A tough year for direct democracy

Lack of transparency with Boulder’s new electronic petitioning system raises questions

0
none

Steve Pomerance knows City Council won’t always take him seriously, given his laundry list of concerns about Boulder. But since he proved himself right this past spring, when his early alarms about City staff mishandling the 2020 petitioning process were affirmed months after falling on deaf ears, he’s hoping Council will listen now. This time, it’s about Boulder Direct Democracy Online (BDDO), the City’s new electronic petitioning system, and City staff’s handling of the project.

“The City Council did not track this, and the management of it stunk,” Pomerance says. 

A former Council member himself, the longtime Boulderite was a member of the 2018 Campaign Finance and Elections Working Group that drafted the ballot measure to allow electronic petitions in Boulder. The working group was disbanded after the November 2018 election, when voters overwhelmingly approved the idea. And with it, Boulder became the first city in the nation to allow citizens to place measures on the ballot via electronic endorsements.

Pomerance and others, like Evan Ravitz, who originated the idea and also participated in the working group, had hoped for an electronic endorsement system that could expand participation in direct democracy, not just in Boulder but elsewhere too. And they hoped for a system that constituents would feel excited and comfortable using. Such an entrepreneurial position came with twin senses of responsibility and opportunity, weighing risks alongside potential for innovation. Many from the working group feel the opportunity to lead the country has landed awkwardly flat.

When the first publicly shared screenshots and detailed explanation of the BDDO interface were published, in the meeting agenda notes for the Oct. 13 City Council study session, Ravitz flipped through them, saying, “It’s kind of a joke that it’s incomprehensible.” Another working group member, Valerie Yates, says the newest staff memo is “filled with misrepresentations and inaccuracies.”

A preview of what citizens will see when potentially endorsing a petition in the new BDDO system.
City of Boulder

Though frustrated, Ravitz is not surprised. This wasn’t the only loss in the fight for more petition accessibility this year: the Colorado Supreme Court struck down an executive order allowing for the remote collection of state petition signatures in response to the coronavirus pandemic; and in Boulder, shelter-in-place and social distancing regulations critically kneecapped campaigns’ signature collection drives, not to mention the City staff errors that botched multiple citizen initiatives. It’s been a tough year for direct democracy.

BDDO, the City-staff-designed electronic petitioning system planned for release in January 2021, brings notions of a win to the scene, but critics of its implementation lament the lack of transparency throughout the process. Many are questioning why and how choices were made, considering Boulder declined an offer for a free, open-source system and in light of the plentiful, documented threats on local- and state-level direct democracy. Now, many ask, why have there been so many issues with the BDDO process?

“Oh, I don’t know — your guess is as good as mine,” Ravitz says. Like a hawk, he’s been watching the last two years, but the City has given little information about the process. 

Citing overworked staff, Boulder Weekly’s interview requests with anyone directly involved in the project were denied, and after some staff turnover in the City’s IT department, it remains unclear who is leading BDDO’s project management.

One of the only things Ravitz has been told is that the City had difficulties connecting with the Secretary of State’s office, and determining how the City could get real-time access to voter registration data, which they needed to verify the voting status of potential petition endorsers. So Ravitz started pressing the Secretary of State’s office himself. 

In May, Ravitz co-wrote a resolution with the Boulder County Democratic Party asking Gov. Jared Polis and Secretary of State Jena Griswold to share voter registration data with the City of Boulder.

Historically, however, cities haven’t had direct access to this data and don’t have direct relationships with the Secretary of State’s office, explains Caleb Thornton, legal unit manager for the Secretary of State. County clerks work closely with the Secretary of State to facilitate elections and upkeep the voter registration database. In turn, city clerks work closely with county clerks to run local elections. 

In Colorado, a city can choose to contract its county to run a local election, as the City of Boulder regularly does, or a city can facilitate its own election. Either way, cities are routinely directed to work with their county to attain up-to-date voter information. 

Though Thornton couldn’t comment on specifics about the City of Boulder’s request for access to the statewide database, he says, “Generally we’re very protective of allowing any subdivisions to get that data on a live basis, because any time you transfer personally identifiable information electronically, if you’re not doing it the right way, you could put it at risk.” 

All of the information BDDO will require for validation is public record, Boulder County Clerk Molly Fitzpatrick says. This includes a constituent’s full name, voter ID number, address, birth date and phone number. In the beginning, Fitzpatrick says the City expressed a desire to use non-publicly available information like email addresses for its validation process, but the Secretary of State ultimately directed the City and the County to work with public information alone. 

And while the City is already capable of filing requests to the County for public voter information, providing it on a daily basis was something new that had to be worked out. 

“We had to determine the most effective, thoughtful way to do this,” Fitzpatrick says. Her office was told to support the City in September 2019, and now the County will upload a daily file to a secure cloud server that the City is also able to access. 

Fitzpatrick says the time between March and September 2019 was spent deliberating on who would provide the data — the County or the State. “Actually no one has to do it,” she explains, indicating neither the State nor the County is contractually obligated to provide cities with such a data flow. “But, of course we wanted to support the City in this.”

For its part, City spokespeople say the process has been heavily guided by security concerns and no unexpected hurdles have come up along the way, though implementation has taken longer than expected due to its unprecedented nature. However, no one BW interviewed could offer more specific details. 

“[We’re] just making sure that we’re all treading very intentionally and thoughtfully, and not rushing something like this,” Fitzpatrick says. She notes COVID could’ve caused some delays, and there have been multiple elections to conduct in that timeframe, including this year’s presidential primary. 

Ravitz and the Boulder County Democratic Party were also interested in having the Secretary of State integrate a Boulder-specific electronic petitioning software directly to its own website, so the voter registration data could just stay in one place. “It’s cheaper and simpler,” Ravitz says, and it’s what Arizona did when it created an electronic endorsement system for candidates seeking office (See News, “Courts Rule,” Aug. 20).

But, introducing a relationship like that between the City of Boulder and the State of Colorado is complicated, as the two jurisdictions have different rules when it comes to petitioning. The state constitution requires a petition circulator to be present during a petition endorsement, which effectively bans the opportunity for electronic endorsements of state initiatives. It’s also why BDDO will only serve petitions for ballot initiatives that address the City code — not the City charter, since the state constitution governs amendments to the charter, as further clarified during the Oct. 13 City Council study session. An amendment to specify this legal interpretation is now being drafted to prevent future confusion (See News, “What will happen to Boulder’s 2020 citizen initiatives?” July 30).

This dissonance came into sharp focus this summer, when Gov. Polis worked with Griswold to draft a remote signature system that petitioners could use in response to the coronavirus pandemic and the state’s social distancing requirements at the time. Their idea was to allow constituents to print petition sheets at home to sign, and then scan and email or mail signed petitions to campaigns. 

In May, Polis issued two executive orders, one for ballot initiatives and one for candidates seeking election, temporarily allowing signatures to be collected in this remote fashion. 

The executive order addressing ballot initiatives was quickly taken to court, however, as the business group Colorado Concern filed a lawsuit alleging it was an overreach of the governor’s executive power. As Colorado Concern’s CEO asserted in a press release, “Protecting the integrity of the initiative process is just as important in a pandemic as it is during a time of calm.” (A similar scene played out in several Boulder City Council meetings at the start of the pandemic, when Council deliberated but ultimately made no provisions to help citizen initiative campaigns navigate petitioning during the pandemic.) 

First, a Denver District Court judge determined Gov. Polis’ order was lawful, then the Colorado Supreme Court took up the case and unanimously sided with Colorado Concern. The executive order addressing ballot initiatives was overturned, though the executive order addressing the candidate’s signatures was left alone. 

As BW has proven in extensive investigations (See News, “Behind the Curtain,” Sept. 15, 2015), “Colorado Concern wants to make it impossible for citizens to exercise direct democracy via ballot initiatives.” The pro-business coalition, comprised of the state’s largest Republican donors, has grown into one of the most influential groups in Colorado politics and has previously proposed amendments that would make petitioning more expensive. The day after the Supreme Court decision, a ballot measure creating larger setbacks from new oil and gas projects, which Colorado Concern openly opposed, withdrew from the petitioning process, citing the Supreme Court’s decision and the public health and safety risk of circulating petitions in person during a pandemic as the reason.

“It’s a full-court press,” Ravtiz says. “There are pressure groups who really don’t like ballot initiatives.”

Which is why, in part, Ravitz and others are paying such close attention to BDDO’s roll-out; the hostile political environment has been no small threat. But no one outside City staff was let in to observe BDDO’s process, and many question how it was designed and why a free, open-source offer wasn’t taken seriously back in 2019.

“There was no transparency,” Pomerance says. 

When it came time to build the software system to facilitate electronic petitioning — something that could validate a voter’s identity and keep information secure — City Attorney Tom Carr declined requests to form a working group, and didn’t solicit official public input for the project until a courtesy meeting called in December 2019, about nine months after City Council directed City staff to begin building what would become BDDO. 

Had there been more public participation, Pomerance is confident more citizen-focused care would’ve gone into BDDO’s design. There could’ve been debate and deliberation on what features were necessary, or what the voters wanted the petition to provide — had City staff asked. But, the City was technically under no obligation to solicit or include public input. When asked why Carr recommended against forming a new working group, Carr declined to comment. 

Most of all, BDDO could’ve been built as an open-source system — an opportunity that many, including Council member Adam Swetlik, argue did not receive the serious attention it deserved.

“I’ve actually been interested in this since before I was a Council member,” he says. Swetlik was elected to his seat in November 2019, about six months into the City’s work on BDDO, and says from the beginning of his involvement, “It didn’t all feel quite right to me.” 

As a Council member, and as someone with a near-decade of experience in the technology industry, he’s still confused as to why an offer from the nonprofit software company MapLight wasn’t taken more seriously. MapLight was founded to reduce the influence of finances and special interests in politics. Plus, open source provides “the most transparency in business,” Swetlik explains, “which I think is very important especially when it’s for major public processes.” 

He adds, “In a lot of ways, [open source code is] the safest because everyone can see it — compared to something that could be exploited [with errors] not found for a long time, because only one group is looking at it, if at all, after it’s been created and implemented.”

MapLight President Dan Newman had been tracking Boulder’s 2018 ballot measure for electronic endorsements, and once voters approved it, the nonprofit jumped at the opportunity to build the inaugural petitioning software system. The company refined a prototype and Newman flew himself out to pitch their product to City staff in May 2019. His vision was to create an open-source system that other municipalities or states could use in the future, should the opportunities for electronic endorsements expand elsewhere. At the time, Newman also said his company could get a system up and running by April 2020.

Despite the fact that MapLight’s offer did contain “multilayer, externally-verified security” according to Newman, City staff declined MapLight’s free offer, citing security concerns. 

When asked to expand upon the specific security concerns, the City declined to comment, and no IT professionals involved in the decision-making were made available for interview. Newman says he met directly with City staff, in particular former IT director Julia Richman, and she never broached the subject of security to express concerns or ask questions. 

Instead, the City opted to proceed with a Request For Proposal (RFP) — a standard administrative practice that facilitates a bidding process for City projects, though it should be noted free services can be accepted without an RFP. 

The RFP was written by the IT department, the city manager and the city attorney’s office at some point between the months of March and July 2019. 

“The specifications that the City chose to write in their RFP were for a system that was much more complicated and expensive than would be needed,” Newman says. He guesses the City fell prey to “a common issue in software projects called ‘scope creep,’ which is that it’s easy to think about more things that you would like the system to do, and to think of them without the context of how that increases the cost and timeline.”

Pomerance and others agree. “It was doing more than was necessary to get the job done,” he says. “It had all this stuff tacked onto the end.” 

The City did not hire third-party IT or software security professionals to consult the RFP’s specifications, nor to review the final proposals.

The lack of transparency carried into the RFP process. The City’s specifications added significant costs to the project, which required MapLight to add a price to its proposal. Although MapLight was chosen as a finalist, Runbeck Election Services won the bid. The two proposals came with similar price points, according to the City. (Runbeck is contracted at $490,000). Runbeck has an established working relationship with the Colorado Secretary of State and Boulder County, as the company is responsible for printing and mailing some jurisdiction’s ballots, including Boulder County. Runbeck also provides the state and City of Boulder with petition management software, although it remains unclear when this relationship began. The City of Boulder is the company’s first electronic petitioning software client. (See News, “Advancing Democracy,” Sept. 24.) 

According to the City’s July 5, 2019 RFP announcement, the final vendor was supposed to be selected “the week of Sept. 23. City officials say the hope is to have work begin in Oct. or Nov., so that the system is functioning in time for the Nov. 2020 election.” The contract with Runbeck wasn’t signed until December 2019, however, and the system will not be available until January 2021. 

When asked to explain why the timeline changed, Carr says it was a “short time to develop a completely new system particularly when you are dealing with election information.” When pressed for more details via email, Carr declined.

none

Toward the end of the contract negotiation with Runbeck, in December 2019 the city attorney’s office did call one courtesy public meeting, after Ravitz and others pressed City staff for updates and answers. Carr told City Council he’d consult the 2018 working group before finalizing the contract, yet when a few members of the working group arrived at the meeting on Dec. 18, 2019, the contract was already signed. “Some jaws dropped,” Ravitz recalls. 

Carr, over email, says it was because City staff were “under pressure to get this done. The contract was ready to go. We wanted to get Runbeck moving. The contract has a 30-day cancellation provision. We reasoned that if we heard anything in the working group that was a fatal flaw, we could cancel.”

Yates says she was also invited to participate in this meeting, but, “I did not attend because I thought it would be a waste of my time, given that the City had not taken our recommendations into consideration when formulating the RFP and signing the contract. From our discussions in the working group, we all agreed that another working group should be established to pursue the idea and develop the approach. Staff went ahead on their own and bungled it.” 

Rachel Friend, another Council member elected in 2019, attended that December meeting alongside Swetlik. At a Council meeting a few weeks later, as she expressed her own disappointment with the lack of transparency, she said the option to cancel the contract had not been clear to the group. 

Swetlik remembers intuiting at the December meeting that the choice to go with Runbeck “was already locked in.” This, despite the fact that he felt the Runbeck contract “wasn’t an enticing enough deal for many reasons, [especially] if we could get it at free or substantially lower costs and have it be open source — I thought those were two very, very important things, but others didn’t agree.” 

Mayor Sam Weaver, who’s sat on Council for the entirety of the project, has not been concerned with the frequency of updates, and says it’s been comparable to other projects with similar scopes. More communication happened at the beginning, then it tapered off as City staff fanned out to implement the project. “Once those opening discussions were resolved, I’d say updates were similar to what we’d get for a staff-led process with substantial community interest,” he writes via email. 

“I wish we had more consistent and constant feedback on where we are in the process and how it’s going,” Swetlik says. 

Seven months after the last substantial update, Carr gave a demonstration of BDDO from a petitioner’s perspective at an Oct. 13 City Council study session. After a few questions about BDDO’s system design and the voter validation process, Council directed Carr to continue on course. A public hearing has been scheduled for November.  

This concludes a four-part series analyzing online signature-gathering’s role in the future of direct democracy in 2020. Reporting for this series was made possible, in part, thanks to the Solutions Journalism Network. Para leerlo en español, por favor visita aquí.