By: Eric Speer

In late August 2015, the Public Interest Legal Foundation, a nonprofit organization dedicated to preserving election integrity, found that 10 counties in Colorado have over-inflated voter rolls. Pitkin, Mineral, Hinsdale, San Juan, Ouray, Summit, Dolores, San Miguel, Cheyenne and Boulder Counties were found to have more voters registered than people eligible to vote. This over inflation violates the National Voter Registration Act, which requires “states to keep voter registration lists accurate and current, such as identifying persons who have become ineligible due to having died or moved outside the jurisdiction.”

Besides violating the Act, it will be interesting to see how this evidence might be used in future legal challenges.  In 2008, the Supreme Court approved Indiana’s voter ID laws in Crawford v. Marion County Election Board. Evidence that Indiana had bloated voter registration rolls helped convince a plurality of the Justices that voter fraud might pose a real threat to electoral integrity, and that in light of that, Indiana’s stricter voter ID laws were an appropriate way for the state legislature to respond.

Colorado, notably, has some of the least restrictive voting regulations in the nation, including reforms in 2013, which allow for same day voter registration and require all registered voters to be mailed an absentee ballot. Not a single Republican voted for the mandatory absentee ballot measure. The Democratically-controlled legislature argued that the measure would greatly increase voter turnout. And it did, but not in the way they had probably hoped. Turnout in the 2014 elections showed that majority of the new absentee voters were older, and Republican. These voters helped elect current Republican Secretary of State Wayne Williams.

Perhaps somewhat ironically, Williams has expressed a desire to create stricter voter ID procedures. Williams’ predecessor, former Republican Secretary of State Scott Gessler, also supported these policies. Gessler attempted to promote the introduction of stricter voting procedures by ferreting out cases of voter fraud. An expansive, statewide investigation produced only a single successful prosecution for falsely registering to vote. Gessler had originally claimed that over 16,000 people were falsely registered to vote and that 5,000 of them had actually cast ballots in the 2010 state elections. These highly disproportionate results would seem to indicate that voter fraud is not extensive.

But this brings us back to Crawford. The Indiana legislature in that case had failed to turn up even a single case of confirmable voter fraud, with the Court noting that there was “no evidence of such fraud actually occurring in Indiana at any time in its history.” And yet, the Court still felt that the over-inflated voter registration rolls indicated that voter fraud was an evil the state had a legitimate basis to fear.

Admittedly, Democrats still control the Colorado house and the governor’s seat, making it unlikely that Williams will get the stricter voting procedures he wants (and he might not be happy even if he did — the blanket approach to mailing absentee ballots to all registered voters seems to have been beneficial to Republican candidates). However, should a more conservative legislature in the future pass these more restrictive provisions, they could use the over-enrolled counties as evidence to support their position in the case of litigation.

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