Recall election reform bill passes first committee on party-line vote
Opponents of the reform call it unconstitutional
DENVER — After nearly five hours of debate on Friday, a bill to reform recall elections by making it possible to use mail-in ballots passed on a party line vote.
Senate Bill 158, sponsored by Sen. Pat Steadman of Denver and Sen. Matt Jones of Louisville, would set an earlier deadline for replacement candidates to petition onto the ballot. Instead of 15 days before the recall election day, the deadline would be 15 days before clerks send out mail ballots. The aim is to allow overseas voters and others who vote by mail to weigh in on recall efforts. The bill would also make the rules for the recall petition process — including circulator training and transparency practices — the same as those for other petition processes such as a ballot measures.
“The bill does not change the thresholds or requirements for holding a recall election. All of that is set out by the state Constitution. What the bill does is make the process easier for county clerks to administer, fill in some gaps in existing law and preserve the ability for voters to exercise their right to vote through mail in ballots absentee voting, which is particularly significant for military and overseas voters,” said Sen. Steadman, introducing the bill before the Senate State, Veterans and Military Affairs committee.
Reform to recall elections comes in response to heavy litigation about last fall’s election to recall two lawmakers who supported gun control measures in the 2012 legislative session. Differences between state statutes and the state constitution, along with debate over the petitioning process, resulted in four separate legal cases around the efforts to unseat Senate President John Morse and Sen. Angela Giron.
Ultimately clerks from the counties where the recalls took place — in Pueblo and Colorado Springs — were forced to abandon the use of mail ballots in order to conduct their elections constitutionally. Voter turnout in both elections was lower than previous elections, with just 20 percent of eligible voters participating in Morse’s recall in Colorado Springs and 36 percent casting ballots in the recall against Giron in Pueblo.
“We had literally thousands of people calling us and asking why they hadn’t received their mail-in ballots,” said Pueblo County Clerk and Recorder Bo Ortiz, who added that many voters were so irked by the lack of mail-in ballots that they accused his office of sending them only to voters of certain parties.
Speaking for the Colorado County Clerks Association, Jefferson County Clerk and Recorder Pam Anderson said that clerks support the bill as a good-government policy that will reach more voters.
Overseas military voters — who are required by both state and federal las to be mailed a ballot 45 days before elections finish — were particularly impacted by the lack of mail ballots in both recalls. Colorado Springs, and to a lesser extent, Pueblo have large numbers of active and reserve duty voters, as well as veterans of military service. Several vets testified in favor of the recall election reform bill today.
“I believe in democracy and the right for all citizens to vote,” said Matt Stys, a veteran of the war in Iraq. “I know I don’t want to come home to find that basic freedoms have been taken away.”
While virtually no one disagreed that the recall election process as it stands is chaotic and exceedingly difficult for county officials to administrate, many worried that the legislature’s proposed fix ran constitutionally afoul.
“The Constitution is very clear. You can’t extend the time [a contested official] stays in office, which is what this bill does. It flatly contradicts the constitution,” said El Paso County Clerk Wayne Williams, who oversaw the recall election in Colorado Springs.
Williams was revering to the bill’s effort to statutorily define “holding an election” differently than “election day” in order to set the deadline for petitioning onto the recall election ballot as a potential successor early enough to also conduct a mail ballot election, which occurs over 22 days. That would move the whole timeframe of the election back, extending the amount of time the contested official occupies his or her office and, thus, violating the constitution, Williams argued.
Deputy Attorney General David Blake agreed with Williams and said the proper way to make the fix was to put a constitutional amendment to a popular vote by way of referendum.
“If you run a referendum and it passes, then problem solved. We won’t have to spend money litigating it,” said Blake, arguing that as the bill is drafted a judge could see it as an effort to circumnavigate the Constitution.
The bill’s sponsors countered that the legislature is given the power to define terms in the Constitution by making laws in statute. They define “resident,” and “elector” when it comes to election law, they argued, so why shouldn’t’ they be able to define “holding and election” as the first day ballots are sent out as opposed to the last day voters are able to submit their ballot?
Both Blake and Deputy Secretary of State Suzanne Staiert argued that during lawsuits over the recall election law last year, a judge found the language in the Constitution clear enough that it didn’t merit more specific definition and clarification from the legislature.
Attorney Mark Grueskin, who represented clients in all four of the recall election cases, disagreed.
“The suggestion that this issue is cut, dry and has already been put to bed is simply not true. It’s not true,” he said.
Grueskin argued that last year Denver District Court Judge Robert McGahey was making no judgments about what exactly “election day” meant when he ruled in favor of Libertarians wishing to petition onto the recall ballot and said that the Constitution’s language of 15 days before the election superseded the statue’s longer timeframe. At that point, he noted, the meaning of election day was not even in question since the specific date had already been set by the Governor as the last day voters could turn in ballots.
“The judge was very clear he didn’t want to get into the issue of how, when or where the election was going to be held,” said Grueskin, adding that the language of “holding an election” shows up just in the part of the Constitution that deals with recall — and not general — elections, and that for that reason the legislature should be able to offer statutory guidance about when that really is.
“Nobody benefits from chaos in elections, least of all the voters,” concluded Jones. “This bill is an earnest attempt to try to get past that chaos and allow people to vote with a mail ballot, which they’re used to.”
The measure passed on a party-line vote of 3-2 and now heads to the Senate floor.
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