Denver District Judge upholds Constitution over election law statute in Colorado Recall legal challenge

Denver District Court Judge Robert McGahey ruled for the plaintiffs (and more importantly, for the primacy of the state Constitution over poorly-written legislation) in the legal challenge to prematurely restricted ballot access and mandate for “all-mail-in” ballots in Colorado’s historic Recall elections brought by the Colorado Libertarian Party (LPCO).

The lawsuit, filed last week 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 alleged that the mail-ballot bill’s timelines conflict with mandatory constitutional provisions governing recall elections – specifically, when replacement candidate petitions may be submitted.

The Complaint cited 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.)

Despite numerous legal red herrings and distractions from this core issue introduced at trial by the defendants – including lawyers for the Colorado Secretary of State, El Paso County Clerk & Recorder, Pueblo County Clerk & Recorder, and intervening attorney Mark Grueskin (the Democrat party attorney who also represented embattled state senators John Morse and Angela Giron, the subjects of the Colorado Recall election efforts in their failed challenge against the Recall petitions making the ballot) – Judge McGahey did not allow himself to lose sight of the core constitutional issue at stake.  In his ruling from the bench (meaning, it will not be published as a written ruling), Judge McGahey stated:

At issue in this case is whether the “not less than 15 days” provision in Article XXI of the state Constitution, or [election law] statute setting forth a shorter time period” has primacy.

Judge McGahey noted that both the plaintiffs and the Secretary of State positions agreed that the statute conflicts with the Constitution.

In fact, the Secretary of State formulated Rule 32.6 expressly in order to “harmonize” statute and Constitution; “it is acknowledgment, indeed admission, of dissonance.”

Since Plaintiffs were “seeking rights under an unambiguous provision of the Colorado Constitution” – whatever the merits of the legislation, the process set forth in the election law “fails as law” as it does not comport with the language of the Constitution.

Judge McGahey also ripped the legislature for writing an election law so clearly noncompliant with the state Constitution:

With all due respect to the legislature, it did not consider or ignored the clear language of Article XXI – I find that both sad and, frankly, shocking.

He noted, “the constitutional mandate cannot be ignored because of inertia – or because it’s “archaic” (an argument advanced by multiple attorneys for the defense, alleging that because the Constitution pre-dated the “modern” practices of early voting and mail-in ballots, the constitutional language should be ignored or set aside based on senescence).

Judge McGahey further rejected the argument, advanced by Morse attorney Grueskin, that wording of “not less than” was not equivalent to “at least” (calling it a “distinction without a difference”).

Distilled down to its essential elements – a conflict between the clear language of the Constitution versus the requirements of recently-enacted election legislation – Judge McGahey’s choice, and ruling, was clear and perhaps inevitable:  the Constitution wins.

Read more about the Ruling on the Constitutional Challenge on Ballot Access & Mail Voting:


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