Session Laws of Colorado 2009
First Regular Session, 67th General Assembly

 

 

 

CHAPTER 258

 

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ELECTIONS

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HOUSE BILL 09-1326 [Digest]

 

BY REPRESENTATIVE(S) Carroll T. and Court, Apuan, Benefield, Casso, Curry, Ferrandino, Fischer, Green, Hullinghorst, Kefalas, Kerr A., Levy, May, McCann, McFadyen, Merrifield, Middleton, Miklosi, Peniston, Pommer, Ryden, Scanlan, Schafer S., Solano, Stephens, Todd, Vigil, Labuda, Pace, Rice, Soper, Summers, Massey, Nikkel;

also SENATOR(S) Shaffer B., Bacon, Boyd, Groff, Heath, Penry, Williams, Foster, Gibbs, Hodge, Isgar, Keller, Morse, Newell, Sandoval, Schwartz, Tapia, Tochtrop.

 

 

 

AN ACT

 

Concerning the integrity of the statewide citizen-initiated petition process, and making an appropriation therefor.

 

 

Be it enacted by the General Assembly of the State of Colorado:

 

  SECTION 1.  1-5-407 (5), (5.3), and (5.4), Colorado Revised Statutes, are amended to read:

 

  1-5-407.  Form of ballots. (5) (a)  Whenever the approval of a ballot issue or ballot question is submitted to the vote of the people, the ballot issue or question shall be printed upon the ballot following the lists of candidates. Constitutional issues Initiated amendments shall be printed first, followed by statewide issues and questions referred amendments, initiated propositions, referred propositions, county issues and questions, municipal issues and questions, school district issues and questions, ballot issues and questions for other political subdivisions which are in more than one county, and then ballot issues and questions for other political subdivisions which are wholly within a county. The measures in each category shall be placed in the following order: Measures to increase taxes; measures to retain revenues in excess of a district's fiscal year spending limit; measures to increase debt; citizen petitions; and referred measures.

 

  (b)  Beginning with the 2010 general election:

 

  (I)  Each proposed change to the state constitution, whether initiated by the people or referred to the people by the general assembly, shall be identified on the ballot as an "amendment"; and

 

  (II)  Each proposed change to the Colorado Revised Statutes, whether initiated by the people or referred to the people by the general assembly, shall be identified on the ballot as a "proposition".

 

  (5.3) (a)  Commencing with the general election held in November 2000 November 2010, each statewide measure initiated by the people that is a proposed change to the state constitution shall be numbered consecutively in regular numerical order beginning with the number twenty sixty. Such consecutive numbering of measures shall continue at any odd-year or general election held after such election at which any such measure is on the ballot beginning with the number following the highest number utilized in the previous election until the number ninety-nine is utilized at an election for any such measure. Such measures shall again be numbered consecutively in regular numerical order beginning with the number one and in accordance with this subsection (5.3) paragraph (a) following the utilization of the number ninety-nine for any such measure. The secretary of state may promulgate rules as may be necessary to administer this subsection (5.3) including, but not limited to, rules specifying the grouping of such measures for purposes of such numbering or reserving specific sequences of numbers for certain categories of measures paragraph (a). Such rules shall be promulgated in accordance with article 4 of title 24, C.R.S.

 

  (b)  Commencing with the general election held in November 2010, each statewide measure initiated by the people that is a proposed change to the Colorado Revised Statutes shall be numbered consecutively in regular numerical order beginning with the number one hundred one. Such consecutive numbering of measures shall continue at any odd-year or general election held after such election at which any such measure is on the ballot beginning with the number following the highest number utilized in the previous election until the number one hundred ninety-nine is utilized at an election for any such measure. Such measures shall again be numbered consecutively in regular numerical order beginning with the number one hundred one and in accordance with this paragraph (b) following the utilization of the number one hundred ninety-nine for any such measure. The secretary of state may promulgate rules as may be necessary to administer this paragraph (b). Such rules shall be promulgated in accordance with article 4 of title 24, C.R.S.

 

  (5.4) (a)  Commencing with the general election held in November 2004 November 2010, each statewide measure referred to the people by the general assembly that is a proposed change to the state constitution shall be lettered consecutively in regular alphabetical order beginning with the letter A letter P. The consecutive lettering of such statewide referred measures shall continue at any odd-year or general election held after the election at which any statewide referred measure is on the ballot beginning with the letter following the last letter utilized in the previous election until the letter Z is utilized at an election for such a statewide referred measure. Such statewide referred measures shall again be lettered consecutively in regular alphabetical order beginning with the letter A and in accordance with this subsection (5.4) paragraph (a) following the utilization of the letter Z for any such statewide referred measure. The secretary of state may promulgate rules as may be necessary to administer this subsection (5.4) including but not limited to rules specifying the grouping of statewide referred measures for purposes of lettering or reserving specific sequences of letters for certain categories of measures paragraph (a). Any rules shall be promulgated in accordance with article 4 of title 24, C.R.S.

 

  (b)  Commencing with the general election held in November 2010, each statewide measure referred to the people by the general assembly that is a proposed change to the Colorado Revised Statutes shall be double-lettered consecutively in regular alphabetical order beginning with the letters AA. The consecutive lettering of such statewide referred measures shall continue at any odd-year or general election held after the election at which any statewide referred measure is on the ballot beginning with the letters following the last letters utilized in the previous election until the letters ZZ are utilized at an election for such a statewide referred measure. Such statewide referred measures shall again be lettered consecutively in regular alphabetical order beginning with the letters AA and in accordance with this paragraph (b) following the utilization of the letters ZZ for any such statewide referred measure. The secretary of state may promulgate rules as may be necessary to administer this paragraph (b). Any rules shall be promulgated in accordance with article 4 of title 24, C.R.S.

 

  SECTION 2.  1-40-101, Colorado Revised Statutes, is amended to read:

 

  1-40-101.  Legislative declaration. (1)  The general assembly declares that it is not the intention of this article to limit or abridge in any manner the powers reserved to the people in the initiative and referendum, but rather to properly safeguard, protect, and preserve inviolate for them these modern instrumentalities of democratic government.

 

  (2) (a)  The general assembly finds, determines, and declares that:

 

  (I)  The initiative process relies upon the truthfulness of circulators who obtain the petition signatures to qualify a ballot issue for the statewide ballot and that during the 2008 general election, the honesty of many petition circulators was at issue because of practices that included: Using third parties to circulate petition sections, even though the third parties did not sign the circulator's affidavit, were not of legal age to act as a circulator, and were paid in cash to conceal their identities; providing false names or residential addresses in the circulator's affidavits, a practice that permits circulators to evade detection by persons challenging the secretary of state's sufficiency determination; circulating petition sections without even a rudimentary understanding of the legal requirements relating to petition circulation; and obtaining the signatures of persons who purported to notarize circulator affidavits, even though such persons were not legally authorized to act as notaries or administer the required oath;

 

  (II)  The per signature compensation system used by many petition entities provides an incentive for circulators to collect as many signatures as possible, without regard for whether all petition signers are registered electors; and

 

  (III)  Many petition circulator affidavits are thus executed without regard for specific requirements of law that are designed to assist in the prevention of fraud, abuse, and mistake in the initiative process.

 

  (b)  The general assembly further finds, determines, and declares that:

 

  (I)  Because petition circulators who reside in other states typically leave Colorado immediately after petitions are submitted to the secretary of state for verification, a full and fair examination of fraud related to petition circulation is frustrated, and as a result, the secretary of state has been forced to give effect to certain circulator affidavits that were not properly verified and thus were not prima facie evidence of the validity of petition signatures on affected petition sections; and

 

  (II)  The courts have not had authority to exercise jurisdiction over fraudulent acts by circulators and notaries public in connection with petition signatures reviewed as part of the secretary of state's random sample.

 

  (c)  Therefore, the general assembly finds, determines, and declares that:

 

  (I)  As a result of the problems identified in paragraphs (a) and (b) of this subsection (2), one or more ballot measures appeared on the statewide ballot at the 2008 general election even though significant numbers of the underlying petition signatures were obtained in direct violation of Colorado law and the accuracy of the secretary of state's determination of sufficiency could not be fully evaluated by the district court; and

 

  (II)  For the initiative process to operate as an honest expression of the voters' reserved legislative power, it is essential that circulators truthfully verify all elements of their circulator affidavits and make themselves available to participate in challenges to the secretary of state's determination of petition sufficiency.

 

  SECTION 3.  1-40-102, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

 

  1-40-102.  Definitions. As used in this article, unless the context otherwise requires:

 

  (3.5)  "Circulator" means a person who presents to other persons for possible signature a petition to place a measure on the ballot by initiative or referendum.

 

  SECTION 4.  1-40-106 (1), Colorado Revised Statutes, is amended to read:

 

  1-40-106.  Title board - meetings - titles and submission clause. (1)  For ballot issues, beginning with the first submission of a draft after an election, the secretary of state shall convene a title board consisting of the secretary of state, the attorney general, and the director of the office of legislative legal services or the director's designee. The title board, by majority vote, shall proceed to designate and fix a proper fair title for each proposed law or constitutional amendment, together with a submission clause, at public meetings to be held at the hour determined by the title board on the first and third Wednesdays of each month in which a draft or a motion for reconsideration has been submitted to the secretary of state. To be considered at such meeting, a draft shall be submitted to the secretary of state no later than 3 p.m. on the twelfth day before the meeting at which the draft is to be considered by the title board. The first meeting of the title board shall be held no sooner than the first Wednesday in December after an election, and the last meeting shall be held no later than the third Wednesday in May April in the year in which the measure is to be voted on.

 

  SECTION 5.  1-40-107 (1) and (5), Colorado Revised Statutes, are amended to read:

 

  1-40-107.  Rehearing - appeal - fees - signing. (1)  Any person presenting an initiative petition or any registered elector who is not satisfied with a decision of the title board with respect to whether a petition contains more than a single subject pursuant to section 1-40-106.5, or who is not satisfied with the titles and submission clause provided by the title board and who claims that they are unfair or that they do not fairly express the true meaning and intent of the proposed state law or constitutional amendment may file a motion for a rehearing with the secretary of state within seven days after the decision is made or the titles and submission clause are set. The motion for rehearing shall be heard at the next regularly scheduled meeting of the title board; except that, if the title board is unable to complete action on all matters scheduled for that day, consideration of any motion for rehearing may be continued to the next available day, and except that, if the titles and submission clause protested were set at the last meeting in May April, the motion shall be heard within forty-eight hours after the expiration of the seven-day period for the filing of such motions.

 

  (5)  In the event a motion for rehearing is filed in accordance with this section, the period for filing a petition in accordance with section 1-40-108 shall not begin until a final decision concerning the motion is rendered by the title board or the Colorado supreme court; except that under no circumstances shall the period for filing a petition be extended beyond three months and three weeks prior to the election at which the petition is to be voted upon.

 

  SECTION 6.  1-40-108 (1), Colorado Revised Statutes, is amended to read:

 

  1-40-108.  Petition - time of filing. (1)  No petition for any ballot issue shall be of any effect unless filed with the secretary of state within six months from the date that the titles and submission clause have been fixed and determined pursuant to the provisions of sections 1-40-106 and 1-40-107 and unless filed with the secretary of state within the time required by the state constitution no later than three months and three weeks before the election at which it is to be voted upon. A petition for a ballot issue for the election to be held in November of odd-numbered years shall be filed with the secretary of state within the same time no later than three months and three weeks before such odd-year election. as is required by the state constitution for issues to be voted on at the general election. All filings under this section must be made by 3 p.m. on the day of filing.

 

  SECTION 7.  1-40-109 (3), Colorado Revised Statutes, is amended to read:

 

  1-40-109.  Signatures required - withdrawal. (3)  Any person who is a registered elector may sign a petition for any ballot issue for which the elector is eligible to vote. A registered elector who signs a petition may withdraw his or her signature from the petition by filing a written request for such withdrawal with the secretary of state at any time on or before the day that the petition is filed with the secretary of state.

 

  SECTION 8.  1-40-110 (1), Colorado Revised Statutes, is amended to read:

 

  1-40-110.  Warning - ballot title. (1)  At the top of each page of every initiative or referendum petition section shall be printed, in a form as prescribed by the secretary of state, the following:

 

"WARNING:

IT IS AGAINST THE LAW:

For anyone to sign any initiative or referendum petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to knowingly sign a petition when not a registered elector who is eligible to vote on the measure.

DO NOT SIGN THIS PETITION UNLESS YOU ARE A REGISTERED ELECTOR AND ELIGIBLE TO VOTE ON THIS MEASURE. TO BE A REGISTERED ELECTOR, YOU MUST BE A CITIZEN OF COLORADO AND REGISTERED TO VOTE.

Before signing this petition, you are encouraged to read the text or the title of the proposed initiative or referred measure.

By signing this petition, you are indicating that you want this measure to be included on the ballot as a proposed change to the (Colorado constitution/Colorado Revised Statutes). If a sufficient number of registered electors sign this petition, this measure will appear on the ballot at the November (year) election."

 

  SECTION 9.  1-40-111 (2), Colorado Revised Statutes, is amended, and the said 1-40-111 is further amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to read:

 

  1-40-111.  Signatures - affidavits - notarization - list of circulators and notaries. (2) (a)  To each petition section shall be attached a signed, notarized, and dated affidavit executed by the person who circulated the petition section, which shall include his or her printed name, the address at which he or she resides, including the street name and number, the city or town, the county, and the date he or she signed the affidavit; that he or she has read and understands the laws governing the circulation of petitions; that he or she was a resident of the state, a citizen of the United States, and at least eighteen years of age at the time the section of the petition was circulated and signed by the listed electors; that he or she circulated the section of the petition; that each signature thereon was affixed in the circulator's presence; that each signature thereon is the signature of the person whose name it purports to be; that to the best of the circulator's knowledge and belief each of the persons signing the petition section was, at the time of signing, a registered elector; and that he or she has not paid or will not in the future pay and that he or she believes that no other person has paid or will pay, directly or indirectly, any money or other thing of value to any signer for the purpose of inducing or causing such signer to affix his or her signature to the petition; that he or she understands that he or she can be prosecuted for violating the laws governing the circulation of petitions, including the requirement that a circulator truthfully completed the affidavit and that each signature thereon was affixed in the circulator's presence; and that he or she understands that failing to make himself or herself available to be deposed and to provide testimony in the event of a protest shall invalidate the petition section if it is challenged on the grounds of circulator fraud.

 

  (b) (I)  A notary public shall not notarize an affidavit required pursuant to paragraph (a) of this subsection (2), unless:

 

  (A)  The circulator is in the physical presence of the notary public;

 

  (B)  The circulator has dated the affidavit and fully and accurately completed all of the personal information on the affidavit required pursuant to paragraph (a) of this subsection (2); and

 

  (C)  The circulator presents a form of identification, as such term is defined in section 1-1-104 (19.5). A notary public shall specify the form of identification presented to him or her on a blank line, which shall be part of the affidavit form.

 

  (II)  An affidavit that is notarized in violation of any provision of subparagraph (I) of this paragraph (b) shall be invalid.

 

  (III)  If the date signed by a circulator on an affidavit required pursuant to paragraph (a) of this subsection (2) is different from the date signed by the notary public, the affidavit shall be invalid. If, notwithstanding sub-subparagraph (B) of subparagraph (I) of this paragraph (b), a notary public notarizes an affidavit that has not been dated by the circulator, the notarization date shall not cure the circulator's failure to sign the affidavit and the affidavit shall be invalid.

 

  (c)  The secretary of state shall not accept for filing reject any section of a petition that does not have attached thereto the a valid notarized affidavit required by this section that complies with all of the requirements set forth in paragraphs (a) and (b) of this subsection (2). Any signature added to a section of a petition after the affidavit has been executed shall be invalid.

 

  (3) (a)  As part of any court proceeding or hearing conducted by the secretary of state related to a protest of all or part of a petition section, the circulator of such petition section shall be required to make himself or herself available to be deposed and to testify in person, by telephone, or by any other means permitted under the Colorado rules of civil procedure. Except as set forth in paragraph (b) of this subsection (3), the petition section that is the subject of the protest shall be invalid if a circulator fails to comply with the requirement set forth in this paragraph (a) for any protest that includes an allegation of circulator fraud that is plead with particularity regarding:

 

  (I)  Forgery of a registered elector's signature;

 

  (II)  Circulation of a petition section, in whole or part, by anyone other than the person who signs the affidavit attached to the petition section;

 

  (III)  Use of a false circulator name or address in the affidavit; or

 

  (IV)  Payment of money or other things of value to any person for the purpose of inducing the person to sign the petition.

 

  (b)  Upon the finding by a district court or the secretary of state that the circulator of a petition section is unable to be deposed or to testify at trial or a hearing conducted by the secretary of state because the circulator has died, become mentally incompetent, or become medically incapacitated and physically unable to testify by any means whatsoever, the provisions of paragraph (a) of this subsection (3) shall not apply to invalidate a petition section circulated by the circulator.

 

  (4)  The proponents of a petition or an issue committee acting on the proponents' behalf shall maintain a list of the names and addresses of all circulators who circulated petition sections on behalf of the proponents and notaries public who notarized petition sections on behalf of the proponents and the petition section numbers that each circulator circulated and that each notary public notarized. A copy of the list shall be filed with the secretary of state along with the petition. If a copy of the list is not filed, the secretary of state shall prepare the list and charge the proponents a fee, which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., to cover the cost of the preparation. Once filed or prepared by the secretary of state, the list shall be a public record for purposes of article 72 of title 24, C.R.S.

 

  SECTION 10.  1-40-112, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS to read:

 

  1-40-112.  Circulators - requirements - training - rules. (3)  The secretary of state shall develop circulator training programs for paid and volunteer circulators. Such programs shall be conducted in the broadest, most cost-effective manner available to the secretary of state, including but not limited to training sessions for persons associated with the proponents or a petition entity, as defined in section 1-40-135 (1), and by electronic and remote access. The proponents of an initiative petition or the representatives of a petition entity shall inform paid and volunteer circulators of the availability of these training programs as one manner of complying with the requirement set forth in the circulator's affidavit that a circulator read and understand the laws pertaining to petition circulation.

 

  (4)  It shall be unlawful for any person to pay a circulator more than twenty percent of his or her compensation for circulating petitions on a per signature or petition section basis.

 

  SECTION 11.  1-40-113 (1), Colorado Revised Statutes, is amended to read:

 

  1-40-113.  Form - representatives of signers. (1)  Each section of a petition shall be printed on a form as prescribed by the secretary of state. No petition shall be printed, published, or otherwise circulated unless the form and the first printer's proof of the petition have been approved by the secretary of state. Each petition section shall designate by name and mailing address two persons who shall represent the signers thereof in all matters affecting the same. The secretary of state shall assure that the petition contains only the matters required by this article and contains no extraneous material. All sections of any petition shall be prenumbered serially, and the circulation of any petition section described by this article other than personally by a circulator is prohibited. Any petition section circulated in whole or in part by anyone other than the person who signs the affidavit attached to the petition section shall be invalid. Any petition section that fails to conform to the requirements of this article or is circulated in a manner other than that permitted in this article shall be invalid.

 

  SECTION 12.  1-40-115 (2), Colorado Revised Statutes, is amended to read:

 

  1-40-115.  Ballot - voting - publication. (2) (a)  All ballot issues shall be printed on the official ballot in that order, together with their respective letters and numbers prefixed in bold-faced type. Each ballot shall have the following explanation printed one time at the beginning of such ballot issues: "Ballot issues referred by the general assembly or any political subdivision are listed by letter, and ballot issues initiated by the people are listed numerically. A ballot issue listed as an 'amendment' proposes a change to the Colorado constitution, and a ballot issue listed as a 'proposition' proposes a change to the Colorado Revised Statutes. A 'yes' vote on any ballot issue is a vote in favor of changing current law or existing circumstances, and a 'no' vote on any ballot issue is a vote against changing current law or existing circumstances." Each ballot title shall appear on the official ballot but once. and For each ballot title that is an amendment, the amendment number or letter shall be immediately followed by the description "(CONSTITUTIONAL)". For each ballot title that is a proposition, the proposition number or letters shall be immediately followed by the description "(STATUTORY)". Each ballot title shall be separated from the other ballot titles next to it by heavy black lines and shall be followed by the words "yes" and "no" with blank spaces to the right and opposite the same as follows:

 

(HERE SHALL APPEAR THE

BALLOT TITLE IN FULL)

 

           ;            60;           & #160;                        0;           &# 160;     YES  ______ &# 160;    NO  ______

 

  (b)  For purposes of preparing an audio ballot as part of an accessible voting system:

 

  (I)  In lieu of the parenthetical description preceding a ballot title that is an amendment required by paragraph (a) of this subsection (2), the audio ballot shall include the following: "The following ballot issue proposes a change to the Colorado constitution."; and

 

  (II)  In lieu of the parenthetical description preceding a ballot title that is a proposition required by paragraph (a) of this subsection (2), the audio ballot shall include the following: "The following ballot issue proposes a change to the Colorado Revised Statutes."

 

  SECTION 13.  1-40-117 (3) (b), Colorado Revised Statutes, is amended to read:

 

  1-40-117.  Statement of sufficiency - statewide issues. (3) (b)  In the event the secretary of state issues a statement declaring that a petition, having first been submitted with the required number of signatures, appears not to have a sufficient number of valid signatures, the representatives designated by the proponents pursuant to section 1-40-104 may cure the insufficiency by filing an addendum to the original petition for the purpose of offering such number of additional signatures as will cure the insufficiency. No addendum offered as a cure shall be considered unless the addendum conforms to requirements for petitions outlined in sections 1-40-110, 1-40-111, and 1-40-113, and unless the addendum is filed with the secretary of state within the fifteen-day period after the insufficiency is declared and unless filed with the secretary of state within the time required by the state constitution no later than three months and three weeks before the election at which the initiative petition is to be voted on. All filings under this paragraph (b) shall be made by 3 p.m. on the day of filing. Upon submission of a timely filed addendum, the secretary of state shall order the examination and verification of each signature on the addendum. The addendum shall not be available to the public for a period of up to ten calendar days for such examination. After examining the petition, the secretary of state shall, within ten calendar days, issue a statement as to whether the addendum cures the insufficiency found in the original petition.

 

  SECTION 14.  1-40-118 (1) and (2), Colorado Revised Statutes, are amended, and the said 1-40-118 is further amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to read:

 

  1-40-118.  Protest. (1)  A protest in writing, under oath, together with three copies thereof, may be filed in the district court for the county in which the petition has been filed by some registered elector, within thirty days after the secretary of state issues a statement as to whether the petition has a sufficient number of valid signatures, which statement shall be issued no later than thirty calendar days after the petition has been filed. If the secretary of state fails to issue a statement within thirty calendar days, the petition shall be deemed sufficient. Regardless of whether the secretary of state has issued a statement of sufficiency or if the petition is deemed sufficient because the secretary of state has failed to issue a statement of sufficiency within thirty calendar days, no further agency action shall be necessary for the district court to have jurisdiction to consider the protest. During the period a petition is being examined by the secretary of state for sufficiency, the petition shall not be available to the public; except that such period shall not exceed thirty calendar days. Immediately after the secretary of state issues a statement of sufficiency or, if the petition is deemed sufficient because the secretary of state has failed to issue the statement, after thirty calendar days, the secretary of state shall make the petition available to the public for copying upon request.

 

  (2) (a)  If the secretary of state conducted a random sample of the petitions and did not verify each signature, the protest shall specifically allege set forth with particularity the defects in the procedure used by the secretary of state in the verification of the petition or the grounds for challenging individual signatures or petition sections, as well as individual signatures or petitions sections protested. If the secretary of state verified each name on the petition sections, the protest shall set forth with particularity the grounds of the protest and the individual signatures or petition sections protested.

 

  (b)  Regardless of the method used by the secretary of state to verify signatures, the grounds for challenging individual signatures or petition sections pursuant to paragraph (a) of this subsection (2) shall include, but are not limited to, the use of a petition form that does not comply with the provisions of this article, fraud, and a violation of any provision of this article or any other law that, in either case, prevents fraud, abuse, or mistake in the petition process.

 

  (c)  If the protest is limited to an allegation that there were defects in the secretary of state's statement of sufficiency based on a random sample to verify signatures, the district court may review all signatures in the random sample.

 

  (d)  No signature may be challenged that is not identified in the protest by section number, line number, name, and reason why the secretary of state is in error. If any party is protesting the finding of the secretary of state regarding the registration of a signer, the protest shall be accompanied by an affidavit of the elector or a copy of the election record of the signer.

 

  (2.5) (a)  If a district court finds that there are invalid signatures or petition sections as a result of fraud committed by any person involved in petition circulation, the registered elector who instituted the proceedings may commence a civil action to recover reasonable attorney fees and costs from the person responsible for such invalid signatures or petition sections.

 

  (b)  A registered elector who files a protest shall be entitled to the recovery of reasonable attorney fees and costs from a proponent of an initiative petition who defends the petition against a protest or the proponent's attorney, upon a determination by the district court that the defense, or any part thereof, lacked substantial justification or that the defense, or any part thereof, was interposed for delay or harassment. A proponent who defends a petition against a protest shall be entitled to the recovery of reasonable attorney fees and costs from the registered elector who files a protest or the registered elector's attorney, upon a determination by the district court that the protest, or any part thereof, lacked substantial justification or that the protest, or any part thereof, was interposed for delay or harassment. No attorney fees may be awarded under this paragraph (b) unless the district court has first considered the provisions of section 13-17-102 (5) and (6), C.R.S. For purposes of this paragraph (b), "lacked substantial justification" means substantially frivolous, substantially groundless, or substantially vexatious.

 

  (c)  A district court conducting a hearing pursuant to this article shall permit a circulator who is not available at the time of the hearing to testify by telephone or by any other means permitted under the Colorado rules of civil procedure.

 

  (5)  Written entries that are made by petition signers, circulators, and notaries public on a petition section that substantially comply with the requirements of this article shall be deemed valid by the secretary of state or any court, unless:

 

  (a)  Fraud, as specified in section 1-40-135 (2) (c), excluding subparagraph (V) of said paragraph (c), is established by a preponderance of the evidence;

 

  (b)  A violation of any provision of this article or any other provision of law that, in either case, prevents fraud, abuse, or mistake in the petition process, is established by a preponderance of the evidence;

 

  (c)  A circulator used a petition form that does not comply with the provisions of this article or has not been approved by the secretary of state.

 

  SECTION 15.  1-40-121 (1), Colorado Revised Statutes, is amended to read:

 

  1-40-121.  Receiving money to circulate petitions - filing. (1)  The proponents of the petition or an issue committee acting on behalf of the proponents shall file with the official who receives filings under the "Fair Campaign Practices Act", article 45 of this title, for the election a report stating the total amount paid to all persons dates of circulation by all circulators who were paid to circulate a section of the petition, the total hours for which each circulator was paid to circulate a section of the petition, and the gross amount of wages paid for such hours. The filing shall be made at the same time the petition is filed with the secretary of state. A payment made to a circulator is an expenditure under article 45 of this title.

 

  SECTION 16.  1-40-130 (1) (h) and (2), Colorado Revised Statutes, are amended, and the said 1-40-130 (1) is further amended BY THE ADDITION OF THE FOLLOWING NEW PARAGRAPHS, to read:

 

  1-40-130.  Unlawful acts - penalty. (1)  It is unlawful:

 

  (h)  For any officer or person to violate willfully any provision of this article. article;

 

  (i)  For any person to pay money or other things of value to a registered elector for the purpose of inducing the elector to withdraw his or her name from a petition for a ballot issue;

 

  (j)  For any person to certify an affidavit attached to a petition in violation of section 1-40-111 (2) (b) (I);

 

  (k)  For any person to sign any affidavit as a circulator, unless each signature in the petition section to which the affidavit is attached was affixed in the presence of the circulator;

 

  (l)  For any person to circulate in whole or in part a petition section, unless such person is the circulator who signs the affidavit attached to the petition section.

 

  (2)  Any person, upon conviction of a violation of any provision of this section, shall be punished by a fine of not more than one thousand five hundred dollars, or by imprisonment for not more than one year in the county jail, or by both such fine and imprisonment.

 

  SECTION 17.  1-40-134, Colorado Revised Statutes, is amended to read:

 

  1-40-134.  Withdrawal of initiative petition. The designated representatives of the proponents of an initiative petition may withdraw the petition from consideration as a ballot issue by filing a letter with the secretary of state requesting that the petition not be placed on the ballot. The letter shall be signed and acknowledged by both designated representatives before an officer authorized to take acknowledgments and shall be filed no later than thirty-three sixty days prior to the election at which the initiative is to be voted upon.

 

  SECTION 18.  Article 40 of title 1, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

 

  1-40-135.  Petition entities - requirements - definitions. (1)  As used in this section, "petition entity" means any person or issue committee that provides compensation to a circulator to circulate a ballot petition.

 

  (2) (a)  It is unlawful for any petition entity to provide compensation to a circulator to circulate a petition without first obtaining a license therefor from the secretary of state. The secretary of state may deny a license if he or she finds that the petition entity or any of its principals have been found, in a judicial or administrative proceeding, to have violated the petition laws of Colorado or any other state and such violation involves authorizing or knowingly permitting any of the acts set forth in paragraph (c) of this subsection (2), excluding subparagraph (V) of said paragraph (c). The secretary of state shall deny a license:

 

  (I)  Unless the petition entity agrees that it shall not pay a circulator more than twenty percent of his or her compensation on a per signature or per petition basis; or

 

  (II)  If no current representative of the petition entity has completed the training related to potential fraudulent activities in petition circulation, as established by the secretary of state, pursuant to section 1-40-112 (3).

 

  (b)  The secretary of state may at any time request the petition entity to provide documentation that demonstrates compliance with section 1-40-112 (4).

 

  (c)  The secretary of state shall revoke the petition entity license if, at any time after receiving a license, a petition entity is determined to no longer be in compliance with the requirements set forth in paragraph (a) of this subsection (2) or if the petition entity authorized or knowingly permitted:

 

  (I)  Forgery of a registered elector's signature;

 

  (II)  Circulation of a petition section, in whole or part, by anyone other than the circulator who signs the affidavit attached to the petition section;

 

  (III)  Use of a false circulator name or address in the affidavit;

 

  (IV)  Payment of money or other things of value to any person for the purpose of inducing the person to sign or withdraw his or her name from the petition;

 

  (V)  Payment to a circulator of more than twenty percent of his or her compensation on a per signature or per petition section basis; or

 

  (VI)  A notary public's notarization of a petition section outside of the presence of the circulator or without the production of the required identification for notarization of a petition section.

 

  (3) (a)  Any procedures by which alleged violations involving petition entities are heard and adjudicated shall be governed by the "State Administrative Procedure Act", article 4 of title 24, C.R.S. If a complaint is filed with the secretary of state pursuant to section 1-40-132 (1) alleging that a petition entity was not licensed when it compensated any circulator, the secretary may use information that the entity is required to produce pursuant to section 1-40-121 (1) and any other information to which the secretary may reasonably gain access, including documentation produced pursuant to paragraph (b) of subsection (2) of this section, at a hearing. After a hearing is held, if a violation is determined to have occurred, such petition entity shall be fined by the secretary in an amount not to exceed one hundred dollars per circulator for each day that the named individual or individuals circulated petition sections on behalf of the unlicensed petition entity. If the secretary finds that a petition entity violated a provision of paragraph (c) of subsection (2) of this section, the secretary shall revoke the entity's license for not less than ninety days or more than one hundred eighty days. Upon finding any subsequent violation of a provision of paragraph (c) of subsection (2) of this section, the secretary shall revoke the petition entity's license for not less than one hundred eighty days or more than one year. The secretary shall consider all circumstances surrounding the violations in fixing the length of the revocations.

 

  (b)  A petition entity whose license has been revoked may apply for reinstatement to be effective upon expiration of the term of revocation.

 

  (c)  In determining whether to reinstate a license, the secretary may consider:

 

  (I)  The entity's ownership by, employment of, or contract with any person who served as a director, officer, owner, or principal of a petition entity whose license was revoked, the role of such individual in the facts underlying the prior license revocation, and the role of such individual in a petition entity's post-revocation activities; and

 

  (II)  Any other facts the entity chooses to present to the secretary, including but not limited to remedial steps, if any, that have been implemented to avoid future acts that would violate this article.

 

  (4)  The secretary of state shall issue a decision on any application for a new or reinstated license within ten business days after a petition entity files an application, which application shall be on a form prescribed by the secretary. No license shall be issued without payment of a nonrefundable license fee to the secretary of state, which license fee shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., to cover the cost of administering this section.

 

  (5) (a)  A licensed petition entity shall register with the secretary of state by providing to the secretary of state:

 

  (I)  The ballot title of any proposed measure for which a petition will be circulated by circulators coordinated or paid by the petition entity;

 

  (II)  The current name, address, telephone number, and electronic mail address of the petition entity; and

 

  (III)  The name and signature of the designated agent of the petition entity for the proposed measure.

 

  (b)  A petition entity shall notify the secretary of state within twenty days of any change in the information submitted pursuant to paragraph (a) of this subsection (5).

 

  SECTION 19.  32-9-119.3 (2), Colorado Revised Statutes, as enacted by Senate Bill 09-108, enacted in 2009, is amended to read:

 

  32-9-119.3.  Elections for sales tax rate increase. (2)  A ballot question submitted pursuant to subsection (1) of this section shall be submitted at a general election or an election held on the first Tuesday of November in an odd-numbered year that is conducted in accordance with the "Uniform Election Code of 1992", articles 1 to 13 of title 1, C.R.S. The secretary of state shall determine the identifying numbering or lettering of such a ballot question, and the question shall be printed upon the ballot immediately following any statewide issues and questions amendments and propositions.

 

  SECTION 20.  Severability. If any provision of this act or the application thereof to any person or circumstance is held invalid for any reason, such invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of the act are declared to be severable.

 

  SECTION 21.  Appropriation. (1)  In addition to any other appropriation, there is hereby appropriated, out of any moneys in the department of state cash fund created in section 24-21-104 (3) (b), Colorado Revised Statutes, not otherwise appropriated, to the department of state, for allocation to the information technology division, for the fiscal year beginning July 1, 2009, the sum of one hundred four thousand four hundred dollars ($104,400) cash funds, or so much thereof as may be necessary, for the implementation of this act.

 

  (2)  In addition to any other appropriation, there is hereby appropriated to the department of personnel and administration, division of administrative courts, for the fiscal year beginning July 1, 2009, the sum of two thousand dollars ($2,000), or so much thereof as may be necessary, for the provision of administrative law judge services to the department of state related to the implementation of this act. Said sum shall be from reappropriated funds received from the department of state out of the appropriation made in subsection (1) of this section.

 

  SECTION 22.  Effective date - applicability. (1)  This act shall take effect upon passage; except that sections 4, 5, and 10 of this act shall take effect on July 1, 2009, and sections 1 and 12 of this act shall take effect on January 1, 2010.

 

  (2)  This act shall apply to any ballot issue that has a ballot title fixed and determined by the title board on or after the applicable effective date of this act.

 

  SECTION 23.  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.

 

Approved: May 15, 2009

 

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Capital letters indicate new material added to existing statutes; dashes through words indicate deletions from existing statutes and such material not part of act.


Session Laws of Colorado Digest of Bills General Assembly State of Colorado


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