What If There’s A Blizzard On February 5th?

On a dark snowy February evening earlier this year, I was staring at a neighbor’s front door, half a block from my house.  My car’s front tires were in one rut of snow turned to ice, and the rear tires were in another.  Half a dozen neighbors were positioned around my car, pushing.  I was on my way to meeting of the Democratic Party of Denver, at which a couple of hundred people were eligible to vote, where I was a candidate for county party office.  Eventually I escaped the rut and arrived an hour late.

This year, every registered Democrat and every registered Republican in Colorado who wants a say in the nomination of their party’s Presidential nominee could have similar issues to deal with on a dark, chilly evening on February 5, 2008.  If the weather is bad, this could be a problem.Colorado law and resolutions of each of Colorado’s major political parties have set the precinct caucuses in Colorado, which will start the delegate selection process for the respective National Conventions of the Democratic and Republican parties at which they select their Presidential nominees (and will effectively determine which candidate get’s Colorado’s support), on February 5, 2007.

Caucuses involve a lot of people.  In a typical year, about 1% of people who are registered to vote in a political party attend.  But, those numbers tend to be higher in years when there is a closing contested race pending.  There hasn’t been a closely contested race for President which the caucus process could influence in Colorado in recent memory.  Most years, like 2004, the race has already been decided to all intents and purposes by the time Colorado gets its say.  This year, however, the race will almost certainly be in play as states across the country weigh in on February 5.

According to the Colorado Secretary of State, as of August 2007, there were 998,879 Republicans, and 860,407 Democrats registered to vote in Colorado, and there will almost certainly be more by February 5, 2008.  This implies that 18,000 people or more statewide will be trying to get to precinct caucuses that day, all at the same time on a cold, dark February night. 

The date of the caucuses is constrained by statute.  The statute, which has never been interpreted in a court case says in the relevant parts (emphasis added):

[D]elegates to county assemblies shall be elected at precinct caucuses that shall be held in a public place or in a private home that is open to the public during the caucus in or proximate to each precinct at a time and place to be fixed by the county central committee or executive committee of each political party. Except as otherwise provided by subparagraph (III) of this paragraph (a), the precinct caucuses shall be held on the third Tuesday in March, in each even-numbered year, which day shall be known as “precinct caucus day”. . . .  (III) In a year in which a presidential election will be held, a political party may, by decision of its state central committee, hold its precinct caucuses on the first Tuesday in February. The committee shall notify the secretary of state and the clerk and recorder of each county in the state of the decision within five days after the decision.

The delegate selection plan for Colorado, approved in advance of caucus day by each respective political party, calls for delegates to a county assembly selected at precinct caucuses to in turn select delegates to attend a state level meeting of the political party.  The state level meeting in turn selects delegates to each party’s national convention.  This year, the Democrats will hold their National Convention in Denver.

If you don’t have a valid precinct process, there is no place where delegates can be selected to a attend a county assembly in accordance with state law.  But, without a valid county assembly, Colorado isn’t in a position to hold a valid state gathering at which it selects delegates to the national convention.

What happens if February 5, 2008 turns out to be an untenable day upon which to hold precinct caucuses, as a result of a blizzard, for example?  There is no clear back up plan.

One possibility is that the state party central committees have the power to formulate a response.  State law states:

The state central committee of any political party in this state has full power to pass upon and determine all controversies concerning the regularity of the organization of that party within any congressional, judicial, senatorial, representative, or county commissioner district or within any county and also concerning the right to the use of the party name. The state central committee may make rules governing the method of passing upon and determining controversies as it deems best, unless the rules have been provided by the state convention of the party . . .  All determinations upon the part of the state central committee shall be final.

But, it isn’t clear that the language above is a matter of the regularity of the organization of a district, or that it allows a state party central committee to change a statutorily mandated precinct caucus date for any reason, no matter how good it may be.

Colorado Secretary of State Mike Coffman is the chief election officer of the state.  But, his only official role in the process is to accept resolutions from state central committees of the parties regarding the caucus dates that they have selected, and to accept a resolution from the presiding officers of the parties at their national conventions, regarding whom they have selected.  It isn’t at all apparent that he would have the authority to change a precinct date for any reason.

Governor Bill Ritter has the authority to declare a state of emergency in all or part of the state in extreme situations, but many events that could highly disrupt precinct caucus attendance wouldn’t necessarily qualify as state disasters, and there is nothing in the election laws that states that election dates can be changed in emergencies.

In the disasterous 2006 election in Denver, a judge refused to intervene in the timing of the election, despite long lines as a result of voting systems problems, holding that this was outside the scope of the judge’s authority.  This decision isn’t precedential, but there is no clear reason to believe that a similar result wouldn’t be possible in another crisis in 2008.

The limited precedents that exist call for conducting precinct caucuses by any means possible as close as possible in time and place to the appointed time.  For example, on one occasion when a school that was a designated caucus site burned down the week of the caucus in Denver, caucus goers gathered outside in the adjacent parking lot to conduct their business.

It isn’t too late for the state legislature and the respective national committees of the political parties to amend state law and party rules to allow for someone to adjust the places and dates of caucuses in the event of an emergency, but right now, there is no back up plan.

So, in the event of emergency, those fit enough to make it to the caucus site by hook or by crook, will be the ones who decide whom Colorado will support in this Presidential election.  Get your snow shoes ready now!

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Andrew Oh-Willeke

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