Election eve lawsuit over HB 1303 dismissed

Heart of case rested on residency requirements
The Colorado Statesman

A Denver District Court judge late Monday night dismissed a case that would have thrown a wrench into Tuesday’s election and poked holes in a recent Democratic-backed elections law that critics say disenfranchises voters.

Judge Michael Martinez said he could not find adequate evidence to indicate that House Bill 1303 — now a law — has resulted in citizens being denied the right to vote in local elections, or that voters had cast ballots in elections they were not permitted to.

The Libertarian Party of Colorado, as well as Republicans Lu Ann Busse of Larkspur and Victor Head of Pueblo, the founder of Pueblo Freedom and Rights, which successfully recalled Democratic Sen. Angela Giron of Pueblo from office this summer, brought the case. Giron had been a co-sponsor of HB 1303.

The heart of the case rested on residency requirements. While the new elections law permits voter registration through Election Day in state races, residency requirements in many local elections — including municipal, school and special districts — run from 20 to 30 days.

The lawsuit alleged that clerks in 25 counties were improperly interpreting the law by allowing people to vote in the local races based on conflicting residency requirements, or denying the right to vote over similar interpretations.

As a result, the complaint sought to have certain races voted on again if the number of any improper ballots cast was found to exceed the margin of victory.

“Election officials across the state are confused and making different decisions, so voters can’t even be sure how the law will affect their voting rights,” suggested former Sen. Shawn Mitchell, a Republican from Broomfield who represented the plaintiffs.

“Some people who move or change their registration are actually disenfranchised,” Mitchell continued. “In other cases, ineligible voters are given ballots and allowed to vote.”

Jeff Orrok, chairman of the Libertarian Party of Colorado, felt empowered after a Denver District Court judge this summer agreed with another lawsuit brought by the party that involved HB 1303.

In that case, Libertarians argued that state law conflicted with the Colorado Constitution over the length of time recall successor candidates had to petition onto the ballot. Judge Robert McGahey agreed, offering candidates extended time to petition onto the ballot, which effectively cancelled all-mail voting. In the end, however, Libertarians didn’t end up petitioning a candidate onto either of the two recall ballots.

Orrok had hoped that the latest lawsuit over residency requirements would have served as another example of flaws with HB 1303.

“Residency issues are only the tip of the iceberg,” remarked Orrok. “The problems with this 104-page law are numerous and complex — this is not something that can be summed up with a single sound bite, and anyone who tries will only add to the confusion.”

From the beginning, critics of HB 1303 — including Secretary of State Scott Gessler and fellow Republicans — had questioned why the measure was introduced late in the session and crafted without input from the secretary’s office. They believed that the bill was too complicated to be rushed through the legislature, and promised that problems would arise.

But Judge Martinez could not find that the inconsistent requirements related to HB 1303 truly disenfranchised voters who move less than 30 days before the election and who want to vote on certain local matters.

“I don’t find that the evidence presented today… has met the burden to establish good cause and a deviation from the applicable requirement of substantial compliance with the code,” explained Martinez.

He went on to highlight how testimony indicated that very few ballots would have been affected. Pueblo County Clerk and Recorder Gilbert “Bo” Ortiz, for example, pointed out that only 24 ballots out of more than 95,000 would have been withheld.

El Paso County Clerk and Recorder Wayne Williams said as many as 1,606 ballots would have been affected. But Judge Martinez said that only represented one-half of 1 percent of all ballots in the county.

Much of the case revolved around testimony by Orrok of possible disenfranchisement. But most of the evidence was secondhand, and Orrok was only able to name one person he had heard was unable to vote in a local election. The judge called this “troubling.”

There was no testimony offered by any voters who themselves had been denied the ability to participate in appropriate races, or who had been allowed to vote in races they were prohibited from voting in.

The judge also found it “interesting” that Head chose not to testify, despite being named as a plaintiff. Busse offered limited testimony, but her account did not offer firsthand knowledge of disenfranchisement.

Just as importantly, Judge Martinez said the clerks did the best they could with the resources they had, given the confusion. For example, Ortiz said his office would separate ballots in question to ensure those voters met residency requirements. Williams said his office mailed each of the voters self-affirmation forms.

“We wanted to ensure that every citizen had the opportunity to vote on every race they legally could,” said Williams.

Martinez said he ultimately granted a motion to dismiss the case because he didn’t want to handcuff the democratic voting process.

“It is well established in Colorado that the election code is to be liberally construed so as to promote participation by the citizenry in their elections,” Martinez said during his ruling from the bench.

The judge repeatedly praised Williams and Ortiz for having attended the nearly eight-hour hearing in Denver the evening before having to administer elections in their respective counties.

Attorneys representing the secretary of state’s office and county clerks had been up all night preparing their responses to the “rocket docket” case. The lawsuit had only been filed over the weekend, and the hearing was quickly scheduled on Monday.

Oddly, Mitchell had called for a recess and continuation for later in the week, despite the case potentially affecting the outcome of the Tuesday election. But the judge determined that it would be best to “soldier on” because of the implication on the election.

Mitchell later told The Colorado Statesman that he had asked for a continuation because not all of the clerks he had wanted to testify were able to appear on Monday. He said that was another casualty of the speed of the case.

Marilyn Marks, an Aspen elections reform activist who was the brains behind the lawsuit, explained the need for the timing of the case. Marks has been one of the most vocal critics of HB 1303.

She was also behind the last lawsuit filed by the Libertarian Party of Colorado over the conflict between state law and the constitution regarding petitioning successor candidates onto the ballot. Just as was the case in that lawsuit, Marks sat in the plaintiffs’ box and regularly conferred with counsel on Monday.

“It has only really in the last two days come to our attention on how this is affecting voters on these ballots,” Marks explained why plaintiffs waited until the weekend before the election to file the lawsuit.

“It has taken a while to find attorneys, to find funding and pull this together,” she continued. “It’s not a popular thing to do to fund lawsuits, so it’s taken us a while to find people who are willing to make the contribution.”

Marks and her gang are currently discussing whether to appeal the case.

In the meantime, the legislature may choose to address some of the elections issues in the upcoming session.

Rep. Dan Pabon, D-Denver, a co-sponsor and primary author of HB 1303, acknowledged that there is room for improvement on overall election law. But the attorney does not believe that HB 1303 is troubled to the point where it needs to be tweaked.

“I haven’t heard of any problems, issues, anything that was introduced in 1303 that wasn’t previously existing law that has caused any level of concern or confusion that can’t be dealt with in the way that it was dealt with before 1303,” explained Pabon.

He said the overall result of HB 1303 has been easier, more accessible voting, which is the ultimate goal of the bill.

“The things that have changed are universal access to a mail-in ballot, or polling location, or an early voting center,” said Pabon. “The increase in franchisement in what I can tell from the returns has only increased the level of voter participation.

“I’m still looking for but haven’t found legitimate citation of 1303 that has any issues,” Pabon continued. “The test should be, does this disenfranchise more voters than before the law was passed? If the answer is ‘yes,’ then that’s something we should do. If the answer is ‘no,’ then we have to look carefully at what the underlying complaint is and decide whether or not that’s even a condition of 1303 passing, or if it’s something else.”

Peter@coloradostatesman.com