Pueblo County Clerk Gilbert Ortiz is pained by the idea that his office would fail to send an election ballot to even one county soldier serving in the US Military overseas. He sent a letter Tuesday to Secretary of State Scott Gessler seeking an express prohibition “in writing ” on sending ballots to soldiers overseas who are legally registered but inactive voters.
“I want it on the record because this goes against everything I want to do as clerk,” he told the Colorado Independent. “When in doubt, you send a ballot. I think of those soldiers not being able to vote. They’re on the battlefield. This is not a comfortable place to be.”
Pueblo County, with its forts and training installations, has a high percentage of citizens who are members of the military. Ortiz said he plans on Friday to send ballots to all registered-voter service members– whether active voters or inactive voters– unless directed not to by Gessler in writing. Denver County has already mailed its ballots to both active and inactive military voters. In many cases, the ballots have to travel to far flung combat zones in Afghanistan and Iraq, for example, and then be mailed back fast to be counted in the November 1 election. Ortiz said he feels the clock ticking.
Inactive voters are legal voters who have, for whatever reason, failed to cast ballots in the previous election.
Secretary of State Gessler has argued that current state statutes direct clerks to mail ballots only to active voters. He said mailing out any additional ballots would violate the law. He explained that he wants to make the rules uniform across counties on whether or not clerks mail ballots to inactive voters. He said he was concerned to guard against possible registration fraud.
The Uniform Military and Overseas Voters Act
Ortiz consulted County Attorney Dan Kogovsek on the matter and Kogovsek said that Gessler’s interpretation of election law is just plain wrong, that it would force Pueblo County to violate federal law concerning mailing ballots to service members. Kogovsek referred Ortiz to the Uniform Military and Overseas Voters Act, which obligates county clerks to send ballots to all “covered voters,” which the act clearly defines as all eligible voters in the military; that is, not only “active” registered voters but “inactive” voters as well.
“After consulting with legal counsel, I respectfully submit that your office’s legal interpretation of governing law is incorrect,” Ortiz wrote to Gessler. “Under the State Act, I am legally required to mail ballots to uniformed service members who are eligible to vote, whether or not they are inactive.”
Denver has mailed ballots to inactive voters for the last five years. Ortiz said Pueblo County has mailed ballots to inactive voters for at least the last two years.
This year, only Pueblo and Denver Counties have planned to mail ballots to inactive voters. Two other counties reportedly mistakenly included inactive voters on their mailing lists.
According to a University of Colorado Denver study delivered to the Secretary of State’s office this past February (pdf), 646,000 voters fell from the “active” category to the “inactive (failed to vote)” category after the high-turnout presidential election of 2008. Those “inactive voters” are registered voters who cast ballots in 2008 and did not do so in the 2010 election– roughly 35 percent of the state’s 1,831,000 post-2008 active voters.
In the past, the question of whether or not to mail ballots to inactive voters has always turned primarily on county finance questions. Each county in the state pays for the elections it holds, and so clerks understandably seek to run their elections operations at the greatest possible bang-to-buck ratio. Budget and efficiency considerations balance against the desire to extend easy voter access and expand participation among the public.
Gessler, who has made a career of representing Republican clients in highly partisan election and campaign finance cases, this month sued highly Democratic Denver County to stop it from mailing out ballots to inactive voters, despite the fact that its ballots had already gone out to inactive voter members of the military.
A Gessler-Ortiz timeline
That Gessler’s action in Denver and Pueblo comes so close to the election has raised additional questions about his motives. Ortiz certainly feels deadline pressure but legal analysts are suggesting that so too will the district court hearing the case, which will likely have to rush rulings on the matter.
Ortiz shared with the Colorado Independent a timeline of communication between his office and the Secretary of State’s office on the matter.
His office submitted its election plan to the Secretary’s office in roughly mid-August. On August 31, Secretary of State staffers contacted Ortiz’s office by phone and asked if it intentionally planned to send ballots to inactive voters, to which Pueblo County Election Supervisor Dena Abeyta replied in the affirmative. Two weeks later, on September 14th, the Secretary of State’s office called again and asked the same question and, upon receiving the same answer, directed the clerk’s office not to send out ballots to inactive voters. The next day, the clerk’s office sent the Secretary of State an email asking for a formal letter detailing his order not to send out the ballots. Four days later, on September 19, the clerk’s office received an “unofficial” email with Secretary of State Gessler’s opinion that sending out the ballots would be illegal. On Tuesday, September 27, Ortiz sent his letter to Gessler detailing the legal advice he received from Kogovsek and asking for an official directive from Gessler.
We’re “currently in limbo,” Ortiz wrote to the Independent.
The Secretary of State’s office did not return repeated Colorado Independent calls and emails seeking comment.
The Ortiz letter to Secretary of State Gessler: