Bill to criminalize deceptive voting practices dies

The Colorado Statesman

Lawmakers on Tuesday killed legislation that would have made deceptive voting practices in Colorado punishable by a prison sentence, though many of the legislators on the House committee still acknowledged the unsavory practice and called for increased oversight that could lead to prosecutions under existing law.

The House Judiciary Committee killed Senate Bill 147, sponsored by Sen. Irene Aguilar, D-Denver, and Rep. Angela Williams, D-Denver, on a Republican party-line vote of 6-5. While Rep. Daniel Kagan, D-Cherry Hills Village, voted against postponing the bill indefinitely, he surprised supporters when he first voted against sending the legislation to the full House for debate, essentially condemning the bill to a sure death. Rep. Brian DelGrosso, R-Loveland, was excused from the first vote that would have sent the bill to the full House, but he showed up in time to vote to postpone the bill indefinitely. In that regard, considering Kagan’s original vote and DelGrosso’s following vote, SB 147 really died on a 7-4 non-party-line vote.

The legislation would have made it a Class 5 felony to intentionally disseminate knowingly false information regarding election procedures or voter eligibility if the communication is made within 90 days before an election and with the intent of deterring voters from casting their ballots.

The debate started after a series of robocalls to Pueblo voters on Nov. 3, 2008, on the eve of the presidential election, in which voters were told that their precinct had changed and therefore had an extra day to vote, which would have actually been after the election. County Commissioner Anthony Nuñez was one of the voters to receive the robocall, according to written testimony in support of SB 147 issued by Pueblo County Clerk and Recorder Gilbert Ortiz. Ortiz said his office was “inundated” by calls from angry voters who wondered how their precinct could suddenly change the night before an election.

“The question becomes, ‘How many voters were frustrated, and instead of calling my office for the information, just gave up, and their vote, the most basic American right, wasn’t cast on Election Day’” Ortiz asked in his written testimony.

He had the support of many progressive and voters’ rights groups, including the ACLU of Colorado, the NAACP of Colorado, Colorado Common Cause and 9 to 5 Colorado, to name a few.

“We’re back again, again at this time in our history, upholding voting rights and working to end voter suppression,” said Rosemary Harris Lytle, spokeswoman for ACLU Colorado and Colorado NAACP. “Our country, our neighbors, Colorado and our democracy depend on fair voting, not just for us, but for the generations that will come beyond us.”

Williams agreed with her supporters that the issue is really about a civil rights voting issue, arguing, “The right to vote is one of the most fundamental rights that are afforded to American citizens… Deceiving voters about any aspect of the voting process should be unambiguously illegal.”

But opponents were emboldened by testimony from Deputy Attorney General Michael Dougherty who pointed out that current Colorado statute already addresses the few complaints of voting deception that occur in the state. Colorado law makes false campaigning a misdemeanor, but Dougherty said his office only receives about three to five complaints per year.

“If there’s a question of enforcement, if we’re not doing a good enough job, then certainly we should take steps to improve it. But to put it bluntly, I would respectfully suggest that we don’t enact a law that says, ‘We really meant what we said last time…’” said Dougherty. “I think this is a solution in search of a problem.” Kagan echoed comments made by Republicans and Dougherty, agreeing that, “It’s clearly currently a crime to knowingly misrepresent the date and time of an election… One of the clearest violations of the statute was knowingly telling somebody that the election’s on Wednesday when they knew it was Tuesday, that is a very clear violation.”

Rep. Mark Waller, R-Colorado Springs, opposed the bill not just because he felt current statute addresses the problem, but also because he believes sponsors arbitrarily picked the severe penalty of a Class 5 felony without conducting evidence-based research.

“I think you create an equal protection issue because you already have it in statute as a misdemeanor, now you’re creating it somewhere else in statute as a Class 5 felony. I think that creates a pretty significant equal protection issue that’s going to open itself up to pretty significant litigation and decisions form the court…” said Waller. “I got nothing from anybody on why a Class 5 felony is an appropriate penalty.”

Still, many lawmakers on the Judicial Committee acknowledged the deceptive practices, questioning whether more prosecutions aren’t possible. Rep. Bob Gardner, R-Colorado Springs, who fashions himself as a conservative, said each year he runs for office he is subjected to false campaigning, including communications that go so far as to call him a “liberal.”

“There have been violations of this statute repeatedly made against me, repeatedly, and the attorney general and my district attorney haven’t prosecuted,” said Gardner. “There have been false statements made against me every time I’ve run for election. I’ve been called a liberal, all sorts of things have been said against me, why aren’t those things prosecuted?”

Dougherty said that because of the 1964 U.S. Supreme Court case New York Times Co. v. Sullivan, actual malice needs to be demonstrated in order for prosecutors to successfully prosecute a case of false campaigning.

“Anytime we’re talking about criminalizing speech we should only do so in the most urgent of circumstances,” said Dougherty. “It’s difficult in this political climate in which we live to find cases that are black and white.”