Recall opponents plead their case, claim petition language was faulty

And they also accuse proponents of forging petition signatures
The Colorado Statesman

Campaigns behind two Democratic lawmakers facing recall elections believe they have a clean shot at compelling the secretary of state’s office to nullify the petition signatures gathered by proponents.

Senate President John Morse of Colorado Springs and Sen. Angela Giron of Pueblo are standing on the firing line after proponents in Morse’s Senate District 11 and Giron’s Senate District 3 gathered the necessary signatures to force respective recall elections.

Recall proponents are fired up after the two lawmakers supported a package of gun control measures this year that included banning high-capacity ammunition magazines of more than 15 rounds and requiring universal background checks and fees.

Sen. John Morse

Morse’s foes — El Paso Freedom Defense Committee — submitted 16,198 signatures after paying Kennedy Enterprises at least $14,000 for petition gathering. The Secretary of State’s office said 6,061 signatures were rejected, but accepted 10,137 signatures. The campaign needed only 7,178, representing 25 percent of the 2010 vote in the district.

Giron’s enemies — Pueblo Freedom and Rights — submitted 13,466 signatures after a grassroots effort in which volunteers circulated petitions. Of the signatures, only 818 were rejected, representing a nearly 94 percent validity rate, an outstanding success rate for any petition drive, let alone a recall election.

Sen. Angela Giron

Proponents said they crosschecked each signature received with state voter databases. They needed 11,285 signatures to certify the petition, representing 25 percent of the votes cast for Giron’s seat in 2010.

Challenging the recall effort

But recall opponents from both camps are not willing to go down without a showdown. Both Morse’s and Giron’s campaigns have filed respective challenges with the secretary of state’s office. The first hearing, for Morse, was held on Thursday.

In both cases, the argument is that the state constitution requires petitions drafted to expressly include a demand for the election of a successor to the recalled official.

If the recall election were certified it would be two-part. First it would include a “yes” or “no” question on whether to recall the legislator. Then it would contain a list of replacement candidates. The challenge points out that the petitions did not state a requirement of a successor.

Much of the protest relies on a 2002 Colorado Court of Appeals case, Combs v. Nowak, in which the appellate court invalidated signatures seeking to recall two Central City aldermen and the mayor. A citizen filed a protest, claiming that the recall committee failed to include a demand for “an election of the successor…” It was argued that the demand was required per Article 21, Section 1 of the Colorado Constitution.

“They could have put it in there, they just chose not to…” high-profile Democratic attorney Mark Grueskin stated at Thursday’s hearing, arguing that there is a precedent with Combs v. Nowak.

Grueskin is also representing Giron’s supporters. The hearing for the protest of Giron recall petition sufficiency is scheduled for July 3. The outcome of the Morse recall protest will likely drive the outcome of the Giron recall challenge.

“The appellants did not do anything to try and comply,” Grueskin continued. “It’s not like they fell an inch short, they fell a mile short, and they didn’t even raise the issue with the secretary…”

Grueskin believes the burden fell not on the secretary of state’s office to present a legal petition, but with proponents. He said they should have had an election attorney counsel them, especially given the precedent.

“This isn’t about a ‘T’ that wasn’t crossed or some missing punctuation mark,” he added. “This is a substantive element of a recall petition that courts require in cases just like this one.”

Grueskin also pointed to a poll conducted by left-leaning Public Policy Polling, which showed that voters in Morse’s district did not know what happens after they sign a recall petition. The survey indicated that 54 percent of voters in SD 11 were unaware of what happens in a recall after petitions are certified. Grueskin said that is further evidence that the petition needed to be clearer.

Christy Le Lait, executive director of the El Paso County Democratic Party who is also leading efforts for A Whole Lot of People for John Morse, believes it is ironic that proponents may have violated a constitutional requirement. She points out that the Second Amendment drives them, and that the same fervor should apply to all constitutional matters.

“If it’s all about the constitution, I think following the constitutional language should be pretty important. It’s not magical language,” asserted Le Lait. “This isn’t some statute pulled out of nowhere. Recalls are serious business. And if they’re going to do it, then they need to follow all the rules and be completely up front with every person.”

But Richard Westfall, another notable Denver attorney who often represents Republicans, argued for proponents that they were simply following directions offered by the secretary of state’s office. He rejected the poll presented by Grueskin, saying it was “completely unreliable and should be irrelevant.”

“This does not speak to the confusion of petition signers,” Westfall declared of the poll.

“The problem in this case is that there was no mistake made,” he added.

Westfall points out that proponents received the same recall petition form voters have been using for years, even dating back to a Democratic secretary of state.

Deputy Secretary of State Suzanne Staiert oversaw the four-hour hearing. Neither Morse nor Republican Secretary of State Scott Gessler attended. The conference room was packed, standing room only.

Staiert asked many questions, but did not indicate which way she intended on ruling. She will issue a decision on whether to uphold the signature validation by July 3.

If the recall is certified and an election occurs, it would be the first time in state history that state legislators face an actual recall election. Recall proponents believe their opponents are simply trying to delay history.

They allege that if opponents can draw the election out to the November general election, they might have a better chance at defeating the effort. Even if the secretary of state’s office upholds the signatures, the protests are likely to land in the courts, which would delay the effort further.

But not everyone believes stall tactics would work. Anthony Garcia, spokesman for Basic Freedom Defense Fund, said his base is enthusiastic about seeing Morse ousted.

“It may go to the general election, but I don’t feel it would be a problem,” he said. “Recalls are generally a voter turnout election. This being an off year, it’s possibly not going to affect the turnout very much. And even if this was 2014, or 2016 and it was a presidential election, we would still win because we have so much passion on our side. It’s incredible the amount of passion we’ve seen from everybody involved.”

Victor Head, who is heading up the effort to recall Giron, agreed, adding, “They’ll try and drag it out as much as they can.

“I think it’s disingenuous,” he continued. “If the people spoke and 25 percent of the people we needed to get the signatures to have an election happened, why don’t we just have the election and find out? Morse supporters keep saying they have the support and they did what the majority wanted. Let’s have an election and make sure. Obviously there are some contesting views, so let’s just make sure.”

Becky Mizel, chairwoman of the Pueblo County Republican Party, said delaying the election could work in her party’s favor. The only Republican candidate currently running in SD 3 is George Rivera, a retired Pueblo police deputy chief. Mizel said delaying the election would give them more time to stump for Rivera.

“George is a newer candidate. We think it’s to our advantage if they stall it out. We don’t mind if it goes a bit longer. It will give us more time to get George’s name out there and really get done what we’re trying to accomplish here.”

Removing signatures

There is one other way in which recall opponents can cancel the election, which is getting signers to take back their signatures.

Recall opponents in both Colorado Springs and Pueblo are making phone calls to signers asking them if they would withdraw their names from the recall petitions. Staffers are then heading to doors with forms for those voters to sign that would nullify their original mark.

Le Lait said it is unlikely that her campaign will be able to get enough people to remove their names from the petition, but she said there are “more people than you would imagine.”

“You have to keep in mind that we don’t have hundreds of people combing the streets and we’re certainly not paying per door like Kennedy Enterprises did, that changes a lot of things. But we’ve gotten several hundred removals at this point,” stated Le Lait. “The main thing we know is that people were really confused about what they were signing.”

Head said he is outraged by the removal effort in Pueblo. He called it “Chicago politics,” pointing to Giron’s campaign manager, Chris Shallow, who was brought in from Illinois to run the campaign. Before that, Shallow had worked on various campaigns in Illinois and across the country, including assisting with Obama For America.

“It’s laughable,” Head said of the removal effort. “I’ve yet to see one of these voters. No one has come forward and said, ‘I didn’t know what I was doing, and they lied to me.’ It’s Chicago politics coming to Pueblo.

“[Giron] goes through her Chicago thug,” Head continued. “He just detracts and makes up lies and says, ‘They’re intimidating…’ No one is talking about does she represent her district or not?”

Unlike Pueblo Freedom and Rights, major outside donations has buoyed Giron’s campaign. She has been assisted by $35,000 from the Washington, D.C.-based Sixteen Thirty Fund, $20,000 from Denver-based Citizens for Integrity and $15,000 from Mainstream Colorado. Similar contributions were made to Morse.

Giron has not returned multiple requests for comment left by The Colorado Statesman. But Shallow scoffed at the accusation that Chicago thugs are fueling the campaign.

“They’re accusing us of Chicago-style politics? That’s pretty interesting,” he responded.

“What we’re doing is we’re exercising our First Amendment rights,” Shallow continued. “We are calling people; we are knocking on doors. That’s protected by the First Amendment; that’s free speech. We are in no way harassing people.”

In both Pueblo and Colorado Springs, both sides have accused the other of distributing misinformation and harassing voters. Many of the attacks have revolved around campaign finance, especially in Pueblo.

A video has circulated of a Pueblo man handing out $20 bills to volunteers holding signs supporting Giron and asking voters not to sign the recall petition. Colorado law states that any campaign donation of $20 or more must be reported. Giron’s campaign has denied knowledge of the cash disbursement and said all donations will be filed in financial disclosures.

On the other side, Giron’s camp has accused Pueblo Freedom and Rights of similar campaign finance violations. The group’s disclosures contain non-itemized filings. Giron’s campaign filed an ethics complaint against Pueblo Freedom and Rights for having monetary filings that exceed the $20 limit for remaining anonymous. For example, the group reported receiving donations of $1,017 and $1,897 without disclosing its source.

Head’s explanation is that most of the money has come from grassroots supporters who drop small amounts of cash into a bucket or hat at fundraisers.

“It’s all perfectly legal,” explained Head. “It’s exactly what the manual says. They’re called pass-the-hat events. Any time you have an open donation bucket or a hat or whatever, and that’s what we had, 20 or something of them running around town.”

And in Colorado Springs on Friday, Morse’s camp accused proponents of forging at least 50 petition signatures. One example was of a man who has not lived in Colorado for over a year; another involved an elderly woman who says she did not sign the petition; and a third example included a woman who died two years ago, according to Le Lait.

Morse’s campaign would not provide details on most of the forged signatures, including last names. Le Lait said the voters would be subpoenaed and at that time they would be revealed. Until then, she wants to protect their identity.
“Again and again the recall effort has come under fire for using illegal and fraudulent practices to obtain signatures,” exclaimed Le Lait. “It’s time to put an end to the deceit. Voters of Colorado Springs deserve a full investigation before anyone demands an election.”

Proponents completely agree. Garcia said his group is carefully examining the signatures to determine if there were instances of fraud.

“We don’t know [how this happened.] When we know more we’ll be happy to publicly release it and if we can we’ll release the name of the person and we’re going to prosecute them,” Garcia promised. “We have absolutely zero tolerance for this. It’s shameful. We’re going to find out why and how this happened.”

Republican candidates

Meanwhile, if an election does happen in Pueblo and Colorado Springs, alternative candidates would need to be placed on the ballot. Candidates must collect 1,000 signatures to appear on the ballot.

The only way around it is if Morse and Giron choose to resign. Barring a successful protest, at the conclusion of the protest period, Gov. John Hickenlooper, a Democrat, would be responsible for setting an election date. The election date would be held between 45-75 days from the end of the protest period.

But the lawmakers have 10 days from after the governor sets an election date to resign office. In that case, Democratic vacancy committees would convene in the respective districts and the committees would appoint a replacement.

Rumors have circulated that both Morse and Giron are being pressured to resign in an effort to keep the seats in Democratic hands. But sources close to both campaigns deny such discussions are ongoing.

Democrats in both districts also say they are not seeking alternative candidates to place on the ballot in an attempt to offer voters a choice. Instead, they remain united behind their current representation.

But in Colorado Springs, former Rep. Mike Merrifield’s name keeps coming up as a potential alternative candidate, or someone who could replace Morse if he resigns. Merrifield became state director for Mayors Against Illegal Guns, an organization co-founded by New York City Mayor Michael Bloomberg, who has been targeted by gun rights supporters. No Democratic names have yet emerged in Pueblo.

That leaves Republicans scrambling to find candidates. The issue is easy in Pueblo where only Rivera is running. But the situation is more complicated in Colorado Springs where two Republicans have emerged.

One candidate is retired Navy and Air Force officer and former Colorado Springs City Councilman Bernie Herpin. He is also past president of the Pikes Peak Firearms Coalition. The other candidate is small business owner Jaxine Bubis, a Rocky Mountain Gun Owners-backed candidate.

“For too long, John Morse has been more interested in doing the bidding of Big Government interests in Denver and Washington and less interested in the economic concerns and well-being of our community,” Herpin said in announcing his run.

“I’ve become increasingly concerned with those in power aligning with East Coast politicians in a radical attempt to strip away our constitutional rights,” Bubis said of her run. “Whether it’s the blatant attack on our right to keep and bear arms or the utter disregard for our First Amendment, things are swiftly moving in the wrong direction.”

The clock is already ticking. The El Paso County Clerk and Recorder’s office has asked Hickenlooper to set a date of Aug. 27 for the election. The office acknowledges it is a bit of wishful thinking considering the likely court challenges coming.

Still, El Paso County Republicans are trying to narrow their choice down to one in order to rally behind a single candidate. Having two candidates could split the vote and hurt efforts to put Morse’s seat in GOP hands.

Details are still emerging, but county GOP officials have indicated that they would like to establish a process by which the Central Committee in SD 11 would choose. The candidate with the fewest votes would be required to withdraw from the race.

“We would like to [have one candidate] and that has been the overwhelming consensus from the feedback that I have received from Republicans,” said Jeff Hays, chairman of the El Paso County Republican Party. “We are still hammering out the final details of the process.”

Peter@coloradostatesman.com