September 13, 2013 09:08 AM UTC

In Which Matt Arnold Spills The Beans

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• by: Colorado Pols

Matt Arnold, the occasional failed Republican candidate for office, face of the "Clear The Bench" campaign against Colorado Supreme Court Justices, and now blogger writing at The Examiner, has a very interesting opinion about the role of the courts in the recall special elections in Pueblo and Colorado Springs this week:

[D]espite the massive spending on the advertisements and volunteer-intensive “get out the vote” efforts, the electoral outcome was shaped far more by less-noticed, but ultimately MUCH more impactful, battles in the state courts…

[J]ust as the first mailing of ballots (to overseas voters) was starting, yet another court challenge was filed, seeking to uphold the constitutional provisions (and timelines) for candidate ballot access (which were incompatible with the recently-passed “all-mail-ballot-elections” legislation, HB13-1303). This time around, the challenge (and the primacy of the Colorado Constitution over statute) won – forcing the elections to be held primarily as polling-place elections, since the candidate certification deadline of 15 days before the election date made “all-mail-ballot” voting practically impossible.

This case may have been the most important in shaping the ultimate outcome of the Recall elections – possibly even saving the Recall effort, since “all-mail-ballot” voting favors the (Democrat) incumbents… [Pols emphasis]

Arnold gets a dig in on Colorado GOP chairman Ryan Call, who (at least at first) supported mail ballots:

(Note: Losing incumbent state senate president John Morse blamed his loss on the lack of an "all-mail-ballot" election; ironically, Colorado Republican state chair Ryan Call had opposed the lawsuit and criticized the court ruling which set aside the "all-mail-ballot" provisions of the recently-enacted election law for the Recall vote).

As we noted in our initial recap of this week's successful recalls of Democratic Colorado Sens. John Morse and Angela Giron, the margin in Morse's race was very small. Morse's defeat can in fact be fully accounted for by balloting problems stemming from court action before the election. Chief among these problems was the withholding of mail ballots following a minor-party challenge, the lawsuit Arnold refers to above. In the Senate District 11 recall, questionable decisions by a partisan county clerk affecting vote center locations and operating hours further impacted the ability of Democrats to get out the vote. But in a state that has been carrying out routine mail ballot elections for some years now, the court-ordered delay which prevented the delivery of most mail ballots, even to so-called "permanent" vote by mail voters, can easily itself account for 343 votes–the preliminary margin of defeat in Morse's recall.

To be clear, there are a number of factors that can hypothetically account for that slim margin of victory for Republicans in SD-11, or at least keeping this race out of recounts–including, ironically, the very same last-minute registrations the GOP decried as part of this year's election modernization law House Bill 1303. But the loss of mail ballots is probably the change most problematic for individual voters. When Arnold says that stopping mail ballots may have been "the most important [factor] in shaping the ultimate outcome of the recall elections," even "saving the recall effort," it's not because of fraud. It's just about fewer people voting.

So, obviously, triumphant Republicans don't want to get bogged down by quibbles about the mechanics of this election. Despite the fact that the margin in the SD-11 recall was very thin, and arguably indicative of a playing field judicially stacked against the incumbent as much as any other factor, Morse's recall is being sold as a game-changing grassroots insurrection against Democrats. The press doesn't seem to want to get into these procedural weeds either, at least not yet. And let's be frank: nothing we're describing here can account for Giron's much wider margin of defeat in Pueblo, where something altogether different and unexpected occurred.

You won't find it in GOP-approved Morse talking points, but Arnold is admitting something very important here.