After protest hearing, Morse recall likely headed to court

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Senate President John Morse, a Democrat, talks to FOX31 Denver last month about the looming recall election he might face.

DENVER — For four hours Thursday morning, attorneys on both sides of the effort to recall state Senate President John Morse argued across a conference table about the validity of signatures signed by constituents upset by the Democratic lawmaker’s support of gun control legislation earlier this year.

Secretary of State Scott Gessler, a Republican, found earlier this month that organizers had turned in more than enough signatures to force a recall election later this year.

On Thursday, Morse’s attorney tried to persuade Gessler’s deputy, Suzanne Staiert, that all of those petitions are invalid because they don’t explicitly state that a recall election also would force constituents in Senate District 11 to vote on Morse’s successor.

“There is no petition in these three boxes that has the language that’s required stating that a recall election will take place,” said Mark Grueskin, the noted Democratic elections attorney arguing on Morse’s behalf.

Grueskin points to a case, Combs v. Nowak, in which an appellate court threw out signatures trying to recall two Central City alderman because the committee failed to include a demand for “an election of the successor to the officer named in said petition,” as required by Article 21, Section 1 of the Colorado constitution.

“The Constitution is really clear: you’ve got to ask for a recall and tell people that there’s going to be an election,” Grueskin told FOX31 Denver after the hearing. “Basically, what petition signers got was half a loaf. And that’s not a constitutional half a loaf.”

But the group “Basic Freedoms Defense Fund” believes Morse’s legal team are “grasping at straws.”

“We did everything by the book, we did everything with the SOS’s requirements of us. In fact, the very petition form that was used by us was provided by Colorado and the Secretary of State’s office,”  said Jennifer Kerns, BFDF’s spokesperson, after Thursday’s hearing.

“It’s the same form they’ve been using for years, even back when Bernie Buescher [a Democrat] was Secretary of State.”

The group’s attorney, Richard Westfall, applauded Grueskin for his ability to make convincing arguments from the smallest shreds of legal ambiguity, but argued that the petitions are sound.

“His whole argument is that mistakes were made,” Westfall said. “But no mistakes were made.”

Grueskin grilled two staffers in the Secretary of State’s office whose job is to deal with groups seeking ballot access; Ben Schler, who oversees that division of the office, testified the he couldn’t recall whether BFDF asked him about whether successor language was required on recall petitions.

Grueskin also paid for Public Policy Polling, a Democratic research firm based in North Carolina that polls mostly on the state level, to survey 380 constituents in Morse’s district to find out whether they knew what signing a recall petition would actually lead to.

“We found that 54 percent of voters in Senate District 11 didn’t know what happens in a recall election after the petitions are certified,” said Tom Jensen, who runs PPP and flew to Denver to testify Thursday.

Jensen said there was no way to know how many of the respondents had signed recall petitions but argued that, statistically speaking, it’s almost a certain that many did.

Staiert will issue a decision on whether or not to uphold Gessler’s validation of the petitions some time between tomorrow and next Wednesday, July 3.

But, whatever the decision, it’s almost a guarantee the losing side will appeal the decision in district court.