Jerry Kopel

KOPEL: VOTER CHALLENGES CAN BACKFIRE BIG TIME

Republican suspicions of registration irregularities assured my first election

Can the Democrats roll a “six” in the crapshoot called the November 2008 election?

Democrats hope to end up for the fourth time in 132 years in control of the state House and Senate for six consecutive years. Will they succeed?

The last time Democrats held the Colorado House and Senate for more than four consecutive years was nearly 50 years ago, 1957 through 1962. Before that it was 1933 through 1938 (during the Great Depression), and before that, 1909 through 1914.

A lot will depend on how “dumb” the Republican Party acts. A recent Wall Street Journal article discussed the situation in Michigan, reporting that a Republican Party leader had boasted on a Web site, “we will have a list of foreclosed homes and will make sure people aren’t voting from those addresses.”

Republican suspicions of voter registration irregularities in the 1964 elections assured my first legislative election, in which I defeated incumbent John Moran Jr.

Moran had run a good race, going door to door in both Republican and Democratic precincts, something I did not do.

In the presidential race, Republican Barry Goldwater was challenging Democrat Lyndon Johnson, who had taken over after the assassination of John F. Kennedy less than a year before.

Up until that election, all of Denver had constituted one district. Moran was serving as a replacement, filling a Republican vacancy. In 1964, Denver was divided into a number of districts, and Moran was in Park Hill.

The new district, which covered Park Hill from Colfax north through the residential areas, had 13 Republican and 13 Democratic precincts. North of East 32nd Avenue, black residents were in the majority.

The Rocky Mountain News was a morning tabloid, and the Denver Post was a full-size afternoon paper.

The Republican Party had sent mail to voters who lived north of 32nd. On Election Day, Republican poll watchers patrolled the voting sites, challenging anyone who lived at an address from which mail had been returned.

The Post got wind of the story and had it on the streets by early afternoon on Election Day. It ran on the front page, above the fold with a photo.

The result? I went to the voting sites above 32nd Avenue to find out.

Black voters were lined up single file, in lines so long that many would-be voters were standing outside the buildings. They were silent, with grim faces, obviously willing to wait in line as long as it took.

The Democratic turnout above East 32nd Avenue was heavy enough to assure my election. The total vote in the new legislative district was 5,984 to 5,377 — 53 percent to 47 percent in my favor.

Does the news from Michigan indicate that the GOP plans similar challenges in 2008? Do recent fraud charges in El Paso County foreshadow events to come?

In the swing state of Colorado, where the presidency may be decided, my guess is that on Election Day, the Democrats will flood television, blogs and radio with any news of local
challenges by Republicans, producing a backfire to the advantage of
Democrats.

* * *

Attention criminal defense attorneys. If Amendment 53 is not deleted from the November ballot under a business-labor deal to stop the “right-to-work” initiative, you should work hard to pass it. If it is deleted, think about promoting its provisions in a bill for the 2009 Legislature.

Amendment 53 is being sold as closing a loophole that allows people accused of statutory criminal violations to hide behind a corporate shield.

But not everyone is within the loophole. A business entity under CRS 18-1-606 presently includes “a sole proprietorship or other association or group of individuals doing business in the state.”

Such individuals, according to the Legislative Council summary “may (presently under subsection 1-a) be prosecuted for illegal conduct performed on behalf of a business and, in some cases, for failure to perform a legal duty.”

Criminal penalties may also presently be sought for “conduct ... knowingly tolerated by the ... individual authorized to manage the affairs...”

Amendment 53 adds new language CRS 18-1-606 (1.5) which provides:

“(1) conduct constituting the offense consists of an omission to discharge a specific duty or affirmative performance imposed on the business entity by law and

“(2) the executive official knew of the specific duty to be performed and knew that the business entity failed to perform that duty.” (This could be true even though the “executive official” is the “business entity.”)

The new language sounds pretty much like the old language that already applies to individuals as a business entity. So why try to pass it? Because Amendment 53 provides protection from criminal prosecution not presently in the law, if the alleged criminal turns informant.

A new subsection (4) states:

“It shall be a complete affirmative defense for any executive official charged under subsection (1.5) of this section that, prior to being charged, he or she reported to the office of the attorney general all facts of which he or she was aware concerning the business entity’s conduct that met the criteria set forth in subsection 1-a of this section.”

As I read it, this could be an offense (under present law or under the proposed law) actually committed by the executive official, such as the willful failure under CRS 39-21-118 to pay state income taxes or file a state tax return.

Suppose the tax evader believes he or she is about to be charged. Prior to that happening, he or she goes to the office of attorney general and “reports all facts of which he or she was aware concerning the business entity’s conduct.”

Assuming the defense lawyer can persuade the judge that the offense rightfully belongs under subsection (4), he or she now has a complete affirmative defense to the charge. “Confession and absolution.”

Jerry Kopel served 22 years in the Colorado House.