September 28, 2011 08:39 PM UTC

Gessler Faces Federal Scrutiny Over Denver Inactive Voter Lawsuit

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• by: Colorado Pols

UPDATE: From MSNBC’s Rachel Maddow Show yesterday:

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A major story broken last night by the Denver paper, now spreading rapidly–yesterday afternoon, Congressmen Charles Gonzalez of Texas and Robert A. Brady of Pennsylvania sent a letter to U.S. Assistant Attorney General Thomas Perez expressing “concern about the rights of rights of voters in Colorado”–and asking the Justice Department to look into Colorado Secretary of State Scott Gessler’s recent decision to sue Denver to stop mail ballots from being delivered to “inactive” status registered voters in the state’s largest city.

On September 21, 2011, Colorado Secretary of State Scott Gessler petitioned the Denver District Court for an injunction which would [prohibit] the Denver Clerk and Recorder’s office from mailing ballots to eligible voters who did not vote in the last general election, as the Clerk has done in the past five mail elections. It is surprising to see Secretary Gessler base his petition on Section 1-7.5-107(3)(a)(I) of the Colorado Election Code as its purpose is to protect the right to vote rather than to deny it. The requirement that “the designated election official shall mail to each active registered elector” is plainly designed to insure that no active voter fails to receive a ballot. There is nothing in the law that would preclude officials from mailing ballots to eligible voters who had been unable or chose not to vote in a previous election. Had they so desired, the Colorado legislature could very easily have created such a prohibition by adding the word “only”. It would also have made the law unconstitutional, which may be one reason that they did not. Regardless, that they chose not to do so makes clear that this was not their intention…

If Debra Johnson, Clerk and Recorder for the City and County of Denver – who should know her constituents, their voting habits, and their election needs as well as anyone – feels that mailing these ballots out is appropriate, we can think of nothing that should stop her. Rather, she should be commended for taking steps to protect the franchise and encourage civic participation. What Secretary Gessler suggests is likely to disenfranchise eligible voters and should be condemned therefore.

Nor is this the first action by Secretary Gessler to raise concerns about the potential for disenfranchisement of eligible voters in Colorado. In March of this year, at a hearing of the Committee on House Administration’s Subcommittee on Elections, Mr. Gonzalez, the Ranking Member of the Subcommittee, cautioned him about his use of a poorly conceived and executed report to gin up support for legislation allowing him to purge voters from the rolls. One would hope that this experience would lead to introspection. Instead, the Secretary has moved from trying to purge voter rolls to trying to deny ballots directly. This is a disturbing pattern.

Title 2 of the Voting Rights Act of 1965 prohibits any voting practice or procedure that results in discrimination based on race, color, or membership of certain language minority groups, regardless of its intent. Given the diversity of the state of Colorado, and particularly that of Denver County, there is a high likelihood that the barrier to voting Secretary Gessler seeks to impose on these eligible citizens and registered voters will have such a discriminatory result in violation of the Voting Rights Act. [Pols emphasis]

Here’s the full text of the letter, and a release after the jump. Both Rep. Brady, who has advocated for military and overseas voters rights as the ranking member of the House Administration Committee, and Rep. Gonzalez–the other minority member of the Elections subcommittee–have a natural affinity for these issues, so it’s not surprising that Gessler’a activities have come on to their radar. Gonzalez also has some experience pummeling Gessler over his unproven claims of “illegal voters” on the rolls in Colorado during congressional testimony.

We’ve heard that a significant number of Colorado Republicans are growing angry with Gessler over his brashness in engaging in openly partisan shenanigans, both on and off the clock. We don’t know to what extent GOP brass even have the ability to pull the reins on Gessler, but it’s possible an attempt will come soon. Gessler is proving to be very, well, unsubtle in his efforts to skew Colorado elections for partisan advantage using the power of his office–a cardinal error. You’re supposed to be much slicker about this if it’s your goal, because the consequences of blowing your “nonpartisan” cover are pretty steep (see: Harris, Katherine).

And despite what Gessler may think sitting in his office imagining all the ways he can brazenly mess with the rules, there is a higher authority. We and others have noted that this just doesn’t seem like the right fight for Gessler to pick–seeking to reduce access by registered voters to ballots is an inherently very difficult position to defend. The full circumstances of this lawsuit against Denver absolutely reek of the worst kind of partisan chicanery and vote suppression, and there’s just no reasonable excuse for it.

Incidentally, was there an office pool running on how long it would take for the feds to take an interest in Scott “Fox in the Henhouse” Gessler? Who had “not even a year?”

Elections Subcommittee Democrats Seek Investigation of

Colorado Secretary of State; Warn His Actions May Deny Vote to Minorities, Disabled, and Military Voters

September 28, 2011 (Washington, DC) – In a letter to Thomas Perez, Assistant Attorney General in the Civil rights Division of the Department of Justice, Congressmen Bob Brady and Charles A. Gonzalez, the Ranking Members of the Committee on House Administration and its Subcommittee on Elections, respectively, have requested an investigation into actions taken by Colorado Secretary of State, Scott Gessler. Last week, Sec. Gessler petitioned the Denver District Court for an injunction to prevent the Denver Clerk and Recorder’s office from mailing ballots to eligible voters ahead of the November 01, 2011, election simply because they hadn’t voted in the last general election.

“No right is mentioned more times in the Constitution than the right to vote,” said Rep. Gonzalez. “It is the responsibility of every public official to ensure that eligible citizens are not denied that right. Secretary Gessler, instead, has taken steps that could prevent Coloradans’ civic participation. The Voting Section of the Department of Justice exists to protect this foundation of our democracy.”

Denver City and County Clerk and Record Debra Johnson has called this “a fundamental issue of fairness and of keeping voting accessible to as many eligible voters as possible” and the maps her office released suggest that districts with large minority populations would be particularly hard hit by Gessler’s rule. The congressmen were also concerned that eligible and registered voters who had missed the last election because of a disability or because they were deployed abroad at the time might miss their chance to vote this year.

“Election officials should always favor enfranchisement over exclusion,” said Rep. Brady. “Secretary Gessler’s actions fail to meet that basic principle and may deny thousands of American’s access to the ballot. The Department of Justice should move swiftly to examine this decision to make sure every Coloradan has the right to vote, especially those fighting for our country abroad.”

This injunction could have a disparate impact on disabled-Americans who were unable to make it to the polls in 2010 as a direct result of their disability, in violation of the Americans with Disabilities Act. The injunction could also disenfranchise Americans who were overseas in 2010, including those whose active duty deployments to Iraq or Afghanistan made voting particularly difficult. Democrats on the Elections Subcommittee have worked hard to broaden voter access. They passed the Military and Overseas Voter Empowerment (MOVE) Act in 2009 to make it easier for Americans who are abroad on Election Day to participate in our democracy, but significant challenges remain.

Sec. Gessler appeared before the Subcommittee on Elections on March 31, 2011 and Rep. Gonzalez questioned his claims about a need to purge voters from the rolls.

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