COLORADO SECRETARY OF STATE
8 CCR 1505-1
ELECTION RULES

Preliminary Draft of Proposed Rules

May 30, 2008

Disclaimer:  This draft is not yet final.  The proposed changes to be considered at the public rulemaking hearing may be different than the proposed changes in this draft.  This draft is submitted to the Department of Regulatory Agencies for the purpose of complying with section 24-4-103(2.5), C.R.S., which requires that a draft be submitted to the Department at the time that a notice of proposed rulemaking is filed with the Secretary of State.

A final copy of the proposed rule changes will be available to the public no later than June 25, 2008, and a copy will be posted on the Department of State’s web site, in compliance with the requirement of section 24-4-103(4)(a), C.R.S., that “[a]ny proposed rule or revised proposed rule by an agency which is to be considered at the public hearing . . . shall be made available to any person at least five days prior to said hearing.”

Proposed additions to the current rules are reflected in small caps or underlined.  Proposed deletions from current rules are shown in stricken type.   Annotations may be included.
Rule 2.5.3 would be amended as follows:
2.5.3	A voter making an address change within the same county shall not be charged an additional processing fee.
Rule 2.12 would be amended as follows:
2.12.3	Pursuant to section 24-21-208(3)(a), C.R.S., the designated election official shall:
2.12.3.1	Use the actual address of a program participant for precinct designation and shall keep the participant’s address, county, and voting precinct number confidential.
2.12.4	Access to ACP participant’s voter registration records is restricted pursuant to section 24-21-208(3) (b), C.R.S., as follows:
2.12.4.1	An ACP participant’s actual address, county, and voting precinct number shall be masked from any public record that is required to be made, maintained, or kept pursuant to sections 1-2-227 and 1-2-301, C.R.S., and shall automatically be confidential in accordance with the provisions of section 24-72-204(3.5), C.R.S., except that the exceptions to such confidentiality set forth in section 24-72-204(3.5) (c), C.R.S., shall not apply to a program participant.
New rule 2.14 would be adopted as follows:
2.14	In accordance with section 1-2-508, C.R.S., the effective date of a mail voter registration application received at the office of the Secretary of State shall be the date of the postmark or receipt by the office of the Secretary of State, whichever is earlier.
Rule 8.1.2 would be amended as follows:
8.1.2	“Watcher” shall mean an eligible elector, in the State of Colorado, other than a candidate on the ballot who has been selected by a political party chairperson on behalf of the political party, by a party candidate at a primary or recall election, by an unaffiliated candidate at a general, congressional vacancy, or nonpartisan, or recall election by a person designated by either the opponents/proponents in the case of a ballot issue or ballot question.  If selected by a political party chairperson, a party candidate, or an unaffiliated candidate, the watcher shall be affiliated with that political party or unaffiliated as shown on the registration books of the county clerk and recorder.  A designated watcher need not be a resident of the county he or she is designated in as long as he or she is an eligible elector in the State of Colorado.  See section 1-1-104(51), C.R.S.
Rule 8.7.1 would be adopted as follows:
8.7.1	To the extent possible, watchers shall be allowed physical, visual, and auditory access when observing the election process.
Rule 8.9 would be amended as follows:
8.9	Appointment of watchers
8.9  8.9.1	Parties May Appoint Watchers. Major and minor political parties with candidates on the ballot may appoint one Watcher each to be present to observe polling place voting, early voting, and the processing and counting of regular, provisional, mail and mail-in ballots.  See sections 1-7-105 and 1-7-106, C.R.S.
8.9.2	Issue Committees May Appoint Watchers.  Issue committees supporting or opposing a ballot measure may appoint one Watcher  each to be present to observe polling place voting, early voting, and the processing and counting of regular, provisional, mail and mail-in ballots.
New rules 8.14, 8.15, 8.16, and 8.17 would be adopted as follows:
8.14	A designated election official shall certify the appointment of all eligible watchers duly designated by a political party, candidate or committee pursuant to sections 1-1-104(51), 1-7-105, 1-7-106, or 1-7-107, C.R.S.
8.15	Removal of watchers.  Watchers who commit, encourage, or connive in any fraud in connection with their duties, who violate any of the election laws, who violate any of these Rules, who violate their oath, or who hamper or interfere with the election process may be removed by the designated election official.
8.15.1	If a watcher is removed, the designated election official shall immediately inform the political party, candidate, or committee who appointed the watcher via telephone, email, and/or other means.
8.15.2	A removed watcher may be replaced by an alternate watcher duly designated pursuant to sections 1-7-105, 1-7-106, or 1-7-107, C.R.S.  Any designated election official who removes a watcher shall, to the best of his/her ability, facilitate the expeditious replacement of a removed watcher.
8.16	Watchers may be designated to observe more than one precinct or polling place but in no event shall more than one watcher be designated for any single polling place.  See section 1-7-106, C.R.S.
8.17	Watchers may be appointed to observe recall elections held pursuant to article 12, title I, C.R.S. and shall be designated in accordance with sections 1-7-106 and 1-7-107, C.R.S.
Rule 12.4.11 would be amended as follows:
12.4.11	All return envelopes used in a mail ballot election coordinated by the county clerk and recorder shall may be formatted in such a manner that the voter’s signature on the back of the envelope is concealed.
[Sections 1-7.5-106 and 1-7.5-107, C.R.S.]
a.	Any county may apply to the Secretary of State for an exemption to this requirement by submitting a written application based on hardship or other good cause shown.  
b.	All applications for an exception shall include a statement of the hardship or good cause for which the exception is sought.  The Secretary of State shall have ten (10) business days to approve or disapprove an application for such exemption.
Rule 13.17 would be amended as follows:
13.17	All return mail-in ballot envelopes used in an election coordinated by the county clerk and recorder shall may be formatted in such a manner that the voter’s signature on the back of the envelope is concealed. 
13.17.1	Any county may apply to the Secretary of State for an exemption to this requirement by submitting a written application based on hardship or other good cause shown.  
13.17.2	All applications for an exception shall include a statement of the hardship or good cause for which the exception is sought.  The Secretary of State shall have ten (10) business days to approve or disapprove an application for such exemption.
Rule 26.4.4 would be amended as follows:
26.4.4	Verification of an elector’s eligibility to have his or her provisional ballot counted shall be limited to the following sources to determine proof of voter registration:
(a)	Sources provided by the Secretary of State or law enforcement agencies regarding felons who are serving a sentence of detention or confinement or on parole;
(b)	The local election office voter registration database;The State of Colorado Statewide Voter Registration Database;
(c)	The Secretary of State’s voter registration database;
(d)(c)	The DMV Motor Voter database (Note: Possession of a driver’s license is not conclusive proof of voter registration; elector must have registered to vote through the DMV.)
Rule 27.1 would be amended as follows:
27.1.1	Ballot Measure.  As used in this Rule 27, ballot measure shall mean a ballot issue or ballot question as defined in sections1-1-104 (2.3) and 1-1-104 (2.7), C.R.S.
27.1.127.1.2	Blank Ballot.  A blank ballot is one on which the voter has made no marks in any voting position, or has been marked with an unreadable marker, or is one which has been consistently marked outside of the “read” area of the scanner.
27.1.227.1.3	Damaged Ballot.  A damaged ballot is one that has been torn, bent, or otherwise mutilated or rendered unreadable, so that it cannot be processed by the optical scanner ballot reader.
27.1.327.1.4	Duplicated Ballot.  A duplicated ballot is one for which a true copy is made in order to be properly processed and counted due to damage, improper marking or some other reason which would prevent a ballot tabulating machine from accurately counting the ballot.
27.1.427.1.5	Duplicated Provisional Ballot.  A duplicated provisional ballot includes ballots duplicated for federal and state issues ballot measures for which a provisional voter is eligible to vote.
27.1.527.1.6	Overvote.  An overvote is a race, question or issue or ballot measure which contains votes for more than the maximum number of candidates or responses for a ballot question or issue  measure allowed.
27.1.627.1.7	Undervote.  An undervote occurs when the voter does not vote for a any candidate in a race, or for or against a question, or issue ballot measure, or, when more than one person in a race is available, the voter does not vote for the maximum number of votes allowed.
[Existing rule 27.1.7 would be relocated as new Rule 27.4.3.]
27.1.7	Vote in Optical Scan Ballots.  A correctly voted optical scan ballot occurs when a voter, using a readable marker, fills in or connects the minimum number of ovals/arrows per race, question, or issue, not to exceed the maximum allowable votes per race, question or issue, without extending the vote mark beyond the parameters of the instructions.
27.1.927.1.8	Target area shall mean any of the following:
a.	The square or oval opposite the candidate’s name or ballot response on a paper ballot; or
b.	The oval, incomplete line, or incomplete arrow opposite the candidate’s name or ballot response (examples: “Yes”, “No”, “For” or “Against”) on an optical scan ballot
27.1.827.1.9	Write-In Vote.  A vote on a ballot on which the voter physically writes in the name of a legally qualified write-in candidate in the space reserved on the ballot for write-in votes and properly marks the oval or connects the arrow on optical scan ballots according to the directions provided to the voter.
Rule 27.2 would be amended as follows:
27.2	Multiple Page Ballots.  In any election where a multiple page printed ballot is used, a voter must vote and return all pages of the ballot at the same time.   Any voter who has returned at least one page of a multiple page printed ballot will be considered to have voted and the votes on the submitted page(s) shall be counted.  Any additional page returned at a later time shall not be counted but shall be appropriately marked, set aside, and preserved as other election materials in accordance with section 1-7-802, C.R.S.  
Rule 27.3 would be amended as follows:
27.3.1	Judges counting ballots on election day shall take into consideration the intent of the voter in accordance with Rule 27.7.
27.3.2	If a ballot contains markings for more than the maximum votes allowed in a candidate race or for a ballot issue or question measure, no vote shall count for that race, question, or issue or ballot measure.  Judges shall take into consideration any notation by the voter that would clearly indicate the choice of the voter.
27.3.3	If an issue, question or a candidate race or ballot measure contains no markings by the voter, no tally will be made for that race, question, or issue or ballot measure, but all other candidate races, issues, or questions or ballot measures properly marked by the voter on the ballot shall be counted.
27.3.4	A ballot which has no markings for any candidate races, issues or questions or ballot measures shall be tallied as a blank ballot, but the voter shall be given credit for voting.
27.3.5	If the intent of the voter is clear on a write-in vote, the write-in vote shall be counted for a legally qualified candidate.
Rule 27.4.2 would be amended as follows:
27.4.2	Central Count Optical Scan Procedures
(b)	Sequence of Resolution Procedures
(1)	A zero tape shall be run indicating no votes cast or counted before the counting begins.
(2)	Official ballots shall be processed through the optical scanner, with sorted overvotes, blank ballots, and write-in ballots viewed and resolved by the resolution board.  Only ballots sorted by the optical scan equipment machine shall be subject to review by the resolution board.  A voter’s intent shall not be reviewed or determined upon initial counting of ballots unless such ballot is sorted by the optical scan equipment.  If there are no legally qualified write-in candidates, the write-in sort option shall not be utilized.  The number of each duplicated ballot shall be entered on the resolution board log sheet.
(c)	Resolution of optical scan ballots
(1)	Damaged or defective ballots shall be duplicated utilizing the ballot duplication procedures as provided in Rule 27.4.2(c)(5)27.6.
(2)	Blank ballots shall be examined by the resolution board to determine if the ballot is a true blank ballot or one that has been marked with a non-detectable mark.  Resolution board members must make a duplicate copy of the ballot which has been marked with a non-detectable mark utilizing the ballot duplication procedures as set forth in Rule 27.4.2(c)(5) 27.6.  If a ballot is truly blank it shall be sent back for the resolution pass through the scanner, and the ballot tabulated with no races, issues or questions or ballot measures voted.
(3)	Overvoted ballots shall be inspected by the resolution board and resolved in accordance with Rule 27.7.  Ballots that reflect marks that are clearly identified as unintentional but register an overvote on the scanner must be duplicated by the resolution board utilizing the procedures for duplication of ballots.  If more marks are completed in a race, question, or issue than what is allowed for that race, question, or issue the duplication board can only duplicate if there is a notation by the voter that would clearly indicate the choice of the voter.
(4)	Write-in votes sorted by the optical scan equipment on election day shall be delivered to the assigned write-in board for hand counting.  During the initial ballot count, Inin order to be counted, the oval must be darkened or the arrow connected according to the appropriate voting instructions.  Only votes for legally qualified write-in candidates shall be counted.  When a race with a valid write-in is overvoted and the duplication board finds that a mark has been made for a valid candidate and the voter also wrote in the name of the same candidate on the write-in line and made a mark, the duplication board shall duplicate the ballot by making a mark by the name of the candidate printed on the ballot.
(5)	The resolution board shall duplicate ballots by clearly labeling the new duplicate ballot as a “DUPLICATE” and assign a serial number which shall be recorded on both the original and duplicate ballot.  For example, the first ballot in Precinct # 1 to be duplicated could be labeled as #1/001 with the duplicate labeled D#1/001.  Original ballots shall be separated from the duplicate ballots and placed in an envelope clearly marked “ORIGINAL BALLOTS.”  The duplicate ballots shall be counted in lieu of the original ballots.
(d)	Recount Procedures for Optical Scan
(1)	Optical scan equipment must be set to consistent sensitivity standards for each system type, must be tested prior to the recount, and shall be programmed to sort undervotes for the individual race(s), issue(s) or question(s) or ballot measure(s) being recounted.
New rule 27.4.3 would be adopted as follows:
27.4.3	Vote on Optical Scan Ballots.  A correctly voted optical scan ballot occurs when a voter, using a readable marker, fills in or connects the minimum number of ovals/arrows per race or ballot measure, not to exceed the maximum allowable votes per race or ballot measure, without extending the vote mark beyond the parameters of the instructions.
New rule 27.5 would be adopted as follows:
27.5	Uniform Counting Standards for DREs.  A vote that is properly recorded, as specified by the voting instructions, on the voting device for an office or ballot measure shall be counted.
[Succeeding rules will be renumbered]
New rule 27.7 would be adopted as follows:
27.7	Determination of Voter Intent
27.7.1	If a voter uses a consistent alternate ballot marking method that deviates from the method specified by the voting instructions (such as circling or placing a check mark behind a candidate’s name or ballot response) and does not place an “X”, check or other appropriate mark in the target area(s), the voter will be considered to have voted for the appropriate candidates and or ballot responses and the ballot shall be duplicated; except that, If a voter marks any of his/her choices by placing an “X”, check or other appropriate mark in any target area on the voter’s ballot, only those choices where the target area has been marked shall be counted.
27.7.2	A ballot that has a mark in the target area that partially extends into another target area or areas shall not be counted for that office or ballot measure.
27.7.3	A ballot that has any mark, other than a stray mark,  in the target area that partially extends into an area surrounding a candidate or ballot response, other than its target area, shall be counted as a vote for the candidate or ballot response so marked.
27.7.4	When resolving an overvoted race, marks indicating the voter’s intent shall include, but not be limited to, circling the candidate’s name and strike-outs or corrections of choices.
27.7.5	Write-in votes
27.7.5.1	If a voter designates a vote for a named candidate on the ballot and writes in the name of the same candidate in the write-in area, the vote shall be counted.
27.7.5.2	If a voter designates a named candidate on the ballot and writes in the name of a different candidate in the write-in area, it shall be considered an overvote for that office if the number of chosen candidates exceeds the number permitted to be voted for in that office and no vote shall be counted.
27.7.5.3	During any recount of votes or during the initial count for hand-counted paper ballots pursuant to section 1-7-305, C.R.S., the written name of a write-in candidate in the write-in space shall be counted whether or not the target area designating the selection of a write-in candidate has been marked, provided that the number of candidates chosen does not exceed the number permitted in that office.
New rule 27.8 would be adopted as follows:
27.8	Written Plan for Alternative Counting Method
27.8.1	General Information Concerning Plan Submittal
27.8.1.1	In accordance with section 1-7-603, C.R.S., as soon as possible, but no later than sixty (60) days prior to an election, if a designated election official wishes to implement an alternative counting method, the a designated election official may submit a written plan delineating the alternative counting location or the alternative counting method to the Secretary of State.
27.8.1.2	The Secretary of State shall approve or disapprove the alternative counting plan no later than forty-five (45) days before the election at which the plan is to be implemented.
27.8.1.3	No alternative counting plan may be implemented without express written approval from the Secretary of State.  Any submitted plan must establish minimum procedures in accordance with the requirements of this Rule 27.8.
27.8.2	Transfer Logs
27.8.2.1	The transfer logs shall at minimum contain: the date of the election; the precinct number; the names of the polling place judge(s), the transfer judge(s), and the counting judge(s) who carryout the ballot transfer; the total number of ballots transferred from the ballot box to the transfer case and from the transfer case to the counting location.
27.8.2.2	There shall be a total of four (4) copies of each transfer log for each transfer from a polling place: one (1) copy of the transfer log shall remain in the possession of a polling place judge to be transported with all other election materials after the close of the polls; one (1) copy of the transfer log shall remain with the transfer case; one (1) copy of the transfer log shall remain at the counting location; and one (1) copy shall be mailed  by a polling place judge at the nearest post office or post-office box to the designated counting center.
27.8.3	Procedures to be Followed at the Polling Place
27.8.3.1	Each polling place shall have available for use a minimum of two (2) ballot boxes to ensure that at least one (1) ballot box is always available to receive voted ballots.
27.8.3.2	At time of ballot transfer, a bipartisan team of at least two (2) transport judges and one (1) polling place judge shall transfer ballots in accordance with the following provisions:
27.8.3.2.1	In full view of the bipartisan team of transport judges, the polling place judge shall remove the seal from the ballot box, open the ballot box, remove the voted ballots from the ballot box, deliver the voted ballots to the transfer judges, close the ballot box, and affix a new seal on the ballot box. The new seal number on the ballot box shall be appropriately noted and recorded.
27.8.3.2.2	In full view of the polling place judge, the transport judges shall count the number of ballots to be transported, and complete the transfer log in triplicate by providing all information requested on the transfer log.  
27.8.3.2.3	In full view of the polling place judge, the transport judges shall place the voted ballots into the transfer case.  
27.8.3.2.4	Both transfer judges and the polling place judge shall review the transfer logs to ensure that all information is complete and accurate.  When all information is complete and accurate, both transfer judges and the polling place judge shall initial all copies of the transfer logs.
27.8.3.2.5	In full view of the polling place judge, the transfer judges shall secure the transfer log that is to remain with transfer case to the exterior of the transfer case.  The transfer judges shall then seal the transfer case in such a way as to prevent tampering with the case or its contents.  The seal number of the seal to be used shall be noted on the transfer logs prior to sealing the transfer case.
27.8.3.2.6	At the close of the polls, the duplicate copies of the polling place transfer log(s) shall be mailed at the nearest post office or post-office box by a polling place judge to the designated election official.
27.8.3.2.7	Duly appointed watchers may be present and observe all aspects of the ballot transfer and reconciliation process described in this Rule 27.8.3.
27.8.4	Procedures to be Followed During Transport
27.8.4.1	During ballot transport, the sealed ballot transfer case shall be within the close physical proximity of the bipartisan team of transfer judges at all times.
27.8.4.2	Delivery of the sealed ballot transfer case to the counting location shall be made at once and with all convenient speed.  However, nothing in this Rule 27.8.4.2 shall be interpreted to prohibit transfer judges from stopping at multiple polling places before arriving at the counting location.
27.8.5	Procedures to be Followed at the Counting Location
27.8.5.1	Upon arrival at the counting location, the bipartisan team of transfer judges shall deliver the sealed ballot transfer case to the designated election official or counting judges.
27.8.5.2	The designated election official or counting judges shall note delivery and take possession of each ballot transfer case delivered by the transfer judges.  
27.8.5.3	Upon reviewing the transfer logs to ensure that the seal is in tact and that the ballot transfer case contains the proper number of ballots, the designated election official or counting judges may begin processing and counting the voted ballots pursuant to statutory counting procedures.
27.8.6	Official Canvass of Votes
27.8.6.1	Nothing in this Rule 27.8 shall relieve the designated election official of the requirements of Rule 41.
27.8.6.2	Prior to certifying the official abstract of votes cast, the canvass board shall compare the transfer logs from the polling place, transfer judges, and counting center to ensure that all ballots are accounted for.
New Rule 29.12 would be adopted as follows:
Rule 29.12	Use of Signature Verification Devices 
29.12.1	A county clerk and recorder who chooses to use a signature verification device to process mail-in or mail ballots in accordance with sections 1-7.5-107.3 or 1-8-114.5, C.R.S., shall conduct acceptance testing on the device prior to its use in an election.
29.12.2	The acceptance testing conducted in accordance with this rule shall be sufficient to verify the accuracy of the device.  The acceptance testing shall ensure that the device will not accept a signature that a reasonable, trained election judge would reject.
New rule 49 would be adopted as follows:
Rule 49.  Rules Concerning Voter Information Reports for the Purposes of Section 24-72-202, C.R.S.
49.1	Custodianship of Voter Registration Information
49.1.1	The Secretary of State shall be the official custodian of the information contained in the centralized statewide registration system and the computerized statewide voter registration list created and maintained pursuant to section 1-2-301, C.R.S.
49.1.2	The county clerk and recorder for each county shall be the official custodian of the voter registration information only for electors within that county.
49.2	Voter Information Report
49.2.2	The Secretary of State shall charge fees for voter information reports pursuant to section 24-21-104(3), C.R.S.
49.2.2	The county clerk and recorder of each county may charge fees for county voter information reports.  However, fees shall not exceed county direct and indirect costs for providing such reports.