The Advancement Project, a national voter protection group, filed suit against Coffman late last week to force the secretary to reinstate the voters and halt any new purges. Coffman’s removals included people who moved, inactive citizens, and newly registered individuals whose voter cards bounced back to county clerks. The Advancement Project claimed that Coffman’s removals violated the National Voter Registration Act because they occurred within 90 days of a federal election. Coffman denied any wrongdoing.
But with the general election less than a week away, both sides agreed to a preliminary fix during a Wednesday hearing. After deliberations that stretched more than eight hours, the Advancement Project and its plaintiffs — Colorado Common Cause, Mi Familia Vota and the Service Employees International Union — gave up on restoring purged voters to the rolls. Instead, they agreed to let them vote by provisional ballot.
“It was important for these voters to have their voices heard and to not be turned away on Election Day,” said Grace Lopez Ramirez, director of Mi Familia Vota after the settlement. “They’ll be counted and identified.”
The crux of the settlement has to do with the way these provisional ballots will be treated. Under federal law, anyone who shows up at the polls but can’t be identified in the state’s voter database may cast a provisional ballot. Those forms are investigated in the two weeks after the election. If it turns out that the person is an eligible voter, then the vote will be counted. If not, then the ballot is tossed out. The Wednesday settlement essentially prioritizes the purged provisional voters. County clerks will have to assume that the voter is eligible until proven otherwise.
In order for the counties to identify the purged provisional voters, the secretary of state will give them an electronic list of voters canceled between May 14 and Nov. 4, 2008. In a small win for the voting rights advocates, those groups got to use their own list of purged voters, rather than rely on Coffman, whose purge list is much shorter.
Though the secretary of state didn’t cop to any wrongdoing with the settlement, U.S. district court judge John Kane on Wednesday said he thinks “there are places where the state went out of bounds on the removal of these names.” But he agreed with the defendant, that changing the voter rolls just days before the election could portend technical problems and even chaos.
During the hearing, the Advancement Project provided witnesses who were wrongly purged from the voter rolls and then never alerted to the fact. Linda Townsend Johnson and her husband, James Edward Johnson, recently moved to Colorado Springs from Mississippi and registered to vote in May. The couple — Linda is in a graduate program while James works as a security officer — requested mail-in ballots so they could take more time to learn the issues in their new state. The mail-in forms arrived. But soon after, Linda got a call from a woman at the Brennan Center for Justice, a New York public policy institute, asking Linda if she was aware that she had been purged.
“She said that my name and my husband’s name had been taken off. I said, ‘I have my registration card and mail-in ballot and everything.’ She said, ‘It appears that your name has been taken off.'”
Linda and James went to the El Paso County clerk’s office to sort out the problem, bringing their paperwork with them. A woman at the clerk’s office told them that they were not registered to vote. “I said, ‘I don’t understand,'” said Linda. “‘Someone made a mistake.’ I laid out my voter registration card, and I gave her my social security number. She said she didn’t understand what happened. So she fixed it.”
The woman also told Linda that if she had cast her mail-in ballot without fixing her registration, then the ballot would be tossed. That assertion, the court hearing revealed, turned out to be false.
No one ever told Linda and James why they were purged.
“Nobody would explain it to me,” she said. “This is my right. This is my voice, and I don’t think it should be taken from me. I don’t take this for granted. I am an African-American, and I am a woman. I don’t take for granted that people suffered for me so I could have this right.”
Later on in the hearing, however, a witness from the defendant’s side explained exactly what had happened to the Johnsons’ missing registrations.
Linda and James, it turned out, were canceled because another Linda and James Johnson had registered in the state. Those registration forms were returned in September rather than May. They featured a different address than the original Johnsons’ forms, and they were filled out in strikingly different handwriting. Yet the El Paso County clerk and recorder’s office tossed out Linda and James’ registrations anyway.
According to Hilary Rudy, the witness who serves as a legal analyst with the secretary of state’s office, things got even more complicated when the second Johnson registrations were tossed out because of the so-called 20-day rule. The Colorado law stipulates that if a voter card sent to a newly registered voter bounces back to the county clerk, than that person must be removed from the rolls. The policy is meant to confirm an applicant’s address, but the plaintiffs claim that it too violates the NVRA, since it kicks off voters without sufficient notice. In Michigan, the Advancement Project and the American Civil Liberties Union recently successfully sued to stop a similar practice in that state.
After the hearing, Linda said she was happy to have spoken in court about her registration. “I knew I was going to do something about that,” she said. “I teach my kids, ‘Don’t stay silent when something is wrong.'”
But the voting rights advocates say that not everything is perfect.
“A settlement is always a partial win,” said Penda Hair, co-director of the Advancement Project. “The case is not over.”
Hair said that the group plans to contest the 20-day rule and other purges at a later date.