Recall elections to oust Senate President John Morse of Colorado Springs and state Sen. Angela Giron of Pueblo were once again thrown into flux this week after a Denver District Court judge’s ruling essentially made mail-ballot voting impossible. A few days later, the Colorado Supreme Court declined to hear the case on appeal and let the District Court ruling stand.
Judge Robert McGahey ruled from the bench Monday evening after hearing a day’s worth of arguments on a lawsuit brought by the Colorado Libertarian Party.
The party argued that it had not missed a 10-day statutory deadline to submit signatures from the time when the Secretary of State’s office certified the recall elections for Senate District 3 (Giron) on July 30 and Senate District 11 (Morse) on July 31 in order to petition onto the Sept. 10 ballot. Statute says candidates have 10 days from when the election is certified to submit signatures in order to appear on the ballot. A recent Democratic-sponsored bill — House Bill 1303, co-written by Giron — also states that ballots must be mailed no later than 18 days before the election, mandating all-mail voting.
Meanwhile, Article XXI of the Colorado Constitution mandates that successor candidates have up to 15 days before the election to submit their signatures. The obvious conflict between statute and the constitution is what was at issue before McGahey.
The conflict predates HB 1303, but it was renewed with the measure’s passage this year. The bill’s Democratic sponsors could have addressed the conflict, but did not.
There would be no way for clerks to mail ballots 18 days before the election if candidates have until 15 days before the recall election to submit signatures.
The lawsuit joined an odd group of bedfellows, including attorneys for Republican Secretary of State Scott Gessler and Mark Grueskin, a high-profile attorney who represents Democrats.
Just last month, Grueskin challenged Gessler’s office for validating the petition signatures of Republicans seeking to replace Morse and Giron in their respective districts. Grueskin had sought to invalidate the signatures for not including petition language that stated a demand for the election of a successor to the recall official. He lost that challenge on behalf of the Morse and Giron camps.
This time, however, Grueskin found himself on the side of Gessler and the clerk and recorders of Pueblo and El Paso counties.
For the secretary and clerks, an in-person election is a logistical nightmare; for Democrats, it means much more work turning out the vote since Democrats usually vote by mail; and for Republicans, having a Libertarian presence on the ballot could split the Republican vote.
McGahey appeared torn between democracy and the constitution, noting that he did not want to disenfranchise any voters, or get into a political discussion. The biggest issue is that mail ballots have already gone out to military members overseas.
But McGahey said he was forced to rule in favor of the constitution. He placed onus on the legislature to correct the conflict, either through a referred measure that would amend the constitution, or through statute.
“Unfortunately the process that has been created has a fatal flaw,” McGahey said of the legislature’s effort. “It doesn’t comport with… the language of Article XXI of the Colorado State Constitution …
“With all due respect to the legislature, it either did not consider, or chose to ignore, the clear language of Article XXI… I find that both sad, and a little shocking,” the judge continued.
Shifting in his chair to look up at the audience assembled in his courtroom, McGahey added, “I really wish I didn’t have to make the ruling because I know exactly what it’s doing… But I don’t feel like I have any choice.
“I want to make it very clear that I don’t think the law enacted by the legislature appears at all stupid…” he clarified. “It’s intelligent; they thought about it hard. The problem is it doesn’t comport with the language of Article XXI.”
Throughout the hearing, attorneys argued that democracy and the right to vote must prevail over the constitution.
“That is totally inconsistent with the fundamental right to vote…” argued Grueskin. “This is an error, or a condition, that they have created for voters. They didn’t create it for themselves. They ought not to have to give up half their voting rights in order to participate in this election.”
Pueblo Clerk and Recorder Gilbert Ortiz, who sent out several tweets during the hearing, backed up those arguments.
“Are we going to follow our Constitution and hurt our democracy in doing so?” he asked in one tweet.
“Today it will be decided if we uphold the constitution at the cost of democracy,” he wrote in another.
The Libertarian’s attorney, Aspen lawyer Matt Ferguson, later asked Ortiz to explain his tweets. The judge allowed the questioning because he felt it was representative of Ortiz’s character and credibility. Ortiz defended his stance that the right to vote should prevail.
Grueskin and attorneys for Gessler also pointed out that the Republican candidates petitioning onto the recall ballots had no problem submitting their signatures within the statutory timeline.
“It’s hardly a secret that they were recruiting candidates as early as June 10,” Grueskin pointed out of the Libertarian’s effort.
Matt Grove, the attorney representing Gessler, said it would be a major burden on the secretary and clerks to comply with the judge’s ruling while also following HB 1303.
“It’s going to be impossible to comply with polling place elections while complying with 1303…” he said, noting that the law mandates all-mail voting. “If the court is going to rule that the election code is unconstitutional… that’s going to leave the clerks without any guidance.”
But Ferguson kept his argument simple, convincing the judge that he had no choice but to rule on the side of the constitution.
“It was a perfect storm of events that led to this lack of harmony to the constitution and statute…” said Ferguson. “But the constitution should prevail.”
Grueskin on Wednesday asked the Colorado Supreme Court to hear an appeal. But the high court late Thursday split 3-3 on whether to hear it. The two-page written order did not offer an explanation.
Justices Michael Bender, Nathan Coats and Monica Marquez voted to review the ruling. Justices Nancy Rice, Allison Eid and Brian Boatright voted not to review the decision. Liberal Justice Gregory Hobbs did not cast a vote.
Grueskin told The Colorado Statesman on Wednesday that he believed it was important for the Supreme Court to hear the case in order to protect the democratic process.
“The right to vote is a fundamental constitutional right,” explained Grueskin. “The courts have said the right to be a candidate is important, but not a fundamental constitutional right… If we’re really at a point in our process where it’s OK to sacrifice their right to vote, that’s a point of which I think there’s a line in the sand.”
Punching holes in 1303?
The larger issue is whether the ruling on Monday punched the first holes in HB 1303, which began and ended as a controversial and polarizing piece of legislation.
Democrats pushed the bill, which also includes same-day voter registration. It is a boost for Democrats to register voters on Election Day and send ballots to all voters by mail, since both provisions positively impact the left.
From the beginning, Republicans and Gessler fought the measure, suggesting that it was crafted with liberal interests in secret without consultation from the secretary’s office or from any Republicans.
The more than 100 pages of legislation was introduced as a late bill in April just a month before the legislative session would end. Critics could not believe that Democrats would introduce such a complicated and controversial elections reform bill so late in the session.
Even though the bill’s defenders point out that the conflict between statute and the constitution existed prior to HB 1303, its opponents suggest that Democratic sponsors could have at least worked to correct the conflict. The judge’s ruling only opened the door for criticism.
“Republicans warned Sen. Morse, Sen. Giron and Gov. [John] Hickenlooper of the grave consequences that would arise if they rammed through their shoddy election reform legislation,” read a statement from state GOP Chairman Ryan Call. “They ignored us. Now, it appears that our servicemen and women are the ones who will bear the brunt of Sens. Morse and Giron’s careless work.”
One of the bill’s biggest critics was Marilyn Marks, an Aspen elections reform activist who has for years been fighting for a secret yet transparent elections process. She has filed multiple court cases, some of which have revealed that mail balloting can lead to a loss of anonymity and fraud.
Marks was the one who put the Libertarian Party in touch with Ferguson to represent them in their lawsuit, and made them aware of the conflict. She says she had no part in funding the lawsuit. But she was still front and center Monday sitting in the plaintiff’s box.
For Marks, playing a role in the court case was simply a way to poke at HB 1303: “The 2013 mandated mail ballot delivery clearly prejudices candidates and voters as it facilitates and encourages voting before some candidates have announced their run for office,” she said.
“Lawmakers who rushed through the 2013 mail-only election bill and those who question the basis of the recall lawsuit attempt to blame the conflict on election methods of simpler times, without acknowledging that we the people in modern times continue to express our commitment to the power of the provisions of 100-year-old reforms,” Marks continued, noting that the constitutional provision dates back to 1912.
She points out that lawmakers had multiple opportunities to correct the conflict between statute and the constitution when drafting and debating HB 1303. Before the bill passed in April, the Pueblo County Republican Party ran an ad in the Pueblo Chieftain that called attention to the provision.
The ad points out that Giron and Sen. Evie Hudak, D-Westminster, were already facing possible recall elections, and may have realized that an all-mail approach would have benefited them.
The recall effort against Hudak did not gather steam, but proponents were successful against Giron and Morse after they supported a package of gun control measures that became the focus of the recall effort.
“The ‘all mail ballot’ approach cannot be used to conduct recall elections under the current law. Giron and Hudak are desperate to change the current law so that their recalls will see the mails flooded with ballots going to people who would never go to the polls to vote for them in a recall,” states the GOP ad.
“The arrogance that caused these lawmakers to disobey the clearly and repeated expressed will of the people cannot be now brushed aside as ‘oversight’ or a little legislative carelessness,” opined Marks. “It can only be seen for what it is, and yet another reason to reserve essential recall powers for ourselves, the voters.”
Gessler was put in an odd position. Even though he vehemently opposed the elections reform bill during the session, his office was forced to defend it on Monday. But he still pointed out that the court case raises serious concerns.
“1303 amplifies the problems,” Gessler said just before Judge McGahey ruled. “I can’t blame this all on 1303 by any stretch. I did not like the legislation, but I’m not going to blame it all on 1303.”
Following the judge’s ruling, Gessler added, “The judge was very clear that the legislation that was passed last session created some real problems. We defended that legislation because I think that’s my duty to do that. The judge struck those parts down. Our job right now is to make this election work.”
El Paso County Clerk and Recorder Wayne Williams agreed that his job now is to make the election work. But as one of the clerks who opposed HB 1303, he couldn’t help but take a quick jab.
“It illustrates what happens when you rush through a bill without getting input from folks like Sec. Gessler, or myself, or other folks involved in the elections process, or activists, or citizens,” said Williams. “And it illustrates why that should never have been a late bill.”
Conducting the election
Now with court challenges behind them, clerks — with guidance from the secretary of state — are required to conduct successful recall elections.
The ballot itself is two-part: First it asks voters whether the candidate should be recalled, and then it asks voters to choose a replacement candidate.
In SD 11 in Colorado Springs, Republican Bernie Herpin will make the ballot as a replacement candidate; in SD 3 in Pueblo, Republican George Rivera will appear on the ballot.
Jeff Orrok, chairman of the Colorado Libertarian Party, said he is working to place Gordon Butt of Colorado Springs on the ballot in SD 11. As a minor party, Libertarians must collect 575 valid signatures to do so and submit the petitions by Aug. 26 — 15 days before the Sept. 10 election.
“We get to play ball now, and we’re going to have to scramble like mad to get our signatures, but we believe we can get a lot of help from all of the people who wanted to see their recall go through,” said Orrok. “I believe people will come out of the woodwork to help us along. It’s an achievable goal.”
Richard Anglund, a Democrat from Pueblo, has filed paperwork to run as a replacement if Giron is recalled. Anglund did not return multiple requests for comment left by The Statesman to find out why, as a Democrat, he would want to replace a sitting Democrat in a recall election.
On Friday, the secretary of state’s office adopted temporary rules to conduct the recall elections:
• Successor candidate petitions are due no later than 5 p.m. on Aug. 26;
• The secretary of state will verify petitions within one day;
• A person may file a protest within five days after the secretary rules;
• Counties must publish the election notice by Aug. 30;
• All electors must vote in-person;
• Procedures are offered for requesting an emergency mail ballot;
• Same-day voter registration is available;
• Mail ballots will be issued to military and overseas voters
They will be able to access final ballots using an online ballot delivery website;
If a military or overseas voter can’t obtain an official ballot after Aug. 27, they may return the ballot issued before Aug. 12 and all votes will be counted;
Following the eight-day post election period, if a military or overseas voter returns the second ballot, the county must count that ballot, regardless of whether the voter returned the first issued ballot;
• Counties must designate polling locations, and they must remain open from 7 a.m. to 7 p.m. on Sept. 10;
• Counties must appoint the necessary number of election judges, with at least one supervisor;
• Parties with a candidate on the ballot, an unaffiliated candidate who is on the ballot, or a registered issue committee supporting or opposing the recall question may appoint one or more election watchers;
• Counties must appoint the canvass board by Aug. 26; and
• Counties must upload results to the election night reporting system.
“The Supreme Court has settled this issue,” said Gessler. “We’ve already begun rolling our sleeves up to make these elections a success. Every eligible voter will have the opportunity to cast a ballot, including our military service members, under the plan we are putting together. Voters in El Paso and Pueblo counties can rest assured these elections will be conducted with the integrity they expect and deserve.”