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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/17/2006 - FIRST READING OF ORDINANCE NO. 165, 2006, ESTABLIS ITEM NUMBER: 18 AGENDA ITEM SUMMARY DATE: October 17, 2006 FORT COLLINS CITY COUNCIL STAFF: Wanda Krajicek SUBJECT First Reading of Ordinance No. 165, 2006, Establishing Local Provisions for the Conduct of Mail Ballot Elections. RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. g EXECUTIVE SUMMARY This Ordinance establishes local provisions for the conduct of mail ballot elections in Fort Collins and supersedes Title 1, Article 7.5 of the Colorado Revised Statutes, as well as any rules and regulations promulgated by the Secretary of State regarding mail ballot elections. BACKGROUND In 1990, the state legislature enacted the Mail Ballot Election Act (Title 1, Article 7.5, C.R.S), effective January 1, 1991. In doing so, the legislature declared mail ballot elections to be cost- efficient and determined that mail ballot elections have not resulted in increased fraud. The City of Fort Collins conducted its first mail ballot election in 1995, and has exclusively used mail ballot for all of its elections (except those coordinated with Larimer County) since then. The use of mail ballots has proven to significantly increase voter turnout: Year Polling Place Year Mail Ballot 1977 19.52% 1995 42.07% 1979 61.08% 1997 25.04% 1981 23.55% 1999 58.48% 1983 35.44% 2001 35.21% 1985 17.17% 2003 51.26% 1987 20.12% 2005 43.46% 1989 14.92% 1991 24.38% 1993 17.91% Note: A key ballot issue in 1979 was legalization of marijuana. October 17, 2006 -2. Item No. 18 Article XX, Section 6 of the Colorado Constitution gives home rule municipalities the power to regulate and control all matters pertaining to municipal elections. The citizens of Fort Collins have previously exercised that power by enacting local provisions relating to initiative and referendum. In 2000, the Council enacted local campaign finance provisions, superseding the state's Fair Campaign Practices Act. This Ordinance further establishes local control over elections by enacting provisions relating to the conduct of mail ballot elections. The provisions in this Ordinance are similar in many ways to the provisions contained in the Mail Ballot Election Act. However,continual legislative changes to the Mail Ballot Election Act and the rules and regulations promulgated by the Secretary of State regarding the conduct of mail ballot elections have resulted in conflicting provisions and the imposition of regulations which unnecessarily complicate the conduct of municipal elections and inflate the cost of an election. For example, prior to the City's regular election in April 2005, the Secretary of State changed the rules to require that a secrecy envelope be sealed on at least two sides. Previously, the requirement to have a secrecy envelope could be satisfied by having a ballot which, when folded as instructed, would conceal the votes. All of the City's ballots since 1995 have required using only the front side of the ballot to list the candidates and issues. The back side of the ballot has contained instructions. Therefore,folding the ballot so that the votes were concealed on the inside and the instructions were showing on the outside provided sufficient secrecy. For the September 12, 2006 special election, the cost for the secrecy envelope was $7,000. The inclusion of a secrecy envelope in the ballot package pushed the weight of the package over one ounce. The additional postage because a secrecy sleeve was included was $1,648. In another example, the Secretary of State rules allow election officials to open ballots and begin counting (tabulating) 10 days prior to the election. This always falls on Saturday. In a typical election, the entire staff of the Clerk's Office, as well as several employees from other departments work 8-10 hours on that Saturday processing the approximately 10,000 ballots that have been returned. The majority of those employees are paid overtime for that day. This Ordinance provides that ballots may be opened and counted 14 days prior to the election,which will allow staff to keep up with the processing demand during normal business hours, thus reducing overtime expenses. This Ordinance, if adopted, will embody regulations pertaining to mail ballot elections in a single set of laws, thereby eliminating confusion caused by the need to be familiar with the requirements of the state statutes and the rules promulgated by the Secretary of State. It will also provide Council the flexibility to amend the regulations to meet the City's desire to efficiently use General Fund revenues, while still providing for secure and accurate elections. ORDINANCE NO. 165, 2006 OF THE COUNCIL OF THE CITY OF FORT COLLINS ESTABLISHING LOCAL PROVISIONS FOR THE CONDUCT OF MAIL BALLOT ELECTIONS WHEREAS,the conduct of certain elections by mail ballot has been permissible in the State of Colorado since 1991; and WHEREAS,provisions governing the conduct of mail ballot elections were enacted as a part of the Uniform Election Code of 1992 (the "UEC"), which is applicable to all general, primary, congressional vacancy, school district, special district, ballot issue, and other authorized elections in Colorado; and WHEREAS, State law provides that municipalities are generally governed by the Colorado Municipal Election Code of 1965 (the "MEC"), unless a municipality provides by ordinance or resolution that it will utilize the requirements and procedures of the UEC in lieu of the MEC; and WHEREAS,the City of Fort Collins has conducted its regular municipal elections, as well as some special elections, by mail ballot since 1995, pursuant to the Charter and Code of the City of Fort Collins, the MEC, C.R.S. Title 1, Article 7.5 (the "Mail Ballot Election Act"), and rules promulgated by the Colorado Secretary of State regarding the conduct of mail ballot elections (the "Rules"); and WHEREAS,legislative changes to the Mail Ballot Election Act and frequent changes to the Rules have resulted in conflicting provisions and the imposition of regulations which unnecessarily complicate the conduct of municipal elections and inflate the cost of an election; and WHEREAS,under Article XX,Section 6 of the Colorado Constitution,all matters pertaining to municipal elections in the City, including, without limitation, "securing the purity of elections (and)guarding against abuses of the elective franchise,"are matters of purely local concern that are subject to regulation by the Charter or ordinances of the City; and WHEREAS, Article VIII, Section 1 of the City Charter states that municipal elections are governed by State law only as to matters not covered by the State Constitution or the City Charter or City ordinances; and WHEREAS,for the foregoing reasons,the City Council believes it to be in the best interests of the City to its own mail ballot provisions; and WHEREAS,it is the intent of the City Council in adopting this Ordinance to entirely occupy the field of regulating the conduct of City elections and the manner in which a mail ballot election is conducted; and WHEREAS, to the extent that the provisions of this Ordinance conflict with the state Mail Ballot Election Act,or any rules and regulations regarding mail ballot elections promulgated by the Colorado Secretary of State,it is further the intent of the City Council that the provisions hereof shall supersede any such conflicting provisions. NOW,THEREFORE,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That a new Article VIII be added to Chapter 7 of the Code of the City of Fort Collins to read as follows: ARTICLE VIII. MAIL BALLOT ELECTIONS See. 7-180. Legislative declaration. The City Council hereby finds,determines,and declares that self-government by election is more legitimate and better accepted as voter participation increases. The City Council further finds, determines, and declares that mail ballot elections are cost-efficient and have not resulted in increased fraud. By enacting this Article, the City Council hereby concludes that it is appropriate to provide for mail ballot elections under specified circumstances. See. 7-181. Definitions. The following words,terms and phrases,when used in this Article,shall have the meanings ascribed to them in this Section: Absentee ballot shall mean a ballot transmitted to an eligible elector at an address or location other than the residential or mail address of the elector as shown in the county's voter registration records. Active registered elector shall mean a person residing in the City who is registered to vote in City elections and who is listed in the county's voter registration records as an "Active" voter. Ballot shall mean the list of all candidates and ballot measures upon which an eligible elector is entitled to vote at an election. Election shall mean any regular or special municipal election held pursuant to the Charter,the Code,the"Uniform Election Code of 1992"or the"Colorado Municipal Election Code of 1965", and which is not coordinated with the County pursuant to Section 1-7-116, C.R.S. -2- Election day shall mean the date either established by the Charter or determined by the City Council to be the final day on which all ballots are determined to be due, and the date from which all other dates in this Article are set. Election worker shall mean the City Clerk,an employee of the City Clerk,or any other person designated by the City Clerk to participate in the conduct of an election. Eligible elector shall mean a person who meets the specific requirements for voting at a specific election or for a specific candidate or ballot measure. Mail ballot election shall mean an election in which eligible electors cast ballots by mail in accordance with this Article. Mail ballot packet shall mean the packet of information, including an official ballot, provided by the City Clerk to eligible electors in a mail ballot election. Poll book shall mean a list of eligible electors including sufficient identifying information about each elector, the style and number of the ballot issued to each elector, and the receipt and status of the ballot returned by the elector. Replacement ballot shall mean a mail ballot packet provided to any eligible elector who did not receive a mail ballot packet for any reason, or who is unable to use the mail ballot packet originally received by the elector. Return envelope shall mean an envelope provided in a mail ballot packet for the purpose of returning a voted ballot to the City Clerk that contains the name and address of an eligible elector voting in a mail ballot election, and that is designed to allow election workers,upon examining the signature,name,and address,that appear on the outside of the envelope, to determine whether the enclosed ballot is being submitted by an eligible elector who has not previously voted in that particular election. Secrecy envelope or secrecy sleeve shall mean the envelope or sleeve provided in a mail ballot packet that is designed to conceal and maintain the confidentiality of the elector's vote until the counting of votes for that particular election. Secrecy envelope or secrecy sleeve shall also include a paper ballot which may be folded so that the elector's vote is concealed when the ballot is removed from the return envelope. Undeliverable ballot shall mean a mail ballot packet that the U.S.Postal Service is unable to deliver to the intended recipient and which is returned to the City Clerk. -3- Sec. 7-182. Mail ballot elections authorized. The City Clerk is hereby authorized to conduct any regular or special municipal election which is not coordinated with the County pursuant to Section 1-7-116, C.R.S. by mail ballot in accordance with the provisions of this Article. Sec. 7-183. Duties of the City Clerk. The City Clerk shall: (1) prescribe the form of materials to be used in the conduct of mail ballot elections consistent with the provisions contained in this Article; (2) establish procedures for conducting mail ballot elections consistent with the provisions contained in this Article; (3) supervise the conduct of mail ballot elections; (4) employ temporary election workers as needed; and (5) take all necessary steps to protect the confidentiality of the ballots cast and the integrity of the election. Sec. 7-184. Notice of election. (a) No later than twenty(20)days before an election conducted pursuant to this Article, the City Clerk shall provide notice by publication of a mail ballot election, which notice shall state, as applicable for the particular election for which the notice is provided, the following: (1) The date of the election; (2) The hours during which the polls will be open on election day; (3) The address of the walk-in location for the delivery of mail ballots and the receipt of replacement ballots,and the hours during which the walk-in location will be open; (4) The address of the location for the application for, and the return of, absentee ballots and the hours during which the office will be open. (b) The notice required to be given by this Section shall be in lieu of the notice requirements set forth in Section 31-10-501(1), C.R.S. -4- Sec. 7-185. Form of ballots. (a) The top portion of each ballot shall be divided by a perforated line. The portion above the perforated line shall be known as the ballot stub and shall have printed on it a sequential ballot number. The ballot stub may also have printed on it other information,including but not limited to the precinct number,Council district number,job sequencing information used by the printer, or instructions. (b) The ballot shall contain the following warning: "WARNING: Any person who, by use of force or other means, unduly influences an eligible elector to vote in any particular manner or to refrain from voting, or who falsely makes,alters,forges,or counterfeits any mail ballot before or after it has been cast, or who destroys, defaces, mutilates, or tampers with a ballot is subject,upon conviction,to imprisonment,or to a fine,or both." (c) The return envelope shall have printed on it a self-affirmation substantially in the following form: "I state under penalty of perjury that I am an eligible elector; that my name and address are as shown on this envelope;that I have not and will not cast any vote in this election except by the enclosed ballot; and that my ballot is enclosed in accordance with the provisions of the Code of the City of Fort Collins." (d) The signing of the self-affirmation on the return envelope shall constitute an affirmation by the voter,under penalty of perjury,that the facts stated in the self-affirmation are true. Sec. 7-186. Mailing of ballots; exception. (a) No sooner than twenty-five(25)days before an election,and no later than fifteen(15)days before an election,the City Clerk shall mail to each active registered elector, at the last mailing address appearing in the registration records and in accordance with United States postal service regulations,a mail ballot packet,which shall be marked"DO NOT FORWARD",or with any other similar statement that is in accordance with United States postal service regulations. (b) In the event that unusual circumstances exist that may delay the mailing of ballots in accordance with subsection (a) above, the City Clerk, with the written approval of the City Manager,is authorized to mail the ballots no later than(10)days before an election. For the purposes of this provision, unusual circumstances shall include,but not be limited to,extreme weather conditions such as blizzard or flood, -5- equipment failure, labor work stoppage or slowdown, or other events outside the City's control. Sec. 7-187. On-site polling place. No sooner than twenty-five(25)days prior to election day and no later than 7:00 p.m. on election day, mail ballots shall be made available at the office of the City Clerk, or such other location as may be established by the City Clerk, for eligible electors who need to obtain a replacement ballot. Sec. 7-188. Replacement ballots. (a) An eligible elector may obtain a replacement ballot if: (1) the ballot was destroyed, spoiled, lost, or for some other reason not received by the eligible elector; (2) a mail ballot packet was not sent to the elector because the eligibility of the elector could not be determined at the time the mail ballot packets were mailed; (3) the eligible elector was listed as "inactive" in the county's voter registration records; or (4) the eligible elector presents any other credible evidence that he or she is entitled to receive a replacement ballot. (b) A request for a replacement ballot may be made in writing, by mail, by fax, by telephone, or in person. (c) An eligible elector requesting a replacement ballot must sign a sworn statement specifying the reason for requesting the ballot. If an eligible elector requests a replacement ballot in person, the statement shall be completed before a replacement ballot is issued to the elector. If a request for a replacement ballot is not made in person, the City Clerk may transmit the statement with the ballot package. The statement must be returned to the City Clerk no later than 7:00 p.m. on election day in order for the ballot to be counted,and such statement may be returned with the ballot. Sec. 7-189. Absentee voting. (a) Any eligible elector may request that an absentee ballot be transmitted to a place other than the elector's address listed in the voter registration records. Requests for absentee ballots must be made in writing and shall include the elector's -6- name,residence address,date of birth, and address where the absentee ballot should be mailed. (b) A request for an absentee ballot may be filed any time after January 1 of the year of the election,but not later than the close of business on the Friday prior to the election,except that,if the applicant wishes to receive the absentee ballot by mail, the application shall be filed no later than the close of business seven (7)days prior to election day. (c) Upon receipt of a request for an absentee ballot,and as soon as ballots are printed and available, the City Clerk shall transmit an absentee ballot to the elector at the address given in the request for an absentee ballot. If the timing of a request for an absentee ballot is such that ballots will not be printed in sufficient time to accommodate the unique circumstances of the elector's request, the City Clerk is authorized to prepare a substitute paper ballot containing all races and questions applicable to the elector,provided the elector acknowledges in writing that the City Clerk may transfer the elector's vote to an official ballot for counting purposes. (d) If an eligible elector requests delivery of an absentee ballot to an address outside of the United States and it appears unlikely in the judgment of the City Clerk that the absentee ballot will be delivered to the elector in sufficient time to allow the elector to vote the ballot and return it to the City Clerk before 7:00 p.m. on election day,the City Clerk is authorized to use any reasonable method to provide the elector an opportunity to vote, provided the method is acceptable to the elector and the elector acknowledges in writing that he or she has agreed to vote in the method offered and has further agreed that the City Clerk may transfer the elector's vote to an official ballot for counting purposes. Sec. 7-190. Voting and return of ballots. (a) Upon receipt of a ballot,the eligible elector shall mark the ballot,sign and complete the return envelope, and comply with the instructions provided with the ballot. (b) The eligible elector may return the marked ballot to the City Clerk by United States mail or by depositing the ballot at the office of the City Clerk or any place designated by the City Clerk. The ballot must be returned in the return envelope. If an eligible elector returns the ballot by mail, the elector must provide the necessary postage. In order to be counted, the ballot must be received at the office of the City Clerk or a designated depository prior to 7:00 p.m. on election day. (c) Ballots received by the City Clerk after 7:00 p.m.on election day shall not be counted, but shall be preserved in accordance with § 7-194. -7- Sec. 7-191. Receipt and qualification of ballots. (a) All ballots, including undeliverable ballots, shall be marked to indicate the date the ballot was received by the City Clerk. (b) Upon receipt of a voted ballot, an election worker shall first qualify the submitted ballot by examining the return envelope to determine whether the ballot was submitted by an eligible elector who has not previously voted in the election and whether the self-affirmation on the envelope is signed and completed by the eligible elector to whom the ballot was issued. If the ballot so qualifies and is otherwise valid, the election judge shall indicate in the poll book that the eligible elector cast a ballot, and shall prepare the ballot for counting in accordance with § 7-193. (c) If an election worker is unable to qualify the ballot as set forth in subsection(b)above,the ballot shall be rejected and the reason for rejection shall be indicated in the poll book. Rejected ballots shall remain unopened and shall be securely stored separate from qualified ballots unless such ballots are corrected as provided in § 7-192. (d) If an election worker determines that an eligible elector to whom a replacement ballot has been issued has voted more than once,the City Clerk shall not count any ballot cast by the elector. Sec. 7-192. Rejected ballots. The City Clerk is authorized, but not required, to make a reasonable effort to allow an eligible elector whose ballot has been rejected to correct the deficiency causing rejection. No elector shall be allowed to correct a deficiency without first producing valid proof of identification. Sec. 7-193. Counting mail ballots. Counting of mail ballots may begin fourteen (14) days prior to the election and continue until counting is completed. The City Clerk shall take all precautions necessary to ensure the secrecy of the counting procedures, and no information concerning the count shall be released by election workers until after 7 p.m. on election day. Sec. 7-194. Revealing how elector voted. Any election worker, watcher, or person who assists another person in voting who reveals how a voter has voted commits a misdemeanor and is subject to a fine or imprisonment in accordance with § 1-15. -8- Sec. 7-194. Preservation of election records; destruction. (a) All election records, including but not limited to voted ballots, rejected ballots,absentee ballots,undeliverable ballots,return envelopes,ballot stubs,unused ballots, application forms, and poll books, shall be securely stored following an election and shall be preserved for at least six (6) months following a regular or special election. The provisions of this paragraph (a) shall not apply to secrecy envelopes separated from voted ballots during preparation of ballots for counting. (b) Individual pieces of printed information that were intended to be used in the assembly of mail ballot packets, such as envelopes, secrecy envelopes, and instructions, that were never assembled into a mail ballot packet may be destroyed on the day immediately following election day. The provisions of this paragraph(b) shall not apply to ballots. (c) All records preserved pursuant to paragraph (a) of this Section shall be destroyed by fire or shredding after the period of preservation has expired. Sec. 7-195. Validity of election. No mail ballot election held pursuant to this Article shall be invalidated on the grounds that an eligible elector did not receive a ballot so long as the City Clerk acted in good faith in complying with the provisions of this Article. Sec.7-196. Severability. If any provision of this Article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Article which can be given effect without the invalid provision or application,and to this end the provisions of this Article are declared to be severable. Introduced, considered favorably on first reading, and ordered published this 17th day of October,A.D. 2006, and to be presented for final passage on the 7th day of November,A.D. 2006. Mayor ATTEST: City Clerk -9- Passed and adopted on final reading on the 7th day of November, A.D. 2006. Mayor ATTEST: City Clerk -10-