Constitutional challenge on ballot access, mail voting filed in Colorado Recall elections

The history-making Colorado Recall elections saga introduced yet another interesting twist late Wednesday evening as the Libertarian Party of Colorado filed a constitutional challenge over ballot access and seeking to prevent the recall elections from being conducted as an “all-mail ballot” election.

The lawsuit, filed against Colorado Secretary of State Scott Gessler and the county clerks of El Paso and Pueblo counties (in their official capacity only), challenges the denial of petitions to file for candidacy filed after a cutoff date imposed by emergency rule last month in order to comply with the lead-time requirements imposed by the all-mail-ballot statute HB13-1303 (ironically sponsored by one of the Recall targets, state senator Angela Giron of Pueblo’s SD-3).  The lawsuit alleges that the mail-ballot bill’s timelines conflict with mandatory constitutional provisions governing recall elections – specifically, when replacement candidate petitions may be submitted.

As the Denver Post reports (“Libertarian Party of Colorado sues Gessler over recall ballot deadline“), citing the Libertarian Party’s press release:

“Article XXI of the Colorado Constitution allows any qualified candidate the right to submit completed nominating petitions up to 15 days in advance of the election date,” the party says in its release.

“It is clear that this hasty rule by the Secretary of State conflicts with the Constitution, and we have filed suit to ensure that we have the full time granted by the people of Colorado,” said Jeff Orrok, Libertarian Party State Chair in the release.

It is worth noting that the rule (Election Rule 32.6) setting the deadline for filing successor candidate petitions as July 29, 2013 – based on the 10-day period from the date (18 July)the governor set the election date (10 September) as specified in C.R.S.1-12-117(1) – was not published until 22 July, at which time nearly half the “deadline” for filing candidate petitions had already expired.

The Complaint cites the constitutional provisions of Article XXI, Section 3 as the governing legal framework for candidate petitions, stating “Section 3 of Article XXI provides, in pertinent part, that:”

Candidates for the office may be nominated by petition, as now provided by law, which petition shall be filed in the office in which petitions for nomination to office are required by law to be filed not less than fifteen days before such recall election. (Emphasis supplied.)

Although the constitutional and statutory deadlines are in conflict, another statute (C.R.S. 1-12-123) makes clear the precedence of constitutional language:

1-12-123. Constitutional requirements for recall of state officers
To the extent that the provisions of this part 1 concerning the recall of state officers conflict with the provisions of article XXI of the state constitution, the provisions of article XXI of the state constitution shall control.

In contrast to earlier constitutional challenges seeking to overturn the Recall elections in their entirety (which this complaint expressly does not seek to do), the ballot access complaint appears to rely on solid precedent in case law, citing a recent (2010) Denver District Court ruling (Hayes v. Buescher, 10CV6078) as well as earlier (and still binding) Colorado Supreme Court rulings on petition deadlines (Yenter v. Baker, 248 P.2d 311 and Baker v. Bosworth, 222 P.2d 416, 418). (Exhibits for Motion 1-11)

The lawsuit seeks to accomplish 4 things (“Claims for Relief”):

  1. Establish the deadline for submitting successor candidate petitions per constitutional language of “no later than 15 days before”) as 26 August
  2. Restrain the circulation of ballots until successor candidate petitions are validated
  3. Declare that Recall elections cannot be held by a mail ballot election
  4. Declaratory Relief that the 29 July 2013 deadline for candidate petitions set by rule violates the 1st Amendment and Equal Protection rights of the plaintiffs


The lawsuit appears to have a solid foundation based on both constitutional & statutory language and governing case law (including binding Colorado Supreme Court precedent).  If successful in all claims, it has the potential to alter the dynamic of the historic Colorado Recall elections and to strike a blow against the universal applicability of the “all-mail-ballot” election law.

Ballot access is considered such a fundamental political right (bolstered by both state and federal case law) that the challenge has good prospects for success, at least in part.

The political implications are somewhat less clear.

  • First, the constitutional challenge in NO way endangers the Recall vote; if anything, it strengthens the prospects for a successful recall by potentially expanding the number of people with a stake in recalling the incumbent.
  • Arguably, ensuring that the recall vote is not conducted as an “all-mail-ballot” could reduce overall turnout, but would also reduce the likelihood of (and greatly increase the ability to detect) vote fraud.
  • Ultimately, the likelihood of additional successor candidates (including non-Republicans) would increase (that is, after all, the point of the challenge) – however, more competition for successors would seem to increase the anti-incumbent voting pool and dilute the “anti-Recall” messaging.

The challenge is likely to be heard in court and resolved quickly due to the compressed timeframe of the recall election process – absent the challenge, mail ballots would be printed and distributed as early as next week; for even a successful challenge to have any impact, it would have to be resolved by the end of next week as well.

Looks like some long nights for the lawyers!

Read more about the Constitutional Challenge on Ballot Access & Mail Voting in these documents:

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

2 Responses to Constitutional challenge on ballot access, mail voting filed in Colorado Recall elections

  • George says:

    Have you thought about this?
    If the Libertarian position prevails, it ends mail ballots and early voting.
    It will be impossible to get military ballots out AND returned. Thus, military voters and their families overseas or on deployment out of the state will effectively be barred from voting.

    MAYBE those can vote who (1) signed up for electronic delivery or can get fax delivery, or (2) do not have a time zone difference that makes it impossible to IMMEDIATELY turn around the ballot, or (3) have a scanner (or fax) to scan an image of the ballot, and (4) agree to sacrifice anonymity.

    What does this lawsuit do to military voters?

  • CTBC Director says:

    George, you raise a fair point, and one that is of definite concern to me personally (having experienced military voter disenfranchisement twice myself – for the first time, while deployed overseas to Afghanistan in 2002, and for the second time deployed domestically to Fort Bragg in 2006 for an extended training tour). I take military voting VERY seriously.

    To your first point:
    I’m not convinced that “ending mail ballots” – particularly the fraud-enhancing “all-mail-ballot” provisions of HB13-1303 passed this year – is such a bad thing. Lacking any kind of means to verify voter ID at the polling location facilitates fraud and undermines confidence in voting.

    To your second (and main) point:
    My understanding of the military voter provisions under Colorado elections law is that as long as military ballots are SENT (postmarked or otherwise validated) on or before election day, they’re counted. (See Below):

    All military or overseas voters must vote and return their ballots by 7:00 p.m. Mountain Time on
    Election Day. The county elections office must receive the ballots no later than the close of business
    on the 8th day after Election Day.
    (Sections 1-8.3-111 and 1-8.3-113(2), C.R.S.)

    It would seem that the greatest challenge lies in ensuring timely arrival of the mail-only ballots in the first place – something that is by no means guaranteed (heck, not even likely) with the mailed ballots sent out only 2-3 weeks before the election date.

    Under the tight timelines of a recall election, it is virtually impossible to meet the requirements of UOCAVA (Uniformed and Overseas Civilians Absent Voting Act) –
    which mandates that military and overseas ballots be mailed out 45 days before any Federal election (obviously, that deadline has already passed for the Recall vote).

    (The Colorado Secretary of State’s website published a comprehensive and informative ‘Guide for Military and Overseas Electors’ pamphlet, available online at the following URL):

    Basically, it seems that the only realistic way to ensure timely delivery of military and overseas ballots is via some form of electronic means (online, E-mail or FAX) and holding the county clerks to the standard of accepting all military/overseas ballots postmarked on or before the date of election.

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