State Election Law Once Again Challenged in Colorado Courts

The Colorado Election Law, HB13-1303 Voter Access and Modernized Elections Act of 2013, passed in haste last legislative session on a straight party-line vote (the Senate sponsors of the bill, Angela Giron and John Morse, were subsequently removed from office in Colorado’s first legislative recall elections in state history) has once again been challenged in court.

The Libertarian Party of Colorado, joined by several individual plaintiffs, filed suit in Denver District Court (Saturday, 2 November 2013) seeking to ensure that voters in this year’s coordinated (nonpartisan) municipal and special-district (including school board) elections were able to vote – and only able to vote – on those races for which they were eligible under state statute and the provisions of the Colorado Constitution.

The Complaint addresses provisions of constitutional language and previously existing statutory language conflicting with the recently-enacted legislation (HB13-1303) – in particular, different registration and residency requirements for voting on local elections and ballot questions.

Former state legislator Shawn Mitchell, the attorney for the plaintiffs in this challenge, stated:

As a former 14-year Colorado legislator, involved in the passage of many election bills, I’ve never seen voters’ rights and election integrity so ignored and abused. There was an agenda of reckless disregard for the impact on voters, candidates and citizen petitions.

The new law was introduced late in the session and crammed through over serious public outcry about bad drafting and unintended consequences. There are terrible impacts on average citizens and their local governments, conflicts with most local governments’ eligibility requirements for voting, and even constitutional violations.

The November non-partisan coordinated election is really about community self-governance. These elections are made up of over 1,000 local non-partisan contests for hundreds of towns, cities, school districts, library districts and fire districts, and have direct impact on the affairs of local governments and their citizens.

We’ll bring to the court’s attention the problems and confusion from cramming this new law on top of the current election code. We’ll ask the court to make sure people who are entitled to vote can, and those who shouldn’t, don’t.  [Emphasis added]

Key Arguments advanced in the Complaint:

  • VAMEA served to introduce conflicting provisions related to residency, eligibility and registration criteria to the remaining provisions of the Code. These conflicting provisions have resulted in the lack of uniform application of the Code as to eligibility to vote in the Election
  • VAMEA’s same-day voter registration provision conflicts with multiple registration/residency requirements for municipal, school board and special-district elections across the state
  • Differing voter eligibility requirements, and differing application of voter eligibility requirements within districts, creates the potential for violation of due process and equal protection of the laws under both Colorado and U.S. Constitution (14th Amendment) provisions
  • Conflicting statutory/constitutional provisions, and/or differential application of statutory and constitutional provisions, create the potential for ineligible votes and/or disenfranchisement of eligible voters as required by law

Key Relief (Court Action) Sought in the Complaint:

a. An order declaring that Defendants’ implementation of conflicting residency rules in counties across Colorado violates voters’ state and federal constitutional rights.

b. An order that imposing statutory eligibility periods for new residents without permitting voting in prior Colorado precincts violate electors’ state and federal constitutional rights by disenfranchising voters in local contests and questions

c. An order declaring Secretary of State’s Rule 2.2.2 be implemented in all counties for this election.

d. An order declaring that the Secretary report to each county the list of eligible electors changing their addresses on line anytime after October 4, 2013, and provide assistance to determine whether voters were disenfranchised from voting as eligible electors due to the default 22 day residency setting.

e. An order declaring that voters who were not allowed to vote in local contests and questions due to a move within the state of Colorado in the past 30, 25 or 22 days, depending upon the type of contest/question, be allowed to vote on the local races in their old precincts, if they so request.

f. An order declaring that the Defendants shall not present for canvass board certification, the results of the November 5, 2013 election contests and questions until a detailed analysis of ineligible voters, disenfranchised voters, and the margin of victory for every contest from all ballots across the state is compiled by the Secretary of State and presented to the Court for review.

g. An order declaring that all ballots already processed shall be segregated and remain unmixed and separate from all ballots that have not yet been processed, including after the latter ballots are processed.

h. An order declaring that new elections must be held for contests and questions where the margin of victory is less than the combined number of ineligible voters and disenfranchised voters for that contest or question, as determined by the canvass boards, the Secretary , and this court.

Analysis:

This most recent challenge to HB13-1303 Voter Access and Modernized Elections Act of 2013 highlights the deficiencies in the hastily-enacted legislation, which has already seen elements of the law set aside in previous court challenges.  Whether or not any results of the current election will be delayed or set aside depends on the number of potentially invalid votes cast (and the judge’s interpretation of both fact and applicable law).

It IS apparent that the conflicting provisions of the election legislation are likely to continue to draw successive court challenges unless addressed – and corrected – in the upcoming legislative session.

Read more about the Challenge to state election law 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 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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