Democrats this week unveiled legislation that aims to correct some of the legal conflicts revealed last summer during recall elections of two Senate Democrats that nullified mail balloting and contributed to the Democrats’ loss.
During an impromptu media availability hosted by Senate Democrats on Monday, lawmakers proposed a measure that would modify a provision in state statute that allows a person to petition onto a recall election ballot 15 days before the election date.
The provision was highlighted during a Denver District Court case this summer challenging the recall elections of then-Senate President John Morse of Colorado Springs and then-Sen. Angela Giron of Pueblo.
Both lawmakers were subsequently ousted from office for their support of gun control after the court allowed the elections to continue.
The Libertarian Party of Colorado filed the lawsuit, arguing that they had not missed a 10-day deadline to submit signatures in order to petition a successor candidate onto the ballot. The case pointed out that state law mandates that ballots be mailed no later than 18 days before the election. But the state constitution requires that successor candidates have up to 15 days before the election to submit signatures.
Judge Robert McGahey agreed that 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 result was that successor candidates had additional time to petition onto the ballot, but that an all-mail election would be impossible.
Democrats tend to benefit from all-mail elections in terms of getting out the vote. Democrats panicked a bit when recall mail ballots were nullified, resorting to such measures as bussing college students and senior citizens in Colorado Springs to the polls.
The proposal unveiled this week aims to correct the conflict that nullified mail ballots by defining the day the governor calls the election as the first day of voting, rather than the last day of voting. The idea is to give candidates the ability to petition onto the ballot 15 days before the first day of voting and provide clerks with more time to print and send ballots, as well as conduct in-person polling.
“We’re in a situation where people who want to vote actually don’t have the ability to vote and what we learned in the process is this may not only be mail ballots that are deprived to people on this, but there are some counties who do not believe under current law that they could actually implement an in-person election either,” explained Senate President Morgan Carroll, D-Aurora.
“The point of this is to basically align the timeline of the statutes with the constitution in such a way so that anybody who wants to vote can vote,” she added.
Sens. Pat Steadman, D-Denver, and Matt Jones, D-Louisville, and House Majority Leader Dickey Lee Hullinghorst, D-Boulder, sponsor Senate Bill 158. Steadman said the court cases last year revealed embarrassing conflicts for the state that need to be addressed.
“What we saw last year really was not a shining example of how to conduct an election,” said Steadman, pointing out that only 21 percent of eligible voters cast a ballot in last summer’s recall elections.
“We can do better,” he continued. “By making the timelines work and making mail ballots accessible to people we can improve the participation in recall elections…”
“I live in America and I want every eligible person to vote in Colorado…” added Jones. “Mail ballots are enormously popular, people are used to using them, they help get the overseas military vote in, and we need to sync up the constitution with the legislative part of this.”
Steadman shrugged off accusations that Democrats are simply trying to expand mail voting in order to give them an advantage in any other potential recall election.
“It’s really more about smooth administration of the election and using modern voting procedures and mail ballots… than it is about creating a partisan advantage for one side or the other,” he said. “No one knows who the next recall is going to be, or where it’s going to happen. All we know is we can make that election easier to administer…”
The other court case that placed a spotlight on recall election law concerned a conflict between the state constitution and the U.S. Constitution. State constitution mandates, “No vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office.”
The recall election itself is two-part; first it asks voters to vote “yes” or “no” on the recall itself, but then it contains a list of replacement candidates.
The Colorado Supreme Court ruled that the language in the state constitution conflicts with the First and Fourteenth amendments of the U.S. Constitution. The state high court said voters are not required to vote on the recalls in order to take part in the election of a successor candidate.
Had the conflict not been addressed, it’s possible that the entire recall election could have been decertified, which would have resulted in a logistical nightmare.
SB 158 would eliminate sections of the existing recall election law that was struck down. A vote “yes” or “no” on the recall itself would not be required for a vote on a successor candidate.
“If we don’t do this or should this bill fail, we will be left with the status quo where all 64 clerks are going to be interpreting things slightly differently…” said Carroll.
Democrats are hopeful that they will be able to convince Republicans to support the measure, but already the GOP has expressed serious concerns.
Republican Secretary of State Scott Gessler said of the measure, “Since the Democrats lost their recall elections, now they’re trying to tilt elections in their favor by ramming through another partisan bill… This legislation doubles down on the Democrats’ failed election policies.”
Senate Minority Leader Bill Cadman, R-Colorado Springs, believes that the issue needs to be taken to a vote of the people in order to codify the new definitions in the state constitution.
“The changes in elections that Democrats are demanding require a change to the constitution and therefore need approval from the people of Colorado,” Cadman said in a statement. “It’s understandable that after losing two recall elections and witnessing the defeat of a historic billion dollar tax increase Democrats would prefer not to take any more issues to the people, but the constitution is clear — the people of Colorado must vote on any changes in this area.”
Marilyn Marks, an election law activist who orchestrated the lawsuit filed by the Libertarian Party of Colorado, also believes the issue should be resolved by a vote of the people because it would redefine what election day is.
“They could have easily proposed a referendum to be taken to the people, but apparently they don’t want to ask the people because they know the people are very protective of their recalls and they’re just not going to turn around and hand over their recall rights and dilute them,” opined Marks.
She doesn’t believe the legislature needs to take action at all on the recall election day issue since it is already clearly defined in the state constitution. If there is any doubt, election administrators should simply default to the constitution, said Marks.
“They’re trying to redefine what election day is,” she said. “Are they going to redefine who the governor is? Are they going to redefine what election code they’re talking about? It’s completely an attempt to circumvent the constitution.”