4/14/2021 Colorado is speeding towards approval of electronic (internet) return of ballots for self-identified disability voters. Any person on the registration list can during an election select the disability option on Colorado’s public internet voting portal. All that is required in lieu of  the usual signature on an affidavit of eligibility is the inclusion of an election qualified ID such as a drivers license or utility bill. As of April 12 2021 the measure passed out of the Colorado Senate on a largely partisan vote of 22 to 13. There was no debate on the Bill on the floor of the Colorado Senate.

I present here some comments on the dangerous and unreasonable situation that the bill presents for Colorado and then some suggestions for legislative text to improve the quality of the Bill. I include at the end of this post a transcript of the 5 minutes of testimony by the sponsor of SB21-188 that was followed by zero debate leading to adoption in the Colorado Senate on Second Reading Friday April 9,2021. It was adopted on final passage on Monday April 12 and sent to the Colorado House.

The bill text and current status and schedule can be read here:

https://leg.colorado.gov/bills/sb21-188

Here is a link to my experience using the electronic portal to vote and to return and to cure a Colorado ballot: https://electionquality.com/2021/04/voting-in-colorado-via-electronic-methods/

Harvie Branscomb observations about Colorado Senate Bill 21-188 (April 14, 2021)

tarnishes Colorado’s excellent reputation for election security; takes CO further from an evidence-based election; while experts agree that sending votes across the internet is risky and the US Congress considers taking the nation to a universal verifiable paper ballot, Colorado is heading away from verified paper;

• SB21-188 in the form in which it was adopted by the Colorado Senate on April 12 will not contribute to Colorado’s exceptional reputation for election integrity. It instead establishes that Colorado does not deserve the magnanimous current praise. Turnout is not the only measure of election quality. Colorado must consider a variety of quantitative and qualitative measures of election integrity to assess excellence. The appropriate goal for Colorado is an evidence-based election with both substantive voter verification and also system verification both by officials and by public observers. Electronic methods of vote return and particularly those using the internet are not compatible with that goal. Colorado must promote limited use of electronic return of votes only for specific instances of disability and in contexts where other safer options are not viable. Colorado must continue to lead the nation by implementing quality assurance with extensive and excellent testing, reporting, accountability and transparency. To achieve that, SB21-188 will require a rewrite.

SB-188’s electronic ballot return will be easy to misuse while it legitimately benefits few;

• An open records request reveals that 200 people in Colorado downloaded ballots using the existing portal for voters claiming disability in November 2021. That number is something that the public ought to easily find online but will not. SB-188’s addition of electronic return to an almost uncontrolled access to the most risky of disability voting methods means hundreds of thousands of persons might use this opportunity whether they need it or not. Only a fraction of the many possible future users of SB-188 cannot mark a paper ballot and are unable to independently return a paper ballot.  Specific voters gain desirable independence as the benefit of SB-188 while many others will gain only convenience at the cost of overall integrity for the election.

current methods of remote electronic assistance in voting are neither certified nor tested nor even accounted for in publicly accessible reports;

• The software currently used in Colorado for voting activity that crosses the internet is not certified, not to our knowledge tested by federal, state or local election officials. The counts of voter use of these alternative voting methods is not effectively reported either to officials or to the public during and after the election. SB-188 should require the Secretary of State to publish reports of counts of ballots transmitted and numbers of voters using the alternative methods.

other ways to provide accessibility are more effective; many are already in place;

• There are more secure means to bring accessibility enhancements to specific voters who need them. Colorado law already enables visits by officials to health care facility voters as well as curbside voting. The emergency ballot process is also available on the same internet portal that already includes an electronic return option. Those options argue against any urgency of need for SB-188.

rapid growth in usage of electronic return is likely for users that do not need the method for accessibility;

• There is no conceivable way to curtail misuse or needless use of SB-188’s return by internet. It must be considered an internet voting bill for a large constituency as soon as the knowledge about the availability of the portal is widely shared. Likely over ten percent of all voters are justifiably considered having disability. But the need for leniency in that definition means many more may use the opportunity. SB-188 depends on the honor system. The website portal to request a ballot does not ask for proof of disability, much less proof of a print(ability) disability. The knowledge about this way to abuse the system can be widely and quickly shared, leading to widespread abuse. Numerous experts (e.g. National Academy of Sciences, Senate Intelligence Committee) have testified that internet voting is insecure. The risk for intrusion and denial of service and privacy invasion increases with usage. We should seek ways to limit electronic ballot return to those who absolutely need it.

safeguards originally provided through affirmation signature are withdrawn;

• Use of existing electronic methods currently requires a signature on an affidavit to waive the expectation of ballot secrecy because there is a risk of interference or intrusion crossing the internet and in the computers at either end. The affidavit also crucially affirms eligibility to vote. The Bill’s amendment added by the Colorado Senate State, Veterans and Military Affairs Committee no longer requires any affidavit to validate the ballot and allows a copy of an ID to suffice. Anyone may legally validate an electronically returned ballot with the submission of a copy of an ID of a registered voter for whom the disability option has been selected. The affidavit is an honor system, but it should not be discontinued. Without an affidavit, it may be more difficult to prosecute someone for impersonating a voter by returning an electronic ballot.

voter verification of paper including using the voter’s own assistive technology provides the best practice integrity and ability to audit; paper printed far from the voter isn’t verifiable;

• Numerous situations of disability include sufficient eyesight such that the voter could take advantage of the important step of verifying the contents of the paper ballot before casting. Some blind voters have the ability to access the printed selections on a paper ballot with their own accessible devices. An accessible device or other means for the voter to read and verify the printed paper ballot before return should be the focus of the law.

remote accessible ballot marking generates digital expressions of selections that must be recreated onto official ballots by teams of election workers;

• All ballots machine marked outside a polling place either in electronic form or on paper must be duplicated onto fresh blank paper ballots at central count before tabulation. This is inefficient and costly for local officials. A bipartisan team must perform the duplication to ensure accuracy

may require a single vendor to supply both blank ballot delivery and electronic voted ballot return.

• Since the SB-188 requires a single system it suggests that the electronic ballot delivery, electronic marking and electronic return may be limited to a single vendor contrary to the current separation of Secure Ballot Return from Democracy Live for ballot marking. This may accidently enforce the move to a new vendor.

How to improve the bill?

I include for advanced readers some proposed text for amendment to bring the technical quality and transparency of these electronic alternative methods up to par with the rest of Colorado’s voting system. I have not proposed a way to curtail misuse by those who do not need an electronic return (for whom the emergency route via the portal seems adequate). To prevent substantial loss of integrity of the exposure over the internet, some mechanism to sanction misuse or to discourage unnecessary use is desirable.

“Definition: ‘Remote electronic assistive voting technology’ means a device or software or combination of both that is used to assess eligibility of a person, authenticate a voter, capture voter intent, return votes for tabulation and cure signature issues when such device or software is used for purposes of CRS 1-5-706 ( this statute about voters with disabilities).

Legislative introduction: The Colorado Legislature recognizes that voters using remote electronic assistive voting technology provided by the DEO deserve equal provision for integrity to voters that have not chosen to use the technology. The Secretary of State is therefore required to certify and may add conditions for use of remote electronic assistive voting technology prior to approving the acquisition of such systems.

For purposes of assisting voters with disabilities the Secretary of State shall establish a testing program that will assess the accuracy of capture of voter intent, the authenticity and eligibility of the voter, security against intrusion, ballot anonymity, and usability for specific disabilities. The SOS shall promulgate rules containing criteria for acceptance that depend upon the assessment metrics that are developed pursuant to this paragraph. The SOS shall publish on its website the results any such assessment and will also publish data quantifying usage of remote electronic voting technology in each election applicable to the State. Usage data shall include number of  voters and number of applicable ballot sheets reported by district for each phase of electronic assistance: ballot fulfillment, marking, return and cure.”

—

Here is a transcript of the promotion of the SB21-188 on the Colorado Senate floor by the principal sponsor Senator Danielson (former leader of America Votes in Colorado):

Colorado Senate Friday April 9 floor debate and vote on SB21-188 on 2^nd Reading

Chair: (00:00)
Please read the title to Senate Bill 188,

Clerk: (00:03)
188 by Senators, Danielson, and Representatives Duran and Ortiz concerning a lower voter with a disability who seeks to vote through an electronic voting device to return the ballot electronically.

Chair: (00:17)
Senator Danielson.

Senator Danielson: (00:19)
Thank you. Madam chair, I move Senate Bill 188 and the committee report

Chair: To the report.

Thank you, Madam chair. Um, we made a pretty simple change in the committee report. Or I’m sorry, in the, in the committee, um, to address, uh, a security concern from the Secretary of State. When I introduced the bill, we accidentally struck, um, existing statute that might’ve interfered with the Secretary of State’s ability to produce their, um, ballot on the back end, in order to, uh, ensure the security of the measure. So we put the language back in as needed and, um, addressed any security concerns that they had and moved on. And I ask and aye vote on the committee report.

Chair: (01:05)
Is there any discussion on the committee report? Seeing none the motion is the adoption of the State Veterans and Military Affairs committee report. All those in favor, say, aye, those opposed? No. The ayes have it. And the committee report is adopted to the bill.

Senator Danielson: (01:21)
Thank you, Madam chair. Thank you members. Um, today we’re talking about Senate bill 188 ballot access for voters with disabilities. You might recall that a couple of years ago, we passed a measure that was called voting rights for voters with disabilities, which allowed for voters with disabilities to go in and mark a ballot and then download and then download the ballot and print it off and send it back in. It was a big step forward for voters with disabilities and the Secretary of State started implementing it right away. So we’ve been able to use the new system for the last couple of elections. And as a result, we’ve figured out some flaws. And the biggest flaw is the part of the process where the voter has to print out their ballot. So the problem here is a lot of people with disabilities and quite frankly, a lot of us in general now don’t have printers at home and that could be because we can’t afford them.

They are not necessary for other activities or we’re becoming more and more digital. And so, you know, the devices just aren’t present in a lot of homes. And I would say particularly what we’re talking about, are voters with disabilities. So we’ve got a great idea, but in practice we still have a barrier for voters with disabilities to cast a private ballot. And that’s really the problem here. The choice would be to, uh, utilize the mail-in ballot system that we have. But if you are, for example, a blind voter, you don’t have the same right to a private ballot as a voter with sight because you still have to have somebody mark that ballot for you and then turn it in, et cetera. So we’ve got a great system that would allow someone to mark a private ballot for themselves, which is a right that I cherish deeply.

However, because of the barrier that we still have in place for that voter to own a printer, they’re still unable to vote a private ballot. So the way we can do this is not unlike the system that we currently use for military and overseas voters, as well as voting in some kind of a disaster, for example, a wildfire where now the voter can go in and mark their private ballot. They can also, in order to verify our ballots in the state of Colorado you either have to have a signature verification process, or if you present in person, you have to have a photo ID. So if the voter can produce an image of their, uh, valid, acceptable ID, along with their ballot, they can return the ballot without the obstacle of the printer. And it’s a simple change today that will allow a lot of voters with disabilities to participate in the system and mark for what will probably be the first time in many of their lives, an absolutely private ballot, which again, like I said before is a right that I certainly do not take for granted, but maybe, maybe some able-bodied people do and to have the government, you know, what we’ve got in Colorado is a safe and secure and accessible system.

And the technology is finally there to remove this barrier, to allow people with disabilities to vote a private ballot and honor our American tradition enriching our democracy. So I urge an aye vote on Senate Bill 188 to make sure that people with disabilities have the same voting rights as everybody else. Thank you.

Chair: (04:51)
Is there any further discussion? Seeing none the motion before the body is the adoption of Senate Bill 188. All those in favor, say aye. Aye. Those opposed, No. The ayes have it and the Bill is adopted.