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

 

 

 

CHAPTER 260

 

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ELECTIONS

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HOUSE BILL 09-1335 [Digest]

 

BY REPRESENTATIVE(S) Todd and Murray, Apuan, Casso, Labuda, Priola;

also SENATOR(S) Williams, Cadman, Kester, Spence.

 

 

 

AN ACT

 

Concerning requirements for voting equipment.

 

 

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

 

  SECTION 1.  1-1-104 (13.5), Colorado Revised Statutes, is amended, and the said 1-1-104 is further amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to read:

 

  1-1-104.  Definitions. As used in this code, unless the context otherwise requires:

 

  (13.5)  "Electromechanical voting system" means a system in which an elector votes using a device for marking a ballot card using ink or another visible substance and the votes are counted with electronic vote-tabulating equipment. The term includes a system in which votes are recorded electronically within the equipment on paper tape and are recorded simultaneously on an electronic device that permits tabulation at a counting center. As used in part 6 of article 5 of this title, "electromechanical voting system" shall include a paper-based voting system.

 

  (16.5)  "Federally accredited laboratory" means a laboratory certified under sec. 231 of the federal "Help America Vote Act of 2002", Pub.L. 107-252, codified at 42 U.S.C. sec. 15301 et seq., or any successor section.

 

  (23.5)  "Paper-based voting system" means an electromechanical voting system in which the elector's vote is recorded solely on a paper ballot.

 

  SECTION 2.  1-5-601, Colorado Revised Statutes, is amended to read:

 

  1-5-601.  Use of voting systems. (1)  In all elections held in this state, the votes may be cast, registered, recorded, and counted by means of an electronic or electromechanical voting system as provided in this part 6.

 

  (2)  As used in this part 6, "electromechanical voting system" shall include a paper-based voting system as defined in section 1-1-104 (23.5).

 

  SECTION 3.  1-5-601.5, Colorado Revised Statutes, is amended to read:

 

  1-5-601.5.  Compliance with federal requirements. All voting systems and voting equipment offered for sale on or after May 28, 2004, shall meet the voting systems standards that were promulgated in 2002 by the federal election commission. and that may thereafter be promulgated by the federal election assistance commission. At his or her discretion, the secretary of state may require by rule that voting systems and voting equipment satisfy voting systems standards promulgated after January 1, 2008, by the federal election assistance commission as long as such standards meet or exceed those promulgated in 2002 by the federal election commission. Subject to section 1-5-608.2, nothing in this section shall be construed to require any political subdivision to replace a voting system that is in use prior to May 28, 2004.

 

  SECTION 4.  1-5-608.5, Colorado Revised Statutes, is amended to read:

 

  1-5-608.5.  Electronic and electromechanical voting systems - testing by federally accredited labs - certification and approval of purchasing of electronic and electromechanical voting systems by secretary of state - conditions of use by secretary of state - testing. (1)  A recognized independent testing authority federally accredited laboratory may test, approve, and qualify electronic and electromechanical voting systems for sale and use in the state of Colorado. if:

 

  (a)  The independent testing authority has met all of the obligations and ongoing requirements necessary to gain certification as an independent testing authority from the federal election assistance commission;

 

  (b)  The independent testing authority conducts any and all tests required by the federal election assistance commission for granting certification to independent testing authorities to verify the integrity of the electronic and electromechanical voting systems to be used in Colorado.

 

  (2)  No electronic or electromechanical voting system shall be used in any public election in this state unless it has been certified by the secretary of state following successful qualification testing conducted by a recognized independent testing authority pursuant to this section.

 

  (3) (a)  If the electronic and electromagnetic voting systems tested pursuant to this section satisfy the requirements of this part 6, the secretary of state shall certify such systems and approve the purchase, installation, and use of such systems by political subdivisions and establish standards for certification.

 

  (b)  The secretary of state may promulgate conditions of use in connection with the use by political subdivisions of electronic and electromechanical voting systems as may be appropriate to mitigate deficiencies identified in the certification process.

 

  (c)  In undertaking the certification required by this section, the secretary of state may consider either procedures used or adopted by county clerk and recorders or best practices recommended by equipment vendors.

 

  (4)  In undertaking the certification required by this section, the secretary of state may request a federally accredited laboratory to undertake the testing of an electronic or electromechanical voting system or may use and rely upon the testing of an electronic or electromechanical voting system already performed by another state or a federally accredited laboratory upon satisfaction of the following conditions:

 

  (a)  The secretary of state has complete access to any documentation, data, reports, or similar information on which the other state or laboratory relied in performing its testing and will make such information available to the public subject to any redaction required by law; and

 

  (b)  The secretary of state makes written findings and certifies that he or she reviewed the information specified in paragraph (a) of this subsection (4) and determines that the testing:

 

  (I)  Was conducted in accordance with appropriate engineering standards in use as of the time the testing is undertaken; and

 

  (II)  Satisfies the requirements of sections 1-5-615 and 1-5-616 and all rules promulgated thereunder.

 

  (5)  In undertaking the certification required by this section, the secretary of state may conduct joint testing with an agency of another state or with a federally accredited laboratory.

 

  SECTION 5.  Repeal.  1-5-614, Colorado Revised Statutes, is repealed as follows:

 

  1-5-614.  Certification of electronic and electromechanical voting systems - standards. The secretary of state shall certify electronic and electromechanical voting systems and approve the purchase, installation, and use of such systems by political subdivisions and establish standards for certification.

 

  SECTION 6.  1-5-617 (1) (c), Colorado Revised Statutes, is amended to read:

 

  1-5-617.  Examination - testing - certification. (1) (c)  The secretary of state shall decide whether to certify an electronic or electromechanical voting system within ninety one hundred twenty days after the system is submitted for certification.

 

  SECTION 7.  1-5-618 (1), Colorado Revised Statutes, is amended, and the said 1-5-618 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read:

 

  1-5-618.  Modification of electronic and electromechanical voting systems - definitions. (1)  After an electronic or electromechanical voting system has been certified by the secretary of state, a political subdivision may not adopt any modification of the system until the modification is certified or approved in accordance with the provisions of subsection (1.5) of this section by the secretary of state. A person desiring approval of a modification shall submit a written application for approval to the secretary of state.

 

  (1.5)  Upon receipt of the written application for approval in accordance with subsection (1) of this section, the secretary of state shall undertake a preliminary examination of the proposed modification. In connection with such preliminary review, the secretary shall determine if the proposed modification may cause adverse effects on the security or accuracy of elections. The secretary shall make the determination within forty-five days after receiving the request. If the secretary, upon completion of his or her preliminary review of the request, determines that the proposed modification will cause significant adverse effects, the modification shall be subject to further review under the provisions of subsection (2) of this section. If the secretary determines, upon completion of his or her preliminary review, that the proposed modification causes no adverse effects, the secretary shall approve the modification. If the secretary determines, upon completion of his or her preliminary review, that the proposed modification causes possible adverse effects, the modification shall be subject to further review under the provisions of subsection (4) of this section. Following such additional review, if the secretary determines that any adverse effects of the proposed modification are insignificant, the secretary shall approve the modification. If, however, following such additional review, the secretary determines that the adverse effects of the modification are significant, the modification shall be subject to further review under the provisions of subsection (2) of this section.

 

  SECTION 8.  Part 6 of article 5 of title 1, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

 

  1-5-623.  Special rules applicable to use, modification, or purchase of electronic voting devices or systems and related components prior to 2014 - legislative declaration - rules. (1) (a)  The general assembly hereby finds and declares that, over the past decade, voting technology used in the state has undergone dramatic changes, creating confusion and difficulties for election administrators, state government, and the voting public. Efforts to address this confusion have been complicated by the timing of periodic substantial investments in voting technology by county governments necessitated by changes in federal and state law.

 

  (b)  Now, therefore, by enacting this section, the general assembly intends that:

 

  (I)  Between the effective date of this section and the 2014 general election, any voting system purchased by a political subdivision shall be a paper-based voting system as defined in section 1-1-104 (23.5);

 

  (II)  The acquisition of electronic voting systems be suspended in order to assess existing and emerging voting technologies; and

 

  (III)  Substantial investment by political subdivisions before the 2014 general election in alternate technologies that will frustrate the intent of the general assembly as specified in paragraph (a) of this subsection (1) is discouraged and disfavored.

 

  (2)  Notwithstanding any other provision of this part 6, any existing electronic voting device or any related component to the device that was used by a political subdivision in conducting the 2008 general election may continue to be used by the political subdivision on and after the effective date of this section as long as the device or component is used in accordance with either the conditions of use under which the device or component was originally certified for the 2008 general election or in accordance with alternate conditions of use established by the secretary of state.

 

  (3) (a)  Notwithstanding any other provision of law, on and after the effective date of this section, no political subdivision may purchase a new electronic voting device or system or any related component to such device or system without obtaining the prior approval of the secretary of state for such purchase in accordance with the requirements of this subsection (3).

 

  (b)  Subject to the requirements of paragraph (a) of this subsection (3), if a political subdivision desires to purchase a new electronic voting device or system or any related component to such device or system, the political subdivision shall submit a written application to the secretary of state for approval of the purchase. The application shall be made by means of any forms or procedures established by the secretary. Within three business days of receiving the application, the secretary shall grant or deny the application. In reviewing the application, the secretary shall consider, among other relevant factors, the total effect of the purchase at issue in light of other purchases by the political subdivision on voting systems or components of such systems on or after the effective date of this section and the needs of the political subdivision. In making the determination, the secretary shall prevent political subdivisions from making substantial investments in alternate technologies that will frustrate the intent of the general assembly as specified in subsection (1) of this section and shall consider, among other relevant factors:

 

  (I)  Whether the purchase is intended to replace damaged or defective equipment or to accommodate an increase in population in the political subdivision;

 

  (II)  Whether the purchase requires a new contract or agreement that would be entered into by the political subdivision and one or more vendors; and

 

  (III)  A comparison of the purchase under review with the average capital expenditures by the political subdivision on the administration of elections on an annual basis for the four consecutive years prior to the year in which the application is submitted in order to discourage an investment in technology with a limited useful life in accordance with the intent of the general assembly as specified in subsection (1) of this section.

 

  (4)  The secretary of state shall promulgate 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 specify permissible conditions of use governing electronic voting devices or systems or related components to such devices or systems in accordance with the requirements of this part 6.

 

  SECTION 9.  1-5-801 (2), Colorado Revised Statutes, is amended to read:

 

  1-5-801.  Acquisition of voting systems - voter-verified paper record. (2)  A political subdivision shall not acquire a voting device that has been retrofitted to comply with this part 8 unless the voting device has been certified by an independent testing authority and the secretary of state.

 

  SECTION 10.  1-5-802 (1), Colorado Revised Statutes, is amended to read:

 

  1-5-802.  Use of voting systems - voter-verified paper record. (1)  In addition to the other requirements of this article, the voting system used in each primary, general, coordinated, or congressional district vacancy election held in the state on and after January 1, 2010, shall have the capability to produce a voter-verifiable paper record of each elector's vote. Before an elector's vote is cast, the elector shall have the opportunity, in private and without assistance, to inspect and verify that the voter-verified paper record correctly reflects the elector's choices. Any political subdivision that has not complied with the provisions of this section on or before January 1, 2009, shall comply with such provisions by January 1, 2014.

 

  SECTION 11.  1-7-514 (3), Colorado Revised Statutes, is amended to read:

 

  1-7-514.  Random audit. (3)  The secretary of state shall post the reports of any completed audit or investigation received pursuant to paragraph (c) of subsection (2) of this section on the official web site of the department of state not later than twenty-four hours five business days 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 web site 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 web site.

 

  SECTION 12.  Part 5 of article 7 of title 1, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

 

  1-7-515.  Risk-limiting audits - pilot program - rules - legislative declaration - definitions. (1) (a)  The general assembly hereby finds, determines, and declares that the auditing of election results is necessary to ensure effective election administration and public confidence in the election process. Further, risk-limiting audits provide a more effective manner of conducting audits than traditional audit methods in that risk-limiting audit methods typically require only limited resources for election races with wide margins of victory while investing greater resources in close races.

 

  (b)  By enacting this section, the general assembly intends that the state move towards an audit process that is developed with the assistance of statistical experts and that relies upon risk-limiting audits making use of best practices for conducting such audits.

 

  (2) (a)  Commencing with the 2014 general election and following each primary, general, coordinated, or congressional vacancy election held thereafter, each county shall make use of a risk-limiting audit in accordance with the requirements of this section. Races to be audited shall be selected in accordance with procedures established by the secretary of state, and all contested races shall be eligible for such selection.

 

  (b)  Upon written application from a county, the secretary of state may waive the requirements of paragraph (a) of this subsection (2) upon a sufficient showing by the county that the technology in use by the county will not enable the county to satisfy such requirements in preparation for the 2014 general election.

 

  (3)  Prior to the 2010 primary election, the secretary of state shall establish a pilot program in selected counties for the purpose of testing the procedures and technical requirements necessary to conduct a risk-limiting audit in accordance with the requirements of this section. The secretary shall work with equipment vendors to identify technical modifications to election equipment that may be necessary to support the use of risk-limiting audits in the state. The secretary shall draw upon the experiences of the pilot program in making future recommendations for modifications to this code.

 

  (4)  The secretary of state shall promulgate rules in accordance with article 4 of title 24, C.R.S., as may be necessary to implement and administer the requirements of this section. In connection with the promulgation of the rules, the secretary shall consult recognized statistical experts, equipment vendors, and county clerk and recorders, and shall consider best practices for conducting risk-limiting audits.

 

  (5)  As used in this section:

 

  (a)  "Incorrect outcome" means an outcome that is inconsistent with the election outcome that would be obtained by conducting a full recount.

 

  (b)  "Risk-limiting audit" means an audit protocol that makes use of statistical methods and is designed to limit to acceptable levels the risk of certifying a preliminary election outcome that constitutes an incorrect outcome.

 

  SECTION 13.  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.


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