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Per Ivan Moreno of the Associated Press and Ernest Luning of The Colorado Statesman, Republican Secretary of State Scott Gessler is mailing 4,000 letters to “possible non-citizens,” (Luning quote) asking them to verify their voter eligibility status or remove themselves from the voter rolls. If it seems like Gessler is trying to get someone else to prove his nonexistent conspiracy theory, well, it’s probably because he hasn’t the slightest idea of what might or might not be happening that has him so concerned.

Ever since he was first elected as Secretary of State in 2010, Gessler has been on a mission to maybe prove that there is possibly a problem with an unknown number of Coloradans who may or may not be legally registered to vote.

The numbers of possible law-breakers are always different depending on the press conference; today it’s 4,000 people, but in June it was an oddly specific 85 people. Actually, there was another figure mentioned in June of 430 possible wrongly-registered voters. County clerks from all across the state – both Democrats and Republicans – have publicly challenged Gessler’s unfocused crusade. Mesa County Clerk Sheila Reiner, a Republican, flat-out said in early 2011 that she had seen no evidence of someone voting who was not eligible to vote, so she asked Gessler for more information. Naturally, he refused, although he had just recently finished telling Congress of the 11,000 non-citizens registered to vote in Colorado.

Gessler could push back with a little more merit if he had just one number that stayed consistent. Unlike, say his claim in January that 6 people may have fraudulently voted. Or, say, his comments from November 2011 when he said that there might have been fraud in Denver’s elections, but he really wasn’t sure (although he said months earlier that he was pretty sure).

This whole thing has long since gotten way out of hand, and hopefully reporters will stop repeating things that come out of Gessler’s office until he backs them up with something – anything – resembling even a minutiae of proof. For one thing, this whole idea that a bunch of people might be improperly registered to vote is wholly irrelevant if you can’t point to any of them actually voting. It’s like trying to prove an increase in the number of DUI cases by counting the number of driver’s licenses issued.  

TUESDAY UPDATE #2: FOX 31’s Eli Stokols:

Republican Secretary of State Scott Gessler and his staff dismissed speculation from Democratic groups that technical problems Monday on the state’s voter registration website were intentional…

“There were some intermittent issues, but we got to it as quickly as we could,” said Rich Coolidge, Gessler’s spokesman. “We monitor it really closesly, especially on a day ilke yesterday. It was the heavy volume on the site that caused any slowing issues.”

Some Democrats, however, aren’t giving Gessler the benefit of the doubt in light of what they call his “war on voting”, a looming legal battle over whether inactive voters should receive mail ballots.

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TUESDAY UPDATE: No official word yet on how widespread this problem may have been — and how many people were possibly affected.

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We have received multiple, and by that we mean a substantial number, of reports of intermittent technical problems at the official voter registration website for the state of Colorado, GoVoteColorado.com–as well as at least one confirmed error of our own (above). There seems to be trouble off and on with loading any of the new registration or update functions on the site, as well as filled-out form pages suddenly returning an error message like the one above. As you know, today is the deadline to register to vote for this year’s statewide election. It’s worth noting that we received our first report of a problem accessing the website last Thursday.

We’re certainly not making any accusations; it’s important to head that off given that this website is administered by the office of Secretary of State Scott Gessler. Who is, somebody is going to say it if we don’t, more or less continuously mired in, well, scandal. The mind goes where it will.

But presuming good faith, we know that Mr. Gessler will make finding out what the hell is wrong with the voter registration website on the last day to register his very top priority.

UPDATE: #2: Now a statement from Pueblo County Clerk and Recorder Gilbert Ortiz after the jump, announcing that his office will “reluctantly” comply with Gessler’s order to not send mail ballots to overseas deployed military marked “inactive failed to vote.”

“Pueblo County will honor Secretary Gessler’s order,” Ortiz said, “but this is not over. Pueblo County is currently weighing our legal options including taking the issue to court. The Secretary of State effectively has denied 64 active military personnel the opportunity to vote.”

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UPDATE: Rep. Charles Gonzalez of the House Administration Committee Elections Subcommittee rips Gessler for denying ballots to deployed military personnel in a press release today (full text after the jump)–“a violation of federal law.”

“Mr. Gessler’s misguided efforts now threaten voter suppression not only in Denver County but among members of our armed services, men and women on active duty in war zones. His misinterpretation of the law is not only illegal but deprives Colorado citizens of their most fundamental right: the right to vote…”

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Following up our discussion yesterday of Secretary of State Scott Gessler’s attempts to stop Colorado counties from mailing ballots to all registered voters–now including deployed military voters in Pueblo County listed as “inactive”–the Pueblo Chieftain reports today…

This is pretty astonishing, folks.

“I want an order from the secretary’s office by Friday (today) saying that I cannot send out those ballots because I believe I should under the (Uniform Military and Overseas Voters Act),” Ortiz said Thursday morning.

He got his answer at closing time Thursday. Gessler’s letter to Ortiz said the secretary of state was sticking to his position that no inactive voters should get ballots sent to them this election – including out-of-area military voters, or those “covered” by the Uniform Military and Overseas Voters Act. [Pols emphasis]

“A covered voter who is registered to vote may apply for a ballot. Ballots are not automatically sent to covered voters,” Gessler’s letter said. “Thus, Pueblo County may only send mail ballots to inactive voters who submit a timely request as required by the (Act).”

…[B]ringing military voters into the dispute casts it in a different light and Ortiz did that this week. While Gessler has made the news this year with charges about illegal voters casting ballots in the 2010 election, no one has suggested that fraud occurred among any military voters. [Pols emphasis]

Ortiz said his office already has sent out about 600 ballots to military voters who voted in 2010 in order to meet the 45-day requirement for them to get their ballots in time. But he said Gessler’s office contacted him just before that deadline and told him to hold the ballots for inactive voters – which amounts to about 70 ballots for inactive military voters.

In a letter to Gessler on Tuesday, Ortiz said Kogovsek advised him that Gessler’s reading of the law is wrong.

We’re going to spare you the rhetoric about depriving our men and women in uniform the right to vote, while deployed, defending our freedom and so forth. You know how this looks.

On a practical level, we’re starting to wonder if Gessler considered all of the potential consequences of his decision to try to stop Denver and Pueblo counties from sending mail ballots to all of their registered voters with deliverable addresses. Gessler has argued that the temporary nature of a law passed in 2008 mandating that shows the legislature was concerned about the “cost and opportunity for fraud” of sending mail ballots to all deliverable registered voters in a mail ballot-only election. Even though the statute nowhere says that ballots will be sent only to “active” registered voters, that’s how Gessler is insisting the law be interpreted.

What this could represent is a major unintended problem with the all mail-ballot system in Colorado. In an all mail ballot election, which we understand all but a couple of counties are holding this year, the different provisioning of ballots to two different classes of voters–“active” and “inactive”–and the ease with which one can pass from active to inactive status, simply by missing a single election cycle for whatever reason, could be creating a situation where many tens of thousands of Coloradans’ voting rights are being violated.

Do you understand what we are saying? What if every mail-ballot county who is not mailing ballots to “inactive” voters is in violation of federal election law? Would that not at least be correct in the case of overseas military voters if Pueblo County Attorney Dan Kogovsek is right?

Understand that we’re just asking questions, which seem to be pretty logical questions, all based on developments in this story in the last two weeks. If this mail ballot situation, either in the case of the lawsuit against Denver or throughout the state of Colorado, amounts to a gross violation of federal election law, it’s a good thing that the Justice Department has been asked to look into what’s going on. In any event, a legislative remedy for this situation is clearly necessary: if it’s right that the unequal provisioning of mail ballots to “active” vs. “inactive” voters is unlawful, simply making the aforementioned temporary rules permanent would be the place to start.

The only thing we can add is this: in our experience, situations like these tend to come to a head when somebody is trying to exploit the system. Gessler is teaching Colorado why we need to be explicitly clear in statute of legislative intent on matters like election law. If you write a sloppy election-related bill, or insert a sloppy amendment into one, Scott Gessler will turn it into a stick to beat the state of Colorado with. For as long as he has the power.

Pueblo County Clerk Ortiz Ordered Not to Mail Military Ballots

Pueblo County Clerk Gilbert “Bo” Ortiz today announced he will reluctantly comply with Secretary of State Scott Gessler order not to mail ballots to registered military overseas voters, despite his deep concern that the order will disenfranchise men and women serving our country.

“Pueblo County will honor Secretary Gessler’s order,” Ortiz said, “but this is not over. Pueblo County is currently weighing our legal options including taking the issue to court. The Secretary of State effectively has denied 64 active military personnel the opportunity to vote.”

The Colorado Secretary of State Scott Gessler’s office ordered Ortiz not to mail ballots to oversees military personnel over a dispute in the interpretation of state law. Gessler has filed a complaint in court to stop Denver Clerk Debra Johnson from mailing to inactive voters in the November election. Inactive voters are defined as those who did not vote in the last general election.

Last week, Gessler acknowledged that Johnson has already mailed her overseas ballots and would not pursue action against her office on those ballots. Ortiz, who agrees with Johnson’s interpretation of the law, announced this week he would mail ballot to all registered oversees military voters – known in election law as “UOCAVA voters for the Uniformed Overseas Citizens Absentee Voting Act.

“It’s only right that Pueblo residents who are serving our country in the military should have the chance to cast their ballot here at home,” Ortiz said.  “Military men and women should be given every opportunity to participate in the democracy they’re defending …they may be listed as “inactive” voters in our system, but when they’re on active duty how can we deny them a ballot?”

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Gonzalez Condemns Move to Deny Ballots to Military Voters

San Antonio – Rep. Charles A. Gonzalez, Ranking Member of the Subcommittee on Elections, released the following statement in response to Colorado Secretary of State Gessler’s decision to prohibit Pueblo County to mail ballots for Colorado’s upcoming election to military voters deployed overseas.

“Mr. Gessler’s misguided efforts now threaten voter suppression not only in Denver County but among members of our armed services, men and women on active duty in war zones. His misinterpretation of the law is not only illegal but deprives Colorado citizens of their most fundamental right: the right to vote. I have asked the Department of Justice to include this new development in their investigation of Mr. Gessler’s activities.”

In a letter to Pueblo County Clerk and Recorder Gilbert Ortiz, Gessler announced his decision as “an order from the Secretary of State not to send mail ballots to inactive – failed to vote UOCAVA electors.” The acronym, short for “Uniformed and Overseas Citizens Absentee Voting Act”, refers there to military or overseas voters whose did not vote in the last general election.

In 2009, by strong and bipartisan majorities in both chambers, Congress enacted the Military and Overseas Voter Empowerment (MOVE) Act to help ensure that Americans were not denied their right to vote simply because they were abroad at election time. Among its provisions to protect deployed servicemembers, 42 USC 1973ff-6(1)(A), is one requiring states to send them ballots for all federal elections, 42 USC 1973ff-1(a)8. To comply with this law, the Colorado legislature adopted the “Uniform Military and Overseas Voters Act” which requires local election officials to send ballots to all “covered voters”, §1-8.3-110, C.R.S. (2011), in “Any other election coordinated by the county clerk and recorder.” §1-8.3-103, C.R.S. (2011)

Neither federal law nor Colorado law makes a distinction between active and inactive voters. The interpretation of the law offered by the Secretary of State and Attorney General, however, would not only not require ballots to be sent out, as the MOVE Act requires, but prohibit them, as appears to be happening in Pueblo County now. This would be a violation of federal law. In a letter to Gessler, Ortiz reports that Pueblo County Attorney Dan Kogovsek argues this is a violation of state law as well.

Mr. Gonzalez has referred this matter to the Department of Justice, following up on his previous letter of concern about possible illegal disenfranchisement of Colorado voters.

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We spent the better part of the morning conferring with sources about a report from our friend Ralphie, writing at his Junction Daily Blog. Check out what Secretary of State Scott Gessler has apparently proposed in response to a mistake in legislation passed this year moving up Colorado’s primary election date:

When the General Assembly passed SB11-189, which moved the date of the Primary elections up to June, it made a mistake. It forgot to also adjust the schedule for filing campaign finance reports. Under the previous statute, campaign finance reports are not due until July.

That left a conflict in the legislation. The Legislature clearly intended for people to report their finances in the months leading up to the Primary. But it forgot to say so when it moved the date of the Primary…

Gessler has issued a proposed rulemaking that attempts to reconcile the conflicting provisions of the campaign finance legislation. His solution?

Gessler’s solution appears to be to eliminate certain biweekly reports required of primary candidates in the weeks prior to the election–by statute beginning in July, a date that mistakenly wasn’t changed when the election date itself was. Primary candidates would still be subject to numerous other other periodic campaign finance reporting requirements, but this would have the effect of reducing both the volume and timeliness of disclosure just before primaries. It resolves the “glitch,” but on the side of less disclosure.

1  Rule 5.13 would be adopted as follows:

2  5.13 REPORTS OF CONTRIBUTIONS AND EXPENDITURES REQUIRED BY

3  SECTION 1-45-108(2)(A)(I)(B), C.R.S., ARE NOT REQUIRED TO BE FILED.   THIS IS TO

4  RESOLVE THE CONFLICT BETWEEN SECTIONS  1-45-108(2)(A)(I)(A) AND  (B), C.R.S.,  

5  CREATED BY THE PASSAGE OF  SENATE  BILL  11-189, WHICH ADJUSTS THE DATE OF THE

6  PRIMARY ELECTION TO THE LAST TUESDAY IN JUNE

We don’t claim to be experts, but couldn’t this have been fixed simply by changing the date that these particular reports need to begin? Couldn’t the legislature fix this next January in time to have biweekly reporting for primaries by May? Either way, it does seem like a case of going after the proverbial gnat with a sledgehammer. And even if Gessler’s intentions are benign, we’ve heard there is a significant difference of opinion on whether he has the authority to eliminate these reporting requirements. Given the way this story could be spun against Gessler–the headline “Brazen Attempt to Reduce Election Transparency” comes to mind–he might have been better off letting the legislature fix what seems to be their minor mistake.

One of the few anti-immigrant bills to escape the narrowly GOP controlled Colorado House is the somewhat more subtle House Bill 1003, a voter photo ID proposal we’ve talked about a couple of times now (see: Stay Classy, Jim Kerr). Set for debate this afternoon in the Senate State Affairs committee, we expect this bill to meet its fate in its first post-House test.

The reason for this expected failure is best explained by its primary supporter, Secretary of State Scott Gessler himself–from his testimony in support of the bill last month:

Can’t see the audio player? Click here.

Rep. Joe Miklosi: Thank you Mr. Chair, my last question, Mr. Secretary of State, I just wanted to verify the first question, to your knowledge there’s no verified instances of fraud?

Gessler: Well, I’m not quite sure how you, ah, I’m sorry…

Chair: Representative [inaudible] Secretary Gessler…

Gessler: Thank you, thank you Mr. Chair. I’m not quite sure how you define ‘verified’ instances of fraud, if you mean there’s been an investigation and an official report on that, no. [Pols emphasis] If I do believe that there have been instances of fraud that photo identification would prevent, I do believe that, in Colorado.

Nicely put, right? Gessler “believes” that illegal immigrants are voting. Well, we “believe” that unicorns are voting in vast numbers–who knows where those mail ballots are going, right? Behind closed doors, there could be hundreds of horned horses participating in our democracy!

When Secretary of State Gessler says there’s never been an “investigation,” what he’s saying is there has not been an incident that rose to the level of investigating. It is already against the law to vote when ineligible, and when there is probable cause to believe that laws have been broken, a criminal investigation would be the logical result. Presumably a “report” would be a police report, right? Do you see how he’s downplaying the central element to his whole case? That is, evidence to support the idea that forcing citizens to produce a photo ID in order to exercise their constitutional right to vote is justifiable? Evidence of a problem?

Look, maybe Gessler’s hunch is correct. It’s entirely possible that at some point in Colorado history, somebody legally ineligible to vote has voted. You have to allow for that. But there has never been a documented case of an illegal immigrant casting a ballot in Colorado. Responsible governments do not make public policy affecting the most sacred institution in their trust, democratic elections, on the basis of “hunches.” Either what Gessler really wants is a study of a problem he suspects but can’t prove, or this isn’t about any “problem” he is willing to talk about.

It’s just about fewer people voting.