Preliminary Draft of Proposed Rules

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

October 13, 2017

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 November 17, 2017 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 November 9, 2017.
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 2.5.3 concerning changes to an elector’s existing voter registration record:
2.5.3	If an elector submits a change to his or her voter registration record and leaves the affiliation or ballot preference section blank, the county clerk must make no may not change to the voter’s existing affiliation or ballot preference in the registration record.
Technical amendments to Rule 2.10 concerning new voter notifications:
2.10	New voter notification under section 1-2-509(3), C.R.S. During the 22 days before an election, the county clerk must defer processing undeliverable new voter notifications. After the election is closed, the clerk must determine an applicant “not registered” under section 1-2-509(3), C.R.S., only if the applicant did not vote in the election.
Amendments to Rule 2.14.4 concerning voter registration records and data:
2.14.4	Without written authorization from the Secretary of State, the county clerk may not run or schedule to run SCORE reports or exports that include voter or election detail during regular business hours beginning 22 days before election day and from 7:00 am to 7:00 pm on election day. A county that uses an automated signature verification device may run the EXP-004 report during this time. 
Amendments to Rule 3.4.1 concerning qualified political organizations:
3.4.1	Files proof of organization with the Secretary of State by march 1 in an even numbered year;
Amendments to Rule 4.5.2(e)(3) regarding order of ballot issues: 
4.5.2	Each political subdivision must determine the order of the ballot issues for their political subdivision in accordance with the requirements of Colorado Constitution Article X, Section 20 and Title 1.
 (e)	Ballot issues from the various political subdivisions must be ordered on the ballot as provided in section 1-5-407(5), C.R.S:
(3)	Each category of local referred ballot issues and questions must be designated by a letter or a number and a letter in the following series:
1A-1Z	County Issues measures	
2A-2Z	Municipal Issues measures wholly within a county	
3A-3Z	Municipal measures greater than a county	
3A-3Z 4A-4Z	School District Issues measures wholly within a county	
5A-5Z	School District measures greater than a county	
4A-4Z 6A-6Z	Ballot Issues and Questions measures for other political subdivisions greater than a county wholly within a county	
5A-5Z 7A-7Z	Ballot Issues and Questions measures for other political subdivisions which are wholly within a county greater than a county	
New Rules 7.2.10 through 7.2.14 concerning ballots and ballot packets:
7.2.10	The mail ballot packet required under sections 1-4-101(2)(b) and 1-4-1203(4)(c), C.R.S. must contain only the ballots of each participating major political party.
7.2.11	An unaffiliated voter who wants to receive the mail ballot of a participating minor political party in the mail must declare a mail ballot preference for that party in accordance with section 1-2-204(2)(j.5), C.R.S.
7.2.12	If an unaffiliated voter selects a mail ballot preference for a major or minor political party that is not participating or that prohibits unaffiliated voters from voting in its primary election, the county clerk must send the voter the mail ballot packet described in Rule 7.2.10.
7.2.13	A voter affiliated with a Qualified Political Organization is considered an unaffiliated voter for the purposes of this Rule 7.2.
7.2.14	A voter affiliated with a political party that is not participating in the primary election will not receive a mail ballot.
Renumbering Current Rules 7.2.10 through 7.2.12 to Rules 7.2.15 through 7.2.17:
7.2.10 7.2.15	The mail ballot return envelope for each unaffiliated voter in a primary election may provide a means for the county to determine, before opening the envelope, which party’s primary election ballot the elector returned. If the mail ballot return envelope does not provide such a means, or the county cannot determine which party’s ballot the elector returned before opening the envelope, the county must follow the process outlined in Rule 7.5.13. The county’s determination under this Rule may not rely solely on a voter’s self-reported selection (for example, a checkbox).
7.2.11 7.2.16	Each mail ballot return envelope and mail ballot instruction for an unaffiliated voter in a primary election must include a statement instructing the voter to return only one ballot.
7.2.12 7.2.17	The county clerk must issue a replacement mail ballot packet to an unaffiliated elector in a primary election as follows:
(a)	If the elector has not declared a mail ballot preference, the county clerk must issue a packet containing the ballots of all participating major political parties.
(b)	If the Elector has timely declared a mail ballot preference, the county clerk must issue the elector’s preferred political party’s ballot; or upon the elector’s request, a packet containing the ballots of all participating major political parties.
Technical amendments to Rule 7.5.1 concerning receipt and processing of ballots:
7.5.1	The county clerk must adequately light all stand-alone drop-off locations and use either an election official or a video security surveillance recording system as defined in Rule 1.1.43 1.1.45 to monitor each location.
Amendments to Rule 7.17 concerning scanning elector’s signatures:
7.17	Within 90 120 days after each election day, or before the first day to conduct signature verification at the next county or municipal mail ballot election, whichever is sooner, the county clerk must scan into SCORE the elector’s signature and signature date on each accepted mail ballot return envelope and on any cure letter returned by the elector. In a presidential primary year, the deadline for scanning signatures and signature dates from all prior elections that year is extended to 120 days after the state primary election. A county that is unable to scan the signature and/or signature date into SCORE may apply to the Secretary of State for a waiver from these requirements.
Amendments to Rule 10.4 concerning canvass:
10.4	No canvass board may certify official results until authorized to do so by the Secretary of State. The Secretary of State may extend the canvass deadline for one or more counties in order to complete the risk-limiting audit in accordance with Rule 25.2. Before certifying official results, a county that conducts a comparison audit as defined in Rule 25.1.4 25.1.5 must manually adjust the preliminary results to reflect all account for discrepancies identified in the risk-limiting audit if directed by the Secretary of State.
Amendments to Rule 11.3.2(c) and (d) concerning logic and accuracy testing:
11.3.2	Logic and Accuracy Test
(c)	Preparing for the Logic and Accuracy Test
(2)	The county must convene a Testing Board of one registered elector from each of the major political parties. Testing Board members must be registered to vote in the county and be sworn in as election judges.
(d)	Conducting the Test
(4)	The Testing Board and designated election official must count the test ballots as follows, if applicable:
(C)	Ballot Marking Devices (BMDs):
(i)	The Testing Board must randomly select and test at least one BMD.
Amendments to Rule 15.1.1 through 15.1.4 concerning preparation, filing, and verification of petitions:
15.1	The following requirements apply to candidate, statewide initiative, recall, and referendum petitions, unless otherwise specified.
15.1.1	Petition template for state petitions
(a)	Petition proponents must use the Secretary of State’s fillable .pdf petition template to create their petition format.
(b)	After approval of the petition format as to form, proponents must print all petition sections in accordance with the Secretary of State’s petition-printing guidelines.
(c)	Any signature affixed to a petition section that does not conform to the requirements of this Rule 15.1.1 is not valid.
15.1.1 15.1.2	The Secretary of State or DEO will not accept or count additional signatures after proponents file the original petition or addendum.
15.1.2 15.1.3	Circulator affidavit
(a)	If a petition section does not have a completed circulator affidavit, the Secretary of State or DEO will reject the entire section.
(b)	If a petition section does not have a completed notary clause, or if the date of the notary clause differs from the date the circulator signed the affidavit, the Secretary of State or DEO will reject the entire section.
(c)	If a state candidate is curing a circulator affidavit under section 1-4-912(2), C.R.S., the candidate must use the cure affidavit provided by the Secretary of State. 
15.1.3 15.1.4	Verifying individual entries
 (d)	Secretary of State or DEO staff will reject the entry if:
(13)	The signer’s information appears outside of a numbered signature block on a petition section.
Amendments to Rule 15.5 concerning initiative petition verification:
15.5	Statewide initiative petition verification
15.5.1	Verification by random sample.
15.5.2	Preliminary count and random number generation.
(a)	After counting the entries on each petition section, Secretary of State staff will enter the petition identification number, the petition section number, the page number, and the number of entries on the page into the database.
(b) (a)	Staff will then create a record for each entry on the petition that contains the petition identification number, petition section number, page number, and the entry number. Staff will and tally the total number of entries.
(c)	If the number of entries is less than the total number of signatures required to certify the measure to the ballot, the Secretary of State will issue a statement of insufficiency.
15.5.3 (b)	Random sample. The database will generate a series of random numbers equal to 4,000 signatures or five percent of the total number of signatures, whichever is greater. Staff will check the validity of the random signatures in accordance with this Rule. Staff will maintain a master record of each accepted and rejected entry, along with the reason code for each rejected entry.
New Rule 15.7 concerning signature verification of petitions:
15.7	Signature verification on state candidate petitions
15.7.1	The Secretary of State will compare the signature on each petition entry with the elector’s signature in SCORE in accordance with the Secretary of State’s Signature Verification Guide. The Secretary of State may use an automated signature verification device.
(a)	If the signatures match and the entry is otherwise valid, the Secretary of State must accept the entry.
(b)	If upon initial review the signatures do not match, The Secretary of State must conduct further review of the entry. A team of two staff members who are not affiliated with the same political party must review the signatures, conduct additional research in SCORE if necessary, and, unless both staff members agree that the signatures do not match, accept the entry if it is otherwise valid.
[Not shown: renumbering of Rule 15.7 to 15.8]
Amendments to Rule 16.1.6 concerning military and overseas electors: 
16.1.6	The county clerk must send a minimum of one correspondence no later than 60 days before the Primary Election or Presidential Primary Election, if applicable, first primary election in an even numbered year 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:
(a)	The status of the elector’s record and ballot request;
(b)	The upcoming federal elections;
(c)	How to update the elector’s mailing information and request a ballot; and
(d)	Any other information the county clerk deems appropriate.
Amendments to Rule 16.1.7 concerning military and overseas electors: 
16.1.7	No later than 45 days before an election, the county clerk must report to the Secretary of State the number of ballots transmitted to military and overseas electors by the 45-day deadline.
Amendments to Rule 16.2.3 concerning correction of citation:
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) 52 U.S.C. sec. 20301(b)(7) and 20302(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. (Sections 1-8.3-113 and 1-8.3-114, C.R.S.)
Amendments to Rule 16.2.4 concerning electronic transmission to military and overseas electors:
16.2.4	If the county clerk transmits a ballot packet to an elector by fax or email and the transmission is unsuccessful, the county clerk must attempt to fax or email the ballot at least two more times. If electronic transmission is unsuccessful, the county clerk must mail the ballot and remove the electronic transmission flag in SCORE under Rule 16.2.1(e).
Amendments to Rule 25.2.2(g) concerning conducting the risk limiting audit: 
25.2.2	Preparing for the audit
(g)	Ballot polling audit uploads. No later than 11:59 p.m. MT on the ninth day after election day, each county conducting a ballot polling audit must submit or upload:
(1)	Its verified and hashed ballot manifest, and the ballot manifest’s hash value, by email to the Secretary of State’s office; and
(2)	Its cumulative tabulation report, by email to the Secretary of State’s office; and
(2) (3)	Its RLA tabulation results export to the Secretary of State’s election night reporting system.
Amendments to Rule 25.2.4 concerning conducting the risk limiting audit:
25.2.4	Concluding the audit. No later than the third business day following the expiration of the deadline to request a recount under section 1-10.5-107(2), C.R.S. or the completion of any recount, whichever is later, a county that conducted a comparison audit must review its CVR file and redact voter choices corresponding to any ballot card susceptible to being personally identified with an individual voter before sending it to the Secretary of State, as required by section 24-72-205.5(4)(b)(iii), C.R.S.