Montrose - Daily Press

Katharhynn Heidelberg

Daily Press News Editor

DENVER — An amendment to Senate Bill 83 — which is already catching heat for its parolee-vote provisions — could sink the measure.

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The bill is designed as routine clean-up of the Uniform Election Code. However, an amendment that would require those wishing to inspect ballots preserved as election records to first obtain a court order has generated controversy and criticism.

Now, a week later, SB 83 continues to be held over for further reading, and the Secretary of State’s office said the bill could be scrapped.

“From the beginning, the secretary of state said he didn’t want any controversial issues on this measure,” spokesman Jonathan Tee said. “The secretary opposes the bill as it is now written.”

SB 83 came to the senate floor with several amendments, including the provision: “a designated election official shall not allow a person to inspect a ballot preserved as an election record...nothing in...this subsection shall be construed to prohibit a designated election official from allowing the inspection of an election record pursuant to an order entered by a court of competent jurisdiction for good cause shown.”

The bill’s sponsor, Sen. Ron Tupa, did not return calls seeking comment.

Cary Lacklen, an attorney with Coloradans for Voting Integrity said while the initial bill could have helped address problems that occurred in Montrose’s 2006 elections —when programming errors snarled voting lines for hours — the amendment caused concern.

“Then we saw this little thing tucked in at the end and it wasn’t even under the elections code, it was under the Colorado Open Records Act,” Lacklen said, contending the amendment creates a significant exception to CORA.

Complaints led to a proposed compromise — the current language allowing ballots to be inspected under court order, he said.

“That turns the whole open records act on its head and shifts the burden on the press,” Lacklen said. He believes the amendment, if passed, would force members of the public and the press to prove why they needed to examine the record, rather than force the custodian of the record to demonstrate why the public shouldn’t have it.

Montrose County Clerk Francine Tipton-Long said it seemed the amendment, as currently written, needed to be reassessed. However, she said, the County Clerks Association was not trying to limit public access.

“I believe there is legislation out there that already keeps that (physical ballots) away from the public,” she said. “What has been added to it is the court order part of it. That was not our doing.”

Tom Kelley, a Denver media law attorney who represents the Daily Press and other members of the Colorado Press Association, said the statute cited by the amendment’s supporters was “antiquated” and referred only to the opening of ballot boxes by election judges — not inspection by the public. The amendment, he said in a letter, was not simply a restatement of current law.

“To the contrary, (the bill) creates a new and unprecedented exemption from the requirements of the Colorado Open Records law that flouts the law’s fundamental purpose,” he wrote.

Ballots, Kelley argued, are public records and are not exempt from CORA.

Both he and Lacklen pointed to America’s most notorious example of a controversial election: Florida in 2000. It was media access to those ballots, Kelley said, that helped prove reforms were needed.

“That sort of public accountability is what informed the enactment of CORA and is presumably why no amendment for election ballots was incorporated into the law,” Kelley wrote. “It is also one of the reasons ballots must be retained by election officials for as much as 25 months.”

Long said inspection of ballots was not precluded, but clerks were worried about the integrity of the records. “The scare is if we allow these ballots to be handled, they could be destroyed,” she said.

Montrose’s voting machines include “yards and yards” of tape, Long said, and physical inspection would require constant rolling and unrolling. In other instances, a person inspecting a paper ballot could inadvertently mar the record, thereby ruining its integrity.

“It’s not wanting to have open records. It’s wanting to preserve the integrity of the ballots,” Long said. “As a voter, I would like to see each ballot. As an elected official, I would like to have that without physically handling the ballot.”

Tee also said ballot integrity was an issue, but “the secretary certainly does not approve of limiting access to ballots.”

Lacklen said he feared the amendment would “draw all election records behind a black curtain,” and he hoped it would be removed from the bill.

“The bill has some good things that will help Montrose (County) run better elections, but the whole bill is teetering on the edge because it’s got too much baggage.”

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