Voter rights groups and state officials reach deal

By Chris Bragg

After eight grueling hours of hearings and negotiations in U.S. District Court in Denver, voting rights groups and the Colorado Secretary of State’s Office emerged with an agreement just after 9 p.m. Wednesday on the status of thousands of voting registrants and applicants who had been removed from the state’s voter registration rolls.

Under the agreement, the names of the disputed voters will not be in the poll books on Nov. 4. They will be able to vote a provisional ballot, however, and the handling those provisional ballots will be expedited.

Under the agreement, the Secretary of State’s Office will generate a list by Nov. 5 containing the names of all voters whose registration was canceled for any reason between May 14 and Nov. 4, and those voters will have their registrations verified before other voters who used a provisional ballot.

In addition, if one of the those provisional ballots is rejected by the counties, then the rejection will be reviewed by the Secretary of State’s Office and voting rights representatives.

After the deal was announced by U.S. District Judge John Kane, representatives of the Secretary of State’s and Attorney General’s Offices contended that the deal was essentially the same one they had offered the voting rights groups two days earlier.

However, Jessie Allen, an attorney for one of the voting rights groups, the Washington, D.C.-based Advancement Project, said key concessions had resulted from the hearing, including an agreement by the state that the court would continue to supervise the ballots of the voters in question, and that the plaintiff’s counsel would have direct input on whether provisional ballots were ultimately accepted.

“I think that happened after hearing the judge express some disgust over what was going on here,” Allen said.

Before the parties entered into negotiations, following oral arguments and testimony, Kane made clear that he felt the state had been “out of bounds” in removing voters. However, he said simply returning the voters to the poll books just six days before the election might jeopardize the results.

“I would not be interested in any kind of injunctive relief that would ... cause any kind of change in the system,” he said.

Kane also said, however, that he was “very concerned that if the provisional ballots have to be used, they have to be counted, they have to be evaluated, irrespective of what the [results of the election] are.”

Those comments set the tone for the negotiations making clear to the plaintiffs that Kane would intervene if needed and clear to the election officials that he realized time was growing short.

Common Cause of Colorado, Mi Familia Vota Education Fund and the Service Employees International Union filed the lawsuit against Secretary of State Mike Coffman Oct. 24.

The plaintiffs — many of whose lawyers flew in from national voter advocacy groups in Washington and New York — contended that the secretary of state had violated federal law in two ways, and asked that the voters in question be placed back onto Colorado’s voter rolls.

First, the plaintiffs argued, Coffman had removed at least 12,000 voters and as many as 27,000 voters from the rolls illegally. Under the 1993 National Voter Registration Act, it’s illegal to remove voters from the poll books within 90 days of an election unless the voter has died, moved out of state or been declared mentally unfit. Only 1,892 of the voters were removed within the 90-day period for those legal reasons, the plaintiffs argued.

Second, the plaintiffs argued that a Colorado law — dictating that new registrants be stricken from the voter rolls when a notice sent to their address is returned within 20 days of its receipt — violates federal law. The plaintiffs cited a recent Michigan case in which a federal judge overturned a similar law. The plaintiffs said 1,136 of those voters were purged between July 21 and Oct. 9 in Colorado, and 3,291 of them had been purged since August 2007.

The National Voting Rights Act says election officials have to “complete, not later than 90 days prior to the date of a primary or general election for federal office, any program the purpose of which is to systematically remove the names of ineligible voters.”

Coffman, however, says he’s allowed to remove names from the rolls if it’s done though a “system generated” process of the SCORE statewide voter registration system — which automatically removes duplicate registrations — and not a “systematic purge” of voters with only one registration.

In their brief to the court, the state also claimed that names were removed for other reasons, including conversion from county-based registration to the SCORE system in April or because a registrant had requested to be taken off.

The plaintiffs initially sought to have voters put back on the rolls in time for Election Day, and they offered two possible options: Giving county clerks supplementary lists with their names, or inputting those names into the SCORE statewide voter registration system.

In seemingly rejecting the first approach, Kane said he’d been impressed by testimony from Colorado Elections Director Wayne Munster, who said giving election judges voter names in the form of a paper list — which would then be added to poll books — could throw the election into “a disaster.” Munster said county clerks were already overwhelmed and lacked time to implement such procedures. He argued that provisional ballot should be used instead.

In arguing against the second option, Trevor Timmons, the secretary of state’s chief information officer, said that the statewide voter registration system was in “lockdown” mode, and that making the kinds of changes requested by the plaintiffs could take six to 12 weeks.

Estimates of the number of voters whose status was at stake ranged widely depending on whether the estimates was from the plaintiffs or the defense. The plaintiffs cited a study by New York University professor Jonathan Nagler, a national voting expert, in which he compared recent Colorado voter registration lists and estimated that 12,967 voters had been stricken from the lists illegally.

However, Coffman contends that only 2,454 voters were struck from the rolls within 90 days of the election, and even striking that limited number was legal. An article in the New York Times that prompted the lawsuit cited similarly high numbers, which Coffman said were “out to lunch.”

In his testimony, Timmons said Nagler had made eight separate false assumptions in coming to his numbers, because he didn’t have access to all of the information available to the Secretary of State’s Office.

One large question remained unanswered by the plaintiffs in both oral and written argument: Why were these thousands of voters stricken from the rolls? What was the cause or process that resulted in the alleged error? Neither the plaintiff’s attorneys, nor their clients offered an answer.

“This continues to be a problem in the state. We need a long-term remedy. But for now, we need to be thinking about this election,” said Grace Lopez, director of the Colorado chapter of Mi Familia Vota.

The two voters in the courtroom who testified — in fact, the only witnesses called by the plaintiffs —were stricken from the voter rolls for a reason that both sides acknowledged was unusual.

Linda and James Johnson, a Colorado Springs couple, registered to vote last May, but were stricken from the rolls in September when a voter registration drive fraudulently filled out voter applications bearing their names. The new applications listed the wrong addresses and signatures. That meant that the couple was sent a new address confirmation card, but that it was sent to the wrong address. The Johnsons became aware that they were no longer registered only because the plaintiffs contacted them.

The plaintiffs used the couple as an example to show that county clerks were not adequately diligent in checking address changes — or other reasons for striking registrants and voters — and thus all voters removed from the rolls since May should be returned to the system.

That didn’t occur. Instead, a deal was struck with the state, and the plaintiffs still expressed relief — and declared victory — at the pact. At news of the deal, Kane praised both sides for being willing to compromise.

“I think this is a much better way,” he said. “I’m very, very pleased with what you’ve done.”