Topics
Code Section
Colorado > Colorado Electoral Code > Initiative And Referendum

1-40-112. Circulators – requirements – training

Statute

(1) No person shall circulate a petition for an initiative or referendum measure unless the person is a resident of the state, a citizen of the United States, and at least eighteen years of age at the time the petition is circulated.

(2) (a) A circulator who is not to be paid for circulating a petition concerning a ballot issue shall display an identification badge that includes the words “VOLUNTEER CIRCULATOR” in bold-faced type that is clearly legible.

(b) A circulator who is to be paid for circulating a petition concerning a ballot issue shall display an identification badge that includes the words “PAID CIRCULATOR” in bold-faced type that is clearly legible and the name and telephone number of the individual employing the circulator.

(3) The secretary of state shall develop circulator training programs for paid and volunteer circulators. Such programs shall be conducted in the broadest, most cost-effective manner available to the secretary of state, including but not limited to training sessions for persons associated with the proponents or a petition entity, as defined in section 1-40-135 (1), and by electronic and remote access. The proponents of an initiative petition or the representatives of a petition entity shall inform paid and volunteer circulators of the availability of these training programs as one manner of complying with the requirement set forth in the circulator’s affidavit that a circulator read and understand the laws pertaining to petition circulation.

(4) It shall be unlawful for any person to pay a circulator more than twenty percent of his or her compensation for circulating petitions on a per signature or petition section basis.

 

 

Source: L. 93: Entire article amended with relocations, p. 684, § 1, effective May 4.L. 2007: Entire section amended, p. 1982, § 35, effective August 3.L. 2009: (3) and (4) added, (HB 09-1326), ch. 258, p. 1174, § 10, effective July 1.

 

Editor’s note: (1) Subsection (1) is similar to former § 1-40-106 (3) as it existed prior to 1993, and the former § 1-40-112 was relocated to § 1-40-122 (1).

(2) In Independence Institute v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013), the United States District Court for the District of Colorado found subsection (4) of this section unconstitutional under the First Amendment of the United States Constitution and permanently enjoined the Colorado Secretary of State from enforcing subsection (4) and any ancillary provision that enforces subsection (4), namely, sections 1-40-135 and 1-40-121, to the extent those sections apply to the restrictions on per-signature compensation.
 
ANNOTATION

Law reviews. For article, “Colorado’s Citizen Initiative Again Scrutinized by the U.S. Supreme Court”, see 28 Colo. Law. 71 (June 1999). For comment, “Buckley v. American Constitutional Law Foundation, Inc.: The Struggle to Establish a Consistent Standard of Review in Ballot Access Cases Continues”, see 77 Den. U. L. Rev. 197 (1999).

Annotator’s note. Since § 1-40-112 is similar to § 1-40-106 as it existed prior to the 1993 amendment of title 1, article 40, which resulted in the relocation of provisions, see the annotations under former § 1-40-106 in the 1980 replacement volume.

Identification badge requirement violates the first and fourteenth amendments to the United States constitution. The requirement substantially affects the number of potential petition circulators which translates into a corresponding decrease in the amount of protected political speech. The state’s articulated interests, an interest in honesty in public discussion of governmental issues and in demonstrating grassroots support for an initiative, are not compelling and the restriction has not been narrowly drawn to further those interests. Am. Constitutional Law Found., Inc. v. Meyer, 870 F. Supp. 995 (D. Colo. 1994), aff’d on other grounds, 120 F.3d 1092 (10th Cir. 1997), aff’d on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Badge requirement discourages participation in the petition circulation process by forcing name identification without sufficient cause. Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Because the requirement in subsection (1) that circulators be registered voters is not narrowly tailored to a compelling state interest, it unconstitutionally impinges on free expression. Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff’d, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

The age requirement is a neutral restriction that imposes only a temporary disability-it does not establish an absolute prohibition but merely postpones the opportunity to circulate petitions. Exacting scrutiny is not required. Because maturity is reasonably related to Colorado’s interest in preserving the integrity of ballot issue elections, the first amendment challenge fails. Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff’d on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Subsection (2) is not narrowly tailored to serve the state’s interest. Conditioning circulation upon wearing an identification badge is a broad intrusion, discouraging truthful, accurate speech by those unwilling to wear a badge, and applying regardless of the character or strength of an individual’s interest in anonymity. Additionally, the badges are but one part of the state’s comprehensive scheme to combat circulation fraud. Article 40 of title 1 provides other tools that are much more narrowly tailored to serve the state’s interest. Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff’d on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

The limitation in subsection (4) on per-signature compensation for petition circulators violates the first amendment of the United States constitution. Subsection (4) will deter most itinerant professionals from working in the state; eliminate low-volume professional circulators; and significantly increase the costs of a signature-gathering campaign. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

The cost increase associated with subsection (4) is likely to lower the chances of underfunded proponents succeeding in the initiative and referendum process. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

The effect of subsection (4) will be the exclusion from the initiative process of those who, through experience and self-selection, are the most efficient and effective circulators. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

To the extent subsection (4) prevents proponents from using individuals who would most effectively convey their message to the public, the statute places a substantial burden on the proponents’ first amendment rights, even if the statute only restricts proponents from using some, but not all, circulators. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

Given the availability of other effective and less burdensome statutory tools to safeguard the state’s interest in reducing fraud and the number of invalid petition signatures, subsection (4) poses an undue restriction on first amendment rights. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

The secretary of state is permanently enjoined from enforcing subsection (4) and any ancillary statute that enforces subsection (4), namely, § § 1-40-135 and 1-40-121 to the extent that those sections apply to the restriction on per-signature compensation found in subsection (4). Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

All circulators of initiative petitions must be registered electors, as required in both section 1 of article V of the state constitution and this section. Although the secretary of state was at one time enjoined by federal action from enforcing this requirement, after the injunction was lifted, she properly disallowed petitions circulated by nonregistered voters. McClellan v. Meyer, 900 P.2d 24 (Colo. 1995).

Training requirement is not a severe burden on first amendment rights. In instituting the training program, this state has a significant interest in ensuring that petition entities are knowledgeable about state law in order to inform paid or unpaid circulators about the state’s statutory requirements. Independence Inst. v. Gessler, 869 F. Supp. 2d 1289 (D. Colo. 2012).
Annotation: April 22, 2016 3:26 pm

The district court in Independence Institute v. Gessler, 936 F.Supp. 2d 1256 (D. Colo. 2013) extended a ruling by the Tenth Circuit Court of Appeals that it is unconstitutional to require that initiative-petition circulators be residents of the state—as Colorado did under section 1-40-112(1), C.R.S. In Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008), the court found that the ban on out-of-state circulators was not narrowly tailored to serve the interest of protecting the integrity of the process because there was insufficient evidence to conclude that out-of-state circulators as a class engaged in more fraudulent activity than resident circulators.

Annotation: 3:20 pm

This provision was found unconstitutional in Independence Institute v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013). The court concluded that while the state has a compelling interest in ensuring the reliability and honesty of the petition process, there was no evidence that this prohibition furthered that interest.

Definition [Circulated]

Presented to an elector for the collection of a signature and other information required by this article. C.R.S. § 1-12-100.5.

Definition [Circulator]

A person who presents to other persons for possible signature a petition for recall as described in this article. C.R.S. § 1-12-100.5.

Definition [United States]

Used in the territorial sense, means the several states, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.

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.

Regulations & Guidance