March 20, 2014 11:33 AM UTC

Opposing The Recall Fix Bill Is Stupid--Unless...

• 6 Comments
• by: Colorado Pols

A guest opinion piece from Pueblo County Clerk Gilbert "Bo" Ortiz makes the case for passing Senate Bill 14-158, which would attempt to fix conflicts between statutory election law and century-old constitutional recall provisions. Last year, those arcane William Jennings Bryan-era recall provisions were invoked to successfully halt the delivery of mail ballots in the recall elections of John Morse and Angela Giron. Given the very small margin in Morse's SD-11 recall defeat, this court decision may well have been decisive:

The ability to circulate petitions and recall elected officials is a constitutional right. But recall elections are much more difficult than the regularly scheduled elections. They typically are more emotional and controversial. Fewer people vote in recalls so they tend to be less representative, and they are expensive for local governments.

County clerks deal with recall elections periodically, more commonly for local officials such as city council members or school board directors. In Colorado last year, we held two recall elections for state legislators — the first time in the history of our state. I supervised one of those recall elections, in which 36 percent of eligible voters participated and cost Pueblo County $270,000.

The participation rate would have no doubt been higher and the cost less burdensome had we been able to mail ballots to all registered voters. [Pols emphasis] But a lawsuit by the Libertarian Party revealed 100-year-old constitutional language that candidates have until 15 days before the election to petition onto the ballot, not leaving enough time to print, mail and return ballots. This petition timeline is not in place for any other type of election. It is an even more burdensome timeline for small, rural counties with fewer resources.

As the GOP-aligned "news" site Colorado Observer reports, Republcians and recall organizers aren't happy:

Victor Head, who ran the successful recall against former state Sen. Angela Giron (D-Pueblo), said he saw the bill as a “retaliatory sort of move.”

“I think it’s just spiteful,” said Head, who’s now running for Pueblo County Clerk and Recorder. “They really don’t care about public opinion any more. They’ve proven that over and over…”

“You can’t just change the meaning of things. Words have meaning. Election Day is Election Day,” said Head. “You can’t just say, ‘Well, Election Day is when mail-in ballots go out.’ That’s what they’re saying. I have a feeling that’s going to cause more problems with more statutes.”

The fact is, the 100-year old constitutional provisions governing recalls never anticipated the modernization election system that Coloradans take for granted today. Voters don't all gather on one Tuesday to cast their ballots at polling places anymore–mail ballots are accepted by the public and popular for voting in this state, and that means what they envisioned in 1912 to be "Election Day" really does encompass a longer period than one day.

The becomes critical when you understand that the lawsuit that halted the delivery of mail ballots did not expressly prohibit them; it made mail ballots effectively impossible to deliver and be returned in time. The opposition to Senate Bill 158 is opposition to a bill to protect access for voters, and to set deadlines that don't conflict with the constitution, while still allowing for timely recall elections using the voting method voters expect.

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​And that's not all: in 2012, bipartisan legislation was passed with a near-unanimous House vote to fix many of these same statutory conflicts in Colorado recall election law–but this legislation was found to be unconstitutional. House Bill 12-1293 in fact garnered lopsided bipartisan support, with only Rep. Jerry Sonnenberg voting against it in the then-GOP controlled Colorado House. It's very important for readers to understand the history of this legislation, because the GOP's campaign against the 2013 election modernization bill, House Bill 13-1303, frequently misattributed the conflict that judges ruled against to that bill instead of the 2012 legislation most Republicans supported.

So what changed between then and now, you ask? The answer is obvious: Republicans started winning recall elections. To oppose this year's bill to fix the conflict in the law, and allow mail ballots to go out specifically in recall elections, without any effort to eliminate mail ballots in general (which would be very unpopular), can only mean you want recall elections to proceed with an unfair advantage. The abysmally low turnout in last year's successful recalls, especially in SD-11 where the margin was fewer than 350 votes, demonstrates clearly who lower turnout favors. And remember, the people most likely to vote by mail are overseas/military voters, the elderly, the disabled, and busy working families.

Bottom line: the story of last year's recalls was about a small percentage of voters deciding a question of enormous importance–an unrepresentative result. This is a bill that there's no good reason to oppose: a bill that would increase participation in recalls, so that they are more democratic and representative.

If you don't support that, the next logical question is why, and the answer is not likely to be pretty.