Democrats in the Colorado legislature must stop using a secret voting system to decide their budget priorities, a judge ruled Friday in the latest example of the statehouse majority facing legal consequences over claims they flouted the state’s open meetings laws.
Denver District Court Judge David Goldberg ruled that the secret system — quadratic voting — doesn’t comply with the state’s open meetings laws, which prohibit government bodies from taking formal action by secret ballot.
A conservative political nonprofit sued House Speaker Julie McCluskie and Senate President Steve Fenberg in July, arguing that the Democratic caucuses at the Colorado Capitol had violated the state’s open meetings laws by using a quadratic voting system to decide how to allocate state dollars.
McCluskie and Fenberg issued a joint statement on Friday responding to the decision.
“This tool was intended to bring fairness, equity and inclusion into how we invest our state resources, and we are committed to these principles and to transparency in the legislative process,” the Democratic leaders said. “We are disappointed in the court’s decision and are still reviewing it.”
Democrats began using quadratic voting in 2019, as reported at the time by The Colorado Sun. The process applied an obscure economic theory to the challenge of prioritizing budget requests, essentially turning the caucus’ decision-making process into a market. Lawmakers received an allocation of vote tokens to “spend” on programs they cared about most.
But the lawsuit argued that not only did the system violate public transparency laws, it was “purposefully constructed to conceal information the public is entitled to know.” The caucus hired a third-party contractor to conduct the vote and keep the ballots anonymous through an electronic voting system.
Goldberg said the system deprived the public 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 judge said the Democratic caucuses can use quadratic voting to make budget decisions, but they need to do so in a way that complies with the state’s open meetings laws — by making lawmakers’ votes public.
Lawmakers contended in court that the voting system wasn’t a “secret ballot” because the quadratic voting didn’t constitute an official action of the legislature. The appropriations bills still had to go through public hearings, debates and votes to be adopted into law.
Goldberg disagreed. “Adopting a proposed position through anonymous voting is precisely the reason why the General Assembly amended (the open meetings law) to prohibit secret ballots,” he wrote.
Other defendants in the case were the entire Colorado Senate and Colorado House, as well as Democratic Sens. Jeff Bridges and Chris Hansen as well as Democratic Rep. Bob Marshall. Andrew Lindinger, a Democratic staffer in the Senate and the architect of the quadratic voting system, was also sued.
The lawsuit was brought by the Public Trust Institute, a conservative political nonprofit that doesn’t disclose its donors. The group frequently targets Democrats.
The quadratic voting case was the second time this year Democrats at the Capitol were sued for alleged open meetings violations.
In September, McCluskie, House Minority Leader Mike Lynch, R-Wellington, and the Republican and Democratic caucuses settled a lawsuit filed by two Democratic state representatives alleging pervasive violations of the state’s open meetings laws in the chamber. The lawsuit claimed the caucuses didn’t properly provide notice of meetings and that representatives illegally used a disappearing messaging application to discuss legislative business.
The lawsuit was filed by Marshall and state Rep. Elisabeth Epps, D-Denver.
As part of the settlement, state representatives agreed to not discuss public business or take a “formal action” during a caucus meeting without first providing public notice of the gathering and promptly making minutes publicly available.
Also, according to a consent decree reached in the case, two or more members of the House “shall not discuss public business through any electronic means (including, without limitation, any instant messaging platform or application) unless written minutes of such meetings are made publicly available upon request.” Those minutes would have to be released under the Colorado Open Records Act.
Finally, the legislature agreed to pay Steve Zansberg, the lawyer representing Epps and Marshall, $13,000 in taxpayer dollars to cover his fees. Zansberg is a well-known Colorado media attorney who also represents The Sun and the Colorado Freedom of Information Coalition.
This is a developing story that will be updated.