Working Draft of Proposed Rules

Office of the Colorado Secretary of State
Election Rules
8 CCR 1505-1

May 28, 2015

Disclaimer:
In accordance with the State Administrative Procedure Act, this draft is filed with the Secretary of State and submitted to the Department of Regulatory Agencies.

This is a preliminary draft of the proposed rules that may be revised before the July 7, 2015 rulemaking hearing. If changes are made, a revised copy of the proposed rules will be available to the public and a copy will be posted on the Department of State’s website no later than July 2, 2015.

Please note the following formatting key:
Font effect	Meaning	
Sentence case	Retained/modified current rule language	
Small caps	New language	
Strikethrough	Deletions	
Italic blue font text	Annotations	

Amendments to 8 CCR 1505-1 follow:
Amendments to Rule 1.1.46(a):
1.1.46	“Watcher” has the same meaning as in section 1-1-104(51), C.R.S.
(a)	A watcher may be appointed for a recall election in the same manner as in a primary election. Watchers may be appointed for a recall election by each qualified successor candidate, the proponents and opponents of the recall ballot issue, and each participating political party for a partisan recall election. 
[The remainder of Rule 1.1.46 is retained unaltered]
Amendments to Rule 2.3 through 2.5:
2.3	When an elector registers to vote, the elector must provide a verifiable driver’s license or state identification card number, or last four digits of his or her social security number. If an elector has a driver’s license number or state identification number, he or she must provide it when registering to vote. If the elector has neither, he or she may provide the last four digits of his or her social security number. If the elector states that he or she does not have a driver’s license, state identification card number, or social security number, or if the clerk cannot verify the elector’s information in SCORE, the county clerk must register the elector and mark the registration record "ID required".
2.3.1	The county must process the Help America Vote Verification file on a monthly basis by verifying social security numbers and remove the “ID required” verified records. 
2.3.1 2.3.2	As used in section 1-1-104(19.5), C.R.S., government document means a document issued by a city, county, state, or federal government.
[The remainder of New Rule 2.3.2, formerly Rule 2.3.1, is retained unaltered]
2.3.2 2.3.3	As used in section 1-1-104(19.5)(a)(VII), C.R.S., “current” means that the date of the document is within 60 days of the date submitted for identification purposes unless the document states a longer billing cycle.
2.3.3 2.3.4	Documents issued under section 42-2-505, C.R.S., are not acceptable forms of identification for any purpose under the Uniform Election Code of 1992 and these rules.
2.4	Treatment of incomplete new registration applications where the elector fails to provide required information
[The remainder of Rule 2.4 is retained unaltered]
2.5	Changes to an elector’s existing voter registration record
2.5.1	If an elector submits a change to his or her voter registration record and fails to include the information required by sections 1-2-216 or 1-2-219, C.R.S., the county clerk must may not make the requested change unless the county clerk can confidently identify the voter establish minimum matching criteria. The If the county clerk cannot establish minimum matching criteria, the county clerk may not change the elector’s status and must notify the voter elector of the additional information that is required to process the request. 
[The remainder of Rule 2.5 is retained unaltered]
Amendments to Rule 2.7.1:
2.7	Minimum matching criteria
2.7.1	Except as provided in section 1-2-302.5, C.R.S., the county clerk must may not transfer, consolidate, or cancel a voter registration record unless the applicable minimum matching criteria as set forth in sections 1-2-603 and or 1-2-604, C.R.S., are met. If the minimum matching criteria are not met the county clerk must send a letter to the voter requesting confirmation of the missing or non-matching information in order to transfer, consolidate, or cancel the record.
[The remainder of Rule 2.7 is retained unaltered]
Amendments to Rule 2.10:
2.10	20-day applicants New voter notification under section 1-2-509(3), C.R.S.
2.10.1	When a county clerk deems determines an applicant "not registered" upon receipt of an undeliverable new voter notification in accordance with section 1-2-509(3), C.R.S., the county clerk must mail a confirmation card. The confirmation card must meet the requirements of section 1-1-104(2.8), C.R.S.
2.10.2	If the applicant returns the signed confirmation card within 90 days the county clerk must register the applicant using the date of the original application.
2.10.3	During the 22 days before an election, the county clerk must defer processing undeliverable 20-day new voter notifications. After the election is closed, the clerk must deem determine an applicant "not registered" under section 1-2-509(3), C.R.S., only if the applicant did not vote in the election.
2.12.1 2.10.4	When If after the 20-day period outlined in section 1-2-509(3), C.R.S, the United States Postal Service returns a new voter notification or confirmation card to the county clerk as undeliverable, or provides the clerk with a postcard notice of mail forwarding, the county clerk must mark the voter’s record "Inactive – returned mail" and mail a confirmation card. Where a confirmation card sent under this Rule is returned as undeliverable, the county is not required to mail another card.
[Current Rule 2.12.1 is amended and recodified as New Rule 2.10.4]
Amendments to Rules 2.12 and 2.13:
2.12	List Maintenance under section 8 of the National Voter Registration Act of 1993
2.12.1	When the United States Postal Service returns a new voter notification or confirmation card to the county clerk as undeliverable, or provides the clerk with a postcard notice of mail forwarding, the county clerk must mark the voter’s record "Inactive – returned mail" and mail a confirmation card. Where a confirmation card sent under this Rule is returned as undeliverable, the county is not required to mail another card.
[Current Rule 2.12.1 is amended and recodified as New Rule 2.10.4; subsequent rules are renumbered as follows:]
2.12.2 2.12.1	The Secretary of State will provide monthly National Change of Address (NCOA) data under section 1-2-302.5, C.R.S., to the county clerk by the fifth of each month.
[The remainder of New Rule 2.12.1, formerly Rule 2.12.2, is retained unaltered]
2.12.3 2.12.2	In accordance with section 1-2-605(7), C.R.S., no later than 90 days following a General Election, the county clerk in each county must cancel the registrations of electors:
[The remainder of New Rule 2.12.2, formerly Rule 2.12.3, is retained unaltered]
2.12.4 2.12.3	The county must process all records designated for cancelation by the Secretary of State within 21 days of receipt.
2.12.5 2.12.4	The county must process and mail all confirmation cards using SCORE so that the elector’s voter registration record audit log shows the date on which the county printed or extracted the confirmation card.
2.12.6 2.12.5	To the extent a county has records of confirmation cards it has generated and sent outside of SCORE, the county must retain those records as election records under section 1-7-802, C.R.S.
2.13	Voter registration at a voter service and polling center
2.13.1	A person registering voters or updating voter registration information in a voter service and polling center must:
(a)	Be an election judge, a permanent or temporary county employee, state employee, or temporary staff hired by the county clerk;
(b)	Successfully pass the criminal background check described in Rule 6.5; and
(c) (b)	Complete a training course provided by or approved by the Secretary of State.
[Current Rule 2.13.2 is retained unaltered]
New Rule 4.3.3:
4.3.3	In any odd-year November coordinated election in which there is a statewide issue on the ballot, the canvass board members must be appointed in accordance with section 1-10-101, C.R.S.
Amendments to Rule 6.4 and repeal of Rule 6.5:
6.4	A supervisor judge in a voter service and polling center must:
6.4.1	Successfully pass the criminal background check described in Rule 6.5. Any person who has been convicted of an election offense or an offense with an element of fraud is prohibited from handling voter registration applications or conducting voter registration and list maintenance activities.
6.4.2	Complete complete a training course provided by approved by the Secretary of State.
6.5	The county clerk must arrange for a criminal background check on a supervisor judge and each staff member conducting voter registration activities.
(a)	The criminal background check must be conducted by or through the Colorado Bureau of Investigation, the county sheriff’s department in accordance with section 24-72-305.6(3), C.R.S., or similar state or federal agency.
(b)	A person convicted of an election offense or an offense containing an element of fraud may not:
(1)	Handle voter registration applications or conduct voter registration and list maintenance activities; or
(2)	Have access to a code, combination, password, or encryption key for the voting equipment, ballot storage area, counting room, or tabulation workstation.
Repeal of Rule 7.2.3(c) concerning ballots and ballot packets:
(c)	In coordinated elections, the county clerk must mail ballots to all active eligible electors of each political subdivision.
Amendments to Rules 7.2.5 through 7.2.7: 
7.2.5	Effective January 1, 2015, each Each mail ballot return envelope and mail ballot instruction must include a statement informing voters that it is a violation of law to drop off more than ten ballots receive more than ten ballots for mailing or delivery in any election.
7.2.6	Effective January 1, 2015, each mail ballot return envelope must include the following: “For third party delivery: I am voluntarily giving my ballot to (name and address) for delivery. I have marked and sealed my ballot in private and have not allowed any person to observe the marking of the ballot, except for those authorized to assist voters under state or federal law.”
7.2.6 	Effective January 1, 2016, each mail ballot return envelope must include the following: “I am voluntarily giving my ballot to (name and address) for delivery on my behalf.”
7.2.7	A county must issue a mail ballot to any eligible elector who requests one in person at the county clerk’s office beginning 32 days before an election. [Section 1-7.5-107(2.7), C.R.S.]
Amendments to Rule 7.5.1:
7.5	Receipt and processing of ballots
7.5.1	All The county clerk must adequately light all stand-alone drop-off locations must be monitored by and use either an election official or a video security surveillance recording system, as defined in Rule 20 1.1.42 to monitor each location.
[The remainder of Rule 7.5.1 and Rules 7.5.2 through 7.5.4 are retained unaltered]
Amendments to Rule 7.5.5: 
7.5.5	Election officials must record the number of ballot packets returned as undeliverable and receive the ballot packets in SCORE upon receipt.
Amendments to Rule 7.7:
7.7	Missing signature.
7.7.1	If a mail or provisional ballot return envelope lacks a signature, the election official must contact the elector in writing no later than two calendar days after election day. the county clerk must follow the procedures for discrepant signatures outlined in section 1-7.5-107.3(2)(a), C.R.S., except as provided in Rule 7.7.4.  
7.7.2	The designated election official county clerk must use the letter and form prescribed by the Secretary of State and keep a copy as part of the official election record. 
7.7.3	Nothing in this Rule prohibits the designated election official county clerk from calling the elector, but a phone call may not substitute for written contact. If the designated election official county clerk calls any elector he or she must attempt to call all electors whose affidavits are unsigned.
7.7.4	If an elector fails to cure a missing signature, the county clerk need not send a copy of the mail ballot return envelope to the district attorney for investigation. 
[Sections 1-7.5-107.3 and 1-8.5-105(3)(a), C.R.S.]
7.7.2	The letter must inform the elector that the elector must sign the affidavit and return the form in person or by mail, fax, or email, and that the county must receive the form no later than eight calendar days after the election.
7.7.3	The election official must use the letter and the signature verification form approved by the Secretary of State. The letter and missing signature affidavit form does not violate section 1-13-801, C.R.S.
Amendments to Rule 7.9.3:
7.9.3	Voter check-in at the voter service and polling center
(a)	Each voter service and polling center must include an adequately staffed designated voter check-in table or area.
(b)	The check-in judge must verify each elector’s registration information, including address.
(c)	If an elector has moved or is not registered, the check-in judge must direct the elector to the registration area. If the elector is registered and has no updates, the check-in judge must direct the elector to the voting table. In order to assist applicants and electors efficiently, a county clerk must configure voter service and polling centers to provide: sufficient election judges, SCORE work stations, voting equipment, and ballots and other supplies.
Amendments to Rule 7.11:
7.11	Voter service and polling center connectivity
7.11.1	The county must have real-time access to SCORE and WebSCORE at every voter service and polling center designated by the county clerk.
7.11.2	The county clerk must instruct election judges and, if appropriate, election staff, to: 
(a)	Use WebSCORE to register voters; update existing voter registrations; issue and replace mail ballots; and issue, spoil, and replace in-person ballots: and 
(b)	Offer an in-person voter the opportunity to obtain a replacement mail ballot rather than a provisional ballot in the event the voter service and polling center loses connectivity to WebSCORE but retains connectivity to SCORE. 
7.11.2 7.11.3	At no time may an election official open simultaneous sessions of both the SCORE voter registration screen and the voting module WebSCORE on a single workstation. 
7.11.3 7.11.4	Every voter service and polling center designated by the county clerk must meet the minimum security procedures for transmitting voter registration data as outlined in section 1-5-102.9, C.R.S., and Rule 2.16.
Amendments to Rule 11.1.3 concerning voting system access:
11.1.3	In accordance with section 24-72-305.6, C.R.S., all permanent and temporary county staff and all vendor staff who have access to the voting system or any voting or counting equipment must pass the a criminal background check described in Rule 6.5. A person convicted of an election offense or an offense containing an element of fraud may not have access to a code, combination, password, or encryption key for the voting equipment, ballot storage area, counting room, or tabulation workstation. 
Current Rule 16.1.5, concerning voting by military and overseas electors, is repealed and subsequent rules are renumbered as follows:
16.1.5	In accordance with sections 1-8.3-111 and 1-8.3-113, C.R.S., all ballots cast must be voted and mailed or electronically transmitted no later than 7:00 p.m. MT on election day, and received by the county clerk or the Secretary of State no later than the close of business on the eighth day after election day.
16.1.6 16.1.5	Ballots received by the Secretary of State
[The remainder of New Rule 16.1.5, formerly Rule 16.1.6, is retained unaltered]
16.1.7 16.1.6	The county clerk must send a minimum of one correspondence no later than 60 days before the Primary Election to each elector whose record is marked “Inactive.” The correspondence may be sent by email or mail and, at a minimum, must notify the electors of:
[The remainder of New Rule 16.1.6, formerly Rule 16.1.7, is retained unaltered]
16.1.8 16.1.7	No later than 45 days before an election, the county clerk must report to the Secretary of State the number ballots transmitted to military and overseas electors by the 45-day deadline.
16.1.9 16.1.8	Failure to meet the 45-day ballot transmission deadline in section 1-8.3-110, C.R.S.
[The remainder of New Rule 16.1.8, formerly Rule 16.1.9, is retained unaltered]
Amendments to Rule 16.2.1(c), concerning electronic transmission for military and overseas electors:
(c)	In accordance with section 1-8.3-113(1), C.R.S., an elector who chooses to receive his or her unvoted ballot by online ballot delivery electronic transmission may return his or her ballot by fax or email only if the elector determines that a more secure method, such as returning the ballot by mail, is not available or feasible. “Not feasible” means circumstances where the elector believes the timely return of his or her ballot by mail is not certain. 
Amendments to Rule 16.2.3:
16.2.3	The self-affirmation must include the standard oath required by the Uniformed and Overseas Citizen Voting Act (42 U.S.C sec. 1973ff(b)(7) and 1(a)(5)), the elector’s name, date of birth, signature, and the following statement: I also understand that by returning my voted ballot by electronic transmission, I am voluntarily waiving my right to a secret ballot and that Colorado law requires that I return this ballot by a more secure method, such as mail, if available and feasible. (Section Sections 1-8.3-113 and 1-8.3-114, C.R.S.)
New Rule 16.2.8:
16.2.8	Nothing in this Rule 16.2 permits internet voting. Internet voting means a system that includes remote access, a vote that is cast directly into a central vote server that tallies the votes, and does not require the supervision of election officials. 
Amendments to Rule 20.4:
20.4	Individuals with access to keys, door codes, and vault combinations
20.4.1	For employees with access to areas addressed in Rule 20.4.3, the county must state in the security plan each employee’s title and the date of the criminal background check was performed under Rule 6.5. [Section 24-72-305.6, C.R.S.]
[Current Rule 2.4.2 is retained unaltered]
20.4.3	Employee access. The county may grant employees access to the codes, combinations, passwords, and encryption keys described in this Rule in accordance with the following limitations:
(a)	Access to the code, combination, password, or encryption key for the voting equipment, ballot storage areas, counting room, or tabulation workstations is restricted to employees who have successfully passed the a criminal background check described in Rule 6.5. Any person who has been convicted of an election offense or an offense with an element of fraud is prohibited from having access to a code, combination, password, or encryption key for the voting equipment, ballot storage areas, counting room, or tabulation workstations.
[Current Rules 20.4.3(b), 20.4.3(c), and Rule 20.4.5 are retained unaltered]
Amendments to Rule 20.9.1(c), concerning transportation of equipment, memory cards, ballot boxes, and ballots:
(c)	Transportation by contract. If a county contracts for the delivery of equipment to remote voting locations, each individual delivering equipment must successfully pass the a criminal background check described in Rule 6.5. Any person who has been convicted of an election offense or an offense with an element of fraud is prohibited from handling or delivering voting equipment. Two election officials must verify, sign, and date the chain-of-custody log upon release of the equipment to the individual(s) delivering the equipment.
New Rule 23:
Rule 23. 	Commissions 
23.1	Bipartisan Election Advisory Commission 
23.1.1	The Secretary of State finds and declares that open discussion about the administration and conduct of elections in Colorado is necessary to ensure that every eligible citizen has the opportunity to participate in fair, accessible, and impartial elections, and has the assurance that elections are conducted with integrity and his or her vote will count. Because the Colorado General Assembly discontinued the Colorado Voter Access and Modernized Election Commission, the Secretary of State will establish a Bipartisan Election Advisory Commission (the Commission) to identify processes for improvement and work to obtain bipartisan support in the administration of elections. The Commission will make recommendations to the Secretary of State regarding the development and implementation of best practices, administrative rules and suggestions for legislation.
23.1.2	Membership of the Commission
(a)	The Secretary of State will appoint at least 13 members to the Commission. The Commission may include: 
(1)	A Representative of an organization that advocates on behalf of people with disabilities;
(2)	A member of the executive branch and at least one legislator from each party;
(3)	Two County clerk and recorders representing the Colorado County Clerks Association presidential line of leadership;
(4)	If both clerks in (3) are from the same party or if not all counties are members of the CCCA, additional clerks may be appointed;
(5)	Two representatives of organizations that advocate on behalf of local governments, including counties, municipalities, and special districts;
(6)	Chair, party officer, or legal counsel for each major political party; and
(7)	Two members with expertise on voting rights and/or election integrity.
(b)	The Secretary of State or his or her designee, will be a member and serve as chair of the Commission.
(c)	The Secretary of State’s office will provide staff support to the Commission as may be directed by the Secretary of State.
23.1.3	Meetings
(a)	The Commission must meet no fewer than three times annually.
(b)	The meetings will be held at the office of the Secretary of State or regional locations throughout the state as the Commission determines appropriate.
(c)	Meetings must comply with Colorado Open Meetings Law and will permit an opportunity for public comment.
(d)	Notices, records of meetings, written comments, and documents submitted to the commission will be published on the official website of the Secretary of State. documents that are otherwise publicly available need not be posted. Any submission containing inflammatory or otherwise inappropriate content will not be posted, including any material that is defamatory, irrelevant, duplicative, or obscene.