Court Battles key in Colorado Recall Election victories

The unprecedented ouster of two incumbent state legislators in this month’s Colorado Recall Elections (state senators John Morse, SD-11 Colorado Springs lost 51%-49% and Angela Giron, SD-3 Pueblo lost 56%-44%, respectively) was historic not only in the outcome, but in the resources poured into the electoral fight.  Supporters of the incumbents spent over $3 Million (mostly coming from out-of-state special interests) while supporters of the Recall spent nearly $500,000 – flooding the airwaves and filling mailboxes with campaign advertisements and flyers, attempting to persuade those few voters who had yet to make up their minds about how (or even whether) to vote.

Yet despite the massive spending on the advertisements and volunteer-intensive “get out the vote” efforts, the electoral outcome was shaped far more by less-noticed, but ultimately MUCH more impactful, battles in our state courts.

Even the composition of the districts now held by Morse and Giron were determined, very much to the advantage of the Democrat incumbents, by court battles over the legislative district reapportionment process back in 2011.  (See the many contemporaneous articles on the Clear The Bench Colorado website, search keyword “reapportionment” for details – www.clearthebenchcolorado.org).

Those court battles left the Democrat incumbents in those districts with a sizable registration and voter “performance” advantage (see, “Myths and Reality about the Colorado Recall Elections” for details).

The next round of court battles were fought over whether the Recall elections could go forward at all – as Democrat attorneys attempted to get the petitions for the Recall vote thrown out on a technicality.  This time, the Democrats lost – and lost resoundingly.  The Recalls (and mail ballots) were on the way.

However, just as the first mailing of ballots (to overseas voters) was starting, yet another court challenge was filed, seeking to uphold the constitutional provisions (and timelines) for candidate ballot access (which were incompatible with the recently-passed “all-mail-ballot-elections” legislation, HB13-1303).  This time around, the challenge (and the primacy of the Colorado Constitution over statute) won – forcing the elections to be held primarily as polling-place elections, since the candidate certification deadline of 15 days before the election date made “all-mail-ballot” voting practically impossible.

This case may have been the most important in shaping the ultimate outcome of the Recall elections – possibly even saving the Recall effort, since “all-mail-ballot” voting favors the (Democrat) incumbents (admitted by the Left in attacking the ruling, saying):

“With a recall election that voters have to attend in person, lower turnout is likely, which is historically not beneficial to the Democratic incumbents in off-year elections.”

(Note: Losing incumbent state senate president John Morse blamed his loss on the lack of an “all-mail-ballot” election; ironically, Colorado Republican state chair Ryan Call had opposed the lawsuit and criticized the court ruling which set aside the “all-mail-ballot” provisions of the recently-enacted election law for the Recall vote).

The same case empowered the Colorado Secretary of State to issue new rules for the Recall elections, including some intended to reduce the opportunity for voter fraud by tightening the definition of “residency” requirements under the vague (and allegedly vote-fraud enabling) provisions of the Morse-Giron sponsored new elections law (HB13-1303).

Yet even those court-authorized rules changes were subjected to yet another round of legal challenges. Several of the new rules (including the clarified residency requirements and provisions expanding the use of E-mail ballot delivery) were struck down as exceeding the court’s mandate to allow new rules only in those areas needed to ensure compliance with the constitution’s Recall elections language.

A last-minute challenge attempting to force Pueblo County Clerk & Recorder Gilbert “Bo” Ortiz to allow poll-watchers full access to observe the process (as required under state elections law) after reported voting irregularities was denied a hearing by a Denver judge, raising fears of vote fraud.

(For more on all of the Recall-related court challenges, search keyword “recall” on the Clear The Bench Colorado website).

Finally, the court case that didn’t happen (but probably should have) – allowing the out-of-state money machine to funnel massive contributions to the anti-Recall forces while skirting campaign finance laws. Challenging the multiple anti-Recall committees before an administrative law judge (ALJ) would have not only highlighted how money was shifted around by various special-interest groups to avoid campaign contribution limits and reporting requirements, but also (if successful) could have resulted in fines and penalties to the Bloomberg-backed machine in excess of $1M (yes, that’s one MILLION dollars).

Not to take anything away from the magnificent grassroots effort to get the Recall campaigns rolling, the various individuals and organizations joining in to help the effort, and the countless volunteer hours put in to gather petitions and “get out the vote” – but ultimately, these court cases may prove to have been the deciding factor in Colorado’s historic recall elections.

We continue to ignore these lessons at our peril.

Read more about the Colorado Recall Election court battles:

• Emergency Complaint and Request for Emergency Order filed in Pueblo Colorado Recall Election after voting irregularities (9 September)
• Colorado Recall Election rules undergo final adjustments after successful challenge (29 August)
• Colorado Supreme Court strikes down Recall voting rules as unconstitutional, forcing changes in Colorado Recall Elections (27 August)
• Colorado Supreme Court once again asked to weigh in on Colorado Recall elections (26 August)
• Colorado Recall election rules finalized (24 August)
• Colorado Recall lawsuit success triggers new rules for historic Colorado Recall elections (21 August)
• Colorado Supreme Court rejects appeal to Colorado Recall lawsuit ruling – Recall to go forward as polling place election (16 August)
• Denver District Judge upholds Constitution over election law statute in Colorado Recall legal challenge (12 August)

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.