October 02, 2011 07:36 PM UTC

GOP Mesa County Clerk Breaks With Gessler

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• by: Colorado Pols

As the Grand Junction Sentinel’s Charles Ashby reports:

Secretary of State Scott Gessler is right, but for the wrong reasons, Mesa County Clerk Sheila Reiner said Friday.

Gessler is right that county clerks are required to send ballots to registered voters for this year’s all-mail elections. But he’s wrong that they aren’t allowed to include inactive voters, particularly when it comes to those in the military, Reiner and other area clerks said. [Pols emphasis]

None of four area county clerks plans to mail ballots to inactive voters as Denver and other county clerks in the state are doing, but Reiner disagrees with Gessler’s recent lawsuit to block them from doing so…

“I had made a decision early on not to include the inactive voters because it wasn’t required,” Reiner said. “But I have to agree with the Denver County clerk and recorder that the statute requirements are only a minimum, and in many areas clerks often go over and above depending on the needs of their counties.”

Inactive voters always are an issue during odd-year elections such as this one, particularly when they fall after a mid-term election, the clerks said. Far more people vote during a presidential year than any other, but voters become inactive if they fail to vote in one even-year general election.

During the last presidential election in 2008, 2.4 million Coloradans voted, but last year only 1.8 million ballots were cast statewide. Currently, there are 1.2 million inactive voters on the state’s voter rolls. [Pols emphasis]

As we’ve discussed, Secretary of State Scott Gessler’s case rests on the insistence that the law is exclusive when it says clerks shall mail a ballot to “active registered electors”–basically, inferring the existence of the word “only” in this provision. Gessler asserts this is necessary to preserve “uniformity” in elections across the state, but the fact is that policies already vary county by county. A few counties are not even conducting all mail-ballot elections this year at all. GOP Mesa County Clerk Sheila Reiner, even though her office isn’t sending ballots to inactive voters, believes her office would have the prerogative to do so if she chose.

So there’s another informed opinion on the wrongheaded nature of Gessler’s lawsuit against Denver and threats against Pueblo over mailing ballots to “inactive failed to vote” status registered voters. We believe that this will be the opinion of the court when Gessler’s case against Denver is heard next Friday–that nothing in Colorado law prevents counties prevents counties from sending these ballots.

But we’ll note again: given what Rep. Charles Gonzalez has said about this situation while asking the Justice Department to get involved, flatly pronouncing the failure to send ballots to deployed soldiers “a violation of federal law”–more confidently in the case deployed military voters, but perhaps all “inactive failed to vote” status voters throughout the state who aren’t getting a ballot to participate in an all-mail ballot election along with everybody else–we wonder if the result of this will be a determination that Colorado’s mail-ballot system is just plain busted now that the temporary provision ensuring that ballots would go out to inactives has expired.

Regardless of the method of voting, is it legal to require voters who miss one general election to take extra steps, not required of those who didn’t, to participate in a subsequent election? Is it possible that, based on Gessler’s attempt to force Denver (and Pueblo) to be “uniform” with the other counties, the federal government might conclude that Denver and Pueblo were the only counties conducting a legal election? In an all mail-ballot election, what is the “electoral process” to which equal access must be protected under federal law if not the ballot itself? We’ve been careful to avoid making sweeping declarative statements about this, but we admit the questions that Gessler is raising by attempting to exploit this situation are kind of…sweeping.

Some of those answers could make Gessler sorely regret raising the questions. A ruling or legislation permanently mandating the delivery of mail ballots to all registered voters with deliverable addresses in counties holding mail ballot-only elections (as was the case in the last election cycle) could be fairly considered the worst outcome possible for Gessler. If that’s what happens, it would principally be a consequence of Gessler’s splashy, boorish, overreaching style–as you can read above, clerks like Sheila Reiner would have left the status quo alone.

But Gessler had to push it. It’s what he does.