Colorado: Court case examines fight over signatures for Avon Mayor, Councilmember recall effort

Very interesting discussion in the Vail Daily (written by Tom Lotshaw) on the underlying issues in the court case over the recall against Avon Mayor Sarah Smith Hymes and Councilmembers Amy Phillips and Tamra Underwood. 

The City Clerk had found that petitioners failed to hand in enough valid signatures to he recall effort is over leaving a real estate transfer tax in place is still ongoing. Petitioners need 496 signatures, though it was originally believed to be 479. They missed on Underwood by 71 and by Hymes by 51. Phillips is up for reelection in November, so the recall was not allowed based on the grace period.

Because of Vail's election law, voters can cast ballots for four candidates. So there is a significant debate on voters that did not cast all four votes (the undervote). Here's the article by Lotshaw explaining the current court fight:

Each side points to provisions governing recall processes in the Colorado Constitution and Colorado Revised Statutes. Those require signatures equaling 25% of the “entire vote cast” for all the candidates for the particular office in the last preceding election, with that 25% of the entire vote cast then divided by the number of candidates who were elected to the office in that preceding election. 

 The town and the Avon Recall Committee seem to agree that 1,984 voters cast 5,276 votes in the 2018 election for the Avon Town Council, when Hymes and Underwood were elected to their seats. Disagreement seems to center around the “undervotes” in the election, and how they should factor into the tally of votes cast. 

 With eight candidates running for four open seats on the Avon Town Council in 2018, people could vote for up to four candidates. Not every voter cast all four votes, however, resulting in 2,660 undervotes. 

 The town of Avon argues that the undervotes, along with the 5,276 votes cast, make up the “entire vote cast” total used to determine how many voter signatures the Avon Recall Committee needed to submit. That results in the town’s calculation of 496 voter signatures. 

The Avon Recall Committee, in its answer to the town’s complaint, argues that the undervotes should not be part of the total, resulting in its calculation of 330 signatures needed to trigger a recall election. 

“Had each elector cast their maximum allowable votes for town councilor positions, i.e. four votes for four open candidate seats, there would have been 7,936 total votes cast for the town councilor candidates. Under that scenario, there would have been no undervotes,” the Avon Recall Committee writes in its answer to the town’s complaint, filed Jan. 11 by attorney Alan Sweetbaum, of Denver. 

“However, the town contends there were undervotes, which necessarily eliminates the possibility that there were 7,936 total votes cast in the 2018 election for the town councilor positions. Yet, the town contends that 7,936 total votes were cast for purposes of determining the number of signatures required to trigger a recall election … The town clerk’s miscalculation improperly increased the number of signatures the town claimed were required to trigger a recall election.” 

 Wisor and Sweetbaum declined to comment on why the undervotes should be included or excluded from the total vote used to calculate the signatures needed, with more filings in the case expected in coming weeks. 

In its complaint, the town of Avon argues that interpreting Colorado law for recalls and the “entire vote cast” as the Avon Recall Committee proposes would “violate the First and Fourteenth Amendments to the United States Constitution because they require a town elector to cast the maximum votes allowed in order to have their participation in the town council election equally and fully counted for purposes of a recall.”