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RE: Election rules to be changed September 30th. We need your help.

I have just completed a scan of the 100-page document "Election Rules for Sept 30, 2004" to govern our elections in Colorado this fall. Folks, there are some serious flaws in here that we ought to be protesting.

My main concern is that there are federally-protected procedures for complaining about the administration of the election through the Help America Vote Act (HAVA) that the CO Secretary of State has just made near impossible to submit, and has introduced a level of intimidation into the rules that would scare most complaints away. In particular, anyone who witnesses or experiences vote fraud or the potential for vote fraud may submit a complaint under title III of the HAVA act, however in Colorado they must use a distinguishable envelope designed especially for this purpose by the Secretary of State's office, the availability and location of which are not disclosed in these rules (but everything else is). Further, if someone raises such a complaint, it is totally at the Secretary of STate's discretion whether to accept the complaint, whether the complain has any merit, whether the complaint should be lumped together with other complaints, or whether you should simply be charged with any costs incurred by the Secretary of State's office in investigating the complaint or even labeling you as someone tampering with the elections process and charged with a misdemeanor!

Here are the new "rules" which will take effect after the hearing this Thursday unless we file some objections in time to be entered into the record and orally defend during the hearing. Anyone up to doing this? Anyone able to research Title III of HAVA to compare what it offers vs. what Donetta is allowing us in Colorado? Is there an appeals process over Donetta's decision????

Rule 31. Rules Concerning Help America Vote Act, Title III: Administrative Complaint Procedures

31.1 The HAVA Title III complaint may be received by the Secretary of State?s office or the designated election official?s office. The HAVA Complaint procedure shall be uniform and nondiscriminatory. The Complaint procedure shall conform to 1-1.5-105(2)(a) C.R.S. as follows:

(a) A uniform and nondiscriminatory complaint procedure;
(b) Authorization for any person who has either been personally aggrieved by or has personally witnessed a violation of title III of HAVA that has occurred, is occurring, or that is about to occur, as applicable, to file a complaint;
(c) A description by the complainant in his or her complaint of the alleged violation with particularity and a reference to the section of HAVA alleged to have been violated;
(d) A requirement that the complaint be filed no later than one year from the date of either the occurrence of the alleged violation or of the election giving rise to the complaint, whichever is later;
(e) A requirement that each complaint be in writing and notarized, signed, and sworn by the person filing the complaint;
(f) Authorization for the secretary to consolidate two or more complaints;
(g) At the request of the complainant, a hearing on the record;
(h) Authorization for the secretary to provide an appropriate remedy if the secretary determines that any provision of title III of HAVA has been violated or to dismiss the complaint and publish the results of his or her review if the secretary determines that no provision of title III of HAVA has been violated or to dismiss the complaint and publish the results of his or her review if the secretary determines that no provision of title III of HAVA has been violated;
(i) A final determination on the complaint by the secretary prior to the expiration of the ninety-day period that begins on the date the complaint is filed, unless the complainant consents to an extension of time for making such determination;
(j) Resolution of the complaint within sixty days under an alternative dispute resolution procedure that the secretary shall establish in accordance with the requirements of this section if the secretary fails to satisfy the applicable deadline specified in 1-1.5-105(2)(i) C.R.S., and the availability of the record and any other materials from any proceedings conducted under the complaint procedures established for use under such alternative dispute resolution procedures;
(k) Authorization for the secretary to conduct a preliminary review of any complaint submitted to him or her and to dismiss any complaint that he or she finds is not supported by credible evidence; and
(l) Recovery by the secretary of the costs of the proceeding against any complainant who files a complaint that, in connection with the final determination by the secretary of the costs of the proceeding against any complainant who files a complaint that, in connection with the final determination by the secretary pursuant to 1-1.5-105(2)(i), is found on the basis of clear and convincing evidence to be frivolous, groundless, or vexatious.

Comment: Modified based on the comments of Legislative Legal Services by memo dated September 1, 2004 to conform to the language of 1-1.5-105(2) C.R.S. which states that ?[a]ny rules promulgated pursuant to subsection (1) of this section shall provide for, but need not be limited to, the [list set forth above]?.

31.2 The complaint must be in writing and may be submitted on a form designated by the Secretary of State or in a letter written by the complainant. The letter shall contain the following:

(a) The complainant?s name;
(b) The complainant?s full residence address, including county, and mailing address (if different from residence);
(c) A description of the alleged violation with particularity and a reference to the section of Title III of HAVA alleged to have been violated;
(d) A completed, notarized oath signed by the complainant where he or she states that the facts of the complaint are true and correct to the best of his or her knowledge and belief.


31.3 Whenever possible, any completed complaints mailed to the Secretary of State or the designated election official shall be sent in a unique, distinguishable envelope as approved by the Secretary of State. This unique envelope shall be given to the complainant at the same time as the complaint form and instructions.

31.4 Upon receipt of the HAVA complaint, the Secretary of State or designated election official shall note the date received and unique tracking number on the complaint form. The Secretary of State?s office shall establish a unique tracking number for its use, and the designated election official shall use the Secretary of State?s county ID number for that county, the last two digits of the present year, and a sequence number according to the amount of complaints already received by the county, placing hyphens between groupings of numbers. (For example, the first one received would be the two digit county number-last two digits of the year-03 with 01, 02, 03, etc. numbering any sequential complaints).

31.5 If the complaint is received by the Secretary of State?s office, the unique tracking number shall be added to the form and the form shall be faxed to the designated election official in the county where the alleged violation occurred. The complainant shall receive a copy of the submitted complaint with all check-in notations and tracking numbers included.

31.6 If the complaint is received by the designated election official, the county tracking number shall be added to the form and the form shall be faxed to the Secretary of State?s office within one business day. The complainant shall receive a copy of the submitted complaint with all check-in notations and tracking numbers included. The original complaint form shall be hand delivered or mailed to the Secretary of State?s office, and a copy shall be retained by the designated election official.

31.7 Any original mailed complaints sent by the designated election official and received by the Secretary of State?s office shall be sent in a unique, distinguishable mailing envelope as approved by the Secretary of State. This unique envelope will ensure that the complaint is easily recognizable and will be processed in a timely manner.

31.8 If the complaint is received by the designated election official and the original sent to the Secretary of State?s office, the Secretary of State?s office shall notify the designated election official, either by fax or letter, of the office?s unique tracking number when the form is received at the Secretary of State?s office. This official notification may be used for documentation purposes.

31.9 The designated election official shall not make any determination as to the validity of the alleged complaint during the submission process, but shall forward all information to the Secretary of State?s office. The county may, however, begin researching the alleged violation on the local level once the complaint is received.

31.10 Any information gathered by the designated election official shall be documented with specific details, including the date, and shall be used for reference purposes.




From: "alkolwicz" <alkolwicz@xxxxxxxxx>
Reply-To: <AlKolwicz@xxxxxxxxx>
To: "'Nicholas Bernstein'" <nicholas.bernstein@xxxxxxxxxxxx>
CC: "'Citizens for Verifiable Voting'" <cvv-discuss@xxxxxxxxxxxxxxxxx>
Subject: RE: Election rules to be changed September 30th. We need your help.
Date: Sun, 26 Sep 2004 10:21:58 -0600

Most of the changes have nothing to do with HAVA.  I am not sure which, if
any relate to HAVA.

Al


-----Original Message-----
From: Nicholas Bernstein [mailto:nicholas.bernstein@xxxxxxxxxxxx]
Sent: Saturday, September 25, 2004 9:47 PM
To: AlKolwicz@xxxxxxxxx
Cc: Citizens for Verifiable Voting
Subject: Re: Election rules to be changed September 30th. We need your help.

Al,

The web page states that rule changes are required to comply with HAVA.
1. Is this true?
2. Are we better off with the rules we have now, or the new ones?

I agree that Sep 30 is a bad time to change the rules, but is there
adequate time to improve upon the wording or do we have to choose
between the rules we have now and proposed wording.

N

alkolwicz wrote:

> -->
>
> Friends,
>
> We just discovered that the Secretary of State is making election
> rules changes on September 30^th . The NOTICE is published at
> http://www.sos.state.co.us/pubs/rule_making/cpf_rules9-30-04.htm
>
> Some of the planned modifications are objectionable. For example, the
> proposed rules authorize voting by FAX machine (rule 25).
>
> * In our quick reading of the Statutes, we found no Colorado
> Statute authorizing voting by FAX machine.
> * The rule does not address the federal statement, "Faxing may be
> an option, but the ballot **must be mailed** as well." How does
> this work with a recount?
>
> Some of these rules are inadequate. For example the rules for RECOUNT:
>
> * The proposed recount rule (14.3) does not start the recount at
> the raw cast ballots (including absentee and provisional
> envelopes). This means that ballot qualification errors will not
> be detected.
> * The proposed recount rules (14.4.4) appear to transfer the
> statutory authority for conducting the recount from the canvass
> board to the Secretary of State.
> * The proposed recount rules (14.5.4) require that paper ballots
> be RE-counted in groups of 25 (GOOD) but the rules do not
> require that the original count be done in batches of 25 (BAD).
> The consequence is that there is no way to verify batch counts.
> * The proposed recount rule (14.5.5) for how counts are recorded
> is incomplete and inadequate.
> * The proposed recount rule (14.7) for re-counting optically
> scanned ballots does not require that the votes counted for each
> ballot image be verifiable against the original ballot.
> * The proposed recount of Ballot Now equipment does not require a
> verifiable vote record, and does not prescribe statistical sampling.
> * The rules for recount of Direct Record Electronic voting
> equipment are missing.
>
> And the rules for WATCHERS:
>
> * Fail to provide process-specifications and process-training for
> watchers.
> * Fail to require that all processes be identified, and that a
> schedule of operation for every process be published in advance
> of the election.
> * Fail to address the rights of watchers to actually read what is
> happening.
> * Fail to permit multiple watchers for the same candidate as long
> as the watchers are observing different processes.
> * Fails to require that all electronic data be instantly available
> to watchers - such as electronic poll books and vote
> interpretation records and electronic voter registration books.
> * Fails to require that all election workers be identified with a
> badge containing very legible badge identification of their
> role, who they represent, and their name/number.
>
> Some rules are missing:
>
> * There is no rule requiring that the version of each piece of
> equipment and software (including operating system, PROM, and
> utility applications) be verifiable.
> * There is no rule requiring that the certification documentation
> be available.
> * There are no rules regarding the operation of the canvass board.
> * There are no rules regarding the conduct of the Logic and
> Accuracy Test.
> * There are no rules describing what happens when an
> error/deviation is detected - for example absentee ballots that
> were erroneously not counted.
> * There is no rule creating an independent oversight of issues
> where the Secretary of State or a County Clerk is the subject of
> the complaint.
>
> September 30th is an inappropriate time for the Secretary of state to
> be conducting a rulemaking hearing on a 100 page document.
> Nonetheless, it is done, and we must respond.
>
> The draft election rules to be considered at September 30^th hearing
> are published at
>
http://www.sos.state.co.us/pubs/rule_making/proposed_election_rules9-30-04.p
df
>
>
> The current election rules, September 13, 2004, are published at
> http://www.sos.state.co.us/pubs/rule_making/electionrules.doc
>
> Al
>
> Al Kolwicz
>
> CAMBER
>
> Citizens for Accurate Mail Ballot Election Results
>
> 2867 Tincup Circle
>
> Boulder, CO 80305
>
> 303-494-1540
>
> AlKolwicz@xxxxxxxxx <mailto:AlKolwicz@xxxxxxxxx>
>
> www.users.qwest.net/~alkolwicz <http://www.users.qwest.net/%7Ealkolwicz>
>
> http://coloradovoter.blogspot.com
>


--
My razor-sharp wit was confiscated at airport security.