Denver files suit against ‘inactive voter’ rule

For Secretary of State Gessler, it’s win some, lose some
The Colorado Statesman

Denver Clerk and Recorder Debra Johnson has filed a lawsuit against Republican Secretary of State Scott Gessler challenging recent election rules enacted by the secretary that prohibits county clerks from mailing ballots to so-called “inactive voters.”

The lawsuit, which was filed on Sept. 19, is the latest in a string of criticism over the new rules, which Gessler finalized on Aug. 15. The inactive voter rule has caused an uproar, as some believe it disenfranchises voters.

Voters are labeled inactive because they did not vote in the previous even-year general election and failed to respond to two postcard notifications asking for an update on their status. Concerns are being raised that those voters will not receive a mail ballot, and therefore will not vote.

While the lawsuit will not affect the upcoming November election, Johnson said it is necessary to receive guidance from the courts on future elections. City attorneys had 35 days from the enactment of Gessler’s new rules to challenge the rulemaking.

Secretary of State Scott Gessler

“The election rules adopted in August by the Colorado Secretary of State prohibiting the mailing of ballots to inactive-failed-to-vote voters in nonpartisan and coordinated elections infringes on Denver’s status as a home rule city and county,” Johnson said in a statement. “We believe that the Secretary of State is overstepping his authority by trying to control who gets ballots in local municipal elections.”

“The Colorado Constitution and Denver City Charter make it clear that municipal elections in the City and County of Denver are regulated at the local level and that the Clerk and Recorder has exclusive authority to conduct municipal elections,” continued Johnson.

City Attorney Douglas Friednash says that in addition to the home-rule argument, there is also the issue of being fair to voters and following through with legal obligations after those voters chose to permanently receive mail ballots.

“The goal of the suit is to have those provisions declared unlawful and void and permanently enjoined so this type of action is not repeated in the future,” Friednash said in a statement. “State election laws must be interpreted and administered in a manner that provides fair opportunities for voter participation.”

The Denver clerk’s office has the support of Mayor Michael Hancock, who also issued a statement backing the lawsuit.

“I strongly support the position of our independently-elected Clerk and Recorder and applaud Debra Johnson’s office for fighting for every citizen’s right to participate in Denver elections,” said the mayor.

“We should be straightforward with our electors, the laws on the books do not contain the restrictions imposed by Secretary Gessler’s new election rules,” continued Hancock. “These rules are excessive and interfere with Denver’s home rule powers to manage our mail ballots.”

Hancock went on to say that the issue is really about voter access, stat-ing, “I have stood with the Denver Election Division’s efforts to increase voter access and participation for many years. And today I proudly stand with them again to firmly say, ‘enough.’ Denver is a city that remains steadfast in its resolve to protect every eligible voter’s right to vote. We will continue to focus our efforts on increasing civic engagement through the voting process.”

For his part, Gessler had only this to say about the lawsuit: “As of last week, the clerk agreed with my office’s position, so this appears to be more grandstanding than actual policy differences.”

Alton Dillard, spokesman for Johnson, said no such agreement had ever been reached. He said a letter was sent to Gessler’s office on Sept. 4 asking for clarification, but that the clerk’s office never received a response.
“There were numerous discussions at the director level and at the clerk level with his people, including both from the city side and from the secretary of state’s side. We asked for confirmation in writing of their interpretation… one was not provided by the legal deadline in statute by which to file a court challenge to those rules and we proceeded,” said Dillard.

The lawsuit filed by Denver is actually the second such lawsuit addressing the issue of inactive voters in Denver. In 2011, Gessler’s office sued Denver for mailing ballots to inactive voters. That case is still pending.

Federal judge strikes blow to ballot secrecy advocates

The news hasn’t been all bad for Gessler as of late. The secretary cheered a ruling by a federal judge in Denver on Sept. 21 to dismiss a lawsuit filed by ballot secrecy advocates. The plaintiffs had argued that counties should not be allowed to print ballots with identifying marks that can be traced to individual voters.

Members and supporters of the Aspen-based Citizen Center discovered an algorithm that allows them to trace ballots with bar codes from the June Chaffee County Republican primary to individual voters. The group says that it can also trace ballots to voters in Boulder and Eagle counties.

But Denver U.S. District Judge Christine Arguello denied a request by the Citizen Center to temporarily block counties from printing ballots with identifying bar codes, and then dismissed the case, which had been filed against Gessler, as well as against the clerks in Boulder, Chaffee, Eagle, Larimer, Mesa and Jefferson counties.
In her ruling, Arguello said that tracing a ballot back to an individual voter does not violate federal voting rights, adding that there is no “fundamental right” to ballot secrecy in the U.S. Constitution.

But Marilyn Marks, founder of the Citizen Center, was outraged and shocked by the ruling, suggesting that tracing ballots back to individual voters could lead to unprecedented voter intimidation.

“The federal district court judge essentially told Coloradans that government officials and election workers may peer into the voting booth as we mark our ballots in November…” she said, adding that her organization plans to appeal the ruling. “November’s election needs to be free of such intimidating practices…”

Gessler, however, believes the decision to dismiss the case makes sense, especially after he issued an emergency rule on Aug. 20 preventing counties from printing ballots with unique numbers and barcodes in light of the discovery by the Citizen Center.

“The court made the right decision,” he said. “The fact is with our new rules and guidelines, voter secrecy is better protected now than ever before.”

Voter registration problems

In an unrelated voter registration issue, Gessler’s office on Wednesday alerted new voters that they might not be registered if they used using a mobile device or tablet during a period of 11 days.

The secretary’s office says 779 first-time voters who registered using the website and a mobile device between Sept. 14 and 24 have been affected.

The news comes as a blow to Gessler’s office, who on Aug. 31 announced an aggressive voter registration campaign, including allowing Coloradans to register to vote using a mobile device or tablet.

On Sept. 13, the office found and corrected problems of voters clicking the submit button more than once. Gessler’s office says the change to the programming created intermittent problems with the mobile site, resulting in those new voters not being added to the state’s voter registration system.

Anyone who registered using a mobile phone or tablet is asked to verify their registration at where they can re-register if necessary. Those voters will be allowed to register past the Oct. 9 deadline up to and on Election Day using an emergency registration or provisional ballot.

“My office will aggressively reach out to these individuals to ensure that they get registered,” Gessler said in a statement. “Anyone who registered using the mobile site can confirm their voter registration by visiting, contacting their county clerk or calling my office. I’m taking full responsibility and using all avenues available to alert these Coloradans of our mistake.”