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

Overview of 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.
 
ANNOTATIONS

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).

George L. Blum, Annotation, Constitutionality, Construction, and Application of Statute or Regulatory Action Respecting Political Advertising–Print Media Cases, 51 A.L.R.6th 359 (2010).

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Holding that the ban of “inducement” was 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).

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

Holding that this 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).

Holding that 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).

Holding that 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).

Holding that 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).

Holding that a 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).

Holding that 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).

Holding that 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).

Holding that the 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).

Holding that 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).

Holding that 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).

Holding that 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).

Holding that 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).

Holding that 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).

Holding that 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).

Free speech, initiative and referendum, petition circulators, identification badges, registered voter requirement, see Buckley v. American Constitutional Law Foundation, Inc., 119 S.Ct. 636, 525 (1999).