“I know this puts you in a tough position,” attorney Mark Grueskin said to Deputy Secretary of State Suzanne Staiert last Thursday in the closing statement at a hearing on the legitimacy of petitions submitted to recall state Senate President John Morse for his support of gun-control legislation last spring.
Grueskin was defending Morse, arguing that the language in the petitions was unconstitutional and pointing out that it was based on a template the secretary of state’s office has been handing out for at least a decade. He said Colorado law stipulates that petitions demanding recall of an elected official must also make clear that a special election will result if the recall is successful.
Republicans in the state have chosen Morse, a high-profile Democrat from conservative Colorado Springs, as the top target to express deep opposition to the gun laws. The recall drive submitted 10,000-plus valid signatures, more than enough to initiate the recall.
“No one quibbles that this language is a requirement of the Constitution,” said Grueskin. “[O]ver half the voter’s in Morse’s district were mistaken about what would happen next in the recall process. The whole point of the requirements is that there be real information in the petition so that people know what they’re signing up for, not just a Morse recall, but also an open election to name his successor.”
The secretary of state’s office issues a formal warning at the bottom of every email to petitioners interested in acquiring political documents, the gist is: Get your own legal advice. In this case Grueskin argues the attorneys for the Basic Freedom Defense Fund, the policy action committee behind the Morse recall effort, missed or ignored the specification about calling for a special election.
The stipulation matters because the public being asked to support the recall are also the ones whose taxes will fund the expensive recall election that will result.
Colorado Springs is notoriously starved of public funds. An ideological commitment to low tax rates combined with recession-era lower revenues have seen citizens directly funding public works. Residents are writing checks to the city utility to pay for the electricity to light street lamps. Democratic Party Chair Rick Palacio noted that a special election in Colorado Springs, and another in Pueblo for contested Democratic Senator Angela Giron, would cost well over $100,000 in each district. County clerks could not have anticipated these expenses, which will have to come out of those counties’ general coffers — the same funds that pay for things like street lights, public education, and senior citizen care.
Though it has been on the books for 101 years, Colorado’s recall law is just now being tested. Given what’s at stake — two seats in Colorado’s 35-member Senate — it’s no surprise the process is drawing close looks. Both contested Senators have filed identical legal protests based on that potentially unconstitutional petition language.
Grueskin referred to a poll that found 54 percent of people surveyed in Morse’s district didn’t know that a special election comes in conjunction with a recall. He emphasized that the writers of the Colorado Constitution and Statutes included the provision notifying petition signers about the subsequent special election specifically to protect and inform voters who might not be aware of the ins and outs of the never-before-used recall process.
Attorneys for the Basic Freedom Defense Fund argued that Grueskin read this “magic language” into the law. They said the secretary of state’s main responsibility was to recognize the rights of the more than 10,000 registered voters in District 11 who signed the petition to oust Morse.
“The petition itself is asking for a recall election,” said Victor Head, campaign manager for Pueblo Freedom and Rights which is working to recall Sen. Giron. “Splicing the meaning of ‘ask’ doesn’t sit well with people. There were lawyers who drew up that language and the Secretary of State gave us the petition. We just put in the specifics.”
Now, as Grueskin pointed out, it’s up to the secretary of state’s office to decide whether its own petition-language is constitutional. He was quick to add that his argument in no way implicates current Secretary of State, Scott Gessler’s office.
“The Secretary’s staff used a form that they inherited from their predecessors,” Grueskin said. “They’re not the recall proponents, it’s not their job to make sure it’s legal. They’ve said, time and time again, if you want to circulate a petition, it’s your job to make it right. It’s the recall proponents, who wrap themselves in the Constitution, who appear not to have read it.”
Even so, Morse supporters have expressed concern about a “conflict of interest” tied to partisan politics.
Republican Gessler, a private-sector elections and campaign finance attorney who represented conservative clients, has made headlines since taking office in 2011 for his unabashed partisan sympathies and for the partisan-tinge of the controversies that have followed him. He is a popular speaker at Republican Party fundraisers and he recently announced his intention to run against incumbent Democrat John Hickenlooper in next year’s election for governor. Last month he was cleared by a Denver grand jury on allegations of malfeasance brought by left-leaning nonprofit Colorado Ethics Watch but he was fined for having “breached the public trust for private gain” by Colorado’s Independent Ethics Commission, which was looking into the same allegations.
Gessler and Morse also have a history of butting heads.
Morse spearheaded a move in 2011 to draw $4 million in surplus funds from the Secretary’s office. The cash was offered to the General Assembly by Gessler’s Democratic predecessor but the move was opposed by Gessler and his Republican supporters at the capitol.
Buescher was a frugal administrator, Morse said during debate over the proposal, referencing reports that Gessler had complained about his new public-sector salary. “This is the same secretary of state who said he couldn’t live on $68,500 a year.”
Morse later became the subject of a headline-grabbing but ultimately dismissed ethics complaint capitol insiders suspected was at least encouraged by Gessler. The Colorado Statesman reported that Stephanie Cegielski, the author of the complaint, was a conservative-political activist with past ties to Gessler. Cegielski dedicated half of the ethics complaint she filed against Morse concerning his per diem spending to “criticizing Morse for going after funds in the Secretary of State’s office,” as The Statesman, put it.
Christine Le Lait, campaign manager for A Whole Lot of People for John Morse, said the conflict of interest issues raised by the recent protest to the recall petitions should train a spotlight on the secretary’s office.
“It will be interesting,” she said. “So far, I don’t think Gessler has been very good at separating out conflict-of-interest issues.”
But Andrew Cole, secretary of state spokesman, said the concerns expressed by many Morse supporters were faultily constructed.
“I’m frustrated by this conflict of interest narrative,” he said. “Suzanne Staiert is the deputy secretary of state and a former judge. It’s her decision. It’s not Scott Gessler’s decision… I would push back on this notion that Scott Gessler is partisan and that this weighs on the decision at all.”
But in the hyper-partisan climate surrounding Gessler and Morse, the gun laws and the recall campaigns, Staiert’s politics are sure to draw scrutiny as well.
Messages she posted to Twitter (pdf) during the Gesser-Ethics Commission hearings last month but that she later deleted from her account, for example, could be viewed merely as critical complaints lodged by a loyal staffer or as impulsive flashing of partisan teeth. In the tweets, she made it plain she thought commission members were attacking Gessler mostly because he is a Republican. She called the commission a “kangaroo court,” lamenting what she saw as its biased approach to counsel and its loose grasp of the law. She suggested it would not similarly probe Democratic officeholders in the state.
The Secretary’s office announces their decision Wednesday, just after Sen. Giron’s hearing is opened for its own identical, protest.
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