Colorado: Suppressing Votes, Ignoring the Constitution

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Breaking news – A Denver judge ruled on October 7 that the Denver Clerk and Recorder can mail ballots to “inactive” voters who missed one election, as she had planned. There will be a later legal proceeding to fully consider the issues.
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Colorado Secretary of State Scott Gessler will ask a court today to uphold his order to stop Denver County Clerk and Recorder Debra Johnson from sending certain eligible and registered voters mail ballots in next month’s mail-only election. Secretary Gessler’s order would mean approximately 55,000 eligible and registered Denver residents will have to go through onerous and unnecessary steps to vote, or will not be able to vote at all.

Colorado allows counties to conduct certain elections by “mail ballot.” Voters participate in these elections by casting ballots sent to them by the state through the mail, rather than going to traditional polling places. For the past five election cycles, Denver has sent mail ballots to all registered voters, unless there was a known problem with the voter’s address. Denver was planning to do the same for the upcoming election. Just weeks before ballots were to be sent, however, Secretary Gessler ordered Denver to stop. 

Secretary Gessler claims his authority as chief election officer of the state allows him to interpret the Colorado Election Code any way he wants, whenever he wants. A provision of the code designates voters as “inactive” if they miss just one election. Many other states have an inactive designation, but Colorado is unique in that a voter gets labeled “inactive” for missing a single election. In other states, the typical practice is to label a voter “inactive” only if a piece of mail is returned by the post office as undeliverable, a person fails to respond to an official address confirmation request, or a voter misses two elections. In all instances, an inactive voter remains registered and is still eligible to vote. Secretary Gessler wants to make Colorado’s law even more unique and harsh. His interpretation is that inactive voters—who remain registered and have the right to vote—cannot be sent mail ballots unless they contact a Clerk’s office in advance of the election to specifically request the right to vote in the upcoming election. This would mean that tens of thousands of registered voters would have to contact Denver—and quickly—or lose their right to vote, simply because they failed to vote in a single election.

Aside from being terrible policy, Secretary Gessler’s interpretation violates the constitutional rights of Denver citizens. Secretary Gessler’s rule essentially punishes voters for not participating in an election, which is protected political speech. Citizens who decide to express their dissatisfaction with the political system or the candidates available by not voting face the prospect of losing their voting rights or having to submit to a burdensome administrative process. It also deprives citizens of their fundamental right to vote without enough time or advance notice to do anything about it; it is unreasonable to require citizens to undergo administrative hurdles on such short notice and when many voters do not even know their right to vote is in jeopardy.

Although Secretary Gessler claims that disenfranchising thousands of registered voters is necessary to prevent “voter fraud,” there is no reasonable basis for believing that registered voters pose a fraud risk merely because they missed a single election. There are already checks in place to prevent fraud, and Secretary Gessler has produced no evidence that the current system doesn’t work.  

Furthermore, when Secretary Gessler makes claims about voter fraud, there is good reason to be skeptical. Earlier this year, Gessler submitted a report to Congress that claimed 11,805 noncitizens were registered to vote in Colorado. The claim was debunked, but Gessler nevertheless urged the Colorado Assembly to adopt restrictive proof-of-citizenship requirements for voting. In pushing for the new law, Gessler relied on his earlier claims that thousands of noncitizens were registered in Colorado. In reality, the law would have disenfranchised many citizens who could not afford or would not have access to the documentation required to vote. Fortunately, the law did not pass.

Here, however, a court will decide whether Secretary Gessler may prevent thousands from voting in the upcoming Colorado election. In the last mail ballot election, when Denver sent 55,023 mail ballots to “inactive” voters, 6,138 of them voted. Under Secretary Gessler’s interpretation of the law, none of them would have been mailed ballots. The Secretary of State’s proper role is to encourage voting. Yet with no sound basis in policy, the Constitution, or common sense, Secretary Gessler is eroding the right to vote in Colorado.