CO House Bill 09-1326

Legislation

State: Colorado
Signed: May 19, 2009

Effective: May 19, 2009
Chapter: 258

Summary

In an effort to stem abuse and fraud in the statewide citizen-initiated petition process, Colorado HB 09-1326 sets stringent procedures for the notarization of a circulator’s affidavit, imposes penalties for fraud and permits electors to commence civil actions against persons, including Notaries, who perpetrate fraud.

Notary and notarization provisions take effect May 15, 2009. Other sections of the bill take effect July 1, 2009 and January 1, 2010.

Affects

Creates Section 1-40-135 in and amends Sections 1-40-102, 1-40-106, 1-5-407, 1-40-101, 1-40-102, 1-40-106, 1-40-107, 1-40-108, 1-40-109, 1-40-110, 1-40-111, 1-40-112, 1-40-113, 1-40-115, 1-40-115, 1-40-117, 1-40-118, 1-40-121, 1-40-130, 1-40-134, and 32-9-119.3 of the Colorado Revised Statutes.

Changes

Prohibits a Notary from notarizing a circulator’s affidavit unless the circulator (signer) is in the physical presence of the Notary
Prohibits a Notary from notarizing a circulator’s affidavit unless the circulator has dated the affidavit and fully and accurately completed all of the personal information on the affidavit.
Prohibits a Notary from notarizing a circulator’s affidavit unless the circulator presents a form of identification, as prescribed by CRS 1-1-104 (19.5). (Note: acceptable identification under this statute is one of the following valid IDs provided the ID shows the address of the elector in the state of Colorado: (a) a Colorado driver’s license; (b) an identification card issued by the department of revenue; (c) a U.S. passport; (d) an employee identification card with a photograph of the issued by any branch, department, agency, or entity of the U.S. government or of Colorado, or by any county, municipality, board, authority, or other political subdivision of Colorado; (e) a pilot’s license issued by the Federal Aviation Administration or other authorized agency of the U.S.; (f) a U.S. military identification card with a photograph; (g) a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the elector; (h) a Medicare or Medicaid card issued by the U.S. Health Care Financing Administration; (i) a certified copy of a birth certificate for the elector issued in the U.S.; (j) certified documentation of naturalization; or (k) a student identification card with a photograph issued by an institution of higher education in Colorado.)
Requires a Notary to specify the form of identification presented to him or her on a blank line, which shall be part of the affidavit form.
Clarifies that a circulator’s affidavit shall be invalid if it is notarized in violation of the new notarization rules and the date signed by a circulator on the affidavit is different from the date signed by the Notary. The new law further clarifies that if a Notary notarizes an affidavit that has not been dated by the circulator, the notarization date shall not cure the circulator’s failure to sign the affidavit.
Prescribes up to a $1,500 fine, imprisonment for up to one year, or both a fine and imprisonment for any person (including a Notary) who willfully violates any provision of Article 40 of Title 1 of the CRS (including the notarization provisions).
Requires the Secretary of State to produce training for paid and unpaid circulators.
Directs the Secretary of State to reject any section of a petition that does not have a valid notarized affidavit attached that complies with the new rules.
Directs the proponents of a petition or a committee acting on the proponents’ behalf to maintain a list of Notaries who notarized petition sections on behalf of the proponents and the petition section numbers that each circulator circulated and that each Notary notarized and file a copy of the list with the Secretary of State along with the petition. The list shall become public information upon filing with the Secretary.
Permits any registered elector to commence a civil action to recover reasonable attorney fees and costs from any person (including a Notary) found by the district court to have committed fraud with regard to petition circulation, invalid signatures or petition sections.
Declares that written entries made by Notaries on a petition section that substantially complies with the requirements of the law shall be deemed valid by the Secretary of State or any court, unless: (a) fraud, as specified in CRS 1-40-135(2)(c)(i)-(iv) and (vi) is established by a preponderance of the evidence (subsection vi is the authorization or knowing permission of a notarization outside of the presence of the Notary or without producing the required identification for notarization of a petition section); (b) a violation of any provision of CRS 1-40-101 et seq. or any law that prevents fraud, abuse, or mistake in the petition process, is established by a preponderance of the evidence; or (c) a circulator used a petition form that does not comply with the provisions of CRS 1-40-101 et seq. or has not been approved by the Secretary.
Directs the Secretary of State to revoke the license of a petition entity if a petitioner or petition entity authorized or knowingly permitted a Notary’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.

Analysis

Citing certain abuses and frauds during the 2008 general election — including problems with the notarization of circulator’s affidavits, the Colorado General Assembly has passed major reforms to the laws governing the statewide citizen-initiated petition process. In order to have an initiative on the ballot, circulators must obtain the necessary number of signatures of qualified electors and then have their signatures notarized. House Bill 09-1326 prohibits a Notary from notarizing the signature of a circulator unless the circulator is in the Notary’s presence and has properly dated and supplied the personal information needed. In addition, the Notary is prohibited from notarizing the affidavit unless the circulator provides a qualifying identification document with a Colorado residence address and the Notary writes this identification on the affidavit. This latter requirement is problematic from the standpoint that certain IDs a circulator could present to the Notary — a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the elector — do not meet the requirement of the law for a notarization generally. In order to perform a notarial act under CRS 12-55-110, an ID must be a current identification card or document issued by a federal or state government entity containing a photograph and signature. Thus, CRS 1-40-111(2)(b)(i)(C) as amended by the Act must be understood to present a requirement for an additional type of ID for the proper notarization of the circulator’s affidavit, if that ID is not an identification document acceptable under CRS 12-55-110. HB 09-1326 also strengthens penalties for frauds involving circulator’s affidavits — up to a $1,500 fine and imprisonment for a year, or both. With the new notarization provisions, these penalties would apply to a Notary who performs a notarization on a circulator’s affidavit in violation of the statute. Equally applicable to Notaries is a new provision allowing any registered elector to commence a civil action to recover reasonable attorney fees and costs from any person found by the district court to have committed fraud with regard to petition circulation, invalid signatures or petition sections. As for the improper notarizations performed on circulator’s affidavits, the new law is very clear in stating that these notarial acts are invalid and must be rejected by the Secretary of State.

Read House Bill 09-1326.