Editorials in the Colorado Springs Gazette today and the Pueblo Chieftain yesterday attempt to blame a court ruling this week throwing the upcoming recall elections into chaos on an election modernization bill passed this year, House Bill 1303. As the story goes, HB-1303 conflicts with Article XXI of the Colorado constitution, enacted in 1912, which prescribed a deadline for getting on the ballot in a recall election of fifteen days before the vote. Adhering to this deadline for recall candidates makes it impossible to print and mail ballots to voters.
The Gazette's editorial board:
The new Morse law also gives potential candidates up to 10 days after the governor sets the date of a recall election to turn in signatures for inclusion on a ballot as a potential replacement for a politician facing recall. There's only one problem, as determined by McGahey. The Colorado Constitution, which trumps the attempt by Morse to re-engineer our traditional election process, says potential candidates can petition onto a ballot up to 15 days before an election. Colorado Libertarian Party officials understand the state constitution, even obscure portions of it, and filed a lawsuit that asked McGahey to enforce it.
And the Chieftain:
But we must agree with Judge McGahey’s ruling. In it he criticized the Legislature for “writing an election law so clearly non-compliant with the state constitution.” “With all due respect to the Legislature,” he added, “it did not consider, or ignored, the clear language of Article XXI. I find that both sad and, frankly, shocking.”
The problem? Judge Robert McGahey's ruling was off base, and the usual suspects piling on are wrong.
The operative section of the Colorado constitution, Article XXI, indeed does prescribe that candidates may file up to "not less than fifteen days before [a] recall election." The provisions of Article XXI pertain only to recall elections, not regular elections. The fact is, Colorado election law has mostly likely been out of compliance with this petition for as long as the state has been sending mail ballots. The only reason it didn't become an issue before is that recall elections are extremely rare–as most of our readers know, these are the first state legislative recall elections in the state's history.
As former GOP Secretary of State Donetta Davidson explained to the Gazette's Megan Schrader, this inherent conflict between the state's employment of mail balloting, and these recall-specific constitutional provisions, is what needs to be fixed:
Donetta Davidson, former secretary of state who now is executive director of the Colorado Clerks Association, said the problem has existed for along time.
"We need to get the constitution changed to where it's updated," Davidson said. "We're running elections so much differently now than we did in the early 1900s."
Davidson said in 2006 the change was taken to the voters – which would have allowed mail and absentee ballots in recall elections – but the constitutional change was defeated.
Davidson is referring to 2006's Referendum F, which failed after opponents claimed it would be "improper" for legislators to be able to "set their own deadlines" in recall elections. In truth, this would have allowed the constitution to accommodate mail ballots in recall elections, which as we're now seeing is a huge problem. The 1912 deadlines simply don't leave enough time to print, mail, and get ballots returned by Election Day.
Instead of an intelligent discussion about this legitimate conflict in the law–not simply House Bill 1303, but Colorado election law in general where it pertains to mail ballots–this is being turned into a political football. Republicans already looking for any reason to complain about House Bill 1303, be it a legitimate question or poppycock about "gypsy voters," are simply exploiting this to score political points. Kudos to former Secretary of State Davidson, a Republican trying to set the record straight. It's a shame that so few of her colleagues are as honest.