[Image courtesy of denvercolorado.ca]
On Monday, Colorado’s Secretary of State threatened to sue the Clerk/Recorder for the City and County of Denver if it followed through with plans to mail 2011 ballots to over 55,000 Denver voters classified as “inactive” because they failed to vote in 2010.
The dispute, which is vaguely reminiscent of the recent Battle of Cuyahoga over Ohio absentee ballot applications, once again pits a state official determined to enforce state law against a local official who seeks to continue a practice aimed at assisting voters.
What’s interesting in Colorado, however, is that the law is somewhat uncertain – which means that both parties in this dispute (Donnybrook in Denver? Rocky Mountain Rumble? Mile-High Melee?) might not have the full weight of authority on their side.
The roots of this controversy lie in Colorado’s decision to give counties the option, beginning in 2010, to use all-mail elections in primaries. In order to assure that all voters in such election would be prepared for all-mail elections and have an opportunity to cast ballots, the state legislature mandated that clerks mail ballots to inactive voters in the 2009-10 election cycle. That statute was not re-authorized, but Denver’s clerk (and others) planned to continue the practice.
At the root, the dispute between the Secretary and Denver hinges on one section of state law: namely, the part that says election offices “shall” mail ballots to “each active registered elector.” The Secretary says that “shall” means ballots can be sent ONLY to active voters, while Denver says that “shall” doesn’t mean they “may” not send ballots to other voters – citing the recent required practice. If a court does get involved, I would expect the 2008 law requiring inactive ballots to get a lot of scrutiny, as well as the decision not to extend it beyond 2010.
The upshot of all of this is that Colorado’s election laws (which I have no doubt were amended with an eye to improving the process for voters) are and have been a moving target – and such targets are very difficult to hit with any degree of accuracy. It should, therefore, be a cautionary tale for anyone – but especially legislators and advocates – who seeks to amend, repair or update election laws to improve the process.
There is an aphorism in the legal profession that says “it is more important that the law be certain than just.” The current dispute in Denver suggests that when the law is not certain – especially election law, which operates in an environment where Election Day cannot wait for resolution of disagreements – it can create conditions that unjustly (and unnecessarily) put the election process into question.