080522-news-recount-lawsuit

El Paso County Clerk and Recorder Chuck Broerman explains the process behind the requested recount for four Republican candidates on Saturday. 

On the day Colorado county clerks are lawfully required to complete recounts of the June 28 primary election, and a day after El Paso County completed its recount, a county judge denied the request from a group of unsuccessful GOP candidates to extend the statutory recount deadline.

On Tuesday, El Paso County coroner candidate Dr. Rae Ann Weber, clerk and recorder candidate Peter Lupia, sheriff candidate Todd Watkins, county commission candidates Lindsay Moore and David Winney, House District 18 candidate Summer Groubert and Senate District 9 candidate Lynda Zamora Wilson requested Judge Thomas Kelly Kane extend the recount deadline by two weeks, from Aug. 4 to Aug. 18.

Kane on Thursday issued an order denying the request.

The group of candidates sought discretionary recounts following their double-digit margin losses in the June primary. Because the final results for all races didn't meet the threshold set by Colorado law to trigger an automatic recount, that cost is paid by the candidates who requested them.

Election law requires races within a margin less than or equal to 0.5% of the winner’s vote receive mandatory recounts, paid for by the state.

Of the plaintiffs listed, only Weber, Lupia, Zamora Wilson and Tina Peters, who is not named as a petitioner in the El Paso County lawsuit, produced the sufficient funds for the recount.

The cost of the recount for the county coroner and clerk and recorder races was about $20,800 in El Paso County, which the candidates shared, Clerk and Recorder Chuck Broerman said.

Peters submitted $255,912.33 for the statewide recount of her 14.2-percentage-point loss to former Jefferson County Clerk and Recorder Pam Anderson for the GOP nomination for secretary of state.

Wilson submitted $20,819.87 for a recount of the GOP primary bid for the SD 9 seat to Sen. Paul Lundeen of Monument.

In their lawsuit filed July 29, the candidates — minus Peters — accused Broerman and Secretary of State Jena Griswold of including "exorbitant" additional costs for vendor programming and support, calculated at a rate of $250 per hour for an estimated 40 hours, for a total amount of $10,000.

They asked the judge to order Griswold and Broerman to remove the costs for vendor programming and support and allow the candidates who failed to shell out the full amount to pay the adjusted, presumably lower cost of the recount. They also asked for a refund of any overpayment.

"These unreasonable additional costs, and thus the actions of the secretary and clerk and recorder, serve to chill petitioners' First Amendment rights, and further violates their rights to equal protection and due process," they wrote in the lawsuit.

Broerman, in a motion to dismiss the suit filed Wednesday, said the candidates' claims were "moot" and "unsupported by Colorado law. ... Petitioners' attempt to halt or otherwise interfere with a lawful recount, which has concluded, must be thwarted." 

He rejected the candidates' claims that their constitutional rights had been violated. 

State law, Broerman argued, "clearly states that the interested party shall pay the costs of the recount — not partial costs — to the election official within one day of receiving the cost determination."

Furthermore, the clerk said in court documents, the law requires the entire amount of the funds paid for the requested recount be refunded back to the person who paid them if the "recount results in a reversal in favor of" the candidate. The results of El Paso County's June 28 primary were unchanged following completion of the recount Wednesday, the clerk's office reported.

But the candidates may still be entitled to any excess funds not used during the recount, and that is Broerman's intent, he said in the motion to dismiss.

"Thus, the interested party who requested and paid for the recount may receive refunds ... if the clerk is not required to utilize the full amount of funds estimated" in this instance, court documents say.

Weber, Lupia, Watkins, Moore, Winney, Groubert and Wilson did not immediately return The Gazette's request for comment Thursday.

Broerman told The Gazette this week the lawsuit was "groundless" and that the charges are "usual and customary." They reflect the work his office did to rescan about 153,000 ballots, he said. El Paso was the only county in the state that had to simultaneously rescan ballots for four races.

The same group of candidates, including Peters, also filed a lawsuit in Denver District Court this week that sought to stop the recount and compel the Secretary of State's Office to conduct it instead. They alleged the recount "has not been conducted in a fair, impartial and uniform manner."

Broerman this week also told The Gazette the claims in the Denver lawsuit are "categorically false in every way imaginable." The Secretary of State's Office on Wednesday said it was "without merit." 

Reporter

Breeanna Jent covers El Paso County government. She previously worked as the editorial assistant for the Pikes Peak Newspapers and joined their sister paper, The Gazette, in 2020.

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