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Change the Game

Change the Game

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Change the Game: Depoliticizing Colorado's Election and Campaign Finance Administration, 2012 policy report from Colorado Ethics Watch.
Change the Game: Depoliticizing Colorado's Election and Campaign Finance Administration, 2012 policy report from Colorado Ethics Watch.

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Depoliticizing Colorado’s Election and Campaign Finance Administration

September 12, 2012 Dear Friends, Six years ago, Colorado Ethics Watch opened its doors as the first state-level project of Citizens for Responsibility and Ethics in Washington (CREW), dedicated to fighting for a cleaner Colorado government through hard-hitting legal actions and educational outreach to the public. We’ve earned a reputation for promoting ethics, transparency and clean elections through our successful legal actions before the Colorado Independent Ethics Commission, in campaign finance lawsuits before the Office of Administrative Courts, in state court regulatory review lawsuits, and in local jurisdictions from Fort Collins to Colorado Springs to Garfield County and beyond. Despite our success in the courtroom, we know that working within existing structures for accountability isn’t always enough. Sometimes the system itself has so much potential for abuse that holding one individual accountable won’t prevent the next from misbehaving as well. The Colorado Secretary of State’s role in campaign finance and election administration is a perfect example. Of course, it is no secret that the current Secretary of State, Scott Gessler, was the lawyer on the opposite side of several of our highest-profile campaign finance cases when he was a private attorney. We weren’t surprised that once in office, Secretary Gessler has continued to fight on behalf of the same interests he represented as a private attorney, only this time with the authority of the State of Colorado and the legal muscle of the Attorney General behind him. But it would be a mistake to believe that the problem is no larger than Scott Gessler himself. He could say, with some justification, that his party affiliation was hardly a secret when he ran for office. And while some Secretaries of State have tried to place themselves above partisanship, there isn’t any formal structure in place to require them to act in a nonpartisan way. Even a less partisan Secretary than Gessler may be tempted to give in to pressure from his or her fellow party members to make decisions calculated to give one side an advantage over the other in an election. The long-term answer isn’t to change the player; it’s to change the game. Partisan politicians who themselves are players in the political arena shouldn’t also serve as the referee. Making control of the election machinery itself a prize to be won by one party or another to gain an advantage in the next election can only increase voter cynicism and alienation from a government that is supposed to work for the people. We hope this report will start a dialogue that leads to fundamental reform in the way elections are managed in Colorado. Yours truly,

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Luis Toro

2 Change the Game

About Colorado Ethics Watch
Founded in 2006, Colorado Ethics Watch is a state-based project of Citizens for Responsibility and Ethics in Washington (CREW), a nonpartisan, nonprofit 501(c)(3) watchdog group that holds public officials and organizations legally accountable for unethical activities that undermine the integrity of government in Colorado. We accomplish our goals using the following tactics:
    

Litigation and ethics complaints Colorado Open Records Act requests (CORAs) Requests for government audits and criminal investigations Research and policy reports Educating the public

In tandem with legal actions, Ethics Watch executes a comprehensive communications strategy to bring attention to the misbehavior of public officials while also educating the public about ethics, transparency and election administration issues, thereby deterring misbehavior and mobilizing support for reform. Ethics Watch also issues extensively researched reports to promote fresh, nonpartisan solutions to recurring challenges in state and local government in Colorado. Based on our experience using existing legal tools to promote clean government, Ethics Watch is uniquely positioned to hold public officials accountable and to encourage reform. Luis Toro, Director Peg Perl, Staff Counsel Doug Staggs, Research Director Allison McGee Johnson, Communications Director Colorado Ethics Watch 1630 Welton Street, Suite 415 Denver, CO 80202 303-626-2100 www.coloradoforethics.org Twitter: @COEthicsWatch Facebook: Colorado Ethics Watch

Depoliticizing Colorado’s Election and Campaign Finance Administration

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Table of Contents
About this Report ............................................................................................ 4 Election & Campaign Finance Administration in Colorado ............................... 5 A Brief History ............................................................................................. 5 The Current System ..................................................................................... 6 Outside Evaluations of Colorado’s System .................................................... 8 Overview of Models Used in Other States ......................................................... 9 Types of Administration ............................................................................... 9 Single Administrator ................................................................................. 9 Boards and Commissions ....................................................................... 11 Case Studies .............................................................................................. 14 Delaware ................................................................................................ 14 Montana ................................................................................................. 17 North Carolina ........................................................................................ 20 Why Depoliticizing the State Administration of Elections & Campaign Finance is the Right Thing to Do ................................................................................ 24 Increased Partisanship of the Secretary of State’s Role ............................... 25 Recommendations of the National Commission on Federal Election Reform 27 International Standards for Election & Campaign Finance Administration .. 28 Recommendations ......................................................................................... 31 Nonpartisan Single Administrator .............................................................. 31 Independent Commission ........................................................................... 33 Conclusion.................................................................................................... 35 Endnotes ...................................................................................................... 36

4 Change the Game

About this Report
November 2012 marks ten years since the passage of Amendment 27, which incorporated modern-day campaign and political finance reform into the Colorado Constitution as Article XXVIII. It is a good time to take a step back and evaluate the system that Colorado uses for election administration and campaign finance enforcement. Do we have a fair and effective administration serving Colorado voters? Does the current system properly balance protecting the right to vote and ensuring voter confidence in our elections processes and outcomes? Are the values of Colorado voters as expressed in Article XXVIII regarding transparency of political spending and nonpartisan enforcement of the campaign and political finance rules best served by our current system? This report evaluates the strengths and weaknesses of the Colorado system and looks at the administration models used across the country to recommend changes to strengthen our structure. In this report, we gathered data and information from institutions specialized in electoral system reform and state government sources. This report does not discuss possible changes to substantive rules of campaign finance and election administration, such as regulation of corporate expenditures or voter identification requirements. Instead, this report focuses on the structure used to implement and enforce those rules and why that structure matters. Voter confidence in the integrity of the campaign finance system and election administration is diminished by the perception that partisan politics is involved in the system. This report discusses why depoliticizing the campaign finance and election administration system in Colorado is important, and suggests concrete reform proposals for future implementation by Colorado voters and the General Assembly.

Depoliticizing Colorado’s Election and Campaign Finance Administration

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Election & Campaign Finance Administration in Colorado
A Brief History
In Colorado, election administration and campaign finance responsibilities have always resided with the elected Secretary of State. The Colorado Constitution established the Secretary of State as one of five elected statewide officers.1 From statehood, the Secretary of State has been entrusted with election administration duties.2 Although the Colorado Election Code has been amended several times, the Secretary of State has maintained the responsibilities of Chief Election Officer working with County Clerks to administer state and federal elections.3 The Secretary of State’s duties expanded to include campaign finance administration with the enactment of the Campaign Reform Act of 1974, Colorado’s first significant campaign finance laws.4 In 1996, this Act was repealed and replaced with the Fair Campaign Practices Act of 1996 (FCPA) by a citizen initiative.5 Although this new regime implemented stricter campaign finance rules and lower contribution limitations, it retained the same range of duties and responsibilities for the Secretary of State.6 After some portions of this law were struck down by the courts and others weakened by the legislature, Colorado voters approved Amendment 27 in 2002, which added campaign finance regulation into the Colorado Constitution as Article XXVIII. Article XXVIII lowered contribution limits, reinstituted the prohibition on corporate and union contributions to candidates, set voluntary spending limits for candidates, and added regulation of independent expenditures and electioneering communications. It also removed from the Secretary of State authority to enforce most campaign finance laws; under Article XXVIII, the Secretary of State issues penalties for late filings, but all other violations are prosecuted (if at all) by private parties in administrative law court.7 Article XXVIII and the amended FCPA govern campaign finance and the Secretary of State’s duties today.8 Previous attempts to move campaign finance and election administration from the Secretary to a bipartisan board have not succeeded. In 1994, a ballot initiative would have created a seven-member Campaign and Political Finance Commission with members appointed by the Governor, General Assembly leaders, and the Chief Justice.9 The initiative also included a package of campaign finance reforms such as contribution limitations and reporting of

6 Change the Game independent expenditures. This measure failed at the polls with 46% voting Yes and 53% voting No.10 Two years later, Amendment 15 (the FCPA) included many of the same substantive campaign finance provisions as the 1994 measure but left the Secretary of State’s role untouched; it passed by a wide margin.11 More recently, in both 2008 and 2009, State Representative Paul Weissmann introduced legislation that would create a commission charged with studying the feasibility of creating a nonpartisan election commission for Colorado which would handle all election and campaign finance duties.12 The measure did not advance out of committee either year.

The Current System
The Colorado Secretary of State is elected to a four-year term and is limited to serving two consecutive terms.13 Candidates run as major party candidates or independents and are subject to campaign finance limitations and reporting obligations.14 If a sitting Secretary of State resigns, the Governor appoints an individual to serve until the next election, subject to State Senate confirmation.15 This has happened surprisingly frequent in recent history – three of the last five Secretaries of State first came to the office as appointments.16 Only one of those three (Donetta Davidson) was subsequently elected to continue in office. In 2005, the General Assembly adopted legislation aimed at decreasing the potential for the Secretary of State to act in a partisan manner, despite status as a state-wide elected official (and sometimes re-election candidate). The Secretary is now prohibited from serving as the actual or honorary “highest ranking official” in any state or federal candidate campaign organization while acting as Secretary.17 As discussed in later sections of this report, this practice is still common with elected Secretaries of State across the country. The Secretary’s limited authority to enforce campaign finance laws may have been intended to reduce the potential for partisan manipulation. Article XXVIII establishes a citizen enforcement scheme for campaign finance violations where any complaint is referred immediately by the Secretary to an administrative law judge.18 The individual or organization filing the complaint is responsible for proving the case at the administrative hearing, which is held under rules nearly identical to those that apply in state or federal district courts. The Secretary of State has no investigatory or other role besides forwarding complaints to the Office of Administrative Courts. The Secretary’s office does have authority to assess automatic fines of $50 per day for late campaign finance reports and retains the authority to

Depoliticizing Colorado’s Election and Campaign Finance Administration waive or reduce such penalties for “good cause.”19 Generally, waiver requests are handled by staff, not the Secretary, to avoid any conflict of interest. However, current Secretary Scott Gessler, a former election lawyer for Republican causes and candidates, has been criticized for helping a county Republican party committee raise money to pay off late fines imposed by his office and then reduced pursuant to a waiver request.20 Although the lack of enforcement authority may reduce the Secretary of State’s ability to make partisan mischief, the Secretary does retain regulatory authority in this area. Therefore, the potential exists for rule changes shifting interpretation of the law when the office changes hands between political parties. All Secretaries since 1963 have been Republican except for Bernie Buescher, a Democrat appointed to the position in 2009 who served until the Republican candidate won election in 2010.21 After that change back to Republican control, the current Secretary of State has undertaken a complete overhaul of the campaign finance regulations22 which some critics have seen as providing an advantage to Republican candidates and groups.23 The majority of those regulatory changes were ruled invalid by a court as exceeding the Secretary’s authority.24 In addition, Colorado Secretaries have at times clashed with elected partisan county clerks over election administration issues. Voter confidence in the impartial administration of elections is harmed especially when the Secretaries appears to be treating county clerks of their own parties differently than those of the other political party. For example, the current Republican Secretary of State, Scott Gessler, filed suit against the Democratic Clerk and Recorder of the City and County of Denver, Debra Johnson, over the ability of county clerks to send ballots to voters on the “inactive, fail to vote” list.25 The dispute started when the Secretary filed for an injunction to block the mailing of ballots in September 2011, and critics charge that the Secretary’s move was intended to reduce voter participation in two heavily Democratic counties, Denver and Pueblo, for the election scheduled for November 2011.26 Similarly, Secretary Gessler responded harshly to alleged mishaps in voter registration and ballot production by a Democratic county clerk in the 2012 primary.27 Meanwhile, a Republican county clerk with more significant errors in ballot production and election administration received sympathetic cooperation and aid from the Secretary.28 Some other examples of complications in Colorado election administration stemming from the partisan elected status of the Secretary include: (1) a defeated Republican candidate seeking the Republican Secretary to conduct a recount instead of the Democratic county clerk;29 (2) the state

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8 Change the Game Democratic party urging voters to use absentee ballots instead of voting machines while accusing the Republican Secretary of not properly vetting the security of the machines;30 and (3) allegations that a Republican Secretary improperly purged voter rolls in the months leading up to the 2008 Presidential election.31

Outside Evaluations of Colorado’s System
In the past ten years, various research organizations and commissioned studies have evaluated the effectiveness of campaign finance and election administration at the state level. Colorado has a mixed record in these reports. The 2009 report released by the American University Center for Democracy and Election Management (CDEM) gave Colorado a score of 2.5 out of 5 points for Election Management.32 The score was downgraded because election administration is conducted by an elected partisan official, but increased because Colorado law does place limits on the Secretary’s political activity.33 The report also commended the Secretary’s practice of providing training to local officials through statewide manuals and guidance to decrease inconsistency across counties.34 With regard to the effectiveness of campaign finance regulation, the 2012 State Integrity Investigation gave Colorado a “C” grade.35 The lowest scores for effectiveness were given because the Secretary does not instigate investigations of alleged campaign finance violations and does not audit reports filed with the Secretary by political entities. Since enforcement is left to complainants to privately pursue, the report found that such violations are difficult to prosecute. When it comes to imposition and collection of fines from late or non-filers by the Secretary, the report stated that “[e]ffectiveness depends heavily on the assertiveness and fairness of the secretary of state, so it easily can vary from term to term.”36

Depoliticizing Colorado’s Election and Campaign Finance Administration

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Overview of Models Used in Other States
Types of Administration
The two main models of campaign finance and election administration used by state governments are single administrator and appointed boards or commissions. While more than half the states (28, including Colorado) combine election administration and campaign finance in one regulating authority, the remaining states split these two areas of responsibility between different state agencies. This section will provide an overview of the types of administration systems used in the 50 states today, and then will discuss more in-depth three states as case studies. Single Administrator The single administrator model is more common in election administration than use of a board or commission. In election administration matters, the state-wide administrator usually oversees the work of local county clerks or administrators handling elections in their area. With regard to campaign finance, this state administrator holds all regulatory authority and most enforcement duties.

10 Change the Game According to the National Association of Secretaries of State (NASS), 33 states have an elected Secretary of State as Chief Election Official (including Colorado).37 Many of those states also place responsibility for campaign finance with the elected Secretary of State.38 Therefore, in the majority of states the individual responsible for administering and enforcing political rules are themselves an elected candidate governed by those rules. These individuals are also representatives of a political party and are more susceptible to partisan interests. As discussed in more detail in later sections, such a system leads to allegations that the Secretary of State is making policy and enforcement judgments in way that benefits Democrats (or Republicans) at the expense of the other party.

Partisan Secretary of State Involvement
50 40 30 20 10 0 Election Admin & Campaign Finance Election Admin Partisan Appointed Partisan Elected

Some states have a Secretary of State with campaign finance or election administration duties that is not elected but can still be considered partisan. In Florida, Pennsylvania and Texas, the Secretary of State is an appointed cabinet official selected by the Governor and confirmed by the State Senate.39 Where an individual is appointed by the Governor and serves at the pleasure of the Governor without any guaranteed term of office it is more reasonable to suspect that individual will favor the Governor’s political party. In three states, the Secretary of State is selected by joint ballot of the state legislature.40 Depending upon the relative partisan composition of the legislature, this individual could be very partisan or a more nonpartisan choice that is acceptable to Democrats and Republicans. Three other states have created independent executive agencies where the administrator is appointed in a way that attempts to avoid partisanship. For example, in Massachusetts the Office of Campaign and Political Finance is an independent state agency

Depoliticizing Colorado’s Election and Campaign Finance Administration headed by a Director that is appointed by a bipartisan board and serves a set six-year term.41 As discussed in more detail below, both Montana and Delaware have independent agency administrators appointed by the Governor, but with more safeguards to prevent partisan appointments. Perhaps as a way to counter-act the risk of partisan enforcement by a Secretary of State, some states have created a system where the Secretary of State works with a bipartisan panel which holds various levels of authority in policy and enforcement matters. For example, Indiana and West Virginia both operate with a Secretary of State as Chief Election Official, but the Department of State also includes the advisory State Election Commission consisting of the Secretary of State and four appointees from the Governor (no more than two from the same party). In Arkansas and Kentucky, the Secretary of State is the designated Chief Election Official but serves as the Chair of the State Board of Election Commissioners, a bipartisan appointed panel which jointly holds most enforcement and regulatory authority. In Rhode Island, the Secretary of State has the designation but the majority of administration and enforcement is the responsibility of the State Board of Elections (bipartisan appointed body). Boards and Commissions The appointed board or commission system is more common in the regulation of campaign finance than traditional election administration. Six states have a long-standing Board of Elections system, where a state-wide board works with local county boards of elections for election administration matters.42 Each of those states added campaign finance regulation and enforcement duties to the Board of Elections when such limitations were enacted. Most states that have a commission regulating campaign finance matters have split up the responsibilities for campaign finance and election administration between two entities.43 The reason for separating these two functions could be based on the fact that extensive campaign finance regulation and disclosure regimes are mostly post-Watergate inventions, while states have been administering elections since joining the union.

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12 Change the Game

Of the 29 states which have bipartisan boards or commissions administering campaign finance, 16 created a new commission in the 1970s to administer and enforce the campaign finance system instead of adding those duties to the pre-existing Secretary of State.44 Another wave of legislation created commissions to regulate government ethics and gifts to elected officials in the early 1990s. The majority of the state commissions which now handle both campaign finance and government ethics regulation were established at that time.45 Surprisingly, although campaign finance regulation at the federal and state level underwent another wave of substantive revisions after the 2000 Presidential Election, it appears that only Wisconsin revised the underlying structure or entity responsible for campaign finance during that time.46 Regardless of when the board or commission was created, or whether it is responsible for both campaign finance and election administration or government ethics, most states have adopted similar bipartisan requirements for appointees. In general, these commissions have three to five members and no more than two or three can be from the same political party. In many states the Governor appoints commissioners based on a nomination list submitted by party leaders. In other states, the appointments are distributed between elected officials. For example, the Kansas Governmental Ethics Commission (responsible for campaign finance and government ethics regulation) has nine

Depoliticizing Colorado’s Election and Campaign Finance Administration members. Two are appointed by the Governor, the other seven are appointed by the Senate President, the Speaker of the House, the House and Senate Minority Leaders, Chief Justice of the State Supreme Court, Attorney General and Secretary of State. Usually, commissioners serve for a set term of years and many are subject to term limits.

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1974-1976 Post-Watergate laws create bipartisan CF boards

Early 1990s Stricter ethics laws create state ethics & CF boards

2000 - 2012 Minimal changes to EA or CF administration

Wisconsin has created a unique system both because a single board is responsible for all election administration, campaign finance and government ethics, and because of the way board members are appointed. Legislation in 2007 merged the former State Elections Board and State Ethics Board to create the new Government Accountability Board (GAB).47 As opposed to the bipartisan commissions created in other states, the GAB is actually a nonpartisan board made up of six former state judges. Board members are nominated by a panel of Appeals Court judges, appointed by the Governor, and confirmed by the State Senate. While Wisconsin is the only state that has one board responsible for all three areas of election administration, campaign finance and government ethics, 14 other states have established one commission that regulates both campaign finance and government ethics.48 Some responsibility is divided in three of these states where the Secretary of State serves as the filing depository for campaign finance reports (most Secretaries of State handle all state business filings), while a commission retains all regulatory and enforcement authority under campaign finance law.49 Other states have developed multiple commissions that are each separately responsible for campaign finance, government ethics and election administration.50 In Colorado, the 2006 passage of Amendment 41 created the Colorado Independent Ethics Commission, which has authority over government ethics but not campaign finance or election administration.51 Both the single administrator and commission administration models have benefits and drawbacks. A single administrator has the ability to act decisively without requiring consensus from other commissioners; however, the majority of single administrators are elected and susceptible to partisan

14 Change the Game influence when making policy decisions or enforcing campaign finance and election law. A bipartisan commission provides the safeguards of multiple interests represented before a policy or enforcement decision can be made; however, commissions may be in danger of falling into inaction by deadlock depending upon how they are constituted.

Case Studies
Throughout the 50 states, the general models described above have been customized to meet each state’s history and politics. This report chose to more closely examine three states with three different systems for administering campaign finance and elections – Delaware, North Carolina and Montana. These case studies provide some of the advantages and drawbacks for each type of administration as implemented in these states. Delaware Since 1953, Delaware has operated with a single administrator model that combines all campaign finance and election administration responsibility within the Office of the State Commissioner of Elections.52 The Commissioner is a nonpartisan official appointed by the Governor and confirmed by the state senate.53 The Commissioner has a four year term, but there do not appear to be any limitations on how many terms a Commissioner may serve, nor on the conditions for removal. The Commissioner appears to serve “at the pleasure of the Governor.”54 During time serving in office, the Commissioner may not:    Hold elective office or be a candidate for any elected office at the federal, state, county or municipal level; Hold or seek an office or position within a political party; or Be appointed to any federal, state, county or municipal position, commission or administrative body.55 a or or at

The state laws also explicitly direct the Commissioner to act in nonpartisan manner: “The State Election Commissioner shall not directly indirectly use or seek to use the State Election Commissioner's authority official influence to control or modify the political action of another person or any time participate in any political activities or campaigns.”56

Depoliticizing Colorado’s Election and Campaign Finance Administration The Commissioner oversees all election administration, working with the County Boards of Election for Delaware’s three counties:

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Source: State of Delaware Commissioner of Elections 57

Like many states, much of the voter registration and Election Day mechanics are handled at the county level. For example, the online voter registration form available on the Commissioner’s website must be printed and mailed to a voter’s local county office to be submitted.58 The Commissioner is also responsible for administering Delaware’s campaign finance laws, including enacting regulations and issuing advisory opinions.59 Campaign finance reports are filed with the Commissioner’s office and are available online. The Commissioner has authority to assess fines for late reports up to $50 per month, but all other campaign finance violations are classified as misdemeanors and prosecuted by the Attorney General.60 Unlike elected Secretaries of State acting as the single administrator for campaign finance and elections in many states, the Delaware Commissioner maintains a very low profile. The office’s website does not even identify the Commissioner’s name, in contrast to other appointed executive officials and cabinet members. The Federal Election Commission’s 2012 Election Directory lists the current Commissioner as Elaine Manlove, appointed in 2007.61 She previously served as Director of the New Castle County Department of Elections.62 Manlove apparently takes her nonpartisanship seriously, stating that she and her employees “can’t do anything political from putting a bumper sticker on our cars to signs in our yards to campaign contributions.”63 Delaware’s system was rated by the 2009 CDEM study on election management at three out of five.64 As an official appointed by the Governor, the Commissioner was rated lower than nonpartisan or bipartisan boards on

16 Change the Game the issue of nonpartisan independence. However, the restrictions on political activities and the uniform standards set at the state level for all counties were rated higher. Delaware was also recently recognized by the Pew Center for the States in its 2012 study of voter registration.65 The State Integrity Investigation gave Delaware an overall “D+” grade for its campaign finance system.66 The lowest scores were based on the Commissioner’s inability to investigate campaign finance violations because they are criminal matters left to the Attorney General.67 In addition, Delaware law does not require audits of filings by the Commissioner’s office. There was also harsh criticism in the report for the Commissioner not using the authority to levy civil fines for late filings: “When a campaign disclosure form is tardy, the guilty party be fined up to $50 per month, but Gibson cannot recall an instance of a fine being levied.”68 Despite these shortcomings, there does not appear to be widespread dissatisfaction with the way the Commissioner’s office is organized and operates from a review of Delaware press accounts and conversations with individuals working in campaign finance and election reform efforts in Delaware. One comment was that there “seems to be a lesser degree of politics or political pressure” on the Commissioner in Delaware than in other states, but that this could be a function of the Republican Party’s perceived position as permanent minority in state politics.69 Another remarked that they do not remember there ever being an issue with an unqualified appointee by the Governor for the Commissioner position.70 One counter-balance to possible political leanings by the Commissioner is that in each of the three county-level boards the Deputy Director must be from a different party than the Commissioner and County Director.71 The Commissioner appears to be fairly amenable to working with groups like Common Cause and the League of Women Voters on issues like voter registration training and improvements to the campaign finance database, but is more reluctant to support changes that would make it easier for voters to obtain and use absentee ballots.72 Like many state government entities, it appears that lack of resources and funding is a main reason behind reluctance to adopt new systems or expand programs.73 Individuals in both organizations remarked that Delaware is a small state, where everyone knows each other, and the political culture is not aggressively partisan. Delaware’s system attempts to ensure the nonpartisanship of the Commissioner through the statutory limitations on political activity. However, the independence of this office is diminished somewhat by the ability of the

Depoliticizing Colorado’s Election and Campaign Finance Administration Governor to remove the Commissioner from office (or conversely continue to reappoint the same Commissioner) without set criteria. In addition, although state senate confirmation is required, it appears that Delaware might not have enough Republican Party representation at the state level to object to a hyperpartisan Democratic appointee. Another weakness is the lack of enforcement power in the Commissioner’s office for campaign finance violations. When an official is appointed, it is up to other officials, the press, and concerned organizations to maintain accountability since citizens cannot vote out the official. Although the Commissioner’s office appears to be doing a lot of good work, the lack of fines assessed for late filings indicates that perhaps Delaware’s model does not keep the office accountable, at least in the area of campaign finance where the county boards of elections do not have a role. Montana Montana also uses a single administrator system, but has divided the responsibilities for election administration and campaign finance regulation between two executive branch officials. The elected Secretary of State is the chief election official,74 but an appointed Commissioner of Political Practices is responsible for campaign finance regulation.75 This approach has the benefits of nonpartisan leadership for campaign finance matters, but still leaves election administration matters vulnerable to partisan influence.

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Election Administration Elected Secretary of State

Campaign Finance Appointed Commissioner

Similar to Colorado, the Secretary of State in Montana was created in the state constitution as an elected executive branch official with a four-year term of office.76 As chief election official, the Secretary sets uniform policy, forms and training for the county election administrators (usually the county clerk and recorder).77 The current Secretary is Linda McCulloch, a Democrat, who was elected in 2008 when she defeated the incumbent Republican Secretary, Brad Johnson.78 McCulloch is up for re-election this year in a rematch after Brad Johnson won the 2012 Republican primary.79 One policy difference between the two candidates is that Johnson stresses the need for more

18 Change the Game protective measures to stop voter fraud before it occurs, such as eliminating election-day voter registration.80 McCulloch focuses more on voter participation and does not appear to oppose the current same-day registration rules.81 The 2009 CDEM study on election management evaluated Montana as a score of two out of five.82 Montana received lower scores because elections are managed by a partisan elected official. Also, in contrast to Colorado, there are no limitations in state law with regard to political activity by a sitting Secretary.83 Since 1992, the Secretary has been limited to seeking two 4-year terms in any 16-year period.84 In response to the Watergate scandal, Montana (like many other states) enacted a comprehensive campaign finance regulation and reporting system building upon some corrupt practices provisions already in existence. An ad hoc committee was created by the Governor in 1975 including representatives from both the Democratic and Republican parties, the Montana League of Women Voters, Common Cause of Montana, various political caucuses, municipal clerks, Montana AFL-CIO, Montana Chamber of Commerce and the Montana County Attorneys Association.85 This committee helped draft the legislation that created the Montana Campaign Practices Act, including the Office of the “Commissioner of Campaign Finances and Practices.”86 The committee also advised the first Commissioner while establishing the office and promulgating the new regulations required for the campaign finance limitations and reporting requirements in the new act. The name of the office was changed to “Commissioner of Political Practices” in a voter-approved initiative in 1980 that instituted lobbyist disclosures to be reported to this commissioner.87 The Commissioner position is structured as an appointed, yet independent, executive office. First, a bipartisan selection committee (the speaker of house, president of senate, and minority leaders from each house) present a list of nominees to the Governor.88 The Governor’s appointee must also be confirmed by a majority of the state senate. Once selected, the Commissioner serves for a single six-year term (longer than the four-year term for the Governor and Secretary of State) and is not eligible for reappointment.89 Montana has additional provisions to enhance the independence of the Commissioner that go beyond many other states with appointed officials handling election or campaign finance matters. Unlike Delaware, where the Commissioner serves at the pleasure of the Governor, there are limitations on the removal of the Montana Commissioner. A Governor may only remove a

Depoliticizing Colorado’s Election and Campaign Finance Administration Commissioner for “incompetence, malfeasance, or neglect of duty” – a charge that must be stated in writing with sufficient cause that is subject review by courts.90 The Commissioner could also be subject to impeachment proceedings by the legislature (as is the Governor) or prosecution for criminal official misconduct.91 As a further protection, the Commissioner’s salary may not be reduced during the six-year term and the Commissioner must receive all pay raises set for other state employees by the legislature.92 The restrictions on political activity for Montana’s Commissioner also appear more extensive than those in Delaware or Colorado. The Commissioner is specifically prohibited from even “participating” in any political campaign, making any contributions for candidates or connected to ballot issue campaigns, or attending any fundraising events for candidates, political committees or ballot issues.93 The law also prohibits outside business or occupation that would interfere or be inconsistent with the Commissioner’s duties, or involvement in any matters that create an actual or appearance of conflict of interest.94 There are also provisions relating to recusal by the Commissioner in cases where a conflict of interest might occur in enforcing the campaign finance and political laws under her jurisdiction.95 Recently, controversy has surrounded the appointment and tenure of Commissioners with regard to their partisanship or conflicts of interest. Three individuals have served in the office since Dennis Unsworth’s term ended in 2010. First, Jennifer Hensley was appointed by Governor Schweitzer (D) in January 2011, but she was criticized for being too partisan as a former campaign operative for Democratic candidates and the spouse of a state senator.96 Later that year, she was not confirmed by the Republican-controlled state senate because she was “too political.”97 The Governor’s next appointee – David Gallick – resigned before he could be confirmed by the Senate.98 He served for less than a year, leaving office after career staff in the Commissioner’s office accused him of conducting his private law practice on government time and falsifying state time records.99 After receiving a new list of nominations from the bipartisan committee, the Governor appointed the current Commissioner, Jim Murry, in February 2012.100 The state senate will have a chance to confirm Murry in the next year’s legislative session and, if confirmed, he will serve until 2016. Murry is a former treasurer for the Governor’s reelection campaign, and the Governor reportedly expects the 2013 legislative session to refuse to confirm his appointee and/or overhaul the Commissioner’s office in general.101

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20 Change the Game The State Integrity Investigation labeled Montana’s political finance system with an overall grade of “D” for effectiveness.102 Some of the low marks were based on the fact that there are no limits on individual contributions to political parties and that the Commissioner’s office does not “regulate or monitor” political party finances.103 However, the report had generally favorable reviews of the Commissioner’s investigation and enforcement of the law overall. According to the report, the office does not appear to have adequate staffing to handle the volume of work: “Sources describe the office as being generally in its fair in its application of power, but long delays in resolving complex cases are not uncommon.”104 One casualty of this lack of resources seems to be audits of reports, which the Commissioner does not conduct despite explicit authority to do so.105 The system in place in Montana appears to value nonpartisanship in campaign finance enforcement, but does not see the same benefits for election administration currently handled by the elected partisan Secretary of State. Indeed, the Republican Secretaries of State Committee said it intends to raise and spend money to help defeat the Democratic incumbent Secretary and bring “conservative principles of governance” to the office.106 The recent difficulties with appointments of Commissioners illustrate the checks and balances built into the system to ensure the Governor does not appoint officials that are too partisan. The prior history of the office does not appear to be filled with these types of incidents. Montana has done a good job creating a structure of independence for the Commissioner, which has led to at least one recent investigation and finding of violations against a sitting Governor.107 North Carolina North Carolina is an example of a bipartisan board or commission model for election and campaign finance administration. The North Carolina State Board of Elections was created in 1901 to oversee elections.108 County boards of elections perform much of the local election administration, but these board members are all appointed (and can by removed by) the state board.109 The State Board is an “independent regulatory and quasi-judicial agency” that is not set within any executive agency.110 In addition to regulatory and investigatory powers regarding election administration, the Board was given jurisdiction over campaign finance regulation in 1973.111 The Board is both the filing location for campaign finance reports and the general investigative body with power to assess civil fines for late filings.112 In both election fraud and campaign finance violation investigations, the Board refers findings to the

Depoliticizing Colorado’s Election and Campaign Finance Administration proper district attorney for prosecution for any matters more serious than late filings.113 The Board has five members appointed by the Governor which serve a four-year term.114 Not more than three members can be from the same party, which results in a partisan majority in favor of the appointing Governor’s party.115 Currently, the Board includes three Democrats (one is Chairman) and two Republicans.116 The appointments must be made from a list of nominees created by the state party chairmen of the top two political parties per voter registrations (five names from each party).117 Any vacancy is filled with a new appointment from the same political party as the vacating member. Appointments need not be confirmed by the state legislature, and members can only be removed for “misfeasance, malfeasance, or nonfeasance.”118 Board members are not full-time salary positions, instead only compensated for timespent and traveling expenses.119 The Board appoints a full-time Executive Director that serves for a four-year term, unless removed for cause, and is the Chief Election Official.120

21

NC State Board of Elections

Minority Party

Governor’s Party

There are some restrictions on political activity by Board members both at the time of appointment and while serving on the Board. A Board appointee cannot be any individual who is already serving in any elective or appointed position in federal, state or local government, a political party officer, candidate, or campaign manager or treasurer for a candidate committee.121 There are additional exclusions for individuals to be appointed to the county board level, including relatives of candidates.122 Once appointed to the state or county boards, members are prohibited from publicly endorsing or opposing any candidate or referendum and from soliciting contributions for candidate or

22 Change the Game referendum efforts.123 Individual board members are not required to be completely nonpartisan, however, as they are free to make contributions themselves to candidates and political committees and to serve as delegates to political party conventions.124 The statute also specifies that “[i]ndividual expressions of opinion, support, or opposition not intended for general public distribution” do not violate this restriction on political endorsements. According to a local activist, this provision was strengthened after a former Chairman of the State Board was holding fundraising events for candidates.125 Violation of these restrictions is considered ground for removal from the board position.126 North Carolina’s system was rated highly by the 2009 CDEM study on election management with a score of four out of five.127 The Board was awarded points for being bipartisan and independent and placing restrictions on political activity by Board members. The State Integrity Investigation gave North Carolina an overall “C-” grade for its campaign finance system.128 The state received low scores for its lack of limitations on contributions from individuals or PACs to political parties and fairly high limitation on contributions to candidates.129 Relatively high marks were given for effectiveness and the amount of investigation done by the Board: 113 investigations in 2009-2010 for substantive violations and 235 late filing penalties assessed.130 However, the Board was marked down for not performing audits in a timely manner due to staffing shortages.131 The State Integrity Investigation also noted that the partisan makeup of the Board does not appear to preclude enforcement of campaign finance matters when warranted. For example, “[b]oards controlled by a majority of Democrats fined Democratic former Gov. Mike Easley $100,000 in 2009 and current Democratic Gov. Bev Purdue $30,000 in 2010.”132 However, the report also states that Republican leaders believe the current Democratic Board works too slowly and just waits for watchdog groups to file complaints.133 Discussions with local activists indicate that the Democratic control of the Board has been longstanding, perhaps leading to Republican dissatisfaction.134 In addition, the agency operates with both election and campaign finance divisions filled with professional staff that are nonpartisan and usually respected by both sides.135 Although votes along party lines do happen, it did not appear that most decisions are made that way. One activist noted that it does help credibility when the board “takes on Democrats” for investigations.136 There is a reform proposal currently in the state legislature, mostly supported by Republican lawmakers, to remove the campaign finance

Depoliticizing Colorado’s Election and Campaign Finance Administration responsibility from the Board, and combine it with lobbying regulation and government ethics matters under the auspices of a new “State Integrity Board.”137 The Board of Elections would continue to handle election administration issues with the county boards. The current State Ethics Commission would be the entity with expanded jurisdiction that would handle campaign finance matters. This commission is considered less partisan with eight appointed members (four by the Governor and four by the General Assembly) and no more than four of the same political party.138 Republican lawmakers argue that slow investigations show that the Board of Elections cannot handle the responsibilities of campaign finance.139 This may be the result of the current chairmanship which is held by an individual who is more interested in election administration matters and has been shifting resources away from the campaign finance investigations.140 North Carolina’s model of a bipartisan board is more inclusive than a partisan single administrator when it comes to regulation and enforcement, but it has a built-in partisan advantage for the Governor’s party. Also, the nomination process is limited to the “top two” political parties and does not allow for any independent or third party representation on the Board. Although the nonpartisan staff, given enough money and resources, could administer and investigate election and campaign finance matters in a neutral way, final decisions are subject to partisan influences. Limitations on some political activity keep direct conflicts of interest at bay (such as a candidate treasurer serving as a board member), but board members can contribute money for and against political candidates and measures which they regulate. Given that these same partisan representatives can hire and fire county board members, their independence and neutrality is important. It does not seem that this is adequately protected under the current system in North Carolina.

23

24 Change the Game

Why Depoliticizing the State Administration of Elections & Campaign Finance is the Right Thing to Do
In order for voters to feel that the elections are fair and that their elected officials are not improperly influenced by special money interests that “paid” for them to be elected, the ground rules must be equitable and effective. All parties and candidates should be on a level playing field without extra advantage given to one side based on the way campaign finance rules are implemented or how elections are administered. Voter confidence in the electoral system is essential for citizen confidence in our government. Increasingly in the last decade, it has become clear that placing the administration of elections and campaign finance in the hands of a state elected official does not promote this type of confidence.141 Voters become wary of a system where a political player is also in charge of the rules of the game. There are two bipartisan commissions in the Federal government that are responsible for some election and campaign finance matters: the Federal Election Commission (FEC) and the Election Assistance Commission (EAC). However, each commission has limited jurisdiction, leaving the vast majority of election administration details, and all regulation of state-level campaign finance, in the hands of state officials. In addition, both of these entities have suffered from controversy to an extent that neither is effective enough to act as a counterweight to partisan-influenced administration at the state level. The FEC is arguably designed to fail, with a permanent three-three split between Democratic and Republican political appointees. Recent Senate confirmation skirmishes have left the current FEC with five out of six Commissioners serving on expired terms without any replacement named by the White House (the sixth Commissioner’s term expires in 2013).142 The EAC, created after the problems revealed with state election administration by the 2000 election as described below, is in even worse shape. Currently, no Commissioners sit on the EAC and there is little chance of Senate confirmations of pending nominees before the November election.143 Thus, no meaningful reform or oversight of state administration is coming from Washington. As described in this section, the role of Secretary of State has become increasingly politicized in a way detrimental to voter confidence. Combining this trend with the declining role of the Federal Government in administering elections means that now is the time to start reforming state-level administration. For over a decade, bipartisan commissions and international standards have recommended a nonpartisan system for U.S. campaign finance

Depoliticizing Colorado’s Election and Campaign Finance Administration and election. Coloradans should heed these recommendations and move towards a reformed system that will increase confidence in our elections and elected officials.

25

Increased Partisanship of the Secretary of State’s Role
Although partisan elected Secretaries of State have been running state elections for decades, the watershed event that focused national attention on the problems of this model was the Florida recount of votes in the 2000 Presidential Election. In the dozen years that have followed, Secretaries from both parties across the country, including in Colorado, have continued to act in ways that raise partisan suspicions. Both the Democratic and Republican parties have realized the possibilities for gaining an “advantage” in an election by having a Secretary from a given political party, creating programs and political committees focusing on electing such officials. This trend towards increased partisanship in our election administration is unlikely to slow without structural changes in state government. Most people first learned about the Secretary of State as a government office through news coverage surrounding the actions of Katherine Harris, Florida’s Secretary of State in 2000.144 Harris, a Republican, was elected in 1998 to a four-year term.145 As she was overseeing her first major election in 2000, she also served as co-chair of the Bush presidential campaign in Florida.146 When Florida’s election was close enough that a manual recount was ordered, Harris’ decisions to strictly enforce deadlines against the Gore campaign recount requests and her refusal to accept late-filed returns after a court authorized her to do so were criticized as politically motivated.147 Ironically, Harris was Florida’s last elected Secretary of State. Florida voters in 1998 had approved a constitutional amendment giving the governor authority to appoint all future Secretaries of State.148 The perceived partisan influence on the eventual outcome of the 2000 presidential election sparked interest in bipartisan election reform. At the same time, however, the 2000 election increased the importance to both the Democratic and Republican parties of having an election administrator in “their” camp. The political parties themselves, candidates, and PACs started investing in Secretary of State campaigns across the country.149 Targeted efforts especially were made by the “Secretary of State Project” for Democrats150 and the “Republican Secretaries of State Committee,”151 which helped direct large out of state donors to these races and to increase the amount of money raised and spent in Secretary of State elections.152

26 Change the Game

Allegations of partisan-influenced decisions by Secretaries of State have continued in almost each election year since 2000. The new Florida Secretary of State (appointed by Republican Governor Jeb Bush) was criticized in 2004 for voter roll purges and voter ID rules allegedly benefitting Republicans.153 Also in 2004, actions taken by Ohio Republican Secretary of State Ken Blackwell led to constitutional challenges in court for lack of voting machines causing long lines in Democratic-leaning precincts and other deficiencies in the voting and vote-counting system.154 Blackwell was also serving as a co-chair of the Bush re-election campaign in Ohio while administering the 2004 election.155 Partisan charges continued in Ohio after Democratic Secretary of State Jennifer Brunner was elected in 2006 and took actions such as rejecting voter registration forms circulated by the McCain 2008 campaign.156 The partisan atmosphere has become so charged that an elected Secretary of State can be criticized by their own party for not being partisan enough. In 2005, the Republican Secretary of State of Washington, Sam Reed, was subject to a recall effort based on his handling of a close election and recount in the 2004 gubernatorial election.157 Newspaper accounts at the time noted “His apparent nonpartisan approach has angered some Republicans who thought he should aggressively fight for Dino Rossi [the Republican candidate].”158 Political parties have even assumed partisan decisions where no particular instances are alleged, as when the Republicans threatened lawsuits if Bush did not win New Mexico in 2004 on the grounds that such a result could only be based on fraudulent voting allowed by then-Secretary of State Rebecca Virgil-Giron, a Democrat.159 More recently, the Democratic Secretary of State in Nevada was accused of allowing unions and Democratic candidates to improperly use campaign funds and not properly responding to Republican challenges in the close 2010 U.S. Senate race.160 In some states, the practice of the Secretary of State simultaneously holding a position in a candidate campaign committee continues. In 2012, Arizona’s Republican Secretary of State created controversy when hesitating to certify Obama for the ballot as he served as cochair for the Romney 2012 Arizona campaign.161 All of this demonstrates that the controversies surrounding Colorado Secretary of State Scott Gessler’s management of his office during the 2012 election cycle are not peculiar to Gessler, Republicans, or Colorado. Rather, they are the result of a system of election management with few safeguards and many opportunities to engage in partisan mischief. As Ohio’s switch from Republican to Democratic Secretaries between 2004 and 2008 illustrates,

Depoliticizing Colorado’s Election and Campaign Finance Administration simply electing a Secretary from the “other team” does not eliminate the problem of partisan influence. Instead, the pendulum tends to swing to the opposite side with policies and enforcement decisions still influenced by partisan ideology. The only long-term solution to endless partisan warfare over election administration is to adopt a way to manage elections that leaves little room for partisan gamesmanship.

27

Recommendations of the National Commission on Federal Election Reform
Almost immediately following the 2000 Presidential election, the Miller Center of Public Affairs at the University of Virginia and The Century Foundation established the National Commission on Federal Election Reform.162 This blue-ribbon bipartisan panel was led by former Presidents Jimmy Carter and Gerald Ford as honorary co-chairs, and co-chairmen Lloyd Cutler, former White House Counsel, and former Senator Howard Baker (later replaced by former House Minority Leader Robert Michel).163 The Commission conducted an extensive study on how to make future U.S. elections more efficient and fair. In July 2001, the Commission released its analysis and recommendations for improvements in many areas at the federal, state and local level.164 Among the recommendations, the Commission advised states that include election administration in the duties of a partisan secretary of state to seriously consider establishing nonpartisan election administrations and appointing nonpartisan officials to supervise manual recounts.165 The report also found that within states, election procedures and standards varied widely from county to county, and called on state governments to strive for state-wide uniformity. To eliminate confusion in future close elections and recounts, the Commission also recommended states enact “objective vote definitions and clear post-election procedures.”166 After releasing the 2001 report, the Commission continued to study ways to improve elections and to monitor reform efforts based on its recommendations. In 2005, the Commission issued a second report that stressed the importance of nonpartisanship.167 This report stated that a system with partisan election officials contributes to a public perception of partisan bias, in turn contributing to the public's lack of confidence in the election process.168 The report restated the 2001 recommendation that “states should consider transferring the authority for conducting elections from the secretary of state to a chief election officer, who would serve as a nonpartisan official,” and added that officers should have long terms, about 10 years, and

28 Change the Game limited grounds for dismissal, similar to those for judges.169 To prevent conflicts of interest, the Commission advocated for laws that would prohibit officials from engaging in political activity. Specifically, they cited Colorado's prohibition on some partisan activity by a sitting Secretary of State (discussed above) and the International Institute for Democracy and Electoral Assistance's (IDEA) Code of Conduct as example provisions for adoption in other states.170 American University’s CDEM, which supported the Commission’s 2005 report, continued to track progress of reform efforts and published updated findings in 2007.171 This report found that the 2005 report stimulated at least some debate and movement, and a few states were reviewing bills for nonpartisan election administrations and uniform voting procedures.172 However, “the fundamental problems that have afflicted America's election apparatus for decades--partisan control of election administration and general lack of transparency and accountability--have not changed yet.”173 As discussed above, CDEM also issued a 2009 state-by-state analysis of election administration reform efforts as well as model legislation for implementing nonpartisan election administration at the state level.174

International Standards for Election & Campaign Finance Administration
While the United States serves as an excellent model of a nation that is able to conduct a peaceful transition of power through elections, the partisan influence on the conduct of those elections in the U.S. is not the international norm. International organizations advising on election and campaign finance regulation stress the need for independence and nonpartisan bodies to monitor elections and campaigns.

International Models of Election Management
16% 27% Governmental Independent 57% Mixed

175

Depoliticizing Colorado’s Election and Campaign Finance Administration IDEA describes three types of “electoral management bodies” that are used in countries with national elections: governmental, independent and mixed.176 The government model is where elections are administered by an entity within the executive branch of elected government.177 The independent model has a body, such as a commission, that is separate and independent from the elected executive branch both in policy and budgetary matters.178 A mixed model usually includes both an executive government agency that implements specific policies and an independent body that supervises implementation and sets the general policy.179 The independent model is the choice of emerging democracies and is the most common form of election administration overall. The U.S. fits within the Governmental model, as do states that use an elected Secretary of State like Colorado. An identified disadvantage of the government model is that credibility can be undermined by voter perceptions of the election management body being too aligned with government or political influence.180 As discussed above, this problem is illustrated by the experience of Colorado and other states where elected Secretaries of State manage elections. IDEA suggests that independence and impartiality should be among the top guiding principles for all election management bodies.181 “Election administration must be nonpartisan and neutral” is one of the ethical principles in IDEA’s Code of Conduct for elections.182 Another international organization, International Foundations for Electoral Systems (IFES), has looked at the administration of “political finance” regulations with similar recommendations.183 Although no uniform model of enforcement is suggested to fit all governmental systems, IFES identifies that there is international consensus on three characteristics of independence needed for a system to be successful: 1. Enforcement bodies should have appointments of individuals independent from governments in power; 2. Appointees should have security of tenure; 3. Enforcement bodies should have some level of independence as to its funding levels.184 This report also noted partisan enforcement of campaign finance regulations can “undermine the equality of candidates and parties participating in the political process.”185 Independence of the enforcement body, as safeguarded by these three principles, is the way to prevent such behavior.

29

30 Change the Game As the 2005 National Commission noted, the United States manages its elections at the federal and state level in a way that does not use best practices and recommendations of the international election management community. With an elected Secretary of State, Colorado’s system is even farther removed from the models of independent, nonpartisan and neutral administration recommended by IDEA and IFES.

If the people managing an election are perceived to have a commitment to any particular election result, the public credibility of the election process will be so seriously compromised that it will be difficult to restore faith in the process. –IDEA Code of Conduct, Ethical Principle 2

Depoliticizing Colorado’s Election and Campaign Finance Administration

31

Recommendations
Colorado voters should be confident that their election administration adheres to the high standards and best practices that are implemented in some other states and internationally. There are some clear paths for Colorado to follow in a move away from an elected partisan administration of election and campaign finance law. It is important to note that each of these options would require a change to Colorado’s Constitution, and, therefore, must be approved by voters in a referendum or ballot initiative election. But this hurdle is not insurmountable. In Colorado, constitutional amendments are routinely placed on the ballot by citizen initiative and have a relatively high success rate. A constitutional amendment may also be presented to voters as a referendum that is first passed by the General Assembly and then placed on the ballot for additional approval.

Nonpartisan Single Administrator
One option for Colorado is to keep the single administrator system, but transition to a nonpartisan appointed official in that position similar to Delaware, Montana and other states. The current organization in Colorado is that the Secretary of State handles not only the election and campaign finance responsibilities, but also most business filings and licensing functions for the state. Therefore, the two possible avenues for reform are: (1) Moving the election and campaign finance responsibilities to a new appointed administrator and leaving the business and licensing functions with the elected Secretary of State; and (2) Leaving both divisions within the Secretary of State’s office, but changing that office to an appointed nonpartisan position. The first path is to create a new independent Department of Elections, similar to Delaware, responsible for all election and campaign finance administration. The Executive Director (ED) of this department (the title used for most Colorado cabinet positions) would be appointed by the Governor and confirmed by a majority vote of the Colorado Senate like other appointees.186 However, the new ED for Elections should have some different structure from the other cabinet officials to maintain independence and neutrality. First, the ED for Elections should have a set term of years that exceeds the four-year term of the Governor’s office, similar to the six-year term for Montana’s Commissioner. It would also be wise to have a salary protection provision

32 Change the Game similar to Montana’s to avoid legislative retribution for the ED’s actions. In addition, there should be limitations on the ability of the Governor to remove the ED for reasons other than malfeasance or just cause. Appointments will also be more neutral if the Governor must select from a list of nominees jointly submitted by General Assembly leaders, as in other states. Finally, there should be a provision for default appointments without Senate confirmation so that a vacancy cannot be created by legislative refusal to consider an appointment. The other important piece needed to protect nonpartisanship in the office is increased restrictions on political activity by an ED. First, the current limit on serving as an officer in a candidate committee should be expanded to also prohibit public endorsements, fundraising, and contributions to candidates, political parties, and ballot measure campaigns. The ED should not be allowed to hold any position in a political party organization or PAC. In order to avoid possible conflicts-of-interest as an ED nears the end of her term, there should be a waiting period (perhaps for two years) before a former ED could run as a candidate for state or local office. Unfortunately, there is an economic hurdle to implementing this approach. Currently, the Department of State runs without general fund appropriations because it is financed through its own cash fund generated by filing fees.187 The majority of its income is from the business and licensing filings, with only a minor amount generated by campaign finance late fees or election filing fees. All operations of both the Business and Election divisions of the department are funded by this income stream. Thus, “election activities in Colorado are funded by businesses.”188 If these two divisions are separated, then the income-generating Business division will remain with the Department of State and the election responsibilities will arrive at the new Department of Elections without any associated revenue stream to cover the costs of the transferred staff and duties. In a time of tight state budgets, it would be difficult to find additional general fund revenue to cover the costs of this new Department. One possible solution is for the General Assembly to legislatively re-direct excess revenue in the Department of State cash fund (after the reduced operating costs are paid) to the new Department of Elections to cover its operating costs. There is past precedent where legislation has taken excess revenue from the cash fund in this way for other state agencies, such as the state public school fund, the Colorado tourism fund, or the general fund itself.189 Since the current revenue coming into the cash fund is more than adequate to cover the Department of State expenses with both divisions, it

Depoliticizing Colorado’s Election and Campaign Finance Administration should also be able to cover this split operation if the Department of Elections works with a budget and staff at the same level as transferred over from the Elections Division. Another way to address the fiscal complications caused by spinning off the election and campaign finance responsibilities from the Department of State would be to take the second path listed above: keep the department whole and transition the Secretary itself into a nonpartisan position. This would be similar to the approach taken by Florida voters in 1998, but with additional protections for neutrality. In this scenario, each of the same protections discussed above for a new ED would be incorporated into the Secretary of State position including the expanded term of office, limitations on removal and salary reductions, General Assembly nominations, and default appointments. In addition, the restrictions on political activity and waiting period before running for office would be incorporated into the revised Secretary’s position. As discussed above, there are other states with appointed Secretaries of State and the business and licensing-type functions do not usually inspire such strong sentiment that voters will regret the loss of ability to vote directly for such an administrator. The benefits of moving to a nonpartisan, neutral administrator for election and campaign finance would outweigh any such cost.

33

Independent Commission
Colorado could also move to a board or commission model for election and campaign finance administration. Although such an approach failed on a ballot measure in the 1990s, Colorado voters have more recently approved the creation of a state-wide independent commission: the Independent Ethics Commission (IEC).190 Similar to many other states, Colorado could combine the election and campaign administration responsibilities with the government ethics jurisdiction of the IEC to create one state-level independent commission that handles all of these matters (renamed appropriately). The current IEC is a five-member commission with one member each appointed by the Colorado Senate, House, Governor, and Chief Justice. The fifth member is appointed by the other four members and must be a local government official or employee.191 No more than two of the commissioners can be from the same political party, thus avoiding the partisan-majority problems found in North Carolina while at the same time reflecting Colorado’s significant population of unaffiliated and third-party voters.192 Commissioners serve for four-year terms (staggered) and may be reappointed or serve after

34 Change the Game expiration of a term until a successor is appointed.193 There are currently no restrictions on political activity on IEC Commissioners, but similar restrictions discussed above should be added if election and campaign finance responsibilities are transferred from the Department of State. The IEC is an independent entity, placed in the judicial branch;194 however, it still depends upon the General Assembly and elected Governor for funding and appointments. To further increase its independence once election and campaign finance responsibilities are incorporated into its jurisdiction, additional protections like those in Montana should be added. In addition, a back-up provision for appointments should be implemented so that vacancies cannot be created by refusal of elected branches to appoint (such as the current vacancy in the House-appointed seat since December 2011).195 Since the IEC has jurisdiction to hear and decide ethics complaints, this jurisdiction could also be expanded to allow more governmental enforcement of campaign finance violations (while preserving the ability of citizens to file complaints). Moving election and campaign finance duties to the IEC implicates the same economic concerns discussed above regarding creating an independent Department of Elections. Once again, it would be necessary to legislatively fund the expanded IEC with excess revenue in the Department of State cash fund in order to cover the additional staff and responsibilities transferred. Currently, the IEC is funded very minimally, with only one salaried staff person.196 The expanded IEC could operate on a similar model as the North Carolina Board of Elections where Commissioners remain unpaid (reimbursed for expenses) and full-time nonpartisan directors of elections, campaign finance, and ethics are hired by the Commissioners. Additional cost savings could be made by keeping the actual filing location for campaign finance and election filings at the Department of State (as in other states), but shifting responsibility for audits and imposing civil penalties to the expanded IEC.

Depoliticizing Colorado’s Election and Campaign Finance Administration

35

Conclusion
Each of the reform options offered in this report has much to recommend it, and without doubt objections could be made to each as well. Any of these options, however, would place Colorado election and campaign finance law on firmer footing than it is now. More than ever in today’s polarized political atmosphere, allowing a partisan politician who is a player in the game also to serve as referee should be unacceptable. It is time for Colorado to change the game.

Summary of Reform Proposals

Nonpartisan Director of Elections • Move election & campaign finance to new department • Appointed by Governor from bipartisan list w/Senate Confirmation • Set term of years, limited removal • Increased restrictions on political activity • Cooling off period before candidacy

Nonpartisan Secretary of State • Change Dept. of State to appointed cabinet agency • Appointed by Governor from bipartisan list w/Senate Confirmation • Set term of years, limited removal • Increased restrictions on political activity • Cooling off period before candidacy

Independent Commission • Expand jurisdiction of IEC to include election & campaign finance • Multi-partisan appointments required in timely manner • Filing location maintained by Dept. of State • Increased restrictions on political activity

36 Change the Game

Endnotes
COLO. CONST. art. IV, § 1.

1 2

For example, paperwork for popular initiative has always been required to be filed with the Secretary of State. COLO. CONST. art. V, § 1. The modern version of the Colorado Election Code was enacted in 1992. COLO. REV. STAT. § 1-1-101 et seq. The Secretary of State’s powers and duties under the Election Code are listed in COLO. REV. STAT. §1-1-107.
3 4 5 6 7 8 9

COLO. REV. STAT. § 1-45-101 et seq. (1995). COLO. REV. STAT. § 1-45-101 (1997), adopted by Colorado voters as Amendment 15. COLO. REV. STAT. § 1-45-111 (1997). COLO. CONST. art. XXVIII, §§ 9 and 10. COLO. CONST. art. XXVIII, § 9; COLO. REV. STAT. § 1-45-111.5 (2011).

Legislative Council of the Colo. Gen. Assembly, “An Analysis of 1994 Ballot Proposals,” RESEARCH PUB. NO. 392, (September 1994) at 43. Ballot History, LEGISLATIVE COUNCIL OF THE GENERAL ASSEMBLY, http://www.leg.state.co.us/lcs/ballothistory.nsf/ (follow “Next” hyperlink to “1994”; follow “Initiative 15, Campaign and Political Finance” hyperlink) (last visited Sept. 10, 2012).
10 11 12

Id.

H.R.J. Res. 08-1032, 66th Gen. Assemb., 2d Reg. Sess. (Colo. 2008); H.R.J. Res. 09-1015, 67th Gen. Assemb., 1st Reg. Sess. (Colo. 2009).
13 14

COLO. CONST. art. IV, § 1. Term limits were effective as of January 1, 1991.

COLO. CONST. art. XXVIII, § 3(1). Secretary of State candidates are limited to accepting $550 in aggregate contributions from an individual or PAC and $5,675 from a small donor committee per election. Corporate and labor union contributions are prohibited.
15 16

COLO. CONST. art. IV, § 6(2).

Bernie Buescher was appointed in 2009 when the prior Secretary resigned to become a U.S. Representative. Gigi Dennis was appointed in 2005 when the prior Secretary resigned to take a Federal Government appointment. Donetta Davidson was appointed in 1999 when the prior Secretary died in office. COLO. REV. STAT. § 1-1-107(7) (2012). The statute only allows a sitting Secretary of State to be such an officer in his own campaign as a candidate.
17

COLO. CONST. art. XXVIII, § 9(2). This report does not examine the citizen enforcement scheme in Colorado campaign finance law, including discussion of the negative results of shifting the burden of enforcement on private individuals and organizations.
18 19 20

COLO. CONST. art. XXVIII, § 10(2).

Robert Moore, Larimer GOP Makes Fundraiser Private, THE FORT COLLINS COLORADOAN, September 15, 2011. Secretaries of State, Colorado STATE ARCHIVES, http://www.colorado.gov/dpa/doit/archives/offic/secsta.html (last visited Sept. 10, 2012).
21

Depoliticizing Colorado’s Election and Campaign Finance Administration

37

Secretary of State, Notice of Temporary and Permanent Adoption dated February 22, 2012, http://www.sos.state.co.us/pubs/rule_making/files/2012/20120222_CPF_NoticeStatementsC harts.pdf (last visited Sept. 10, 2012).
22 23 24

Sara Burnett, Campaign-Finance Overhaul, THE DENVER POST, Nov. 24, 2011, at B1.

Sam Levin, Scott Gessler Rule Changes Rejected, Watchdog Groups Pleased, WESTWORD, August 15, 2012, available at http://blogs.westword.com/latestword/2012/08/scott_gessler_rule_changes_rejected.php. Sara Burnett, Denver Clerk, Secretary of State Gessler Spar Over Mailing Ballots, THE DENVER POST, June 20, 2012, available at http://www.denverpost.com/breakingnews/ci_20899423/denver-clerk-secretary-state-gesslerreignite-ballot-fight?.
25

Sara Burnett, Congressional Dems Seek Investigation of Gessler, THE DENVER POST, Sept. 27, 2011, available at http://www.denverpost.com/breakingnews/ci_18990018?cref=twitter&source=rss.
26

Peter Roper, Double Ballots Result in Scolding, THE PUEBLO CHIEFTAIN, June 16, 2012, available at http://www.chieftain.com/news/local/double-ballots-result-inscolding/article_66fb59b8-b778-11e1-b8ed-0019bb2963f4.html.
27

Bob Stephens, Mail Ballots in Teller County Have Mistake, Colorado Springs Gazette, June 6, 2012, available at http://www.gazette.com/articles/county-139823-mail-ballots.html.
28

Fred Brown, Contested Vote Recount to go to Secretary of State, THE DENVER POST, Nov. 26, 1998 at B12.
29

George Merritt, Vote Ruling Dims Mood, Machines Seen as Iffy, THE DENVER POST, Sept. 24, 2006, at A01.
30

John Ingold, Halt is Ordered to Voter Purge Judge Demands Coffman Restore 146 Names, THE DENVER POST, November 2, 2008 at B01.
31

CTR. FOR DEMOCRACY & ELECTION MGMT., AMERICAN UNIVERSITY, THE STATE OF ELECTIONS IN THE FIFTY STATES: EVALUATING THE PROCESS WHERE IT COUNTS 28 (2009) [hereinafter CDEM STUDY].
32 33 34 35

Id. Id.

Colorado, STATE INTEGRITY INVESTIGATION, http://www.stateintegrity.org/colorado (last visited Sept. 10, 2012). Colorado – Political Financing, STATE INTEGRITY INVESTIGATION, http://www.stateintegrity.org/colorado_survey_political_financing (follow Question “2.3” hyperlink; follow note “37” hyperlink) (last visited Sept. 10, 2012).
36

NASS Contact Roster as of 3/19/2012, NATIONAL ASSOCIATION OF SECRETARIES OF STATE, http://www.nass.org/index.php?option=com_contact_display&Itemid=346 (follow “Membership Roster” hyperlink) (last visited Sept. 10, 2012). These states are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Vermont, Washington, West Virginia, Wyoming. In Utah, the Secretary of State position is jointly held by the elected Lieutenant Governor.
37

Id. Alabama, Arizona, Colorado, Idaho, Indiana, Michigan, Mississippi, Nevada, New Mexico, North Dakota, Ohio, Oregon, South Dakota, Utah, Vermont, West Virginia, Wyoming. In
38

38 Change the Game

Arizona, the public financing program is administered by the Citizens Clean Elections Commission, but all other campaign finance authority remains with the Secretary of State.
39 40 41

Id. Id. Maine, New Hampshire and Tennessee.

The Office of Campaign and Political Finance, http://www.mass.gov/ocpf/ (click “About OCPF”) (last visited Sept. 10, 2012). However, this agency only has authority over campaign finance law, election administration responsibilities still reside with Massachusetts’ elected Secretary of the Commonwealth. Based on a review of state government websites, these states are Illinois, Maryland, New York, North Carolina, Rhode Island, Virginia.
42

According to the state government websites, the following states have a commission responsible for campaign finance, but election administration remains the responsibility of the Secretary of State: Alaska, Florida, Georgia, Iowa, Kentucky, Louisiana, Maine, Minnesota, Missouri, Nebraska, New Jersey, Tennessee, Texas, and Washington. Arizona has a commission which is only responsible for public financing program administration and enforcement – the Secretary of State administers and enforces all other campaign finance laws. In Connecticut and Rhode Island, the Commission shares some election administration duties with the Secretary of State, but the Commission has ultimate enforcement authority.
43

According to the state government websites, these states are Alaska, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Kansas, Massachusetts, Minnesota, Nebraska, New Jersey, New York, South Carolina, Washington and Wisconsin.
44

According to the state government websites, these states are Arkansas, Iowa, Louisiana, Maine, Missouri, Oklahoma, Tennessee and Texas.
45

Wisconsin combined two bipartisan boards into one non-partisan board (as discussed later in this report). However, no state has moved from an elected administrator to a board administration system (or vice versa) during this time period.
46

About the Wisconsin Government Accountability Board, GOVERNMENT ACCOUNTABILITY BOARD, http://gab.wi.gov/about/ (last visited Sept. 10, 2012).
47

According to the state government websites, these states are Alaska, Arkansas, California, Georgia, Iowa, Kansas, Louisiana, Maine, Minnesota, Missouri, Nebraska, Oklahoma, South Carolina and Texas.
48

According to the state government websites, these states are Arkansas, California, and Kansas.
49

The extreme example here is Hawaii which has a State Elections Commission, a Campaign Spending Commission, and a State Ethics Commission, according to state government websites.
50 51 52

COLO. CONST. art. XXIX, § 5 (2006).

Commissioner of Elections, STATE OF DELAWARE, http://elections.delaware.gov/aboutagency.shtml (last visited on Sept. 10, 2012).
53 54 55 56

DEL. CODE ANN. tit. 15, § 301 et seq. (2012). STATE OF DELAWARE, supra note 52. DEL. CODE. ANN. tit. 15 § 301(d) (2012) Id. at § 301(e).

Depoliticizing Colorado’s Election and Campaign Finance Administration

39

57 58

STATE OF DELAWARE, supra note 52.

Register to Vote, STATE OF DELAWARE, https://registertovote.elections.delaware.gov/ (last visited on Sept. 10, 2012)
59 60 61

DEL. CODE ANN. tit. 15, § 8041 (2012). Id. at § 8043 (violations) and § 8044 (tardy reports).

FEDERAL ELECTION COMMITTEE, COMBINED FEDERAL/STATE DISCLOSURE AND ELECTION DIRECTORY 31 (2012), available at http://www.fec.gov/pubrec/cfsdd/cfsded2012.pdf. Doug Denison, Newsmaker Q&A: Elaine Manlove Delaware Commissioner of Elections, DOVER POST, July 20, 2010.
62

Doug Chapin, Doing a Nonpartisan Job in a Hyper-Partisan World, ELECTION ACADEMY (February 10, 2012), available at http://blog.lib.umn.edu/cspg/electionacademy/2012/02/doing_a_nonpartisan_job.php.
63 64 65 66

See CDEM STUDY, supra note 32 at 28, 71. Robin Brown, Del.’s Voter Roll Efforts Recognized, THE NEWS JOURNAL (DEL.), Feb. 16, 2012.

Delaware, STATE INTEGRITY INVESTIGATION, http://www.stateintegrity.org/delaware, (last visited Sept. 10, 2012). Delaware – Political Financing, STATE INTEGRITY INVESTIGATION, http://www.stateintegrity.org/delaware_survey_political_financing (follow Question “2.3” hyperlink) (last visited Sept. 10, 2012); Id. (follow Question “2.4” hyperlink)
67

Id. (follow Question “2.4” note “45” hyperlink). The source for this statement was Ginger Gibson, former state house reporter, The News Journal of Wilmington.
68

Telephone interview with James Browning, Regional Director of State Operations, Common Cause, (June 29, 2012).
69

Telephone interview with Letty Diswood, Office Manager, League of Women Voters in Delaware, (July 5, 2012).
70 71 72 73 74 75

Interview with Letty Diswood, supra note 70; Del. Code Ann. tit. 15, § 211 (2012). Interview with James Browning, supra note 69; Interview with Letty Diswood, supra note 70. Id. MONT. CODE ANN. § 13-1-201 (2011).

MONT. CODE ANN. § 13-37-111 (2011). The Commissioner is also responsible for regulation of lobbyist filings and government ethics enforcement. MONT. CODE ANN. § 2-2-136 (code of ethics) and § 5-7-111 (lobbying registration).
76 77 78

MONT. CONST. art. VI, § 1 (1972). MONT. CODE ANN. §§ 13-1-203–210 (2011).

About the Montana Secretary of State, MONTANA SECRETARY OF STATE, http://sos.mt.gov/About_Office/Biography/index.asp (last visited Sept. 10, 2012). Erin Madison, Secretary of State Race Will be Rematch of McCulloch-Johnson, THE GREAT FALLS TRIBUNE, June 6, 2012, at A3.
79 80

Alex Sakariassan, Early Registrant, MISSOULA INDEPENDENT, May 24, 2012, at 7.

40 Change the Game

Linda McCulloch for Montana Secretary of State, http://mccullochformontana.com/(last visited Sept. 10, 2012).
81 82 83 84 85

See CDEM STUDY, supra note 32 at 28, 73. Id. at 73. MONT. CONST. Art. IV § 8(1)(a) (2011).

Montana Commissioner of Campaign Finances and Practices, Report to Governor and Legislature for Fiscal Year 1976 (July 1976) at 8-9, available at http://archive.org/stream/ccfpgovernor1976montrich#page/n3/mode/2up.
86 87 88 89 90 91 92 93

Id. at 1. MONT. CODE ANN. § 13-37-102, cmt. on (notes §19, Initiative No. 85, (1980)). MONT. CODE ANN. § 13-37-102(1). MONT. CODE ANN. § 13-37-103. MONT. CODE ANN. § 13-37-102. MONT. CODE ANN. § 13-37-105. MONT. CODE ANN. § 13-37-106.

MONT. CODE ANN. § 13-37-108(2)-(4) (2011). Until 2005, the Commissioner was also prohibited from being a candidate for public office for 5 years after serving as Commissioner. MONT. CODE ANN. § 13-37-103, cmt. on 2005 amend. (notes).
94 95 96 97 98 99

MONT. CODE ANN. § 13-37-108(1) and (5). MONT. CODE ANN. §§13-37-111(3)-(5). Daniel, Person, Top Cop, BOZEMAN DAILY CHRONICLE, Feb. 19, 2011, at A1. John Adams, Governor Seeks to Replace Gallik, GREAT FALLS TRIBUNE, Jan. 19, 2012, at A1. John Adams, Gallik Resigns from Post, GREAT FALLS TRIBUNE, Jan. 18, 2012, at A1. Id.

John Adams, Schweitzer Picks Political Ethics Commissioners, GREAT FALLS TRIBUNE, Feb. 7, 2012 at A1.
100 101 102

Id.

Montana, STATE INTEGRITY INVESTIGATION, http://www.stateintegrity.org/montana, (last visited Sept. 10, 2012). Montana – Political Financing, STATE INTEGRITY INVESTIGATION, http://www.stateintegrity.org/montana_survey_political_financing (follow Question “2.3” hyperlink) (last visited Sept. 10, 2012).
103 104 105 106

Id. (follow “question 2.4” hyperlink; follow, note “44” hyperlink). Id. (follow “question 2.4” hyperlink; follow, note “46” hyperlink).

About the RSSC, REPUBLICAN SECRETARIES OF STATE COMMITTEE, http://rslc.com/about-therssc (last visited Aug. 10, 2012). Matt Gouras, Schweitzer Could be Fined $4,100 in Ethics Case, ASSOCIATED PRESS (MO.), Aug. 31, 2011. Although prior appointees had refused to dismiss the case and found violations, the most recent hearing by a deputy commissioner dismissed the matter after Murry recused
107

Depoliticizing Colorado’s Election and Campaign Finance Administration

41

himself. Matt Gouras, GOP Appeals Dismissal of Schweitzer Ethics Case, ASSOCIATED PRESS (MO.), March 30, 2012
108 109 110 111 112 113 114 115 116

N.C. GEN. STAT. § 163-19 (2012) (legislative notes). N.C. GEN. STAT. § 163-22(c). N.C. GEN. STAT. § 163-28. N.C. GEN. STAT. § 163-278.22. Id. Id.; N.C. GEN. STAT. § 163-278. N.C. GEN. STAT. § 163-19. Id.

North Carolina State Board of Election Members, NORTH CAROLINA STATE BOARD OF ELECTIONS, http://www.ncsbe.gov/content.aspx?id=11 (last visited Sept. 10, 2012).
117 118 119 120 121 122 123 124 125

N.C. GEN. STAT. § 163-19 (2012). N.C. GEN. STAT. § 143B-16. N.C. GEN. STAT. § 163-21. N.C. GEN. STAT. § 163-27. Id. N.C. GEN. STAT. § 163-30. N.C. GEN. STAT. § 163-39. Id.

Telephone Interview with Bob Hall, Executive Director, of Democracy North Carolina, (July 11, 2012).
126 127 128

N.C. GEN. STAT. § 163-40. See CDEM STUDY, supra note 32 at 28, 74.

North Carolina, STATE INTEGRITY INVESTIGATION, http://www.stateintegrity.org/north_carolina, (last visited Sept. 10, 2012). North Carolina – Political Financing, STATE INTEGRITY INVESTIGATION, http://www.stateintegrity.org/northcarolina_survey_political_financing (follow question “2.3” hyperlink) (last visited Sept. 10, 2012); Id. (follow question “2.4” hyperlink).
129 130 131 132 133 134

Id. (follow question “2.3” hyperlink; follow at Question 2.3 note “37” hyperlink). Id. (follow question “2.3” hyperlink; follow note “38” hyperlink). Id. (follow question “2.4” hyperlink; follow note “44” hyperlink). Id.

Telephone interview with Jane Pinsky, Director, of North Carolina Coalition for Lobbying and Government Reform, (July 31, 2012).
135 136

Id.; and Interview with Bob Hall, supra note 125. Interview with Bob Hall, supra note 125.

42 Change the Game

137 138 139 140 141

Interview with Jane Pinsky, supra note 134. Id; N.C. GEN. STAT. § 138A-7. Interview with Bob Hall, supra note 125. Id.

Rick Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Election Meltdown, 62 WASH & LEE L. REV. 937, 942 (2005) (citing polling data showing more than 25% of voters worried that 2004 vote-count results were unfair).
142 143

Alex Knott, More FEC Terms Expire, but Replacements Unlikely, ROLL CALL, Apr. 4, 2011.

Al Kamen, No Election Commissioners? No Problem., WASH. POST, Apr. 12, 2012. Similar to the FEC, the EAC Commissioners are permitted to serve past the expiration date of their term until successors are appointed. However, the EAC website confirms that all four positions are currently vacant. http://www.eac.gov/about_the_eac/commissioners.aspx (last visited Sept. 10, 2012). University of California, Irvine Law Professor Rick Hasen includes detailed discussion of the events in Florida 2000 in a chapter titled “All I Really Need to Know I Learned in Florida” in his book THE VOTING WARS (2012). His discussion also focuses on the type of voting machine technology and ballot design used in Florida, topics not addressed in this report. His discussion of Secretary of State Harris can be found on pages 20-29.
144

Robert George, Last Minute Donations Boost Harris, SOUTH FLORIDA SUN SENTINAL, Nov. 4, 1998.
145

Katherine Harris’ “W” Files, CBS NEWS, Feb. 11, 2009, available at http://www.cbsnews.com/2100-250_162-305435.html (last visited Sept. 10, 2012).
146 147 148 149

Hasen, supra note 141 at 978. FLA. CONST. art. IV § 5.

USA TODAY, Top Vote Counter Becomes Prize Job, Aug. 17, 2006, available at http://www.usatoday.com/news/washington/2006-08-16-secretary-state-democrats_x.htm (last visited Sept. 10, 2012). The Facebook page http://www.facebook.com/secstateproject still exists, however, this group does not appear to have been active since the 2010 elections. See also THE VOTING WARS supra note 144 at 106-107 (describing the Secretary of State Project’s support for Ohio Democratic candidate for Secretary of State Jennifer Brunner in 2006 and its subsequent decline).
150 151 152 153 154

Republican Secretaries of State Committee, http://rslc.com/rssc (last visited Aug. 9, 2012). Avi Zenilman, Secretaries of State Give Dems Firewall, POLITICO, Nov. 2, 2008. Hasen article, supra note 141 at 981.

League of Women Voters v. Brunner, 548 F.3d 463 (6th Cir. 2008). See also THE VOTING WARS, supra note 144 at 120-122.
155 156

Hasen article, supra note 141 at 939.

NBC NEWS.COM, Small Check-Box, Big Dust-Up in Ohio, Sept. 12, 2008, available at http://firstread.nbcnews.com/_news/2008/09/12/4431810-small-check-box-big-dust-up-inoh?lite (last visited Sept. 10, 2012). See also THE VOTING WARS, supra note 144 at 109-120.
157

In the Matter of the Recall of Sam Reed, 124 P.3d 279 (Wash. 2005).

Depoliticizing Colorado’s Election and Campaign Finance Administration

43

158 159 160

David Portman, Reed Sides with GOP in Court, THE SEATTLE TIMES, Jan. 28, 2005. Hasen article, supra note 141 at 982.

Jon Ralston, Angle Campaign Attorney: “Reid intends to steal this election if he can’t win it outright,” LAS VEGAS SUN, Oct. 26, 2010. Howard Fischer, Bennett Changes Personal Policy, Co-Chairs Romney Campaign, EAST VALLEY TRIBUNE, May 21, 2012.
161

NAT'L COMM'N ON FED. ELECTION REFORM, TO ASSURE PRIDE AND CONFIDENCE IN THE ELECTORAL PROCESS (2001), available at http://web1.millercenter.org/commissions/comm_2001.pdf.
162 163 164 165 166 167

Id. at 87. Id. at 71. Id. Id. at 60.

COMM'N ON FED. ELECTION REFORM, FINAL COMMISSION REPORT: BUILDING CONFIDENCE IN US ELECTIONS (2005), available at http://www1.american.edu/ia/cfer/report/full_report.pdf.
168 169 170 171

Id. at 50. Id. at 50-51. Id.

CTR. FOR DEMOCRACY & ELECTION MGMT., CARTER-BAKER COMMISSION ON FEDERAL ELECTION REFORM: STATUS OF THE RECOMMENDATIONS 26-27 (2007), available at http://www1.american.edu/ia/cdem/usp/np/cbc_progress_2007_06_12.pdf.
172 173 174

Id. at 26-27. Id. at 35.

CDEM STUDY, supra note 32; CTR. FOR DEMOCRACY & ELECTION MGMT., NONPARTISAN ELECTION ADMINISTRATION: MODEL LEGISLATION FOR THE STATES (2009). INT’L INSTITUTE FOR DEMOCRACY AND ELECTORAL ASSISTANCE, ELECTORAL MANAGEMENT DESIGN: THE INTERNATIONAL IDEA HANDBOOK 8 (2006) available at http://www.idea.int/publications/emd/index.cfm (percentages from 2006 IDEA survey results).
175 176 177 178 179 180 181

Id. at 7. Id. Id. Id. at 8. Id. at 21. Id. at 22.

INT’L INSTITUTE FOR DEMOCRACY AND ELECTORAL ASSISTANCE, IDEA CODE OF CONDUCT FOR THE ETHICAL AND PROFESSIONAL ADMINISTRATION OF ELECTIONS 10 (1996) available at http://www.idea.int/publications/conduct_admin/.
182 182

INTERNATIONAL FOUNDATION FOR ELECTORAL SYSTEMS, POLITICAL FINANCE REGULATION: THE GLOBAL EXPERIENCE (2009) available at http://www.ifes.org/files/Political_Finance_Regulation_The_Global_Experience.pdf.
183

44 Change the Game

184 185 186 187 188

Id. at 87. Id. at 96. COLO. CONST. art. IV, § 6(1). COLO. REV. STAT. § 24-21-104 (2012).

GOVERNOR’S OFFICE OF STATE PLANNING AND BUDGETING, FY 2012-13 BUDGET REQUEST FACT SHEET, JUDICIAL AND ELECTED OFFICIALS 2 (2011), available at http://www.colorado.gov/cs/Satellite?c=Page&cid=1247436549471&pagename=OSPB%2FGO VRLayout (follow “FY 2012-13 Budget Request Fact Sheet” hyperlink ). COLO. REV. STAT. §§ 24-21-104(3)(d)(VI)-(VII) (school fund), (IX) (tourism), (X)-(XII.5) (general fund).
189 190 191 192 193 194 195

COLO. CONST. art. XXIX. Id. at § 5(2)(a); COLO. REV. STAT. § 24-18.5-101(2)(a). COLO. CONST. art. XXIX, § 5(2)(b); COLO. REV. STAT. § 24-18.5-101(2)(b). COLO. CONST. art. XXIX, §§ 5(2)(d)-(f). COLO. REV. STAT. § 24-18.5-101(2)(a).

Commission Members, COLORADO INDEPENDENT ETHICS COMMISSION, http://www.colorado.gov/cs/Satellite/DPA-IEC/IEC/1209461755457 (last visited Sept. 10, 2012). Caitlin Ginley, Policing the Politicians, State Ethics Commissions Lack Muscle, IWATCH NEWS, Aug. 8, 2012, http://www.iwatchnews.org/2012/08/08/10588/policing-politicians-stateethics-commissions-lack-muscle.
196

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