5/17/2021 What follows is a snapshot of an unfortunate reality about a Senate bill regarding elections in Colorado. There is precious little understanding of election process by Senators in debate.  They are called upon to decide what the election law will be without adequate understanding.

This webpage is dedicated to one topic- signature verification as the means of voter identity validation when the voter is not appearing at a polling center to vote. Colorado Senate Bill 250 aims to remove the principal oversight function that representatives of campaigns and political parties currently have to challenge mistakes made in voter authentication by signature verification. Please, members of the Colorado House of Representatives follow through and adopt the L_010 amendment that was presented on the Senate floor to remove the offending section 45 of Bill 21-250. The public hearing is May 17 at 1:30 and can be heard here:

http://leg.colorado.gov/committee/audio/2038951

What follows is the story of the loss of that amendment to maintain watcher challenges related to signatures during Senate Second Reading of Senate Bill 250. The video segments are  accompanied by Harvie Branscomb’s detailed comments.

On May 11 the Colorado Senate considered Senate Bill 21-250 on Second Reading. That is the major opportunity for debate among all the Senators. The bill is entitled Elections and Voting (a surprisingly non specific bill title in a legislature where in past years the principal sponsors jealously guarded the scope of the bill to avoid hijack by the opposition.)

Emboldened and capitalized words are opinions of Harvie Branscomb and you are welcome to  argued with them. The following record of videos were obtained under fair use from the coloradochannel.net and are included here for purposes of sharing the Senators’ debate with the public.

Here is the Principal Sponsor and Senate Majority Leader Steve Fenberg introducing the bill.

Senator Fenberg describes amendments added to the bill in committee. One such amendment removed the section concerning emergency voting that would have expanded the opportunity for emergency voting to include many voters in or out of state who simply did not receive a ballot. Because emergency voting involves remote electronic marking and return via the internet, it is admirable that the sponsors agreed to remove this section from the bill.

Co-principal Sponsors Senators Fenberg and Gonzales  moved their own amendment L_009 that makes a very minor wording change to the bill.

Senator Fenberg also moves and the Senate adopts amendment L_008 that also seems a very minor improvement in leniency related to political buttons worn at schools that are polling places. The almost trivial nature of these amendments probably suggests to the Senators and those who are familiar with legislative procedure that the bill is in excellent shape for passage.

Once the amendment is passed, the Senator continues on to present the case for passage of the bill as a whole – SB-250 Elections and Voting:

Senator Woodward (R) then introduces his amendment L_010 to restore original challenges based on signature that have been in Colorado law for years.

Senator Woodward argues that several points in the bill make significant changes, not minor ones unlike what Senator Fenberg has said. TRUE. The clause being changed, he argues, will prevent the beneficial effect of signature verification. MAY BE TRUE. Rejection of a ballot received presumably from an eligible voter depends on  a bipartisan decision by election judges before and after a cure process is performed by the voter. The process is triggered by a challenge of the signature that may come from a watcher who is not an election official or from an election judge who is. Both have access to the same information but the watcher access is often more constrained. A realistic challenge depends on sufficient access to the signature on the envelope and the signatures stored in SCORE as a basis for consideration. That access is severely constrained by statutory and regulatory rules. A random citizen is not allowed that access. Besides a signature comparison mismatch, failure to provide a signature and in some cases failure to provide a copy of ID triggers a cure process that could lead to rejection of a ballot. The case of missing signature is also no longer a single basis for a challenge, unfortunately if SB-250 passes unamended.

I am a citizen who has been appointed in numerous elections and in numerous Colorado counties to be a credentialed watcher. I have watched signature verification and I have challenged voter authentication in several counties following my observation of an improper decision by an election judge or a bipartisan pair of election judges in the process of signature verification. I am, if anyone is, an expert on the topic of this challenge process. It is difficult and it is annoying for everyone involved. Each county has its own way to handle signature verification, and the supervision and observation of it, as well as the challenge and cure process for election judges, staff and for watchers. My watcher challenges have resulted in a remedial benefit on an occasionally faulty process. My presence  and the potential for a challenge even if never done has a cleansing effect on the election. There are adequate rules to permit the election officials to protect the election from harmful interference by watchers. It is not necessary to remove an existing process from elections to obtain this security.

A watcher advisory committee  was established by the SOS several years ago to discuss watcher rules. New rules were proposed and adopted based upon the advice gained in this committee. I was an appointed member of the committee.  One specific limitation on watching was made to ensure that not too many challenges would be made by one watcher in a period of time.

Senator Fenberg appears to create an imaginary straw man condition where the election is subject to outrageous interference by ill trained and interfering citizens as if these risks were not already considered and handled with existing regulations. He does this to build an argument against amendment L_010. The amendment does nothing other than to leave the existing law untouched.

Minority Leader Chris Holbert here agrees with the amendment L_010 to restore existing signature challenges:

Senator Holbert argues that there are vastly increased numbers of voters using the return of votes by mail ballot. The primary reason we are expected to have confidence about mail ballot validity is because of signature verification. TRUE. Senator Holbert says ballots cannot be challenged on signature alone after SB-250 is passed. TRUE (depending on whom is affected by the limitation on challenges.) He asserts that this will remove the last chance to establish eligibility for 95 percent of Colorado’s ballots. MAYBE TRUE.

Senator Holbert continues his argument here:

Colorado has been relying upon the validity of the signature. TRUE. He describes automatic signature verification and the fact that its effectiveness is controlled by a parameter that is set by each county’s discretion. TRUE IN SOME COUNTIES. Now challenges cannot be based on the voters signature. TRUE DEPENDING ON WHICH CHALLENGES ARE COVERED. That is the only thing that is checked to determine the authenticity.  TRUE.

Senator Holbert seems not aware that most counties in CO do not have automatic signature verification. He says “that is how it works in our state” but that only true for the large counties. TRUE IN MOST LARGE COUNTIES.

Senator Holbert finishes his argument in favor of amendment L_010 for SB21-250:

Senator Chris Holbert again presumes that all counties have the machinery for scanning the envelopes but this isn’t the case. He supports the amendment and asks: “by what other criteria would a ballot be challenged if not by signature?” GOOD QUESTION.

Majority Leader Fenberg and a Principal Co-sponsor of the bill argues against the L_010 amendment. (The bill removes opportunities for challenge of voter eligibility based on signature alone. The amendment would strike that part of the bill and keep the existing opportunity for challenges of the matches of signatures from the envelope to the reference signatures on file by appropriate persons who are given adequate access to the signatures.)

Senator Fenberg makes the claim that the opposition is sowing seeds of doubt.  He says it has happened over several years. He says the SOS and Clerks Association  support this technical  cleanup that does not get rid of signature verification. DO CLERKS SUPPORT THE END OF THE SIGNATURE CHALLENGE? He makes a straw man argument about trust in election outcomes. He says “it says signatures on mail ballots must be reviewed in accordance with section 1-7.5-103.” He claims “because that  is the section where the judges review signatures”. INCORRECT.  (In fact that citation in the bill is incorrect and refers only to a set of definitions that do not include signature verification.  The citation is probably a drafting error that was not caught in the Senate at all – not a good sign for an 80 page omnibus that changes dozens Colorado statutes regarding elections.

He says they are a bipartisan team of judges who are hired and that review signatures and decide based on all the data they have -the  computer system they have- they compare signatures, multiple years of signatures. TRUE. He says it has to be a team of judges, bipartisan judges that make the final call. “That is still in law if this bill passes”. TRUE. (While the signature verification may be required to take place, it is not clear that  a failure to cure would actually reject a return envelope under the language modified by SB-250.)

It is not actually clear that the bill text refers only to watcher challenges: “This section is about an individual not a judge who is challenging someone’s right to vote. That is a pretty serious accusation”. The challenge is the mechanism for determination if the voter deserves to vote and the citizen challenge (in the form of the watcher) is what makes sure the minority will be served fairly.

Senator Fenberg’s understanding of signature verification appears to be defective. He presents the concept as if the voter’s identity is secure but the access to have the ballot counted is not. That is a voter perspective. Of course the voter never questions their own identity and so to them, the signature verification could only be an obstacle to voting.

But from the perspective of every other citizen who depends upon the election outcome and from the point of view of the system itself, the signature is the only artifact that Colorado uses to establish that the voter identity is authentic when the voter is not present. It is a natural and inconvenient side effect of the legislative choice to favor mail-in voting. In remote voting, the voter identity is unsure and there must be an opportunity for challenge. CRS has always given an opportunity for credentialed watchers to question the decision of bipartisan citizen election judges who make the final call. It is presumably not staff or the elected election officials who employ them who make the decision who is allowed to vote. Those elected officials may have partisan interest as well as perhaps personal interest in the outcome of the election.

Senator Fenberg says the signature challenge could be use for political purposes. Does he have any evidence of a case where such a challenge was suspected of being for political reasons? He has presented none in this debate.  For example he might produce an instance where all of the challenges were beneficial only to one party and the other party was unable to benefit? I doubt it. The Senator is speculating that the challenge process is harmful. I can say from personal experience it is not.

senator Fenberg: “Signature verification happens by the judges who are hired to help in a bipartisan manner to make sure our elections are secure.” TRUE. Yes, election judges are hired and often act in a bipartisan manner. But the basis for confidence in an accurate election was in a legacy election established when voters saw other voters appear to check in to vote at a precinct and identify themselves, sign an affirmation of eligibility under supervision and actually vote in a secure and private location and have the vote tabulated in front of them. None of those steps occur in the modernized Colorado election model. Senator Lundeen later makes this point.

Senator Fenberg wraps up his first rebuttal of the Republican amendment to save signature challenge.

Senator Fenberg claims that a deceased voter can be challenged. He says “that’s good because an election judge isn’t going to know who died recently”. MISDIRECTION. It isn’t the personal knowledge of election judges or watchers or ordinary citizens that has any impact on elections.  The information (in this case signatures) is protected so that only credentialed personnel have access and credentialed personnel can have specific effects to trigger further consideration.

The process is designed with leniency built in- a preference for approval of the ballot packet to count. The idea that only in the case of a deceased voter should the challenge be effective is absurd. There are many instances where persons may and we know actually have found reason and opportunity to falsely sign a ballot envelope in order to cause a ballot to be counted. Many of these but not all might be considered harmless workarounds for election inconvenience. But each valid situation has a workaround provided for it that does not involve a fraudulent signature. The system should be accurate about signature verification and it should undergo oversight not only by staff supervisors but by partisan or integrity motivated credentialed watchers who also deserve a means to challenge the decision. The law prior to SB-250 provides that opportunity and it is constrained in practice by adequate SOS Election Rules.

Fenberg states that the Bill section to remove the signature challenge is a request of the county clerks to help the administer elections. If so, then the county clerks will correctly be blamed for the removal of the most significant opportunity for citizens appointed by political parties and candidates to have involvement in elections. What the bill says is these watchers may observe but have no route to a remedy for errors they observe. This decision is timed most inappropriately at the moment when citizens are actually becoming aware of how much of their own control and access to elections is being taken away- and particularly concerning eligibility determination.

Finally Senator Fenberg calls Senators Holbert and Woodward’s claims about the effect on signature verification to be misdirection – trying to see that our elections are not secure. MISDIRECTION WHILE CLAIMING MISDIRECTION. Fenberg simply states “they are”.  “This part of the bill is intended to make sure that we have continued security and access to our democratic process.” MISDIRECTION.

That statement is misdirection. The removal of watcher challenge of remote voter authentication clearly limits access to our democratic process and does nothing to additionally secure it. Safeguards not mentioned in the debate are already in Rule. The current election rules adequately prevent insecurity that might be introduced by the signature challenge opportunity. If not, the evidence of the interference that the rules could not remedy should be brought forward.

SB-250 takes a drastic step to prevent any effective oversight of the most vulnerable   risk that our election outcomes are inaccurate. The tabulation errors are countered with the Risk Limiting Audit, The process offers little to support confidence that voter authentication is adequate. The watcher challenge is (or was) the most effective tool that would help build that confidence.

Senator Lundeen rose to argue with Senator Fenberg:

Senator Lundeen: “The challenge is what triggers a review rather than obstructing someone’s right to vote. CORRECT. “Our goals are: easy to vote, hard to cheat. Allowing individuals to be engaged in the process. It provides assurance you don’t have to be part of the state apparatus to ask questions. Removing it undermines that level of trust that they can be involved in the process.” TRUE.

“The signature is a fundamental aspect of the Colorado voting system.” TRUE. You can’t look the voter in the face. Give proper weight and ability to engage on the signature.

Senator Lundeen is  correct here, although he does not mention that to get access to see the signatures, a citizen would have to be appointed by either a party or a candidate or an issue committee depending on the circumstance and would have to be trained by a SOS training program. These are existing safeguards to prevent interference by citizens who seek to challenge voter authentication with malfeasance. SB-250 wipes away all the work that has already been done to solve the imagined problem.

Senator Fenberg argues with Senator Lundeen claiming the high road for accuracy:

Fenberg says “what you are hearing about this amendment is not how elections actually are currently managed. You already as an individual (not a judge) you cannot challenge someones signature. It is already the practice. This is clarifying what they currently do in every single county in this  state.”  FALSE.

Then Fenberg elaborates a straw man imagination of what might happen if any citizen attempted to challenge a signature based on their own private access to signatures. This is utterly irrelevant to election practice and statute and regulation either with or without SB-250. Fenberg is going way beyond his expertise and knowledge to make this point. He says with a laugh “what are they comparing the signature to?” He says “they don’t have access to SCOR.” That is generally true, but not entirely. They do have access to see SCORE signatures but not to the entire signature database except when watching election judges actually accessing SCORE. That is the time and place, the  only time and place where such a challenge can be made either by a citizen who has access – either a watcher or an election judge or a managing official (who actually ought not to be making such a challenge but I have seen them make that decision).

Fenberg here is making a joke out of signature challenge when it is not only not a joke, signature verification is one of the weakest and least consistent and most in need of reform processes  in the Colorado election. It is very much in need of oversight by citizens with access to remedies such as escalation to reconsider a potentially faulty signature decision.  Signature verification has so little visibility to the public that the public has no idea what process their election accuracy depends upon. Officials often suggest that the tabulation audit (RLA) confirms outcomes but it cannot without audit of eligibility determination and  chain of custody. In lieu of that eligibility audit, we have the signature challenge.

“Only judges can challenge because only judges have access to the database with the signatures”. This suggests that Senator Fenberg is not aware of the watcher role and function. If so, he ought not be defending the removal of a critical watcher function.

Of course watchers to be effective to “witness and verify every step in the election” must have access to the same information that the election judges do. And they sign an oath to protect sensitive information that is observed.

Senator Fenberg: “this talk about ‘this undermines the security of our elections’ is absurd.” NOT LIKELY.

It is not absurd but Senator Fenberg’s stance is one that is frighteningly close to either absurd or dangerous.

Senator Fenberg: “This is currently not how it works and it [the bill] clarifies current practice”.  WRONG. The bill drastically changes current practice. Fenberg is apparently aware of protective security that prevents citizens outside of election process to access SCORE signatures but he is unaware of the fact that citizen watchers alongside judges do get access to the signature and other evidence in SCORE because of their credentials .  Watchers help ensure accuracy and conformance to regulations, when they are permitted to challenge based on signatures as is currently the case. I am one of those citizen watchers. It is true that some counties are more reluctant to offer access to watchers than others.

Senator Fenberg says: “to say it is removing signature verification is not correct.”  I think it may require a court to determine whether or not Fenberg is correct in this case.

Senator Hisey goes to the well to contribute to  Senator Fenberg’s argument:

“What does the signature match?” Senator Hisey answers with a correct answer- “The signature that the clerk and recorder has on file.” YES. “There is not a judge standing there saying this matches or it doesn’t… You have volunteers,you may have some employees”. He does not seem to understand the label of “election judge” but he does understand that these are citizens and volunteers “like you or me”. Senator Hisey: “That happens to be the job they are assigned. The signatures have to match a signature on file not a signature from a teenage love letter.” CORRECT. But he urges a no vote (being a Democrat). It seems he is correcting one of Senator Fenberg’s straw man imaginations.

Senator Fenberg in rebuttal:

“This is important. Because what was said was wrong. In my opinion. An election judge looks at the signature. It is not a random volunteer that just wants to help out.” CORRECT.

“They are a paid employee of that county clerk’s office. They are judges. Only judges have access to the database to compare signatures. That is what a judge does. That is why they are hired for the elections.” CORRECT.

“I am not going  to do this back and forth on everything that is coming.But I do think it is important when we say things at the well about how our democracy is run. That they are accurate. Because there are serious problems in our country right now with conspiracy theories and people  intentionally undermining our election process. And I don’t think anybody here wants to do that. But it is important that we are talking about the facts and we are not saying things that are just blatantly untrue about how our elections are administered and the security that underlies the democratic process.” MANY OF THE SENATOR’S OWN STATEMENTS ARE SUBSTANTIALLY INACCURATE AND THAT MAKES THIS ATTACK INOPPORTUNE.

In my opinion, on the whole it is Senator Fenberg who is incorrect in his understanding of the underpinnings of integrity of the process and he is the one who through this bill is undermining an election process that is already in trouble about sharing responsibility and information with its constituents the citizens. He is not sharing the truth about the challenge process. At a minimum the bill prevents accredited citizen ability to contribute to the integrity of the election through the challenge process. It isn’t the irresponsible function that he imagines. At worst the bill will harm the actual process of rejection of ballot envelopes and the sending of cure letters for reason of decisions made by election judges. It remains unclear if that is the true effect of the bill. At best it prevents any watcher effort to escalate a problem with signature verification to a second review. That is the entirety of the effect of the citizen challenge that Senator Fenberg intends to disable.

Senator Kirkmeyer states what she knows to be true in Weld County in opposition to Senator Fenberg:

Senator Kirkmeyer steps in to correct the mistakes of previous speakers but instead creates a further misunderstanding that might be correct but if so only for her own county:

“Just as a correction it is not the election judge who checks the signature. It is an actual employee of the clerks office. I understand the election judge and they are paid for a certain amount of time. But they don’t actually check the signature. WRONG OR IF RIGHT, NOT LEGAL.

As I understand CRS and SOS Rules, the election judges are the only officials who ought to be verifying the signature. If regular employees are doing it they should be sworn in as election judges and should be working in bipartisan pairs in the final stage of signature verification.

“They watch the employee of the elections office put them through the computer and scan them. Then it is actually up to the employee of the county, not the election judge, but the employee. So the election judge is just here to watch and observe.” WRONG.

The witness and verification job belongs to the watchers appointed and credentialed by political parties, ballot question committees and candidates.

“They have the opportunity to look at the screen with the employee with the clerks office but I can tell you for certain in Weld county it is not the election judge who makes the determination on the signature. THIS IS SHOCKING.

“Then if there is a discrepancy on the signature and the clerk believes or the election official believes there is an issue with it that might be fraudulent, they actually  send it to the district attorneys office. WRONG AND A LARGE OMISSION ABOUT CURE.

The clerk is not the authority for judgements reserved for election judges. While in reality I have seen it, that is contrary to the intention to have an independent evaluation done outside of the authority of the clerk and recorder.

“So, it is not the election judge who specifically looks at the signature and makes the determination. While they are the employee for a short period of time, they are not the ones who are responsible. It is the election official not the election judge. They watch and observe to make sure the process is being followed correctly. That’s it. FALSE AND DISTURBING.

Senator Kirkmeyer has substituted the role of watcher for the role of election judge here.It is amazing that among all the Senators arguing only she seems to know that there is a role for watching. Unfortunately she attributes it to the role of the election judge.

Attempting to clarify, Senator Fenberg returns to the well to defend his bill and to once again oppose amendment L_010 that would restore watcher challenge opportunities  during signature verification.

Majority Leader Fenberg states:”Again while that may be exactly how it works in Weld County it is still the spirit of what the current law does, what the bill does and not what this amendment does. This amendment is about random Joe Schmoe being able to challenge someones signature because they think it doesn’t match to a love letter or whatever else they have that person’s  signature on. I don’t think random people who are untrained who are probably there for political purposes should be able to invalidate my vote. That is what the premise of this amendment is seeking to accomplish.”

FALSE, MISDIRECTION AND STRAW MAN ARGUMENT.

I have discussed the falsity of what Senator Fenberg advances as an argument here already above. I don’t think “people who are untrained who are probably there for political purposes”  such as Senator Fenberg should be able to make false arguments to support a bill that invalidates my credentialed opportunity to verify and obtain a remedy when election process is being conducted inaccurately. Protecting the appropriate existing opportunity in existing law is what the amendment is seeking to accomplish. Senator Fenberg is unintentionally wrong or misguided and in any case misleading the Senators about this amendment and about this bill and about the current law- all three. He is I think the proper target of his own criticism.

As you can see, since the Democrats are in a majority and in control of the Senate, the voice vote for the amendment L_010 is automatically assumed to be a loss of the amendment. The Republicans who introduced the amendment apparently gave up in the face of a barrage of rhetorical arguments based on a very unfortunate misunderstanding of the role of challenges in pursuit of election accuracy. Sadly those supporting the amendment were also not particularly well informed.

Members of the House of Representatives, please do enact this amendment to retain the existing opportunity for challenge by credentialed watchers who are willing to sacrifice their time to help maintain the quality of Colorado’s elections.