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September 22, 2011 10:01 PM UTC

Gessler Knows What It Looks Like, Doesn't Care

  • 36 Comments
  • by: Colorado Pols

The Colorado Independent’s John Tomasic:

Citing state election law, Gessler contends that the Denver plan to send mail ballots to all registered voters in the county is illegal because the law forbids sending ballots to “inactive voters” – that is, registered voters who failed to cast ballots in the last election. At a heated press conference Wednesday, he explained he was filing the suit in order to bring Denver County in line with the law and to establish a uniform election process in counties across the state.

In a release announcing the suit, Gessler quoted a Colorado statute that directs county clerks to “mail [ballots] to each active registered elector.” Gessler is apparently pinning his case in part to a state law passed in 2008 that explicitly required Colorado counties to mail ballots to inactive as well as to active voters. That law was passed only as a temporary measure amid complaints that it established an unfunded mandate. In its absence, Gessler will argue, counties can not send ballots to inactive voters.

Counties have taken different approaches on the subject in the years since but a scan of coverage suggests that cost has been the controlling factor in clerks’ offices not legal questions…

“[Gessler’s suit] would disproportionately affect the elderly, young voters, low income voters, the disabled…That’s not uniformity,” [Campaign for a Strong Colorado Director Ellen] Dumm told the Colorado Independent. “These are legally registered voters. There’s a huge number of people who voted in the presidential election of 2008 who didn’t vote in the off-presidential election of 2010. They’re still registered. He’s creating a new class of voters.”

Dumm conceded that, in addition to typical presidential-election-year-only voters like her mom, a lot of the voters who would fall into Gessler’s new category would be so-called Obama surge voters- young and minority voters drawn out in 2008 by Obama and his get-out-the-vote grassroots army…



The mostly unspoken assumption surrounding the suit is that Gessler’s proposed interpretation of election law would engender a downward-spiraling effect on voter turnout. Inactive voters would not receive ballots in the mail and so would fail to submit them on time and so would not vote this year, ratcheting up the total number of inactive voters for the next election. [Pols emphasis]

As we understand it, there is untested semantic ambiguity in the statute that Secretary of State Scott Gessler is seeking to resolve by reducing the number of mail ballots sent–sending ballots only to voters who are “active,” meaning they voted in the last general election. The word “only” in reference to “active registered voters” does not appear in the statute, however, and Gessler is operating on the principle that the expiration of a law explicitly mandating mail ballots be sent to all registered voters, including those marked “inactive” due to failure to vote in an election, amounts to a prohibition of the practice in the future.

That’s an amazing leap of legislative interpretation, folks, and it runs counter to the clear expressed intent by the legislature in easing mail ballot usage in Colorado–to make voting more convenient, not less. The “ratchet effect” created by Gessler’s proposed interpretation of the law would not only reduce the number of voters receiving ballots over time, but would have an immediate partisan benefit to Republicans: registered voters from the 2008 Democratic surge who sat out 2010 not getting ballots. As you know, we know, and Scott Gessler knows, that is a lot of heavily Democratic voters, in Denver, Pueblo, not to mention elsewhere.

Presuming the failure of Gessler’s lawsuit, it seems to us the best way to resolve this in a way that protects the equal right to vote, without creating a new class of disadvantaged voters simply for missing an election–possibly keeping our state compliant with the federal Voting Rights Act in the process–is to make permanent the temporary 2008 law mandating mail ballot delivery to all registered voters in counties using mail ballot-only systems. In the meantime, we can only marvel at the brazenness: the actions of an openly predatory Secretary of State to misuse the law for what amounts to, surprisingly weak protestations aside, naked partisan vote suppression. Somewhere between this and Gessler’s fundraiser to raise money for fines his own office levied, we’re left with an unavoidable impression that this man has dropped all pretense of fairness.

If so, that is exactly–exactly–what we told you to expect from Gessler in this office.

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36 thoughts on “Gessler Knows What It Looks Like, Doesn’t Care”

  1. make permanent the temporary 2008 law mandating mail ballot delivery to all registered voters in counties using a mail ballot-only system

    We’re blurring some lines here.  State law requires a mailing to all people on the “permenent mail ballot” list prior to the election.  Some of these mails come back as “undeliverable.”  That’s different from people who simply don’t return the post card.  Those undeliverables are flagged and put in their own class–inactive undeliverable.

    I don’t think it would be either practical or proper to mail ballots to these folks.

    1. Obviously, undeliverable mailing addresses are an exception and are already treated differently just as you say. That’s not who Gessler is targeting. In any event, undeliverable ballots would be returned to the clerk, so there’s no major issue there.

      1. But it comes down to how much money each Clerk wants to spend.

        The initial mailing must be marked “Do not forward.”

        If you really want to run some of these undeliverables to ground, the Clerk can send a second mailing by forwardable means asking to voter to change his or her address.

        But that costs money.

        What is complicating this whole situation is a rulemaking Gessler did on September 3.

        As you know, an inactive voter can “activate” in a conventional election just by showing up to vote at a precinct polling place or a service center.  It used to be almost as easy to “activate” in a mail-only election.  Prior to the rulemaking, you could just contact the clerk’s office by phone to request a ballot.

        But now, after the rulemaking, in a mail-only election, voters must contact the Clerk in writing to request a ballot.

        Gessler is making it as difficult as possible to vote.

          1. It’s a Sept 6 rule, not Sept 3.

            The rule itself is 12.11.1(b).  It says,

            Except as otherwise provided in section 1-7.5-107(3)(c), C.R.S., an inactive elector may  make  a  written  request  for  a  ballot  in  person,  by  mail,  fax,  or  email.  The request must include the elector’s name, date of birth, residence address, and signature, and must be received by the designated election official before the ballot is issued. At the time the request is received the elector’s record will be marked active. (Emphasis mine)

            I don’t know what it used to say because I don’t have a copy of the old rules.  Our Clerk told me it was different.

  2. Republicans who defend Gessler need to admit that they are for tilting the playing field, plan and simple. Maybe you think it’s ok, everybody does it, but you should admit that a fair game is not your priority.

    It’s too bad that Republicans have no shame, it’s the only thing between Gessler and recall.

      1. but then we’d have to show proof of high crimes or misdemeanors or malfeasance in office.  Colorado did impeach a past SoS back in 1935 for malfeasance (bribery).  I really, really hope there are a lotta folks sniffing around in Gessler’s garbage ’cause he’s got someone pulling his strings.  There is a puppet master to be found behind Gessler’s moves.

        It’s pathetic that 85% of the press releases put out by his office just since he took the throne regards elections & voting.  Sorry, I just didn’t think CO had that much of a voting/election problem to merit that much attention.  CO is just a old-school viper pit of electoral misconduct and good gracious we’re lucky to have unsullied Scottie fighting for us.  

        But seeing as how the office is also responsible for Business & Licensing I just wonder what’s been happening there?  Anyone care to cite other actions you know of under his leadership?    

  3. There’s not only the general expense, confusion and Gessler/GOP antics, there’s the impending reduction of service from the postal service.

    Perhaps going back to precinct (or vote center) balloting might be a good thing. If Iraqis missing blown-off legs can get to the polls, so can we.

    1. I agree with you that voting at the precinct was better and part of participating in a democracy. But my daughters see no reason to do that – they’re happy & proud to vote by mail but I doubt they would go wait in line.

      1. and I prefer voting in person as well.  I’ve had this argument with campaigns that try to encourage absentee voting to reduce the effort on election day; sorry, I know it’s more work because I’ve done that work of flipping through voter cards, checking off names, placing phone calls… but there’s just something special about walking into your polling place and casting a vote.  Most elections, I do it together with a group of neighbors.

    2. The reason the counties have embraced mail ballots to the extent they have is because polling place elections are expodentially more expense to run than mail ballot elections.

    3. would be expensive as hell.

      Vote centers save a bunch of money and are significantly more convenient for voters.

      I’m not as opposed to mail ballots as you are, either.  I think they’re a great convenience.

      1. But since the only thing the inactive voters are guilty of is missing a couple of elections, I see no reason they shouldn’t continue to receive ballots if the county so chooses. Once a ballot is returned because the person  is no longer at that address, then it ought to be easy to re-activate. As far as suing Denver in this particular case, it seems that, since there is no “only” in the wording, Denver is not barred from mailing to inactive voters.  As far as consistency, we don’t have that anyway.

        In fact, that’s why the US Supreme Court that appointed Bush by stopping the recount in Florida took the extraordinary measure of specifying that their ruling, based on lack of consistency from county to county in the recount method, not constitute a precedent. No such consistency existed anywhere at the time and could not conceivably have been achieved in time for the next election. It still doesn’t exist.

        As far as expense, what will the suit cost?

              1. Missing one midterm election seems absolutely unreasonable.  We definitely need to change that. Young voters especially tend to be among those who just get motivated during presidential years.

          2. In this case…with a lot of first time voters.  Gessler accuses those who bring up the demographics of who will be dropped as ‘playing the race card.’ What a slimy buffoon.  

  4. If people do not show up for an election, leave them alone, don’t make them inactive.

    If they have moved or died, at some point they will be mailed some piece of election mail (not necessarily a ballot) and it will be returned to the Clerk’s office at which point they get marked inactive – returned mail.

  5. set up a partisan caging operation through the SOS office? If he can effectively cancel your registration for mail-in elections if you’re an inactive voter, the next logical step would be to require all inactive voters to reregister or else be challenged at the polls.

  6. it’s clear that Gessler is pursuing this for strictly partisan reasons and SOS is a position that demands trust from all citizens regardlss of party. He ought to be recalled for his constant partisan shenanigans.

  7. As you know, we know, and Scott Gessler know, that is a lot of heavily Democratic voters, in Denver, Pueblo, not to mention elsewhere.

    Denver mail-ballot tussle no issue here

    Pueblo Clerk and Recorder Gilbert “Bo” Ortiz said Tuesday that he submitted his election plan months ago to the Colorado Secretary of State’s office and it was approved despite including inactive voters in the mailing…

    Ortiz said that he read the state law on mail-in ballots differently than Gessler, a Republican election lawyer who took office in January. Ortiz is a Democrat.

    ”The minimum requirement of the law said we must send mail ballots to ‘active’ voters,” Ortiz said. “It says nothing about not sending ballots to inactive voters.”

    1. Then Gessler is in some big trouble.  He is giving different answers to different counties.  He can’t do that.  The court will tear him a new one if he has done that.  Do the people challenging this ruling know that he approved another plan which including mailing to all voters?  If not, I hope you will get in touch with them.

  9. (1) Let Democratic election officials send mail-in ballots to inactive due-to-missed vote, and let Republican election officials follow Gessler’s formula.

    (2) Send mail-in ballots to Democratic inactive due-to-missed vote, but only send mail-in Ballots to Republican Activs.

    (3) Change definition of inactive so failure to vote does not trigger inactive category.

    1. Well, that’s pretty much the definition of “inactive,” that’s what the word means, so why not do away with it entirely? According to numerous checks, these voters are still there, so why the rush to move them into another category?

        1. these voters have missed several votes, skipping the 2010 election, the May municipal and the June runoff. But why shuffle them off into inactive at all? Only four states do this.  

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