Tuesday, August 13, 2013

UPDATE: Lawsuit decision nixes mail ballots in recall

Posted By on Tue, Aug 13, 2013 at 4:10 PM

  • Senate President John Morse
El Paso County Clerk and Recorder Wayne Williams presented a detailed overview of the court’s decision at today’s El Paso County commissioners meeting.

Williams began by explaining that the recall law, written into the Colorado constitution 100 years ago and never before used, states that all successor candidate petitions are due “no later” than 15 days before an election. Williams noted, “Given the way elections are typically run in Colorado, that doesn’t work.”

But work it must, because Denver District Court Judge Robert McGahey ruled that Libertarians, and others interested in petitioning onto the recall ballot, must be given up to Aug. 26 to qualify for the ballot. 

The judge’s ruling is good for the Libertarian Party but bad for pretty much everyone else. And perhaps no one hates the ruling more than the two county clerks who are now waiting for Secretary of State Scott Gessler to rewrite all the rules for the recall. This is necessary because the ruling means it is impossible for the clerks to follow a new election reform law (House Bill 1303) aimed at increasing voter participation.


• After Aug. 26, the Secretary of State must verify all candidate petitions and permit legal challenges, meaning candidates won’t be certified until at least early September.
• That means Williams can’t prepare ballots, test them and distribute them until mere days before the election.
• The new election reform law requires ballots be mailed 18 to 22 days before the election to most voters, and 45 days before an election to overseas voters. That’s no longer possible.
• Additionally, required notices can’t be published and posted on time, and early voting centers won’t have ballots by the required date, Sept. 2.

This has created at least one immediate headache for Williams — what to do with the 645 ballots he’s already sent to military voters overseas, at a cost of $40,000 to $50,000. He is responding as follows:

• By sending a notification to overseas voters letting them know that the ballots may change, and asking them to check back after Aug. 27 online. The note also informs them that they can get a new ballot online or request one be mailed or faxed to them. All ballots must be returned with a signature.
• By asking the Secretary of State to rule on what information, if any, can be counted if old ballots are voted. Williams believes the first question on the ballot — which asks whether or not to recall John Morse — may be countable. The second question, in which voters choose a successor, may not be.
• Committing to sending new ballots when they become available. Military voters can turn in ballots as late as election day. If a person returns both ballots, only the second ballot will be counted.

As for the rest of us, Williams does offer some guidance:

• Despite his best efforts, don't count on finding a ballot in your mailbox before Election Day: “I don’t think we’re going to be able to mail ballots out in a timely manner.”
• The election will likely be run in a traditional manner, with voters needing to vote in person at a voting center. Williams will try to accommodate people who cannot vote in person because they are out-of-state or physically incapable. 
• More voting centers and polling places will likely be made available. This may involve taking over a couple clerk’s offices and possibly Centennial Hall for up to a week — pausing all other functions in the buildings, including the Department of Motor Vehicles and county commissioner meetings.

Williams says up to 50,000 people may visit a polling place, compared with the 2,000 expected when the election was largely done by mail ballot. About 64 percent of El Paso County voters signed up to vote exclusively by mail ballot.

In conclusion, Williams notes that elections are normally planned a year and a half ahead of time. “We now have a period of about 30 days to figure out how to run an election and run it with laws that have not yet been written — or rules that have not yet been written — because the laws simply cannot be complied with given the constitutional time frame,” he says.

Further confusing the issue, local Robert Nemanich an attorney who intervened on behalf of El Paso County in the Libertarian challenge,  has directed his attorney,  Mark Grueskin of Denver, tol appeal the case. Nemanich says he is stepping forward because he believes the current timetable is unreasonable for citizens. It’s unclear what would happen if a higher court reversed the decision.

----- ORIGINAL POST, TUESDAY, 12:45 P.M. -----

The Libertarian Party of Colorado won a lawsuit in Denver District Court last night that has turned the September 10 recall election on its head.

The party argued that it should have been given the 15 days allowed by the Colorado Constitution to turn in signatures to petition its candidates onto two recall ballots aimed at Senate President John Morse, D-Colorado Springs, and Sen. Angela Giron, D-Pueblo. The party was instead only given the 10 days allowed by state statute.

Judge Robert McGahey ruled that Secretary of State Scott Gessler should have provided 15 days, and ordered him to give the Libertarians until August 26 to petition their candidates onto the ballots.

“We’re really happy with the decision that the judge made,” Libertarian state chair Jeff Orrok told the Independent. “Now the ball is in our court and we’re going to have to hustle to get the signatures collected and start campaigning. We think the judge made the right decision because the Constitution is supposed to be the law of the land.”

The change, however, disappointed both Democrats and Republicans. It means that mail ballots that have already been printed out, and some that have been sent overseas, will be discarded. The short turnaround also means that it is unlikely that county clerks will be able to send mail ballots at all, necessitating a traditional election that will cost more money and likely lead to lower voter turnout. Overseas military voters could be disenfranchised.

Democrats will likely be hurt the most by the elimination of the mail ballot, since the party struggles more with getting its voters to the polls in off-year elections. But Republicans will be hurt the most by the appearance of a Libertarian candidate on the ballot who could split their vote. (Editor's note: The first question on the ballot — essentially, "Shall there be a recall?" — is the only one in which Morse is taken into consideration. If a majority of voters say yes, the clerk will turn to the second question: essentially, "Who will replace Morse?" The choices will be Herpin, perhaps a Libertarian candidate, and any write-in candidates. Because no Democrat will be among the choices, Democrats will not benefit from any "splitting" of the conservative vote.)

Republicans have resoundingly placed the blame for the mix-up on Democrats, who recently passed an election reform law aimed at increasing voter participation through mail-in elections. McGahey called the law “flawed.”

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