Recall Attorneys Spar Over Morse Petition Language

June 28, 2013
If the recall is affirmed, it which would be the first recall election of a state legislator in Colorado history

If the recall is affirmed, it would be the first recall election of a state legislator in Colorado history

DENVER–Organizers collected more than 16,000 signatures to recall Senate President John Morse, but he wants them thrown out because the petitions fail to mention one thing: Voters must elect a successor.

That was the issue at the heart of a four-hour hearing Thursday before Deputy Secretary of State Suzanne Staiert, who heard arguments but did not rule on the protest filed on Morse’s behalf. A decision is expected next week.

Attorney Mark Grueskin, representing the Morse constituent who filed the protest, argued that the petition template issued by the Secretary of State’s office was flawed because it failed to include a demand for an election to replace the Colorado Springs Democrat.

“If you want to go to the extraordinary level of ending a term of office and creating a new vacancy, there are rules to follow,” said Grueskin. “I think it is a misnomer to call a demand for an election on this petition a technicality.”

But Richard Westfall, attorney for the recall drive, called the challenge “absurd,” pointing out that the recall form had been used by the Secretary of State since at least 2005, under both Democratic and Republican secretaries, and insisting that it met the constitutional requirements.

Rejecting the petitions because they fail to include what he described as “magic language” would “violate the fundamental right of the petitioners,” said Westfall.

“The requirements were met, and the basis for the protest that’s being inserted today is completely uncalled for,” said Westfall.

Grueskin referred to a survey commissioned by the Morse campaign showing that most of those polled from Senate District 11 were unaware that the Democratic senator would have to be replaced by an election.

The survey, conducted by left-leaning Public Policy Polling from June 14-16, found that 46 percent of those polled were correct in thinking that Morse’s successor would be chosen in an open election, while the other 54 percent gave incorrect responses, such as that the governor would appoint a replacement.

Westfall countered that the survey was irrelevant, in part because pollsters contacted registered voters, not necessarily those who signed the petitions. The Secretary of State’s office validated 10,137 of the 16,000 submitted signatures, almost 3,000 more than the 7,178 needed to force a recall.

Even though the petition template was provided by the Secretary of State’s office, Grueskin argued that the recall organizers should have run the forms past their attorneys to ensure their constitutionality.

“The nub of the argument for you is this: If the government makes a mistake, it’s better for the mistake to be perpetuated than to be fixed,” said Grueskin. “Notwithstanding anything else, if we’ve got 10 years of making mistakes in any realm, better to go to year 11 than to say ‘Enough.’

Westfall insisted there was nothing wrong with the petition language. “It’s not a mistake–it complies with the Constitution, it complies with the statute,” he said.

“My clients had every right to rely upon that, did so, played by the rules, and generated 50% of the signatures more than were required to initiate the recall election,” said Westfall. “It would be a travesty and a violation of their constitutional rights to invalidate this recall at this time.”

If the recall is affirmed, Gov. John Hickenlooper would be responsible for calling an election, which would be the first recall election of a state legislator in Colorado history.

A second protest has been filed against petitions collected to recall state Sen. Angela Giron (D-Pueblo). That hearing is scheduled for 8:30 a.m. Wednesday, July 3, at the Secretary of State’s office.

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