Certifying An Election
Written in 2016 by Boulder County Republican Election Integrity Team member.

The Certification of ... Election offered to members of Canvass Boards for their signatures states that they completed their duties as required by 8 CCR 1505-1 Rule 10.2.2 and Rule 10.6. The first rule describes who should be on the Board. The second rule specifies the numbers of electors, ballots, and votes that must be reported. Those rules are available at
https://www.sos.state.co.us/pubs/rule_making/CurrentRules/8CCR1505-1/Rule10.pdf and
https://www.sos.state.co.us/pubs/rule_making/CurrentRules/8CCR1505-1/Rule11.pdf

A claim asserted in the Certification that the Canvass Board must sign and approve is that, in accord with CRS 1-10-101.5(c), the number of ballots counted does not exceed the number of ballots cast. That statute is available at https://www.sos.state.co.us/pubs/info_center/laws/Title1/Title1Article10.html .

The Certification further asserts that, by signing, the Canvass Board approves that the Statement of Vote submitted to the state, is a true and accurate listing of the results of the election. No associated rule or statute is mentioned.

Issue - Ballots Cast

“The number of ballots cast” is now defined by 8 CCR 1505-1 Rule 1.1.9 as the number of ballots received by the County Clerk, excluding mail ballots returned by the post office as undeliverable. That rule appears at https://www.sos.state.co.us/pubs/rule_making/CurrentRules/8CCR1505-1/Rule1.pdf . Rule 1 does not specify when a ballot is deemed to be received. This definition transfers the act of casting a ballot from something the voter did to something the clerk does.

The BCR Election Integrity Team unanimously agreed that this definition defies Colorado Revised Statute 2-4-101, Common and technical usage, which reads: Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly. (Search 2-4-101 at https://leg.colorado.gov/colorado-revised-statutes.)

Issue – Signature Verification

Election Rule 7.8.3 says, “An election judge conducting signature verification must compare the signature on the self-affirmation on each ballot return envelope with the elector’s signature in SCORE in accordance with the Secretary of State’s Signature Verification guide.” That twenty-page guide is available at https://www.sos.state.co.us/pubs/elections/docs/SignatureVerificationGuide.pdf. The rule appears at https://www.sos.state.co.us/pubs/rule_making/CurrentRules/8CCR1505-1/Rule7.pdf .

BCR searched that document and found no mention of the speed with which signatures should be verified. That raises significant issues for examiners who are told to evaluate signatures at the rate of two seconds each. Also, the signatures may match, but they do not verify that the person signing is eligible to cast a ballot in that election.

Issue - Results of the Election

“Results of an election” are described at CRS 1-10-105. Part (1) says “After receiving the final abstracts of votes cast for all elections from the counties, including any recounts, the secretary of state shall prepare and certify the official statewide election results for all candidates, ballot issues, and ballot questions that the secretary of state certified for the ballot. For each contest, the certified election results must show the total number of votes received, with subtotals for each county in which the candidate was on the ballot, and the ballot wording for each ballot issue and ballot question.” The complete text of the statute is at https://leg.colorado.gov/sites/default/files/images/olls/crs2016-title-01.pdf. BCR reminder: The SOS is required to certify the elections based on the certifications sent from the Counties. Canvass Boards are not required to certify if not satisfied that the voter’s will has been determined by the election.

The Boulder County Clerk asserts that “received” means going through a specified processing step inside the clerk’s office. Therefore, the Clerk claims to have a precise count of “ballots received”, which can be compared to other numbers as required for certifying the election.

In contrast, BCR believes in the traditional definition that a ballot is “received” when it is delivered to any facility or agent of the County Clerk. This definition conforms to Colorado’s plain language law (CRS 2-4-101) and most electors’ understanding of when they have cast their ballots. This definition makes it impossible to count “ballots received” because there are no counters on drop boxes or post offices. Therefore, nobody can compare ballots cast to ballots counted, thus making it impossible to certify an election.

Ballot drop boxes and the post office have neither counters nor chain-of-custody documents nor adequate security measures. So ballots which electors believe have been cast might be lost accidentally or intentionally before going through the specified processing step inside the clerk’s office. Since the number of such ballots is unknown, it could conceivably be large enough to reverse the results of any contest. Therefore “the results” of the election are unknown and the election cannot be certified.