Colorado Senate Bill 21-250 Elections and Voting
Comments by Harvie Branscomb – 5/4/2021
There are numerous sections of the bill that provide beneficial enhancements to Colorado Revised Statutes not mentioned here. This is a request to amend the bill to address the following 8 topics, the first 7 of which are improvements sought within the bill. This bill is up for public comment in the Colorado House State Civic, Military and Veterans Affairs Committee Monday May 17, 2021 at 1:30 PM Mountain time. The link to the bill status and text is here: Elections And Voting | Colorado General Assembly The link to listen to the testimony is here: https://leg.colorado.gov/committee/audio/2038946 The page to use to sign up to testify or submit testimony is found here (remember the bill number and date and time of the hearing before you click): https://leg.colorado.gov/testimony
- Signatures incomparable to envelope signatures may be uploaded to the signature database over the internet by a person registering to vote
- Precinct caucuses and party assemblies may be voted in via risky email or internet apps
- Emergency voting with electronic return for out of state and temporarily located voters expands risky electronic return
- A questioned signature may not be the sole basis for a challenge – ending challenges of voter authenticity by citizen watchers
- Vacancy committees for county commissioner and state legislator may be voted in by risky email or internet app without the sunset just enacted in HB 21-1001.
- Drop boxes are being treated like polling places- open until the line dissipates – but without any of the accountability- please review alternatives to add integrity
- Recount language still has a loophole such that voter errors are not corrected in a recount
- SB-250 is an ideal platform to add SOS-created quality assurance and certification and reporting requirements for the new internet remote electronic voting technologies – see text for amendment here: https://electionquality.com/internet-voting-quality-controls
Details for each point follow:
1) The bill allows for electronic return (internet upload) of original (first time collected) signatures for the Colorado signature database in SCORE as follows:
SECTION 3. In Colorado Revised Statutes, 1-2-202.5, amend
1-2-202.5. Online voter registration – online changes in elector
(7.5)(b) SEND TO THE ELECTOR’S ADDRESS OF RECORD, BY NONFORWARDABLE MAIL, NOTICE THAT THE ELECTOR HAS BEEN REGISTERED TO VOTE, A POSTAGE PAID PREADDRESSED RETURN FORM BY WHICH THE ELECTOR MAY RETURN A SIGNATURE, AND INFORMATION ON HOW THE ELECTOR CAN UPLOAD A SIGNATURE ELECTRONICALLY.
and once again in (7)(a)(II) (B) and again in SECTION 9. 1-2-502.5, amend
(4) (c) Provide a signature if, at the time the elector applied for medical assistance, the person did not use a Colorado driver’s license or identification number and did not provide an electronic copy of their signature. THE FORM MUST INCLUDE INFORMATION ON HOW THE ELECTOR CAN UPLOAD A SIGNATURE ELECTRONICALLY.
And again in (7.5) (b)
The authors seem bent on digital electronic transmission of the crucial authentication data – the signature. These four changes signal the end of any hope for preserving the authentic wet signature as a reference for the eligibility check. Colorado’s eligibility determination depends entirely upon voter authentication based on a signature match from an electronic file to a signature made on a paper envelope. If the signatures in the database are faulty, the eligibility decision will be faulty and could either approve a ballot for counting incorrectly or reject a ballot incorrectly. The validity and quality of the original signature provided as a reference is crucial.
We already know that the pad collected signatures from DMV offices are deficient and problematic in comparison to envelope signatures. Uploaded signatures may be enough more convenient that SCORE will be overflowing with multiple signatures from voters, who find it valuable to have several instances of signature recorded in their file. Allowing the upload suggests that the data is presumed safe traveling over the internet, despite the risks including the risk of failed privacy of the signature. All the testimony regarding security of election data traversing the internet suggests that caution would be preferable to convenience. The concern about security applies to these four intended changes to Colorado law. Please amend to remove the references to upload a signature electronically.
2)More addition of internet voting opportunities:
SECTION 11. 1-3-102. Precinct caucuses.
(5) NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, A PARTICIPANT AT A PRECINCT CAUCUS MAY PARTICIPATE REMOTELY, INCLUDING CASTING THE PARTICIPANT’S VOTE BY E-MAIL, MAIL, TELEPHONE, OR THROUGH AN INTERNET-BASED APPLICATION IF ALLOWED BY THE PARTY’S RULES.
And the same for election of delegates to party assemblies SECTION 15. 1-4-602 (7).
These opportunities to attend caucuses and party assemblies and vote by email and internet based app seem extremely premature and unwise given warnings provided to Colorado from experts in election security, including the Senate Intelligence Committee, the National Academies, MIT, ACM, AAAS, Verified Voting and Common Cause.
3) Heading in the same misguided direction, two new allowances are added to statute to substantially widen emergency use of electronic ballot delivery, marking and return (doubling down on the SB-188 permission of electronic return for disability voters). It appears that there is insufficient concern for security when involving the internet in Colorado elections.
SECTION 40. 1-7.5-115. Emergency voting – replacement ballots – electronic transfer – rules. (1) (a) AN ELIGIBLE ELECTOR MAY REQUEST AN EMERGENCY REPLACEMENT BALLOT FROM THE COUNTY CLERK AND RECORDER OR DESIGNATED ELECTION OFFICIAL IF: (I) THE ELECTOR OR A MEMBER OF THE ELECTOR’S IMMEDIATE FAMILY, RELATED TO THE SECOND DEGREE BY BLOOD, ADOPTION, MARRIAGE, OR CIVIL UNION PARTNERSHIP, IS CONFINED IN A HOSPITAL OR PLACE OF RESIDENCE ON ELECTION DAY; (II) THE ELECTOR IS UNABLE TO VOTE IN PERSON DUE TO EMERGENCY CONDITIONS, INCLUDING BUT NOT LIMITED TO A NATURAL DISASTER, THAT AROSE AFTER THE DEADLINES BY WHICH BALLOTS ARE MAILED; (III) THE ELECTOR’S MAIL BALLOT DID NOT ARRIVE AND THE ELECTOR IS OUT OF THE STATE ON ELECTION DAY; OR (IV) THE ELECTOR HAD ARRANGED TO RECEIVE THE ELECTOR’S MAIL BALLOT IN A TEMPORARY LOCATION AND THE ELECTOR DID NOT RECEIVE IT
The emergency excuse for internet voting really must be controlled at a minimum by requiring a statement signed by the voter that no more secure means of return of the ballot is available to them.
4) It is surprising given the much increased interest in potential flaws in eligibility especially for mail ballots, that this Colorado bill calls for an effective end to signature verification challenges. The language says that signature may not be the sole basis for the challenge, but of course it is trivial for the voter name and address to be absolutely correct when someone other than the voter signs the envelope. Thus the idea that signature alone cannot be used to challenge completely dismembers the check and balance about eligibility for 95% of Colorado’s votes.
This is a big mistake and will focus attention on Colorado’s somewhat less than best practice eligibility system. All but one of Colorado’s large counties use software signature comparison followed by human verification employing all signatures coming from every envelope that has ever been returned in an election. Colorado has no mechanism for cleaning up the signature database where 20 signatures might be recorded for one voter. Election judges are required to examine each signature during a potential rejection – a process that slows down more in each election. Colorado deserves attention paid to its signatures and how they might fail to efficiently authenticate remote voters. I ask for a removal of this Section 45 from SB-250.
SECTION 45 1-9-207. Challenges of ballots cast by mail.
(2) A MAIL BALLOT MAY NOT BE CHALLENGED UNDER THIS SECTION SOLELY ON THE BASIS OF THE SIGNATURE THAT APPEARS ON THE MAIL BALLOT. SIGNATURES ON MAIL BALLOTS MUST BE REVIEWED IN ACCORDANCE WITH SECTION 1-7.5-103
C.R.S. 1-7.5-103 is an incorrect citation. It is the definition section.
5) The bill removes the sunset clause that was just passed and signed in HB21-1001 that permits insecure remote voting for vacancy committees ( very small committees appointed by parties that actually replace powerful elected officials with almost no oversight). This is another example of a Colorado foray into internet voting, not just for 2021 as originally intended, but forever if SB-250 passes as expected. If vacancy committees are voting by email or app, one faulty or lost vote can easily change the outcome. The fact that it is the party’s election hardly makes it less important. Vacancy committee votes substitute for an election of an entire House or Senate district.
Please amend to remove Sections 66 and 67 as follows:
SECTION 66. 3 1-12-203. Vacancies in general assembly. (Sunset removed by SB-250)
SECTION 67. 1-12-206. Vacancies in the office of county commissioner.
(FYI here is the text of signed HB 21-1001)
1-12-203. Vacancies in general assembly – repeal.
(6) (a) NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, A MEMBER
OF A VACANCY COMMITTEE FILLING A VACANCY PURSUANT TO THIS SECTION
MAY PARTICIPATE IN A VACANCY COMMITTEE MEETING REMOTELY,
INCLUDING CASTING THE MEMBER’S VOTE BY E-MAIL, MAIL, TELEPHONE, OR
THROUGH AN INTERNET-BASED APPLICATION IF ALLOWED BY THE PARTY’S
(b) THIS SUBSECTION (6) IS REPEALED, EFFECTIVE DECEMBER 31,
2021. <- sunset eliminated by SB-250
and ditto for the county commissioner vacancy committee meetings:
1-12-206. Vacancies in the office of county commissioner –
6) Drop boxes collect naked ballots that cannot be counted. We need to prevent drop boxes from disenfranchising voters. There is a document about risks and potential remedies for drop boxes here: https://electionquality.com/dropbox.
SECTION 31. 1-7-101. Hours of voting on election day. (1.5) EACH DROP BOX MUST BE OPEN UNTIL 7 P.M. ON ELECTION DAY. EACH DROP BOX MUST REMAIN OPEN AFTER 7 P.M. UNTIL EVERY ELIGIBLE ELECTOR WHO WAS IN LINE AT THE DROP BOX AT OR BEFORE 7 P.M. HAS BEEN ALLOWED TO DEPOSIT ALL BALLOTS THE PERSON BROUGHT IN THE DROP BOX…
7) Recount language actually avoids the extra accuracy that will be needed to compensate for rare instances of machine inaccuracy
SECTION 49 1-10.5-102. Recounts…
(b) If the results of the comparison of the machine count and the
manual count in accordance with the requirements of SUBSECTION (3)(a) OF THIS SECTION are identical, or if any discrepancy is able to be accounted for by voter error, then the recount may be conducted in the same manner as the original ballot count.
The brief test of machine counts of ballots prior to a recount should be very sensitive to any error and refuse to allow the machine to be used to recount if any discrepancy arises- including one accounted for by “voter error”. Colorado is a voter intent state, meaning the voter does not have to comply with instructions intended to make sure the machine will interpret voter marks correctly. It is obvious that the bold text above should be removed from statute and now is the time to do it. Please amend to remove both references to “voter error” in the above section 49. Please amend the bill to remove “or if any discrepancy is not able to be accounted for by voter error,” and “or if any discrepancy is able to be accounted for by voter error,”
8) Internet voting quality controls. This bill and SB-188 are both expanding the scope of remote electronic voting methods without providing for quality assurance of the technology, methods and vendors involved. While the majority of votes in Colorado are voted on verified paper ballots and tabulated via certified equipment that is tested prior to use and audited afterwards and never connected to the Internet, the votes and processes conveyed by electronic transmission methods are only marginally regulated without transparency and largely unreported even concerning usage.
Colorado must establish an equivalent set of criteria with tests implemented to reassure Colorado voters that all votes are treated with integrity, privacy and accuracy and transparency, and are adequately protected from error and any form of malevolence such as intrusion illegal influence or denial of service. SB-250 is this year’s obvious opportunity to resolve this dark cloud over Colorado’s otherwise sunshine filled election.