Republican Secretary of State Scott Gessler says he had a legal obligation to update state elections rules to clarify that county clerks do not have to mail ballots to so-called “inactive voters.”
The conservative stalwart faced a firestorm of criticism over the proposed rule, which he finalized on Aug. 15 as part of a sweeping package of amendments to state election rules. The rules cover everything from ballots to canvass board operations. But the rule concerning inactive voters has raised the most controversy since critics allege it could disenfranchise voters.
Voters are labeled inactive because they did not vote in the previous even-year general election and failed to respond to two postcard notifications asking for an update on their status. Gessler says Colorado law is explicit in detailing that county clerks should not be mailing ballots to those voters.
“That’s what the law says…” Gessler explained in a recent interview with The Colorado Statesman. “There is no authority whatsoever to send ballots to ‘inactive-failed to vote’ voters… The legislature considered that and did not make that change this year.”
Gessler is referring to a 2012 bill that would have declared inactive voters as being active. The measure carried a Republican sponsor, Rep. Don Coram, R-Montrose, but the legislation still died in a Republican-controlled House committee.
Critics of Gessler’s rule, including Together Colorado — formerly Metro Organizations for People (MOP) — believe the adopted rule will result in less people voting, which creates barriers to the democratic process. Organizers gathered at a July 23 rulemaking hearing at the secretary of state’s office to oppose the rule. The organization had the support of many other critics of the proposal, including former Senate Majority Leader Ken Gordon, D-Denver, former Rep. Rosemary Marshall, D-Denver, Sen. Lois Tochtrop, D-Thornton, as well as 30 current Democratic House lawmakers who sent Gessler a letter stating their opposition.
But in the end, opponents watched as their efforts were made in vain. Together Colorado believes Gessler’s motivations behind the rule are political, stating that the result will disenfranchise minority voters, especially in a divided election year when Democratic President Barack Obama is vying for black and Latino votes in the swing state of Colorado.
“After African American voters turned out in record numbers for the 2008 election, during the past four years 34 states have passed or attempted to pass voter suppression legislation that makes it more difficult for black and brown voters, young voters and senior voters to participate in the democratic process,” said Rev. Dawn Riley Duval, a statewide community organizer with Let My People Vote, part of Together Colorado. “This is not right to take away voter rights based on being a ‘failed-inactive voter.’ Permanent mail-in voting means permanent mail-in voting.”
The current and former lawmakers raised their own concerns over Gessler’s rulemaking authority. They believe the secretary of state is overstepping his power, adopting rules that should be enacted by the legislature. Several of Gessler’s critics raised this point at the July 23 rulemaking hearing, where the majority of comments heard were also from opponents.
Tochtrop is concerned that despite the overwhelming outpouring of opposition to the rule, Gessler chose to adopt it.
“Why have public hearings if you’re not going to listen to the concerns of the citizens?” asked Tochtrop.
“The purpose of having public hearings is to be able to hear from the people who elected you to give their feedback on proposed rules,” added Rep. Crisanta Duran, D-Denver, who led the group of 30 House Democrats who opposed the rule. “In this case the feedback was overwhelmingly against the rules that were proposed, but [Gessler] chose to disregard that.”
Canvass board rules
Doug Campbell, state chairman of the American Constitution Party, also believes that Gessler has been ignoring public feedback. His issue is with rules that require canvass board members to be registered with their party and reside in the county in which they are serving on the canvass board.
While the American Constitution Party has garnered major party status following the 2010 gubernatorial election in which former Congressman Tom Tancredo, a Republican, joined so as to be their nominee to challenge then-Denver Mayor John Hickenlooper, Campbell says the party still suffers from low registration numbers. In some counties, the party has no registered voters, which means it is difficult to find members for the canvass board based on the election rules.
“Why can’t we go to the next county over and see if there is somebody there who might be willing to supervise in a different county? Why does it have to be a county resident?” asked Campbell. “The parties ought to be able to select whoever they feel is adequate to do the job in a given county, even if it is from a county or two over, especially when you’re dealing with a very sparse registration like we have. That’s the way it’s set up in the current statute.”
Minor parties, however, did score at least one victory following the election rulemaking process. Gessler had originally proposed that representatives from minor parties and unaffiliated voters be allowed to join local canvass boards.
A canvass board is charged with accounting functions of an election, including reconciling the number of ballots counted to the number of ballots cast, and also composing the number of ballots cast to the number of voters who voted.
Currently, canvass boards include the county clerk and recorder and representatives form each major party.
Even though the proposed rule would have given minor parties representation on canvass boards, concerns were raised that the county clerks themselves would have been allowed to pick canvass board members for the minor political parties. Minor party leaders believed that by doing so, the county clerks could “rubber stamp” their agendas.
But after hearing from the minor party leaders, Gessler reversed course on the proposal.
“That shows you that we consider everyone’s position; we go into all the rulemakings with a very open mind…” said Gessler. “We heard what people said; we heard from third parties as well… and we took that into consideration and ultimately made those changes.”
Jeff Orrok, state chairman of the Libertarian Party of Colorado, said at a minimum he is pleased that the secretary of state listened to the minor parties on the canvass board appointment issue.
“The most egregious thing has been removed so that the county clerks no longer have the power to appoint people in our name,” he said.
Campaign finance case could be precedent for lawsuit?
But for those who still have concerns with the election rules as a whole, their only recourse may be legal action.
A recent Denver District Court decision that found that several campaign finance rules adopted by Gessler’s office went beyond his powers could help bolster a separate case against the adopted election rules.
The focus in the campaign finance case was on a rule that limited penalties for some campaign finance violations and another that said groups only had to file campaign finance reports if at least 30 percent of their spending was for or against a ballot issue.
Colorado Ethics Watch, Colorado Common Cause and state Senate District 27 candidate David Paladino brought the lawsuit.
“We believed that the Secretary’s rule made it possible to hide huge amounts of money in state political spending. The court agreed that he lacks the authority to do this,” Paladino said in a statement following the ruling.
Colorado Ethics Watch hopes that the ruling on Aug. 10 will send a message to Gessler that he cannot overstep his rulemaking authority.
“Hopefully the Secretary of State will finally get the message and stop his unlawful overreaching,” Luis Toro, director of Ethics Watch, said in a statement.
But Gessler has already begun his appeal of the ruling. State attorneys for his office submitted a motion on Mon-day for a stay of proceedings pending appeal, arguing that a rule change just months from the election would create too much uncertainty and chaos.
“It puts people in a very difficult bind when they’ve been operating on a set of campaign finance rules for quite a while and the judge halted it some 80 days before the election…” Gessler told The Statesman on Monday. “The people, with respect to these campaign finance rules, have been operating off of these, they’ve been using them, and now they’re not allowed to rely on them anymore, which puts them in a really, really difficult bind.”
Toro and Ethics Watch immediately began preparing a response to the motion for a stay of proceedings.
“These rules have been declared illegal,” said Toro. “What they’re asking for is that the court should allow the election to take place under illegal rules.”
Given the court’s decision that Gessler had exceeded his power in approving the campaign finance rules, organizations like Together Colorado and the American Constitution Party are contemplating a similar lawsuit against the election rules.
But as Campbell points out, lawsuits are expensive, and it may be difficult to put together a separate case. Campbell wishes he could bring a lawsuit on behalf of the American Constitution Party without having to cover expenses.
“It shouldn’t cost us anything to take an official of the state who is overstepping his bounds to a court case because we are protecting… the taxpayers of the state from the overstepping of the bounds and that shouldn’t cost anything,” he said. “We don’t have a huge pile of money to pay some highfalutin lawyer $300 an hour or whatever he wants to charge, and nobody really wants to give away their services probably for a case like that.”