Colorado § 1-40-135 - Petition entities - requirements - definition.

§ 1-40-135. Petition entities - requirements - definition.

(1) As used in this section, "petition entity" means any person or issue committee that directly or indirectly provides compensation to a circulator to circulate a ballot petition.

(2) (a) It is unlawful for any petition entity to provide compensation to a circulator to circulate a petition without first obtaining a license therefor from the secretary of state. The secretary of state may deny a license if the secretary finds that the petition entity or any of its principals have been found, in a judicial or administrative proceeding, to have violated the petition laws of Colorado or any other state; to have been convicted in Colorado or any other state of election fraud, any other election offense, or an offense with an element of fraud; or to have knowingly contracted with a petition entity, or the principal of a petition entity, that has been found, in a judicial or administrative proceeding, to have authorized or knowingly permitted any of the acts set forth in subsection (2)(c) of this section. The secretary of state shall deny a license:

(I) Repealed.

(II) If no current representative of the petition entity has completed the training related to potential fraudulent activities in petition circulation, as established by the secretary of state, pursuant to section 1-40-112 (3).

(b) Repealed.

(c) The secretary of state shall revoke the petition entity license if, at any time after receiving a license, a petition entity is determined to no longer be in compliance with the requirements set forth in subsection (2)(a) of this section or if the petition entity authorized or knowingly permitted:

(I) Forgery of a registered elector's signature;

(II) Circulation of a petition section, in whole or part, by anyone other than the circulator who signs the affidavit attached to the petition section;

(III) Use of a false circulator name or address in the affidavit;

(IV) Payment of money or other things of value to any person for the purpose of inducing the person to sign or withdraw his or her name from the petition; or

(V) Repealed.

(VI) A notary public's notarization of a petition section outside of the presence of the circulator or without the production of the required identification for notarization of a petition section.

(d) The secretary of state shall revoke the petition entity license, if, at any time after receiving a license, a petition entity is determined to have knowingly contracted with a petition entity that violated a provision of subsections (2)(c)(I) to (2)(c)(VI) of this section.

(3) (a) Any procedures by which alleged violations involving petition entities are heard and adjudicated shall be governed by the "State Administrative Procedure Act", article 4 of title 24. If a complaint is filed with the secretary of state pursuant to section 1-40-132 (1) alleging that a petition entity was not licensed when it compensated any circulator, the secretary may use information that the entity is required to produce pursuant to section 1-40-121 and any other information to which the secretary may reasonably gain access, including documentation produced pursuant to subsection (2)(b) of this section, at a hearing. After a hearing is held, if a violation is determined to have occurred, such petition entity shall be fined by the secretary in an amount not to exceed one hundred dollars per circulator for each day that the named individual or individuals circulated petition sections on behalf of the unlicensed petition entity. If the secretary finds that a petition entity violated a provision of subsection (2)(c) of this section, the secretary may fine the petition entity in an amount not to exceed five thousand dollars and shall revoke the entity's license for not less than one year or more than two years. Upon finding any subsequent violation of a provision of subsection (2)(c) of this section, the secretary may fine the petition entity in an amount not to exceed five thousand dollars and shall revoke the petition entity's license for not less than two years or more than three years. The secretary shall consider all circumstances surrounding the violations in fixing the length of the revocations.

(b) A petition entity whose license has been revoked may apply for reinstatement to be effective upon expiration of the term of revocation.

(c) In determining whether to reinstate a license, the secretary may consider:

(I) The entity's ownership by, employment of, or contract with any person who served as a director, officer, owner, or principal of a petition entity whose license was revoked, the role of such individual in the facts underlying the prior license revocation, and the role of such individual in a petition entity's post-revocation activities; and

(II) Any other facts the entity chooses to present to the secretary, including but not limited to remedial steps, if any, that have been implemented to avoid future acts that would violate this article.

(4) The secretary of state shall issue a decision on any application for a new or reinstated license within ten business days after a petition entity files an application, which application shall be on a form prescribed by the secretary. No license shall be issued without payment of a nonrefundable license fee to the secretary of state, which license fee shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., to cover the cost of administering this section.

(5) (a) A licensed petition entity shall register with the secretary of state by providing to the secretary of state:

(I) The proposed measure number for which a petition will be circulated by circulators coordinated or paid by the petition entity;

(II) The current name, address, telephone number, and electronic mail address of the petition entity; and

(III) The name and signature of the designated agent of the petition entity for the proposed measure.

(b) A petition entity shall notify the secretary of state within twenty days of any change in the information submitted pursuant to paragraph (a) of this subsection (5).

Source: L. 2009: Entire section added, (HB 09-1326), ch. 258, p. 1179, § 18, effective May 15. L. 2011: (3)(a) amended, (HB 11-1072), ch. 255, p. 1106, § 7, effective August 10. L. 2018: (2)(b) and (2)(c)(V) repealed and IP(2)(c) and (2)(c)(IV) amended, (HB 18-1145), ch. 113, p. 808, § 5, effective August 8. L. 2021: (1) and IP(2)(a) amended, (2)(a)(I) repealed, and (2)(d) added, (SB 21-250), ch. 282, p. 1670, § 75, effective June 21. L. 2023: IP(2)(a), (3)(a), and (5)(a)(I) amended, (SB 23-276), ch. 399, p. 2393, § 45, effective June 6.

Cross references: (1) For the legislative declaration in the 2011 act amending subsection (3)(a), see section 1 of chapter 255, Session Laws of Colorado 2011.

(2) For the legislative declaration in HB 18-1145, see section 1 of chapter 113, Session Laws of Colorado 2018.

ANNOTATION

Licensing requirement in subsection (2)(a) and (2)(c) does not give the secretary of state unbridled discretion, the statute is content neutral, and the statute places limits on the time within which the secretary must act, therefore, the licensing requirement is not an unconstitutional prior restraint on first amendment rights. The state has an interest in the regulation of the initiative process to ensure it is fair and honest. Independence Inst. v. Gessler, 869 F. Supp. 2d 1289 (D. Colo. 2012).

Subsection (3)(a) regarding petition violation procedures does not violate the first amendment. Independence Inst. v. Gessler, 869 F. Supp. 2d 1289 (D. Colo. 2012).

The limitation in § 1-40-112 (4) on per-signature compensation for petition circulators violates the first amendment of the United States constitution. Section 1-40-112 (4) will deter most itinerant professionals from working in the state; eliminate low-volume professional circulators; and significantly increase the costs of a signature-gathering campaign. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

The cost increase associated with § 1-40-112 (4) is likely to lower the chances of underfunded proponents succeeding in the initiative and referendum process. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

The effect of § 1-40-112 (4) will be the exclusion from the initiative process of those who, through experience and self-selection, are the most efficient and effective circulators. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

To the extent § 1-40-112 (4) prevents proponents from using individuals who would most effectively convey their message to the public, the statute places a substantial burden on the proponents' first amendment rights, even if the statute only restricts proponents from using some, but not all, circulators. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

Given the availability of other effective and less burdensome statutory tools to safeguard the state's interest in reducing fraud and the number of invalid petition signatures, § 1-40-112 (4) poses an undue restriction on first amendment rights. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

The secretary of state is permanently enjoined from enforcing § 1-40-112 (4) and any ancillary statute that enforces § 1-40-112 (4), namely, this section and § 1-40-121 to the extent that those sections apply to the restriction on per-signature compensation found in § 1-40-112 (4). Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).