SENATE Amended 2nd Reading April 14, 2005First Regular Session Sixty-fifth General Assembly STATE OF COLORADO ENGROSSED This Version Includes All Amendments Adopted on Second Reading in the House of Introduction LLS NO. 05-0221.02 Bob Lackner SENATE BILL 05-198 SENATE SPONSORSHIP Gordon, and Mitchell HOUSE SPONSORSHIP Madden, Senate Committees House Committees Local Government A BILL FOR AN ACT Concerning the conduct of elections. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) In connection with the conduct of elections:  Expands the list of the types of documents that may be used to establish an elector's identification for purposes of the "Uniform Election Code of 1992" to include a valid student identification card with a photograph of the eligible elector issued by a secondary school or institution of higher education located within the state.  For elections held on or after January 1, 2006, entitles each eligible elector to inspect, verify, and correct the voter-verified permanent paper record of his or her vote at the time the vote is cast. Specifies that the voter-verified permanent paper record of each eligible elector's vote, whether filled out by hand or produced by any voting machine or ballot marking device, shall be preserved as an election record and shall constitute the official record of the election for the purpose of conducting any audit or recount. Prohibits any voting machine from being remotely accessed or remotely accessible.  Provides that the hardware, software, and source codes of each electronic voting machine or other vote-counting machine used in the election are to be available for inspection and analysis by the designated election official or his or her designee, a representative of each major and minor political party, and an unaffiliated elector who expresses interest for a specified period.  Following each primary and general election, requires the secretary of state to initiate a surprise random audit, to be conducted by the designated election official, for the purpose of comparing the tallies reflected in the voter-verified permanent paper records with the tallies recorded by electronic voting machines or other vote tabulators. In initiating the audit, requires the secretary to select a sufficient number of voting machines to account for a specified percentage of the total statewide vote in the election just completed. Requires the audit to include a specified precinct in each county of the state. Requires the secretary to randomly select 5 candidate races, ballot issues, or ballot questions to audit.  Specifies that, if there is any discrepancy between the tallies recorded by the voter-verified permanent paper records and the tallies recorded by vote machines that is greater than a specified percent of the votes cast in any candidate race, ballot issue, or ballot question, and the discrepancy can not be accounted for by voter error or ambiguity of voter intent, the discrepancy triggers a further random audit. Specifies that any further audit required shall be of a specified percentage of the votes cast within a precinct or county, as applicable.  Specifies that any discrepancy under any of the required audits that is a specified percentage of the votes cast shall trigger a full recount of the total votes cast by the machines causing the discrepancy.  Following each primary and general election at a polling place where voting is by electronic voting machine or other vote tabulator, requires the election judge to compare the number of electors casting their ballots on the machines or other tabulators in the precinct with the number of electors who cast a ballot in the precinct in the election as reflected in the pollbooks at the precinct.  Requires any early voters' polling places to be open during any Saturday or Sunday that falls within the period during which early voting is authorized, with the exception of the Saturday or Sunday that falls immediately prior to election day. Authorizes the board of county commissioners by resolution to increase the hours that the early voters' polling place may be open to allow for early voters' polling places to remain open until a specified time, but prohibits an election judge from working more than a 9-hour shift in any one day, and authorizes an election judge to split his or her shift with another election judge.  Requires the elector to be offered a provisional ballot if an elector appears in a particular precinct to cast his or her vote, the elector's name is not listed on the registration list for the precinct, and the elector is unable to go to the precinct at which his or her name is listed on the registration list. If the information contained in a provisional ballot affidavit submitted by an elector provides sufficient information that the designated election official is able to verify that the elector is properly registered, requires the provisional ballot to be counted. Permits any elector who is issued a provisional ballot to cast a vote for any office listed on the ballot for which the elector is eligible to cast a vote, and provides that any such votes shall be counted.  Specifies that a recount shall be of the voter-verified permanent paper records of the votes created. Specifies that the voter-verified permanent paper records shall be recounted by means of either a hand or a machine count. Defines terms. Makes conforming amendments. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 1-1-104 (19.5) (a), Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SUBPARAGRAPHS to read: 1-1-104. Definitions - repeal. As used in this code, unless the context otherwise requires: (19.5) (a) "Identification" means: (XI) A valid student identification card with a photograph of the eligible elector issued by a secondary school or an institution of higher education within the meaning of section 23-3.1-102 (5), C.R.S.; or (XII) A certified letter of identification from a federal, state, county, or municipal government service organization or a certificate of registration issued by a county clerk and recorder or the Denver election commission, as applicable. SECTION 2. 1-1-104, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 1-1-104. Definitions - repeal. As used in this code, unless the context otherwise requires: (50.6) (a) "Voter-verified paper record" means an auditable paper record that: (I) Is available for the elector to inspect and verify before the vote is cast; (II) Is produced contemporaneously with or employed by any voting system; (III) Lists the designation of each office, ballot issue, or ballot question, and the elector's choices in such offices, issues, or questions. If the elector makes no selection in connection with any race, issue, or question, that fact shall also be noted on the record produced. (IV) Is suitable for a manual audit or recount; and (V) Is capable of being maintained as an election record in accordance with the requirements of section 1-7-802. (b) Any paper ballot that lists the title, along with any number, as applicable, of each candidate race, ballot issue, or ballot question, and the elector's choices in such races, issues, or questions shall constitute a voter-verified paper record for purposes of this subsection (50.6). SECTION 3. Part 3 of article 7 of title 1, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 1-7-310. Voter-verified paper record of vote - legislative declaration - definitions. (1) (a) The general assembly hereby finds and declares that: (I) The introduction and use of vote systems satisfying the requirements of this section will promote voter confidence in the integrity of elections conducted in the state; and (II) Subsection (2) of this section obligates the introduction and use of vote systems that require the use of a voter-verified paper record in each primary, general, coordinated, or congressional district vacancy election held in the state on or after January 1, 2008, unless the deadline has been extended in accordance with the requirements of subsection (2) of this section. (b) In connection with any decision concerning the purchase of any vote systems to be made by any county between the effective date of this section and January 1, 2008, the general assembly urges the counties of the state to take the requirements of this section into account in making such decisions in order to reduce the fiscal burden on the taxpayers of the county that may result from the purchase of vote systems prior to January 1, 2008, that would fail to satisfy the requirements of this section if such systems were purchased on or after January 1, 2008. (2) Subject to the requirements of this subsection (2), in each primary, general, coordinated, or congressional district vacancy election held in the state of Colorado on or after January 1, 2008, each eligible elector shall have the opportunity to, in private and without the need for assistance, inspect and verify as correct the voter-verified paper record of the elector's vote before the elector's vote is cast; except that any county may apply to the secretary of state for an extension of the deadline specified in this subsection (2) to a date not later than January 1, 2010, which application shall be submitted no later than July 1, 2007, and the secretary may grant such extension upon a sufficient showing of economic hardship on the part of the county in satisfying the requirements of this subsection (2) or upon such other showing of good cause resulting from a change in requirements under federal or state laws or guidelines. The secretary shall promulgate such rules, in accordance with article 4 of title 24, C.R.S., as shall provide guidance to the secretary in determining whether an application for an extension under this subsection (2) shall be granted. (3) Upon satisfaction by a county of the requirements of subsection (2) of this section, the voter-verified paper record of each eligible elector's vote, whether filled out by hand or produced by any voting machine or ballot marking device, shall be preserved as an election record pursuant to section 1-7-802 and shall constitute an official record of the election. (4) No voting device shall be remotely accessed or remotely accessible until after the close of voting and a results total tape has been printed, as applicable. (5) On or after the effective date of this section, no voting device shall be certified by the secretary of state in accordance with the requirements of part 6 of article 5 of this title unless the device is capable of producing a voter-verified paper record. SECTION 4. Part 5 of article 7 of title 1, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 1-7-509. Random audit. (1) (a) Following each primary, general, coordinated, or congressional district vacancy election, the secretary of state shall publicly initiate a manual random audit to be conducted by each county and shall randomly select not less than one percent of the voting devices used in each county; except that, where a central count voting device is in use in the county, the rules promulgated by the secretary pursuant to subsection (5) of this section shall require an audit of a specified percentage of ballots counted within the county. (I) For an election taking place in a county prior to the date the county has satisfied the requirements of section 1-7-310 (2), the audit shall be for the purpose of comparing the manual tallies of the ballots counted by each voting device selected for each such audit with the corresponding tallies recorded directly by each such device. (II) For an election taking place in a county on or after the date the county has satisfied the requirements of section 1-7-310 (2), the audit shall be conducted for the purpose of comparing the manual tallies of the voter-verified paper records produced or employed by each voting device selected for such audit with the corresponding ballot tallies recorded directly by each such device. (b) To the extent practicable, no voting device that is used for the random audit required by paragraph (a) of this subsection (1) shall be used for conducting the testing of voting devices for recount purposes required by section 1-10.5-102 (3) (a). (2) (a) Upon completion of the audit required by subsection (1) of this section, if there is any discrepancy between the manual tallies, as specified in accordance with the requirements of subparagraph (I) or (II) of paragraph (a) of subsection (1) of this section, as applicable, of the voting device selected for the audit, and the corresponding tallies recorded by such devices, and the discrepancy is not able to be accounted for by voter error, the county clerk and recorder, in consultation with the canvass board of the county established pursuant to section 1-10-101, shall investigate the discrepancy and shall take such remedial action as necessary in accordance with its powers under this title. (b) Upon receiving any written complaint from a registered elector from within the county about a voting device, the canvass board shall investigate the complaint and take such remedial action as necessary in accordance with its powers under this title. (c) The canvass board shall promptly report to the secretary of state the results of any completed audit or investigation conducted pursuant to paragraph (a) or (b) of this subsection (2). (3) The secretary of state shall post the results of any completed audit or investigation conducted pursuant to the requirements of subsection (2) of this section on the official website of the department of state not later than twenty-four hours after receiving the results of the completed audit or investigation. The clerk and recorder of the affected county may timely post the results of the completed audit or investigation on the official website of the county. The secretary shall publish once in a newspaper of general circulation throughout the state notification to the public that the results have been posted on the department's website. (4) Any audit conducted in accordance with the requirements of this section shall be observed by at least one member of the canvass board of the county. (5) The secretary of state shall promulgate such rules, in accordance with article 4 of title 24, C.R.S., as may be necessary to administer and enforce any requirement of this section, including any rules necessary to provide guidance to the counties in conducting any audit required by this section. The rules shall account for: (a) The number of ballots cast in the county; (b) An audit of each type of voting device utilized by the county; and (c) The Confidentiality of the ballots cast by the electors. SECTION 5. 1-8-202, Colorado Revised Statutes, is amended to read: 1-8-202. When eligible electors may vote by early ballot. Early voting shall be made available to any eligible elector in the manner provided in this part 2 during regular business hours for ten days before a primary election and a special legislative election and for fifteen days before a general election or other November election conducted by the county clerk and recorder. The board of county commissioners may by resolution increase the hours that the early voters' voting place may be open. The secretary of state by rule may allow for early voters' polling places to be open on Saturday; except that any such rules shall require the hours in which such polling places are open to be uniform throughout the state. Eligible electors who appear in person at the early voters polling place during this time may cast their ballots. in the same manner as any ballot would be cast in a precinct polling place on election day. SECTION 6. 1-9-303, Colorado Revised Statutes, is amended to read: 1-9-303. Verification and counting of provisional ballots - eligibility to cast provisional ballot when voting in the wrong precinct - verification of registration - eligibility to cast a provisional ballot for all offices on the ballot. (1) Upon receipt of a provisional ballot, the county clerk and recorder or designated election official shall verify the information contained in the provisional ballot affidavit using the procedures that apply to absentee ballots specified in this section. If the information cannot be verified, the ballot shall be rejected. The verification and counting of all provisional ballots shall be completed within twelve ten days after the primary election or fourteen days after a general, odd-year, or coordinated election. All absentee ballots cast in any election shall be counted before any provisional ballots are counted. (2) If an elector appears in a particular precinct to cast his or her vote, the elector's name is not listed on the registration list for the precinct, and the elector is unable to go to the precinct at which his or her name is listed on the registration list, the elector shall be offered a provisional ballot in accordance with the requirements of this section. (3) If the information contained in a provisional ballot affidavit submitted by an elector provides sufficient information that the designated election official is able to verify that the elector is properly registered, the provisional ballot shall be counted in accordance with the requirements of this section. (4) Notwithstanding any other provision of law, any elector who is issued a provisional ballot in accordance with the requirements of this part 3 may cast a vote for any office, ballot issue, or ballot question listed on the ballot, and only such votes that the elector is eligible to cast shall be counted. SECTION 7. 1-10.5-102 (3), Colorado Revised Statutes, is amended to read: 1-10.5-102. Recounts for congressional, state, and district offices, state ballot questions, and state ballot issues. (3) (a) Prior to any recount, the canvass board shall choose a precinct at random and a test number of ballots on which voting devices used in the candidate race, ballot issue, or ballot question that is the subject of the recount. The board shall use the voting devices it has selected to conduct a comparison of the machine count and hand count of the ballots counted on each such voting device for the candidate race, ballot issue, or ballot question to the corresponding manual count of: (I) In the case of an election taking place in a county prior to the date the county has satisfied the requirements of section 1-7-310 (2), the ballots; or (II) For an election taking place in a county on or after the date the county has satisfied the requirements of section 1-7-310 (2), the voter-verified paper records. (b) The precinct chosen shall have at least fifty ballots for the count. If the results of the comparison of the machine count and the hand manual count in accordance with the requirements of subparagraph (I) or (II) of paragraph (a) of this subsection (3) are identical, or if any discrepancy is able to be accounted for by voter error, then the recount shall may be conducted in the same manner as the original ballot count. If the results of the comparison of the machine count and the manual count in accordance with the requirements of subparagraph (I) or (II) of paragraph (a) of this subsection (3) are not identical, or if any discrepancy is not able to be accounted for by voter error, a presumption shall be created that the voter-verified paper records will be used for a final determination unless evidence exists that the integrity of the voter-verified paper records has been irrevocably compromised. The secretary of state shall decide which method of recount is used in each case, based on the secretary's determination of which method will ensure the most accurate count, subject to judicial review for abuse of discretion. Nothing in this subsection (3) shall be construed to limit any person from pursuing any applicable legal remedy otherwise provided by law. (c) The secretary of state shall promulgate such rules, in accordance with article 4 of title 24, C.R.S., as may be necessary to administer and enforce any requirement of this section, including any rules necessary to provide guidance to the counties in conducting the test of voting devices for the recount required by paragraph (a) of this subsection (3). The rules shall account for: (I) The number of ballots cast in the candidate race, ballot issue, or ballot question that is the subject of the recount; (II) An audit of each type of voting device utilized by the county in the candidate race, ballot issue, or ballot question that is the subject of the recount; and (III) The confidentiality of the ballots cast by the electors in the candidate race, ballot issue, or ballot question that is the subject of the recount. SECTION 8. Repeal. 1-10.5-108 and 1-10.5-110, Colorado Revised Statutes, are repealed. SECTION 9. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.