Lawsuit alleges Colorado House, Senate violated law via private voting system

A conservative group is suing the Colorado House and Senate, plus their Democratic leadership and three lawmakers, for allegedly violating the state’s transparency law via the use of an internal voting system to rank Democratic legislators’ budgetary priorities.

The suit, announced Wednesday, was filed by the Public Trust Institute, a conservative nonprofit, and David Fornof, a Douglas County resident who’s being represented by the conservative Advance Colorado Institute. The suit accuses the Democratic members of the state House and Senate of breaking the state’s open-meeting law by using a “quadratic voting system” that allows legislators to privately rank legislation that will require state money. The practice, first reported by KUNC, lets Democratic lawmakers internally prioritize how to spend limited state funding on their various bills, which can then influence what bills are passed, pared back or shelved entirely.

Using a digital system, each Democratic legislator is given 99 digital tokens to rank bills. A legislator could theoretically spend all 99 of their tokens on one bill or spread them across multiple, depending on their priorities. The results of this year’s voting were produced upon request to the Denver Post, though they did not include an accounting of individual legislators’ rankings.

“This secret voting scheme clearly violates the Colorado Open Meetings Law, and we’re filing this lawsuit because every legislator should be held accountable to the public,” Michael Fields, the president of Advance Colorado, said in a statement.

The lawsuit was filed against the Democrat-controlled state House and Senate, plus their leaders, Speaker Julie McCluskie and Senate President Steve Fenberg. House Rep. Bob Marshall and Sens. Chris Hansen and Jeff Bridges, all Democrats, are also listed as defendants, as is budget analyst Andrew Lindinger.

In separate interviews Wednesday afternoon, Fenberg and Marshall both dismissed the lawsuit as baseless and politically motivated. They acknowledged that the system was used, but both said it did not violate state law, and Marshall noted that one of his bills from last year — to give tax credits to teachers — ranked highly and was still shelved.

Fenberg described the system as an “efficient” way for lawmakers crafting the budget to collect data from their entire caucus about how to spend state money. The legislature may only have $30 million to spend in a year, he said, and bills under consideration may total $300 million.

“There’s no voting happen,” he said, alleging that Republicans had previously used the system and that lawyers in the Capitol had vetted and approved the process. “It’s a preference poll that isn’t determinative of if a bill passes or gets votes in a committee. It’s just a data point for folks to know as they’re thinking about spending money.”

But the lawsuit argues that practice violates the law, and it’s asking a Denver County judge to declare it illegal; order legislators to stop doing it; and to order the release of more detailed records of the voting. Fields said he wasn’t aware of Republicans using the system before but said the party affiliation didn’t matter.

“The practice of quadratic voting is purposely constructed to conceal information that the public is entitled to know,” the suit alleges. “Specifically, it casts a veil of secrecy over the priorities of specific legislators and replaces them with a caucus consensus. This practice 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.”

Fenberg said he had planned to stop using the system going forward because its use had been “taken out of context” and that leadership would likely take a more direct hand in determining budget priorities going forward.

The lawsuit comes on the heels of a similar suit filed by Marshall and his fellow House Democrat Elisabeth Epps. The two freshmen lawmakers sued the House and its leaders,  along with their own Democratic caucus and its Republican counterpart, over separate allegations that lawmakers routinely violated the state open-meeting law. That suit accuses Republican and Democratic House members of holding meetings without public notice and of using encrypted, disappearing messaging apps to discuss public business.

But Epps and Marshall did not challenge the use of quadratic voting. Marshall said Wednesday that he didn’t believe the system violates state law.

Transparency advocates had raised concerns about the quadratic voting system before, shortly after KUNC reported on its use last year. The Colorado Freedom of Information Coalition wrote to legislative leaders in October urging them to halt the practice.

“The anonymous ‘quadratic voting’ system as described by KUNC violates both the spirit and letter of the (Colorado open meetings law), which declares it ‘to be a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret,’” the group wrote.

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