July 18, 2013 Updated: July 18, 2013 at 7:37 am
DENVER - Politics played prominently in the courtroom Wednesday as lawyers for Democrats and Republicans sparred over the legitimacy of two senators' recall elections and when they should be held.
Denver District Court Chief Judge Robert Hyatt listened to a day's worth of evidence and testimony and said he'd issue his opinion at 1 p.m. Thursday.
At issue is whether the recall elections for Sens. John Morse, D-Colorado Springs, and Angela Giron, D-Pueblo, can proceed or whether the petitions circulated don't meet constitutional requirements.
Specifically, Attorney Mark Grueskin argued the petitions must be thrown out because they didn't include language demanding a successor be elected if Giron and Morse are kicked out of office.
"We really are in that funny and not so funny conundrum; if government makes a mistake often enough, does it stop becoming a mistake?" Grueskin said, noting that the petition circulated has been used since roughly 2005. "The constitution is the constitution. The statutes are the statutes . I don't believe there's a court opinion yet that says the constitution does have throwaway lines."
Richard Westfall, a former Colorado solicitor general, argued on behalf of the petition gatherers that the elections should proceed uninterrupted because they met all legal requirements.
"Let this recall election go forward," Westfall said, concluding his statements after a long day of court proceedings.
Westfall argued that even if Hyatt interpreted the constitution to require the "successor language," the judge should rule in favor of the petition gatherers because it is their constitutional right to hold a recall election.
Secretary of State Scott Gessler, a Republican who may run for governor, hired an attorney in an effort to force Gov. John Hickenlooper, a Democrat, to set a date for the recall elections despite the pending litigation.
Hickenlooper's council took the stance that a date for the elections couldn't be set until the court has resolved the conflict over whether the thousands of signatures collected to oust Morse and Giron are valid.
Also entering the fray are the clerk and recorders from Pueblo and El Paso counties who will be responsible for holding the elections.
Wayne Williams, a Republican from El Paso County, had an attorney argue that the election date should be set quickly - within a 60-day window that is in the constitution.
Gilbert Ortiz, a Democrat from Pueblo County, argued the elections should be postponed so he can meet legal requirements for elections - including getting ballots to absentee voters - and not spend unnecessary money if the courts eventually stop the election.
At risk are two seats in the Senate held by Democrats. If Republicans were to take over both seats in the recall elections, it would whittle the Democrats' majority to a single vote. The split is 20-15.
Constituents gathered enough voter signatures in Giron's Senate District 3 and Morse's Senate District 11 to force recall elections.
The groups - organized loosely under the Basic Freedom Defense Fund based in Durango - spent thousands of dollars on paid signature gatherers and organized hundreds of volunteers.
The secretary of state's office deemed the petitions sufficient and sent the information to Hickenlooper to set a date for the elections that was to be no more than 60 days after the secretary of state validated the petitions. The petitions were certified July 5.
But supporters of Morse and Giron challenged the validity of the petitions, and when the deputy secretary of state ruled against them, they appealed to District Court. The issue could go all the way to the U.S. Supreme Court, and a decision Thursday will determine whether an election will take place while the legal challenges play out in court.
"That would impose on the citizens of Colorado an extreme delay," said Steven Klenda, a private attorney hired by Gessler to push the issue of Hickenlooper setting a date. "It's not the case that that's harmless because the constitution says the recall election shall occur promptly."
Hyatt asked Klenda rhetorically if he would really advise a client to ignore the third branch of government and just move forward before a ruling on an injunction had been made.