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Colorado > Colorado Electoral Code > Elections Generally

1-1-107. Powers and duties of secretary of state – penalty

Statute

(1) In addition to any other duties prescribed by law, the secretary of state has the following duties:

(a) To supervise the conduct of primary, general, congressional vacancy, and statewide ballot issue elections in this state;

(b) To enforce the provisions of this code;

(c) With the assistance and advice of the attorney general, to make uniform interpretations of this code;

(d) To coordinate the responsibilities of the state of Colorado under the federal “National Voter Registration Act of 1993”, 42 U.S.C. sec. 1973gg;

(e) To serve as the chief state election official within the meaning of the federal “Help America Vote Act of 2002”, Pub.L. 107-252, and, in that capacity, to coordinate the responsibilities of the state of Colorado under the federal act in accordance with the requirements of this code.

(2) In addition to any other powers prescribed by law, the secretary of state shall have the following powers:

(a) To promulgate, publish, and distribute, either in conjunction with copies of the election laws pursuant to section 1-1-108 or separately, such rules as the secretary of state finds necessary for the proper administration and enforcement of the election laws, including but not limited to rules establishing the amount of fees as provided in this code;

(b) To inspect, with or without the filing of a complaint by any person, and review the practices and procedures of county clerk and recorders, election commissions, their employees, and other election officials in the conduct of primary, general, and congressional vacancy elections and the registration of electors in this state;

(c) To employ, subject to section 13 of article XII of the state constitution, the personnel deemed necessary to efficiently carry out the powers and duties prescribed in this code;

(d) To enforce the provisions of this code by injunctive action brought by the attorney general in the district court for the judicial district in which any violation occurs.

(3) Repealed.

(4) Any other provision of law to the contrary notwithstanding, the office of the secretary of state, or the section or division administering the election laws of this state pursuant to this section, shall be open and available to the election officials and employees of the various political subdivisions conducting elections on each election day during the same hours that the polls are open for voting if the political subdivision has notified the office of the secretary of state that an election has been called and that the services of the office are desired.

(5) The provisions of this section are enacted, pursuant to section 11 of article VII of the state constitution, to secure the purity of elections and to guard against the abuses of the elective franchise.

(6) Repealed.

(7) No person while serving in the office of secretary of state shall serve as the highest ranking official, whether actual or honorary, in the campaign of any candidate for federal or statewide office. This subsection (7) shall not apply to a campaign in which the secretary of state is the candidate.

 

Source: L. 92: Entire article R&RE, p. 632, § 1, effective January 1, 1993.L. 93: (1)(a) amended, p. 1395, § 4, effective July 1.L. 94: (1)(d) added, p. 1751, § 2, effective January 1, 1995.L. 95: (6) added, p. 179, § 1, effective April 7.L. 96: (3) repealed, p. 1775, § 84, effective July 1.L. 98: (2)(a) amended, p. 1317, § 3, effective June 1.L. 2001: (6) amended, p. 518, § 6, effective January 1, 2002.L. 2003: (1)(e) added and (6) repealed, p. 2065, § § 2, 3, effective May 22.L. 2005: (7) added, p. 1393, § 2, effective June 6; (7) added, p. 1428, § 2, effective June 6.

 

Editor’s note: This section is similar to former § 1-1-106 as it existed prior to 1992.

ANNOTATION

Secretary of state’s power to promulgate rules regarding elections is not without limits. Under this section, the secretary of state has the authority to promulgate rules necessary to ensure the proper administration of elections. But the secretary lacks authority to promulgate rules that conflict with statutory provisions. Hanlen v. Gessler, 2014 CO 24, 333 P.3d 41.

Adoption of 8 Colo. Code Regs. 1505-1, § 10.7.5, of the secretary of state’s rules regarding the treatment of votes cast for ineligible candidates exceeded the secretary’s rulemaking authority. As a rule of general applicability, the rule specifically contravenes § 1-4-1002. The rule also contravenes the election code by permitting a designated election official to usurp the courts’ express authority to determine issues regarding a candidate’s eligibility that arise following certification to the ballot. The rule thus conflicts with the election code and is therefore void. Hanlen v. Gessler, 2014 CO 24, 333 P.3d 41.

Adoption of 8 Colo. Code Regs. 1505-6, § 9.3 of the secretary of state’s rules concerning campaign and political finance requiring the name of the candidate unambiguously referred to in the electioneering communication to be included in the electioneering report was within the rulemaking authority of the secretary of state under § 9(1)(b) of article XXVIII of the state constitution and subsection (2)(a) of this section. Colo. Citizens for Ethics in Gov’t v. Comm. for the Am. Dream, 187 P.3d 1207 (Colo. App. 2008).

Annotation: June 13, 2016 3:24 pm

According to the rules, a “designated election official” or “DEO” includes the designated election official’s sworn, deputized designee.

Annotation: April 21, 2016 10:11 pm

Under section 24-21-105, C.R.S., “The secretary of state may appoint a deputy to act for him if he deems it necessary, who shall have full authority to act in all things relating to the office.”

Definition [Election day]

The date either established by law or determined by the governing body of the political subdivision conducting the election, to be the final day on which all ballots are determined to be due, and the date from which all other dates in this article are set.C.R.S. § 1-7.5-103.

Definition [Political subdivision]

A governing subdivision of the state, including counties, municipalities, school districts, and special districts. C.R.S. § 1-7.5-103.

Definition [Designated election official]

The secretary of state, a county clerk and recorder, or other election official as provided by article XXI of the state constitution. C.R.S. § 1-12-100.5.

Definition [Electioneering communication]

Any communication broadcasted by television or radio, printed in a newspaper or on a billboard, directly mailed or delivered by hand to personal residences or otherwise distributed that:

(I) Unambiguously refers to any candidate; and

(II) Is broadcasted, printed, mailed, delivered, or distributed within thirty days before a primary election or sixty days before a general election; and

(III) Is broadcasted to, printed in a newspaper distributed to, mailed to, delivered by hand to, or otherwise distributed to an audience that includes members of the electorate for such public office.

(b) “Electioneering communication” does not include:

(I) Any news articles, editorial endorsements, opinion or commentary writings, or letters to the editor printed in a newspaper, magazine or other periodical not owned or controlled by a candidate or political party;

(II) Any editorial endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate or political party;

(III) Any communication by persons made in the regular course and scope of their business or any communication made by a membership organization solely to members of such organization and their families;

(IV) Any communication that refers to any candidate only as part of the popular name of a bill or statute.

Section 2(7) of article XXVIII of the state constitution.

Definition [State]

A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.

Definition [Ballot]

(a) A federal write-in absentee ballot;

(b) A ballot specifically prepared or distributed for use by a covered voter in accordance with this article; or

(c) A ballot cast by a covered voter in accordance with this article.

(2) “Covered voter” means:

(a) A uniformed-service voter defined in paragraph (a) of subsection (9) of this section who is a resident of this state but who is absent from this state by reason of active duty and who otherwise satisfies this state’s voter eligibility requirements;

(b) An overseas voter who, before leaving the United States, was last eligible to vote in this state and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements;

(c) An overseas voter who, before leaving the United States, would have been last eligible to vote in this state had the voter then been of voting age and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements; or

(d) An overseas voter who was born outside the United States, is not described in paragraph (b) or (c) of this subsection (2), and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements if the last place where a parent, legal guardian, spouse, or civil union partner of the voter was, or under this article would have been, eligible to vote before leaving the United States is within this state.

C.R.S. § 1-8.3-102.

Definition [Person]

Any natural person, partnership, committee, association, corporation, labor organization, political party, or other organization or group of persons. Section 2(11) of article XXVIII of the state constitution.

Definition [Election]

Any election under the “Uniform Election Code of 1992” or the “Colorado Municipal Election Code of 1965”, article 10 of title 31, C.R.S. C.R.S. § 1-7.5-103.

Definition [Secretary]

The Colorado secretary of state. C.R.S. § 1-1.5-102.

Definition [Candidate]

Any person who seeks nomination or election to any state or local public office that is to be voted on in this state at any primary election, general election, school district election, special district election, or municipal election. “Candidate” also includes a judge or justice of any court of record who seeks to be retained in office pursuant to the provisions of section 25 of article VI. A person is a candidate for election if the person has publicly announced an intention to seek election to public office or retention of a judicial office and thereafter has received a contribution or made an expenditure in support of the candidacy. A person remains a candidate for purposes of this article so long as the candidate maintains a registered candidate committee. A person who maintains a candidate committee after an election cycle, but who has not publicly announced an intention to seek election to public office in the next or any subsequent election cycle, is a candidate for purposes of this article. Section 2(2) of article XXVIII of the state constitution.

Cases

Colorado Cases

Out-of-State Cases

Case State: colorado

Case Name: Hanlen v. Gessler

Citation: 333 P.3d 41 (Colo. 2014)

Year: 2014

Case URL: https://www.ravellaw.com/opinions/981336a95d3689adc8b42406ab7bafa6

Case Summary: Holding that Secretary of State acted in excess of his rulemaking authority in making rule that permitted designated election official to determine, after ballots had been printed, that an individual appearing on the ballot was not qualified for office, and directed that votes cast for that individual were invalid.

Case State: colorado

Case Name: Colo. Citizens for Ethics in Gov’t v. Comm. for the Am. Dream

Citation: 187 P.3d 1207 (Colo. App. 2008)

Year: 2008

Case URL: https://www.ravellaw.com/opinions/ff6d0c5bea644bbf487ae172deee07cb

Case Summary: Holding that Administrative Law Judge (ALJ) did not abuse his discretion by determining that documents evidencing political committee's production and airing of television commercials opposing reelection of political candidate had been sufficiently authenticated; advertisements were electioneering communications under the Campaign and Political Finance Amendment to the Colorado Constitution, rather than express advocacy; advertisements did not fall under “communication made in the regular course and scope of business” exception to electioneering communication; political committee, which failed to identify political candidate in a separate electioneering report, did not satisfy its reporting requirements through its contribution and expenditure reports; ALJ had jurisdiction to impose a penalty due to political committee's failure to comply with reporting requirements; voluntary dismissal by citizens group of its membership contribution claim was not a defense to political committee's claim for attorney fees; and ALJ did not abuse his discretion by finding that citizen group's membership contribution claim was groundless and awarding political committee attorney fees.

Federal Cases

Regulations & Guidance

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Proposed Uniform Voting System