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Gazette Premium Content Recall ruling appealed to Colorado Supreme Court

By Megan Schrader Published: August 14, 2013

DENVER - As Democrats and Republicans wage wars of voter turnout leading up to the Sept. 10 recall elections, voters will need to pay close attention to how they will actually be able to cast ballots.

Originally the recall elections attempting to oust Democratic Sens. John Morse and Angela Giron were set as all-mail ballots sent to every registered voter in the two senate districts.

But a court ruling Monday made mail ballots unfeasible because of the time needed to proof, print, mail and return ballots. Denver District Court Judge Robert McGahey ruled potential candidates have until Aug. 26 - 15 days before the election - to turn in signatures to get their names on the ballot. McGahey said that timeline is set forth in the constitution and overrides any concerns about mailing ballots in a timely manner.

Pueblo County Clerk and Recorder Gilbert Ortiz, a Democrat, is appealing that decision.

"We really need to make sure that everyone gets an opportunity to vote and not disenfranchise thousands of voters," Ortiz said.

Under the new timeline, he said, even absentee voters, overseas military and those who permanently requested mail-ballots will likely not receive paper ballots.

The Colorado Supreme Court will have the last say in the matter later this week or early next week.

Not appealing is Secretary of State Scott Gessler, a Republican, whose office is in charge of elections at the state-level. Gessler at first ordered that candidates had 10 days to get signatures turned in to appear on the recall ballots, but that emergency ruling was overturned by the judge.

"The voters expect a recall on Sept. 10 and we need to roll up our sleeves and deliver this election," Gessler said in a prepared statement. "This election will be conducted with integrity and every eligible voter will have the chance to vote."

Gessler is meeting with Ortiz and El Paso County Clerk and Recorder Wayne Williams Thursday to discuss what the elections will look like.

Williams and Ortiz both said it will likely mean polling centers - not precincts - will open up for the elections in each district several days before the election for early voting and then on Election Day.

That will give additional candidates a chance to get on the ballot.

The Libertarian Party filed the lawsuit causing this confusion because two candidates missed the filing deadline and were denied access to the ballot.

There are two Republicans - one on each ballot - as potential replacements for the elected officials if they are recalled.

First voters in Senate Districts 3 and 11 will answer whether they think their elected Senator should be removed from office. Then they will select a replacement candidate and for now, the options are Republican candidates Bernie Herpin in Colorado Springs and George Rivera in Pueblo.

Other candidates must collect 1,000 signatures by Aug. 26 and have Gessler verify they are valid to appear on the ballot.

Democrats are skeptical the legal challenge filed last week has anything to do with access to the ballot and is aimed more at House Bill 1303.

That legislation was passed last year and overhauled the way the state handles elections.

Williams said the legal challenge points out flaws in that law, which among other things requires mail ballots be sent to every registered voter and allows same-day voter registration.

"The 15-day Constitutional requirement has been there since 1912," Ortiz countered. "I wonder how it can be blamed on 1303?"

Ortiz said clerks likely had a hard time following the law when it was first enacted more than 10 decades ago.

This is the first time statewide officials have faced recall elections which is likely the reason the legal challenge to how the elections were conducted has never been made before, Ortiz said.

Donetta Davidson, former secretary of state who now is executive director of the Colorado Clerks Association, said the problem has existed for along time.

"We need to get the constitution changed to where it's updated," Davidson said. "We're running elections so much differently now than we did in the early 1900s."

Davidson said in 2006 the change was taken to the voters - which would have allowed mail and absentee ballots in recall elections - but the constitutional change was defeated.

Contact Megan Schrader

719-286-0644

Twitter: @CapitolSchrader

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