COLORADO SECRETARY OF STATE
8 CCR 1505-1
ELECTION RULES

Preliminary Draft of Proposed Rules

May 14, 2010

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 10, 2010, 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.  Proposed deletions from current rules are shown in stricken type.   Annotations may be included. 
New Rule 2.8.3 would be adopted as follows:
2.8.3	For the purpose of submitting voter registration applications by fax, email or online voter registration, close of business shall be 11:59pm MT. 
Rule 5.4.6 would be amended as follows:
5.4.6	The form and procedures for filing candidate nomination forms and call for nominations of persons desiring to be a candidate for the office to be voted upon at the Court-ordered election described in paragraph a of Rule 5.4.5, shall be in conformance with the form and procedures required for special districts under Article 1, Title 32, C.R.S., unless otherwise ordered by the Court.
New Rule 7.7 would be adopted as follows:
7.7	Polling Place Accessibility  	
7.7.1 	Applicability: For the purposes of this rule, “polling place location” shall include all polling places, vote centers, service centers, ballot drop off locations, and each office of the designated election official where ballots are issued or replaced.
7.7.2	Assessing accessibility 
a.	New polling place locations: In accordance with section 1-5-703(4), C.R.S., the designated election official shall assess a location using the current ADA Checklist for Polling Places survey before designating the location an official polling place.  The designated election official shall indicate on the survey any accessibility barriers and describe barrier removal plans to bring the location into compliance.  Completed surveys must be filed with the Secretary of State no later than 100 days prior to a partisan election and no later than 30 days prior to a nonpartisan election.  [Sections 1-5-102, 1-5-102.5, C.R.S., and Rule 7.3]
b.	Annual assessments: The designated election official shall reassess all current designated polling place locations using the Annual Polling Place Accessibility Survey and file this survey with the Secretary of State.  The designated election official must indicate on the survey whether the location remains or may be made accessible and describe any continued or new barrier removal plans. 
c.	Site visits: The Secretary of State’s office may conduct announced location visits to help identify accessibility barriers and promote accessibility compliance.
7.7.3	Barrier removal: If, upon assessment, a location fails to meet the minimum accessibility requirements outlined in the ADA Checklist for Polling Places, the designated election official must develop a barrier removal plan outlining the permanent and or temporary modifications that will be implemented to bring the site into compliance in order for the location to be designated an official polling place location.
7.7.4	Noncompliance: In accordance with section 1-1-107(2)(d), C.R.S., the Secretary of State may seek injunctive action or other penalties as a remedy to violations of this Rule.  Failure to assess locations and timely file complete accessibility surveys, or develop and implement necessary barrier removal plans in accordance with this Rule may result in denial of applications for accessibility grant funds.
Rule 12.1.1.1(b) would be repealed as follows:
(b)	“Failure to provide ID will result in your ballot being treated as a provisional ballot.  Provisional ballots are counted when registration is verified.”  See section 1-7.5-107(3.5)(d), C.R.S. Repealed.
[Revision in accordance with amendments made to Section 1-7.5-107, C.R.S., by HB 10-1116]
Rule 12.4.1(a) would be amended as follows:
12.4.1 Coordinated and non-partisan elections.
(a) 	Written plan. As soon as possible, but no later than 65 days prior to a regular special district election and no later than 55 days prior to any other election, not including a Primary Election, a written plan must be submitted to the Secretary of State which includes the following:
[Revision in accordance with amendments made to Section 1-7.5-105(1), C.R.S., by HB 10-1116.  Subsequent provisions of this Rule 12.4.1(a) will be retained unaltered]
Rule 12.4.2(a) would be amended as follows:
12.4.2	Primary Elections conducted as a mail ballot election.  
(a)	Written plan.  Pursuant to Article 7.5 of Title 1, C.R.S., no later than 120 days prior to the election the county clerk and recorder must submit a written plan to the Secretary of State that includes the following:
(1)	Date of the election;
(2)	Type and name of the jurisdiction involved in the election;
(3)	Citation of the statute(s) or home rule charter provisions authorizing the election;
(4)	Estimated number of eligible electors;
(5)	The address and hours of operation for all drop-off locations;
(6)	The address and hours of operation for all service centers;
(7)	Description of the procedures that will be taken to ensure that each service center complies with the requirements set forth in section 1-7.5-107, C.R.S. including the number of accessible voting machines anticipated being used at each service center For security reasons, unmonitored freestanding drop-off locations located outside will not be allowed;;
(8)	Written timetable for the conduct of the election in accordance with statute;
(9)	Indication of how postage will be handled for ballot packets returned as undeliverable (e.g. “return postage guaranteed”);
(10)	Indication of procedures to be followed to ensure compliance with statutes and rules, including persons responsible for each stage;
(11)	Description of procedures to be used to ensure ballot security at all stages of the process;
(12)	Description of procedures for maintaining privacy and security of accessible voting machines to be used;
(13)	Description of procedures to be used for signature verification;
(14)	Description of procedures to be used for ballots returned by electors who have not previously voted in Colorado and have failed to include proper proof of identification;
(1514)	Ddescription of procedures to ensure privacy by use of a secrecy sleeve or secrecy envelope so receiving judges cannot tell how the elector voted;
(1615)	Ddescription of procedures to be used to reconcile ballots issued, ballots received, defective ballots and substitute ballots; and
(1716)	Aan actual sample of the secrecy sleeve or secrecy envelope to be used in the mail ballot election.
[Revision in accordance with amendments made to Sections 1-7.5-107.3 and 1-8-114.5, C.R.S., by HB 10-1116]
Rule 12.9 would be amended as follows:
12.9	For any missing signatures Rule 29.1 concerning procedures for missing signatures shall be followed. In accordance with section 1-7.5-107.3, C.R.S., the procedures in Rule 29 shall be followed for any non-matching signature on a mail ballot return envelope that is received in a November coordinated election an election coordinated with or conducted by the county clerk and recorder.
[Revisions in accordance with amendments made to Sections 1-7.5-107.3 and 1-8-114.5, C.R.S., by HB 10-1116]
Rule 12.10.1 would be amended as follows:
12.10.1 All “drop-off locations” shall be accessible to disabled electors with disabilities.
[Revisions in accordance with the people first language requirements of HB 10-1137]
Rule 13.8 would be amended as follows:
13.8	If the marked return envelope does not contain proper identification, the ballot shall be treated as a provisional ballot.  The outside of the return envelope shall be marked "provisional".  The provisional ballot shall be verified and counted as follows:
	[Subsequent provisions of this Rule 13.8 would be retained unaltered]
Rule 14.4.4 would be amended as follows:
14.4.4	The recount board-, candidates, watchers, members of the media, and official observers will take an oath.
Rule 14.6.9 would be repealed as follows:
14.6.9	Ballots shall be reviewed for voter intent.Repealed.
Rule 14.7.3(b) would be amended as follows:
(b)	Scan and resolve all recount ballots following original election procedures, including the examination of ballots (Rule 14.3; section 1-8-10.5-102, C.R.S.).  Use the Audit Trail Report and original Scan Batch Reports with notes to ensure resolution action follows original resolution.
Rule 26.4.6 would be amended as follows:
26.4.6	When the designated election official has received both a mail-in ballot and a provisional ballot from an elector, but there is a discrepancy between the signature on the returned mail-in ballot envelope and the elector’s signature on file with the county clerk and recorder stored in the statewide voter registration system, the discrepancy must be resolved. Before the provisional ballot may be counted, the elector must affirm that the signature on the mail-in ballot envelope is not his or her signature. Section 1-8.5-105(4) and (5), C.R.S.
Rule 27.1.3 would be amended as follows:
27.1.3	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.
(a)	Damaged ballots shall include all ballots that contain a foreign substance that could potentially interfere with the optical scan machine (i.e. 	food, drink, etc.).
(b)	Damaged ballots may include ballots that are marked in a medium other than the medium indicated in the ballot instructions.
Rules 27.1.7 and 27.1.8 would be amended as follows:
27.1.7	Undervote.  An undervote occurs when the voter does not vote for a any candidate in a race, or for or against a 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.
27.1.8	Target area shall mean any of the following:
a.(a)	The square or oval opposite the candidate’s name or ballot response on a paper ballot; or
b.(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
Rule 27.3.2 would be amended as follows:
27.3.2 If a ballot contains markings for more than the maximum votes allowed in a candidate race or for a ballot measure, no vote shall count for that race, or ballot measure.
Rule 27.4.2 would be amended as follows:
27.4.2	Central Count Optical Scan Procedures
(a)	An initial review of every ballot shall be completed in order to separate damaged ballots into a unique batch.  Every damaged ballot shall be duplicated in accordance with this rule.  All damaged ballots that are manually sorted and duplicated are to be indicated as such and kept separate from the standard run ballots for the precinct.
(b)	A resolution board, consisting of a team(s) of one (1) Republican and one (1) Democrat for partisan elections or two (2) qualified election judges for nonpartisan elections, shall resolve all ballots sorted by the central count optical scan equipment.
(1)	The board shall be observed by two (2) witnesses, who in any partisan election shall be representatives of each major political party, who may not handle or process ballots.
(2)	All persons engaged in the counting and processing of ballots shall be deputized or take an oath to faithfully perform their duties.
(3)	The resolution board shall maintain a log for each step of verification, duplication, and counting.
(bc)	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 ballotsBallots sorted by the optical scan equipment 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.
(3)	A voter’s intent shall be reviewed for every ballot that requires duplication.
(34)	All ballots which are sorted by the optical scanner and resolved by the resolution board by duplication are to be indicated as such and kept separate from the standard run ballots for the precinct.
(5)	All ballots which are damaged and resolved by the resolution board by duplication are to be indicated as such and kept separate from the standard run ballots for the precinct.
(46)	The precinct judge’s ballot reconciliation form is compared to the number of scanned ballots for the precinct.
(57)	After the final precinct has been tallied, the total write-in votes shall be indicated on the final summary along with the seal numbers for each sealed box of scanned ballots.
(d)	Resolution of optical scan damaged ballots
(1)	Damaged ballots or defective ballots shall be duplicated utilizing the ballot duplication procedures as provided in Rule 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 27.6.  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 or ballot measures voted.
(3)	Overvoted ballots shall be inspected by the resolution board and resolved in accordance with Rule 27.7.
(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, in 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.
(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.
(6)	The resolution board shall maintain an official audit log setting forth the precinct number, duplicate ballot number, reason (with specificity) that the ballot was duplicated, date of duplication, and the initials of the members of the duplication board responsible for duplicating the ballot.
(de)	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) or ballot measure(s) being recounted.
(2)	Recounts will include a visual inspection of all ballots cast for write-in candidates in the contested race(s) to determine voter intent.
Rule 27.6 would be amended as follows:
27.6	Duplication of Ballots.
(a)	Using the damaged ballot as the guide, a blank ballot shall be marked by a duplicating team, so that the votes recorded are identical to those indicated on the damaged ballot, and shall be proofed to insure that is marked properly and accurately.
(b)	Every duplicated ballot shall be subject to the process for determining voter intent outlined in Rule 27.7.
(bc)	A unique number shall be assigned to both the original and duplicated ballot.  This will reference the two ballots together and provide an audit trail.  (Example:  the ballots may be marked XX-NNN, where XX is the precinct number and NNN are consecutive numbers starting with the number one.)
(cd)	The duplicate ballot shall be placed with all other ballots to be counted.   The duplicated ballots shall be counted in the same manner as all other ballots to be counted.  All duplicated ballots shall be kept separate from the standard run ballots so that the duplicated ballots are easily auditable. 
(de)	The damaged or unreadable original ballot shall be marked “DUPLICATED” to indicate that the ballot has been duplicated and the duplication is completed.  All duplicated original ballots for a precinct along with any applicable printed material shall be placed in an envelope and clearly marked “BALLOTS THAT HAVE BEEN DUPLICATED.”
Rule 27.7.1 would be amended as follows:
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 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.
Rule 27.7.4.3 would be amended as follows:
27.7.4.3	During any recount of votes and 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. 
Rule 27.8.2.1 would be amended as follows:
27.8.2.1	The transfer logs shall at minimum contain: the date of the election; the precinct number; the seal numbers; and the names of the polling place judge(s), the transfer judge(s), and the counting judge(s) who carryout the ballot transfer.
Rule 29.2 would be amended as follows:
29.2	In accordance with section 1-8-114.5, C.R.S., for mail-in ballots and section 1‑7.5‑107.3, C.R.S., for mail ballots, the election judges shall compare the signature on the self-affirmation on each respective “Return Envelope” with the signature on file with the county clerk and recorder stored in the statewide voter registration system or election official.  Signatures shall require further research if any of the following discrepancies are discovered:
[Revision in accordance with amendments made to Sections 1-7.5-107.3 and 1-8-114.5, C.R.S., by HB 10-1116.  Subsequent provisions of this Rule 29.2 will be retained unaltered]