Colorado Victory: Judge Rules for Voting Rights

January 21, 2013

Contact: Brennan Center: Erik Opsal, 646-292-8356, erik.opsal@nyu.edu
Colorado Common Cause: Elena Nuñez, 720-339-3273 cell, enunez@commoncause.org
Holland and Hart: J. Lee Gray, 303-290-1602, lgray@hollandhart.com

Denver, CO – The voting rights of thousands of Colorado citizens were protected today as a state district court judge blocked Secretary of State Scott Gessler’s controversial interpretation of Colorado’s mail ballot election law. Under Sec. Gessler’s reading of the law, county clerks could not mail ballots in elections conducted only by mail to voters who did not vote in the most recent general election. In effect, thousands of eligible voters — including many longtime voters — would not be able to vote unless they jumped through new and burdensome hurdles. 

Colorado election law 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 county election administrators. Just before the November 2011 election, Sec. Gessler issued an order prohibiting counties from mailing ballots to voters who did not vote in the last general election (2010). These voters, so called “inactive-failed to vote” voters, could only be sent mail ballots if they submitted to a confusing and burdensome administrative process to “reactivate” their status by effectively re-registering to vote.

In response to Gessler’s order, Denver County Clerk and Recorder Debra Johnson, who believed the order was inconsistent with state law, stated her intent to send mail ballots to all eligible voters in the county, as the county had for the prior five elections. Sec. Gessler filed a lawsuit against the county, asking a court to rule that county election administrators must follow his interpretation of the mail ballot law. Sec. Gessler also asked for a court order preventing the county from sending mail ballots to inactive-failed to vote voters in the upcoming mail only election. The court refused, and allowed Denver County and other counties to send mail ballots to these voters. Thousands of affected voters participated in the mail-only election after receiving the ballots.

Colorado Common Cause, represented by attorneys from the Brennan Center for Justice and the law firm of Holland and Hart, sought to participate in the lawsuit on the side of Denver and other counties as the court considered whether Gessler’s interpretation would apply to future elections. Colorado Common Cause argued that Colorado law and the constitutions of Colorado and the United States prohibit Gessler’s interpretation.

Today, after considering the evidence submitted by the parties and hearing hours of oral arguments, the court ruled Gessler’s interpretation of the mail ballot law was incorrect, and that counties can send ballots to inactive-failed to vote 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.”

“Today’s ruling is a clear victory for Colorado voters,” said Myrna Pérez, senior counsel for the Brennan Center’s Democracy Program, the attorney who argued the case for Colorado Common Cause. “The court was right not to accept a position that would have penalized registered and eligible voters for not participating in just one election.”

“As Colorado’s chief elections officer, the Secretary of State should focus his resources on promoting electoral participation and assisting voters, not disenfranchising certain eligible voters,” said Elena Nuñez, Executive Director of Colorado Common Cause. “The Colorado legislature must now act to clarify the law so that voters who miss one election will not be disenfranchised in future elections. We understand Sec. Gessler has announced his support for this kind of legislation and we welcome his participation in the process.”

“The evidence was clear that disenfranchising inactive failed to vote voters would detrimentally affect Colorado’s communities of color,” said Lee Gray of Holland and Hart, pro bono counsel in the case. “The legislature should take note of this evidence and clarify the statute in the upcoming legislative session.”

Common Cause is represented by the Brennan Center for Justice, and pro bono by Lee Gray and Jesse Horn from the law firm Holland and Hart. Myrna Pérez of the Brennan Center argued the case before the court.

Click here for more background information on this lawsuit.