'Cure' to be cured

By Marianne Goodland
THE COLORADO STATESMAN

Colorado Secretary of State Bernie Buescher plans to ask the Colorado General Assembly to eliminate the statute governing “cures” for citizen-initiated petitions in the 2011 session.

Last week, the Best Practices and Vision Commission, a committee within the Elections Division of the Secretary of State’s office, voted 12-1 to recommend the General Assembly eliminate the ability of initiative proponents to “cure” petitions that don’t have enough qualified signatures.

There has been only one instance in at least the last seven years when a petition came in without enough qualified signatures, and the petition gatherers came back later with enough to get on the ballot. That was for this fall’s Amendment 62, the “Personhood” amendment.

The commission on Sept. 8 discussed a possible loophole in the system: that an initiative proponent could submit thousands of duplicate signatures and wouldn’t get caught.

Under current rules, an initiative must have 76,047 valid signatures in order to qualify for the ballot. State law requires that a 5 percent random sample be taken to determine how many signatures are valid. The 5 percent random sample applies to petitions with fewer than 90 percent valid signatures (about 68,000) or more than 110 percent (about 83,000). Petitions that fall in-between 90 and 110 percent must go through a second verification process in which the Secretary of State must verify every signature. The Secretary of State then determines whether the petition has enough valid signatures or whether it doesn’t.

Proponents who submit petitions that don’t have enough valid signatures are allowed another 15 days to “cure” the petitions — to bring in more signatures.

Four of the five citizen-initiated ballot measures on November’s ballot turned in well in excess of 135,000 signatures, and all four ballot measures were deemed as having at least 130 percent of the valid signatures required.

And then there was Amendment 62. Proponents from Personhood Colorado turned in just 79,648 signatures. A random sample of 4,000 signatures (the 5 percent rule) determined that 20 percent of the total signatures were invalid and the initiative, then known as initiative #25, was rejected. It took Personhood Colorado nearly six months, between August 25 and February 12, to gather those signatures.

But Personhood Colorado was able to collect another 47,114 signatures in the 15-day cure period and they submitted their “cure” on March 18.

The rules require that every signature be verified on a “cure” petition, but that’s where the loophole comes in. The Secretary of State is not required to check to see if any of the signatures on a “cure” duplicate those on the original petition. Nor is the Secretary of State required to match the signature on the petition against the signature on the individual’s voter registration card or driver’s license. All that is checked is whether the person exists and whether that person lives at the address listed on the petition.

For Amendment 62, 75 percent of the new signatures submitted were deemed valid, and that put the total number at 95,684, or 125 percent of the required number. And because the number of valid signatures was now above 110 percent, the Secretary of State could not go back and verify all of the signatures on the original petitions.

The possibility that an initiative proponent could “game” the system by submitting thousands of duplicate signatures on a cure troubled the members of the commission last week. While no one at the commission explicitly pointed fingers at Personhood Colorado, theirs is the only petition to make it to the ballot in recent memory that got there by using the cure, and the only one cited by the commission.

Commission Chair Judd Choate, during the Sept. 8 meeting, said that during the current election cycle, one initiative (Amendment 62, although he did not identify it by name) had fewer than 90 percent valid signatures. Then the “cure” happened, and 15 days later the proponents turned in another 47,000 signatures, which after verification put the initiative at above 110 percent. “We were never able to review the body of the original submission,” Choate explained. The problem, Choate said, is that if there were duplicate signatures, “we could be validating signatures on the cure that couldn’t be validated on the original [petition],” he said. Under that scenario, someone could game the system by turning in a lot of signatures, but not enough to meet the 90 percent floor, and then would get an opportunity to cure for the rest of the required signatures with duplicates to get above 110 percent.

Personhood Colorado, in a March 18 press release, explained the number of signatures collected in the 15-day period this way: According to Gualberto Garcia-Jones, co-sponsor of the Personhood Ballot initiative, volunteers collected more than 2,600 signatures each day, or about two signatures per minute. “Some of our volunteers were working all hours of the day,” he said. During that 15-day period, more than 700 volunteer petitioners gathered signatures from churches, grocery stores, and Tuesday caucuses, and that college-age church volunteers circulated the petition at St. Patrick’s Day parades and college campuses, according to the release.

Opponents of Amendment 62 weren’t able to check for duplicates. Fofi Mendez, director of the “No on 62” campaign told The Colorado Statesman they did not have the tools for doing that, nor the resources it would have taken for such a huge endeavor.

To close the loophole created by the cure, according to Choate and the commission, the General Assembly will have to eliminate the cure altogether. The commission voted 12-1 to recommend that Buescher ask the legislature in the 2011 session to do just that, and Buescher agreed to carry that recommendation to the General Assembly.

Commission member Joe Richey asked how adamant groups would be in opposing the change, and Choate said he believed there would be groups, like those who are paid to collect signatures, that will oppose it. But the argument in favor of eliminating the cure, Choate said, is that without it, groups should work harder to meet the 110 percent threshold.

And the vote reflected at least one faction where the legislation could run into trouble — the solo “no” vote came from Martha Tierney, an attorney who represents the Colorado Democratic Party. Her Republican counterpart, Ryan Call, voted to eliminate the cure.

Call told The Statesman that he supported its elimination because of the need to close the loophole, and said the legislature should provide limits with clear guidelines.

At least one other area of state law allows for cures, and that applies to minority party candidate petitions. The commission has no interest in eliminating that provision.

Mendez told The Statesman that they are “thrilled” that the secretary of state wants to address the issue. “If there’s any potential for gaming or abuse that occurs during the cure, it’s incumbent on the General Assembly to close that abuse off,” she said.

But Leslie Hanks of Colorado Right to Life, one of the groups that worked on the petitions, was incensed by the commission’s inference that the Amendment 62 campaign may have submitted duplicate signatures or attempted to exploit a loophole in the system.

“While the Secretary of State wastes time on process, children are being dismembered in abortion clinics,” Hanks said in a statement Friday. “At the same time however, we've passed on to our volunteers the backhanded compliment from the Secretary’s Best Practices Commission that our petitioners made history getting tens of thousands of signatures in record time. This is typical of the elite to try to stop the redress of grievances, but the truth will win out.” Hanks also pointed out that one member of the commission — Kevin Paul — is the general counsel for Planned Parenthood. “Of course we expect bias,” Hanks said.

Marianne@coloradostatesman.com