September 30, 2011 06:11 PM UTC

Gessler: No Ballots For Those Soldiers

•  
• by: Colorado Pols

UPDATE: #2: Now a statement from Pueblo County Clerk and Recorder Gilbert Ortiz after the jump, announcing that his office will “reluctantly” comply with Gessler’s order to not send mail ballots to overseas deployed military marked “inactive failed to vote.”

“Pueblo County will honor Secretary Gessler’s order,” Ortiz said, “but this is not over. Pueblo County is currently weighing our legal options including taking the issue to court. The Secretary of State effectively has denied 64 active military personnel the opportunity to vote.”

—–

UPDATE: Rep. Charles Gonzalez of the House Administration Committee Elections Subcommittee rips Gessler for denying ballots to deployed military personnel in a press release today (full text after the jump)–“a violation of federal law.”

“Mr. Gessler’s misguided efforts now threaten voter suppression not only in Denver County but among members of our armed services, men and women on active duty in war zones. His misinterpretation of the law is not only illegal but deprives Colorado citizens of their most fundamental right: the right to vote…”

—–

Following up our discussion yesterday of Secretary of State Scott Gessler’s attempts to stop Colorado counties from mailing ballots to all registered voters–now including deployed military voters in Pueblo County listed as “inactive”–the Pueblo Chieftain reports today…

This is pretty astonishing, folks.

“I want an order from the secretary’s office by Friday (today) saying that I cannot send out those ballots because I believe I should under the (Uniform Military and Overseas Voters Act),” Ortiz said Thursday morning.

He got his answer at closing time Thursday. Gessler’s letter to Ortiz said the secretary of state was sticking to his position that no inactive voters should get ballots sent to them this election – including out-of-area military voters, or those “covered” by the Uniform Military and Overseas Voters Act. [Pols emphasis]

“A covered voter who is registered to vote may apply for a ballot. Ballots are not automatically sent to covered voters,” Gessler’s letter said. “Thus, Pueblo County may only send mail ballots to inactive voters who submit a timely request as required by the (Act).”

…[B]ringing military voters into the dispute casts it in a different light and Ortiz did that this week. While Gessler has made the news this year with charges about illegal voters casting ballots in the 2010 election, no one has suggested that fraud occurred among any military voters. [Pols emphasis]

Ortiz said his office already has sent out about 600 ballots to military voters who voted in 2010 in order to meet the 45-day requirement for them to get their ballots in time. But he said Gessler’s office contacted him just before that deadline and told him to hold the ballots for inactive voters – which amounts to about 70 ballots for inactive military voters.

In a letter to Gessler on Tuesday, Ortiz said Kogovsek advised him that Gessler’s reading of the law is wrong.

We’re going to spare you the rhetoric about depriving our men and women in uniform the right to vote, while deployed, defending our freedom and so forth. You know how this looks.

On a practical level, we’re starting to wonder if Gessler considered all of the potential consequences of his decision to try to stop Denver and Pueblo counties from sending mail ballots to all of their registered voters with deliverable addresses. Gessler has argued that the temporary nature of a law passed in 2008 mandating that shows the legislature was concerned about the “cost and opportunity for fraud” of sending mail ballots to all deliverable registered voters in a mail ballot-only election. Even though the statute nowhere says that ballots will be sent only to “active” registered voters, that’s how Gessler is insisting the law be interpreted.

What this could represent is a major unintended problem with the all mail-ballot system in Colorado. In an all mail ballot election, which we understand all but a couple of counties are holding this year, the different provisioning of ballots to two different classes of voters–“active” and “inactive”–and the ease with which one can pass from active to inactive status, simply by missing a single election cycle for whatever reason, could be creating a situation where many tens of thousands of Coloradans’ voting rights are being violated.

Do you understand what we are saying? What if every mail-ballot county who is not mailing ballots to “inactive” voters is in violation of federal election law? Would that not at least be correct in the case of overseas military voters if Pueblo County Attorney Dan Kogovsek is right?

Understand that we’re just asking questions, which seem to be pretty logical questions, all based on developments in this story in the last two weeks. If this mail ballot situation, either in the case of the lawsuit against Denver or throughout the state of Colorado, amounts to a gross violation of federal election law, it’s a good thing that the Justice Department has been asked to look into what’s going on. In any event, a legislative remedy for this situation is clearly necessary: if it’s right that the unequal provisioning of mail ballots to “active” vs. “inactive” voters is unlawful, simply making the aforementioned temporary rules permanent would be the place to start.

The only thing we can add is this: in our experience, situations like these tend to come to a head when somebody is trying to exploit the system. Gessler is teaching Colorado why we need to be explicitly clear in statute of legislative intent on matters like election law. If you write a sloppy election-related bill, or insert a sloppy amendment into one, Scott Gessler will turn it into a stick to beat the state of Colorado with. For as long as he has the power.

Pueblo County Clerk Ortiz Ordered Not to Mail Military Ballots

Pueblo County Clerk Gilbert “Bo” Ortiz today announced he will reluctantly comply with Secretary of State Scott Gessler order not to mail ballots to registered military overseas voters, despite his deep concern that the order will disenfranchise men and women serving our country.

“Pueblo County will honor Secretary Gessler’s order,” Ortiz said, “but this is not over. Pueblo County is currently weighing our legal options including taking the issue to court. The Secretary of State effectively has denied 64 active military personnel the opportunity to vote.”

The Colorado Secretary of State Scott Gessler’s office ordered Ortiz not to mail ballots to oversees military personnel over a dispute in the interpretation of state law. Gessler has filed a complaint in court to stop Denver Clerk Debra Johnson from mailing to inactive voters in the November election. Inactive voters are defined as those who did not vote in the last general election.

Last week, Gessler acknowledged that Johnson has already mailed her overseas ballots and would not pursue action against her office on those ballots. Ortiz, who agrees with Johnson’s interpretation of the law, announced this week he would mail ballot to all registered oversees military voters – known in election law as “UOCAVA voters for the Uniformed Overseas Citizens Absentee Voting Act.

“It’s only right that Pueblo residents who are serving our country in the military should have the chance to cast their ballot here at home,” Ortiz said.  “Military men and women should be given every opportunity to participate in the democracy they’re defending …they may be listed as “inactive” voters in our system, but when they’re on active duty how can we deny them a ballot?”

###

Gonzalez Condemns Move to Deny Ballots to Military Voters

San Antonio – Rep. Charles A. Gonzalez, Ranking Member of the Subcommittee on Elections, released the following statement in response to Colorado Secretary of State Gessler’s decision to prohibit Pueblo County to mail ballots for Colorado’s upcoming election to military voters deployed overseas.

“Mr. Gessler’s misguided efforts now threaten voter suppression not only in Denver County but among members of our armed services, men and women on active duty in war zones. His misinterpretation of the law is not only illegal but deprives Colorado citizens of their most fundamental right: the right to vote. I have asked the Department of Justice to include this new development in their investigation of Mr. Gessler’s activities.”

In a letter to Pueblo County Clerk and Recorder Gilbert Ortiz, Gessler announced his decision as “an order from the Secretary of State not to send mail ballots to inactive – failed to vote UOCAVA electors.” The acronym, short for “Uniformed and Overseas Citizens Absentee Voting Act”, refers there to military or overseas voters whose did not vote in the last general election.

In 2009, by strong and bipartisan majorities in both chambers, Congress enacted the Military and Overseas Voter Empowerment (MOVE) Act to help ensure that Americans were not denied their right to vote simply because they were abroad at election time. Among its provisions to protect deployed servicemembers, 42 USC 1973ff-6(1)(A), is one requiring states to send them ballots for all federal elections, 42 USC 1973ff-1(a)8. To comply with this law, the Colorado legislature adopted the “Uniform Military and Overseas Voters Act” which requires local election officials to send ballots to all “covered voters”, §1-8.3-110, C.R.S. (2011), in “Any other election coordinated by the county clerk and recorder.” §1-8.3-103, C.R.S. (2011)

Neither federal law nor Colorado law makes a distinction between active and inactive voters. The interpretation of the law offered by the Secretary of State and Attorney General, however, would not only not require ballots to be sent out, as the MOVE Act requires, but prohibit them, as appears to be happening in Pueblo County now. This would be a violation of federal law. In a letter to Gessler, Ortiz reports that Pueblo County Attorney Dan Kogovsek argues this is a violation of state law as well.

Mr. Gonzalez has referred this matter to the Department of Justice, following up on his previous letter of concern about possible illegal disenfranchisement of Colorado voters.

###