Judge orders Coken onto ballot, Secretary of State Buescher appeals ruling
By Ernest Luning
A Denver District Court judge ordered Tuesday that Jennifer Coken’s name should appear on the House District 4 Democratic primary ballot, overturning a decision by state officials that Coken failed to submit enough signatures on her nominating petitions. The next day, Secretary of State Bernie Buescher announced he plans to appeal Judge Catherine Lemon’s ruling to the state Supreme Court but would certify Coken’s name for ballots, which were scheduled to go the printers Friday.
In her ruling, Lemon said the secretary of state should count100 more signatures for Coken, precisely what she needed to qualify for the ballot. Earlier this month, Buescher’s office said only 749 of the roughly 1,400 signatures Coken submitted met legal requirements, leaving her short of the 849 required to make the Democratic ballot in House District 4.
“We needed 100, we got 100,” said Denver attorney Mike Feeley, who represented Coken at the hearing. “I’m not a greedy man.”
Last week, Coken sued Buescher to reverse his ruling on her petitions, contending he tossed signatures that should have counted. Coken argued that signatures gathered by a particular petition circulator were wrongly excluded, that signatures credited to another District 4 candidate should instead have counted for Coken, and that Buescher’s office made some mistakes attempting to verify still more signatures. The judge agreed.
“This is a victory for the voters of House District 4 who signed my petition and wanted to see me on the ballot,” Coken said after the ruling. “I will continue to work hard to earn their votes in August.”
Buescher wasted no time deciding to appeal the decision straight to the Colorado Supreme Court, which is the only available next step in the state’s petition review process.
“In accordance with the judge’s order, my office will immediately certify Ms. Coken to the Primary ballot,” Buescher said in a statement released Wednesday. “However, my office also has no choice but to appeal the ruling. Although the judge agreed with the verification processes used by my office, there remains uncertainty for my staff on how to consistently apply both the law and the results of this decision.
“The candidates and the public deserve a consistent petition verification process that is both fair and predictable but also protects against fraud,” he continued. “By appealing this decision in a timely manner to the state Supreme Court, I hope to preserve that consistency and seek guidance on the appropriate application of the laws.”
Feeley called Buescher’s decision “unfortunate.”
Noting that it’s up to the Supreme Court to decide whether to hear the appeal, Feeley said he thought Buescher’s office could instead rewrite its own petition verification procedures to fix problems highlighted by the lawsuit.
“There are other ways than appealing they could seek clarification,” he said. “They issue rules on a regular basis.”
Coken, a former chair of the Denver Democratic Party, will face Dan Pabon, who was nominated to the primary at the district assembly in April, and Amber Tafoya, whose petitions Buescher ruled sufficient earlier this month.
The three-way primary in the heavily Democratic district in northwest Denver will decide who runs to replace term-limited state Rep. Jerry Frangas, a Democrat. The Republican candidate in the district is Rick Nevin, who has run unsuccessfully for the seat four times before. Libertarian Marc Goddard is also on the ballot.
This year, the secretary of state’s office faced a task its challengers acknowledged was “Herculean,” having only two weeks to verify roughly 100,000 signatures submitted on 13 nominating petitions.
Unlike ballot issue petitions, which use statistical sampling to verify signatures, the law requires a ruling on every signature submitted on candidate petitions. And it all has to be accomplished in the 14 days between the deadline to submit petitions and the deadline to certify ballots for county clerks, who were waiting to send their ballots to the printer. To compound the difficulty this year, the Memorial Day holiday and a furlough day for state employees fell within the verification period.
Buescher’s office certified six candidates to the ballot this year and ruled that seven — including Coken — fell short. Coken was the only candidate to challenge Buescher asking to be included on the ballot.
Among the candidates who qualified was Republican Jane Norton, whose petition to run for the U.S. Senate faces a lawsuit filed last week by a Grand Junction resident Tom Bjorklund. He contends her petitions weren’t gathered according to legal requirements and asks a judge to keep her from the ballot. That lawsuit was set for a hearing in a different Denver District courtroom on Friday, after press time.
Because the hearing was set after the deadline to certify ballots, Norton’s name will appear on ballots statewide, secretary of state spokesman Rich Coolidge said. But if a judge rules her petitions didn’t meet requirements, county clerks could be ordered not to count her votes, as happened four years ago when Republican gubernatorial candidate Marc Holtzman’s petitions were ultimately found insufficient after ballots had been printed.
At an all-day hearing on Coken’s challenge, state officials agreed to allow 17 signatures previously excluded after her campaign pointed out mistakes in the verification process.
“Upon closer examination, those signatures were justifiable,” Feeley said, and the secretary of state’s lawyer agreed. “Maybe there was a clerical error here or a miscoding there, but there was no bad faith on anyone’s part.”
The judge ruled in an additional five signatures after Coken’s campaign argued they were valid, in some cases deciding names the secretary of state’s office had ruled illegible could in fact be made out.
“The secretary of state’s office should be in the business of providing access to the ballot not denying access to the ballot,” Lemon said. “Signatures shouldn’t be excluded when it is probable they are correct.”
But the rest of the signatures the judge eventually ruled should count hinged on methods set by the secretary of state, not on the validity of particular signatures.
At issue are two rules the secretary of state’s office uses to decide whether to count petition signatures that would otherwise be considered good. The first requires that petition circulators meet certain legal requirements, or else none of the signatures they gather can count. The other decides how the secretary of state allots signatures that appear on petitions submitted by two candidates running for the same office.
First, Coken asked the judge to reverse Buescher’s decision tossing 54 signatures gathered by campaign volunteer Joseph Torres. The secretary of state’s office threw out his petitions after failing to find the Lakewood Democrat on the voter rolls.
According to testimony presented in court, Torres met all the legal requirements to circulate a petition — he’s a citizen, over 18, registered to vote, a resident of Colorado, and affiliated with the same party as the candidate. But, because he followed the instructions on the forms designated by the secretary of state, Buescher’s employees couldn’t figure out who he was.
There were two problems: Torres moved between the time he registered to vote and the time he gathered Coken’s petitions, and he didn’t list his full legal name on the circulator affidavit.
“The secretary of state could not locate him,” Assistant Attorney General LeeAnn Morrill, who represented Buescher, told the court. “That is the reason the 54 signatures in question were rejected. That is all the secretary is required to do and all the secretary has time to do.”
The judge said that wasn’t enough.
Lemon noted that the secretary of state’s own rules call for circulators to use their current address, not the address listed in their voter registration records. And the required affidavit doesn’t notify circulators they must use their full legal name.
“We don’t make it that hard for people to vote,” Lemon said, “and we shouldn’t make it that hard for people to participate in the process by being a petition circulator.” She then ruled the signatures gathered by Torres should count.
“That’s just a tough call,” Feeley said after Lemon made her decision. “I do think the facts in this case fall into a hole. As the court noted, both the campaign and the secretary of state’s office did their job well, and no one had contemplated this set of facts, so the tie went to the candidate.”
One difficulty, state officials said, is that the rules forbid contacting campaigns to help sort out problems that arise during the verification process. Buescher’s office has to make its decisions relying solely on public records.
“As a practical matter,” Morrill said, “the secretary of state doesn’t have the ability to be calling countless candidates.” And the way the rules are set up, Buescher’s office couldn’t listen if campaigns get in touch with clarifying information.
“That’s harsh,” Lemon said. “It’s not a liberal construction,” referring to a requirement in state law that the election code be “liberally construed.”
Unaffiliated candidates have a chance to work with the secretary of state’s office to review, or “cure” their petitions, but Democrats and Republicans don’t. In part, that’s the result of calendar arithmetic — while both types of candidates must submit petitions at around the same time, major party candidates are petitioning onto the August primary ballot and unaffiliated candidates are headed straight to the general election ballot. That means county clerks need to know which Democrats and Republicans qualify for the primary months before they need to know which unaffiliated candidates to list in November, so there’s more time to review.
Lemon ruled swiftly on the next batch of signatures, 24 names tossed by Buescher because they also appeared on Tafoya’s petitions, which were submitted and verified earlier, even though voters had signed Coken’s petition first.
State law forbids voters from signing more than one petition for the same office — a requirement Lemon termed “silly” and suggested the Legislature should reconsider — but the secretary of state’s office doesn’t try to determine which voters sign petitions correctly, just which candidates turn in their petitions first.
The secretary of state’s office reviews petitions in the order they’re submitted, and Tafoya turned hers in nearly a week before Coken. Under the current rules, once a voter’s signature for one office is verified that signature can’t count for a candidate seeking the same office.
The judge decided it was the voter’s actions that should govern whether a signature counts, not the campaign’s. In other words, the voter isn’t breaking the rules the first time he or she signs a petition, so that’s the signature the secretary of state should consider valid.
When Buescher certified Tafoya’s petitions, he said she had a cushion of nearly 200 signatures more than the 849 required, so losing 24 names to Coken wouldn’t have an effect on her qualification for the ballot.
Lemon said the secretary of state’s method handling duplicate signatures was based on “a rule that makes administrative sense but is contrary to the statute.”
Although Buescher asserted after the decision that “the judge agreed with the verification processes used by my office,” Lemon disagreed that the secretary of state’s rule on duplicate signatures passed muster. While the judge hadn’t yet issued her formal, written ruling by press time, in the courtroom she was clear.
“It isn’t OK to have a rule that is actually contrary to statute,” Lemon said over the protestations of state officials who claimed it would be impossible to count duplicate signatures any other way.
“My role is to make corrections I feel are appropriate,” Lemon said. Even so, she said, “that doesn’t mean I have a better idea about the administrative process.”
But the judge said her job wasn’t to make the secretary of state’s job easier.
“Administrative practicalities aside,” Lemon said, “when they signed Ms. Coken’s petition, that was rightful.” She said she understood the secretary of state’s “burden,” but added, “I don’t think he was in substantial compliance.”
“You have to give the secretary of state a lot of credit for doing as good a job as they do,” Feeley said after the ruling. “They had 13 petitions, over 100,000 signatures, the time frame is very compressed, the staff is as much as they can put together, given budget constraints — it’s just a very tough undertaking for the secretary of state, but that’s why there is a review.”