September 22, 2011 10:01 PM UTC

Gessler Knows What It Looks Like, Doesn't Care

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• by: Colorado Pols

The Colorado Independent’s John Tomasic:

Citing state election law, Gessler contends that the Denver plan to send mail ballots to all registered voters in the county is illegal because the law forbids sending ballots to “inactive voters” – that is, registered voters who failed to cast ballots in the last election. At a heated press conference Wednesday, he explained he was filing the suit in order to bring Denver County in line with the law and to establish a uniform election process in counties across the state.

In a release announcing the suit, Gessler quoted a Colorado statute that directs county clerks to “mail [ballots] to each active registered elector.” Gessler is apparently pinning his case in part to a state law passed in 2008 that explicitly required Colorado counties to mail ballots to inactive as well as to active voters. That law was passed only as a temporary measure amid complaints that it established an unfunded mandate. In its absence, Gessler will argue, counties can not send ballots to inactive voters.

Counties have taken different approaches on the subject in the years since but a scan of coverage suggests that cost has been the controlling factor in clerks’ offices not legal questions…

“[Gessler’s suit] would disproportionately affect the elderly, young voters, low income voters, the disabled…That’s not uniformity,” [Campaign for a Strong Colorado Director Ellen] Dumm told the Colorado Independent. “These are legally registered voters. There’s a huge number of people who voted in the presidential election of 2008 who didn’t vote in the off-presidential election of 2010. They’re still registered. He’s creating a new class of voters.”

Dumm conceded that, in addition to typical presidential-election-year-only voters like her mom, a lot of the voters who would fall into Gessler’s new category would be so-called Obama surge voters- young and minority voters drawn out in 2008 by Obama and his get-out-the-vote grassroots army…



The mostly unspoken assumption surrounding the suit is that Gessler’s proposed interpretation of election law would engender a downward-spiraling effect on voter turnout. Inactive voters would not receive ballots in the mail and so would fail to submit them on time and so would not vote this year, ratcheting up the total number of inactive voters for the next election. [Pols emphasis]

As we understand it, there is untested semantic ambiguity in the statute that Secretary of State Scott Gessler is seeking to resolve by reducing the number of mail ballots sent–sending ballots only to voters who are “active,” meaning they voted in the last general election. The word “only” in reference to “active registered voters” does not appear in the statute, however, and Gessler is operating on the principle that the expiration of a law explicitly mandating mail ballots be sent to all registered voters, including those marked “inactive” due to failure to vote in an election, amounts to a prohibition of the practice in the future.

That’s an amazing leap of legislative interpretation, folks, and it runs counter to the clear expressed intent by the legislature in easing mail ballot usage in Colorado–to make voting more convenient, not less. The “ratchet effect” created by Gessler’s proposed interpretation of the law would not only reduce the number of voters receiving ballots over time, but would have an immediate partisan benefit to Republicans: registered voters from the 2008 Democratic surge who sat out 2010 not getting ballots. As you know, we know, and Scott Gessler knows, that is a lot of heavily Democratic voters, in Denver, Pueblo, not to mention elsewhere.

Presuming the failure of Gessler’s lawsuit, it seems to us the best way to resolve this in a way that protects the equal right to vote, without creating a new class of disadvantaged voters simply for missing an election–possibly keeping our state compliant with the federal Voting Rights Act in the process–is to make permanent the temporary 2008 law mandating mail ballot delivery to all registered voters in counties using mail ballot-only systems. In the meantime, we can only marvel at the brazenness: the actions of an openly predatory Secretary of State to misuse the law for what amounts to, surprisingly weak protestations aside, naked partisan vote suppression. Somewhere between this and Gessler’s fundraiser to raise money for fines his own office levied, we’re left with an unavoidable impression that this man has dropped all pretense of fairness.

If so, that is exactly–exactly–what we told you to expect from Gessler in this office.