Tancredo remains on ballot

Now campaign aims to soften up Maes supporters

By Marianne Goodland

An attempt to force American Constitution Party candidates Tom Tancredo and Pat Miller off the November ballot came to an end Tuesday, when Denver District Court Judge William H. Hood ruled in their favor. And on the same day, the Tancredo campaign unveiled its first TV ad that attacked Tancredo’s Republican opponent, Dan Maes.

Attorney Richard Westfall, who represented the two plaintiffs seeking to remove Tancredo and Miller from the ballot, told The Colorado Statesman Wednesday they do not plan to appeal the decision.

In a statement Tuesday, Tom Tancredo called the judge’s decision a “huge victory.”
Photo by Ernest Luning/The Colorado Statesman

The lawsuit was filed Sept. 2 in Jefferson County District Court by Republican activists Marian Olson of Golden and Joseph Harrington of Highlands Ranch, both Maes supporters. The duo sought to force Tancredo and Miller off the November 2 general election ballot, claiming that their candidacy, under the American Constitution Party, violated state statutes. The case was moved a day later to Denver District Court.

At issue was when Tancredo and Miller became members of the ACP, and when they disaffiliated with the Republican Party. According to the lawsuit, Tancredo changed his political party registration from Republican to ACP on July 26, 2010. This was more than two months after the ACP held its party convention, and the party had already nominated Ben Goss as its candidate for governor and Douglas Campbell as its nominee for lieutenant governor.

On July 27, Goss withdrew as the ACP gubernatorial candidate, and the party’s candidate search and executive committees nominated Tancredo to fill that slot. Miller changed her party affiliation on Aug. 23, and the next day Campbell withdrew his ACP nomination.

The ACP, in two letters to Secretary of State Bernie Buescher, who was also named as a defendant in the case, said the executive committee had agreed to waive provisions in the ACP bylaws governing time requirements for membership for nominees as it pertained to Tancredo and Miller.

Olson and Harrington, in their lawsuit, claimed state law required that Tancredo and Miller meet both affiliation and disaffiliation requirements, and that the ACP waivers were not valid.

The statute in question, Colorado Revised Statute 1-4-1304(2) says minor political party nominees must be affiliated with the party no later than Jan. 1 of the year preceding the general election, and cannot be registered as a member of a major political party after Jan. 1 unless otherwise provided for in the constitution or bylaws of the minor political party.

If the statute applied, Hood wrote, the ACP’s “designation of Mr. Tancredo and Ms. Miller is, at the very least, in serious peril. If it does not, then their designations [by ACP] are valid.” However, Hood said the statute did not apply, because it dealt only with how a minor political party initially nominates candidates. Another section of statute governs how minor political parties can replace candidates when a vacancy occurs, Hood wrote, and “neither statute refers to the other.” Hood designated the second statute, C.R.S.1-4-1002(4.5) as the more specific of the two, and hence the controlling statute in the matter.

The fact that Tancredo and Miller switched parties “at the 11th hour,” as was stated by the plaintiffs, is “irrelevant,” Hood wrote, because the plain language of the controlling statute “does not preclude that path to the ballot.”

Hood said that ACP’s decision to grant the waiver was done “out of an abundance of caution, given the potential for this litigation.”

Olson and Harrington also claimed their First Amendment rights were violated as they pertain to association, speech and ballot access, but Hood rejected that claim as well, stating that those rights, if any, belong to ACP, Tancredo and Miller, not the plaintiffs.

Hood also rejected an argument from the plaintiffs that Tancredo’s late entry into the race could cause political instability. “It is not appropriate for this Court to decide public policy,” Hood wrote.

Olson, in a letter to The Statesman, said she was “not a supporter of any particular candidate” but did not mention her May contribution to the Maes campaign. “My commitment is to the rule of law. The election process is fundamental to our form of government. If circumstances adversely affect the integrity of the ballot access system, our elections suffer. We all, as citizens, suffer,” she wrote.

Olson claimed she attempted to communicate with Buescher’s office regarding the rules but said she was stonewalled at every turn. As to the decision, Olson pointed to a statute (C.R.S. 1-4-502) that she said made the connection between the other two statutes that the Court said did not exist.

The ACP “took advantage of the opportunity to modify [part] of its bylaws,” Olson wrote, adding that the ACP also did not mention in their bylaws the disaffiliation requirement. “I truly believe that the disaffiliation requirement applied in this case and the requirement was not met,” Olson wrote. “I feel very sad that that I was not able to do enough to protect the ballot access system for this election. Hopefully, the legislature will act to make the connection more clear for the future,” she said.

In a statement Tuesday, Tancredo called the judge’s decision a “huge victory. The high-paid Republican lawyers managed to present a case that was weaker than their candidate¼ Now our focus must turn to the liberal mayor of the sanctuary city of Denver.”

However, the first TV ad for the Tancredo campaign, which also was released Tuesday, focused on Maes rather than Democratic challenger and Denver Mayor John Hickenlooper. The ad featured conservative activist and former Greenwood Village Mayor Freda Poundstone, who claimed she had been conned by Maes over money and conservative values, asking “what kind of man would do that to an 83-year old lady?” Bloggers, such as those on ColoradoPols.com, immediately took aim at the ad, pointing out that Poundstone was hardly a “helpless old lady,” (she’s a sponsor of one of the anti-tax initiatives on the November ballot) and questioned why Tancredo would go after Maes, who trails him by four points in the most recent Rasmussen poll, instead of going after Hickenlooper, who leads Tancredo by more than 20 points in that same poll. The Tancredo campaign’s current radio ad, which is running statewide on conservative talk radio, also goes after Maes on some of the same issues.

Tancredo campaign manager Bay Buchanan explained the strategy behind the ads. “The first thing we have to do is to strip Maes of as many votes as we can,” Buchanan told The Statesman. If the Tancredo campaign can strip Maes of 10 or 12 of his current 21 points in the polls, “that’s all ours. We have to get as many conservatives and those who would have voted Republican to vote for Tom.”

Buchanan said this strategy would be in play throughout September, to reach the conservatives and to let them know “Maes is not a viable option.” Once the poll numbers have moved toward Tancredo, “it turns into a two-man race in October, and then we focus on Hickenlooper. You can’t go into October going after Hickenlooper if Maes is sitting on our votes,” Buchanan said.