DENVER — The Sept. 10 recall elections of two Democratic Colorado lawmakers were supposed to be the first test-run of a new election overhaul, passed this year by Democrats, that would have sent mail ballots to every voter.
Now, those elections won’t involve any mail ballots at all.
After a long day in court, District Judge Robert McGahey ruled in favor of Colorado Libertarians, who’d sued after being denied a spot on the recall ballot because they failed to meet a deadline, put in place by the new election law, to submit petitions within 10 days of the election date being set.
McGahey agreed with the plaintiffs that the state constitution — which has, for 101 years, allowed candidates up to within 15 days of an election to submit their petitions — takes precedence over the new and, ultimately, flawed law.
“I know what this decision means,” McGahey told the court as he issued the ruling around 7 p.m. Monday night, alluding to concerns from county clerks of escalating election costs and from Democrats who worried that the loss of mail ballots, which can’t be printed and mailed to voters in time if candidate signatures are validated so late, will lower voter turnout.
“I wish I didn’t have to make this decision, but I do,” McGahey said. “The constitution can’t be ignored.”
The argument from the plaintiffs was simple and, it turned out, on solid legal ground: that the constitution trumps conflicting state statutes.
“It says what it says and the minute we start to say it doesn’t say what it says or call it archaic, we start to get into trouble,” said Matt Ferguson, the Aspen attorney hired just this weekend to argue the plaintiffs’ case.
Ironically, Secretary of State Scott Gessler and El Paso County Clerk Wayne Williams, both Republicans who vocally opposed the elections overhaul, House Bill 1303, earlier this year when it was debated at the Capitol, found themselves in the position of defending it in McGahey’s courtroom.
“It’s my job to abide by that law,” Gessler said. “But now that we have this ruling, we’ll figure out what we have to do and make sure that the voters in these two districts have the opportunity to vote on Sept. 10.”
According to Williams, the recall election of Senate President John Morse in Colorado Springs, which he’d budgeted to cost the county roughly $152,000, may now cost as much as $240,000, depending on how many new ballots must be printed and how many additional polling places have to be set up and manned in order to assure that ballots can be cast.
As a result of the ruling, ballots already mailed to military members serving overseas may also have to be nullified.
Candidates now have until Aug. 26 to qualify for the ballot ahead of the Sept. 10 election.
Morse and Sen. Angela Giron, D-Pueblo, both face recall elections for their support of tougher gun control laws, which Democrats pushed through this year.
Republicans, who might have won Morse’s seat in 2010 if not for a Libertarian candidate who split the conservative vote just enough, were disappointed in the decision, which they blamed on — who else? — Morse and Giron.
“Republicans warned Morse, Giron and Gov. Hickenlooper of the grave consequences that would arise if they rammed through their shoddy election reform legislation,” said Ryan Call, the Colorado GOP chairman, in a statement Monday night. “They ignored us. Now, it appears that our servicemen and women are the ones who will bear the brunt of Sens. Morse and Giron’s careless work.”