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

1-40-135. Petition entities – requirements – definition

Statute

(1) As used in this section, “petition entity” means any person or issue committee that provides compensation to a circulator to circulate a ballot petition.

(2) (a) It is unlawful for any petition entity to provide compensation to a circulator to circulate a petition without first obtaining a license therefor from the secretary of state. The secretary of state may deny a license if he or she finds that the petition entity or any of its principals have been found, in a judicial or administrative proceeding, to have violated the petition laws of Colorado or any other state and such violation involves authorizing or knowingly permitting any of the acts set forth in paragraph (c) of this subsection (2), excluding subparagraph (V) of said paragraph (c). The secretary of state shall deny a license:

(I) Unless the petition entity agrees that it shall not pay a circulator more than twenty percent of his or her compensation on a per signature or per petition basis; or

(II) If no current representative of the petition entity has completed the training related to potential fraudulent activities in petition circulation, as established by the secretary of state, pursuant to section 1-40-112 (3).

(b) The secretary of state may at any time request the petition entity to provide documentation that demonstrates compliance with section 1-40-112 (4).

(c) The secretary of state shall revoke the petition entity license if, at any time after receiving a license, a petition entity is determined to no longer be in compliance with the requirements set forth in paragraph (a) of this subsection (2) or if the petition entity authorized or knowingly permitted:

(I) Forgery of a registered elector’s signature;

(II) Circulation of a petition section, in whole or part, by anyone other than the circulator who signs the affidavit attached to the petition section;

(III) Use of a false circulator name or address in the affidavit;

(IV) Payment of money or other things of value to any person for the purpose of inducing the person to sign or withdraw his or her name from the petition;

(V) Payment to a circulator of more than twenty percent of his or her compensation on a per signature or per petition section basis; or

(VI) A notary public’s notarization of a petition section outside of the presence of the circulator or without the production of the required identification for notarization of a petition section.

(3) (a) Any procedures by which alleged violations involving petition entities are heard and adjudicated shall be governed by the “State Administrative Procedure Act”, article 4 of title 24, C.R.S. If a complaint is filed with the secretary of state pursuant to section 1-40-132 (1) alleging that a petition entity was not licensed when it compensated any circulator, the secretary may use information that the entity is required to produce pursuant to section 1-40-121 and any other information to which the secretary may reasonably gain access, including documentation produced pursuant to paragraph (b) of subsection (2) of this section, at a hearing. After a hearing is held, if a violation is determined to have occurred, such petition entity shall be fined by the secretary in an amount not to exceed one hundred dollars per circulator for each day that the named individual or individuals circulated petition sections on behalf of the unlicensed petition entity. If the secretary finds that a petition entity violated a provision of paragraph (c) of subsection (2) of this section, the secretary shall revoke the entity’s license for not less than ninety days or more than one hundred eighty days. Upon finding any subsequent violation of a provision of paragraph (c) of subsection (2) of this section, the secretary shall revoke the petition entity’s license for not less than one hundred eighty days or more than one year. The secretary shall consider all circumstances surrounding the violations in fixing the length of the revocations.

(b) A petition entity whose license has been revoked may apply for reinstatement to be effective upon expiration of the term of revocation.

(c) In determining whether to reinstate a license, the secretary may consider:

(I) The entity’s ownership by, employment of, or contract with any person who served as a director, officer, owner, or principal of a petition entity whose license was revoked, the role of such individual in the facts underlying the prior license revocation, and the role of such individual in a petition entity’s post-revocation activities; and

(II) Any other facts the entity chooses to present to the secretary, including but not limited to remedial steps, if any, that have been implemented to avoid future acts that would violate this article.

(4) The secretary of state shall issue a decision on any application for a new or reinstated license within ten business days after a petition entity files an application, which application shall be on a form prescribed by the secretary. No license shall be issued without payment of a nonrefundable license fee to the secretary of state, which license fee shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., to cover the cost of administering this section.

(5) (a) A licensed petition entity shall register with the secretary of state by providing to the secretary of state:

(I) The ballot title of any proposed measure for which a petition will be circulated by circulators coordinated or paid by the petition entity;

(II) The current name, address, telephone number, and electronic mail address of the petition entity; and

(III) The name and signature of the designated agent of the petition entity for the proposed measure.

(b) A petition entity shall notify the secretary of state within twenty days of any change in the information submitted pursuant to paragraph (a) of this subsection (5).

 

 

Source: L. 2009: Entire section added, (HB 09-1326), ch. 258, p. 1179, § 18, effective May 15.L. 2011: (3)(a) amended, (HB 11-1072), ch. 255, p. 1106, § 7, effective August 10.

 

Cross references: For the legislative declaration in the 2011 act amending subsection (3)(a), see section 1 of chapter 255, Session Laws of Colorado 2011.
 
ANNOTATION

Licensing requirement in subsection (2)(a) and (2)(c) does not give the secretary of state unbridled discretion, the statute is content neutral, and the statute places limits on the time within which the secretary must act, therefore, the licensing requirement is not an unconstitutional prior restraint on first amendment rights. The state has an interest in the regulation of the initiative process to ensure it is fair and honest. Independence Inst. v. Gessler, 869 F. Supp. 2d 1289 (D. Colo. 2012).

Subsection (3)(a) regarding petition violation procedures does not violate the first amendment. 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 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, this section and § 1-40-121 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).
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 [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 [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 [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

Out-of-State Cases

Federal Cases

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.

Regulations & Guidance