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October 07, 2011 05:37 PM UTC

Gessler v. Denver: Today's The Day

  • by: Colorado Pols

SATURDAY UPDATE: Secretary of State Scott Gessler’s statement on yesterday’s court action and denial of his requested injunction, via the Colorado Independent:

“The judge today did not decide on the merits of the case as this was a preliminary decision. The judge said we have a reasonable probability of success on the merits but also admitted his decision could throw the outcome of the election in doubt.

“Coloradans can continue to expect my office to enforce the laws on the books, preserve statewide uniformity, and ensure election integrity,” Gessler said. “Unfortunately, the judge’s decision today allows counties to operate this election differently based on how much money they have. We’ve seen constant erosion of personal responsibility and this decision continues that erosion.

“There can be respectful disagreement over whether Colorado has a good law. But the issues argued in court were largely muddled by overblown political rhetoric and grandstanding by those seeking partisan gain. As we move into the presidential election, I would challenge Coloradans to look beyond the rhetoric, beyond the embellishments and beyond the overblown statements to arrive at your own conclusions. This is merely the first salvo in a long election year to come. [Pols emphasis]

“As I’ve said, inactive voters can still participate in this election by updating their status at, by contacting their county clerk or by showing up to any service center or polling place before the election.”


UPDATE #3: The Pueblo Chieftain’s Peter Roper:

Pueblo Clerk Gilbert “Bo” Ortiz said that after the judge’s ruling, county employees began mailing ballots to 64 inactive military voters Friday afternoon and would send ballots to the other the other 17,000 inactive voters in the county next week. That’s when Ortiz is mailing out all 82,000 ballots he’s ordered for the Nov. 1 election.

“From the beginning, we thought that providing ballots to our inactive voters was the bare minimum of our obligation,” Ortiz said after the judge refused to grant Gessler an injunction against Denver and Pueblo counties. “I don’t know where this leaves the other (58 counties, which will mail) that had decided  not to send ballots to inactive voters, but we’re going to be working now to get all our ballots out on schedule.” [Pols emphasis]


UPDATE #2: Just in via Twitter from Sara Burnett of the Denver paper–Pueblo County Clerk Gilbert Ortiz will mail ballots to inactive voters in that county as well, mail ballots to overseas/deployed military will go out “immediately.”


UPDATE: Denver District Judge Brian Whitney DENIES preliminary injuction sought by Gessler against Denver, inactive voter ballot delivery permitted. Case to proceed on merits. Developing.

As the Pueblo Chieftain’s Peter Roper reports:

Like a fistfight in the street, the judicial showdown between Colorado Secretary of State Scott Gessler and two county clerks – Pueblo County’s Gilbert “Bo” Ortiz and Denver Clerk Debra Johnson – is starting to draw a crowd as both sides head for a court hearing today in Denver.

Denver District Judge Brian Whitney is scheduled to hear Gessler’s request for an injunction against Denver County at 1 p.m. today. Ortiz will be there, along with Pueblo County Attorney Dan Kogovsek, hoping Whitney will accept their filing to be included in the courtroom fight.

The dispute pits Gessler, a Republican, against Ortiz and Johnson, both Democrats, over the issue of whether the clerks can send mail ballots to inactive voters in those counties…

Like Johnson, Ortiz has argued, with the advice of Pueblo County Attorney Dan Kogovsek, that inactive voters are still entitled to receive ballots, regardless of their response to postcards or other notices.

Ortiz sharpened the confrontation last week by challenging Gessler on the question of inactive military voters.

Yesterday, Denver advocacy groups Mi Familia Vota Education Fund and the Urban League of Metropolitan Denver filed an amicus brief in support of Denver Clerk Debra Johnson:

This brief will establish that the Secretary’s actions are contrary to Colorado law because they unnecessarily and improperly restrict voter participation and potentially disenfranchise eligible electors. Further, because the Secretary’s Order to the Clerk has a disproportionate impact on eligible Hispanic and African-American electors and denies them the opportunity “to be permitted to vote” under Colo. Rev. Stat. § 1-1-103(1), it should be found void ab initio.

Courtesy Colorado Common Cause, here are links to many of the principal documents and press releases related to the case–a lot of which you already know about, forming the basis of coverage of the story over the past couple of weeks. Here they are in one spot for reference:

Press Release: Colorado Common Cause Files to Intervene in Gessler v. Denver

Colorado Common Cause Motion to Intervene

Colorado Common Cause Answer and Counterclaims

Secretary of State Gessler Complaint

Secretary of State Gessler Motion for Preliminary Injunction

Pueblo County Clerk and Recorder Letter to Secretary Gessler

U.S. House of Representatives Letter to U.S. Department of Justice

Amicus Brief in Opposition to Motion for Preliminary Injunction on behalf of Mi Familia Vota Education Fund and Urban League of Metropolitan Denver

Motion to File Amicus Brief

UPDATE: Read Denver’s response here, courtesy Junction Daily Blog.

We’ll update this afternoon with developments from court.


57 thoughts on “Gessler v. Denver: Today’s The Day

    1. You don’t have to read them all–just Gessler’s complaint and motion for injunction, and Denver’s filing.  The other briefs are interesting, but the judge will have to grant their motions to intervene before they’re relevant to the case.

      Interesting aside–in one of his filings, Gessler cited Bush v. Gore.  An attorney told me that’s sort of the Godwin’s Law of lawyering.

        1. “As a Usenet discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.”

          In the lawyering context, it shows that you’re pretty much shot your wad and can’t make any better arguments.

          1. The Bush v Gore decision explicitly states that it cannot be used as precedent (yeah, go figgur). Past attempts to invoke it as precedent have failed.

            1. But I read the whole Bush v. Gore decision and can’t find the word “precedent” anywhere.

              What I DID find in section II B of the decision is this statement:

              Our consideration is limited to the present circumstances

              At least to my untrained eye, that seems to severely limit the ways the decision can be used.

              1. but at the time it was widely reported that the court had taken the extraordinary step of stipulating the decision not be considered as setting a precedent.  The general idea was, as I recall, that since it was based on the lack of uniformity from county to county in the recount method and since  that kind of uniformity simply didn’t then (and doesn’t now) exist, allowing it to set a precedent would pretty much make all elections impossible until such uniformity could be achieved.  Could probably find something with the google but that’s how I remember it.  

                It was pretty much a cynical one time only decision by the conservative majority court including Sandra Day O’Connor who subsequently became beloved by progressives for her swing vote with us on some issues. Unfortunately her vote swung with the bloodless coup faction on that day. One could say the Justice O’Connor pretty much appointed GW.

    2. Bottom line: he is reading language into the statutes that does not exist.

      The rest of the hoopla is merely grand theatre.

      Speaking of which, today is a day of Theatre for me. I get to watch the courtroom drama this afternoon and then I’m going to see Hair tonight. I’m quite excited because I have never seen it on stage before.

        1. I figured the hearing would go right to 5 o’clock. If the laywers had their way, it would have.

          But the Judge gave the SoS’s office the opportunity to make their case. They called two witnesses, Hillary (forget her last name) who is the SoS’s person responsible for approving county Mail Ballot Plans; and Judd Choate, the state Director of Elections.

          Much of the testimony established facts. After that, there were three principle points:

          1) No where does the law tell counties they cannot send ballots to FTV (Failed to Vote) voters.

          2) The SoS rules do not address the issue.

          3) FTV voters do not pose any increased risk of fraud over any other voter.

          To this last point there a great moment: Choate was asked if he was concerned about voter fraud in relation to the FTV voters. His response: “The office has concerns.” Clearly distancing himself from Gessler’s witch-hunt mentality. I almost laughed out loud.

          Once the State presented their case, the judge interrupted and declared it was not necessary to continue with defense testimony, he could rule from the arguments in the briefs. He did give each side the opportunity to bring up anything additional to what was submitted in writing, the State had a procedural issue to sort out, but nothing of substance was added.

          The judge’s ruling to allow the FTV ballots go out was only in reference to the pending injunction. There will still be a fuller litigation on the merits of question at hand. But by the time that gets resolves, I am hopeful the legislation will make it a moot point.

          The parties that wated to intervene (Pueblo, Common Cause, etc) were not allowed to for this injunction hearing, but will be considered again for the fuller litigation to come.

    1. … pick up a little weekend work consulting in Ryan Call’s office

      … write a freelance piece “Musings on Voter Fraud” for Koch’s AFP  

  1. in today’s paper presents a concise set of facts and stats with regard to the primary concerns involved in this dispute.

    And before ArapG, etc. pounce on the  236 “inactive” voters signatures that were rejected in Denver’s June run-off as proof that voter fraud is a serious problem, the fact is that none of these possible attempts at voter fraud were successful so 0 out of the 236 votes were fraudulently counted while close to 6000 out of 55,000 “inactive” voters successfully participated after all with the added nudge of having a ballot arrive in the mail.

    This is completely leaving aside the possibility that some rejected signatures were genuine as some conditions and illnesses severely affect a person’s ability to write as the person affected once did and other factors can account for a change in signature. It’s at least as likely that some votes were wrongly rejected than that any fraudulent voting was successful and there could be a few fraudulent signatures on ballots sent to voters judged active as well. “Inactive” by virtue of missing an election or two simply doesn’t seem to be a factor contributing to fraud.

      1. Maury Knaizer has been the AAG assigned to the SoS for as long as I can remember (which admittedly gets shorter the older I get). But there are other AAG’s who have recently handled SoS matters as well.

    1. Conservapedia

      An activist judge is one who engages in judicial activism, forsaking the proper role of the judiciary in favor of advancing a particular (typically liberal) political agenda.

      …While some have decried the actions of conservative judges as “activism,” these accusations are largely unwarranted. Typically, rulings by conservative judges simply correct liberal activism. …By definition, then, any consistently activist judge is engaging in a liberal interpretation of this role.

      1. thought read where “activism” refers to conservatives . . .

        activism — 1915 — this differentiates conservatives from inactive people; this term might have originated in connection with Prohibition and efforts to pass the Eighteenth Amendment.

        WTF ArapaGOP?

      1. merely an imbecile . . .

        The term idiot was formerly used to describe a person whose intelligence was too low to function without constant supervision. The term was not applied to toddlers or babies.

        Higher up the intelligence scale were imbeciles, then morons. Imbeciles could be trusted for short periods without supervision, but could not lead independent lives. Morons could support themselves and live independently.

        . . . though I strongly doubt he could pass for a moron.

    2. When a judge ruling to follow the law is considered activist. And there is no advantage for Denver – every county can do the right thing.

      But nice of you to admit that, for you, it’s all about additional liberal votes…

      1. O’Connor, goes along with a decision so shaky the Court insists it not be considered as establishing precedent, for the sole purpose of installing her party’s candidate in the presidency, that’s just darned good unbiased judgin’. See you forget, Dave.  All that matters is R v D. You keep thinking specific circumstance that are the same or different in different cases matter. Silly.

    3. you stupid f#ck.  If Whitney is an activist judge then you got your own friggin’ side to blame.  This is a very sad day when your best vapid alternative viewpoint is to attack the judge for denying the injunction.  

      Come on AGOP don’t you want to hear reason & cited law from both sides for the correct legal determination? Don’t you want justice to prevail?  Or are you afraid of it going further ’cause you know your dumb ass logic siding w/ Gessler is just wrong.

      What a friggin’ coward pulling out the GOP victimization sympathy card when all that happened was judge determining that on merit the case can go forward.  

      1. It is simply good government to service all of their eligible voters. I am hoping most Clerks will see this.

        I am guessing that if any had considered doing this in the past and asked the SoS if it was OK, they were told no.  

  2. Debra Johnson stood up to Scott Gessler and his spurious legal claims.  It was funny to watch how Gilbert Ortiz was so craven on Monday and finally got the guts to support Debra.  

  3. “Conservative” USED to mean that you wanted larger governments to have conservative power over smaller governments. This, unfortunately, is no longer the case. Gessler’s complaint is a great example today’s GOP. They care about nothing more than having power.

    This issue should be handled at the county level, not the state level. If Denver residents feel like mailing ballots to inactive voters is a waste, then they need to do something about it not the Secretary of State of Colorado!

    There is no threat of voter fraud by mailing ballots to inactive voters! It’s like setting up a polling place in an apathetic neighborhood. Just because only a few people show up doesn’t mean the State should keep that neighborhood from get a polling place.

    1. I don’t think you can call them conservatives any longer.  A conservative used to care about fair play, the environment (Nixon started the EPA), fiscal pragmatism and equal treatment under the law.  All these yahoos care about is acquiring and keeping power.  Power at any cost and without any principles.  No wonder our country has been ruined by them and won’t rise again until they change which is a bleak prospect.

    2. It’s like setting up a polling place in an apathetic neighborhood. Just because only a few people show up doesn’t mean the State should keep that neighborhood from get a polling place.

      Remember, too, this is about disenfranchisement of likely Democratic Party voters, nothing more. If you try to apply it to any other set of motives, it makes no sense.  

  4. This is merely the first salvo in a long election year to come.

    Instead of a “long election year” to improve the election process and facilitate every eligible voter being able to cast his or her vote, Gessler apparently sees this as a battle. And what is he fighting? Qualified electors being mailed ballots.

  5. That, in gambling terms, is known as a “tell.”

    Gessler’s trying to act all high and mighty and oh-so-principled … but he can’t help himself: his partisan motives shine through.

    The fact that Gessler’s supported by a partisan hack like ArapaGOP is further proof of what’s going on.

    If by some miracle Denver and Pueblo were GOP-majority cities and the county clerks didn’t mail out ballots to inactive voters, you’d be hearing all kinds of vicious rhetoric from ArapaGOP, Gessler, et al. about how those clerks hate our military and by extension America…

    If the legislature had really intended that clerks could send ballots out ONLY to active voters, that’s exactly what they would have said. Gessler’s argument is a big FAIL.

    1. Gessler also hopped a plane & told his little Voter Fraud lie in DC, at taxpayer expense no less, just to get the impratur of Congressional attention to the made-up threat.  Now his lies are part of the  Congressional Record, betcha that will make his children proud.    

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