Senator Hill’s HB1130: neither Senate nor House versions deserve adoption — too technical for conference committee repair

The following to Colorado Senators and the Secretary of State are comments in [brackets] by Harvie Branscomb on texts extracted from a memo signed by Secretary of State Wayne W. Williams concerning HB 15-1130.

Recommend lay over the consideration of House and Senate versions of Senator Hill’s HB15- 1130 until after Sine Die.

The three Senate amendments in current form are far from ideal. The Senate version of the bill is not much more workable than the House version. Neither contains appropriate accountability that is necessitated by the lack of SOS rules for Title 31 elections. Both remain vague and unimplementable in a consistent way without judicial intervention. Neither House nor Senate version should be adopted. This bill requires a re-write for a future session with appropriate expertise brought to bear.A bill on election watching was PI’d for similar reasons earlier and a stakeholder committee set up. Why not for this topic too?

Ideally Coloradans will benefit from an adoption of an updated CRS 1-8.3 that will apply to all elections uniformly with the help of SOS rules. That is not the effect of HB15-1130.

Thanks for your consideration of my comments as much as the SOS appreciates your consideration of his.

Harvie Branscomb [this Senate version is improved over the original version sent to the House]

April 17, 2015

The Honorable Sponsors of HB15-1130 State of Colorado

136 State Capitol

Denver, CO 80203

Dear Reps. Ryden and Nordberg and Sens. Hill and Garcia:

Thank you for your tireless work to advance HB-1130 and help more of our military and overseas citizens participate in their municipal elections.

[HB-1130 is titled as if it is entirely to benefit access for military and overseas voters. It has many other effects such as changing ballot access deadlines and extending campaign periods for candidates. The bill affects only municipal elections that are not overseen by the Secretary of State and for which the SOS fails to produce any election rules. Therefore SOS office involvement in the bill is likely for reasons that this law will eventually affect federal, state and county elections as well.]

As you know, our aim was to have municipal elections mirror our November elections to maximize voter participation. And while the collaborative groundwork we laid chartered the bill for success, recent senate amendments create significant challenges for our voters and municipal election administrators.

[Were the Secretary’s stated intention fulfilled, the bill would cause Title 1 Article 8.3 to apply to Title 31 municipal elections as it does for uncoordinated Special District elections. HB1130 does not in either version. CML reportedly will not allow it to do so.]

Uniformity with respect to the various types of elections is important. A soldier deployed overseas should not be confronted with having to decipher different rules and standards for different elections, and unfortunately several amendments do just that.

[Senate amendments attempted to enable integrity safeguards and procedural necessities that are included either in CRS 1-8.3 or in SOS rules for coordinated elections. Senate amendments were insufficient and garbled but they did not “do just that.”]

Some municipalities participate in coordinated November elections—in which the Title 1 protections for military voters apply–while other municipalities conduct independent elections in April or May. A voter’s rights should not vary based on when her municipality chooses to have its election.

[Agreed. It is best if all elections operate under the same law and rules and oversight. The Secretary’s requested HB-1130 is miles away from that goal.]

My gravest concern involves amendment L.038, which requires that military or overseas citizens vote a mail ballot unless it is “not feasible.” Only then, can these voters scan and electronically send their voted ballots. This puts a significant onus on the voter to determine whether the overseas mail system is or isn’t capable of delivering her ballot on time.

[Every elector who receives a mail ballot is under this exact same “onus” to succeed to return a ballot on time. It makes no sense that all military (including in the USA) or overseas voters should be relieved of this requirement while other voters are subject to it. UOCAVA voters are offered an extra two weeks before election day and one more week after election day to accomplish the return of a paper ballot by mail (or courier) without the need for electronic means. A returned signed paper ballot envelope is more accountable and secure and also sufficient in almost all cases.]

It also potentially leaves our overseas voters susceptible to challenges if the clerk or domestic watchers believe that voter, who delivered her ballot electronically, could have voted a mail ballot instead. While I have great confidence in our municipal clerks and judges, the fact remains that a locality could either intentionally or unwittingly disallow military votes based on this provision.

[For better or worse, our mail ballot election system is filled with situations where election judges determine the eligibility of a voter and the applicability of ballots and votes for counting while the voter is not present. These UOCAVA voters may return by electronic transmission by law only “when a more secure method, such as returning the ballot by mail, is not available or feasible.” SOS rules should have according to CRS 1-8.3-104 (5) and CRS 1-8.3-113 (1)(a) provided this language on the affidavit to be signed by the UOCAVA voter. This is the same style of affidavit we now use for all mail voters who affirm their eligibility on the envelope. Judges accept that affirmation unless there is evidence to the contrary. The situation for a military voter in a municipal election of concern to the Secretary is no more subject to abuse than is signature verification when mail ballots are returned in county elections under Title 1.]

Moreover, determining whether this standard is met is problematic. In many foreign countries the mail service is neither secure nor timely. Even here in the United States I have personally received remnants of a piece of mail weeks later wrapped in a plastic bag that says “WE CARE.” So to try to force a soldier deployed overseas to use a system that is not secure over a system that allows him or her to confirm the same day that their ballot actually arrived is very concerning.

[Here the SOS appears to be associating paper return of a ballot with “insecurity” and electronic return with reliability and ability to confirm. This reads like real concern is over the integrity of the mail ballot system itself and an argument for taking the whole state to electronic return. This position should be very carefully examined in the light of expert testimony and evidence for unreliability and susceptibility to interception of electronic return methods. There is ample testimony and evidence for these concerns that the SOS is not bringing to light.]

As the former El Paso County Clerk and Recorder, I took great pride in maintaining the state’s largest UOCAVA voter population. My office worked closely with this select pool of voters and they found the electronic transmission option to be the most effective and their best opportunity to participate. These voters should have the same opportunity to cast their ballot for mayor as they do for governor.

[Undefined electronic return is not “the same opportunity” and should not be casually made available to every military voter regardless of their situation. Online ballot marking and electronic return is a very different opportunity fortunately not intended by Title 1 to be made available to every UOCAVA voter. Some UOCAVA voters have been allowed vote with electronic return in cases where mail ballot and probably even voting in person was available. The legislature should ask the SOS to enforce CRS 1-8.3 in rules and prevent casual use of the lower integrity electronic return when it is not absolutely necessary.]

My second concern involves L.036. The state uses an innovative application from Everyone Counts that allows UOCAVA voters to specifically access their ballot online, mark it and print it out to verify their selections. The concern that the system is hackable is a nonstarter because the voter must still print it, sign it, scan it and send it back to the clerk’s office. To expressly restrict municipalities from accessing the state’s system or one like it wrongly excludes a user-friendly and popular option for our military and overseas voters.

[The Secretary has apparently misunderstood the risk to privacy and risk to integrity of both online ballot marking and of electronic return. Any legislator who is voting for a bill that includes either of these “modernizations” should become aware of the risks by reading the technical literature. Three letters to Senators written by national experts are located on my website: http://www.electionquality.com. ]

Finally, amendment L.031 requires that municipal election officials verify signatures for UOCAVA voters. While I wholeheartedly support requiring signature verification, currently municipalities are not yet required nor equipped to verify voter signatures. As we explained to the sponsor of this amendment, the statewide voter registration system, to which municipalities do not have direct access, collects and stores signatures. The Municipal League has committed to work with my office this summer to identify the best path forward to help these clerks implement best practices for signature verification for all voters. However, with the current amendment added, clerks will verify signatures for all military and overseas voters but not domestic voters, which doesn’t make sense.

[In fact it does make sense,although I would also argue for signature verification (or better methods) for all remote voting. The return by electronic means is far more subject to undetectable interference that could and would be better resisted by verification of the signatures of the “select” group of voters whose signatures can (and under current practices may) be legally obtained from the county clerk.]

I appreciate both chambers thorough review of this legislation, but I am requesting a conference committee to remove these three unworkable amendments. You have my commitment to recommend signature verification legislation next session using a thorough and collaborative approach.

[The three Senate amendments in current form are far from ideal. The Senate version of the bill is not much more workable than the House version. Neither contains appropriate accountability that is necessitated by the lack of SOS rules for Title 31 elections. Both remain vague and unimplementable in a consistent way without judicial intervention. Neither House nor Senate version should be adopted. This bill requires a re-write for a future session with appropriate expertise brought to bear.

Ideally Coloradans will benefit from an adoption of an updated CRS 1-8.3 that will apply to all elections uniformly with the help of SOS rules. That is not the effect of HB15-1130.

Thanks for your consideration of my comments as much as the SOS appreciates your consideration of his. Harvie Branscomb ]

Thank you for your consideration. Sincerely,

Wayne Williams

Colorado Secretary of State