if [a] designated election official receives a provisional ballot from a voter who registered to vote but had an incomplete or deficient voter registration application, and did not supply the required information at the time of registration, at any time prior to voting, or on the provisional ballot envelope, the provisional ballot shall not be counted. If the voter does supply the required information prior to or at the time of voting, then the provisional ballot may be counted.
Although in theory these rules provide failsafes for electors who submit "incomplete" applications, we are concerned that these backup mechanisms will not work for a substantial portion of affected voters. First, we are concerned that not everyone whose application is marked "incomplete" will be notified or given enough time to cure any defects before voting. This problem is compounded by the fact that in an effort to get through last-minute applications as quickly as possible, some election officials are postponing processing "incomplete" applications by moving them to the bottom of their piles.
Second, Rule 26.5.2 does not expressly require election officials to count the provisional ballots cast by affected voters who supply the missing checkmark, but rather says that such ballots "may" be counted.
Third, we are concerned that county officials who do not add the names of affected voters into the statewide voter registration database (SCORE) will not be able to count the provisional ballots even if voters correct the missing checkmark at the polls. Under your rules, counties are not required to enter into the database the names of voters who did not include the checkmark on their applications, and we understand that some counties are in fact not entering these voters into the database. In those counties, it will be impossible to count provisional ballots cast by affected voters because there will be no way to readily identify them as qualified electors. Indeed, your rules actually prohibit election officials from reviewing the records necessary to determine that those voters have registered, and thereby preclude the counting of their provisional ballots. Specifically, Rule 26.4.4 limits the sources county officials may review in counting provisional ballots to (a) felony conviction records; (b) the statewide voter registration database, and (c) the DMV Motor Voter database. Under this rule, election officials cannot corroborate a voter's registration by, for example, looking at their original "incomplete" application. Therefore, if the affected voters are not entered into the voter registration database, their provisional ballots will not be counted.11 In short, treating these applications as "incomplete" in the first instance creates the specter of thousands of provisional ballots that will never be counted.
In order to prevent widespread disenfranchisement of eligible voters, the following courses of action are necessary:
- Reverse your policy of treating these applications as "incomplete" and immediately register all voters whose applications were so designated. At the very least, all voters whose applications were marked "incomplete" must be added to the statewide voter registration database and be allowed to cast regular ballots if they provide the missing checkmark or other information at the polls.
- Modify the registration form and training packet to be clearer and bring them into compliance with federal law.
Further, we ask you to take the following additional courses of action:
- Honor your current plan to send a letter to every voter whose application has been marked "incomplete." In this notice, voters should be informed how to best make sure their ballot will be counted. This will require multiple mailings since forms are continually being processed.
- Direct all county registrars to process "incomplete" applications with haste. It is our understanding that in an effort to get through last-minute applications as quickly as possible, some election officials are postponing processing these applications by moving them to the bottom of the pile. This delay may prevent voters from curing problems with their allegedly "incomplete" applications.
- Direct all county officials to allow voters to cure any problem with their identifying numbers by calling the registrar's office and providing supplemental information over the telephone. Requiring voters to come down to the office in person simply to check a box is unnecessarily burdensome.
- For early voting, which begins on October 20, instruct election officials to explain to voters whose registration is "incomplete" that if they are able to provide the necessary information on the spot, they can either contemporaneously cast a provisional ballot or return to the polls on Election Day and cast a regular ballot.
The right to vote is vital to our democracy and one of the most fundamental rights citizens enjoy. We respectfully request your immediate response to our inquiry. We would very much like to work with you in ensuring that all Colorado voters are able to participate in the upcoming election and have their ballots counted and will do everything in our power to achieve that goal. Please call us at (212) 998-6730 if you have any questions or if we can provide further assistance.
Wendy Weiser and Jennifer Rosenberg, Brennan Center for Justice at NYU School of Law
Cathryn Hazouri and Mark Silverstein, ACLU of Colorado
Magda Herrera, Advancement Project
Jenny Flanagan, Colorado Common Cause
Sarah Brannon and Karen Neuman, Fair Elections Legal Network
Jonah Goldman, Lawyers' Committee for Civil Rights Under Law
Steven Ury, Service Employees International Union
Nina Perales, Mexican American Legal Defense and Education Fund
Cc: Governor Bill Ritter
Deputy Secretary of State Bill Hobbs
Director of Elections Wayne Munster
Attorney General John Suthers
All County Clerks