Another tumultuous week leading to recall elections

Big money, huge endorsements, countless campaign ads, and some major court decisions!
The Colorado Statesman

The seemingly never-ending soap opera that is the Colorado recall election took many more twists and turns this week, including a glimpse into massive campaign finance spending that has proven to be anything but grassroots, and complicated court rulings that have altered the direction of administering the Sept. 10 election.

Any debate over whether the recall election truly represents a national referendum on gun control likely ended after disclosures revealed that New York City Mayor Michael Bloomberg wrote a personal check for $350,000 to fight the effort, while the National Rifle Association has contributed at least $109,000 to support it.

Bloomberg is the co-founder of Mayors Against Illegal Guns and has become the focus of attacks by gun rights supporters across the nation, including the NRA.

Two Senate Democrats have been targeted over their support for a package of gun control measures this year at the legislature. In Senate District 11, President John Morse of Colorado Springs is being attacked; and in Senate District 3, Angela Giron of Pueblo is fighting to keep her seat.

Gun control legislation signed by Democratic Gov. John Hickenlooper this year included banning high-capacity ammunition magazines of more than 15 rounds and requiring universal background checks and fees. Lawmakers also passed bills around mental health, as well as domestic violence issues pertaining to gun owners.

Bloomberg’s clear emergence into the Colorado debate settles months of speculation by gun rights supporters that he had an interest. Since the beginning, Second Amendment advocates had called Morse, Giron and the majority of Colorado Democrats, puppets for Bloomberg and President Barack Obama’s administration.

While the Democratic-controlled legislature was passing gun control laws, Vice President Joe Biden traveled to Colorado where he stayed in Aspen and called Democrats to encourage them to push the package of bills. On the other side, the NRA flew President David Keene to Colorado to meet with lawmakers and the governor.

Television advertising has already run by Rocky Mountain Gun Owners and the National Association for Gun Rights, in which Morse appears to be under the control of Bloomberg.

“Who’s pulling John Morse’s strings?” asks the narrator of the 30-second spot.

Meanwhile, Democrats have countered that the recall effort is a push by “extreme groups from Denver.”

Democrats could have funneled Bloomberg’s contribution through a nonprofit 501 (c)(4), which would have kept the contribution in the dark. But instead they boldly accepted the major contribution in Bloomberg’s name. The check was written to Taxpayers For Responsible Democracy, a new issue committee established to oppose the recalls.

“We want to thank every single one of those supporters, from Mayor Michael Bloomberg to the people who gave $5 or $10,” said Jennie Peek-Dunstone, with Pueblo United for Angela, the issue committee established to support Giron.

“They all play a role in fighting back against the ‘wave of fear’ that the recall proponents want to send across the country,” she continued.

Meanwhile, Republicans and recall supporters have responded by expressing vindication about Bloomberg’s role.

“Coloradans have demonstrated in election after election that they cannot be bought by elitist out-of-state billionaires like New York City Mayor Michael Bloomberg,” said Kelly Maher, executive director of Compass Colorado, a conservative think tank.

“As a state that values our individualism, we don’t appreciate nanny state politicians who tried to ban Big Gulps, and attempted to regulate soda and trans fats, trying to force their political agenda on us,” she continued. “No matter how much money Mayor Bloomberg gives to Sens. Morse and Giron, it is Colorado voters who will have the final say on Sept. 10.”

Contributions from both sides have totaled at least $2.4 million since April. Another $363,000 has poured in from non-monetary or in-kind contributions.

Recall supporters have raised about $195,000, as well as another $68,000 in non-monetary contributions, compared to opponents who have raised an estimated $2.2 million, on top of $295,000 in non-monetary contributions.

At least 10 issue committees have been established to participate in the recall; six of the committees represent opponents, while four represent supporters.

It’s unclear, however, whether additional so-called “dark money” has been contributed through nonprofit 501 (c)(4) organizations, which can give money to committees without filing campaign finance activity. Only organizations that meet the definition of a 527 political organization, or a political committee, must register campaign finance activity.

For example, I Am Created Equal, a conservative nonprofit run by Republican operative Laura Carno, has contributed at least $64,368 in non-monetary contributions to the El Paso Freedom Defense Fund. El Paso Freedom Defense was established to petition for the recall of Morse.

But Carno swears that big interests such as the NRA have not fueled her organization.

“I am willing to characterize my donors as follows: A blend of small and large donors; every penny is from Colorado; zero is from the NRA,” she said.

Another example is Americans for Prosperity, founded by David Koch and Charles Koch of Koch Industries, which inserted itself into the recall. Because it is only “educating” voters, the group does not have to report spending.

AFP Colorado says it takes no position on the recall itself, or on the candidates, but the group is “seizing the moment to broaden the debate about Morse’s policies in the Statehouse, highlighting ways his voting record has hurt the constituents he claims to serve.”

AFP Deputy State Director Sean Paige, who lives in Colorado Springs, believes there is a lot of unhappiness about Morse.

“We’re finding that the more people know about Morse’s misguided policies, the more they will demand that he listen to them and represent them better,” said Paige.

Meanwhile, A Whole Lot of People for John Morse, the issue committee established by Democrats to support the Senate president, has raised $606,113, according to the Aug. 27 filing. The committee has seen another $190,306 in non-monetary contributions. It was left with $104,383 in the bank.

Pueblo United for Angela, the committee established to support Giron, raised $620,342 and another $101,258 in non-monetary contributions. It was left with $44,674 cash-on-hand.

Pueblo Freedom and Rights, the issue committee for proponents seeking to recall Giron — which was started by a group of three Pueblo plumbers — has raised $34,490. It had only about $8,000 left in the bank.

The El Paso Freedom Defense Fund raised $19,750, but also had Carno’s $64,368 non-monetary contribution. The issue committee has been terminated now that the petition drive is over.

The other committees supporting the recall include:

• Committee to Recall John Morse — $10,200 in contributions; and

• National Rifle Association Committee to Restore Coloradans’ Rights — $108,668.

The outside committees opposing the recall include:

• Planned Parenthood Votes Colorado Issue Committee — which had not recorded any contributions as of the Aug. 27 filing;

• Pueblo Taxpayers for Responsible Government — $8,300;

• Taxpayer’s for Responsible Democracy — $708,000; and

• We Can Do Better, Colorado — $274,124.

Noteworthy contributions from supporters include $250,000 from California billionaire Eli Broad, $225,000 from the Democratic Legislative Campaign Committee, $75,000 from Conservation Colorado, $10,000 from Denver philanthropist Merle Chambers and $20,000 from Florida philanthropist Barbara Stiefel.


Morse and Giron also received high-profile support from Hickenlooper, who had been relatively quiet about the recall up until Thursday.

Hickenlooper — who is facing re-election in 2014 — has been thrust into the crosshairs of the gun control debate after the legislature pushed for tougher laws. The governor had called for universal background checks, but had not expressed much interest in tackling other issues.

But by signing the bills passed by his Democratic colleagues, Hickenlooper himself became a major focus. A recent Quinnipiac University statewide poll indicated that only 45 percent of Colorado voters believe Hickenlooper deserves to be re-elected, while 47 percent say he does not.

Voters disapprove of the governor’s stance on gun issues 52 percent to 35 percent, according to the Quinnipiac survey.

Despite the sentiment, Hickenlooper jumped into the recall drama by issuing a statement through the Democratic National Committee.

“After the senseless shootings in Aurora last year, we studied the facts and talked to a wide range of people — including Second Amendment advocates — about how we could prevent gun violence,” stated the governor. “We passed legislation improving mental health services, modest restrictions on future sales of high-capacity gun magazines, and universal background checks.

“We were only able to pass the law because Democratic legislators had the courage to stand up to outside special interests — but now those groups are trying to make an example of two of them by forcing them into a recall election,” continued Hickenlooper. “Opponents of these laws told us that expanding background checks wouldn’t keep guns out of the hands of dangerous people. The facts show otherwise…”

The governor went on to point out that more than 5,000 people last year failed background checks because of arrests or convictions for serious crimes, including 38 people for homicide, 133 for sexual assault, 420 with restraining orders, 618 for burglary, and 1,380 for felony assault.

“These recall elections cost a small fortune and do nothing to improve democracy or representative government,” added Hickenlooper. “They are intended to intimidate and punish a select number of Democratic legislators for daring to vote their conscience — for daring to do the right thing to make their communities safer.”

Democrats are also pushing back against advertising that has targeted Morse and Giron. The ad in question was paid for by the nonprofit Free Colorado, a Second Amendment advocacy group.

The first half of the ad focuses on remarks by Morse during the legislative gun control debate in which he quoted comments by Robert F. Kennedy from the aftermath of the assassination of Martin Luther King, Jr.

“This much is clear,” Morse stated. “Violence breeds violence, repression breeds retaliation and only a cleansing of our whole society can remove this sickness from our souls.”

Jon Caldara, president of the conservative Independence Institute in Denver, used the comment as fodder, suggesting that Morse was indicating that gun owners cause a “sickness in the soul of America.”

Free Colorado continued that messaging in its ad, which has drawn ire from Democrats who believe recall proponents are twisting Morse’s words.

“To insinuate that I referred to gun owners as a ‘sickness from our souls’ is obscene,” responded Morse. “As a former police officer and a gun owner myself, I believe in the right to bear arms. And as a legislator, I am committed to making our whole society healthier and safer.”

The ad also alleges that Giron paid political operatives to harass recall supporters, despite no concrete evidence proving the claim.

“There is absolutely no truth to these allegations of misdeeds on behalf of my supporters,” responded Giron. “We are working tirelessly to earn the support of the voters, and despite these unsubstantiated attacks, I will continue to demonstrate how I have improved education and worked to get Pueblo everything it deserves.”

Attorneys for Democrats on Tuesday filed a cease and desist letter with Xfinity, asking the cable provider to stop airing the ad. The campaigns were still awaiting a response on Thursday.

Following the cease and desist request, Free Colorado responded, “John Morse is a lousy, revisionist historian. In a rambling, angry tirade on the Senate floor, Sen. Morse bashed gun owners, gun organizations, and gun dealers and manufacturers, punctuated with his now infamous ‘cleansing a sickness from our souls’ invective. Words have meaning.”

Court decisions

Despite all the political gunslinging, clerks in Pueblo and El Paso counties must still administer an election on Sept. 10. Two significant court rulings this week offered additional clarity for how those elections will look.

First on Tuesday, the Colorado Supreme Court offered an opinion after Hickenlooper and the Attorney General’s Office asked for guidance about a potential conflict between the Colorado Constitution and the U.S. Constitution.

State constitution mandates, “No vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office.”

The election itself is two-part. First it asks voters to vote “yes” or “no” on the recall itself, but then it contains a list of replacement candidates.

The Colorado Supreme Court ruled that the language in the state constitution conflicts with the First and Fourteenth Amendments of the U.S. Constitution.

Had the conflict not been addressed, it’s possible that the entire recall election could have been decertified, which would have resulted in a logistical nightmare. Secretary of State Scott Gessler expressed relief that the issue was brought to light.

“We thank the justices for moving quickly and appreciate the clarity they have provided so that these elections can go forward,” he said. “We continue our commitment to making these elections work while preserving the integrity that Coloradans expect.”

His office said it is easy to fix the problem since ballots had not been printed and the majority of the election will take place at polling centers. Voting started on Friday.

Polling machines will be tweaked to adjust for the ruling and ballots will clearly reflect that voters are not required to vote on the recalls in order to take part in the election of a successor candidate.

Just as meaningful was a Denver District Court ruling on Thursday that addressed emergency recall rules adopted by the secretary of state’s office.

Most controversial in Gessler’s rules was a residency requirement for members of the military and their families and students. The rule would have directed election officials to determine whether those individuals have “the present intent to make Colorado his or her permanent home after completing” their service or schooling.

But upon review by Judge Robert McGahey, the rule was repealed by the secretary’s office after the judge said it overstepped statute.

“The secretary cannot expand, contract or interpret those without a compelling state interest,” said McGahey, ruling from the bench.

Democrats this year passed sweeping election reforms that did not include the residency requirement. House Majority Leader Dickey Lee Hullinghorst of Boulder applauded McGahey for curbing Gessler’s rule.

“Determining eligibility to vote based on an individual’s intent to do or not do something in the future was a standard that was impossible to enforce,” said Hullinghorst. “It would have placed undue burden on military families and students, and I’m glad the judge torpedoed Secretary Gessler’s latest overreach.”

Gessler, however, had a different reaction: “Last session the governor and legislature passed a horrible, confusing election law,” he said. “At the time, I called it a rush to failure. Despite this office’s best efforts to protect the elections, today a judge only compounded the problems.”

Gessler also lost on a rule that would have prohibited Pueblo County Clerk and Recorder Gilbert “Bo” Ortiz from using county approved identification cards as proof of voter identity.

The so-called “yellow cards” include the voter’s name, address and voter identification number. Ortiz had hoped that it would speed up the election process. But Gessler prohibited him from implementing the method.

McGahey, however, decided the cards are OK, to the joy of Ortiz: “The message on the card itself says that they can bring it in and use it as a way to get through the line quicker,” explained the Pueblo clerk.

The Libertarian Party of Colorado also challenged the rules, arguing against a proposal that would have allowed an expansion of email voting. State statute only allows military and overseas voters to cast ballots through email. But the secretary’s office and clerks had proposed expanding that to additional voters in emergency situations.

McGahey, however, shot the proposal down, returning the system to the status quo.

“I don’t think any of the matters that we’re about to deal with were enacted or adopted by the secretary of state’s office in bad faith,” explained McGahey, before dissecting the rules to his courtroom audience. “But I think some of them were wrong.”

Libertarians argued that expanding email voting starts Colorado down the “slippery slope of email/Internet voting.”

“Thousands of pages have been written by experts agreeing that email/Internet voting poses scores of unacceptable risk to the integrity of elections,” opined Jeff Orrok, chairman of the Libertarian Party of Colorado.

Matt Ferguson, an Aspen lawyer who represented Libertarians, said following the judge’s ruling that he was pleased McGahey limited email voting to current statute. He said expanding it was ripe for exploitation.

“I use the example of the guy who is doing business in Birmingham, or the guy fishing in Virginia, that person says, ‘Hey, I know I’m going to be going fishing, so email me a ballot to my hotel or cabin.’ We think that’s terribly wrong,” said Ferguson. “Sometimes the good old way works.”

McGahey also overturned a rule that would have only provided absentee ballots to those who would be out of the district during the election. Now any eligible voter can request one.

He was the same judge who presided over another lawsuit filed by Libertarians earlier this month in which they argued that they had not missed a 10-day deadline to submit signatures in order to petition a successor candidate onto the ballot.

The case pointed out that state law mandates that ballots be mailed no later than 18 days before the election. But the state constitution requires that successor candidates have up to 15 days before the election to submit signatures.

McGahey agreed that there would be no way for clerks to mail ballots 18 days before the election if candidates have until 15 days before the recall election to submit signatures. The result was that successor candidates had additional time to petition onto the ballot, but that an all-mail election would be impossible.

Looking back at the fascinating events that had unfolded in his courtroom over the recalls, McGahey said he would look back with fond memories.

“This may be about as much fun as I’ve had since I’ve been a judge,” he said. “You made me think about stuff.”

Despite having the additional time to petition onto the ballot, Libertarians failed to collect enough valid signatures. They had originally been pushing Gordon Butt in Colorado Springs to replace Morse, but Butt dropped out. Libertarians then turned their attention to Jan Brooks.

They needed only 575 signatures to place Brooks on the SD 11 recall ballot. Libertarians submitted 834, but only 408 were accepted as valid.

The party immediately questioned the secretary’s process, pointing to an excessive rejection rate of more than 50 percent, and adding that the secretary’s voter registration website was down over the weekend of Aug. 24-25, which made it impossible to verify registrations.

“The series of events calls into question the integrity of ballot access for third-party candidates and the timing of the denial of access to the website for voter registration verification,” said Liz Oldach, chairwoman of the Libertarian Party of El Paso County. “The voters who chose to sign the petition to get Jan Brooks on the ballot deserve to have their participation validated.”

Ferguson said Libertarians are con-sidering protesting the secretary’s decision. They have until Monday to do so. But with Monday being the Labor Day holiday, they will have until Tuesday.

Meanwhile, in Pueblo, Democrat Richard Anglund, who had sought to be a successor candidate to Giron, also did not qualify for the ballot. He said he did not get the 1,000 signatures needed to make the ballot.

That leaves Republican Bernie Herpin in Colorado Springs on the ballot to replace Morse, and Republican George Rivera in Pueblo on the ballot to replace Giron.

Gessler said he is not worried about a protest from Libertarians that could force a Libertarian onto the ballot.

“What the data shows is they just didn’t have the signatures, and if they did, they’re welcome to file a protest,” explained Gessler. “To my knowledge, they haven’t even come in to review our decision. They’ve made no effort.”