On Friday, September 7 of this year, a week ago today, Republican Colorado Secretary of State Gigi Dennis adopted Rule 46 through emergency rulemaking without notice or hearing. The new rule allows votes cast for candidates who dropped out the race to be given to someone else, not on the ballot, who is chosen by their political party, without notice to the voter, even if the vacancy occurs weeks before an absentee ballot is mailed. As the Denver Post noted last week slamming the decision:
The candidates for secretary of state, Democrat Ken Gordon and Republican Mike Coffman, both believe Dennis has overstepped her authority.
So, who said this was O.K.? According to the Secretary of State’s spokesperson, Dana Williams, in a comment provided to Colorado Confidential, Republican Attorney General John Suther’s office did.
Our interpretation of the statue and decision to adopt a rule is based on advice from the Attorney General’s office.
All this matters because the office of John Suthers gave some advice, in a highly sensitive and partisan matter, that doesn’t seem to have followed proper ruling making procedure in what wasn’t an emergency at the time, and came out with a result contrary to the apparent status quo under the uninterpreted statute.
In short, this shows that John Suthers, as well as Gigi Dennis, looks like a partisan hack.
On What Authority?
The General Power To Make Rules
The Secretary of State’s office was quick to explain Gigi Dennis’s authority to make the new rule. Her spokeperson said:
Secretary Dennis has authority to adopt election rules under C.R.S. 1-7-107(2)(a).
The trouble is, no such subsection of the Colorado Revised Statues exists. C.R.S. 1-7-107 reads as follows, in its entirety (heading in bold):
Watchers at nonpartisan elections. Candidates for office in nonpartisan elections, and proponents and opponoents of a ballot issue, are each entitled to appointe one person to act as watcher in which they are a candidate or in which the person is on the ballot. The candidate or proponents and opponents shall certify the names of persons so appointed to the designated election official on forms provided by the official.
What she meant to say was C.R.S. 1-1-107(2)(a) which says that the Secretary of State shall have the power:
To promulgate, publish, and distribute, either in conjunction with copies of teh elections laws pursuant to Section 1-1-108 or separately, such rules as the secretary of state finds necessary for the proper administration and enforcement of the election laws, including but not limited to rules establishing the amounts of fees as provided in this code.
This is all good and well, but saying that the Secretary of State can make rules, and saying that the Secretary of State can make this rule on an emergency basis are two different things.
Suthers Say This Is An Emergency
But, being state government, it isn’t that easy. There is a statute in Colorado explaining how one goes about making rules. It is Colorado Revised Statutes Section 24-4-103. The text of this statute is ten pages long. Then, there are a litte over three pages of summaries of case law intepretations of the previous ten pages.
Indeed, the Secretary of State had to obtain approval from the Attorney General’s office in advance. Part of the lengthy statute states:
[N]o rule shall be issued, nor eisting rule amended by any agency unless it is first submitted by the issuing agency to the attorney general for his opinion as to its constitutionality and legality. Any rule or amendment to an existing rule issuesd by any agency without being so submitted to the attorney general shall be void.
Colorado Revised Statutes Section 24-4-103(8)(b)(spent effective date language omitted).
Normally, one has to go through an extensive processs of public comment and hearings to adopt new rules. There is a strict legal standard governing when emergency rules that skip this process are permitted, at C.R.S. 24-4-102(6):
[An] emergency rule may be adopted . . . only if the agency finds tthat immediate adoption of the rule is imperatively necessary to comply with a state or fedreal law or federal regulation or for the preservation of public health, safety, or welfare and compliance with the requirements . . . would be contrary to the public interest and makes such a finding on the record.
According to our Republican Secretary of State’s spokesperson, this rule was adopted to clarify provisions of Colorado Revised Statutes Section 1-4-1002. This isn’t exactly late breaking news. The statute in question took effect on August 2, 2000. Somehow, Colorado managed to weather the 2000 and 2002 and 2004 elections without Rule 46.
An issue that hasn’t come up in three election cycles hardly seems “imperatively necessary” to deal with by an emergency process, that is, unless you know someone in particular is going to resign. But, if you know that, then, one can’t believe the Secretary of State’s claim, through her spokesperson, that:
If the question is addressed by the Secretary of State’s office only after someone actually withdraws or dies, any decision on how to handle it would appear to be colored by political implications, a situation we would like to avoid by providing a neutral, impartial answer in advance, without knowing which party or candidate may ultimately benefit.
Housekeeping in advance, to prevent allegations of partisanship if a problem comes up is nice. But, it isn’t “imperatively necessary” to do something about it, if it hasn’t come up in the last three election cycles and the Secretary of State claims that it she doesn’t know of any impending vacancies from candidates running in this election cycle. It is only “imperatively necessary” to adopt rule like this one when someone is resigning or has indicating that they will drop out, in the critical time period, and the existing statute provides insufficient guidance on its own to resolve the problem.
Yet, John Suther’s office said that this problem was an emergency.
Can This Rule Ever Be Valid?
There are other parts of the rule making process which can’t be skipped either.
No rule shall be issued except within the power delegated to the agency and as authorized by law. A rule shall not be deemed to be within the statutory authority and jurisdiction of any agency merely because such rule is not contrary to the specific provisions of a statute. Any rule or amendment to an existing rule issued by an agency . . . which conflicts with a statute shall be void.
So, what are the merits of the rule? The Secretary of State’s spokesperson explained it this way:
C.R.S. 1-4-1002 (2.3) expressly provides for selecting a replacement candidate when the original candidate withdraws or dies up to 18 days before the election. This statute is troublesome for election officials because it creates serious timing issues for County Clerk and Recorders. The Secretary of State certifies the ballot 57 days before the election and County Clerk and Recorders start printing ballots shortly thereafter. In addition, absentee voters start receiving their ballots 32 days before the election. The goal of Rule 46 is to answer how a voter can cast a vote for the replacement candidate and how the replacement candidate can get elected when ballots have already been printed with the former candidate’s name. So far as we are aware, this rule does not change existing law. The rule merely tries to make sense out of this confusing statute until a clarifying amendment can be proposed next year. . . . Please note that, if a candidate withdraws or dies in the last 18 days before the election, the statute likewise requires that the votes cast for the original candidate are counted. C.R.S. 1-4-1002 (2.5). The only difference is that in the last 18 days there is no replacement candidate. Instead a replacement candidate is selected by the party vacancy committee after the election if the dead or withdrawn candidate is elected.
Eighteen days before the election is October 20, 2006 this year, in the manner that the Secretary of State’s office calculates this things. This regulation was issued 61 days before the election. Early voting starts on October 23, 2006.
So what is the law in the period 61 to 18 days before the election?
Any vacancy in a party nomination . . . that occurs after the day of the primary election and more than eighteen days but less than sixty-one days before the general election may be filled by the respective party assembly vacancy committee of the district, county, or state, as appropriate, depending upon the office for which the vacancy in the nomination has occurred . . . . Where a vacancy in the party nomination has been filled pursuant to the provisions of paragraph (a) of subsection (2.3), the designated election official shall to the extent resonably practicabale under the circumstances:
(I) Provide timely notice by publication of the replacement nomination only in the same manner as the notice required to be given [of the election date itself]; and (II) Cause to be printed and placed on the ample ballot delivered to the election judges and posted . . . a sticker of a different color than the sample ballot indicating the name of the person filling the vacancy in the party nomination[.]
Colorado Revised Statutes 1-4-1002(2.3) (excluding certain cross references and the special case of a Lt. Governor vacancy).
In light of the law, this rule has problems.
1. To start with, it purposes to be retroactive to nine days before it was adopted, contrary to an express statutory provision, CRS 1-4-1002(2), which governs that time period. This is a moot point, however, because the issuance of the regulation was delayed until 61 days befeore the election and nobody withdrew in that time period. But, it shows tremendous sloppiness in a rule designed to add clarity.
2. Also, instead of simply following the process set out in the statute, “the sticker method” set forth above, in some version applicable to absentee ballots, it calls for replacement ballots to be printed if practicable.
This may be a good idea, but, nothing in the statute indicates that this is what the very specific election code calls for in this situation. The statute seems quite clearly to say that 61 days or less before the election, the ballot stays the way it looked on day 61, no matter what happens, and regardless of the fact that it might be possible to move heaven and Earth to print a corrected ballot. Contradicting the statute’s clear implications isn’t appropriate in a regulation.
This might seem like a harmless matter, but it isn’t. Under Rule 46, the decision to reprint the ballots or not is made on a county by county basis in the wide discretion of the local clerk and recorder or election commission. Thus, some counties might have the new candidate, while others will have the only candidate, in the same statewide or multi-county race. If different voters in the same race are voting on different ballots, the likelihood that this will impact the results in material.
3. The rule also fails to clarify the most important issue, which is how to adapt the “sticker method” to absentee ballots. The rule makes clear that county clerks and election commissions don’t have to print new absentee ballots if they are already printed. And, they also require that the “sticker method” be used if new ballots can’t be printed.
But, Rule 46 is clear as mud about how the “sticker method” is applied in the context of an absentee ballot. Since normally absentee ballots don’t come with a sample ballot at all, there is a fair reading of Rule 46 that says that a county clerk doesn’t have to notify people receiving absentee ballots after one of the candidates on the ballot has been replaced by another one, that the change has taken place. That intepretation would have been less plausible in the absence of Rule 46.
There is also nothing in the applicable statute to indicate that it is appropriate, without statutory authority, to count absentee ballots which may have been cast even before the vacancy occurred, to be counted for the replacement candidate.
Under existing law, this extraordinary measure is expressly allowed only if there is a vacancy in the three days before early voting starts or later.
Considering that absentee ballots cast in the 61 day to 18 day prior to the election time period can’t, as a matter of law, legally be counted until a week before the election in any case, it is hard to see why the designated election officials shouldn’t, at least, attempt to notify the people who cast ballots for someone no longer running in this very unusual situation, and give them an opportunity to change their votes. And, it isn’t at all clear that the statutes give the Secretary of State the power to count the votes of voters who received no notice. This not only interprets the statute, it amends it.
A Fool’s Errand
“Fools rush in where angels fear to tread.” Courts have express legal doctrines that call for them not to decide in advance cases that may never come up in real life. This advice would have been well heeded by John Suthers in advising Gigi Dennis in this case. There is, allegedly, no pending vacancy in the critical time period. But, instead, the Fools, Suthers and Dennis, walked in hand in hand, and came up with an outrageous emergency rule which probably isn’t even valid.
Then again, maybe they aren’t fools, and know that someone is going to withdraw and that there is partisan advantage to be had by managing that process. In that case, Suthers and Dennis are both partisan hacks. The $64,000 of Colorado politics, of course, is who, if anyone, will drop out before October 20, 2006?
Polls showing Beauprez behind by 17 points in the Colorado Governor’s race polls and raising a third of the money that Democrat Bill Ritter did in the same reporting period, don’t chill that kind of speculation.
Beauprez’s campaign was asked by Colorado Confidential via e-mail on Tuesday:
It has been widely rumored that new regulations concerning withdrawing candidates issues by Gigi Dennis have been issued in anticipation of the possibility that Congressman Bob Beauprez may withdraw from his race for Governor.
Is there any truth to this rumor? Has Congressman Beauprez contemplated withdrawing from the race for Governor?
Beauprez’s campaign neither confirmed, nor denied, the rumor.