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October 07, 2011 05:37 PM UTC
57 Comments
For the lawyers here that know this subject – does he have a shot? Or can we assume the clerks will win this?
You don’t have to read them all–just Gessler’s complaint and motion for injunction, and Denver’s filing. The other briefs are interesting, but the judge will have to grant their motions to intervene before they’re relevant to the case.
Interesting aside–in one of his filings, Gessler cited Bush v. Gore. An attorney told me that’s sort of the Godwin’s Law of lawyering.
But what is the Godwin’s Law of lawyering?
In the lawyering context, it shows that you’re pretty much shot your wad and can’t make any better arguments.
The Bush v Gore decision explicitly states that it cannot be used as precedent (yeah, go figgur). Past attempts to invoke it as precedent have failed.
But I read the whole Bush v. Gore decision and can’t find the word “precedent” anywhere.
What I DID find in section II B of the decision is this statement:
At least to my untrained eye, that seems to severely limit the ways the decision can be used.
such as using it as a synonym for Godwin’s Law in a litagation fram of reference.
but at the time it was widely reported that the court had taken the extraordinary step of stipulating the decision not be considered as setting a precedent. The general idea was, as I recall, that since it was based on the lack of uniformity from county to county in the recount method and since that kind of uniformity simply didn’t then (and doesn’t now) exist, allowing it to set a precedent would pretty much make all elections impossible until such uniformity could be achieved. Could probably find something with the google but that’s how I remember it.
It was pretty much a cynical one time only decision by the conservative majority court including Sandra Day O’Connor who subsequently became beloved by progressives for her swing vote with us on some issues. Unfortunately her vote swung with the bloodless coup faction on that day. One could say the Justice O’Connor pretty much appointed GW.
http://www.answers.com/topic/b…
Short version: No, it cannot be cited as setting a precedent.
Bottom line: he is reading language into the statutes that does not exist.
The rest of the hoopla is merely grand theatre.
Speaking of which, today is a day of Theatre for me. I get to watch the courtroom drama this afternoon and then I’m going to see Hair tonight. I’m quite excited because I have never seen it on stage before.
is when Gessler marches naked into the courtroom and they throw paint on him.
Please try to find a minute or two to post a summary of what you heard/saw in court today.
I have plans rest of the evening
I have plans rest of the evening
I figured the hearing would go right to 5 o’clock. If the laywers had their way, it would have.
But the Judge gave the SoS’s office the opportunity to make their case. They called two witnesses, Hillary (forget her last name) who is the SoS’s person responsible for approving county Mail Ballot Plans; and Judd Choate, the state Director of Elections.
Much of the testimony established facts. After that, there were three principle points:
1) No where does the law tell counties they cannot send ballots to FTV (Failed to Vote) voters.
2) The SoS rules do not address the issue.
3) FTV voters do not pose any increased risk of fraud over any other voter.
To this last point there a great moment: Choate was asked if he was concerned about voter fraud in relation to the FTV voters. His response: “The office has concerns.” Clearly distancing himself from Gessler’s witch-hunt mentality. I almost laughed out loud.
Once the State presented their case, the judge interrupted and declared it was not necessary to continue with defense testimony, he could rule from the arguments in the briefs. He did give each side the opportunity to bring up anything additional to what was submitted in writing, the State had a procedural issue to sort out, but nothing of substance was added.
The judge’s ruling to allow the FTV ballots go out was only in reference to the pending injunction. There will still be a fuller litigation on the merits of question at hand. But by the time that gets resolves, I am hopeful the legislation will make it a moot point.
The parties that wated to intervene (Pueblo, Common Cause, etc) were not allowed to for this injunction hearing, but will be considered again for the fuller litigation to come.
Thanks for the courtroom sketch.
Can be found on my blog:
http://www.junctiondailyblog.c…
is already the most hated man in Colorado. What is he going to do for an encore?
… pick up a little weekend work consulting in Ryan Call’s office
… write a freelance piece “Musings on Voter Fraud” for Koch’s AFP
in today’s paper presents a concise set of facts and stats with regard to the primary concerns involved in this dispute.
And before ArapG, etc. pounce on the 236 “inactive” voters signatures that were rejected in Denver’s June run-off as proof that voter fraud is a serious problem, the fact is that none of these possible attempts at voter fraud were successful so 0 out of the 236 votes were fraudulently counted while close to 6000 out of 55,000 “inactive” voters successfully participated after all with the added nudge of having a ballot arrive in the mail.
This is completely leaving aside the possibility that some rejected signatures were genuine as some conditions and illnesses severely affect a person’s ability to write as the person affected once did and other factors can account for a change in signature. It’s at least as likely that some votes were wrongly rejected than that any fraudulent voting was successful and there could be a few fraudulent signatures on ballots sent to voters judged active as well. “Inactive” by virtue of missing an election or two simply doesn’t seem to be a factor contributing to fraud.
or a lawyer from Larimer GOP?
Maury Knaizer has been the AAG assigned to the SoS for as long as I can remember (which admittedly gets shorter the older I get). But there are other AAG’s who have recently handled SoS matters as well.
Activist judge gives Denver liberal voters unfair advantage over 62 Colorado counties following the law. Thumb on scales now given force of law.
This is a very sad day.
Conservapedia
thoughtread where “activism” refers to conservatives . . .http://www.conservapedia.com/E…
WTF ArapaGOP?
Disenfranchising voters considered bad form in the state of Colorado.
Idiot.
merely an imbecile . . .
http://www.conservapedia.com/I…
. . . though I strongly doubt he could pass for a moron.
I would explain, but I don’t want to disparage his mother.
Go cry in your beer.
When a judge ruling to follow the law is considered activist. And there is no advantage for Denver – every county can do the right thing.
But nice of you to admit that, for you, it’s all about additional liberal votes…
O’Connor, goes along with a decision so shaky the Court insists it not be considered as establishing precedent, for the sole purpose of installing her party’s candidate in the presidency, that’s just darned good unbiased judgin’. See you forget, Dave. All that matters is R v D. You keep thinking specific circumstance that are the same or different in different cases matter. Silly.
you stupid f#ck. If Whitney is an activist judge then you got your own friggin’ side to blame. This is a very sad day when your best vapid alternative viewpoint is to attack the judge for denying the injunction.
Come on AGOP don’t you want to hear reason & cited law from both sides for the correct legal determination? Don’t you want justice to prevail? Or are you afraid of it going further ’cause you know your dumb ass logic siding w/ Gessler is just wrong.
What a friggin’ coward pulling out the GOP victimization sympathy card when all that happened was judge determining that on merit the case can go forward.
Thanks for the clarification.
It was priceless.
is going to do another one of his disappearing acts. Post some bullshit and then disappear.
There are 4 counties who are not using all-mail ballots this election.
It is simply good government to service all of their eligible voters. I am hoping most Clerks will see this.
I am guessing that if any had considered doing this in the past and asked the SoS if it was OK, they were told no.
Injunction denied. Denver may mail ballots.
https://twitter.com/#!/search?…
right at the top? Sorry!
Judge following precedent denies partisan hack attempt to steal election.
Any other decision would have been a shock! Gessler has no case.
Other counties not barred from doing the same if they want to.
Debra Johnson stood up to Scott Gessler and his spurious legal claims. It was funny to watch how Gilbert Ortiz was so craven on Monday and finally got the guts to support Debra.
This is embarrassing that here in Boulder the official position is that they can’t mail to all eligible voters. I guess we need Free Boulder bumper stickers.
“Conservative” USED to mean that you wanted larger governments to have conservative power over smaller governments. This, unfortunately, is no longer the case. Gessler’s complaint is a great example today’s GOP. They care about nothing more than having power.
This issue should be handled at the county level, not the state level. If Denver residents feel like mailing ballots to inactive voters is a waste, then they need to do something about it not the Secretary of State of Colorado!
There is no threat of voter fraud by mailing ballots to inactive voters! It’s like setting up a polling place in an apathetic neighborhood. Just because only a few people show up doesn’t mean the State should keep that neighborhood from get a polling place.
I don’t think you can call them conservatives any longer. A conservative used to care about fair play, the environment (Nixon started the EPA), fiscal pragmatism and equal treatment under the law. All these yahoos care about is acquiring and keeping power. Power at any cost and without any principles. No wonder our country has been ruined by them and won’t rise again until they change which is a bleak prospect.
Remember, too, this is about disenfranchisement of likely Democratic Party voters, nothing more. If you try to apply it to any other set of motives, it makes no sense.
This was an incredibly intelligent, well informed discussion on a breaking and critical issue.
Instead of a “long election year” to improve the election process and facilitate every eligible voter being able to cast his or her vote, Gessler apparently sees this as a battle. And what is he fighting? Qualified electors being mailed ballots.
That, in gambling terms, is known as a “tell.”
Gessler’s trying to act all high and mighty and oh-so-principled … but he can’t help himself: his partisan motives shine through.
The fact that Gessler’s supported by a partisan hack like ArapaGOP is further proof of what’s going on.
If by some miracle Denver and Pueblo were GOP-majority cities and the county clerks didn’t mail out ballots to inactive voters, you’d be hearing all kinds of vicious rhetoric from ArapaGOP, Gessler, et al. about how those clerks hate our military and by extension America…
If the legislature had really intended that clerks could send ballots out ONLY to active voters, that’s exactly what they would have said. Gessler’s argument is a big FAIL.
Gessler also hopped a plane & told his little Voter Fraud lie in DC, at taxpayer expense no less, just to get the impratur of Congressional attention to the made-up threat. Now his lies are part of the Congressional Record, betcha that will make his children proud.