Over the course of a five-hour rulemaking hearing Monday, Colorado Secretary of State Scott Gessler probably got the message that a lot of people are unhappy with proposed rules that would stop county clerks from mailing ballots to inactive voters in some elections, change the way canvass boards are selected and give county clerks more power to determine how much access election watchers have.
About 40 people signed up to testify at this week’s hearing; nearly all of them spoke in opposition to one or more of Gessler’s proposed rule changes, which covered three general areas.
“It was pretty much all opposition,” commented Luis Toro, executive director of Colorado Ethics Watch, who did not speak. “I don’t think it (the opposition) will change anything, though,” he said.
The rules, (pdf) either as presented by Gessler or as revised by his office as a result of the hearing and written testimony, could go into effect as early as Monday, at Gessler’s discretion.
In addition to objections raised about the proposed rules, many speakers also questioned the timing–saying that no election rules should be changed this close to an election–and challenged Gessler’s authority to implement rules that many said went beyond rulemaking and actually subvert the legislative process.
Other than timing and authority, among the changes that drew the most opposition were rule 8.6, which would give county clerks considerable discretion over where election watchers are allowed at any given time; a rule that may allow county clerks, in some cases, to appoint canvass board members; and a rule that would prohibit county clerks from automatically mailing ballots to inactive voters in some elections.
Election watchers and canvass board members are currently appointed by major parties and by candidates to observe election processes. Canvass boards in each county are charged with certifying elections among other duties.
While the major parties select their own canvass board members, rules proposed by Gessler would give county clerks the right to appoint canvass board members from minor parties or issue committees. Speakers argued that the clerks should never be allowed to make appointments to the board that essentially oversees their own work.
Mary Eberle, a watcher for the American Constitution Party in Boulder County, said it would subvert the process to have clerks select the people who serve on canvass boards, and she urged that no changes to the rules be made before November’s election.
Currently, only the major parties, which now include the American Constitution Party thanks to 2010 gubernatorial candidate Tom Tancredo receiving more than 10 percent of the vote, can appoint their own members of canvass boards. A new rule, proposed by Gessler, would allow some minor parties to have members on canvass boards.
Proposed Rule 41.2.2 reads “The county clerk and recorder may accept applications from, and subsequently appoint, additional representatives from among minor party and unaffiliated electors.”
The problem is with the wording, which gives individuals the right to apply for canvass board positions, and clerks the authority to appoint them. As with major parties, representatives of minor parties said the parties should select people to serve on canvass boards and the clerks should not be involved.
A spokesperson for the Secretary of State’s office explained that the SOS was trying to open canvass boards up to minor parties.
Harvie Branscomb, who serves on the Eagle County Canvass Board, said that the way the rule is written, any member of a party could nominate him or herself to serve on a canvass board, with the clerk then appointing them.
“That’s not how it should work. Each party should go through its party structure to select members of canvass boards. The clerk should have nothing to do with it. The way this rule is written, a clerk could find a minor-party member from among their employees or friends and appoint them. There would be a reticence to appoint anyone who would argue with the clerk.”
Branscomb, a well-known elections watchdog/advocate, is also co-chair of the Eagle County Democratic Party and serves on the board of Coloradans for Voting Integrity.
Minor Parties Unite
State chairs from the Green Party, the American Constitution Party and the Libertarian Party sent out a joint press release on Saturday protesting the rule. Bill Bartlett, state chair of the Green Party, said in the release “The proposed rules threaten to undermine the impartiality of the canvass board, and its effectiveness as a tool to keep our democracy open and honest.”
He and numerous other minor-party members and officers also testified Monday, all of them saying they would rather be excluded from canvass boards than be appointed by a county clerk.
Marilyn Marks, of Citizen Center, said she didn’t like rules “being rushed through right before the election.” She said the idea of clerks appointing canvass board members “flies in the face of citizen-run elections.” She also said that a change in the composition of canvass boards should be accomplished legislatively, not through rulemaking.
While the hearing drew a lot of people concerned with the rules governing watchers and canvass boards, perhaps the rule with the biggest impact politically is Gessler’s proposed rule that would prohibit county clerks from automatically mailing ballots to inactive voters in some elections. Last fall, Gessler sued Denver County to stop the county from mailing ballots to inactive voters. Pueblo county voluntarily joined the suit as a co-defendant. A judge ruled against Gessler then, allowing Denver, Pueblo and other counties to mail to inactive voters if they so chose. That ruling, though, was just for that election. The full case is expected to be decided in January. Colorado Common Cause also joined the suit as a defendant.
Martha Tierney, an attorney with Heizer Paul Gureskin and general counsel to the Colorado Democratic Party, said by phone that not only is Gessler going beyond his authority with some of his rulemaking, but that it is inappropriate to introduce a rule when the issue is already subject to litigation in a lawsuit initiated by Gessler himself.
“With some of these rules, he is making law,” she said. The rule that would prevent clerks from automatically mailing ballots to all registered voters “creates new law,” she said.
Likewise, a rule that would allow county clerks to keep election watchers up to six feet away from election workers, she said, creates a new barrier to access.
Authority for Rulemaking
State election law does give the secretary of state some authority to make rules:
(2) In addition to any other powers prescribed by law, the secretary of state shall have the following powers:
(a) To promulgate, publish, and distribute, either in conjunction with copies of the election 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…
But the law, Title One of the Colorado Revised Statutes, also points to the ideal of encouraging people to vote:
1-1-103. Election code liberally construed. (1) This code shall be liberally construed so that all eligible electors may be permitted to vote and those who are not eligible electors may be kept from voting in order to prevent fraud and corruption in elections.
1-7.5-102. Legislative declaration. The general assembly hereby finds, determines, and declares that self-government by election is more legitimate and better accepted as voter participation increases. By enacting this article, the general assembly hereby concludes that it is appropriate to provide for mail ballot elections under specified circumstances.
Victoria Ortega, assistant Denver city attorney, said there is nothing in the law to restrict mailing ballots to inactive voters and said it is up to the legislature to create such a limitation if it wants to do so.
Denver Clerk Debra Johnson, issued this statement when Gessler proposed the rule in June:
“You know, last year the Secretary of State tried to get an injunction to keep Denver from mailing ballots to inactive voters in the November election, and that effort failed in court. Given the fact that litigation is still pending, the Secretary is trying for an end-run around the court by enacting a rule. I am always against anything that makes it harder for eligible voters to vote. I’m all about making it easier to vote. Proposed rule 13.19 goes beyond interpreting existing law; it creates new law. This rule, if enacted, oversteps the Secretary’s authority to interpret existing laws and may create new barriers for voters instead of eliminating them.”
An inactive voter (failed to vote) is defined as someone who did not vote in the last general election, which was in 2010. County clerks are supposed to mail postcards to people when they become inactive, giving them the opportunity to respond and remain active. Because this November’s election is a presidential election, all voters have the option of going to a polling place to cast a ballot. Most non-presidential elections in Colorado are mail only, and someone not getting a ballot cannot easily vote. Anyone who lands on the inactive list by reason of not voting can get back on the active list simply by notifying the state that they wish to remain an active voter.
Amber McReynolds, Denver elections director, noted in her comments:
“C.R.S. 1-7.5-107(3)(a)(II)(A) actually requires that ballots be sent to Inactive-Failed to Vote Voters in a Primary Election conducted by mail ballot.”
Which is to say that each type of election seems to be handled
differently in Colorado and that Gessler’s proposed rule to not allow clerks to mail to inactive voters applies primarily to statewide non-presidential general elections.
Legislators Unhappy with Gessler
The hearing drew a healthy number of legislators and former legislators, each of whom said the Secretary of State should work to increase voting in Colorado, not to decrease it, which they said would be the effect of prohibiting clerks from automatically mailing ballots to all voters. The pertinent election law says clerks must mail to active voters, but is silent on the matter of inactive voters which creates a situation where some clerks might mail to inactive voters and others might not. Depending on which clerks mail to inactive voters and which do not, one party or another may gain an advantage. Gessler has said he is just trying to level the playing field. His critics say that if he wants to level the field, he should do it by ordering all clerks to mail to all registered voters. Critics also say he should leave the current law alone and let the legislature deal with it–or not.
Current State Rep. Crisanta Duran, D-Denver, delivered a letter signed by 29 Democratic state legislators that all but accused Gessler of voter suppression and did accuse him of trying to exercise authority that belongs only to the legislature. She also read the letter at the hearing.
“Our democratic process works best when the greatest number of people participate in it. Intimidation and suppression of legitimate voters harkens back to some of the darkest days in our nation’s history. Attempts to reduce voter participation run contrary not only to the letter of the law, but also to the spirit of America and of the State of Colorado.
“Mr. Secretary, you are the state’s chief elections official. The people of Colorado look to you to be the guardian and protector of fair and free elections. We strongly urge you to halt all efforts to restrict the legitimate exercise of Coloradans’ right to vote.”
Former legislator Ken Gordon, who also ran for secretary of state in 2006, but lost to Mike Coffman, said he was in the legislature when the state ramped up its efforts to enable people to vote by mail in most elections. He said the intention was always to increase voter turnout but that restricting which voters receive ballots will have the opposite effect. Gordon, a law professor, now runs CleanSlateNow.org, a group dedicated to getting big money–especially PAC money–out of politics.
“We think voting is a public good, the more people who vote, the more legitimate officeholders are,” Gordon said. He said the legislature established mail-in voting in order to encourage voting and that Gessler should not “create rules that diminish voting.”
Gordon objected to the notion that Gessler was simply clarifying rules and said that instituting a rule that would stop clerks from mailing ballots to inactive voters was an “illegal usurping” of the legislature.
Judd Choate, Colorado director of elections, responded that the Secretary of State’s office was simply trying to create uniformity and asked Gordon if uniformity was important to him. Gordon responded that mandating uniformity is up to the legislature.
Gessler said no two clerks do things the same way. “There is no consistency whatsoever. Frankly, there is some scary stuff (being done by county clerks).”
Elena Nunez, executive director of Colorado Common Cause, said creating consistency is up to the legislature. “People should not be penalized for not voting,” she said.
Gordon said after the hearing that he hopes Gessler will think about people’s concerns. He said the intent of the legislature, as expressed throughout Colorado election law, is to encourage all legal voters to vote.
When he was in the legislature, he said, he was just as concerned as Gessler about the lack of consistency in how county clerks handle a variety of election issues. “When I was in the legislature, I thought it was my job to work on that, but I don’t think it is the Secretary of State’s job. That’s getting into policy,” Gordon said by phone.
He said the whole purpose of instituting mail-in elections was to get more people to vote. “And they will, but only if they get ballots.”
State Sen. Lois Tochtrop, D-Thornton, cautioned Gessler that he should not “assume power that the legislature has not granted you.” Beyond the issue of authority, Tochtrop said it would be a mistake to change the rules this close to an election.
Garett Reppenhagen, an Iraq war veteran, who runs the Vet Voice Foundation, urged Gessler not to prevent clerks from automatically sending ballots to service members just because they’ve missed voting in one election.
“One of the most important rights we have as Americans is the right to go to the polls and cast our ballots in favor of the people we want to represent us in our democracy,” he read from a prepared statement.
Reppenhagen referred to the rule that would prevent ballots from automatically going to service members who are classified as inactive voters as “unpatriotic.”
“I didn’t fight for my country to make it more difficult for service members to vote,” Reppenhagen said.
Reppenhagen said that service members sometimes find even filling out and mailing back a ballot to be difficult and that they shouldn’t be denied a ballot in the next election as a result. “During my military service my ability to consistently vote was disrupted by the distraction of my professional duty. If a service member fails to vote in an election because of their military service, and then no longer receives a ballot, they are effectively denied the opportunity to vote entirely.”
“We are watching everything that goes on with rulemaking very closely,” said Matt Inzeo, communications director for the Colorado Democratic Party. “We have concerns about the way rulemaking has been undertaken generally by the Secretary of State. These are steps that don’t seem prudent so close to an election. We’re only a hundred days out. The Secretary of State has repeatedly gone beyond his authority on rulemaking. There is really no remedy when the legislature is not in session. Both parties need to be watching very carefully. There needs to be a healthy dose of skepticism with any rulemaking this close to an election.”
Here is the letter, signed by 29 Democrat legislators, read at the hearing by Duran:
Honorable Scott Gessler
Secretary of State
State of Colorado
Dear Mr. Secretary:
We have asked Representative Crisanta Duran to deliver this letter to you and to testify on our behalf at today’s rules hearing at the Colorado Secretary of State’s office. We are confident in her ability to eloquently express our views, but we want to underscore two points:
1. We believe your proposed rule to prevent county clerks from mailing ballots in all-mail elections clearly oversteps your rulemaking authority.
There is nothing in the election law that currently prohibits clerks from mailing ballots to Inactive-Failed to Vote electors in a mail ballot election. The Secretary of State can “administer and enforce” election laws. What he or she cannot do is rewrite them. That prerogative is exclusively reserved to the General Assembly, of which we, the undersigned, are members.
We predict that your efforts to reach beyond your office’s allocated authority will be met with skepticism by the courts.
2. We believe your attempt to rewrite the law through these proposed rules is part of a campaign to create obstacles to voting by validly registered electors in the State of Colorado.
The right to vote is a fundamental constitutional right. Your efforts to alienate that right a
re no more justifiable than abridging the freedom of speech or the free exercise of religion.
Our democratic process works best when the greatest number of people participate in it. Intimidation and suppression of legitimate voters harkens back to some of the darkest days in our nation’s history. Attempts to reduce voter participation run contrary not only to the letter of the law, but also to the spirit of America and of the State of Colorado.
Mr. Secretary, you are the state’s chief elections official. The people of Colorado look to you to be the guardian and protector of fair and free elections. We strongly urge you to halt all efforts to restrict the legitimate exercise of Coloradans’ right to vote.
Rep. Edward Casso
House District 32
Rep. Lois Court
House District 6
Rep. Mark Ferrandino
House District 2
Rep. Rhonda Fields
House District 42
Rep. Randy Fischer
House District 53
Rep. Millie Hamner
House District 56
Rep. Dickey Lee Hullinghorst
House District 10
Rep. Matt Jones
House District 12
Rep. Daniel Kagan
House District 3
Rep. John Kefalas
House District 52
Rep. Andy Kerr
House District 26
Rep. Pete Lee
House District 18
Rep. Claire Levy
House District 13
Rep. Beth McCann
House District 8
Rep. Joe Miklosi
House District 9
Rep. Dan Pabon
House District 4
Rep. Sal Pace
House District 46
Rep. Cherylin Peniston
House District 35
Rep. Su Ryden
House District 36
Rep. Sue Schafer
House District 24
Rep. Jonathan Singer
House District 11
Rep. Judy Solano
House District 31
Rep. John Soper
House District 34
Rep. Nancy Todd
House District 41
Rep. Max Tyler
House District 23
Rep. Ed Vigil
House District 62
Rep. Angela Williams
House District 7
Rep. Roger Wilson
House District 61
Rep. Dave Young
House District 50