Perhaps the most hard-fought Senate race this year will be Colorado’s showdown between Democratic senator Mark Udall and Republican congressman Cory Gardner. The RealClearPolitics average of polls in the race shows Gardner holding a lead of 1.3 percentage points. The outcome may determine control of the U.S. Senate, and the margin of victory could be less than the 11,000-vote margin by which Democratic senator Michael Bennet was reelected in Colorado in 2010.
But there is a significant difference in this year’s Senate race. In 2013, a new Democratic state legislature rammed through a sweeping and highly controversial election law and convinced Democratic governor John Hickenlooper to sign it. The law, known as House Bill 1303, makes Colorado the only state in the country to combine two radical changes in election law: 1) abolishing the traditional polling place and having every voter mailed a ballot and 2) establishing same-day registration, which allows someone to appear at a government office and register and vote on the same day without showing photo ID or any other verifiable evidence that establishes identity. If they register online a few days before, no human being ever has to show up to register or vote. A few keystrokes can create a voter and a “valid” ballot. ​Once a ballot cast under same-day registration is mixed in with others, there is no way to separate it out if the person who voted is later found ineligible. Other jurisdictions that have same-day registration, such as Washington, D.C., treat the vote as a provisional ballot pending verification. Colorado immediately counts the vote.
“We have uniquely combined two bad ideas, both of which open the door to fraud and error along with creating huge administrative headaches,” warns Republican Scott Gessler, Colorado’s secretary of state. Along with the liberal Denver Post (the state’s leading newspaper) and a few Republican clerks from the state’s largest counties, Gessler fought passage of the law.
Wayne Williams is the clerk of El Paso County, which includes Colorado Springs, the state’s second-largest city. He says HB 1303 was sold as a way to “modernize” elections and increase turnout, but it’s fixing a system that wasn’t broken. In 2012, Colorado was among the top three states in the turnout of eligible citizens. Its number of registered voters that year climbed 13.7 percent, well above normal population growth. At the same time, the state’s online voter-registration system processed 250,000 changes submitted by voters, ensuring a more accurate and less duplicative record of the electorate.
Colorado’s system works well enough that when progressive activists placed a measure on the state’s ballot to impose same-day registration in 2002, it was rejected by more than 60 percent of voters despite a massive spending advantage for same-day-registration supporters. “There was general agreement it wasn’t needed and would increase fraud and confusion,” Bill Cadman, minority leader of the state senate, told me. He notes that on the same day Colorado rejected same-day voter registration in 2002, voters in liberal California rejected it by a similar landslide.
Having suffered stinging defeat at the polls, advocates of same-day registration were careful in 2013 to have it approved by the state legislature instead of the people. They rammed through the bill without any bipartisan input. It allowed those running voter-registration drives to delay delivery of the registrations they accepted, reducing the time available to check the data on them. It stripped county clerks of the ability to review new voter registrations and forced every Colorado voter to receive a mail ballot, including 800,000 who had clearly expressed their desire to vote only at polling places. Ballots will be mailed to people who don’t vote and no longer live in Colorado, because the law makes it very difficult to remove names from the voting rolls.
Williams, the El Paso County clerk, warns that the law “takes us back to the corruption of 19th-century Tammany Hall” and will reduce public confidence in the integrity of the balloting. Having voting conducted on an “honor system” is one thing, but Colorado’s law actually creates incentives for mischief that would test the honor of many campaign workers. Williams’s office has posted a video to YouTube showing just how easy it is to commit fraud in this election; Williams is also sharing tips to prevent fraud.
All mail-in ballots in Colorado will be ripe for abuse because “ballot harvesters” are allowed to go door-to-door and collect up to ten ballots with no effective enforcement if they collect more and deliver them at other times. Amazingly, these operatives can be paid based on the number of ballots they collect. The potential for harvesters to pressure voters to turn over ballots, open ballot envelopes, alter ballots, or even throw them away is real. “Voters would never hand over their credit card numbers to strangers ringing their doorbell, but they’re allowed to surrender their ballot,” says Marilyn Marks of the Rocky Mountain Foundation, an election-integrity group. She notes that secrecy controls are so lax that election workers who receive mail-in ballots can figure out how individuals voted in many counties.
Secretary of State Gessler says the same-day-registration provisions of HB 1303 create added potential for mischief. “We were told that eleven other states have that system, but during legislative debate, warnings based on the experience of those states were ignored,” he told me.
One of the examples he cites is Wisconsin. In 2008, a 68-page Milwaukee Police Department report confirmed that in the last presidential election, claims that thousands “more ballots [were] cast than voters recorded were found to be true.” The report found that there had been an organized effort by political operatives from out of state to swing the election. It concluded “that the one thing that could eliminate a large percentage of fraud or the appearance of fraudulent voting in any given election is the elimination of the on-site or same-day voter registration system.”
Gessler also point to Minnesota. A statewide watchdog group called Minnesota Majority scoured the 2008 election results and identified 1,099 felons who had voted illegally. Even though violators must essentially admit their crime before they can be charged, prosecutors managed to secure 177 convictions of fraud by felons. Such numbers matter — in 2008, Al Franken won his disputed Senate race by only 312 votes, and a local TV station found that nine out of ten illegal felon voters in that race said they had cast ballots for Franken. The Minnesota Majority report concluded that “while some ineligible felon voters registered in advance of the election and should have been flagged for challenge, the overwhelming majority who evaded detection used Election Day registration, which currently has no mechanism to detect or prevent ineligible voters.”
Gessler hopes his fears about election chicanery in Colorado will prove unwarranted, but he is concerned that the effort to “politicize” election laws will spread to other states. “Colorado didn’t need these changes,” he says. “We had one of the highest of all voter turnouts, and people could register everywhere, from online sites to the DMV. We can make it easy to vote and tough to cheat, but the law here now makes it impossible to maintain a healthy balance in both areas.”
Opponents of HB 1303 worry that because the new law leaves the door wide open for fraud, it could cast a taint over the results in this November’s critical races for senator, representatives, governor, and state attorney general. They advise people to treat their mail-in ballot as if it were cash and cast it in person at their local clerk’s office or at “voter service centers” that are authorized to receive them. “Treasure what your ballot represents,” says Marilyn Marks. “It’s your voice in how we govern ourselves.”
