Colorado Supreme Court strikes down Recall voting rules as unconstitutional, forcing changes in Colorado Recall Elections

The Colorado Supreme Court ruled that Colorado’s constitutional provisions governing the process for casting votes in Recall elections violate the First and Fourteenth Amendments to the U.S. Constitution, forcing last-minute changes to ballots and voting instructions in Colorado’s legislative Recall elections.

The Colorado Supreme Court’s Order (to be followed by a full written Opinion at a later date) was issued in response to an  interrogatory (request for judicial clarification) filed late last Friday by Colorado Governor Hickenlooper, seeking the court’s guidance on whether the requirements of the Colorado Constitution (Article XXI Section 3) for voting on the Recall question and possible successor candidates are consistent with the the First and Fourteenth Amendments to the U.S. Constitution:

Colo. Const. art. XXI, § 3 requires an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue.  Is this requirement consistent with the First and Fourteenth Amendments to the United States Constitution?

The Court’s Order was short and to the point:

The provision in Article XXI, Section 3, of the Constitution of the State of Colorado stating that “no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office,” conflicts with the First and Fourteenth Amendments to the United States Constitution. We therefore answer the Interrogatory in the negative. [Emphasis added] (Order 13SA214, p.2)

Since the Order does not provide the reasoning behind the decision, it is difficult to analyze the basis for the court’s ruling.  It is interesting to note, however, that the court’s decision was apparently reached on a 5-2 vote, with Justices Coats and Marquez dissenting (a somewhat unusual pairing).

Clear The Bench Colorado will follow up with analysis of the court’s ruling once it is published.

Quo Vadis?

The Colorado Supreme Court’s order will not substantially alter the conduct or timeline for the Recalls; ballots will have to be printed with new instructions on voting the two separate questions (Part 1, Recall; Part 2, Successor Candidates) and ballot-counting rules will be changed to reflect the court’s ruling that “prior participation” on the Recall vote is not a prerequisite for casting a vote for successor candidates.

There is a remote possibility that the court’s ruling could lay the groundwork for a subsequent challenge by the incumbents against the current constitutional language barring them (the incumbents) from consideration as a “successor” candidate (on the grounds that “voters are deprived of their choice of candidate”); although that would certainly do great violence to the intent of conducting a Recall election in the first place, it is (sadly) not too far of a logical leap from the court’s ruling today.

Read more about legal challenges in the Colorado Recall elections:

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 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.

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