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Court Case

Gessler v. Johnson

The Brennan Center for Justice is partnering with Colorado Common Cause in its litigation to ensure that all registered and eligible Colorado voters have ability right to participate fully in Colorado elections.

Published: January 21, 2013

The Brennan Center for Justice partnered with Colorado Common Cause in its successful litigation to ensure that all registered and eligible Colorado voters have the ability to participate in Colorado elections.

Background

Legal Documents

Press


Background

Colorado gives counties the option of conducting certain elections by mail. In these elections, there are no traditional polling places; instead, citizens vote by mailing in ballots sent to them by election officials. Most counties in Colorado held such an election in November 2011. 

Just before the 2011 mail-only election, Colorado Secretary of State Scott Gessler issued an order that mail ballots could only be sent to voters who voted in the last general election.  Those who did not vote in the last general election—so called “inactive—failed to vote (IFTV)” voters— would not be sent mail ballots unless they submitted to an administrative process to “reactivate” their status, a process similar to re-registering to vote. 

Prior to Gessler’s order, Denver County had planned to send mail ballots to both active and IFTV voters in the county, as it had for the last five election cycles. When Denver County announced its intention to proceed with sending mail ballots to registered voters – active and IFTV alike – Secretary Gessler brought suit against Denver County, asking a court to rule that county clerks and recorders must follow his interpretation of the law.  Secretary Gessler also asked for an injunction preventing Denver County from sending ballots to IFTV voters—even though the election was mail-only.  The court denied the injunction, and Denver sent mail ballots to IFTV voters.  Several other counties also sent mail ballots to IFTV voters after the ruling. 

Colorado Common Cause moved to intervene in the suit on behalf of Colorado citizens as the court considered whether Gessler’s interpretation would apply to future elections. Colorado Common Cause argued that Gessler’s interpretation of the Colorado law violates the federal and state constitutions.

On January 21st, 2013, the court ruled that Gessler’s interpretation of the mail ballot law was incorrect, and that counties are permitted to send ballots to IFTV voters.

The Court emphasized that Colorado law prohibited “any elector’s registration record from being canceled solely for failure to vote” but that the Secretary's interpretation of the law would have required some voters who had missed a single election to “re-register” to vote, “effectively penaliz[ing]” citizens “for not voting.” This would have “impeded the voting of some 4,000 – 6,000 IFTV electors in Denver in November 2011 … and tens-of-thousands of citizens statewide.”

For more information on the court’s ruling and how it protects the rights of thousands of Colorado citizens, read our press release.


Selected Legal Documents available for download

Court Order on Cross Motions for Summary Judgment 

Colorado Common Cause’s Response to Secretary Gessler’s Motion for Summary Judgment 

Secretary of State’s Cross Motion for Summary Judgment Against Denver 

Secretary of State’s Motion for Summary Judgment Against Colorado Common Cause 

Denver’s Cross Motion for Summary Judgment 

Denver’s Reply in Support of Motion for Judgment on the Pleadings

Secretary Gessler’s Response to Denver’s Motion for Judgment on the Pleadings

Colorado Common Cause’s Expert Disclosure 

Denver’s Expert Disclosure

Denver’s Motion for Judgment on the Pleadings

Secretary Gessler’s Reply in Support of Motion for Judgment on the Law

Secretary Gessler’s Response to Colorado Common Cause’s Second Amended Answer and Counterclaim 

Colorado Common Cause’s Second Amended Answer and Counterclaim

Denver’s Response to Secretary Gessler’s Motion for Judgment on the Law

Colorado Common Cause’s Response to Secretary Gessler’s Motion for Judgment on the Law 

Secretary Gessler’s Motion for Judgment on the Law

Secretary Gessler’s Response to Colorado Common Cause’s Amended Answer and Counterclaim 

Colorado Common Cause’s Amended Answer and Counterclaim 

Order on Colorado Common Cause Motion to Intervene

Colorado Common Cause's Motion to Intervene

Denver County Clerk and Recorder's Response in Opposition to Motion for Preliminary Injunction 

Secretary of State Gessler's Motion for Preliminary Injunction

Secretary of State Gessler's Complaint


Selected Press

Massive Participation From "Inactive" Voters Shows Folly of Gessler Policy, The Huffington Post, November 4, 2011

Editorial: A loss for Now, The Pueblo Chieftain, October 16, 2011

Welcome Developments in Colorado, The Brennan Center for Justice blog, October 12, 2011

A Win for Voters Is Gessler's Second Loss, The Huffington Post, October 10, 2011

Brown: Guessing at Gessler's Motives, The Denver Post, October 7, 2011

Scott Gessler is making a name for himself, The Colorado Independent, October 6, 2011

Don't Get Out the Vote: Secretary of State working against Colorado Voters, The Boulder Daily Camera, October 6, 2011

Rachel Maddow takes on Scott Gessler over voting lawsuit against Denver (VIDEO), The Westword, October 5, 2011

Gessler lawsuit launched against Denver County sounds voter-suppression alarm bells, The Colorado Independent, September 22, 2011

Editorial: Hindering valid votes in Denver, The Denver Post, September 22, 2011

Littwin: Now is the time for the dunk tank, The Denver Post, September 22, 2011

Editorial: Goal should be to activate Colorado's inactive voters, The Denver Post, October 16, 2011

Congressmen ask U.S. to look into Gessler lawsuit against Denver clerk, The Denver Post, September 18, 2011

Court Disagrees with Gessler on Inactive Voters, The Denver Post, January 23, 2012

Editorial: A Victory for Colorado Voters, The Denver Post, January 23, 2012.