Colorado open primary bill advances over bumpy terrain as negative ad hits airwaves
Author: John Tomasic - May 8, 2017 - Updated: May 9, 2017
Debate inside and outside the Legislature around how to best implement the state’s new voter-approved open primary elections has grown hotter by the hour as the legislative session barrels toward closing day.
On Monday, the Senate advanced Senate Bill 305 to the House. The bill is meant to guide the secretary of state’s office in writing rules this summer for party primary elections that would be held next summer and that would be open for the first time to independent or non-party-affiliated voters — the state’s largest voting bloc. Thirty senators voted in support of the bill and five — all Republicans — voted in opposition.
The vote came after Senate sponsors Steve Fenberg, a Boulder Democrat, and Kevin Lundberg, a Berthoud Republican, introduced an amendment to delete a provision of the bill that would have had county clerks make a record of which party’s ballot unaffiliated voters requested and continue for each election thereafter to send to the voter the same party’s ballot unless directed by the voter to do otherwise.
On the chamber floor before the vote, Fenberg said the secretary of state’s office, county clerks and opponents of the bill had all signaled their support for the amendment, suggesting that the amended bill would meet fewer bumps in its path through the House toward the governor’s desk in the next two days.
Debate around the bill in the last breakneck days of the session has been intense, at times nasty, and has included a tangle of arguments that have been difficult to unravel.
Indeed, the debate this weekend spilled over onto the airwaves — onto television broadcast channels and internet websites — when Let Colorado Vote, the group that backed primary elections ballot Propositions 107 and 108 last year, targeted bill sponsors Fenberg and Lundberg with a negative election-campaign-style ad said to be fueled by something in the neighborhood of $60,000 in purchased television time and Web space.
“One is a Democratic insider, the other is a Republican insider,” says the ad narrator, as photos of the men move across the screen. “Both politicians think they know better than you, and neither one is listening.”
“Political insiders are trying to sneak through a last-minute bill that subverts the will of the voters,” the voiceover continues. “It’s a dirty trick… that will addd unnecessary barriers to voter participation, threaten ballot privacy, and violates the very ballot measure voters just approved. Lundberg and Fenberg are doing the bidding of party bosses. Tell your state senators and representatives to stand up to the will of the voters.”
Fenberg sees in the ad the kind of stretches that typically mark election campaign rhetoric.
Lundberg is a veteran lawmaker who lives off the power grid on a farm south of Loveland. He is a well-known figure among the conservative wing of the Republican party — but it’s a wing often at odds with legislative and party leadership.
Fenberg is a freshman senator, hardly a power broker at the Capitol, but well known for founding and running the enormously successful state youth voter registration group New Era Colorado. As a result of that work, Fenberg has become intimately familiar with elections administration policy, which is why he took up Senate Bill 305.
“They say I’m trying to disenfranchise voters. All I have done is work to enfranchise voters,” he said, laughing. “This is crazy.”
Fenberg added that he had been open for days to running the amendment that the Senate passed on the chamber floor Monday. He said he could only speculating about the intent of the negative ads.
“That amendment was never a big deal to me,” he said.
Lundberg suggested there were basic elements of elections administration in Colorado that the opponents of the bill seemed resistant to accepting.
Lundberg said the sections of the bill that are drawing opposition now have to do, at root, with election integrity — and he notes that Colorado has a record of high transparency and accountability in election administration that he and Fenberg are trying to respect.
“What we’re doing with this bill is giving the propositions legs to stand on,” Lundberg said. “The real point of discussion here is that, in order for a proper counting of an election, you need to know how many votes were cast and how many votes were counted. So, are we conducting one [primary] election or are we conducting two [primary] elections — or more? The point is, we need to know who votes in every election we conduct. And that’s a public record right now — and we haven’t changed that — and that has to be the case if there’s ever going to be a proper election audit or an election recount — and there will be audits and recounts, because elections are close and elections aren’t perfect.
“The notion that you can make an election totally anonymous as to whether you even participated is just way outside the bounds in Colorado,” Lundberg said.
John Hereford, vice chair of Let Colorado Vote, said his group was on the alert for “skullduggery” but he said the amendment offered today by the bill sponsors addressed what he thought was “the most pernicious” aspect of the bill. He said the way the bill read would create primaries that effectively forced unaffiliated voters to affiliate — to submit to a “de facto or crypto affiliation,” as he put it, where a voter’s party-election participation would be public and could be used in a shorthand way as a brand. If it can be shown that you participated in Democratic elections, the thinking goes, it can also be argued that you at very least lean Democratic in your politics.
“We’re trying to be flexible through this administrative process, but that’s totally unacceptable,” he said.
But as Lundberg pointed out, masking voter participation would go against current state law, which directs county clerks for elections integrity reasons to record voter participation in every election, including party primary elections.
“It’s not party affiliation we would be tracking,” Lundberg said. “It’s election participation. There’s a difference, and it’s important.”
Another sticking point in the debate around the bill has centered on what kind of primary-election ballot to send to unaffiliated voters.
Opponents say that, in considering Propositions 107 and 108 last year, voters explicitly approved a procedure that would send so-called “super-primary ballots” to unaffiliated voters. A super-ballot would list candidates for all parties but require voters to choose among only the candidates running in one party’s contests — that is, among all Republican or Democratic candidates. If they veered from making selections from one party, their ballot would be spoiled and left uncounted.
Washington state, an all-election all-mail ballot state same as Colorado, has sent out super ballots in primary elections and has sustained a spoiled ballot rate of 7 percent.
“That’s unacceptable. It’s way too high,” said Suzanne Staiert, Colorado deputy secretary of state. Primary elections often can be decided by a hundred votes or less. Legislative elections in the state are often decided by a few hundred votes.
Lundberg said he should carry around a photo of Washington state’s primary ballots.
“People look at these ballots and they jump around them and say, ‘I’ll vote for this person and that person,’ and so their votes just disappear. We can’t have that…. Washington’s current system is just weird. It’s a free for all. That’s not how we do elections in Colorado.”
Fenberg says there’s little practical reason to print wholly new and distinct super ballots each primary election. He also says there are strong arguments to be made against purchasing new ballot-tabulating equipment to process super ballots in counties that currently lack the technology.
After all, ballots for Democratic and Republican primary elections will be printed and processed with equipment already in place, so Senate Bill 305 advocates sending out both Republican and Democratic primary ballots to unaffiliated voters with instructions asking them to choose which ballot to cast and which one to discard.
Staiert is exasperated that this remains an issue. She points out that Let Colorado Vote argued to the state supreme court during the Title Board hearing last year that the question of what manner of ballots to send to unaffiliated voters should be “resolved administratively.”
“This detail is simply a procedural technicality,” the group’s lawyers argued. “It is not a material element or central to the purpose of the measure… Adhering to the Petitioner’s argument would require technical minutia to be included in the title contrary to the underlining purpose of having [simply stated] ballot titles in the first place.”
Staiert couldn’t agree more.
“We have been going over these points for months,” she said, suggesting that the effort to undermine the bill or to halt its progress is confusing and will undoubtedly end in litigation.
“I think what they’re really lobbying for is the right to sue [the secretary of state],” she said. “One way or another, we have to write rules this summer on primary elections for next year. If they kill the bill, we have to do it without statutory guidance. Wouldn’t members of the public rather have the legislators they’ve elected to make the state laws go ahead and make the state laws?”
Hereford said watching the legislative debate around the bill has been frustrating.
“What they failed to do at the ballot box they’re now trying to do through the administration process,” he said, adding that he hoped the ad would make a difference. “I think it will put specific senators on notice. I think the intent will be clear.”
From the beginning, debate around Senate Bill 305 has been tied to Kent Thiry, the CEO of kidney disease and dialysis company Davita who spent millions in support of Let Colorado Vote’s Propositions 107 and 108 last year and who has been planning to run for governor in 2018 as a moderate Republican.
Most observers believe Thiry expects the new open primaries to help him squeak through what would normally be an election decided by hardcore conservative voters.
Staiert said Thiry visited the office of the secretary of state the week before Senate Bill 305 was introduced at the Capitol and that he expressed his displeasure with how the bill was taking shape.
Indeed, up until this week, the main lobbyist at the Capitol working in opposition to the bill, Politicalworks’ Travis Berry, openly told Staiert and the bill sponsors he was representing Davita. It’s hard to imagine what direct interest a kidney dialysis company would have in state primary election administration if its CEO wasn’t running for governor. Let Colorado Vote has never been listed as one of his clients.
Still, many observers believe it’s folly to try to predict at this point what influence an untested system that encourages unaffiliated voters to participate will have on primary elections next year.
“Only something like 30 percent of affiliated voters participate in primary elections,” said Fenberg. “I think it’s reasonable to assume that most unaffiliated voters are unaffiliated in part because they don’t care to participate in primary elections.”