Colorado’s Republican Challengers For Senate Run Into Messy Nominating Process

Ryan Warner: It's been messy on the Republican side of Colorado's U.S. Senate race, with four candidates who circumvented the party convention and petitioned to get onto the Primary ballot. One of those candidates, former state Rep. Jon Keyser, may have landed on the ballot with forged signatures. Earlier this month, 7News Investigative Reporter, Marshall Zelinger, went door to door to talk to people whose names appeared on the petitions. Keyser, who lives in Morrison, has said the signatures appear to be fraudulent but says he wasn't aware of the problem.

The Denver District Attorney's Office is reviewing the signatures. Keyser remains on the ballot and has said he'll stay in the race. This made us want to take a closer look at the intricate process Colorado candidates must use to gather signatures for the ballot. Suzanne Staiert is Colorado's Deputy Secretary of State. I want to say that the Elections Division has also come under some scrutiny in this matter. And Suzanne, welcome to the program.

Suzanne Staiert: Thank you, thanks for having me.

Warner: So four candidates as we said filed petitions for US Senate this year, all Republicans. Why would candidates choose to petition onto the ballot, compared to the more traditional route of being nominated at the state convention?

Staiert: So there are two ways to get on the ballot in Colorado. You can go through the assembly process in which case you need 30% of the vote at the assembly to be on the ballot. Or you can go through the petition process. The petition process, if you follow the rules, and submit your petitions in advance, it will guarantee you access to the ballot where the state assembly process obviously is up to the vote, up to the people at the assembly.

Warner: And with as many candidates as were on the Republican side, getting 30% becomes more difficult.

Staiert: Well and certainly when you factor in how many people were originally running, do the math, and we had eight or nine people running for Senate and certainly they can't all make the ballot at the Assembly.

Warner: Is there a trend toward more candidates taking the petition route?

Staiert: It's difficult to tell. Back in 2014 we only had four petitions submitted for partisan primary elections. This year we've had twenty. Last year we had two in statewide races which was the gubernatorial race and this year we had four. For the Senate.

Warner: For the Senate. Twenty in that other year. 

Staiert: Twenty this year. We only had four the previous year for all the races. So we're talking beyond statewide races, races for State Senate or State House.

Warner: Got it. But hard to say if there's a trend or if it just varies naturally from year to year.

Staiert: Right.

Warner: At that Denver Post debate, Mr. Keyser said the petition process, that is to get on the primary ballot, is "the most complicated that we have probably anywhere in the country". Would you agree with that?

Staiert: Well, it's complicated for the candidate but we've seen petitions submitted by sophisticated grassroots organizations that have a 97% rate of acceptance. So I don’t know whether it's the most complicated in the country. I think if you read the rules and you submit a clean petition, the dates and the numbers aren't that hard to figure out.

Warner: The idea here is that you collect signatures from 1500 voters in each of the state's congressional districts. Is that correct?

Staiert: For statewide races, that's right, 1500 in each of the seven.

Warner: So Keyser, like many candidates these days, hired a company to collect the signatures for him. These companies pay people to get voters to sign. Those folks are called Petition Circulators and they might approach you outside a supermarket for instance. What qualifications do circulators have to have?

Staiert: Well for candidate petitions, circulators have to be registered to vote with the party for which they're collecting. Beyond that, they have to be eighteen, they have to be eligible electors. 

Warner: All right. And this process works a bit differently than getting an issue onto the ballot we should say, to make a distinction there. These circulators are often paid per signature or with a combination of base pay and per signature payments. Paying for a signature used to be illegal in Colorado but a court ruled that banning per-signature payments was an infringement on free speech, the right to petition governments. But do you think that it provides an incentive for people to forge signatures when they are paid per signature?

Staiert: I think it does and that's the argument we made in federal court a few years ago when we were sued by the Independence Institute over the paper signature law. That paying people to gather per-signature would lead to fraud, would be harder to enforce, those kinds of arguments were presented to the judge but in that federal case the judge determined that it was a violation of the First Amendment to have a law banning paper signature.

Warner: When was that case?

Staiert: It was decided about three years ago. It was in litigation a couple years.

Warner: And in that time do you have evidence for your point of view, that fraud or at least alleged fraud, has increased?

Staiert: Well I don’t know if it's increased. I mean certainly we see allegations in this particular case of one signature gatherer. We haven't had a lot of complaints about it but I think that just from a logical standpoint, if you're paying people for every signature that they gather, rather than paying by the hour, they have incentive to gather more, however means they deem necessary.

Warner: Let's go back to those circulators. So do they get some kind of training? Is there a background check?

Staiert: Well, that's up to the company. So again for candidate petitions it's a little bit different. They only need to be registered electors with the party. The company can choose to do a background check or not do a background check. They do have to sign an affidavit on every petition that they understand the laws in Colorado but there is no requirement for formal training. 

Warner: And does the Secretary of State's office in some way monitor these companies and as Keyser said, the contractors and subcontractors they may hire?

Staiert: On candidate positions we do not. The law on statewide petitions, initiatives is different and on those petitions we do require registration.

Warner: All right. So once a circulator has gathered signatures, whose responsibility is it, I guess at first blush, to make sure that a particular voter is really invested in that race, is an actual person, has the right to sign that petition. 

Staiert: Well it's the gatherer that is required to keep the petition on them at all times. They have to sign that they understand the law and that every single person who signed in front of them, was actually with them at the time and then they have to have that affidavit notarized when they turn in the petitions. 

Warner: All right. Let's continue this conversation, Deputy Secretary of State, Suzanne Staiert and ask about your office's screening of these signatures and the question of how early these potential forged signatures were caught. This is Colorado Matters from CPR News. It's Colorado Matters from CPR News. I'm Ryan Warner. And a case of alleged forgery of signatures  has brought the process of petitioning under the primary ballot into the spotlight. My guest is Deputy Secretary of State, Suzanne Staiert.  Suzanne, Denver 7 reporter Marshall Zelinger interviewed one voter whose name appeared on Jon Keyser's petition to land on the Republican primary ballot as a US Senate candidate. And this particular voter said she didn't sign the petition, pointed out that her last name was misspelled. Shouldn't the system have caught that?

Staiert: Well, our office does, I guess what I would call a very linear review. We are held to a strict compliance standard and so when we look at a signature petition, we're only comparing whether that voter's name and address appears in the voter file and then we're looking at the petition format to make sure that the affidavit is correct and the circulator has signed it and it's been notarized.

Warner: So you're not doing a signature to signature comparison?

Staiert: We are not. And then when the petition gets to court, so for three of these candidates, we declared them all insufficient. We declared Keyser insufficient originally and then he went to the Court and the Court applies a different standard, which is a substantial compliance or a 'close-enough' standard. And the Court, in Keyser's case, determined that the issues that he had with the circulators being registered voters, that kind of thing, were substantially compliant with the law and ordered us to put him on the ballot. So that's how Keyser got on the ballot.

Warner: Who does the reviewing? Is it someone at the office or do you hire someone?

Staiert: Initially the review is done through the State Department of Personnel. They have a contractor down in Pueblo that reviews our petitions and so they look the voter up in the voter file to ensure that they're a registered Republican, that they have been for 29 days, the other factors that are required. And then they send those petitions, we go down and we pick them up and we're there through the process but we go pick the petitions up, bring them back to the office and do a final review before we declare sufficiency or insufficiency.

Warner: Well my understanding is that your fact-checkers, that group in Pueblo, had reported possible problems with Keyser's petitions, including the signature of a voter who was actually dead, to the Secretary of State's office in April. So shouldn't that have triggered some action?

Staiert: We think it should have. At the time, it didn't go further than the petition lead in our office, who again is performing a very linear, objective review and so for them to go in and do signature comparison to see whether there were issues with that voter, there wouldn't have been a mechanism for them to then do anything about it from their perspective. And what I mean by that is they couldn't disqualify the signature. Now it should have been reported to the DA at that point and we should have started some type of an investigation at that level.

Warner: And why didn't that occur?

Staiert: I think it didn't occur because those employees were looking at it from the perspective of are they going to count the signature or are they not going to count the signature rather than that picture of is this fraud or is it not fraud, which of course is a huge issue for us and I will say it was a mistake by our office to not have had that communicated to somebody who could then bring the DA's into the conversation.

Warner: Are you making structural changes so that that doesn't happen again?

Staiert: We are. We're changing internal policies to ensure that that doesn't happen and we may look at legislative changes this summer that we would propose in the next session to change some of the issues we have with the timing of signatures, petitions and many other myriad of issues that are in the statutes. 

Warner: Meanwhile, the District Attorney is investigating but you're saying could have gotten involved earlier had he had the information.

Staiert: Yes. Currently we have Denver and then the 18th Judicial District investigating and I think that would have been something we would have referred much earlier had the information been forwarded.

Warner: A lot of different circulators, and again that's the name for the people who gather the signatures, work for any given candidate and thousands of voters sign, it seems like a lot of room for error or even cheating potentially. Is there more fraud going on that just doesn't get caught?

Staiert: I don’t know. I mean we have people come in from the opposition to review those signatures so it's really sort of almost an adversarial process.

Warner: That's another check and balance if you will.

Staiert: Right. So you know I think if there were a lot of fraud going on we would see that signatures being challenged by the opposition of people trying to keep other people off the ballot or keep issues off the ballot. 

Warner: So do you think this is a lone wolf situation?

Staiert: So far it's a lone wolf situation. Whether that motivation is there, I think that that's an ongoing problem that we need to have discussion over but we don't have any other evidence beyond this one circulator.

Warner: Thanks for being with us.

Staiert: Thank you.