From:

Marilyn Marks
Date: Monday, May 9, 2016 at 5:13 PM
To: All Colorado Senators and Representatives
Subject: Ballot Initiative #98 discriminates against minor parties


Senators and Representatives,

Many concerns have been raised regarding the threat of Ballot Initiative #98. A close
examination of the details and impacts of the ballot initiative demonstrates the
absurdity of the ballot measure when applied to minor parties primaries. While minor
parties may opt-out of having unaffiliated voters participate in their primary under
#98, there may be circumstances where the minor parties prefer the broader voter
participation. In those cases, minor party candidates should not be unduly harmed by
choosing to have #98 apply. The chart shows the truly discriminatory nature of the
application of Ballot Initiative #98 on minor parties. In this year of widespread voter
disenchantment with the two major parties, a ballot measure designed to marginalize
minor parties would likely meet voter resistance at the polls.

The complexity of the treatment of minor parties is shown on the chart attached. As
one concerning example, if minor parties choose to permit unaffiliated voters to
participate in their primaries, the current law prevents unaffiliated voters from receiving
a minor party mail ballot. That prohibition is not being amended by Ballot Initiative
#98. Further, even if that statutory conflict is somehow resolved, (perhaps in the
courts), the remaining provisions may cause unaffiliated voters wishing to vote in
primaries to receive different candidate choices, depending on their county of
residence and whether "combined ballots" are used in their counties. Additionally,
polling place voters could only vote for major party candidates under the provisions of
#98. Hopefully the chart will make this these inequities clearer.

There are other concerns with the #98 scheme beyond the minor party
impacts that are better articulated in a separate memo. The problems and
discrimination against minor parties and their candidates depicted by this chart,
however, would seem reason enough for the ballot initiative sponsors to reconsider
their plans to take this #98 to the citizens for a vote.

I apologize for the complexity of the chart. but I didnt write the convoluted ballot
initiative language! This is the best I can do attempting to boil it down to specifics, while
showing the problems. In short, its a mess!

Please let me know if you have questions.

Marilyn Marks


Application of Initiative #98 and Impacts on Minor Parties

Discriminatory policies harm minor parties.

Minor parties conduct state primaries. #98 permits minor party to opt-out of participation of
Unaffiliated (UNA) voters. Provisions are discriminatory if minor parties permit UNA voters.
Methods of ballot distribution
In-person voting

Mail ballot

Absentee ballot
(away from home
mailing address)

Notes

Initiative #98 as written (including conflict with current statute*)

At polling place,
UNA voter may
obtain only a major
party ballot.

Minor party ballots

cannot be mailed to
UNA voters.
(C.R.S. 1-7.5-107(3)(a)(II))

Minor party ballots

UNA voters cannot vote for minor
cannot be mailed to UNA party candidates without
voters.
additional change of law or
resolution in court.
(C.R.S. 1-7.5-107(3)(a)(II))

Ballot procedures if conflict is resolved**

If mail ballot statutory prohibition is resolved** and combined ballot is used:
At polling place,
UNA voter may
vote only a major
party ballot.
(Section 9 of #98)
(provision unclear)

UNA voter receives

combined ballot with
major AND minor
parties, but can vote
for major party
candidates only.

UNA voter receives a

combined ballot for
major AND minor
parties.
(Section 11 of #98)

Polling place and mail ballot UNA

voters prevented from voting for
minor candidates. But mail voters
can vote for minor party
candidates.

(Section 3 of #98, which

adds C.R.S. 1-4-101(2)(a))

If mail ballot statutory prohibition is resolved** and if combined ballot is not practical:
At polling place,
UNA voter may
obtain only a major
party ballot.
(Section 9 of #98)
(provision unclear)

UNA voter receives

ballots for major
parties but no ballots
for minor parties.

UNA voter receives

major AND minor
parties ballots. UNA
voter may vote in only
one primary. (Unclear;
(Section 3 of #98, which
adds C.R.S. 1-4-101(2)(a)) may mean only one
partys primary election.)
(Section 11 of #98)

UNA mail ballot voters and polling

place voters are restricted to
major party ballots. UNA absentee
voters are permitted to vote
major or minor party ballots.
Consider CD1 and CD3 with 20+
counties, where UNA voters
receive different candidate
choices based on counties
combined ballot availability.

* C.R.S. 1-7.5-107(3)(a)(II). For a primary mail ballot election for a minor political party candidate, the mail ballot pack-
et shall be mailed only to those registered electors who are affiliated with the minor political party of such candidate.
** These scenarios assume that a court may rule that C.R.S. 1-7.5-107(3)(a)(II) was superseded by passage of #98,
although the #98 language does not lift the prohibition on mailing minor party ballots to unaffiliated voters.

Chart prepared by Marilyn Marks and Mary Eberle, 5.9.16