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October 08, 2011 11:58 AM UTC

Gessler loses the "shall" argument using his own examples.

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  • by: Chickenheed

I was going to post this as a comment to the Gessler v. Denver: Today’s The Day post, but it seemed tool long for a comment.

Should “Shall” be interpreted as “…shall only…” or “Shall, at a minimum,…”? This is the basis for the argument behind Gessler’s complaint against Denver.

Using Gessler’s own example, he loses his argument.  

From the SECRETARY OF STATE’S MOTION FOR PRELIMINARY INJUNCTION…

For example, § 1-5-410, C.R.S. (2011) states that election judges receiving sealed ballot packages provide receipts, and such “receipts shall be filed with the designated election official.” The receiving election judges must deliver the packages “and, in the presence of all election judges, shall open the packages.” Id. Under the Clerk’s interpretation, clerks would be permitted to specify that the receipts may be filed with a person other than the designated election official. Clerks could also have the discretion to permit the packages to be opened in the presence of persons other than election judges.

Simply by substituting “shall” with the different interpretations, you can find out who is right.

The first example…

“receipts shall be filed with the designated election official.”

Could mean…

Gessler’s interpretation: “receipts shall only be filed with the designated election official.”

Johnson’s interpretation: “receipts shall, at a minimum, be filed with the designated election official.”

Gessler’s interpretation is pretty straight-foward. Receipts cannot be filed with anyone else except election officials.

Johnson’s interpretation would allow election judges to file receipts with election officials AND someone else. I don’t know why election judges would file receipts with anyone else, but I don’t see any reason they couldn’t either as long as they were filed with election judges.

The second example…

The receiving election judges must deliver the packages “and, in the presence of all election judges, shall open the packages.”

Could mean…

Gessler’s interpretation: The receiving election judges must deliver the packages “and, in the presence of all election judges, shall only open the packages.”

Johnson’s interpretation: The receiving election judges must deliver the packages “and, in the presence of all election judges, shall, at a minimum, open the packages.”

Gessler’s interpretation says that election judges can only open the packages. I would guess that election judges have other responsibilities, so this doesn’t make sense.

Johnson’s interpretation says that election judges have to open the packages in the presence of all election judges and that they can do other stuff.

Gessler’s conclusions to his examples are way off.

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