Monthly Archives: April 2017

Letter to the Senators: Support the L_011 amendment for SB-138

To: The Colorado Senators
From: Harvie Branscomb
Subject:  Great News- L_011 to SB-138 would make a bad bill into good- please support

Senator                                                            April 14, 2017

I have written to you previously about SB17-138 the SOS watcher bill. On Thursday, Senator Lundberg, and Senator Fields, and importantly Senate Sponsor Jack Tate, agreed to support a 3rd reading amendment for SB-138 L_011.  The amendment (a pre-amended version is attached) would render the bill supportive of excellent transparency for party and candidate and issue committee-appointed watching.  Watchers are not random citizens. They are selected by appointing authorities and given credentials adequate to gain quick access in critical circumstances to VSPCs, central count and other places where conduct of elections occur.

After supporting and passing amendment L_011,  I hope you will support passage of SB-138 on Monday. Without L_011 it is my hope that the current SB-138 will die in the Senate as it only allows the SOS to push current rules into law in place of excellent timeless protections that have been there for decades. Such a codification of SOS rule would be a mistake at this time, when new election methods make watching so much harder than before.

Some county clerks I spoke with are not supporting the amendment. I believe that they are not thinking clearly about the benefit for the public as much as they are thinking about their own self-interest.  They want background checks for watchers that could become unnecessary obstacles found in no other state.  Some clerks and SOS may not want watchers to have access to election records.  I've been told that canvass boards should do the "witness and verify" function. That is unlikely and inadequate since canvass boards are small and led by the clerk. Watchers are far more likely to perform adequate and needed verification.

As a Senator you must decide this law guided by basic principles of transparency and citizen access (in fact citizen oversight).  The original SOS-written bill was trying to codify current SOS watcher rules that limit access for watchers more narrowly than broad access allowed by the current statute. To the contrary, and for the benefit of campaigns and public, L_011 does update statute consistent with existing strong standards for transparency. 

I attach a copy of the bill as if L_011 was already included.  When this amendment passes on Monday morning, we will  have an opportunity for an exciting debate in the House over details, no doubt.  Without the L_011 amendment we election quality activists and Democratic and Republican legislators who care about election integrity will continue to try to stop the bill.

On Monday morning, I expect Senator Lundberg will move L_011 on behalf of election transparency and integrity. This is what it does:                      
 1.    clearly states the General Assembly’s intent of fully transparent and verifiable elections in Colorado. 
 2.    defines “witness and verify” to ensure that timely and complete access is given to watchers so that they may attest to accuracy of records and compliance with applicable law and election rules. 
 3.    assures that if needed, at least one watcher may be present for every two election officials in an election facility. (Some activities require 1:1 observation and others are 1:10 or more. Acceptable overall average is 1:2.) In the unlikely event of the presence of too many watchers for practical accommodation, the Secretary of State may reduce the number of watchers by lot. 
 4.    assures that all activities conducted by election officials or voting systems and all documents can be observed by watchers. 
 5.    removes the bill’s current proposal to permit clerks to conduct discretionary background checks on watchers. 
 6. simplifies the new watcher oath to comply with an existing statutory requirement.
 7. extends the period for watching to account for the much earlier preparation of materials for the election.

 If approved, these important changes will provide the transparency that Colorado modernized elections require and make it clear to candidates and campaigns that they have sufficient access to verify election records and processes. Continued and expanded statutory support for election watchers will foster independent confidence in our elections.
  Thanks to the Senators who have expressed support for the L_011 amendment.

Harvie Branscomb

SB-138 Why Add Background Check for Election Watchers Only in Colorado

Law must be generated from principle and it must be used to guide both rules and practice, not the other way around – Harvie

(Below e-mail was sent to Stan  Martin, Clerk and Recorder, Adams County, Christi Coburn, Deputy; Matt Crane Clerk and Recorder, Arapahoe County, Jennifer Morrell, Deputy;
Hillary Hall, Clerk and Recorder, Boulder County)

From: Harvie Branscomb
Subject: Re: background check for watchers- crucial? why? witness and verify is for canvass board not watchers?

Stan Martin and colleagues

Here is an addendum.

Further in consideration of a background check, Wendy Underhill at the NCSL has apparently written a paper listing qualifications for election watching in every state. There is no mention of a background check in any state law. Apparently Colorado would be unique if it were to pass SB-138 unamended. 

I cc Wendy in case she has any extra information on this topic to share.

There is another document from NCSL that covers watcher and observer laws:

There are many candidates on the 2016 ballot who might have felt the need to have representation within the electoral process. Obviously most of them did not. 
 Here is my response regarding Matt Crane's and Stan Martin's similar suggestions that "witness and verify" is the role and responsibility of the Canvass Board and not a Watcher.
 Stan Martin mentions that Senator Tate's definition of "witness and verify" is more appropriate to the role of canvass board. In reality the canvass boards have been guided by the clerks to be non-questioning and non-critical. Canvass boards by statute include the clerk who almost always serves, absent any rule or statute on this point, as the chair of the board.  This means the party of the clerk obtains a clear majority advantage and decisions of the canvass board are by majority.   
 Also there is usually only one canvass board member per political party and they are typically told to meet at the very end of the election process only to "sign off" on the election. There are also too few canvass board members to verify much of anything.  There is no mention of "witness and verify" in their role description- but perhaps there should be. Their role seems deliberately constrained to almost nothing - just comparing three sets of numbers- registered voters, returned ballots and votes counted. Often these numbers come straight from the results printed by the voting system.
 In fact the canvass board is designed to  represent the clerk's interest and perhaps the interest of two major parties but not the interest of various candidates in primaries and from third parties and the interests of ballot initiative committees and candidates in non-partisan elections.
 Thus, all non major-party interests are given access for election oversight only through the watchers' "witness and verify" while major parties are represented on the canvass board members and through partisan election judges.
 What Stan Martin could be saying is that canvass boards need to be constituted with more fairness and with more responsibility added to the information gathering portion of their role. But watchers still need to "witness and verify" on behalf of every stakeholder authority related to the election - both those not associated with the major parties and the major parties themselves.
 It is crucial that this conversation take place outside the limited context of existing Colorado election rules and practice. Law must be generated from principle and it must be used to guide both rules and practice, not the other way around.