Let No Legitimate Problem Go Unexploited For Political Points

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by: Colorado Pols

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 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.

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.

12 thoughts on “Let No Legitimate Problem Go Unexploited For Political Points”

bullshit! says:

August 15, 2013 at 3:10 pm

Guvs, didn't you get the memo? Donetta Davidson is a traitor now too.

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itlduso says:

August 15, 2013 at 3:10 pm

Could someone please explain how they can hold a recall election without a mail ballot? Consider the homebound voter who registered to receive a permanent mail ballot and voted by mail in the 2012 election. Then, a small percentage of voters signed a petition for a recall election. FIne. But, that homebound voter will not receive his permanent mail ballot and is now forced to vote at a polling center. That homebound voter can't physically go to an election center. That's why he registered for a permanent mail ballot for all elections. Hasn't that voter been disenfranchised?

(I highlight the word "permanent" because that's what the voter registration form says even today. There is no asterisk saying except for recall elections, or if you missed an election, etc.)

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1. mamajama55 says:
  
  August 15, 2013 at 6:21 pm
  
  You have a valid point, and you should comment on it to the Secretary of State's office today or tomorrow before 4, while he is taking public comments on the rules for the recall.
  
  Email for comments: SoS.Rulemaking@sos.state.co.us
  
  Link for the page with the draft rules: http://t.co/hdzRwG2rK0
  
  I suggest going to page 4, section D, emergency voting rules. Currently, the only people who can get mail ballots are military and overseas voters, people who live in a health facility such as a nursing home, and people who request "emergency ballots". Sounds as if you may need to request an emergency ballot. At any rate, read the draft rules, and comment to Gessler by 4 tomorrow.
  
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  1. itlduso says:
    
    August 16, 2013 at 9:16 am
    
    Done. And, thanks!
    
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  2. Harley says:
    
    August 17, 2013 at 2:53 am
    
    O.K., now how does a mail ballot get sent overseas, returned in time for the election? It sounds to me that it just ain't gonna happen.
    
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doremi says:

August 15, 2013 at 4:25 pm

The Colorado Springs Gazette's bias here is quite apparent. For one thing HB1303 was not even Morse's bill. He signed on as a co-sponsor (and is the last in a long list). Yet the Gazette refers to it as "Morse's bill." Primary senate sponsor was Senator Angela Giron. House primary sponsors were Representatives Hullinghorst and Pabon.

I've heard that over 70% of Colorado voters cast their ballots by mail. Many voters won't even know where their precinct voting will take place. The constitution is way out of phase with how we actually vote in Colorado. Unfortunate that it did not get fixed before now.

Additionally, isn't the purpose of legislative hearings to bring these problems to light. If the opposition had really been doing their jobs and not just constantly opposing everything, they could have brought this to light during the session.

Although the constitution could not have been fixed, the bill could have been altered.

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1. Gilpin Guy says:
  
  August 15, 2013 at 5:11 pm
  
  Thank you for pointing out the obvious bias of the Gazette. The loyal opposition isn't concerned with making bills better. What a sad indictment of these government employees.
  
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bullshit! says:

August 15, 2013 at 6:00 pm

3-3 party line vote, SC rejects appeal. Fucking insanity coming.

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1. mamajama55 says:
  
  August 15, 2013 at 9:43 pm
  
  Indeed. We'll vote just like they did in 1912, when article 21 of the Colo. Constitution was written, only with cars, electricity, and a more diverse electorate.
  
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DavidThi808 says:

August 16, 2013 at 8:33 am

Why do these time limits preclude mail ballots? I can get stuff printed and in the mail in under 24 hours. So within 2 days the ballots are in people's hands. That gives them 11 days to fill them out and mail them back. Not a problem.

So where does the problem lie?

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1. mamajama55 says:
  
  August 16, 2013 at 11:46 am
  
  The problem with mail in ballots isn't logistical, but legal. The 1912 constitutional provision requires 15 days to allow clerks & voters to mail, fill out, return, and count mail-in ballots. I beleive part of the problem is the length of time it takes to mail ballots overseas to military service people, and for them to return them. It probably reflects how slow mail was in 1912.
  
  Ironically, military people are getting disenfranchised anyway, and, to put the rotten cherry on the irony sundae, it's really unlikely that the 2 candidates we're waiting for will actually be able to petition onto the ballots, or be electable if they do. So much ado about nothing – except that Marks got her way, and we won't have mail in ballots.
  
  So the 24% of Pueblo residents who are disabled are S O L, unless they live in a nursing facility with more than 7 people, in which case they can have ballots delivered if someone advocates for them to get their ballots.
  
  It's a mess, but we'll get through it without recalling anyone.
  
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  1. mamajama55 says:
    
    August 16, 2013 at 12:02 pm
    
    Aargh. My bad. 1912 article 21 was only about petitioning onto a recall ballot, as Pols pointed out. I'm not sure what the mail in ballot window was back then, and I guess that's part of the problem, that it wasn't defined, or conflicts with modern election law.
    
    But HB1303 seems to have made the ballot window 20 days from ballot drop to election day, which is a reasonable amount of time to get an overseas ballot there, voted on, and back.
    
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