2014-01-24 Harvie Branscomb: Yes on SB 70, 71, 79; No on HB 1164

January 24, 2014 at 8:12 am

Yes on SB 70, 71, 79
No on HB 1164

Friends,

Harvie Branscomb is a Democrat whom I have enormous respect for and gratitude to.  He is, in effect, our surrogate eyes and ears on our government when it comes the the critical issues of honest, fair, and transparent elections.

Harvey sent “good voting activists” a long email detailing some of the abuses associated with this session’s Colorado House Bill 1164 that the legislature is considering putting into law.

It is important to me and it should be important to you to understand the assault that good voting has been under in this state and the powerful forces arrayed against ordinary citizens – even political parties! – to oversee elections.

Please contact your legislators and ask them to vote as Harvey suggests (as in the title of this post).  If you have the time, Harvey writes “this is my call for citizens to head into the Capitol on Monday for an afternoon of election bills.”

Ralph Shnelvar
Chair, Libertarian Party of Boulder County
www.lpboulder.org www.facebook.com/lpboulder

Friends of election quality

Here we go again.  I have on Monday a 10AM meeting at which I am expected to discuss with PPP members and then make a recommendation to the SOS about the Uniform Voting System. That is a public meeting and I hope to see some citizens present or attending by phone for public comment. However that is not all that is going on.

I have been this week at the CCCA (clerks) conference. That is a story I will tell separately.  Today is their session on legislation. As it happens there are at least 4 bills of interest for elections  being heard in three committees this Monday afternoon- yes in three days from now.  They will be heard in three different rooms and perhaps simultaneously.

One of them (HB 1164) is over 130 pages long and copies huge amounts of terribly antiquated language about elections from remote sections of statute into Title 1 and then makes hard-to-find unsettling modifications.   Most of these tweaks are intended to do things that citizens would not be proud of like reduce citizen oversight, remove sanctions for election violations and complicate elections from the voter point of view even more than the 1303 bill did. And of course this bill is longer than the 1303 so it cannot be understood without a couple of weeks of reading. But guess what.. it is now scheduled for House State Affairs on Monday at an indeterminate time in the afternoon- but likely rather late upon adjournment of a Joint State Affairs meeting and will occur in LSB-A across the street from the Capitol.

To make matters worse,  the Colorado Municipal League and the Special Districts Association have issued a press release asking the legislature to rush the bill (HB 14-1164) so it can be adopted prior to the beginning of some election activities that occur Feb. 10. i think we can all recognize the now standard tactic of first deliberately fail to expose the bill to the public before introduction, then suddenly introduce and then rush to adopt, cutting short time to read the bill.  Purposefully leave no time to create arguments for or against the bill for committee hearings. Schedule the hearing too soon and at a time that can’t be predicted. And so on and so on.  What I now recognize as standard obstacles to citizen involvement.

Because of those early signs of heavy lobby tactics, I have stayed up overnight to read most of the 130 pages and have made detailed comments on what I immediately noticed.  The result is attached: there is NO WAY short of a strike below that this bill can be amended in committee to bring it to a reasonable state. Much of the language in this bill was written for the early part of the previous century and some from the century prior.  The most outrageous new part is Section 3 to end the Broomfield county post election controversy by legislative decree. That section is simply an outrageous and bald faced attempt at legislative whitewashing that can only be responded to one way.  Ask the State Affairs committee of the House to PI this bill as they are so adept at doing.

So this is my call for citizens to head into the Capitol on Monday for an afternoon of election bills- Bills that deserve support include SB 70 going to Judiciary that will bring the CCCA and other associations of officials under the sunlight of CORA.  I also favor individual opt out of mail ballot in SB 71 that is going to Senate State Affairs Monday afternoon. Also support Senate Bill 79 calling for a means to challenge eligibility of returned mail ballot envelopes. This too is needed legislation. We also need a way to challenge an election judge decision to deny counting of the ballot in the envelope as current law and rule did not properly contemplate challenges of mail-in ballots. Perhaps an amendment to SB 79.

Yes on SB 70, 71, 79
No on HB 1164

NOTE I DO NOT AGREE WITH THE FOLLOWING ADVERTISEMENT FROM TWO POWERFUL LOBBYING ORGANIZATIONS OF ELECTION OFFICIALS:
Also please be sure to at least stare at my 50 points of difficulty with HB 14-1164 shown just below the advertisement…

HB14-1164: The Special District Association and the Colorado Municipal League respectfully urge your “YES” vote on this important legislation
What does this bill do?
    (1)      HB14-1164 creates an election code for special districts, based on the Municipal Election Code (MEC; article 10 of Title 31), which has served Colorado’s cities and towns well for decades. The necessity to readopt the MEC, adapted for special district elections, accounts for most of the pages of upper case type in this big bill.
     (2)      As part of the election code for the districts, and in the MEC as well, the bill adopts mail ballot procedures, based upon the State mail ballot law under which districts and municipalities have operated for years.
     (3)      Last year, the General Assembly approved a residency requirement of 22 days in the State, as a qualification for voting. The bill failed to make conforming amendments in a variety of statutes relating to municipalities, special districts and school districts. HB14-1164 makes those amendments.
Why the big hurry to get this bill through the process?
On April 1, 2014, 170 statutory towns across Colorado have their regular, biennial elections. Then, on May 6, 2014, well over 2000 special districts will conduct their regular elections. Many of these jurisdictions will be conducting their regular elections via mail ballot. You’ve all been part of elections: you know that the election calendar starts running well in advance of election day. For the Towns, a critical date in their calendars is February 10th, when mail ballot election plans must be filed with the Secretary of State’s office. This date arrives for thousands of special districts about a week later, (February 17, 2014).
Local governments have been utilizing the State mail ballot statute for years, to conduct local elections. In the course of modifying that law last year to facilitate its use in statewide, partisan, federal candidate elections, the law was made far less suited for our relatively simple, non-partisan local elections. These changes will begin to affect local elections, as a practical matter, when the mail ballot election plans are filed, on February 10th. HB14-1164 will eliminate the plan approval requirement and allow mail ballot elections to proceed, in essentially the same form as they have successfully operated for many years, without complying with unnecessary additional requirements designed for statewide, partisan elections.
Please vote “YES” on HB14-1164 
Geoff Wilson                                                    Evan Goulding, Mary Kay Hogan
General Counsel                                                Legislative Consultants
Colorado Municipal League (CML)                 Special District Association (SDA)
1144 Sherman Street, Denver, CO 80203        225 E. 16th Avenue, Ste. 1000
gwilson@cml.org – 303-831-6411                    evan.goulding@sdaco.org – 303-863-1733
                                                                          mkayhogan@gmail.com -303-229-7407

Problems with HB 14-1164- over 50 serious objections pursuing only the detailed level of commentary and without looking for omissions. Harvie Branscomb Version 1 1/24/2014 4:30AM

Bill content under this link: HB14-1164 Hullinghorst and Murray–Nonpartisan Elections
Not Coordinated Cnty Clerks  http://www.leg.state.co.us/clics/clics2014a/csl.nsf/fsbillcont3/6125AA4642B2117C87257C300005FD7D?open&file=1164_01.pdf

First it must be noted that this 130 plus page bill is apparently about to be rushed through the legislature and that is a travesty at the outset. Even if this bill has positive overall intent and effect, it cannot serve the people of Colorado to write a bill of this complex nature and send it to committee within one week after public introduction.  There are many defects and significant policy shifts represented in the details of this bill.  To make matters worse it can’t possibly serve our interests for CML to set the target date for adoption two weeks out. Introduction Feb 21, adoption by February 10? Some of us who follow election law closely are sick of being treated to this kind of legislative tactic over and over again with the inevitably pathetic and destructive result.

Note that this bill attempts to white out the damage done by similarly rushed HB 13-1303 to the Colorado coordinated election of 2013.  That can be found in this bill’s outrageous Section 3.

References are specific lines in the introduced version of HB 14-1164:

P3 l 18-22 1-1-105.5  Specifically moots any issue with the recent election and in particular elections in Broomfield and Adams counties. Sets  precedent for utter lawlessness once we can predict that the legislature will moot future contests in progress. Outrageous overstepping of rationality and due process and a violation of expectation of fairness in use of legislative power. Could be called proof of utter failure of Colorado’s ability to provide quality control for elections.

P6 l 2 no need for VSPC for election not conducted by county clerk and recorder! This  VSPC is the basis of what makes Colorado’s model special and optimistic. Lost for local district elections as a result of this bill.

P8 l 13-19 ???? 1-13.5-103  local government does NOT include municipality or school district? Confusing?

P9 l 17-20 Watcher now required to be only a local government elector- unreasonable and an obstacle to oversight

P10 l 13-17 1-13.5-107 all of uniform election code except that which is in conflict applies?  That is a tall order for interpretation. How will we ever figure out what that means?  Why are sanctions specifically left out??? Highly problematic and suggests local governments want to run without risk of infractions and penalties

P11 l 3-12 1-13.5-108  Power of election official is of a super-judge- rendering election judges without a supervisory role at all.  Very dangerous aggregation of power to a single person who may also be a candidate but in any case is likely appointed by candidates among those on the governing board.  This power may also be wielded by a deputy whose means of deputization is probably under control of the original DEO or the governing board probably containing candidates.

P11 l 13-15 -109- “substantial compliance” the mush that renders legal all interpretations law regardless of specificity of the text.

P12 l 12-18  several local districts may coordinate their elections without calling it a coordinated election or using the county clerk and the uniform election code (with VSPCs)

P12 this page has references to several requirements to operate elections on dates in which county elections are taking place. If these elections are not to be coordinated, this is a mistake and will cause confusion.

P13 l 22-26  Is this sufficient to allow home rule municipalities to have non citizens voting in their elections? Some home rule towns have this in their charter. Same question for page 14.

P16 lists from county clerks- how do these allow delivery of electors under 0 day residency requirements that this bill allows?

Skipping some pages…

P24 l 5-6  1-13.5-101  Election judges no residency requirement except state. (inconsistent with watcher requirement of residency.) Uniform election code provides for resident judges and allows non-county watchers.  This is opposite.

P24 l 10-13 Election judge list only inspectable by local government elector? Contrary to CORA?

 

P 25 l 24-27 and page 26 l 1-6  1-13.5-406 Election Judges may be removed for a very wide variety of reasons including vague reasons such as “interferes or tends to interfere with a fair and honest election”. Judges have NO legal recourse for their removal. One of several big slap downs for citizen run elections built into this bill.

P 27 l 25 “The call shall must state the director offices to be voted upon in the election”  director is a typo?

P 31 l 20 – p 31 l 1 1-13.5-507 immediate voting area is not limited to when a voter is voting- prevents access by watchers to sufficient visual access to voting machines and ballot boxes after voting has finished and tabulation or other pre and post election functions are taking place

P 32 l 12-18 1-13.5-509 Good faith if mailing is sent, but no timeliness required. Mailing could be too late to be functional but this language allows that.

P 26 l 36  1-13.5-602 watcher may “witness” not “witness and verify” as in the uniform election code. This is a setback for watchers that are even more needed since SOS does not oversee and local government is the only remedy (except the provision for district court for contests)

P 37 l 7 – p 38 l 2 these are watcher rules taken from early 2013 (not the latest rules) converted into law here- including problematic phrases like watchers may not write down identifying information about electors or have a cell phone, etc. in the polling place. The most recent rules do allow phones and computers etc ,in polling places. Watchers must be able to write down identifying information about electors such as name to perform their function. These rules here are defective and definitely should not be transcribed into statute!

P 38  l 11-16 1-13.5-604 pollbook to contain list of “number on ballot” –  must be intended to mean number on ballot stub. Please correct this.

P41 l 21-27 – p 42 l 1 forms may be destroyed 45 days after election. No such destruction in uniform election code. No need for requirement of destruction. These rewuirements are only making possible misinterpretations of legislative intent in the courts.

P 42 l 9 number on ballot stub, not ballot.

P 42 l 10-26 1-13.5-606 antiquated language – double stub required, ballot must be folded, vote by marking “X” etc. Lots of antiquated language throughout the many following pages are an embarrassment. Some of the original provisions are however better for integrity than our uniform election code.

P 47 l 15-18 required ballot destruction is antiquated- not consistent with uniform election code and not needed and has been interpreted as legislative intent contrary to the purpose of CORA.

P 49 l 21-27 – p 50 line 7  1-13.5-616 ballot retention/destruction- uniform election code calls for retention for 25 months and does not require destruction.  This language requires the destruction by the antiquated methods of fire, shredding burial or ANY OTHER METHOD APPROVED BY THE GOVERNING BODY (that part is not in the uniform election code). There is no reason for required destruction at all.  The original reason was to re-use the ballot box and the time limit was 6 months. This provision conflicts with CORA 24-72-105.5

P52 l 13-18 1-13.5-705  THREE minute limit on voting except for election judge discretion?

P 53 l 10 1-13.5-708 “open the counting compartments” ANTIQUE!

1-13.5-803 allows different shape ballots for electronic voting devices- not a good idea

P 54 l 22 “punching devices” ???

P 55 l 18-20  1-13.5-806  “shall provide sufficient ballots in which an electronic voting system is used”???? How about if one is not used?

P 57 l 16-21   - 810- Three LATs required – yes, three- May be a good idea.

P 58 l 9-10 -811-  “must be under direction of DEO” is frighteningly centralized. On the other hand must be conducted under the observation of watchers”  is better than uniform election code.

I skipped pages here

P 66 l 16-19  1-13.5-1001 “any eligible elector of a local government may cast an absentee voter’s ballot” this reads as absurd if you interpret it with the double meanings.

P66 l 24 – 1002- “permanent absentee voters list” is revived for all districts in this language. That has got to be confusing for the voters in the context of 1303.

P 73 l 12-13 “verify the ballot number” is good language.

Skipping

P78-l 13 -1104- “protect the confidentiality of the ballots cast” is in conflict with 24-72-205.5

P 85 l 7-16 -1108- “election OFFICIALS  [not judges] shall receive and prepare” ballots received from election judges- and presumably control the central counting of ballots? Not a good idea at all. Election judges should control tabulation.

Shall “ensure the secrecy of the counting procedures”? What?  The procedures are public. The ballots are public once the stubs are removed. Secrecy of procedures is incorrect. Anonymity of ballots or privacy of voter intent. One or both.

-1109- “ANY write in candidate is allowed if the candidate has filed an affidavit of intent.” [eligibility for candidacy not required?]

P 86 l 21-22  challenge only by watcher or any eligible elector of the local government (this is too limited and too complicated for joined (not to say coordinated) elections by several districts.

P 87  l 19-20 -1204- “have you resided in the local government immediately preceding this election?”???? This is vague and leaves open huge gray area for uncertainty in eligibility.

No mention here of challenges of mail ballots. No mention of challenge of a rejection of eligibility.

P 89 l 4- 13  oath includes citizenship of USA, but some local governments do not require citizenship.

P89 l 24-27  -1301- canvass board entirely appointed by DEO. No independence. What if DEO is a candidate? In any case DEO will likely have been appointed by candidates.

P 91 l 1-10 – 1303 corrections- Election judges may not change decision made previously. This will severely hamper the correction of discrepancies and errors.

P 92 l 6-12 -1306- recount language here is the same defective language as in uniform election code- not good for small elections or multi candidate or with undervotes. Small elections don’t get a recount unless tie, many candidates necessarily means less likely recount. Many undervotes means less likely recount. Current language is deficient and it is inexcusable to replicate it here.

P 94 l 16-20 DEO runs recount but might be candidate or appointed by candidate? Insufficient independence from original count, no provision for additional accuracy in the recount.

P 96 l 12-16 -1402-  contestor must file bond to pay for contest in case of failure – this is a giant and deliberate obstacle to election oversight and remedy.

skipping

P101 l 14-18 22-31-101 “eligible elector means is a resident of the school district” zero days residency requirement

P 105 l 17-27 32-10-208  municipal registration requirement 22 days? But only for a within the county registration change!!!! ????

P 108 l 14 31-10-908  “confidentiality of the ballots cast?” again in conflict with 24-72-205.5

P 113 l 19-26 31-10-911 this one is written in different language- this time clerk instead of judges turns over ballots to election officials for counting- also wrong should be all done by election judges. Also language about secrecy of counting procedures is wrong. Be careful about definition of election officials- this definition may include members of the governing board.

 

P118 l 10-13  31-10-1008 challenge of absentee voter’s ballot –no means to challenge a rejection by election judges.

P 119 L 6-8 “destroyed later” inconsistent with uniform election code and there is no need for a destruction requirement.

P 120 l 24-27 challenge questions require municipal eligibility 22 days prior to the election (even if not asked on election day?) What about mail ballot returns that can be tabulated 15 days prior to election day and hence create an illegally voted ballot that cannot be removed from the election?