A bill before the Colorado General Assembly setting new criteria for election watchers is starting a fierce debate in the state.
Senate Bill 17-138, which is being promoted by Republicans, changes the statute dealing with election watchers in response to the state's transition to an all mail-in ballot election system. Election watchers are citizens with the right to vote who are appointed to observe and verify every step of the voting process on behalf of a political party or issue committee.
The bill changes the requirement for how many watchers are present during the counting process and adds background checks at the discretion of county clerks, even though there is no crime that disqualifies a person from serving as an election watcher.
Election watchers who oppose the bill say it will restrict access and limit the role of citizen electors whose job is to ensure the vote is free and fair. Background checks, critics say, could be used to delay and intimidate potential watchers.
Supporters of the bill, which originated in the Colorado secretary of state's office, say it is simply a way to harmonize the statute with the state's all mail-in ballot elections. They add the legislation would actually expand the number of election watchers.
"We're going in the opposite direction of every modern democracy," said Marilyn Marks, an experienced election watcher and advocate for transparency in elections.
"The observers are meant to be able to attest that the election was fair," Marks said. "Colorado is trying to greatly reduce what watchers can see, and I think at the very time we're hearing out of Washington more and more concern that our systems are subject to infiltrators by bad actors and nation states and our answer is to make sure that there are fewer people to detect it?"
The legislation would change several Title I election statutes, including section 1-7-06, which permits one watcher at "each place where votes are counted."
The bill strikes the phrase "Each participating political party or issue committee whose candidate or issue is on the ballot … is entitled to have no more than one watcher at any one time in each voter service and polling center in the county and at each place where votes are counted in accordance with this article."
The new text reads that each political party may have "at least one watcher at any one time in any location in which the conduct of an election occurs."
Marks argues that the change—from "no more than one" watcher at every single place where votes are counted to "at least one" watcher at "any location"—will lead to fewer watchers overseeing elections.
"If you're going to honor the law that says verify each step—it's not unusual to have 100 workers in the building, 100 election judges—you can have enough watchers so that you can verify everything, one per work station," Marks said. "Now you can have one for the whole building."
Marks also takes issue with the definition of "conduct of an election" in the bill. The bill defines "conduct of an election" as "each stage of the election in which electors are marking and casting ballots or when election judges are present and performing election related activities."
Currently, watchers have rights to "maintain a list of eligible electors who have voted, to witness and verify each step in the conduct of the election from prior to the opening of the polls through the completion of the count and announcement of the results, to challenge ineligible electors, and to assist in the correction of discrepancies."
Marks said many tallying tasks are delegated by election judges—citizen electors who oversee the election process–to county clerks. Watchers would not be able to witness tasks undertaken by clerks, she says.
Clerks have been caught using "bogus" signature verification processes and stacking election judges with Democrats. Colorado's secretary of state released a review of the general election results finding that the Boulder County Clerk and Recorder committed "systematic violations of Colorado state law" during the 2014 general election.
The clerk's hiring process for election judges "completely contravened the law" by illegally appointing election judges, and illegally limiting watcher access to signature verification. The clerk also "hired people to fill Republican judge positions who had recently changed their affiliation from Democratic to Republican or Democratic to Unaffiliated."
"None of these irregularities applied to Democratic election judges," the report said.
Marks said oversight of the signature verification process is also in jeopardy because the new bill states watchers may "observe the process of signature verification," instead of "verify."
"What they are doing here is rather than them conforming to the statute, they're taking the statute and dumbing it down to conform to their rules," she said. "They're not even admitting it's reducing watcher rights."
Suzanne Staiert, the deputy secretary of state, strongly pushed back on Marks's claims, arguing the legislation updates the election watcher statute since the state no longer has precinct-style voting. Most voters mail in their ballots or drop them off at polling centers and use same-day registration to vote weeks before the election.
"Their argument [is] we changed the language from 'no more than one' to 'at least one,' and that's restrictive?" Staiert asked. "I don't even know how to respond to that. Basic logic would tell you changing something from 'no more than one' to 'at least one' is going to allow for more watchers, not less."
Staiert said the new legislation goes along with a current watcher rule that allows for one watcher at each station where voting activity occurs. She also said the signature verification process was only included to clarify that watchers can observe the process, because concerns have been made that watchers can access voter registration records that contain personally identifiable information.
Staiert also pushed back against the notion that the "conduct of an election" definition was changed, because "there was no definition in the statute."
"I don't understand at this point the watchers' concerns, they have become so muddled that I think that the only thing they are concerned about is change," Staiert said. "And what they don't see are conflicts in statutes that have been an issue in the past, whether or not they can see signatures, and what it means to be able to verify something, and this [bill] provides some certainty about the model we currently have."
Jack Tate, a Republican state senator who sponsored the bill, said it is still early in the legislative process. The bill comes up for a second reading on Friday. Tate said he would wait to comment in full about concerns with the bill, but said he would be presenting amendments to clarify the language of the bill, which he said is "helping to create some of the confusion."
"We just have to make sure that we take everyone's concerns seriously, and there's a lot of people coming from a place of prudence, but also I think people coming from a place of maybe hyperbole, and [we're] just trying to really be patient and getting to a very carefully crafted finale here by the time this whole thing's done," Tate added.
Marks said it is important to get the policy right because of the vital role watchers play in protecting elections from voter fraud.
"Some years ago I was a watcher for a woman who had left the Democratic Party but didn't join the Republican Party in time, so she had to run as an unaffiliated," Marks said. "Republicans and Democrats were mad at her. They set up a scheme where they would not let me [as a watcher] or anyone see when they were counting the write-in ballots. None of her people were able to see when they were counting write-in votes. Any ballots with misspellings, they were throwing them out."
"When you're not allowed to look, you cannot trust the system to work for you," she said.