In a series of terse letters exchanged this week between top election officials in Colorado and Pueblo County, Secretary of State Scott Gessler and Pueblo Clerk and Recorder Gilbert Ortiz accused each other of misinterpreting the law when it comes to who should receive mail ballots. By week’s end, both sides were threatening to take the other to court over the question of sending ballots to “inactive” voters serving abroad in the military.
It’s the latest twist in a controversy that erupted two weeks ago when Gessler ordered Ortiz and Denver Clerk and Recorder Debra Johnson to refrain from sending ballots for the November all-mail election to any inactive voters, as the two clerks had planned. Johnson refused, so Gessler filed a lawsuit to force her to comply, while Ortiz said he would abide by whatever a judge rules.
Denver and Pueblo are among 60 of the state’s 64 counties conducting all-mail elections in November and were the only counties whose officials planned to send ballots to registered voters who skipped last year’s general election. (An initiative to raise taxes to pay for schools will be the only question on the statewide ballot, but municipal elections and other local contests will also be decided.)
Late last week, saying he was attempting to enforce “uniform” standards across the state and guard against potential voter fraud, Gessler sued Johnson in Denver District Court to keep her from sending ballots to voters tagged “inactive” on county voter lists. District Judge Brian Whitney has set a hearing on the case for Oct. 7, just a week before state law requires ballots go into the mail.
But Ortiz added a wrinkle to the dispute on Tuesday when he demanded Gessler state explicitly whether he believes the law forbids clerks from sending ballots to soldiers stationed overseas if they are labeled “inactive” for missing last fall’s election. Gessler stuck to his guns and ordered the clerk not to send ballots to inactive military voters even though Ortiz said that’s what he believes the law requires.
Meanwhile, two out-of-state Democratic congressmen ratcheted up the stakes by asking the federal Department of Justice’s Civil Rights Division to open an investigation into Gessler’s actions. After Gessler wrote Ortiz about the military voters on Thursday, one of those lawmakers, U.S. Rep. Charles Gonzalez of Texas, called Gessler’s latest orders illegal and said they “now threaten voter suppression” among “men and women on active duty in war zones.”
Gonzalez said that he was asking federal prosecutors to widen the scope of any investigation they might undertake, in part because federal law governing military voters doesn’t make a distinction between “active” and “inactive” voters, and that they should all get ballots despite what Gessler was ordering.
State Democrats seized on this week’s developments to launch attacks against Gessler — an election-law attorney representing Republican candidates and conservative causes before winning office last year — with one Democratic state lawmaker charging Gessler with taking part in a “sophisticated, coordinated Republican War On Voting.”
State Rep. Crisanta Duran, a Denver Democrat, took swings at Gessler in an email sent to supporters on Friday. “The Colorado Republican machine is determined to block access to the ballot box for thousands upon thousands of voters — using fear, phony statistics, and racially-charged anti-immigration rhetoric to create roadblocks for eligible citizens to exercise the most basic of American rights,” she wrote.
Denver has already mailed ballots to military and other overseas voters labeled “inactive,” a development Gessler termed “a mistake,” and one his spokesman said doesn’t mean clerks should continue breaking the law by mailing ballots to still more “inactive” military voters.
The voters at issue didn’t vote in 2010, the last even-year general election, and haven’t responded to postcards from county clerks asking them to update their status. A temporary state law required clerks to mail ballots to voters who fell into the inactive category for the last three November elections — in part because hundreds of voters couldn’t cast ballots in 2006 due to election system problems in Denver and Douglas County — but the Legislature let that law expire earlier this year.
State law currently reads that “the designated election official shall mail to each active registered elector,” and the dispute between Gessler and the clerks centers on the word “shall.” Gessler said last week he believes there is “no ambiguity” in the statute, but Johnson and Ortiz — along with other clerks who weighed in this week — say the law merely establishes a minimum requirement and doesn’t forbid election officials from mailing ballots to other registered voters.
There’s no question these voters are still registered, emphasized a spokesman for Denver’s clerk and recorder. They haven’t moved, as far as the Postal Service can tell, and they haven’t died, according to various health departments, and they haven’t registered elsewhere — they just didn’t vote last year, said Alton Dillard, a spokesman for Johnson. He added that Denver has stringent security measures in place to determine whether signatures that accompany mail ballots match voter signatures on file, including the use of handwriting experts.
There’s also no question these voters could have taken any number of steps to move off the “inactive” rolls, Gessler’s office contends, including updating their status online, replying to postcards routinely sent by clerks, or voting in municipal elections held since last fall. (10,655 previously inactive voters cast ballots in Denver’s two-round municipal election this spring, when both active and inactive received mail ballots, Johnson said. Gessler earlier pointed to turnout in the low single digits among inactive voters statewide who received ballots in recent years as part of an argument it’s too costly for clerks to mail ballots to them.)
But Gessler’s critics say duly registered voters shouldn’t have to jump through hoops in order to vote simply because they didn’t vote in a mid-term election.
“The City and County of Denver has consistently provided all eligible voters with ease of access to the voting franchise and we plan to continue to do so,” Johnson wrote in the response that triggered Gessler’s lawsuit against Denver.
Pueblo County Clerk Ortiz isn’t backing down on inactive voters
While Ortiz adopted a decidedly less confrontational posture toward Gessler’s efforts last week, by this week he had turned more aggressive.
Citing his county attorney’s reading of state law, Ortiz wrote Gessler on Tuesday that he was obliged to follow state law — which he said requires him to mail ballots to all military voters — while at the same time following Gessler’s orders, which had so far been at odds with what he said was his legal directive.
“In the absence of an express Order, signed by you, directing me not to mail ballots to (inactive/failed-to-vote) military service voters, I intend to do so on September 30, 2011, as required by (state law),” Ortiz wrote.
Couched in legalistic language, Ortiz was trying to force Gessler to touch the dangerous third rail of voting politics by forcing him to state explicitly that soldiers who were registered to vote shouldn’t get ballots, and Gessler obliged.
“As my office has previously explained, you do not have the authority to mail ballots to such voters,” Gessler wrote on the eve of the deadline established by Ortiz.
He went on to chide Ortiz for asking the question when Gessler’s office had already answered it and said Ortiz should have been taking all available steps to encourage inactive military voters to activate instead of waiting to the last minute.
“This has gone beyond grandstanding,” said Gessler’s spokesman Andrew Cole after Ortiz released a response to Gessler’s order to the press on Friday afternoon before sending it to Gessler.
“The simple answer to all this is that Ortiz should have been contacting those people weeks ago,” Cole said, adding that Ortiz’ counterpart in El Paso County had been quietly working to reach military voters and urge them to request ballots rather than waging the dispute in full view of the media.
“He should be introspective about why he wasn’t contacting them already,” Cole said. “The Pueblo County clerk and recorder’s office could have taken steps weeks ago to make sure his military and overseas voters had been better served. By not taking those steps, he cannot lay them at our feet.”
A weary-sounding Ortiz said Cole’s criticism was misplaced. Asked why he hadn’t spent the previous weeks and months contacting inactive military voters, Ortiz’ response was succinct: “We did,” he said.
He said his office had been using the mails and e-mail, when available, to get in touch with roughly 70 registered voters stationed abroad who fell into the inactive category.
“But we don’t know where they are or what they’re doing, if they’re on a mission,” he said. “We were expecting to send them ballots, so not only did we try to contact them, but we were going to send them a ballot anyway, before the secretary tried to stop us. It doesn’t get more proactive than that.”
At about that time on Friday, Gonzalez weighed in on the dispute over military ballots, calling Gessler’s instructions “a violation of federal law.”
“Mr. Gessler’s misguided efforts now threaten voter suppression not only in Denver County but among members of our armed services, men and women on active duty in war zones. His misinterpretation of the law is not only illegal but deprives Colorado citizens of their most fundamental right: the right to vote,” Gonzalez said in a statement.
He added that he was asking Department of Justice prosecutors to take a look at Gessler’s latest orders, although officials at the secretary of state’s office and Denver’s clerk and recorder’s office said they hadn’t been contacted by federal Civil Rights Division officials, so they doubted an investigation had been started.
Gessler’s spokesman responded by extending an invitation for Gonzalez to “visit Colorado to see for himself why Colorado is rated among the top ten in the nation in serving military and overseas voters.” Adding that Gessler was “asking the clerks to follow Colorado law and treat all voters the same under the law,” Cole charged that Gonzalez “either doesn’t understand Colorado law, or he does and he is engaging in the worst kind of politics.” He then urged the Texas congressman to instead investigate why Pueblo County might not be following “best practices” when it comes to serving military voters.
Later Friday, Ortiz issued his response to Gessler’s order, saying he planned to obey it but promising that “this is not over.” Ortiz said the county was considering taking Gessler to court and later told The Colorado Statesman he expected to decide a course by early the following week.
“It’s only right that Pueblo residents who are serving our country in the military should have the chance to cast their ballot here at home,” Ortiz said. “Military men and women should be given every opportunity to participate in the democracy they’re defending. They may be listed as ‘inactive’ voters in our system, but when they’re on active duty how can we deny them a ballot?”
But it didn’t end there. Late Friday, Gessler’s elections director, Judd Choate, sent a letter to Ortiz warning the Pueblo official to get ready to defend himself in court if he was still “considering sending mail ballots to inactive — failed to vote (military and overseas) electors.” Choate sent Ortiz a copy of the lawsuit filed against Denver and included details of the Oct. 7 hearing, urging Ortiz to let his county attorney know he might need to appear.