DENVER — There’s no legislative recall drive on the immediate horizon—at least not one that anyone will discuss on the record–but Senate Democrats aren’t taking any chances.
A Senate committee advanced on a 3-2 party-line vote Friday a bill to make it easier to conduct recall elections by mail, despite objections from Republicans and state officials who said the fix would require a voter-approved constitutional amendment.
“In order to change the constitution, it requires a constitutional amendment, and that’s not what this is,” said state Sen. Ted Harvey (R-Highlands Ranch). “This bill is setting the date from when the election is to something totally different. That’s a change in the constitution. That’s not a statutory fix.”
The state constitution gives candidates 15 days before the election to petition onto the recall ballot—not enough time to print and mail ballots—but Senate Bill 158 would give county clerks more time by pegging the timeline to the start of early voting, instead of Election Day itself.
Deputy Attorney General David Blake all but guaranteed that the bill would be challenged in court, while Deputy Secretary of State Suzanne Staiert pointed out that a state judge shot down the same arguments in August.
For Senate Democrats, however, improving their odds in the event of a recall in the next six months appeared to outweigh any concerns about a lawsuit.
State Sen. Irene Aguilar (D-Denver) said she didn’t see any problem with taking a belt-and-suspenders approach by passing the bill and also running a ballot referendum to amend the constitution in November.
“What would be the harm of passing this to show intent before the referendum is passed?” said Aguilar. “The truth of the matter is, we have seven more months before this referendum can be put out, and based on behavior last interim, there’s some concern that this will be something that will be in court sooner.”
She added, “I would rather enfranchise military voters and the people to vote by mail than disenfranchise them by not passing this now. And I don’t see this as contradicting moving forward with a referendum.”
Harvey said after the hearing that Democrats remain nervous about the prospect of another round of recalls following last year’s popular uprising.
“They are scared to death,” said Harvey. “Every conversation I’ve had this session with regard to elections, they bring up, ‘What if there’s a recall?’”
Two Senate Democrats—Angela Giron of Pueblo and John Morse of Colorado Springs—were ousted in the historic Sept. 10 recall election, while a third, Evie Hudak of Arvada, resigned in November before recall petitions could be filed.
Giron later blamed “voter suppression” for her loss, citing the absence of mail-in ballots. In his testimony Friday, Pueblo County Clerk and Recorder Gilbert Ortiz said he agreed that confusion surrounding the recall process contributed to voter suppression.
“I think Pueblo County came through very well, I think we had a very good turnout, I think it was a fair election, but if the question for me is, ‘Were people unable to vote because they didn’t receive their mail ballot? –The answer is yes. Do I think voters were suppressed because they were confused? I believe so.”
Staiert said that the Secretary of State’s office had attempted to reconcile the mail-in ballot law, which was signed in May, with the constitution’s 15-day requirement by passing an emergency rule giving successor candidates 45 days before the election to file petitions.
Colorado Libertarians challenged the rule in court, and won in an Aug. 12 decision by District Court Judge Robert McGahey.
“Unfortunately, the court found that it was unconstitutional. And we didn’t just lose in court, we really lost in court,” said Staiert.
“The court essentially said, as Sen. Harvey as alluded to, that the fact that it’s difficult, the fact that the language may be deemed archaic, the fact that it could cause chaos is not relevant to the court in that the constitution is clear, that the deadline is 15 days before election date, and there’s no ambiguity in that language,” said Staiert. “The court found that the differences in the statute and the constitution were irreconcilable.”
The hearing grew testy when state Sen. Matt Jones (D-Longmont) tried to blame Staiert for not doing more to reconcile the two, but she countered that her office has been boxed out of the legislative process since Democrats took over the state legislature two years ago.
“I don’t know how we can be blamed when we’re never invited to the table,” said Staiert.
Although the state legislature may vote to refer a measure to the ballot, there wasn’t much enthusiasm for that plan among the committee’s Democrats. Jones said that a proposed constitutional amendment “sounds convenient, but nobody’s taking action.”
El Paso County Clerk and Recorder Wayne Williams also recommended going the ballot route, asking Democrats to “trust the people.”
“Rather than try to evade the constitution, let the people have the right to vote on this,” said Williams.