Know Your Judge

Merry Christmas from Clear The Bench Colorado!

Merry Christmas from Clear The Bench Colorado!

In the spirit of the season today, no commentary or analysis on Colorado Supreme Court rulings that have taken money out of your pocketeroded your constitutional rights, or usurped the powers of other branches of government.

Not even any reminiscing on the courtroom victories Colorado citizens have achieved over the past year (thanks, in large part, to the ongoing efforts of Clear The Bench Colorado – see, “Activist saves Colorado from massive tax hike) such as the court ruling upholding the Douglas County School Choice program, another court ruling overturning the Lobato school funding lawsuit, and the court battles key in the Colorado Recall Election victories - victories that would NOT have been possible a mere few years ago, before the advent of Clear The Bench Colorado.

Just a simple message and best wishes for a Merry Christmas and Happy New Year!

Enjoy your Christmas present, but please act to save your Christmas future -

Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions.
Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Colorado Supreme Court issues written opinion on challenge to constitutionality of Recall voting rules

The Colorado Supreme Court issued a written opinion expounding on the court’s earlier bench ruling on In re Interrogatory Propounded by Governor Hickenlooper, 13-SA-214 (when the court struck down Colorado’s constitutional requirement that a voter who fails to vote on whether to recall an official may not vote on who should fill the vacancy as a violation of the U.S. Constitution’s 1st & 14th Amendments)

The ruling was decided on a 5-2 vote, with Justices Coats and Marquez dissenting (a somewhat unusual pairing).

The Court’s Order (issued on 27 August 2013) 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)

Analysis:

At issue was the constitutional requirement (Article XXI Section 3) that “an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue.”

The court ruled that requiring a vote on the recall question in order to vote on successor candidates amounted to an unconstitutional precondition (“prior participation requirement”) on the exercise of free speech (as expressed via voting) – in essence, “unconstitutionally compelling voters to speak on the recall question.” (Opinion at 9)

 The prior participation requirement in Colorado’s Constitution thus improperly burdens voters’ associational rights by compelling speech and therefore violates the First Amendment to the United States Constitution.  (Opinion at 11)

The court also held that the prior participation requirement “also effectuates a severe restriction on citizens’ fundamental right to vote”  (Opinion at 11) and “unconstitutionally compels voters to express a view on the question of whether to recall an elected official.” (Opinion at 12)

 Given that “any restrictions on [the right to vote] strike at the heart of representative government,” Reynolds, 377 U.S. at 555, the prior participation requirement at issue conflicts with voters’ fundamental right to vote under the Fourteenth Amendment. (Opinion at 13)

Dissenting Opinion

The dissent by Justice Marquez (joined by Justice Coats) raises some interesting issues, hinging on both the propriety of the court taking up the interrogatory in order to issue an advisory ruling, and on the interpretation of the federal constitutional language in this case.

Justice Marquez cautions against the exercise of judicial review to address a hypothetical situation -

(“Axiomatic to the exercise of judicial authority is the principle that a court should not decide a constitutional issue unless . . . the necessity for such a decision is clear and inescapable.”).  (Dissent at 8)

Justice Marquez also noted that overturning legislative or constitutional provisions “requires a showing of unconstitutionality beyond a reasonable doubt” and notes that

the U.S. Supreme Court has never addressed, let alone resolved, the constitutionality of a conditional vote requirement such as Colorado’s. We have no binding precedent on point that compels the conclusion that the language in article XXI, section 3 is unconstitutional beyond a reasonable doubt. (Dissent at 11)

Justice Marquez noted that the history of the adoption of Colorado’s Recall provision showed the intent of combining the question of Recall and successor candidate selection:

Here, the voters of Colorado decided, through citizen initiative, to establish a recall process that combines the recall question and the choice of a successor into a single election. In so doing, the citizenry decided that an incumbent shall be recalled only where a majority of those voting favor removal of the incumbent. Id. Accordingly, votes for a successor are tallied only where the incumbent is actually recalled. In this sense, the choice of a successor is derivative of the recall issue.  Thus, I disagree that these issues are in fact “wholly distinct,” maj. op. ¶ 26, at least where, as here, the voters of Colorado decided to combine them into a single election process. By requiring a voter to vote on the recall question as a condition to voting for a successor, this provision ensures that the citizens seeking to elect a particular successor are the same group of citizens who decided, by majority vote, to have the incumbent removed. (Dissent at 16-17; emphasis added)

Bottom Line:

The Colorado Supreme Court’s ruling did not substantially alter the conduct or timeline for the Recalls in September, nor will future Recall elections be substantially affected by the ruling, since (as actual election results have borne out) the number of votes to which the hypothetical raised in the governor’s Interrogatory applied was vanishingly small.  However, as Justice Marquez noted in her dissent, the court’s ruling may have set a precedent for expansion of the court’s power to preemptively decide future legal hypotheticals and “write out” constitutional language without benefit of trial.

Read more about the Colorado Recall Voting Rules case:

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.

Colorado seeks dismissal of anti-TABOR lawsuit in 10th Circuit Court of Appeals

Colorado state attorneys asked a 3-judge panel of the 10th Circuit Court of Appeals in oral arguments Monday to dismiss the frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, known as “TABOR”) filed in Federal court in May 2011 – (which, after several rounds of motions and counter-motions, was allowed to proceed to trial in July 2012 (despite clear constitutional precedent disallowing challenges on the basis of the “Guarantee Clause”).

In arguments Monday, state Solicitor General Daniel Domenico told a three-judge panel of the 10th U.S. Circuit Court of Appeals that lawmakers still have the ability to ask voters to approve a tax increase if they think one is needed under the Taxpayer’s Bill of Rights.

“Just because it’s a little bit harder doesn’t make it unrepublican,” he said of the referendum needed to raise taxes under TABOR. (See, “Appeals Court Panel Considers TABOR Challenge,” CBS News 23 Sep 2013)

State attorneys were supported in their Motion to Dismiss by an amicus brief filed earlier this year by the Colorado Union of Taxpayers (CUT) underlining the fact that the lawsuit’s claims present a “nonjusticiable political question” and highlighting the importance of preserving the separation of powers that could be jeopardized by a court ruling striking down the TABOR constitutional amendment.

Some key points:

  • The General Assembly’s power to propose taxes has always been subject to numerous constitutional limitations, qualifications, and exemptions.
  • And the people retain ultimate veto authority over all acts of the General Assembly, including taxation and spending.

Id. art. V, § 1 (“The legislative power of the state shall be vested in the general assembly . . . but the people reserve to themselves the power . . . at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.”).

  • TABOR’s primary restraint on the legislature is procedural, not substantive. … It is this element of democratic accountability and constitutional restraint that Plaintiffs challenge in this litigation.

 

As previously noted, the lawsuit is lacking in legal merit, and constitutional case law precedent (including two relevant Supreme Court of the United States [SCOTUS] decisions, as also noted earlier) is clear that the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) is non-justiciable (meaning, not subject to determination by the courts).  Constitutional constraints on government are, by definition, constitutionally allowed – failing to dismiss this clearly frivolous lawsuit would cost Colorado taxpayers hundreds of thousands in legal fees and costs, and will almost certainly ultimately end up before the United States Supreme Court since overturning a state constitutional amendment by judicial fiat would have immense implications for the citizens’ initiative process and the right of the people to limit government power by constitutional limits nationwide.

If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.

Reference state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (which was filed back in August by Governor Hickenlooper and Attorney General Suthers – also, analysis of the state’s Motion to Dismiss).

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

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.

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.

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:

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.

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.

Colorado Supreme Court once again asked to weigh in on Colorado Recall elections as Governor files interrogatory

The fate of Colorado’s historic legislative Recall elections has once again been thrown into the courts, as Colorado Governor John Hickenlooper filed an interrogatory (request for judicial clarification) with the Colorado Supreme Court seeking a ruling 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 U.S. Constitution (specifically, the First and Fourteenth Amendments):

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 question arises from the 2-part nature of the ballot question in Recall elections under Colorado’s Constitution.  Part 1 (the Recall question) is phrased as a Yes/No question on whether the incumbent subject to Recall should be removed from office; Part 2 (successor candidates) lists candidates who filed to succeed the incumbent IF (and only if) the Recall question succeeds (Note: the incumbent CANNOT be among the list of potential successors):

There shall be printed on the official ballot, as to every officer whose recall is to be voted on, the words, “Shall (name of person against whom the recall petition is filed) be recalled from the office of (title of the office)?” Following such question shall be the words, “Yes” and “No”, on separate lines, with a blank space at the right of each, in which the voter shall indicate, by marking a cross (X), his vote for or against such recall.

On such ballots, under each question, there shall also be printed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled; but 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. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. [Emphasis added] (Colorado Constitution Article XXI Section 3)

The request for interrogatory arises from the (apparently recently-discovered fact) that similar language in the California Constitution related to Recalls was ruled unconstitutional by the United States District Court for the Southern District of California in a 2003 case (Partnoy v. Shelley, Interrogatory Exhibit A) involving the Recall of California governor Gray Davis.

In that ruling, the (CA) court held that the similarly-worded requirement to count votes for successor candidates only when votes were also cast on the Recall question violated the First and Fourteenth Amendments to the U.S. Constitution.

 Analysis:

The Colorado Supreme Court ruling is unlikely to substantially alter the course or conduct of the Recall election, since the Interrogatory does not call into question the 2-part form of the Recall ballot itself, merely the issue of whether a vote in Part 1 (Recall) is a necessary precondition (“prior participation”) for counting any votes cast in Part 2 (successor candidates).

At most, an affirmative ruling would impact the accompanying instructions for voting the ballot, and would obviously modify the process for counting votes cast for successor candidates if Recall succeeds.

A Colorado Supreme Court decision to strike down Colorado’s constitutional language on Recall ballots is far from a sure thing, however; the case law precedent is weak (a single ruling by a single District Court judge in another state and federal court circuit – the Ninth – NOT a ruling by the Ninth Circuit Court of Appeals, as erroneously reported elsewhere).  Moreover, as correctly noted elsewhere, because the ruling occurred in a different federal judicial circuit (California is in the Ninth Circuit, Colorado is in the Tenth) it is NOT binding judicial precedent (although the Colorado Supreme Court will certainly take judicial notice of, and consider, the California Recall ruling in its deliberations).

In any case, having the Colorado Supreme Court issue a ruling on this potential issue BEFORE the elections take place is prudent, as any challenge on this basis filed AFTER the election would certainly result in a (costly) recount, and could possibly lead to “the invalidation of the entire election based on the distribution of faulty ballots” – a “hanging chaos” best avoided. (Interrogatory at p.4)

Quo Vadis?

The Colorado Supreme Court has set a deadline for all interested parties to file briefs by tomorrow morning, Tuesday, August 27. A ruling could occur as early as Tuesday afternoon, but at least by Friday August 30th (when the ballot is due to be certified) at the latest.


(Photo originally published in Denver Post media gallery)

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.

Colorado Recall election rules finalized

After a successful constitutional challenge to ballot access and mail-balloting rules for Colorado’s historic legislative Recall elections earlier triggered the release of new rules governing the September 10th vote, additional comments and inputs led to some last-minute tweaking of the final election rules, issued late Friday afternoon.

The rules changes were made necessary because of conflicts between the provisions of the Colorado Constitution (Article XXI, Section 3) and recently-enacted state statute calling for “all-mail-balloting”  (HB13-1303 - somewhat ironically, co-sponsored by the Recall targets, state senators John Morse of Colorado Springs SD-11 and Angela Giron of Pueblo’s SD-3).

The most important “tweaks” to the final rules were in the controversial area of ‘Emergency Ballots’ and Electronic (E-mail) Voting.

The draft rules issued last week contained provisions allowing a voter “temporarily absent from his or her county of residence” to apply for an emergency ballot, which could also be returned by electronic means (E-mail or FAX), a process generally reserved for military or overseas voters by exception (i.e., when otherwise unable to access snail-mail).

The final rules issued Friday afternoon (Rule 32. Rules Concerning Recall) eliminated this draft provision and replace it with a provision preserving the option to request and receive “emergency ballots” (including by electronic means) while clarifying that ballots must be returned by regular mail:

(f) An elector who cannot vote in person because the elector is absent from his or her county of residence during the period when polling locations are open may apply for an absentee ballot.

(1) The elector may request to receive the ballot by mail or electronic transmission.

(2) The elector must return the absentee ballot by regular mail, and the ballot must be post marked by 7:00pm on election day. The county clerk will process and count all timely post marked absentee ballots that are received within eight days after election day.

Other important provisions (in both the draft and final rules) address provisional ballots (32.7.7), election judges (32.7.8), and poll watchers (32.7.9), along with voter registration, including same-day and polling-place registration (32.7.3) – which, given widespread concerns about potential vote fraud enabled by the recently-enacted election law statute (HB13-1303) and the national attention focused on the Recall vote, are critical steps in enhancing confidence in a fair process and clean elections.

Read more about the Colorado Recall election rules and how they were adopted:

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.

 

Colorado Recall lawsuit success triggers new rules for historic Colorado Recall elections

The success of a recent constitutional challenge to ballot access and mail-balloting rules formerly governing Colorado’s historic legislative Recall elections has triggered the release of new rules governing the September 10th vote.  After the Colorado Supreme Court rejected an appeal challenging the Denver District Court ruling, the Colorado Secretary of State issued the new rules (“Order 13-003 and Temporary Election Rule 32.7“) following an expedited period of public comment late last Friday.

The rules changes were made necessary because of conflicts between the provisions of the Colorado Constitution (Article XXI, Section 3) and recently-enacted state statute calling for “all-mail-balloting”  (HB13-1303 - somewhat ironically, co-sponsored by the Recall targets, state senators John Morse of Colorado Springs SD-11 and Angela Giron of Pueblo’s SD-3).

Since the constitutional provisions governing ballot access set the deadline for submitting candidate petitions at 15 days before the election date

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. (Article XXI, Section 3)

the requirement for “all-mail-ballot” elections set forth in statute was overridden (and negated) by the primacy of the constitutional language, resulting in the order for the Recall vote to be conducted as “polling place elections.”  (Election Rule 32.7)

Other provisions of the “mail-ballot elections” statute (HB13-1303) , widely criticized as facilitating voter fraud (a Colorado Springs Gazette editorial, “Morse-backed election overhaul may lead to rampant voter fraud,” was particularly blunt) were also clarified in the newly-issued election rules.

In particular, the rules clarified some of the registration and residency requirements most generally considered conducive to fraud or strategic vote-shifting (a.k.a. “gypsy voting”):

AN ELECTOR MUST ESTABLISH A RESIDENCE BEFORE REGISTERING TO VOTE OR CHANGING HIS OR HER RESIDENCE IN ACCORDANCE WITH SECTION 1-2-102, C.R.S. AN ELECTOR’S RESIDENCE IS HIS OR HER PRIMARY HOME TO WHICH HE OR SHE, WHENEVER ABSENT, HAS THE PRESENT INTENT OF RETURNING. AN ELECTOR ESTABLISHES A RESIDENCE EITHER BY MAINTAINING A RESIDENCE AS HIS OR HER PRIMARY HOME OR BY PHYSICALLY MOVING TO A NEW RESIDENCE WITH THE INTENT TO MAINTAIN THAT RESIDENCE AS A PRIMARY HOME. INTENT TO MOVE, IN AND OF ITSELF,DOES NOT ESTABLISH RESIDENCE. AND NEITHER A BUSINESS NOR A TEMPORARY HOTEL ROOM IS A VALID RESIDENCE. UPON ESTABLISHING A NEW RESIDENCE THE ELECTOR MUST UPDATE HIS OR HER VOTER REGISTRATION RECORD WITH THE COUNTY CLERK AND RECORDER OF THE COUNTY TO WHICH THE ELECTOR MOVED.

Ironically, even though the bill’s sponsor (Angela Giron) had requested that the Secretary of State address the ‘gypsy voting” issue (at a 5 August meeting of a committee working on enacting the elections law), the clarification of residency requirements was criticized by “Top Democrats in the Colorado House of Representatives on Monday.”

(Perhaps they considered “gypsy voting” as not a bug, but a feature?)

Barring any formal complaint or legal challenge, however, the rules issued by the Colorado Secretary of State will govern the September 10th Colorado Recall elections.

Read more about the Colorado Recall election rules and how they were adopted:

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.

Colorado Supreme Court rejects appeal to Colorado Recall lawsuit ruling – Recall to go forward as polling place election

The Colorado Supreme Court rejected an appeal by Democrats (attorney Mark Grueskin and Pueblo County Clerk & Recorder Gilbert Ortiz) seeking to overturn Monday’s ruling by Denver District Court Judge Robert McGahey in favor of plaintiffs (led by the Colorado Libertarian Party, LPCO) advancing a constitutional claim to ballot access in Colorado’s historic Recall elections.

The Colorado Supreme Court ruling (“Order of Court“) resulted from a somewhat unusual 3-3 split vote (Chief Justice Bender, joined by Justices Marquez and Coats voted to review and stay [delay] the district court ruling, while Justices Boatright, Eid, and Rice voted to decline review and deny the request for stay; Justice Hobbs did not participate).  Since a majority is required to accept and hear the appeal (grant certiorari), the appeal failed.  From the Order of Court:

IT IS ORDERED that by operation of law pursuant to C.A.R. 35(e), the decision of the district court in this matter is final and is not subject to further appellate review.

IT IS FURTHER ORDERED that the request for stay of proceedings is DENIED.

Thursday’s Colorado Supreme Court ruling is the latest in a series of courtroom losses for the Colorado state senators (John Morse, D-Colorado Springs and Angela Giron, D-Pueblo) targeted for a Recall vote (beginning with their failed attempt to derail the Recall effort by challenging the petition format).

The ruling not only eliminated the last possibility of stopping or delaying the Recall elections (set for September 10th), but also ensured that the elections would be conducted as polling-place elections, instead of the all-mail-ballot procedure (generally held to favor incumbents) resulting from hastily-enacted legislation (the all-mail-ballot statute HB13-1303 ironically co-sponsored by the Recall targets, state senators Giron and Morse) passed AFTER the Recall efforts were already under way.

Meanwhile, Colorado Secretary of State Scott Gessler moved forward with preparing for the Recall elections, releasing draft rules for conducting the Recall votes as polling-place elections following a public hearing late Thursday afternoon (public comment on the rules was due Friday afternoon)

Ultimately, distilled down to its essential elements – a conflict between the clear language of the Constitution versus the requirements of recently-enacted election legislation – an appeal was unlikely to succeed on the merits.  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:

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.

 

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:

 

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.

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