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Colo. Supreme Court rules voters don’t have to complete recall ballots

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DENVER — The Colorado Supreme Court added another layer of complexity to the state’s first ever recall elections, now two weeks away, ruling Tuesday that voters do not have to vote yes or no on whether to recall the lawmaker in question in order to vote on a possible successor.

The Court found that the current law, which Secretary of State Scott Gessler and both campaigns had been abiding by, which demands a yes vote on question one of a recall ballot in order to cast a legitimate vote on question two, is unconstitutional.

“We thank the Justices for moving quickly and appreciate the clarity they have provided so that these elections can go forward,” Gessler said in a statement Tuesday.

“We continue our commitment to making these elections work while preserving the integrity that Coloradans expect.”

Gov. John Hickenlooper had asked the Court to weigh in on the matter so as to avoid a possible legal fight that could jeopardize the election results.

Justices Nathan Coats and Monica Marquez dissented from the decision.

The initial court order is posted below.

ORDER OF COURT

Pursuant to Section 3 of Article VI of the Colorado Constitution, the
Governor submitted an interrogatory to this Court on August 23, 2013, concerning
the constitutionality of article XXI, § 3, of the Colorado Constitution.  The
Interrogatory propounded by Governor John Hickenlooper is:
Colorado Constitution Article 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?

We ordered that the Governor, the Attorney General, the Secretary of State,
the El Paso County Clerk and Recorder, the Pueblo County Clerk and Recorder,
Senator Angela Giron, Senator John Morse, the Colorado Democratic Party, the
Libertarian Party of Colorado, the Republican Party of Colorado and any other
interested persons be permitted to file simultaneous Briefs concerning the Interrogatory with the Clerk of the Colorado Supreme Court. We received briefs
from Secretary of State Scott Gessler; Senator Angela Giron, Senator John Morse
and the Colorado Democratic Party; the Libertarian Party of Colorado and Gordon
Roy Butt.

This Interrogatory presents an “important question upon solemn occasion[]”
invoking our original jurisdiction pursuant to Article VI, Section 3, of the
Constitution of the State of Colorado. The Court therefore announces that it will
accept the Interrogatory as propounded by Governor John Hickenlooper.   
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.

An opinion will follow.

BY THE COURT, EN BANC, AUGUST 27, 2013.
JUSTICE COATS and JUSTICE MÁRQUEZ, dissent.