Last month, two state senators lost their positions in hotly contested recall elections. As well as bringing further attention to the ongoing national gun debate, it these elections also highlighted claims of voter suppression. A major concern came from District Judge Robert McGahey’s ruling allowing two Colorado Libertarians on the recall ballot. The effect of this ruling in essence meant that Colorado voters could no longer use mail-ballots to a cast a vote in this election, despite the fact that the General Assembly passed House Bill 13-1303 in early August.

Under 1303, every active registered elector will receive a ballot by mail and then may cast that ballot by mail for every “general, primary, odd-year, coordinated, presidential, special, legislative, recall, and congressional vacancy elections” [emphasis added] Many Coloradans have relied on mail-ballot voting in the past, and both Republicans and Democrats have acknowledged that voter turnout is lower if voters are required to vote in person. Yet soon after the passage of 1303, District Judge Robert McGahey’s ruling effectively overturned it with respect to recall elections. That’s not to say that 1303 has been invalidated, but because a candidate has up to 15 days before an election to submit signature to place his name on the ballot under the Colorado Constitution it certainly makes 1303 “flawed” with respect to recall elections.

Judge McGahey’s ruling will have far broader applications to Colorado election law than just to the specifics of this recall election. The costs of reprinting ballots and sending them out to voters in time was just not feasible for county clerks, who were already concerned about escalating election costs. And going forward, knowing that ballots should not be printed until 15 days prior to a recall election (and thus reducing costs of potential reprinting), the issue of timing still remains for future mail-ballot recall elections. There simply is not enough time for many clerk offices to print and mail these ballots out to voters in time to give them any effect. Therefore, even though Judge McGahey’s opinion did not invalidate 1303, its effect certainly makes it impractical with respect to recall elections, which in turn causes a lower voter turnout.

Judge McGahey’s opinion rests on solid legal ground; the state Constitution, which allows candidates to submit their petitions up to 15 days prior to a recall election, trumps state statutes. But looking at the broader picture, Judge McGahey’s opinion applies only to recall elections in Colorado, and these past recall elections were the first of their kind in Colorado. So why should this really bother anyone when these types of elections seem so few and far between? While these may be the first of their kind, it is possible that recall elections could become more common practice now that they have been shown to be so effective. And with in person voter turnout out being so low due to the nature and timing of recall elections, mail-ballots are more important than ever in these elections. So what then must state legislators do to prevent voter suppression in recall elections? My suggestion: Voter referendum to amend the Constitution to permit mail-ballot elections.


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