Voting panel narrowly escapes legal tizzy

By Chris Bragg
THE COLORADO STATESMAN

The layers of election law written in near-crisis mode over the past few years have created an ambiguous legal landscape for the state’s election officials.

And it’s hard to imagine that idea being expressed more eloquently than it was at a Capitol hearing last Tuesday morning.

It all began with a 45-minute debate over a single line in a bill passed last February.

Members of the 11-person Election Reform Commission thought the six-word line could be subject to at least three possible interpretations.

“THIS SECTION IS REPEALED, EFFECTIVE JULY 1, 2009,” states the last line in House Bill 1155, which is also the line in question.

House Bill 1155 allowed Secretary of State Mike Coffman to do further testing on electronic voting equipment after he had decertified about half the state’s equipment in December 2007. Under the powers granted by the bill, he eventually recertified it.

But does the bill allow that now-certified equipment to continue to be certified indefinitely, or will it again be decertified once the bill sunsets next July?

On first blush, the bill’s language would seem to clearly state the latter. But, according to Deputy Attorney General Maurice Knaizer, the situation actually is far from clear.

That thorny six-word sentence — the “repealer,” as Knaizer terms it — is problematic because of the way it might interact with a line earlier in the bill stating that the legislation, “SHALL BE EFFECTIVE ONLY FOR ELECTIONS HELD IN 2008 AND 2009.”

Knaizer testified that the two clauses might cancel one another out. The question is whether the section of the bill saying it would only apply in 2008 and 2009 would still apply when the bill is repealed in July 2009.

“The problem, as I see it, comes from the repealer. Once the repealer remains in place, then everything is gone,” said Knaizer.

And, wondered Deputy Secretary of State Bill Hobbs, in practical terms could that mean that the millions of dollars of voting equipment certified under the bill would continue to be certified beyond 2009?

The discussion was a lawyer’s dream. Fortunately, four members of the panel — Hobbs, electronic voting opponent Paul Hultin, GOP election lawyer Scott Gessler and Senate Majority Leader Ken Gordon — hold law degrees, and were there to engage with fellow attorney Knaizer in legal pontificating.

When it was his turn to speak, Gordon made an admission that he failed to disclose on his application for the open secretary of state job.

“I’m going to go ahead and confess,” Gordon said. “I was the Senate sponsor of 1155.”

Gordon said when he voted to put language in the bill repealing its provisions on July 1, 2009, his intentions were clear. Gordon said his intention was to have the bill be only a temporary fix for the 2008 election.

“I think that what you’re saying is because we said it twice, that revokes the first time,” Gordon told Knaizer, adding that he disagreed with that interpretation.

Knaizer said that if the “repealer” were indeed interpreted in the way Gordon says, then the next step would be to grant appeal hearings to electronic voting vendors whose equipment was decertified way back last December.

Hultin, however, had a different assessment than Knaizer of Gordon’s interpretation. Hultin argued that under the statute, all the electronic voting equipment Coffman decertified in December 2007 would have to be retested, instead of simply allowing the vendors to appeal the decertification.

“I have not looked at that interpretation,” Knaizer said.

Back in the real world, Larimer County Clerk Scott Doyle said the Legislature really does need to clarify the dispute along with other inconsistencies in Colorado’s election laws, such as those regarding the federal certification of voting equipment.

“To be able to hold a 2010 election, it seems to me we’re going to need to have some pretty serious legislative relief to make that happen,” Doyle said.

On that point, even the lawyers on the panel seemed to agree. After all the interpreting of HB 1155, Knaizer concluded that it was now the job of the Commission to come up with new policies stating what they want the law to be — and to state it clearly — rather than to sort through what previous legislation possibly might have meant.

“Do any of the non-lawyers on the committee have any questions?” Gordon asked.