By Christopher Jackson Feature

Over the last year, Colorado approved three ballot measures and passed four statutes modifying the state’s Colorado election laws. This article reviews these new authorities and discusses their impact on future elections.

n 2016, Coloradans approved three ballot nomination process in 2016,”7 Proposition 107 Proposition 108’s stated goal is to increase measures—one constitutional amendment throws out the caucus system and replaces it primary election turnout, involve more voters, and two statutory propositions—relating to with a primary election, which must be held and “encourage candidates who are responsive Election Law the state’s elections. A few months later, the “not later than the third Tuesday in March” in to the viewpoints of more Coloradans.”16 IGeneral Assembly passed four bills amending a presidential election year.8 Under the new law, clerks and recorders Colorado’s election and campaign finance laws. Proposition 107 also makes the presidential send unaffiliated voters “a mailing that contains In all, the state tackled open primaries, initiatives, primary open, meaning that voters unaffiliated the ballots of all the major political parties.”17 As ballot selfies, dark money, and a number of other with any political party may participate in a with the presidential primary, unaffiliated voters Update topics. This article summarizes these recent primary.9 Originally the measure contemplated “a may only participate in one party’s primary; if changes and analyzes their effects on the 2018 single combined ballot to be used by unaffiliated an unaffiliated voter attempts to cast a ballot election and beyond. electors” that contained the names of all candi- in more than one primary, her vote will not BY CHRISTOPHER JACKSON dates, broken down into political parties.10 But in be counted.18 Open Primaries: Propositions 107 the 2016 legislative session, lawmakers changed The law includes a couple important excep- and 108 that provision; instead, unaffiliated voters who tions. Political parties can opt out of the primary Propositions 107 and 1081 adopted “open” have not provided a ballot preference will receive process entirely, and instead nominate their primaries in Colorado. The two measures were “a ballot packet that contains the ballots of all the candidate by an assembly or convention. To do approved in the 2016 election—Number 107 major political parties.”11 Unaffiliated voters “may that, “at least three-fourths of the total member- with 64% of the vote, and Number 108 with cast the ballot of only one major political party.”12 ship of the party’s state central committee votes 53% of the vote.2 “If an elector casts and returns to the clerk the to use the assembly or convention nomination ballot of more than one major political party, all process . . . .”19 In a similar vein, minority parties Proposition 107 such ballots returned will be rejected and will not also get an exception: they can outright prohibit Proposition 107 concerns presidential primaries. be counted.”13 Once the votes are in, the secretary unaffiliated voters from participating “so long as Since 2000, Colorado has selected its delegates of state will tabulate them, and each political the prohibition is in accordance with the party’s to the Democratic and Republican National party must “allocate all national delegate votes to constitution, bylaws, or other applicable rules.”20 Conventions through the caucus system.3 the presidential primary candidate receiving the Why these caveats? They’re likely intended Politically minded readers may recall that in highest number of votes and to bind members of to stave off a First Amendment challenge to 2016, the state GOP cancelled the presidential the state’s delegation to vote for that candidate the new law. In California Democratic Party v. vote for its caucus, which meant that the state’s at the party’s national convention.”14 It is, in Jones, the U.S. Supreme Court held that political Republican delegates were not bound to any other words, an all-or-nothing proposition for parties’ free-association rights include the right candidate at the party’s national convention.4 presidential candidates: the winner in Colorado to choose their own leaders. In Jones, the Court That ames year, the Democratic caucuses saw is awarded all of the state’s delegates, who are struck down California’s “blanket primary” law, record turnout, which caused logistical problems bound to that candidate. holding that it “forces political parties to associate in the form of long lines and delays.5 with—to have their nominees, and hence their Motivated in large part by their experiences Proposition 108 positions, determined by—those who, at best, at the 2016 caucuses, proponents of Proposition Similar to Proposition 107, Proposition 108 have refused to affiliate with the party . . . .”21 At 107 set out to “restore a presidential primary in opens all primary elections in Colorado to the same time, laws requiring open primaries Colorado beginning in 2020.”6 Because “Colo- unaffiliated voters. “Because primary elections have generally withstood constitutional scrutiny rado voters experienced disenfranchisement are paid for by taxpayers,” the measure begins, so long as parties are given the option to pick and profound disappointment with the state’s “all eligible voters who want their voices to be another nomination method.22 Proposition 108 system for participation in the presidential heard should be able to vote in those elections.”15 seems to fit squarely in that framework.

n 2016, Coloradans approved three ballot nomination process in 2016,”7 Proposition 107 Proposition 108’s stated goal is to increase measures—one constitutional amendment throws out the caucus system and replaces it primary election turnout, involve more voters, and two statutory propositions—relating to with a primary election, which must be held and “encourage candidates who are responsive Election Law the state’s elections. A few months later, the “not later than the third Tuesday in March” in to the viewpoints of more Coloradans.”16 IGeneral Assembly passed four bills amending a presidential election year.8 Under the new law, clerks and recorders Colorado’s election and campaign finance laws. Proposition 107 also makes the presidential send unaffiliated voters “a mailing that contains In all, the state tackled open primaries, initiatives, primary open, meaning that voters unaffiliated the ballots of all the major political parties.”17 As ballot selfies, dark money, and a number of other with any political party may participate in a with the presidential primary, unaffiliated voters Update topics. This article summarizes these recent primary.9 Originally the measure contemplated “a may only participate in one party’s primary; if changes and analyzes their effects on the 2018 single combined ballot to be used by unaffiliated an unaffiliated voter attempts to cast a ballot election and beyond. electors” that contained the names of all candi- in more than one primary, her vote will not BY CHRISTOPHER JACKSON dates, broken down into political parties.10 But in be counted.18 Open Primaries: Propositions 107 the 2016 legislative session, lawmakers changed The law includes a couple important excep- and 108 that provision; instead, unaffiliated voters who tions. Political parties can opt out of the primary Propositions 107 and 1081 adopted “open” have not provided a ballot preference will receive process entirely, and instead nominate their primaries in Colorado. The two measures were “a ballot packet that contains the ballots of all the candidate by an assembly or convention. To do approved in the 2016 election—Number 107 major political parties.”11 Unaffiliated voters “may that, “at least three-fourths of the total member- with 64% of the vote, and Number 108 with cast the ballot of only one major political party.”12 ship of the party’s state central committee votes 53% of the vote.2 “If an elector casts and returns to the clerk the to use the assembly or convention nomination ballot of more than one major political party, all process . . . .”19 In a similar vein, minority parties Proposition 107 such ballots returned will be rejected and will not also get an exception: they can outright prohibit Proposition 107 concerns presidential primaries. be counted.”13 Once the votes are in, the secretary unaffiliated voters from participating “so long as Since 2000, Colorado has selected its delegates of state will tabulate them, and each political the prohibition is in accordance with the party’s to the Democratic and Republican National party must “allocate all national delegate votes to constitution, bylaws, or other applicable rules.”20 Conventions through the caucus system.3 the presidential primary candidate receiving the Why these caveats? They’re likely intended Politically minded readers may recall that in highest number of votes and to bind members of to stave off a First Amendment challenge to 2016, the state GOP cancelled the presidential the state’s delegation to vote for that candidate the new law. In California Democratic Party v. vote for its caucus, which meant that the state’s at the party’s national convention.”14 It is, in Jones, the U.S. Supreme Court held that political Republican delegates were not bound to any other words, an all-or-nothing proposition for parties’ free-association rights include the right candidate at the party’s national convention.4 presidential candidates: the winner in Colorado to choose their own leaders. In Jones, the Court That same year, the Democratic caucuses saw is awarded all of the state’s delegates, who are struck down California’s “blanket primary” law, record turnout, which caused logistical problems bound to that candidate. holding that it “forces political parties to associate in the form of long lines and delays.5 with—to have their nominees, and hence their Motivated in large part by their experiences Proposition 108 positions, determined by—those who, at best, at the 2016 caucuses, proponents of Proposition Similar to Proposition 107, Proposition 108 have refused to affiliate with the party . . . .”21 At 107 set out to “restore a presidential primary in opens all primary elections in Colorado to the same time, laws requiring open primaries Colorado beginning in 2020.”6 Because “Colo- unaffiliated voters. “Because primary elections have generally withstood constitutional scrutiny rado voters experienced disenfranchisement are paid for by taxpayers,” the measure begins, so long as parties are given the option to pick and profound disappointment with the state’s “all eligible voters who want their voices to be another nomination method.22 Proposition 108 system for participation in the presidential heard should be able to vote in those elections.”15 seems to fit squarely in that framework.

The Propositions’ Impacts difficult to amend this constitution” through the VACANCIES IN NOMINATIONS AND DESIGNATIONS What effects will Propositions 107 and 108 have initiative process.36 Significantly, Amendment on Colorado’s elections? To begin with, the state “ 71 does not change the rules for initiatives that will almost certainly see more spoiled ballots. If would enact a new statute. The idea is that a an unaffiliated voter misses the notice stating Proposition 107 change to the state constitution should require § 1-4-1002 § 1-4-1003 § 1-4-1004 § 1-4-1005 § 1-4-1006 that she may only vote in one party’s primary and also makes the more public support than a new statute.37 selects candidates from two different parties, the Amendment 71 accomplishes its goal in two whole ballot will be voided. Thus, at least some presidential primary ways. First, it imposes a new hurdle to getting unaffiliated voters’ ballots will not be counted. open, meaning that initiatives on the ballot, requiring proponents Substantively, the new laws will probably to collect signatures from “at least two percent Political 68 days 1st day to mail 68 days 1st day to mail PRIMARY GENERAL party before primary in primary before general in general increase voter turnout. About one-third of of the total registered electors” in each state ELECTION ELECTION voters unaffiliated assembly election ballots election election ballots Colorado voters aren’t affiliated with any po- senate district.38 Previously, proponents only litical party.23 Thus, Propositions 107 and 108 with any political had to collect a certain number of signatures open the state’s primaries to about another 1.2 party may participate statewide. Second, an initiated amendment million voters.24 While unaffiliated voters have must now garner at least 55% of the votes to a lower turnout rate,25 it’s safe to say more votes in a primary. pass, rather than a simple majority.39 But the 55% the Equal Protection Clause.47 The complaint not met that threshold, including the Taxpayers’ by majority vote, and appointing only eligible will be cast in the next primary election, and rule has one exception: if a measure “is limited essentially alleges that the law “compels core Bill of Rights, Amendment 23’s school-funding candidates.62 If the vacancy committee does particularly in 2020 when the next presidential to repealing, in whole or in part, any provision political speech” by “compel[ling] the propo- mandate, and medical marijuana.55 not timely select a candidate, the party’s state primary is held. The caucus system that the of this constitution,” it needs only a majority.40 nents to spend money and engage in political Yet there is good reason to believe the new chair “shall fill the vacancy” or make a decision presidential primary replaces was criticized The fight on Amendment 71 didn’t line up speech [in all of the state’s senate districts] law will make it substantially more expensive to not to fill the vacancy within seven days.63 If the on a number of grounds: ” along traditional partisan lines. As political even though . . . they would avoid” doing so.48 run an initiative amending the state constitution. ballots have not been printed, the replacement ■ The process is “confusing and inac- commentators noted in advance of the vote, But the plaintiffs will have to contend with a As many pointed out in the lead-up to the 2016 candidate’s name will be included on the bal- cessible,” and run by “inexperienced “every living Colorado governor, Democrat and series of Tenth Circuit cases drawing a line election, circulating petitions in each of the lots.64 But if the vacancy is filled after the ballots volunteers.” evidence suggests that primary voters have less Republican, supports the effort,” along with a between “laws that regulate or restrict the state’s senate districts—particularly those with are printed, the designated election official ■ Caucuses don’t “protect[] voter confidenti- knowledge about the candidates and therefore “varied swath of industry groups.”41 The other communicative conduct of persons advocating a rural population spread over a large area—will must (1) prominently post on its website and in ality” because participants must “publicly cannot discern the ideological differences side saw “a diverse collection of grassroots orga- a position in a referendum . . . and laws that run up costs.56 Opponents of Amendment 71 each voter service and polling center a notice declare their candidate preference.” between them.31 Thus, there’s some question nizers, libertarian think tanks, and progressive determine the process by which legislation is suggested that it could cost over $1 million to about the vacancy that includes the name of the ■ It is difficult for voters to attend the cau- about whether opening a primary will actually good-government watchdogs.”42 In the end, the enacted . . . .”49 The complaint’s Equal Protection gather enough signatures from each district.57 replacement candidate, and (2) ensure that all cuses because they’re held on a weekday help moderate candidates. proponents carried the day: Amendment 71 claim revolves around the “one person, one sample ballots list the name of the replacement evening and can last for several hours.26 At the same time, there are hints that passed in 2016 by a vote of 56% to 44%.43 vote” rule adopted by Reynolds v. Sims and its Ballot Access: SB 17-209 candidate in a different color.65 All votes that are Thus, with the primary system improving Propositions 107 and 108 have already had In the 2017 legislative session, the General progeny.50 It alleges that Amendment 71 “giv[es] SB 17-209 revamped state law on how candi- cast for the original candidate “must be counted the process, there will almost certainly be a some effect. Kent Thiry, the chairman and Assembly passed SB 17-152, which implemented rural voters a greater voice” in the initiative date vacancies are filled. The bill’s substantive as votes for the replacement candidate.”66 substantially higher turnout in the next pres- CEO of healthcare company DaVita, was the Amendment 71 and filled in some of the gaps process.51 A nearly identical Nevada law was changes are minor; it primarily reorganized idential race. propositions’ primary backer, giving more than in the initiative. Perhaps its most important challenged on equal protection grounds; the previous iterations of the law that detailed how Signature Verification: HB 17-1088 Finally, it’s an open question whether the $1 million for the effort;32 he’s now mulling provision was to give the state’s Initiatives and Ninth Circuit, applying a rational basis review, vacancies in nominations and designations HB 17-1088 grew out of the cluster of ballot new laws will affect the primary elections a run for governor in 2018.33 Similarly, state Title Board the power to determine whether a found no constitutional infirmity in the law.52 are filled.58 As it stands now, the Election Code access disputes arising from the 2016 U.S. themselves. Both Propositions 107 and 108 Senator Owen Hill recently announced that proposed amendment only repeals an existing But it remains to be seen whether Colorado’s breaks down vacancies by time periods leading senate Republican primary. In Colorado, a explicitly state that they would “encourage he’ll challenge Congressman—and fellow provision—and thus needs only a majority for federal court will follow suit. up to the election, with different provisions candidate can get onto the primary ballot in candidates who are responsive to the view- Republican—Doug Lamborn in Colorado’s 5th passage.44 Any person who disputes the Title applying depending on when the vacancies one of two ways: by winning at least 30% of the points of more Coloradans.”27 The theory is that Congressional District primary.34 Board’s decision may petition the Colorado Amendment 71 Impacts occur. The chart above illustrates this process. delegates’ vote at the party’s state assembly,67 or primaries tend to attract the most ardent party Supreme Court for review on an expedited basis.45 It is difficult to predict the impact of Amend- While the application of this statutory regime by “petitioning on,” which requires collecting loyalists, those who are farthest to the right Raising the Bar: Amendment 71 ment 71 on the initiative process. Opponents is complex, there are some consistencies. As a the requisite number of valid signatures from or left, depending on the party.28 As a result, Another major legal development is the passage Is the Amendment Constitutional? argued that it would “cripple a fundamental general rule,59 candidate vacancies are filled registered voters in each of the state’s congres- moderate candidates tend to lose.29 Or as the of Amendment 71, the “Raise the Bar” measure In an interesting development, Amendment right that Coloradans have exercised for more by the appropriate party assembly vacancy sional districts.68 Blue Book put it in slightly more clinical terms, often described as “a ballot initiative about 71 has already drawn a lawsuit. Proponents than 100 years.”53 By requiring 55% of the vote, committee up until the first day to mail in general In 2016, four candidates who sought to “[i]n a closed primary, voter participation is ballot initiatives.”35 of a failed initiative that would have created Amendment 71 makes it that much harder for election ballots.60 (After that period, candidate challenge Michael Bennet for his U.S. senate typically low and the candidates selected often a universal healthcare system in Colorado46 measures to pass. And while some measures vacancies are treated as vacancies in office.61) seat chose to circulate petitions. Three of those appeal to a small number of their party’s more The Basis for Amendment 71 filed a § 1983 claim against the secretary of have in the past garnered well over 55% of the When a party vacancy committee fills the slot, candidates’ petitions were rejected by the secre- active members.”30 But unaffiliated voters have Amendment 71 is a state constitutional amend- state alleging that Amendment 71 violates vote—term limits in 1990 and campaign finance it must follow certain procedures, including tary of state after his office determined that they lower turnout rates, and at least some empirical ment explicitly designed “to make it more their rights under the First Amendment and reform in 2002 are two examples54—others have giving proper notice, ensuring a quorum, acting did not include enough valid signatures.69 This led

to a series of rapid-fire election lawsuits in which constraints imposed by state and federal laws Curing Campaign Finance Reports: committee.”98 To make sure that all deficiencies it is still good fodder for an opponent to point the candidates challenged the secretary of state’s on election officials, it may be difficult if not HB 17-1155 are cured, the administrative law judge must out that the committee was forced to make a decision.70 While all three candidates eventually “ impossible to get through the petition process. HB 17-1155 addresses campaign finance. hold a hearing within 30 days “to determine correction because it did not initially comply got onto the ballot, the lawsuits uncovered a It’s an open Finally, HB 17-1088 may draw a lawsuit. In Colorado’s method of enforcing its campaign whether all issues raised by the complaint have with campaign finance rules. Thus, even with variety of issues: improper petition circulator May 2017, the American Civil Liberties Union finance laws is unique in the country: rather been resolved.”99 Thus, if a political committee this new law in place, political players will have affidavits, invalid signatures, and, in the case of question whether (ACLU) filed suit against New Hampshire for than creating an independent enforcement corrects a disclosure issue promptly, it will not good reasons to continue to file complaints. Jon Keyser’s petition, the inclusion of potentially a law that allows election officials to reject an agency like the Federal Election Commission, be required to pay a fine. forged signatures that generated criminal charges the new laws absentee ballot without giving notice to the the state constitution provides that “any person” However, the committee must prove at the Conclusion against a circulator.71 As The Denver Post opined will affect the voter.82 The ACLU or another organization may who believes a violation has occurred “may file hearing not only that it corrected all errors, but The last year brought substantial changes to in an editorial, “[i]t was a costly and embarrassing mount a similar challenge in Colorado. a written complaint with the secretary of state.”94 also that it made “a good faith effort” to “timely Colorado’s election laws. The new constitutional mess for the candidates.”72 primary elections The secretary of state must then forward that disclos[e]” the relevant information or that its provisions and statutes will affect nearly every In response, the General Assembly passed Ballot Selfies: HB 17-1014 complaint to an administrative law judge within original disclosure was “in substantial compliance facet of the electoral process, including how HB 17-1088. The new law requires the secretary themselves. Both HB 17-1014 is the infamous “ballot selfie” bill. three days, which triggers a formal hearing with such legal requirements.”100 This procedural candidates and issues get on the ballot, how of state to review every candidate’s petition and Propositions Before this bill was signed into law, Colorado where the complainant has a right to at least “safety valve” will only cover those who have parties choose their nominees, and how the state’s “compare each signature . . . with the signature made it a misdemeanor for a voter to “show some discovery.95 made an honest effort from the beginning to campaign finance regulations are enforced. While of the eligible elector stored in the statewide 107 and 108 his ballot after it is prepared for voting to any Motivated in part by a concern that a few comply with the state’s disclosure requirements. it is in many ways difficult to predict precisely voter registration system.”73 If the technology explicitly state person in such a way as to reveal its contents.”83 repeat players were using this private enforce- It remains to be seen whether HB 17-1155 what impacts these news laws will have, we do used by the secretary of state cannot match a The issue flared up just before the general ment scheme to target political committees for will have much of a real-world impact. While know that those impacts will be substantial. signature on the petition with that voter’s stored that they would election in late October 2016 when a group of minor, technical failures to comply with state law, it certainly makes it more difficult for a pri- signature, an employee “trained in signature citizens sued the state, alleging that the law the General Assembly added a new procedural vate citizen to obtain penalties for good-faith The author thanks Rosemary Loehr, a student verification” must make a manual review.74 If “encourage prohibited them from taking “selfies” with element. Under this new law, when the secretary mistakes, the number of complaints filed will at the University of Colorado Law School, for the employee agrees that the signatures don’t candidates who their ballots, thereby denying them their First of state receives a campaign finance complaint not necessarily go down. The new law requires her excellent researching and editing assistance. match, the secretary must “notify the candidate Amendment rights.84 The plaintiffs included that “alleg[es] a failure to file other information respondents to show they made “a good faith of such deficiency” within three days.75 At are responsive to Caryn Ann Harlos, a spokeswoman for Col- required to be filed or disclosed,” he must effort” or “substantially complied” with the law; that point, the candidate can rehabilitate the orado’s Libertarian Party,85 and state Senator notify the committee of those deficiencies.96 The it is possible that the ideologically motivated Christopher Jackson is an associate with Sherman & Howard L.L.C. in signature, but the process is an onerous one: the viewpoints Owen Hill,86 who, coincidentally, is challenging committee can then request a postponement will continue to file complaints and that the Denver. His practice areas include she must “provide the secretary of state with of more U.S. Representative Doug Lamborn in the 2018 of the hearing and, within 15 business days, dispute will move from technical compliance political law, commercial litigation, a statement, signed by the elector,” that the Republican primary.87 A federal district court “file an addendum to the relevant report that issues to a debate about whether the committee and appeals—(303) 299-8416, elector did in fact sign the petition, and, in Coloradans.” judge issued a preliminary injunction enjoining cures any such deficiencies.”97 If the committee acted in good faith or substantially complied [email protected]. addition, must include “a copy of the elector’s enforcement of the law just a few days before the cures all of its deficiencies, the administrative with the law. And even if a political committee Coordinating Editor: Mary Elizabeth Geiger, identification.”76 The candidate must submit this election,88 and the General Assembly took the law judge “shall not assess a penalty against the cures a deficiency and avoids paying any fine, [email protected] information within three days of being notified issue up a few months later.89 While there was of the issue.77 The law provides a similar process a substantial amount of debate about whether to cure any deficiencies regarding a petition ” the bill would include a provision making it Revolutionize your eDiscovery Management circulator’s affidavit.78 track down the voter, have her sign a statement illegal to trade or swap votes,90 a clean version What does this mean for candidates? To affirming that she did in fact sign the petition, of the bill passed the legislature and was signed process with a firm that offers true computer begin with, the law will probably make it more collect a copy of her identification, and submit it by Governor Hickenlooper in March 2017.91 forensic investigative skills backed by a expensive to petition onto the ballot. Because to the secretary of state. Keep in mind, too, that Under the new law, Coloradans are per- cost-effective data processing protocol. petition circulators are generally paid by the statewide candidates must collect thousands of mitted to “show [their] voted ballot[s] to any signature, they have a significant incentive to valid signatures.81 Thus, unless a candidate is right other person as long as the disclosure is not cheat the system.79 Before the law took effect, a on the cusp of having her petition approved, she undertaken in furtherance of any election statewide candidate would pay about $200,000 will have a difficult time collecting the required violation proscribed” in the state’s election to a company to gather the requisite signatures.80 materials to rehabilitate enough signatures. code.92 But there is one limitation. County If the law works as intended and dissuades Third, HB 17-1088 adds several additional clerks and recorders can “plac[e] reasonable fraudulent conduct, this will only increase layers of review. As discussed above, candidate restrictions on use of photography” at polling the time and resources required to collect the petitions are reviewed by the secretary of state centers “to ensure the fair and efficient conduct requisite number of signatures. up to three times; after that, the candidate may of elections.”93 The bottom line is that unless a 303.586.8504 The new law also makes it very difficult for a go to court to seek judicial review, and after that county clerk prohibits photography at a polling #EIDELIKE candidate to rehabilitate signatures. Candidates either party may petition the Colorado Supreme center, voters can take all the selfies they want I’D LIKE AN INNOVATIVE APPROACH TO EDISCOVERY MANAGEMENT Let’s talk. | forensics.eidebailly.com have only three days after being notified to Court for review. Given the substantial time anywhere they want.

NOTES 68. CRS §§ 1-4-901 to -912. 80. Id. 88. Mitchell, “Judge’s ruling clears way for ‘bal- 1. The author represented the Initiatives and 25. Larsen, “Unaffiliated turnout lagged in 47. Markus, “Lawsuit Claims ‘Raise The Bar’ 69. Schrader, “Getting big dogs, fraud and 81. The law requires statewide candidates lot selfies’ in Colorado,” The Denver Post (Nov. Title Board in an appeal before the Colorado Colo. Election,” Coloradoan (Nov. 20, 2016), Ballot Measure Is Unconstitutional,” CPRNews errors out of Colorado ballot access,” The to submit a petition “signed by at least one 4, 2016), www.denverpost.com/2016/11/04/ Supreme Court on these propositions. He www.coloradoan.com/story/news/2016/11/20/ (Apr. 24, 2017). Denver Post (Apr. 25, 2017), www.denverpost. thousand five hundred eligible electors in each colorado-ballot-selfie-case-motions. expresses no opinion on the merits of that case, unaffiliated-turnout-lagged-colo- 48. Id.; Semple v. Williams, Case No. 1:17-cv- com/2017/04/25/getting-big-dogs-fraud-and- congressional district.” CRS § 1-4-801(2)(c)(II). 89. Wyatt, “Next stop governor’s desk for ballot nor does he disclose any confidential informa- election/94081634. 01007 (D.Colo.), Complaint ¶¶ 51-52. errors-out-of-colorado-ballot-access. 82. American Civil Liberties Union, “Hundreds selfies,” Colorado Statesman (Mar. 3, 2017), tion in this article. 26. “Proposition 107: Presidential Primary 70. Id. The author represented the secretary of of Voters Are Having Their Ballots Unknowingly www.coloradostatesman.com/ballot-selfies- 49. Initiative & Referendum Inst. v. Walker, 450 one-step-closer-law-land. 2. Office of the Secretary of State, 2016 Ab- Elections,” Blue Book at 2, www.leg.state. F.3d 1082, 1100 (10th Cir. 2006) (emphasis state in all three of those lawsuits. He does not Rejected Over Handwriting” (May 10, 2017), stract of Votes Cast, at 152–53, www.sos.state. co.us/LCS/Initiative%20Referendum/1516initrefr. added). On this basis the Tenth Circuit has express any opinion about them. www.aclu.org/news/aclu-challenges-new- 90. Frank, “Colorado looks to repeal ban on co.us/pubs/elections/Results/Abstract/2016/ nsf/b74b3fc5d676cdc987257ad8005bce6a/ upheld (1) a Utah law that required any initiative 71. Frank, “Jon Keyser dodges questions about hampshire-voter-signature-matching-law. ballot selfies, but bill faces a hurdle,” The 2016BiennialAbstract.pdf. fcdc71a06e64f7ce87257fb9007a88f3 “related to wildlife management” to get approv- forged signatures, discusses his Great Dane, 83. CRS § 1-13-712(1)(a) (2016). Denver Post (Jan. 26, 2017), www.denverpost. com/2017/01/24/colorado-repeal-ban-ballot- 3. As the measure points out, Colorado had $FILE/2015-2016%20140bb.pdf. al of two-thirds of those voting, id. at 1085; (2) Duke,” The Denver Post (May 12, 2016), www. 84. Hutchins, “How a Libertarian plans to selfies. presidential primaries in 1992, 1996, and 27. Proposition 108, § 1; Proposition 107, § 1. a Colorado law that allowed citizens of “home denverpost.com/2016/05/12/jon-keyser- challenge Colorado’s ‘ballot-selfie’ law,” The 2000. Miller, “Know Your Vote: 7 things to 28. Brady et al., “Primary Elections and Can- rule” counties to initiate legislation, but didn’t dodges-questions-about-forged-signatures- Colorado Independent (Oct. 21, 2016), www. 91. HB 17-1014, 71st Gen. Assemb., 1st Reg. Sess. know about Propositions 107 & 108—primaries didate Ideology: Out of Step with the Primary give that right to citizens of “statutory” counties, discusses-his-great-dane-duke. coloradoindependent.com/161836/colorado- (Colo. 2017). and independents,” Denver7 (Oct. 25, Electorate?” 32 Legislative Studies Quarterly Save Palisade FruitLands v. Todd, 279 F.3d 1204, 72. Schrader, supra note 69. ballot-selfie-libertarian-free-speech-lawsuit. 92. CRS § 1-13-712(1)(b). 2016), www.thedenverchannel.com/news/ 79–105 (Feb. 2007). 1211 (10th Cir. 2002); and (3) an Oklahoma law 73. CRS § 1-4-908(1.5)(a). The author represented the secretary of state 93. Id. local-news/know-your-vote-7-things-to-know- requiring proposed petitions to be screened in in this lawsuit. He expresses no opinions on 29. Id. 74. CRS § 1-4-908(1.5)(b)(I). 94. Colo. Const. art. XVIII, § 9(2)(a). about-propositions-107-108-primaries-and- advance by the state supreme court, Skrzypczak the merits of the case, nor does he disclose independents. 30. “Proposition 108: Unaffiliated Voter v. Kauger, 92 F.3d 1050, 1053 (10th Cir. 1996). 75. Id. any confidential information arising out of that 95. Id. Participation in Primary Elections,” Blue Book 4. Frank, “Colorado Republicans cancel 50. Reynolds v. Sims, 377 U.S. 533 (1964). 76. CRS § 1-4-908(1.5)(b)(II). litigation. 96. CRS § 1-45-109(4)(c)(1). at 2, www.leg.state.co.us/LCS/Initiative%20 presidential vote at 2016 caucus,” The Denver Referendum/1516initrefr.nsf/b74b3fc5d676c 51. Markus, supra note 47; Semple, Complaint 77. Id. 85. Id. 97. Id. Post (Aug. 25, 2015), www.denverpost. dc987257ad8005bce6a/7f5d989a12d533af ¶ 41. 78. CRS § 1-4-912(2). Another law also includes 86. Rittiman, “Colorado sued over ‘ballot selfie’ 98. Id. com/2015/08/25/colorado-republicans-cancel- 87257fd500607fa1/$FILE/2015-2016%20 52. Angle v. Miller, 673 F.3d 1122, 1127–32 (9th a provision permitting a candidate to cure “the law,” 9News (Oct. 24, 2016), www.9news.com/ 99. Id. presidential-vote-at-2016-caucus. errors and insufficiencies regarding circulator news/politics/colorado-sued-over-ballot-selfie- 98bb.pdf. Cir. 2012). 100. CRS § 1-45-109(4)(c)(II). 5. Markus, “Record Caucus Crowds Catch 31. Ahler et al., “Do Open Primaries Improve 53. Carroll, “Amendment 71 would cripple affidavits.” SB 17-209, § 4. law/340794213. Officials Off Guard As Sanders Wins Colorado,” Representation? An Experimental Test of the power of petition in Colorado,” The 79. Schrader, supra note 69. 87. Marcus, supra note 34. CPR News (Mar. 2, 2016), www.cpr.org/news/ California’s 2012 Top-Two Primary,”41 Legislative Denver Post (Oct. 8, 2016), www.denverpost. story/record-caucus-crowds-catch-officials- Studies Quarterly 237–68 (Apr. 2016). com/2016/10/08/amendment-71-would-cripple- guard-sanders-wins-colorado. 32. Ingold, “Colorado set to bring back the-power-of-petition-in-colorado. 6. Proposition 107, § 1, www.sos.state.co.us/ primaries; let unaffiliated voters participate,” 54. Id. pubs/elections/Initiatives/titleBoard/ The Denver Post (Nov. 8, 2016), www. filings/2015-2016/140Final.pdf. 55. Id. denverpost.com/2016/11/08/colorado-primaries- 56. Sept. 14, 2016 Memorandum from Mark 7. Id. propositions-107-108-election-results. Grueskin to Interested Persons at 1, cbsdenver. 8. CRS § 1-4-1203(1). 33. Bunch, “Davita CEO Kent Thiry is officially files.wordpress.com/2016/09/september-14- 9. CRS § 1-4-1203(2)(b) (“An unaffiliated undecided on run for Colorado governor,” 2016-memorandum-re-amendment-71.pdf. eligible elector may vote in a political party’s Colorado Politics (Apr. 12, 2017), coloradopolitics. 57. Carroll, supra note 53. EXPAND presidential primary election without affiliating com/kent-thiry-governor-colorado. 58. Substantively, the law also gives election with that party . . . .” ). 34. Marcus, “Owen Hill to challenge Doug YOUR PRACTICE REACH officials the ability to disqualify a candidate 10. CRS § 1-4-1203(4)(b). Lamborn in 5th Congressional District GOP based on residency requirements. CRS § 1-4- Primary,” The Gazette (Apr. 2, 2017), gazette. 11. CRS § 1-4-1203(4)(c). The change came 501(1). This provision is almost certainly a reac- com/owen-hill-to-challenge-doug-lamborn- through SB 17-305, which passed in the last tion to the Colorado Supreme Court’s decision 12 LOCATIONS in-5th-congressional-district-gop-primary/ days of the legislative session. in Carson v. Reiner, 370 P.3d 1137, 1141 (Colo. article/1600180. 12. Id. (emphasis added). 2016), which limited an election official’s power 35. Hutchins and Ray, “Amendment 71, aka ‘Raise 1 LOW PRICE 13. Id. to disqualify a candidate based on residency the Bar,’ explained,” The Colorado Independent issues. In addition, the bill gives candidates five 14. CRS § 1-4-1207(3). (Oct. 19, 2016), www.coloradoindependent. days to correct any deficiencies in their petition l Customized office packages 15. Proposition 108, § 1, www.sos.state. com/161485/colorado-raise-the-bar- circulators’ affidavits. CRS § 1-4-912(2). co.us/pubs/elections/Initiatives/titleBoard/ amendment-71. 59. Vacancies for minor parties, unaffiliated l Flexible coworking memberships filings/2015-2016/98Final.pdf. 36. Colo. Const. art. V, § 1(2.5). candidates, and school district director nomina- l Onsite receptionist support 16. Id. 37. See id. tions are governed by different provisions. CRS 17. CRS § 1-4-101(2)(a). 38. Id. §§ 1-4-1007, -1008, and -1009. l U.S. based call center 18. Id. 60. CRS §§ 1-4-1002(2), -1003(2), -1004(2), and 39. Colo. Const. art. V, § (4)(b). l -1005(2). Professional office addresses 19. CRS § 1-4-702(1). 40. Id. 61. CRS § 1-4-1006(2) (vacancies occurring l Mail box and mail management 20. CRS § 1-4-1304(1.5)(c). 41. Hutchins and Ray, supra note 35. after the earliest day to mail in general election 21. California Democratic Party v. Jones, 530 42. Id. ballots are “filled in accordance with part 2 of l Free WiFi and coffee U.S. 567, 577 (2000). 43. Office of the Secretary of State, State of article 12 of this code”). 22. E.g., Miller v. Brown, 503 F.3d 360, 367 (4th l 24/7 access Colorado, 2016 Abstract of Votes Cast, at 149, 62. CRS §§ 1-4-1002(3), -1003(3), -1004(3), and Cir. 2007); Greenville Cnty. Republican Party www.sos.state.co.us/pubs/elections/Results/ -1005(3). Exec. Comm. v. South Carolina, 824 F. Supp. 2d Abstract/2016/2016BiennialAbstract.pdf. 655, 662-63 (D.S.C. 2011), modified 604 Fed. 63. Id. AURORA I BOULDER I BROOMFIELD 44. CRS § 1-40-106(3.5). Appx. 244. 64. CRS §§ 1-4-1002(4) and -1003(4)(a). CHERRY CREEK I DENVER I FORT COLLINS OfficeEvolution.com I 303-800-1707 45. CRS § 1-40-107(2). 23. Miller, supra note 3. 65. CRS §§ 1-4-1003(4)(b), -1004(4)(a), and GOLDEN I GREENWOOD VILLAGE I LAKEWOOD 46. Ingold, “ColoradoCare measure 24. Colo. Sec’y of State, 2017 Voter Registration -1005(4)(b). LONE TREE I LOUISVILLE Amendment 69 defeated soundly,” The Statistics, www.sos.state.co.us/pubs/ 66. CRS §§ 1-4-1003(4)(b)(2), -1004(4)(a)(2), Denver Post (Nov. 8, 2016), www.denverpost. elections/VoterRegNumbers/2017/April/ and -1005(4)(b)(2). com/2016/11/08/coloradocare-amendment- VotersByPartyStatus.pdf. 69-election-results. 67. CRS § 1-4-601.

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