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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.