Pueblo County Clerk Gilbert Ortiz gave Colorado Secretary of State Scott Gessler until this morning to specifically and formally address another of the charged ramifications of his new interpretation of state election law. Gessler got in under the wire. Thursday evening, he sent Ortiz a letter ordering him not to send ballots to any of the county’s “inactive voters”– legally registered voters who failed to cast ballots in the previous even-year general election– including roughly 70 soldiers on the Pueblo County inactive voter rolls serving out of state. In Pueblo as elsewhere in the state, inactive voters are now meant to visit the clerk’s office or a polling place to retrieve ballots. With the election a month away, Gessler’s directive seems likely to effectively disenfranchise the soldiers.
On Wednesday, Ortiz told the Colorado Independent he was pained by the idea of not sending out the ballots. “This is not a comfortable place to be,” he said, adding that not sending the ballots went against all of his priorities as clerk. He said he felt the clock ticking for the inactive-voter soldiers.
Last night, Ortiz told the Pueblo Chieftain that he remained undecided on whether or not to follow Gessler’s order. He said he planned to consult with County Attorney Dan Kogovsek on the matter.
Contacted this morning, Ortiz’s office said he would comment on the Gessler order after a roughly hour-long scheduled conference call, presumably with Kogovsek, on the course of action they plan to chart for Pueblo County.
Colorado election law clash
Gessler last week filed a lawsuit against Denver County over its plan to mail ballots to all registered voters, active and inactive. Denver has mailed ballots to all registered voters for the last five years and has already sent its ballots out this year. A district court is scheduled on October 7th to hear arguments in the case.
In announcing his new interpretation of state election law, Gessler explained that he is seeking to make the rules uniform across counties on whether or not clerks can mail ballots to inactive voters and he said he was concerned to guard against possible registration fraud.
In making his case, Gessler has cited a Colorado statute that directs county clerks to “mail [ballots] to each active registered elector.” That language comes from legislation passed in 2008 that explicitly required Colorado counties to mail ballots to inactive as well as to active voters but that only passed as a temporary measure amid complaints that it established an unfunded mandate. In its absence, Gessler argues, counties cannot send ballots to inactive voters.
Many observers, including two members of Congress who champion voter-rights, see Gessler’s interpretation as a stretch. They see the reading as part of a larger Republican drive in states across the nation built on overblown threats of voter fraud but designed to suppress voter participation in advance of next year’s presidential election.
Election officials and experts say the chances of voter ballots getting into the wrong hands is escalated when they are mailed out, and Gessler spokesman Andrew Cole echoed those concerns Thursday to the Chieftan.
“There were thousands of ballots mailed out to inactive voters in 2010 that were unaccounted for,” he said.
Gessler in a talk radio appearance this week suggested that signature discrepancies noted by Denver clerks in the past counted as “fraud,” although only one case of signature fraud has been prosecuted and that came in 2005 and didn’t point to any specific problem with inactive voter ballots.
The Secretary of State has yet to offer evidence that any inactive voter ballot has ever been used to commit fraud of any kind.
‘A fashionable political theme’
Detractors have come to look with skepticism on concerns about fraud voiced by Gessler.
Before he was elected Secretary of State last year, Gessler built a law career as a Republican champion of partisan interpretations of campaign finance and election law. In the spring, he championed stiff voter ID legislation by citing examples of voter fraud committed in the state that he said his office had detected.
Before legislative committees in Denver and in Washington, he suggested there could have been as many as 5,000 votes cast in the state by non-citizens in 2010. He later said he was “certain” that 106 people on Colorado’s voter roll of 3.7 million were ‘improperly registered.’
Estelle Rogers, director of advocacy for Project Vote, told the Colorado Independent at the time that the Gessler numbers were shockingly unreliable and that his proposed response to those unreliable numbers went beyond overreaching.
“His 106 people is about 0.0028648648649 percent of total registered voters,” she said. “Obviously such an error rate is to be expected whenever human beings are copying data from one list to another. Before the secretary of state jumps to the conclusion that these are 106 cases of voter fraud, he should have a lot more evidence than mere suspicion. Non-citizen voting is a fashionable political theme these days, but it has no basis in reality. And the right to vote is too important to confuse with sloganeering.”
That’s what Ortiz thinks too. He told the Independent he was pained at the idea of not sending ballots to soldiers in harm’s way. He also said he believed, based on advice from counsel, that not sending ballots to the inactive-voter soldiers violated the federal 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, making no distinction between active and inactive voter status.