Wednesday, August 21, 2013

Colorado: Another legal challenge? Colorado law mandates a vote on the recall question for a successor vote to count

The Citizen Center's Marilyn Marks has pointed out that the Colorado Recall requires that voters must cast a ballot on the yes-or-no recall question if they want to vote for a successor candidate. Just to be clear: Colorado, like California, has what I call a two-step/same-day recall vote -- voters cast one ballot which has two parts: step one is the question of "Should this official be recalled?" and step two is "Who should be named as a replacement?" Colorado's Constitution very clearly states that if you don't vote on the recall question, any second vote is tossed out and doesn't count.

This is a ripe avenue for litigation, as California had the same provision in 2003. A US District Court tossed it out as unconstitutional (the case was not appealed). San Diego is facing the same question (which may very well be tossed out there as well). This one could be another minefield for the Secretary of State and the local Clerks.

Note that the California judicial ruling (Partnoy v. Shelley) was decided on the District Court level in a different circuit, so it's not clear how much of a precedential value this ruling will have. Also, just to fill this blank in, the 2003 ruling was handed down by a Clinton-appointed Judge, so it is certainly possible that a Republican-appointed Judge would have a different holding.

As far as I can tell with a quick search, no other state has the two-step/same-day recall law for the state officials, so California is the only state law that would give a direct comparison. The other states are divided between a two-step/separate-day procedure (the replacement vote occurs on a later date); one-step/same-day (basically, the candidate faces off directly against challengers) and one-step/appointment (there is no election for the replacement; the vacant seat is replaced by an appointment).

Note that this isn't the first issue that has cropped up that would put Colorado directly at odds with how another state handled a tough recall question. Because these two recall are taking place against officials who last ran in a pre-redistricting seats, there was a question of which district to use for the recall (the pre-redistricting population of voters who actually elected the officials or the voters of the new district). Colorado seems to have held that it would be just the voters of the new district. Wisconsin had the same issue and came to the opposite conclusion (though Wisconsin's legislature did pass a law that mandated that finding, so not exactly the same).


  1. Marilyn Marks has already created hardship for thousands of disabled and elderly voters in Pueblo and El Paso counties, by promoting a frivolous lawsuit to get Libertarian candidates on the recall election ballots.

    Ms Marks had to have been aware that these are unqualified and unelectable candidates; Mr. Butt in El Paso County has no public office experience, and Mr. Anglund is a one issue (gun rights) candidate. Nevertheless, she chose to promote the Libertarian lawsuit, for one reason only: to make sure that the recall elections would not be by all mail in ballots. She understands that mail in ballots allow more people to vote, and she doesn't want that, as Democrats tend to win with a wider electorate. Therefore, she has callously disenfranchised thousands.

    As far as the ballot rules which require one to vote on the recall election question before a successor candidate selection will count, that is old news. The county clerks, and even our partisan secretary of state, publicized that widely weeks ago.

    If she plans to use that to question failed recall election results, her legal pathway would be rocky.

  2. Thanks -- Could you post or send me a link to articles that discuss how they would handle this issue? It certainly does seem like a likely avenue for more litigation.

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  4. You asked for it….probably TMI, but basically: Marks can’t sue on behalf of recall candidates being harmed by the ballot language, because the ballot language is very specifically spelled out in the Colorado Constitution, Article XXI. This is what she encouraged the Libertarians to sue over.
    The more recent legislation was not from HB1303, as has been widely reported, even by S o S Gessler, who never misses an opportunity to blame Democrats for problems. The legislation that would have shortened the deadline to petition onto recall ballot was actually made law in 2012, as Jason Salzman pointed out in his Colorado Pols blog:
    HB1303 vs. HB1289 changing deadline for petitioning onto recall ballot:

    So it would be weird for Marks to sue that the Colorado Constitution is unconstitutional. And the Colorado Supreme Court already said that they wouldn’t review this case again. (My blog post:

    If you're positing that Marks has a deep long term plan to go to the United States Supreme Court about how unfair the Colorado Constitutional recall language is, then she's both deeper and crazier than even I give her credit for.


    Info about Marilyn Marks and her jihad against mail in ballots:

    Colorado Constitution, Article XXI,_Colorado_Constitution

    Independence Institute link to same article in Constitution:

    Recall election rules:
    Pueblo rules: (link to emergency adopted case rules via Gessler)

    El Paso rules:

    Ballot Language:

    Pueblo sample ballot: can’t be posted until Aug 27, after libertarians have or have not managed to get onto the ballot. Unlike El Paso, Ortiz has not posted a sample ballot for military voters. (UOCAVA voters) There is just a contact # to call.

    El paso sample ballot:

    There is also one on Morse’s site:

    Gessler’s take on court ruling Chieftain column:

    Colorado Independent, Tessa Cheek reporting on ballot language:

    August 11, 2013 – I’m quoting the article here since most of it is behind a paywall. Mj55

    FAQs about recall voting



    The Sept. 10 recall ballot that every Senate District 3 voter will receive asks two questions: — Should state Sen. Angela Giron, D-Pueblo, be recalled from office?

    — Do you want to vote for George Rivera, a Republican, to replace her?

    “Voters must answer the recall question, yes or no, in order for their vote for a replacement candidate to count,” Pueblo County Clerk Gilbert “Bo” Ortiz explained this week. “If you just vote for Mr. Rivera, but not the recall question, your vote won’t count.”

    Similarly, if a majority votes against recalling Giron, Rivera’s vote total won’t matter. And if you vote to retain Giron, you may still vote for Rivera.

    There is a space for a write-in candidate’s name, but only those write-in candidates who are certified by the secretary of state’s office can receive votes. None have been thus far.

    Mail ballots will go out Aug. 19 and voters can start voting and returning them immediately, either by mail or in person.

    “Put your official signature on the ballot envelope, not your ballot,” Ortiz said. “Our judges don’t need to know how you personally voted.”

  5. Thanks for the extensive posting -- as you may imagine from the looks I get when I tell people I run a blog on Recall Elections, we have a very lenient definition of TMI.

    The question that Ms. Marks brought up is still valid, and regardless of motives, a lawsuit could cause a last minute change in the ballot(a potential expensive proposition),if not killed the recalls entirely (a very unlikely result, but theoretically possible). You're correct (as I mentioned in the original post) that this exact language is in the Colorado Constitution (as it was in the California Constitution). However, the Federal Court in California in 2003 (one part of the Partnoy v. Shelley case linked above) held that this requirement violated voter's First Amendment rights to free expression (the right to not make a decision on the recall, but retain the right to vote on the replacement). It wouldn't take a US Supreme Court decision to toss that out, just a district court ruling. As I said, I have no idea how a Colorado Federal District Judge would rule on this question, but we do know how one ruled a decade in California.

    Thanks for the info, but I don't see anyone talking about this specific question (and I hadn't thought about it until Ms. Marks sent an email). I would certainly agree that this is not the biggest issue in this recall, but it is certainly one that may result in litigation.

  6. So since Marks is a Republican operative, explain what incentive she would have to blow up the recall election again.

    She, the NRA, and the Independence Institute have what they wanted - no mail ballots for Dems, chances of recall succeeding greater, Dems get smacked down, legislators who might consider gun legislation warned off.

    What's in it for these interests to delegitimize the recall elections before they happen?

    I could see a post election spin, if the recalls fail, which I'm pretty sure will happen in Pueblo, at least. Post election spin: "It was all the gypsy voters, it was Dems fraud, bla bla." But post-election, challenging the Colorado Constitution for 1st amendment rights? Again, what's in it from the conservative point of view?

    I think it's more likely that Marks is messing with you, or trying to set up the situation she usually does, i.e., "Let's you and him fight."

  7. Whatever the motivations, it is a real issue, one that could lead to litigation and last minute complications If you want to look for an angle, perhaps a prophylactic thought would help -- handling this issue now rather than closer to the election would avoid needless complications.

    As for the goals of the recall, here's an earlier op-ed I wrote on the subject:

  8. It seems that you were right.