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Colorado > Colorado Electoral Code > Initiative And Referendum

1-40-121. Designated representatives – expenditures related to petition circulation – report – penalty – definitions

Statute

(1) As used in this section, unless the context otherwise requires:

(a) “Expenditure” shall have the same meaning as set forth in section 2 (8) of article XXVIII of the state constitution and includes a payment to a circulator.

(b) “False address” means the street address, post office box, city, state, or any other designation of place used in a circulator’s affidavit that does not represent the circulator’s correct address of permanent domicile at the time he or she circulated petitions. “False address” does not include an address that merely omits the designation of “street”, “avenue”, “boulevard”, or any comparable term.

(c) “Report” means the report required to be filed pursuant to subsection (2) of this section.

(2) No later than ten days after the date that the petition is filed with the secretary of state, the designated representatives of the proponents must submit to the secretary of state a report that:

(a) States the dates of circulation by all circulators who were paid to circulate a section of the petition, the total hours for which each circulator was paid to circulate a section of the petition, the gross amount of wages paid for such hours, and any addresses used by circulators on their affidavits that the designated representatives or their agents have determined, prior to petition filing, to be false addresses;

(b) Includes any other expenditures made by any person or issue committee related to the circulation of petitions for signatures. Such information shall include the name of the person or issue committee and the amount of the expenditure.

(3) (a) Within ten days after the date the report is filed, a registered elector may file a complaint alleging a violation of the requirements for the report set forth in subsection (2) of this section. The designated representatives of the proponents may cure the alleged violation by filing a report or an addendum to the original report within ten days after the date the complaint is filed. If the violation is not cured, an administrative law judge shall conduct a hearing on the complaint within fourteen days after the date of the additional filing or the deadline for the additional filing, whichever is sooner.

(b) (I) After a hearing is held, if the administrative law judge determines that the designated representatives of the proponents intentionally violated the reporting requirements of this section, the designated representatives shall be subject to a penalty that is equal to three times the amount of any expenditures that were omitted from or erroneously included in the report.

(II) If the administrative law judge determines that the designated representatives intentionally misstated a material fact in the report or omitted a material fact from the report, or if the designated representatives never filed a report, the registered elector who instituted the proceedings may commence a civil action to recover reasonable attorney fees and costs from the designated representatives of the proponents.

(c) Except as otherwise provided in this section, any procedures related to a complaint shall be governed by the “State Administrative Procedure Act”, article 4 of title 24, C.R.S.

 

 

Source: L. 93: Entire article amended with relocations, p. 690, § 1, effective May 4.L. 95: (1) and IP(2) amended, p. 436, § 15, effective May 8.L. 98: (1) amended, p. 815, § 2, effective August 5.L. 2007: Entire section amended, p. 1983, § 36, effective August 3.L. 2009: (1) amended, (HB 09-1326), ch. 258, p. 1178, § 15, effective May 15.L. 2011: Entire section R&RE, (HB 11-1072), ch. 255, p. 1105, § 6, effective August 10.

 

Cross references: For the legislative declaration in the 2011 act amending this section, see section 1 of chapter 255, Session Laws of Colorado 2011.
 
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. The following annotations include cases decided under former provisions similar to this section.

Ban of “inducement” overly broad. The language of this section is too broad to survive strict scrutiny. The ban of any “inducement” to petition circulation sweeps far too broadly. Urevich v. Woodward, 667 P.2d 760 (Colo. 1983).

Section construed to delete “inducement”. This section must be narrowed to delete the word “inducement”. Urevich v. Woodward, 667 P.2d 760 (Colo. 1983).

Section unconstitutional. This section violates the first and fourteenth amendments to the U.S. constitution by imposing a direct and substantial restriction on the right to political speech, employing unnecessarily broad prohibitions. Grant v. Meyer, 828 F.2d 1446 (10th Cir. 1987), aff’d, 486 U.S. 414, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988).

Given the business of circulation for hire, there is an interest in compelling disclosure by the proponents of the persons or entities being hired, not only to prevent fraud but to give the public information concerning who the principal proponents are and what kind of financial resources may be available to them. That legitimate interest, however, is not significantly advanced by disclosure of the names and addresses of each person paid to circulate any section of the petition. What is of interest is the payor, not the payees. Upon elimination of the provision requiring identification of the circulators, the burden on proponents is slight. This requirement as modified is valid. Am. Constitutional Law Found., Inc. v. Meyer, 870 F. Supp. 995 (D. Colo. 1994), aff’d, 120 F.3d 1092 (10th Cir. 1997), aff’d, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

To the extent the monthly report requirement includes the name and residential and business addresses of each of the paid circulators, it is unconstitutional. Am. Constitutional Law Found., Inc. v. Meyer, 870 F. Supp. 995 (D. Colo. 1994), aff’d, 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).

Requiring proponents to provide a detailed roster of all who were paid to circulate compromises the expressive rights of paid circulators, but sheds little light on the relative merit of the ballot issue. 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).

Compelling detailed monthly disclosures while the petition is being circulated chills speech by forcing paid circulators to surrender the anonymity enjoyed by their volunteer counterparts. 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).

Since the state has failed to demonstrate how monthly reports meet the stated objectives of preventing fraud as compared with the final report to be filed when the petitions are submitted to the designated election official, the monthly reports are restrictions on core political speech and are invalid. Preparation of the monthly reports is burdensome and involves an additional expense to those supporting an initiative or referendum petition. Testimony was presented showing that the monthly reports affect the circulation process and therefore the amount of core political speech. Am. Constitutional Law Found., Inc. v. Meyer, 870 F. Supp. 995 (D. Colo. 1994), aff’d, 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).

Compelling the disclosure of the identities of every paid circulator chills paid circulation, a constitutionally protected exercise. Although the fact that disclosure is made at the time the proponents file the petition lessens the burden of the disclosure, the law fails exacting scrutiny because the interests asserted by the state either already are or can be protected by less intrusive measures. 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).

Disclosure requirement does not violate the first amendment. The state’s interest in informing the public about the sources of funding for ballot measures outweighs the slight burden imposed by the reporting requirement. Independence Inst. v. Gessler, 869 F. Supp. 2d 1289 (D. Colo. 2012).

The limitation in § 1-40-112 (4) on per-signature compensation for petition circulators violates the first amendment of the United States constitution. Section 1-40-112 (4) will deter most itinerant professionals from working in the state; eliminate low-volume professional circulators; and will 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 § 1-40-112 (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 § 1-40-112 (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 § 1-40-112 (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, § 1-40-112 (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 § 1-40-112 (4) and any ancillary statute that enforces § 1-40-112 (4), namely, § 1-40-135 and this section to the extent that those sections apply to the restriction on per-signature compensation found in § 1-40-112 (4). Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

Annotation: June 10, 2016 5:16 pm

The rules define “ballot measure” as a ballot issue or ballot question as defined in sections 1-1-104(2.3) and (2.7), C.R.S.

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 [Expenditure]

Any purchase, payment, distribution, loan, advance, deposit, or gift of money by any person for the purpose of expressly advocating the election or defeat of a candidate or supporting or opposing a ballot issue or ballot question. An expenditure is made when the actual spending occurs or when there is a contractual agreement requiring such spending and the amount is determined.

(b) “Expenditure” 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) Spending by persons, other than political parties, political committees and small donor committees, in the regular course and scope of their business or payments by a membership organization for any communication solely to members and their families;

(IV) Any transfer by a membership organization of a portion of a member’s dues to a small donor committee or political committee sponsored by such membership organization; or payments made by a corporation or labor organization for the costs of establishing, administering, or soliciting funds from its own employees or members for a political committee or small donor committee.

Section 2(8) of article XXVIII of the state constitution.

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 [Issue committee]

Any person, other than a natural person, or any group of two or more persons, including natural persons:

(I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or

(II) That has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.

(b) “Issue committee” does not include political parties, political committees, small donor committees, or candidate committees as otherwise defined in this section.

(c) An issue committee shall be considered open and active until affirmatively closed by such committee or by action of the appropriate authority.

Section 2(10) of article XXVIII of the state constitution.

 

(b) For purposes of section 2 (10) (a) (I) of article XXVIII of the state constitution, “major purpose” means support of or opposition to a ballot issue or ballot question that is reflected by:

(I) An organization’s specifically identified objectives in its organizational documents at the time it is established or as such documents are later amended; or

(II) An organization’s demonstrated pattern of conduct based upon its:

(A) Annual expenditures in support of or opposition to a ballot issue or ballot question; or

(B) Production or funding, or both, of written or broadcast communications, or both, in support of or opposition to a ballot issue or ballot question.

(c) The provisions of paragraph (b) of this subsection (12) are intended to clarify, based on the decision of the Colorado court of appeals in Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2008), cert. denied, — U.S. —, 130 S. Ct. 165, 175 L. Ed. 479 (2009), section 2 (10) (a) (I) of article XXVIII of the state constitution and not to make a substantive change to said section 2 (10) (a) (I).

C.R.S. § 1-45-103.

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 [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 [Committee]

The committee of signers described in section 1-12-108(2). C.R.S. § 1-12-100.5.

Cases

colorado Cases

Case Name: Urevich v. Woodward

Citation: 667 P.2d 760 (Colo. 1983)

Year: 1983

Case URL: https://www.ravellaw.com/opinions/de7de4d0e6172123bd773e74f4a1fab3

Case Summary: Holding that C.R.S. § 1-40-110, if interpreted broadly, unconstitutionally prohibited certain payment methods for individuals who collect petition signatures. The plaintiff, a non-profit organization, sought a declaratory judgment to decide the legality of compensation based on the percentage of donations that petition circulators collect. If interpreted broadly, to prohibit this payment method, C.R.S. § 1-40-110 violated Colo. Const. art. V, § 1.

Out-of-State Cases

Federal Cases

Case Name: Am. Constitutional Law Found., Inc. v. Meyer

Citation: 120 F.3d 1092 (10th Cir. 1997)

Federal Circuit Court: 10th Circuit Court

Year: 1997

Case URL: https://www.ravellaw.com/opinions/3d3d9c8280768fc2c2d6774c4dc5632d

Case Summary: Holding that state statute requiring petition circulators to be registered electors unconstitutionally impinged on free expression; statute's requirement that circulators wear personal identification badges unconstitutionally infringed their First Amendment rights; and provisions of statute requiring disclosure of information regarding paid circulators violated First Amendment.

Case Name: Am. Constitutional Law Found., Inc. v. Meyer

Citation: 870 F. Supp. 995 (D. Colo. 1994)

Federal District Court: District of Colorado

Year: 1994

Case URL: https://www.ravellaw.com/opinions/dc23c68714a93aa29fe2d6a464b267bb

Case Summary: Holding that requirement that petitions be circulated within a six-month period was not an undue restriction and was therefore legitimate.

Case Name: Independence Inst. v. Gessler

Citation: 936 F. Supp. 2d 1256 (D. Colo. 2013)

Federal District Court: District of Colorado

Year: 2013

Case URL: https://www.ravellaw.com/opinions/cf5866f65ed81a5a06832ea7a9926661

Case Summary: Holding that Colorado statute limiting the per signature compensation for circulators of ballot initiative petitions was subject to strict scrutiny and violated the First Amendment.

Case Name: Independence Inst. v. Gessler

Citation: 869 F. Supp. 2d 1289 (D. Colo. 2012)

Federal District Court: District of Colorado

Year: 2012

Case URL: https://perma.cc/TP4X-TFNQ

Case Summary: Holding that Colorado statute stating that “[n]o person shall circulate” petitions within state “unless the person is a resident of the state” barred non-residents from circulating petitions; state election rule allowing temporary non-residents to circulate petitions was not entitled to deference; statute's call-back provisions for petition circulators did not violate First Amendment; and state's significant interest in ensuring that petition entities were knowledgeable about Colorado law justified statute requiring petition entity training.

Case Name: Grant v. Meyer

Citation: 828 F.2d 1446 (10th Cir. 1987)

Federal Circuit Court: 10th Circuit Court

Year: 1987

Case URL: https://www.ravellaw.com/opinions/cc9b3082505ffe71185ac2255e28a741

Case Summary: Holding that a ban on solicitors' compensation violated the First Amendment due to its attendant restrictions on political speech. The court applied strict scrutiny, and held that the government interest is better served with others measures.

Regulations & Guidance