Kerry Donovan, D-Vail, said her proposal to improve wildfire investigations in Colorado was a no-brainer that should easily sail to the governor’s desk.
She introduced it as investigators on the Front Range were still trying to piece together what caused the Marshall Fire, the most destructive in state history.
She had the support of the state’s top firefighting officials.
Her bill also came on the heels of lingering questions about what caused other major blazes, such as the East Troublesome to the Grizzly Creek fires.
“Is it a spark from a trailer dragging a chain? Is it a cigarette? Is it arson? Like are these malicious fires?,” Donovan said she would ask herself. “If you don't know what's causing wildfires, then how do we even begin to address preventing some of them?”
Donovan’s bill would have invested $3 million each year to expand a wildfire investigation team.
She was encouraged when it passed the senate unanimously.
But it never got another hearing in the House. It officially died quietly on May 11 when lawmakers cleaned out their desks and adjourned their session with the bill still sitting on a shelf.
A big question still lingers in her mind.
Donovan said the secret voting system she and other Democrats are using is to blame.
She said her wildfire bill’s fate was sealed in April.
That’s when she and other Democrats who control all levers of government logged onto the confidential online voting system to choose which bills they thought should get a piece of the $40 million lawmakers had this year to pay for new government programs.
Donovan said the results of this year’s secret survey is the only logical way to explain how her bill that faced no public opposition could quietly die without any public debate.
“There was no opposition to the bill, but through the internal preference poll that bill did not score high enough in the ranking to receive the support from the General Assembly to be funded and move forward,” Donovan said. “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.”
Donovan has other concerns about the system.
She said lobbyists know exactly when lawmakers conduct the survey, and send them personal emails to influence the results.
“Can it get manipulated by the lobbyists? It certainly can. Is it, you know, away from the the important sunshine of the public and the press? It is.” State Sen. Kerry Donovan, D-Vail
Jeff Roberts, the head of the Freedom of Information Coalition, said the secret survey appears to be a way for lawmakers to hold caucus meetings digitally without inviting the public.
“If you can't get the records about it, (and) you can't attend the caucus meeting in any way where these decisions are made, even informally, the public is shut out of that,” he said.
Roberts said the debate over the system also reminds him of a fight for public access to legislative meetings back in the 1980s.
Fighting for a front row seat
Budget debates at the state Capitol used to get so personal that lawmakers were known to literally lunge at each other’s throats.
Roberts and other reporters had a front row seat to the action.
Roberts was covering the legislature for the Denver Post in the 1980s, when he witnessed a particularly shocking Republican caucus meeting.
He said a lawmaker grabbed a pair of scissors, walked up to state Sen. Cliff Dodge of Denver, and sliced off his necktie.
“Things got pretty goofy sometimes,” Roberts said.
But if state lawmakers had their way in 1983, Roberts and the public would not have been able to witness these lively debates.
A state senator tried to block public access to caucus meetings. But the state’s highest court ruled in favor of allowing the public to continue witnessing the debates, no matter how messy they got.
The judges wrote that “a free self-governing people needs full information concerning the activities of its government not only to shape its views of policy and to vote intelligently in elections, but also to compel the state, the agent of the people, to act responsibly and account for its actions.”
No curtain to pull back
Almost four decades after that ruling, Sen. Chris Hansen bristles at the idea the quadratic voting system he brought to the Capitol is secretive or potentially in violation of open meetings laws.
“There's no subterfuge or the curtain being drawn in some kind of nefarious way here,” Hansen said at the Capitol last month. “This is just a way for us as the legislature, to improve our ability to work through this very complicated process.”
Hansen also denies that a lawmaker who participates in the survey is actually taking a vote.
“It's not voting,” he said. “It's a preference poll to indicate the breadth and depth of support for different proposals in their current form. So it's very different from voting, which is a yes or no vote on a finalized proposal or a bill.”
He said the results should always be kept out of the public domain.
“And we think that's really important because we want people to be able to express their opinion in the survey and do it in a way where it's anonymous so that we're not getting undue pressure by peers,” he said. “So one of the great things about the method is that it is, you know, sort of a blind survey. And so we're getting people's unvarnished, uninfluenced version of what they would really like to see funded.”
Sen. Donovan said the survey results are not as unvarnished and uninfluenced as Hansen claims.
She said lawmakers are increasingly getting personal emails from lobbyists on the eve of the quadratic vote trying to persuade them to “prioritize” their bill.
And Jeff Roberts of the Freedom of Information Coalition points to state laws that prevent the use of secret ballots to adopt policy positions.
“They're saying this is informal, but it sounds like they're using this in a pretty serious way,” Roberts said. “And it's a secret ballot. Is it not? I think this raises serious questions about how the open meetings law has been interpreted by the Colorado Supreme Court as far as the openness of legislative caucus meetings.”
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