Gessler sues Denver clerk

Secretary of State wants to prevent mailing ballots to inactive voters
The Colorado Statesman

Secretary of State Scott Gessler on Wednesday sued Denver’s clerk and recorder to stop her office from sending mail ballots to inactive voters, saying the plan would violate state law and would raise questions about statewide results in the November election because other counties are only mailing ballots to active voters.

Denver Clerk and Recorder Debra Johnson, a Democrat, countered that Denver reads state law differently than Gessler, a Republican, and says she intends to fight the lawsuit.

“This is something the City and County of Denver has used for the last five elections,” Johnson told The Colorado Statesman. “It’s the fair thing to do.”

There’s not much that Gessler and Johnson agree on except that there’s an election coming and ballots have to go in the mail in less than three weeks.

In the lawsuit and at a news conference held shortly after it was filed, Gessler said he was taking Johnson to court to enforce uniform voting standards across the state and raised the specter of voter fraud if the ballots go out. He also accused his critics of “playing the race card” and said he was concerned about the high cost of mailing to inactive voters when history shows that not very many of them return ballots.

Johnson and others critical of Gessler’s position disputed all those points.

Secretary of State Scott Gessler blames the county clerks for failing to be “up front” about their plans.
Photo by Ernest Luning/The Colorado Statesman

Four counties aren’t even conducting all-mail elections this year, and Denver has already mailed thousands of ballots to overseas and military voters, including those on inactive status, so the statewide vote won’t be completely uniform no matter what a judge rules. In addition, Denver election officials pointed to safeguards against voter fraud for inactive and active voters alike, denied that talking about the demographics of inactive voters amounts to “playing the race card” and said Gessler was wildly over-estimating the cost of mail ballots.

The two sides also disagree whether Gessler’s office approved Denver’s plan to mail ballots to inactive voters before changing direction with just weeks to go before ballots have to go in the mail.

Gessler, an elections law attorney who represented mostly Republican candidates and committees before winning office last year, said he wasn’t targeting Denver because of its high concentration of Democratic votes.

“The chips fall where they may,” he said. “If there were a Republican county that were violating state law, we’d be behaving exactly the same way.”

He said he is simply trying to make sure voters throughout the state are treated uniformly. “Because if they’re not, and if there’s a close election of a statewide ballot issue, that could cast doubt on the validity of that election if people are treated differently in different counties.”

The voters in question are labeled “inactive/failed to vote” on the rolls because they haven’t voted since the 2008 presidential election and haven’t updated their status with county clerks or on the state’s voter registration website. They’ve received mail ballots for the last three general elections, but the Legislature let a law requiring that clerks send ballots to this category of voters expire last year without renewing it.

And that’s where the disagreement lies: Current statute tells clerks they “shall” mail ballots to active voters, a directive that restricts clerks from mailing to anyone else, Gessler said, but that Johnson says is merely a minimum requirement that doesn’t prevent her from mailing to inactive voters. (Pueblo County Clerk and Recorder Gilbert “Bo” Ortiz read the law the same way Johnson did and planned to mail ballots to inactive voters but has agreed to hold off until a court rules on Denver’s plans.)

“The City and County of Denver has consistently provided all eligible voters with ease of access to the voting franchise and we plan to continue to do so,” Johnson said earlier this week in response to a desist order sent by Gessler the day after his office approved Denver’s mail ballot plan.

Gessler admitted his office didn’t realize what Denver and Pueblo intended when their election plans were deemed “in compliance” with the law but blamed the clerks for failing to be “up front” about their plans. Instead of telling Gessler’s office they wanted to mail ballots to inactive voters, he said, the clerks simply submitted the number of ballots they intended to generate using the state’s voter registration system.

“We had to go in, dig out those numbers,” he said, and as soon as state election officials realized what was going on they contacted the clerks to tell them that isn’t the way they thought the law should be applied.

“Giving us a number is different than telling us, specifically and forthrightly, that they were going to be sending to inactive voters,” Gessler said.

“We believed it was a mistake,” said state Elections Director Judd Choate. However, he added, “When we found out they had not inaccurately done that, and that was a part of their plan, then we took that to the secretary and decided what we were going to do about that. Pueblo relented, Denver did not.”

That’s not how Denver election officials say it happened.

Denver had discussions beginning in July about how to include inactive voters in its mail ballot plan, said city election director Amber McReynolds, and received detailed guidance from Gessler’s office on which boxes to check to make sure inactive voters would get ballots.

“It was definitely something they reviewed,” McReynolds said. “They got back to us and asked us to make a change in our election description and didn’t mention that.”

McReynolds also disputed Gessler’s contention that mailing ballots to inactive voters would increase “the potential for fraud.”

“Any ballot that is returned is checked for signature verification,” she said, whether it’s from an active or an inactive voter. “If there is any suspect in terms of a signature, that thing is pulled and the voter is notified to verify it.”

Colorado Common Cause Executive Director Jenny Flanagan also questioned Gessler’s charge that mailing ballots to inactive voters could lead to voter fraud.

“Let’s just be clear,” she said. “These are eligible voters who are properly registered and eligible to vote. We’re not talking about mailing ballots to ineligible voters or bad addresses. I don’t see how fraud comes into it.”

Denver Elections spokesman Alton Dillard said he wanted to emphasize that the voters in question simply haven’t voted since 2008 — they haven’t moved, died or registered elsewhere in the state.
“These ballots are not just blasted out there randomly,” he said. “These are voters that are out there.”
In fact, Johnson said, 10,655 voters previously labeled inactive returned ballots in Denver’s municipal elections this spring, roughly 15 percent of those who received ballots. (As a home rule city and county, Denver can decide how it wants to conduct municipal elections and isn’t bound by legislative edict on which sets of registered voters get mail ballots.)

Gessler said a much lower percentage of inactive voters returned ballots during the three general elections when clerks were mandated to mail them ballots. Only about 4 percent filled out ballots in 2009 and even fewer took advantage of getting a ballot in the mail in last year’s primary. On top of that, clerks shouldn’t have to bear the cost of sending ballots to a group that votes in such low numbers, he said, adding that his office has estimated the cost of preparing, printing and mailing ballots at $2 to $4 per ballot.

McReynolds said that figure was high and that Denver spends “just under a dollar” to get out each ballot. Besides, Johnson added, “It’s really kind of sad to put a cost to your right to vote.”

Gessler says it’s simply a matter of what state law does or does not authorize clerks to do.

“As soon as we recognized and realized that they were not going to comply with state law, that they were going to send ballots to inactive voters, we’ve been very assertive and forward-leaning in talking to them and explaining to them we think they are not following the law,” Gessler said. He added that he believes “there is no ambiguity here at all” in the law.

Gessler stressed that it’s easy for voters to activate themselves by showing up at the clerk’s office or numerous vote centers before the election or by logging in to the state’s voter registration website,

The dispute isn’t academic. If it’s easier for more predominantly Democratic Denver voters to vote this fall, that could increase the chances of passing Proposition 103, a $3 billion tax hike to fund schools, and the only question on the statewide ballot. And as next year’s presidential election approaches, determining who receives ballots automatically could spell the difference between President Barack Obama or his Republican challenger winning the state’s hotly contested electoral votes.

The former state lawmaker heading the campaign against Proposition 103 applauded Gessler’s move this week.

“As if a $3 billion statewide sales-and-income-tax hike weren’t insulting enough to Colorado’s hard-pressed taxpayers, it comes as yet another slap in the face to them that some counties actually are trying to subvert the Nov. 1 election and effectively stuff the ballot box,” said former state Rep. Victor Mitchell, R-Douglas County, in a statement. He went on to accuse the Denver and Pueblo clerks of “betraying the public’s trust” by attempting to mail ballots to inactive voters for an election to decide a tax question.

State Democratic Party Chairman Rick Palacio didn’t pull any punches either in his reaction to Gessler’s lawsuit.

“Why would any election official create barriers to registered, eligible voters casting ballots?” Palacio said. “This goes beyond even the most cynical partisanship and scare tactics Coloradans have experienced-this is hard-core voter suppression.”

The case was assigned this week to District Judge Brian Whitney. He was appointed to the bench in early 2007 and presided last year over a case charging anti-tax crusader and former state lawmaker Douglas Bruce with campaign finance violations. Before donning the robes, Whitney headed the Special Prosecutions Unit of the Colorado Attorney General’s office. No court date had been set by press time.