Supreme Court passes on petition appeal, keeps Coken on ballot

By Ernest Luning

DENVER — Jennifer Coken’s name will stay on the Democratic primary ballot after the Colorado Supreme Court on Tuesday declined to hear an appeal that could have thrown out signatures on her nominating petitions. State officials had asked the high court to reverse a recent lower court decision that said 100 signatures submitted by Coken should count, which gave her just enough to qualify for the August election.

By refusing to hear the appeal from Colorado Secretary of State Bernie Buescher, the Supreme Court leaves open a contradiction between state law and Buescher’s rules when it comes to counting signatures when a voter signs petitions for more than one candidate seeking the same office, attorneys said.

Jennifer Coken

“I’m ecstatic that the will of the voters in House District 4 has prevailed,” Coken said Wednesday after learning last week’s Denver District Court order putting her on the ballot would stand. “One of the cornerstones of my campaign has been about enfranchising people. That’s why I fought this in court. That’s why, if I needed to, I would have fought this in the Supreme Court.”

Coken will face Dan Pabon and Amber Tafoya — who also petitioned her way onto the ballot — in the primary to represent the heavily Democratic northwest Denver district. The seat’s current representative, Democrat Jerry Frangas, is term limited. Republican Rick Nevin and Libertarian Marc Goddard are also on the ballot.

Coken sued Buescher last month, contending his office was wrong to disqualify some of her petition signatures.

Earlier this month, Buescher’s office threw out 651 of the 1,400 signatures Coken submitted, leaving her 100 signatures short of the 849 required.

In addition to a handful of signatures both sides agreed were mistakenly excluded due to clerical and other errors, the case hinged on two rules the secretary of state uses to determine whether otherwise valid signatures should credit to a candidate.

Buescher excluded 54 of Coken’s signatures because election officials couldn’t find a petition circulator in the voter rolls and dropped another 24 signatures that were counted instead on a petition submitted by one of Coken’s primary opponents. In both instances, the judge said the secretary should have counted the signatures.

In a ruling issued from the bench after an all-day hearing on June 22, Denver District Court Judge Catherine Lemon ordered the state to place Coken’s name on the ballot, just in time for the county clerk to finalize an order to the printers.

“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.”

Coken said one of the first things she’ll do if she wins the seat is to try to sort out conflicting statutes and rules governing how petition signatures are counted.

“I want to work it out with the secretary of state’s office,” she told The Colorado Statesman. “I can understand them wanting to have specific guidance so that a candidate expects things to be done the same way, so there are a couple things we want to fix.”

Because the district court order is at odds with the secretary of state office’s current rules, it could open the door to a tangle of lawsuits and delays, state officials argued. Buescher wanted a ruling from the Supreme Court to “stem the likely tide of future appeals,” his attorneys wrote in the appeal.

“As a practical matter, the Secretary cannot ignore the ruling of the District Court,” the document read. “He must apply the decision when future candidate petitions are submitted for review and verification. Lawsuits by persons who agree with the Secretary’s interpretation are likely to follow,” the appeal warned.

The main sticking point is a state law that says voters can’t sign more than one petition for the same office, a requirement Lemon called “silly” and suggested lawmakers should reconsider. But under the secretary of state’s current rules, officials don’t try to determine which voters sign petitions correctly, just which candidates turn in their petitions first. In other words, the judge said the first petition signed by a voter is the one that’s signed according to the law and is the one that should count, but the secretary of state instead counts the first signature it sees and disallows any subsequent ones.

“That’s something that’s going to need to be fixed,” said attorney Mike Feeley, who represented Coken in the lawsuit against Buescher. “I don’t envy the secretary of state having to fix it on the fly. But that’s one part of the judge’s ruling that was pretty clear, that the rule that suggested they count the signatures based on what was filed first is really inconsistent with the statute.”

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.” She told government lawyers she understood the secretary of state’s “burden,” but added, “I don’t think he was in substantial compliance.”

“The secretary of state has an incredibly difficult job this time of year,” Feeley acknowledged.

Buescher’s office had only two weeks to verify roughly 100,000 signatures submitted on 13 nominating petitions from Democratic and Republican candidates for statewide and legislative office.

Without a ruling from the Supreme Court, the secretary of state’s office plans to proceed according to its existing rules on duplicate signatures, a spokesman said.

“We’ll continue to follow the process we have this year with the rest of the candidates,” secretary of state spokesman Richard Coolidge said.

Buescher’s office is in the process of reviewing petitions submitted by 24 unaffiliated candidates who are seeking spots on the ballot in November. Unlike Democratic and Republican candidates, whose only recourse on petition rulings is to take the secretary of state to court, unaffiliated candidates have a brief “cure” period after officials certify petitions and before county clerks are notified of the results.

This year, the secretary of state certified six candidates to the ballot and ruled that seven — including Coken — fell short. Coken was the only candidate to challenge Buescher seeking a spot on the ballot. Another case working its way through a different Denver District courtroom is seeking to disqualify Republican U.S. Senate candidate Jane Norton, contending a number of her signatures weren’t gathered according to legal requirements.