Analysis: Boulder’s pandemic petitioning boondoggle

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Patrick Murphy, left, shows John Marshall how to safely sign the petition — single-use pens and a tissue to prevent contact with the paper —  at NoBo Park. (Shay Castle / Boulder Beat)

Friday, May 15, 2020

In-person petitioning will continue in Boulder after city council on Tuesday again shot down alternatives being called for by organizers attempting to navigate the guidance of health experts, law enforcement and government orders. It is the third time a majority of members have passed on options presented to them in a saga that spans almost the entire COVID crisis.

Catch up on previous coverage:
Boulder City council gets back to business amid stay-at-home order (March 23)
Petitions will move online as COVID stymies in-person efforts (April 15)
Boulder sticks with in-person petitions despite health, gov’t guidance (April 25)
Forced to flaunt orders, Boulder petitioners face uphill battle (May 1)
Health officials ‘strongly encourage’ alternative to in-person petitioning (May 8)

On the table this time was holding a public hearing to gauge support for council members placing measures on the ballot. Aaron Brockett, Rachel Friend and Adam Swetlick voted in support; Mary Young, Bob Yates, Sam Weaver, Mark Wallach and Mirabai Nagle opposed. Junie Joseph abstained, which counts as an automatic yes, making the final tally 4-5.

Read a live-Tweet thread of Tuesday’s petition discussion

The issue — like so many before it in Boulder — has become a political hot potato. Council has received in excess of 150 emails (I stopped counting at 171: Browse them yourself and you’ll see why) and earned ire and praise for its inaction.

And the debate is by no means over. Yates suggested that it be revisited later in the summer when council discusses what ballot measures it wants to bring forward (more on that below), after deadlines for two of the four active campaigns have passed.

It’s all become one giant, swirly mess of rage tweets and all-caps emails. Let’s sort through the action and arguments to see what’s Bullshit and what’s Legit (at least when it comes to council — you’ll have to make up your own mind about how these issues play with your personal beliefs).

Author’s note: This format is something a little different and, as such, maybe a little uncomfortable. I *sincerely* hope this is not your only source, which is why I’ve provided links to emails, council discussions and other articles. Hopefully, this provides you some perspective, analysis and, above all, information. There may be perspectives, analysis and information I’m missing. I’d love to hear about them: boulderbeatnews@gmail.com. Thanks for being open to something new. – Shay

Argument: In-person petitioning is unsafe

Based on the opinions of health experts and scientists, person-to-person contact is the predominate way coronavirus spreads. That makes any person-to-person contact a risk for transmission (which is why we’ve all been stuck inside for two months).

True, we don’t know the exact level of risk because so much is unknown about this novel virus. But, based on what we do know, there are reasons to be concerned.

Verdict: Legit

Argument: Petition organizers and supporters are choosing to take the risk

This was a popular one Tuesday night with council members in the majority.

“I don’t think people should be doing things that are unsafe,” Mayor Weaver said. “The driver is people’s desire to have particular things on the ballot this year. If people choose to (collect signatures) they are risking their own exposure and other people’s exposure.”

Let’s do a little reframe: Say mail-in ballots were no longer available for November’s election (maybe, I don’t know, the Post Office has gone belly up or something *wildly* implausible like that). Your only choice is in-person polling places, with thousands of other residents. Oh, and COVID is experiencing a resurgence.

Your “choice” in that admittedly-made up-but-scarily-not-impossible scenario is to risk infection and vote — or forego your constitutional right to participate in democracy.

Ask yourself: How much choice do you feel you have? Then ask yourself why the right to petition the government should be any different. Despite Weaver’s choice of words, direct democracy isn’t a “desire” — it’s a First Amendment right, on par with freedom on speech and religion.

Yes, people will have to decide for themselves if the risk of infection/transmission is worth it to exercise their actual rights (not to be confused with the “right” to Sunday brunch or yoga class). But that begs another question: How much risk should be acceptable, in America in 2020, to participate the democratic process — especially when there are options to preserve democracy and reduce said risk?

I can’t answer that for you, but I can call this one…

Verdict: Bullshit with a thin veneer of Legit-ness

Argument: Council shouldn’t circumvent established rules for petitioning

Enshrined in the city’s charter are thresholds for when citizen-led efforts can appear on ballots. This year, initiatives that represent code tweaks need 3,336 signatures by June 5; those requesting changes to the charter itself must garner 4,048 by August 5.

The limits, lowered via a 2018 ballot measure, are based on turnout in previous elections. Such voter-imposed mandates should not be taken lightly: They are there for a reason, to serve as a reasonable bar to ensure that initiatives have significant community support.

Following them provides legal cover, and it follows the will of the majority — Issue 2E passed with 60.8% support — rather than a small group of impassioned community members.

Verdict: Legit

Argument: Council isn’t inhibiting democracy; COVID is

Councilman Yates infamously uttered these words at the April 21 meeting, in voting down electronic signatures. While technically true, it shows an inconsistency in council’s logic and approach to coronavirus response.

If the response to COVID impacts is a collective shrug, then why do anything? Why establish response teams within the city? Why advance payments to nonprofit partners to help with rental assistance? Why open homeless shelters for additional days and hours? Why use city resources to close streets so that restaurants could host diners outside?

All these actions have been taken and/or are being seriously considered. Council can’t be blamed for any of coronavirus’ devastation, but they chose to act in all these cases because the absence of action also has serious implications.

Verdict: Technically true but still Bullshit

Argument: Council should place all petition measures on the ballot

Argument: Council should not place any petition measures on the ballot

I’m lumping these together mostly because I knew people would read through one and get immediately incensed before moving on to the next.

Here’s why council could just send the things straight to voters: City Attorney Tom Carr on Tuesday said members can use whatever criteria they want in doing so. Legally, they’re in the clear.

Here’s why they shouldn’t: It would abandon the thresholds established in the charter (see above) violating the spirit of the law. We don’t know how many signatures these efforts would have garnered sans pandemic; we can never know that. (With the possible exception of No Eviction Without Representation, which over two pre-COVID months gathered nearly 2,000, putting them well on pace to achieve ballot status.)

A solution should not assume that organizers would have gathered adequate signatures, nor should it ignore the substantial handicaps imposed by social distancing. Normal circumstances, these are not.

The best, most balanced solution was probably the first one that got floated, way back before stay-at-home orders: That council set new thresholds — whatever it wants, because, again, it can — to demonstrate that these measures had, as Carr said, significant community, honoring the spirit of charter requirements.

That could have been a super-high number of online signatures, as suggested. That’s not a perfect fix either: verification may have been tricky (details below) but it wouldn’t have been a legal issue at that point, merely one of council’s comfort in referring thing to the ballot.

The worst that could happen would be that voters get to ultimately weigh in on these issues (gasp!), not the slippery slope argument that many are making. This is a one-time fix to a (hopefully) one-time crisis. By this time next year, we’ll have a fully functional online petitioning system (more on that later).

Verdict: Both contain traces of Bullshit mixed with Legit concerns

Argument: Council should weigh the merits of each measure before placing them on the ballot

I’m going to say this loudly for those in the cheap seats: THIS DEFEATS THE PURPOSE OF DIRECT DEMOCRACY.

Petitions are what happen when citizens can’t get elected officials to take up issues they care about. (Note repeated refusals to address occupancy limits, an issue Yates and Weaver in the past have said is for the voters to decide.)

I understand the discomfort of putting something on the ballot that council members might not personally believe in. As noted, they give ample consideration to items they themselves bring forward. On the other hand…

The merits of petition contents have been questioned by council since literally the first discussion on potential workarounds. Multiple members have flat-out said these issues aren’t urgent or important. We’re supposed to trust they’ll be fair in their decision making?

The question that council seems to be not asking is: Do voters deserve a say on these particular issues? Substituting judgement of elected officials for the will of the people is a subversion of the petition process.

Verdict: Somewhat understandable Bullshit

Argument: Too tricky to pick who gets in

“There’s a little unfairness to picking these four” active campaigns, Yates said Tuesday night, and not any that come after. “I’m not sure I feel comfortable picking winners and losers based on today’s arbitrary date.”

Several members referenced late entrants who signaled their intent to file with the city clerk via email. Let’s take a look at those, shall we? (Emphasis mine)

Hello Lynette, Please consider this a notification of a potential submittal of a ballot issue that I would like city council to place on the ballot: Titled: “Transparency and required reporting of spending on Pre-Ballot Initiatives, Referendum, Recalls, taxes or Candidates in City of Boulder Elections in order to make sure the public is fully informed about the money spent to influence city of Boulder Elections.” Spending shall be reported for the period of up to one year before any of the above are certified for the ballot. As with other issues that are being considered by council to be placed on the ballot, I will submit additional information as your office requests it. I understand at least one issue is still being reviewed. Thank you for considering this request and please let me know if there is a published cut off date to take part in this new process as I have another issue related to Energy that is being developed. Best – and good luck in your new job! – Crystal Gray

Hello Lynette, Please consider this a notification of a potential submittal of a ballot issue that I would like City Council to place on the ballot. Title: “Protecting The Community From Pandemics By Limiting Density.” The ballot language shall be: “To protect public health, lower-income people, and the environment, by protecting against coronavirus and other future pandemics, the City of Boulder shall limit density — as calculated by the U.S. Census Bureau’s “population per square mile” — to the amount in the results of the 2020 census.” As with other issues that are being considered by council to be placed on the ballot I will submit additional information as your office requests it. Thank you for considering this request and please let me know if there is a published cut-off date to take part in this new process where the Council itself refers all potential citizen initiatives to the ballot.  – Gary Wockner

“Protecting the Community from Pandemics by Limiting Density”  Dear City Council Members, I am writing in support of placing the above captioned ballot initiative on the ballot for the 2020 election. If Council is considering placing other initiatives on the ballot without judging their merits, this one should also be placed on the ballot without reservation. Thanks. – Michael Schreiner

This is a notice of intent to submit the following for a ballot issue. Please let me know additional information you might need. Since council is considering placing all ballot petitions on the ballot in 2020 please add this one to the list. “South Boulder Creek Flood safety Initiative” Direct council to condemn CU South land In order to build flood mitigation that will provide safety for down stream residences and to fund this with City storm water funds, grants and sale (or trade to CU) of city land in the Planning Reserve if necessary. – Harlin Savage

To give preference to campaigns that have filed proper paperwork months ago, whose supporters are out risking their health and safety to gather signatures, versus ones that explicitly referenced possible council action as a motivator? That’s not unequal treatment. It’s common sense.

Again, council can use any criteria it wants to place things on the ballot. Maybe it should be those groups that filed before stay-at-home orders went into place. Or maybe any campaign that can demonstrate it has been organizing since before COVID.

While I’m not sure what the right call on criteria is, it’s easy to tell good-faith efforts from disingenuous emails likely intended to make a point.

Verdict: Wildly transparent Bullshit

Argument: Petitions can wait until next year

Remember the earlier scenario in which mail-in voting isn’t available for 2020? We’re back there, but this time, the feds decide to cancel in-person voting, too, due to fears over COVID transmission (which in this fever dream, is suddenly being taken very seriously).

It’s OK, the President says. You can just vote next year.

I’m guessing your butthole is puckering in righteous indignation at the very thought. After all, the government could have stepped in to save the Post Office and guarantee you a safer way to vote. Why didn’t they?

Obviously, that’s not a direct comparison to what’s happening in Boulder. As we established earlier, council didn’t cancel petitioning. But the point of this little exercise is to get you thinking: How long would you be willing to give up your constitutional right to vote? One year? How about four more years?

Not to sound like a broken record, but why should petitions be any different? And, yes, I know, no one is forcing petitioners to stop, taking away their rights, but remember the question I asked above about whether citizens deserve to safely participate in democracy? Ask yourself that again.

Verdict: Ignoring-civil-liberties Bullshit

Argument: Issues raised by petitions aren’t urgent

This one has been repeated several times by many people, but I’ll give the honor(?) of representing it to councilwoman Young:

“I regret that people were put in this situation because of the virus, but this is not as urgent and impactful as losing your job or not having ability to put food on the table or pay your rent. … I don’t think that not being able to gather signatures for a petition you could wait for next year to do rises to the level of crisis in an emergency. People have a choice. They have a choice to wait.”

Losing a job and/or housing is undoubtedly more immediately disruptive than not being able to petition without the fear of contracting/spreading a potentially fatal virus (though let’s not dismiss the very real emotional weight of the latter) but guess which one of these three things is a guaranteed right of American citizens?

Also: Council’s opinions of the measures are irrelevant because (see above) the opinions of elected officials are exactly what direct democracy is intended to circumvent.

Verdict: Not-your-call Bullshit

Argument: All elections are not created equal

Voter turnout is much higher in presidential elections: 89.3% in 2016 versus 43.6% the following year, according to Boulder County election records. In Boulder, specifically, 90.6% turnout in 2016 dropped to 43.77% in 2017.

Younger voters show up in far greater numbers in presidential election years. In Boulder County, 84.7% of  26-40 year olds voted in 2016. In 2017, just 29.6% did.

Bigger (and more youthful) crowds are no guarantee of success. But they’re likely a reason so many campaigns filed in 2020. None of these issues are new.

That kind of political strategizing shouldn’t be a reason for council to act this year, Young and others argued. True, but odd coming from a group that spends considerable time harping on increasing public engagement and reaching out to under-represented groups, including youth. These same council members this year discussed adding non-voting seats to boards and commissions so that college students could serve.

So while this point may be worth considering for you as an individual based on your own personal values of political inclusion, council taking this stand is…

Verdict: Hypocritical Bullshit

Argument: Putting petitions on ballot would create *more* public health risk because people would need to campaign for/against them

This was a Young talking point, but it originated in emails from two former city council members. Campaigning is a “high contact human sport,” Young said. Placing measures on the ballot would be tantamount to council “saying, ‘Go out and campaign.'”

Setting aside the fact that council denied it is sending that same message to petitioners (!) another big announcement on Tuesday all but guarantees that there will be something on the 2020 ballot: A possible settlement with Xcel Energy to end the muni.

Council’s own charter committee members — Friend, Young and Nagle — have also suggested a handful of changes that would require voter approval. Among them: Paying council members monthly or biweekly rather than per-meeting, and opening up eligibility for boards and commissions to non-Boulder residents in order to draw a more diverse applicant pool.

If Young follows her own logic, nothing should be sent to voters this year. The discussion of potential ballot measures is scheduled for May 26.

Verdict: Pending Bullshit

Argument: Council should accept online signatures

The quick-draw solution was rife with issues, as noted by people from both “sides.”

Circulators were unhappy about requirements that didn’t apply to paper petitions, such as Voter ID numbers and too-easy triggers that would trash the efforts entirely, with no path to resolution.

Opponents protested that the vetting process would be subpar at best. Paper signatures are currently verified by the clerk to check that 1.) Signers are registered voters and 2.) Their signatures match those on file. Boulder’s eventual, official online petitioning system will have two-factor authentication, but it isn’t ready yet.

Some of the issues could have been worked out, but verification would likely have remained a challenge. However, as stated above, online signatures could merely have been the trigger for council to place petitions on the ballot, so…

Verdict: 75% Legit, 25% Bullshit

Argument: Boulder could have already had online petitioning

Voters overwhelmingly approved online petitioning in November 2018. A competitive bidding process to select an eventual developer was started in July 2019. A vendor was selected in December, and council got a preview of the eventual system in early March.

Read more:
No online petitions until at least 2020 (March 2019)
Online petitions get pushed to 2021 (April 2019)
Boulder makes strides toward online petitions (March 2020)

Critics — including a couple members of the election working group — then and now accuse the city of going too slowly. But staff (and other members of that same working group) contended that it was a first-of-its kind project, accessing voter databases required time-consuming agreements with other government entities, and that security was more important than speed. Council, during the eight-month gap between voters’ green light and the start of a bidding process, agreed.

I’ve observed the entire 18-month process. It does seem to have taken a long time to get something in place, and it sucks that it’s not ready because then we wouldn’t be in this friggin’ mess.

Thus far, no solid evidence has emerged (at least none that I’ve seen) that points to intentional delay, as the most ardent critics of the process have alleged.

Unless a smoking gun emerges, this one’s…

Verdict: Unfortunate Bullshit

Argument: Boulder could get sued if it did online petitions this year

Carr testified at the April 14 council meeting that Boulder should be protected from legal challenges because 1.) Voters already authorized online petitioning (it’s in the charter and everything!) and 2.) The city has home-rule authority. He has not offered a contrary opinion since that time, though he also let council statements on possible lawsuits pass unchallenged.

But…. there were those issues with verification stated above, so…

Verdict: Bullshit/Legit Level Unknown

Argument: In-person petitioning leaves people out

I’m again going to call for some empathy here. If you had cancer, or heart disease, or diabetes, or an otherwise compromised immune system and/or the good luck to make it into your twilight years… Would you risk in-person petitioning?

There is much we don’t know about COVID. What we do know: It hits the elderly, the infirm and communities of color harder than young, healthy, white people. We also know, as we’ve known for years, that health is strongly tied to income, which is itself tied to race, even here in “white, wealthy” Boulder County. So lump a good chunk of poor people into that high-risk group as well.

In other words, the people with the most to lose are already our most vulnerable, the most likely to be disenfranchised. That’s who we risk excluding from the democratic process by providing no alternative path.

Verdict: Sadly Legit

Additional note on this: Like political inclusion, your individual values will influence where you rank this on the Legit/Bullshit scale of how much it should matter to a decision about petitioning. But your elected officials have loudly and continually pledged (and at times proven) their commitment to equity — particularly councilwoman Young.

Given their professed values, I would have thought that equity concerns alone would have been motivation enough to pursue a workable solution. But it rarely came up. Not one of nay-saying council members has even broached the subject, attempted to rationalize their choices with this reality.

That may be the biggest Bullshit of them all.

Author’s note: This article has been updated to reflect that councilwoman Rachel Friend also serves on the charter committee and to correct that ballot issue 2E governed petition thresholds, passing with 60.8% of the vote

— Shay Castle, boulderbeatnews@gmail.com, @shayshinecastle

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6 Comments Leave a comment

  1. Wow. That might be the longest local politics article ever written in Boulder.

    While I like your statement that direct democracy is guaranteed by the First Amendment, presumably “the right to petition the government for redress of grievances,” I bet the courts have rejected this repeatedly because only 24 or 27 States depending on your definition have direct democracy.

    Sure everyone in every state can petition, but only in our lucky half of the states does your petition force a legal vote of the people.

    THAT guarantee is in the Colorado and other state constitutions.

    You’re right about the signature thresholds, but that was 2018 ballot issue 2E, not 2G. I say that as a member of the working group that wrote both issues.

    When you say,”Thus far, no solid evidence has emerged (at least none that I’ve seen) that points to intentional delay, as the most ardent critics of the process have alleged,” I think you still haven’t looked at the slideshow I made including video and audio of City officials lying and cheating and defrauding us of up to $500,000:
    Tinyurl.com/petitionstory

    The evidence is so overwhelming that five of the 15 2019 Council candidates, Rachel Friend, Adam Swetlik, Sue Peterson, Mark McIntyre and Gala Orba put their candidacy on the line by signing this letter to Council asking them to stop the delay!:

    https://docs.google.com/document/d/1iqPxfTByIToYlyTGzUJT9sal3p6JwOFBDoak8YlD_WQ/edit?usp=drivesdk

    I’ve been working for better and National direct democracy for 32 years, and I’ve largely sacrificed my life to it. I spearheaded Boulders 1993 voting by phone ballot initiative. I was the spearhead of the 2018 city Charter Amendment allowing online petitions which have become a worldwide demand from people now.

    I have provided all of Boulder’s journalists with dozens of emails detailing City misconduct to kill this project. Except for kgnu, none of you have ever interviewed me, except the camera, which made a word salad out of it and Confused everything.

    Boulder would have been the first in the world with online petitions for direct democracy. Instead, as of now, but City is going to waste half a million dollars on a project that will not work, for the reasons you could have found in the email I sent you all yesterday about the Boulder County Democrats asking the governor and Secretary of State to host Boulder’s online petitions on the state voter registration website.

    Why do you instead repeatedly interview Matt Benjamin, who as a member of our working group was peripherally involved, when every member of the working group and everyone else will tell you that I was the prime mover of this?

  2. Best ever. This should be read every decade into the future so people know that government sometimes works and sometimes is paralyzed by complexity. Also, so some City Council members can hear what they said (are you out there Mary?) and wonder what twisted logic this pandemic has produced.
    Thanks Shay.

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