District Court sides with county clerks over Gessler

Ruling favors so-called “inactive” voters in state
The Colorado Statesman

Denver District Court Judge Edward D. Bronfin on Monday struck a blow to Republican Secretary of State Scott Gessler by ruling against the secretary and in favor of county clerks who want to mail ballots to so-called “inactive” voters.

Gessler’s office in 2011 filed a lawsuit against Denver Clerk and Recorder Debra Johnson for mailing ballots to inactive-failed to vote (IFTV) voters. Shortly after, Pueblo Clerk and Recorder Gilbert “Bo” Ortiz joined the lawsuit in support of Johnson.

Bronfin backed the opinions of Johnson and Ortiz, ruling that, “The Court concludes that [state law] must be interpreted to give clerk and records, and other local election officials responsible for conducting mail ballot
election, the authority to send mail ballots to IFTV electors in general elections.”

Voters are labeled inactive because they did not vote in the previous even-year general election and failed to respond to two notifications asking for an update on their status.

Johnson believes she has an obligation to mail ballots to inactive voters, suggesting that not doing so could disenfranchise voters and impede the democratic process.

“I am glad the court ruled in our favor,” Johnson said in a statement. “We have always disagreed with the secretary’s interpretation of which voters can be mailed ballots in coordinated elections. This is a fundamental issue of fairness and ensuring that the voting process is accessible. Eligible voters deserve equal access to the ballot and we look forward to resolving this issue once and for all.”

Johnson later told The Colorado Statesman that she was 80 percent confident that the court would rule in her favor.

“I think it gives you clear direction in coordinated elections,” she added of the ruling.

Ortiz shared in the cheer, stating, “It was in the back of my mind through this entire election cycle. So, we’re pretty happy with the result.

“We believed that we were right during this whole ordeal,” Ortiz continued. “I believe that we were in the right and that what we were arguing for was the correct stance.”

Several advocacy groups had also backed the clerks for mailing ballots to inactive voters, including Together Colorado, a Denver-based community group that advocates for minorities.

“Together Colorado and our member congregations strongly support this ruling as we believe that all registered voters — including black, brown, students and elderly voters — must have a voice in the democratic process,” said Rev. Dawn Riley Duval, a community organizer with Together Colorado.

Democratic lawmakers had also joined the fight against Gessler’s inactive voter opinion, including more than 30 current and former lawmakers who sent a letter to Gessler in August stating their opposition. Rep. Crisanta Duran, D-Denver, had led the charge for House Democrats.

“The court came out with the correct decision based on a lot of things that we were already arguing,” Duran told The Statesman following the ruling.

But she says the legislature must clarify rules surrounding mailing ballots to inactive voters so there is no future confusion. Even though the Denver District Court ruled in favor of the clerks, there is still a separate lawsuit pending that Johnson’s office filed in September against Gessler. Her office sued after Gessler in August enacted rules seeking to clarify state law by clearly prohibiting clerks from mailing ballots to inactive voters.

“We also need to look at legislation to make sure that we fix the issue and make sure that that decision is enforced,” added Duran.

Gessler has signaled that he is willing to compromise on legislation that would permit clerks to mail ballots to inactive voters. He is working with Johnson on the bill. Both Gessler and Johnson are confident that the measure will pass this year, despite it becoming a bit of a political football last year.

“It’s important that voters be treated the same wherever they are in the state,” said Andrew Cole, spokesman for Gessler. “We’re going to continue working with Denver to get to a compromise that can remove the confusion in the law. We hope that such a compromise will be taken up and passed by the legislature this session.”

Cole added that he believes the Denver District Court ruling acknowledges that state law is ambiguous and that if nothing changes in the law that it will mean different voters will be treated differently depending on what county they live in.

Johnson, however, does not believe that the ruling acknowledged any ambiguity in the statute.

“I’m not quite understanding that interpretation of it,” she said of Gessler’s office’s analysis of the ruling. “I fully intend to get the legislation introduced and passed this year.”

Peter@coloradostatesman.com