Colorado is highly likely to see pre-election litigation. Controversy has swirled around its voting machine decertification and recertification and at least one lawsuit has already been concluded on this topic. It has restrictive laws governing voter registration drives and has seen high rates of provisional voting in the past. If election integrity groups or political parties see their fortunes resting with Colorado’s 9 electoral votes, litigation there will be likely.

Update 10/26/08:  Registration purges.  Common Cause has filed a complaint against Colorado Secretary of State Mike Coffman alleging that the state has executed illegal purges of the statewide voter registration database.  Specifically, the complaint alleges that Colorado violated the NVRA by purging the voting rolls within 90 days of an election for unauthorized reasons, including the failure of post-registration address confirmation postcards to reach new registrants.  See Major Pending Cases case page here.  Update 10/30/08:  The Denver Post reports that Colorado has reached a settlement with Common Cause and other organizations in the recent VRDB purge case.  While the purged voters will still have to cast a provisional ballot, those ballots will be specially flagged and examined first, before all other provisional ballots.  Furthermore, the ballots will enjoy a presumption of validity, and may only be discounted by clear and convincing evidence of ineligibility.

Voting technology.  (Also at risk:  IN, NV, NH, NC, OH, PA, VA). A lawsuit could be brought against Colorado election officials over the use of voting machines. Secretary of State Mike Coffman began his term in 2007 focused on improving the certification process for voting machines. In accordance with the court order in Dennis v. Conroy, Denver County District Court case 06CV6072 (2006), he created new regulations, known as Rule 45, containing tough certification standards. However, as a result, he had to decertify many touchscreen and optical scan machines. The Colorado legislature pushed for all of the counties to switch to paper ballot voting, but the county clerks pushed back with claims that the expense would be too great. Coffman succumbed to this pressure and recertifed the machines on the condition that counties follow additional on-site procedures to ensure security. Coffman recertifies more counting machines, The Greeley Tribune, Mar. 4, 2008.

Coffman’s controversial recertification decision may lead to another lawsuit over the use of what election integrity activists say are unsecure machines. Similar suits brought by voters and a political party are ongoing in Ohio and Texas. The November general election is quickly approaching and a lawsuit at this late date would likely create uncertainty in the state and stress local officials during their crucial preparation time. However, such a suit would likely not be concluded until after the November election, so local officials would not have to change their voting systems at the last minute.

Provisional ballots.  (Also at risk: NM, OH).  Colorado election officials are susceptible to lawsuits over the provisional ballot counting standard. Colorado had a very high provisional ballot casting rate in 2006 at 3.77% of ballots cast, of which 85% were counted. The 2006 Election Administration and Voting Survey, US EAC, Dec. 2007. Because Colorado represents a relatively large number of electoral votes and is anticipated to be one of the closest battleground states, this high provisional casting rate alone might be enough to attract litigation. Lawsuits over provisional counting standards have been brought in the past in Ohio and Florida.

Fortunately, Colorado’s provisional counting standard is clearer than most. Like the law of most states, Colorado law states that provisional ballots will be counted if the voter is deemed “eligible to vote”. CRSA 1-8.5-106. However, Colorado’s law goes beyond that by stating that, if a voter signs a provisional ballot affidavit, but does not provide the other requested information, the provisional ballot will be counted as long as the election administrator “is able to determine” that the voter was registered and eligible to vote in the precinct and county. CRSA 1-8.5-105. The law also instructs election administrators to contact provisional voters who have failed to provide a signature, to give them a second chance at providing it.

Nevertheless, the language is probably not clear enough to satisfy some people. Specifically, the statute does not define what it means for an election administrator to be “able to determine” that a provisional voter was registered and eligible. While this might sound clear enough, in practice there are likely to be arguments over situations where some information is missing. What if the voter provides an address, but fails to provide a name? What if the voter provides only an identification number? These are the types of questions to which there are no answers, and which might prompt suits in Colorado.

Third-party registration.  (Also at risk:  FL, IA, MO, OH, PA).  There is a risk of litigation in Colorado over the restrictions on third party voter registration groups. Groups wishing to conduct a voter registration drive must register a state resident as their agent. CRSA 1-2-701. The agent must then go through training on how to properly conduct such a drive. They may not begin their drive until the secretary of state issues the group a voter registration drive (VRD) number. Ground-level voter registration workers may not return completed forms directly, but must do so through their registered agent. This must occur within 15 days of when the form was signed. Voter registration drive workers cannot be paid based on the number of completed applications they collect. The groups are encouraged to use the state of Colorado’s voter registration form which contains a space for this VRD number and a tear-off receipt to give to applicants. When this law was first passed, it did not allow the registration groups to use the federal voter registration form. The regulations now permit use of the federal form but warn, “the applicant and VRD are afforded greater protection when the standard Colorado form is used”. 8 CCR 1505-1. This vague language may lead to some counties treating federal registration forms differently from state forms and possibly using methods that lack uniformity across counties. Lawsuits over restrictive voter registration laws have been brought in Ohio, Georgia, New Mexico and Florida.

NVRA/public assistance. (Also at risk:  NV, OH).  Colorado has low numbers of voter registrations coming out of its public assistance agencies despite the relatively low incidence of voter registration among low-income citizens there. A report by Project Vote reveals that Colorado is taking steps to improve their compliance with state and federal laws in this area but, if Colorado does not improve its performance, it is vulnerable to suit. Suits are ongoing in both Ohio and Missouri to force greater compliance with the NVRA, specifically the requirement that public assistance offices provide registration forms to their clients. Some states, such as Ohio, do not provide those forms unless the individual specifically requests them.