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Stickers reading "I Voted" sit on a table at Vanguard Church in Colorado Springs Nov. 3, 2020. The church served as a location where voters could register, drop off completed ballots or fill out a ballot in person. (Forrest Czarnecki/The Gazette)

Tuesday’s four-hour hearing on election rules drew more than 400 written comments and testimony from dozens of people, many who repeated debunked conspiracy theories about the 2020 election and some of the companies involved, claims that have resulted in libel lawsuits against conservative media outlets and those affiliated with former President Donald Trump.

The hearing was to craft election rules tied to two bills passed in the 2021 session. Senate Majority Leader Steve Fenberg, D-Boulder, said earlier this year his Senate Bill 250 was mostly a procedural measure, although the 82-page omnibus bill did make substantial changes tied to recall petitions, such as requiring those who collect signatures to be licensed by the state.

Under the bill, recall petitions also would be required to tell the truth, though Fenberg admitted that’s a subjective call. That provision raised constitutional questions because the state Constitution bars any review of recall petition statements.

Senate Bill 188 deals with making voting easier for those with disabilities.

It was a June 17 emergency rule issued by Secretary of State Jena Griswold that bars independent forensic audits that drew the most comments and testimony. The rule blocking audits similar to the one being conducted in Arizona by a company with no verifiable previous experience drew reaction that was often belligerent and at times insulting toward Griswold or her staff. Many demanded an independent forensic audit of the state's 2020 elections. 

Several claimed Griswold and Arizona Secretary of State Katie Hobbs were in cahoots, or that the rules were intended to help Griswold win re-election next year.

“Who goes to a barbecue with Eric Coomer? Matt Crane and Jena Griswold,” said Natalie Upshire of Weld County. “You’re playing the Colorado voters as fools to benefit yourself.”

Crane is the former Arapahoe County Clerk and Recorder who now runs the Colorado County Clerks Association. Coomer, head of product strategy and security for Dominion Voting Systems, which also came under fire during the hearing, had to go into hiding because of death threats after the November election. He has since sued several conservative news outlets. Newsmax settled a lawsuit with Coomer out of court, and issued a retraction and apology as part of that settlement.

Many agreed with statements made by Shawn Smith, a Colorado resident and voter, and an attorney representing him for the rules hearing, Maureen West.

“I publicly dare any public official to call me a conspiracy theorist when I speak to my concerns with our election and election systems," Smith began. "I’m dismayed and disgusted with the unrelenting partisanship and condescending authoritarian attitude by the Colorado Secretary of State, aided and abetted by the Colorado Attorney General."

Smith demanded that the state allow an independent forensic audit, claiming he did not believe the 2020 election was secure.

Smith also claimed the voting systems were built overseas (one company, ES&S, does import parts from China, although the machines are assembled in the United States), and that there was no need for emergency rules as there was no emergency.

West, a former assistant attorney general, was hired by Smith to review the rules, and said she has issued rules opinions in her role as an assistant AG, including on emergency rules.

West’s LinkedIn profile said her focus in the AG’s office was on healthcare. She does not cite election laws or election rules in her expertise, although she does cite regulations and regulatory law. However, West told Colorado Politics "the rulemaking process is the same for election law as it is for the Medical Board and so on. All of these different government officials and entities are subject to the same rulemaking law as provided in C.R.S. Title 24. So an expertise in election law is not necessary, and in fact many election law attorneys may not understand the rulemaking process as well as I do."

In addition, West said, "for the SOS to adopt the June 17, 2021, Emergency Rules (and for the AG and the Office of Legislative Services to confirm the legality and constitutionality of the Rules) there needed to be facts so compelling that the SOS had the legal authority to bypass the permanent rulemaking process... If limits are not put on government officials they can, and in fact do, issue emergency rules on matters of personal interest to them which in my opinion is what the SOS did, and the OAG allowed."

In her testimony, West said the emergency rule should be rendered void since it fails to meet the legal threshold for an emergency rule, which requires that it must be imperatively necessary.

“We cannot have emergency rules that don’t meet the legal threshold,” West said. “We expect better from the Secretary of State and from the Attorney General,” to not rubber stamp rules and to be able to tell the client the rule is not legal, West said.

West cited a statement Griswold issued when the emergency rules were announced: the rules are necessary, “given the public concern regarding rapidly increasing instances of purported ‘forensic audits’ conducted by unknown and unverified third parties nationwide. These rules are necessary to ensure the continued security and integrity of, and public confidence in, Colorado’s voting systems and its elections.”

However, West continued, Smith sent in an open records request on June 22, seeking documentation to back up the emergency claim. All he got was an email exchange between Griswold and her staff regarding a press release on the rule and a copy of the redlined rule. There were no facts included, West said, that would provide any support for the emergency rule.

“This kind of conduct on behalf of the Secretary of State and Attorney General is what specifically undermines the confidence of election integrity,” West concluded.

Others claimed Griswold had no authority to disallow an audit requested by citizens.

“No private entity gets to audit itself and then proclaim itself the gold standard,” said Shawn DeMarco, who said Griswold was “trying to cover her tracks” for a fraudulent election.

DeMarco also submitted written comments, challenging a rules change that takes the responsibility for processing inactive voter registration from county clerks and gives it to the Secretary of State staff. County clerks are better positioned to process inactive voter registrations in their jurisdictions, DeMarco wrote, and shifting it to the Secretary of State’s office is a waste of limited state resources.

Some witnesses claimed, without proof, that there were more people who voted in some of Colorado's counties in the 2020 election than there are registered voters, claiming it was fraud. However, that claim also has been debunked.

Several individuals recommended the Secretary of State’s office watch a “cyber symposium” next week hosted by MyPillow CEO Mike Lindell, who is also being sued for false claims about the 2020 election. Lindell has claimed that Trump will be reinstated as President, possibly as soon as next week, although there is no legal mechanism for doing so, according to Reuters.

Peg Perl, director of elections for Arapahoe County, was one of the few who testified mostly in favor of the rules, although she also said the county had concerns about proposed rules on voided ballots and how to send out replacements, as well as the technical feasibility of rules tied to signature verification.

The proposed rule would dictate that if a clerk sends out a replacement ballot, such as for an address change, the envelope would have to include a personalized insert that said it’s a replacement ballot and why. The current process and system generates lists of those who ask for a new ballot, Perl said; it doesn’t say why they are asking for a new ballot. That could mean thousands of ballots per day, and staff would have to manually research each one and address the reasons for that ballot.

State Rep. Ron Hanks, a Cañon City Republican, testified that he was representing constituents and concerned Americans. “Elections belong to the people, not the government, yet every action taken by Griswold or intends to take puts another barrier between your bureaucracy and the voters,” Hanks said.

Hanks accused the Secretary of State of building “authoritarian walls” around control over the elections, which he said directly interfere with the citizens’ interests and rights to oversee elections.

“You have marginalized concerns of the voters and made insolent political jabs, calling professional audits outside of your governmental control, 'fraudists,’ " he said.

Hanks, citing his own experience at the National Security Agency and the US Cyber Command, said there are always people who know more than he does, and that it is unlikely anyone on the Secretary of State’s staff has as much expertise as the private sector.

“Yet your office has repeatedly discounted the qualifications and expertise of those outside your control,” Hanks said. He offered to set up an in-person conference between the staff and “white hat” cyber experts to “settle the question publicly.”

He also said the elections use laptops built in China that are not secure.

“Your office is oblivious to the threats” because they are ignorant of the threats, he said.

Hanks, who has traveled to Arizona to observe their third-party audit, called for an audit of all 50 states and asked that the Secretary of State join in that call.

“I can assure you there was election fraud,” said Mary Reese, a registered voter from Arizona. “I have been very impressed with the Cyber Ninjas. [Arizona] is the gold standard.”

She then repeated debunked claims about Dominion and Smartmatic, which makes electronic voting technology and which has also been dragged into the conspiracy claims.

“This is an insult to the people of Colorado...I propose that Jena Griswold be expelled, and if she’s broken laws, why don’t you arrest her?”

Due to the long hearing and continued interest in the rules changes, the Secretary of State’s office extended the public comment period for the rules to 5 p.m. on Tuesday, Aug. 10. Comments can be submitted here.

This story has been updated to add comments from attorney Maureen West.

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