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

State lawmakers debate a gun-control bill on the House floor on Monday, Mar. 27, 2023.
Lucas Brady Woods
State lawmakers debate a gun-control bill on the House floor on Monday, Mar. 27, 2023.

When C olorado residents go to the state Capitol this month to lobby for the bills they care most about, many w i ll nev er know their bill might fa ce 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 Capito l — likely already weighed in on t heir favorite s on March 24 . Tha t's the d ate they cast secret ballots for the b ills they care d about the most.

In the sec ret ball ot system , al so called "quad ratic vo tin g" among law makers, Democratic senators and representatives fill out a n 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 legisl ative session ends, the public won’t know how each lawmaker individually ranked the bills during th e closed-door sec ret bal lot process. T he result s of the secret ballot proc eedin gs 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 t hat the quadratic voting system violates Color ado 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 , howe ver. Th at leads back to March 24, wh en Democrats logged on to a website and anonymously ranked t his s ession'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 r eques t was rej ected. Lawmakers denied it saying the results were c o nsidered "work product" and could thus be withheld under the stat e's open records law. KUNC submitted another records request on April 3 , 2023 f or acce ss to this year’s results.

Senate President Steve Fenberg, D-Boulder, said the response to this ye ar's records request f rom 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 previou s proce ss 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 se cret s urvey, once r eleas ed , will show how Democrats ranked all of the bills that would need funding to become law. But Fenberg said t he 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 i n the right direction , but he said he still doesn’t think it brings the sec ret bal lot proc ess 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 i nterview with KUN C 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 s yste m to help make budget ary decisions durin g legislat ive sess ion.Officials in Nashville,Tennessee used"quadratic voting"last summer to help c raft the city's budget. The results of that survey , h owever, were re eased to the public the sa me night la wmakers f illed it out .

Copyright 2023 KUNC. To see more, visit KUNC.

Scott Franz is a government watchdog reporter and photographer from Steamboat Springs. He spent the last seven years covering politics and government for the Steamboat Pilot & Today, a daily newspaper in northwest Colorado. His reporting in Steamboat stopped a police station from being built in a city park, saved a historic barn from being destroyed and helped a small town pastor quickly find a kidney donor. His favorite workday in Steamboat was Tuesday, when he could spend many of his mornings skiing untracked powder and his evenings covering city council meetings. Scott received his journalism degree from the University of Colorado at Boulder. He is an outdoorsman who spends at least 20 nights a year in a tent. He spoke his first word, 'outside', as a toddler in Edmonds, Washington. Scott visits the Great Sand Dunes, his favorite Colorado backpacking destination, twice a year. Scott's reporting is part of Capitol Coverage, a collaborative public policy reporting project, providing news and analysis to communities across Colorado for more than a decade. Fifteen public radio stations participate in Capitol Coverage from throughout Colorado.