Tag Archives: Elections

Scott Gessler, as Secretary of State v. Colorado Common Cause and Colorado Ethics Watch, 2014CO44 (June 16, 2014)

When the financial burden of state regulation of issue committees approaches or exceeds the value of the financial contributions to a political effort, such regulations may unconstitutionally burden freedom of association. Samson v. Buescher. Colorado’s Constitution art. XXVIII sec. 2(10)(a)(II) and CRS 1-45-108 establish a $200 threshold for registering issue committees and for reporting contributions and expenditures retro- and prospectively (Limits). Samson found the Limits to be unconstitutional as applied to a small-scale issue committee. To address the confusion caused by Samson, Gessler promulgated CCR 1505-6:4.27 (now Rule 4.1), setting the threshold at $5000, applied prospectively only. The Court set aside Rule 4.1 as contrary to the still-valid Limits, which could be constitutionally applied in cases dissimilar from Samson’s $2000 in contributions.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC783.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9396&courtid=2

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Nicole S. Hanlen, Lynn D. Ussery, James H. Joy, June Marie McNees, Kelly L. McNees, Karen Marquez, Meagan Gabaldon, and David J. Rodenbaugh, v. Scott Gessler as Colorado Secretary of State, and Karen Long, as Clerk and Recorder for Adams County; Jim F. Candelarie, as Clerk and Recorder for the City and County of Broomfield; and Frances E. Mullins, as Designated Election Official for Adams 12 Five Star School District, 2014CO24 (April 7, 2014)

“Employ every economy consistent with thoroughness, accuracy and reliability.” – Arthur C. Nielsen. An election official failed to notice a candidate was ineligible until after ballots were printed. The Secretary issued an emergency Rule of general applicability allowing election officials to declare the candidate ineligible and direct that votes are invalid and must not be counted. The Court held the Rule invalid. First, it conflicts it conflicts with a statute allowing votes for a disqualified candidate in a partisan election to be counted. Second, it usurps the court’s express authority to determine eligibility issues after the ballot is certified. The Court’s appellate jurisdiction was not based on the election code, however. Rather, the Court invoked CAR 21 sua sponte and it limited its decision to determining the validity of the Rule under the APA, not the validity of the election.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SA306.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9312&courtid=2

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In Re: Maurice C. Jones, and and Citizen Center, v. Christian R. Samora, Treasurer; Town of Center; Herman Dickey Sisneros; Edward W. Garcia; and Geraldine Martinez, 2014CO4 (Jan. 27, 2014, as modified Feb. 24, 2014)

“[B]y 1896, the vast majority of states had adopted the Australian [secret] ballot system.” – Opinion. The Town of Center held an election recalling its mayor and trustees. A recalled trustee sued to have the election declared void, arguing that leaving absentee ballot stubs attached during the counting process violated the secrecy guarantee of the CO Constitution, Art. VII, Sec. 8. The trial court, relying on precedent set in Taylor v. Pile voided the election, even though the election’s fundamental integrity remained uncompromised. After reviewing the history of ballot secrecy and changes to Colorado election law, the Court reversed. The Court held 1) Sec. 8 applies only to marking ballots, not to detachable stubs, and 2) an election must be set aside only when an entire election is not secret. The statutory violations of CRS 31-10-607 and 1007 were not sufficient.

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Marilyn Marks v. Gessler, Colorado Secretary of State and Judd Choate, [Director of Elections], 2013COA115 (Aug. 1, 2013)

“Nobody will ever deprive the American people of the right to vote except the American people themselves and the only way they could do this is by not voting.” – FDR. Marks filed a complaint with Gessler claiming violations of federal election laws (HAVA). Gessler dismissed the complaint without a hearing for lack of standing. Marks appealed to the district court and won. In a complex ruling, the court of appeals affirmed because 1) the state’s APA provides for judicial review of administrative HAVA determinations; 2) federal and state HAVA laws conflict regarding standing, so the federal rule controls; and 3) HAVA did not create a privately enforceable federal civil right. Procedurally, the court 1) identified the final appealable order; 2) affirmed sua sponte entry of summary judgment; and 3) held state and federal courts have subject matter jurisdiction to review HAVA appeals.

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Filed under Administrative, Appellate Review Challenged, Constitutional, Government

In the Matter of Title, Ballot Title and Submission Clause for Proposed Initiatives 2011-2012 Nos. 67, 68, 69, and 94, 95, Philip Hayes v. David Ottke and John Slota and Barbara Walker and Don Childears v. Earl Staelin and Robert Bows, 2012CO1 (January 7, 2013)

Direct democracy takes citizen initiatives directly to the voters. Colorado’s Constitution, article V section 1, provides for such initiatives. But, they must meet various standards before they are placed on the ballot, and the Title Board is authorized to decide if initiatives meet those standards. CRS 1-40-106 requires “each designated representative” (proponent) to appear at Board meetings at which the ballot issue is considered. If a proponent fails to appear, the Board lacks authority to take any action. Here, two different initiatives were brought. In each case, however, only 1 of the 2 proponents appeared at a rehearing. In this original proceeding, the Court held that both proponents must appear at each hearing. If they do not, the Board lacks authority to set titles and put matters on the ballot. Because only 1 of 2 proponents appeared, the Board lacked authority to act.

http://www.courts.state.co.us/Courts/Supreme_Court/opinions/2012/12SA117,%2012SA130.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8790&courtid=2

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Colorado Common Cause and Colorado Ethics Watch v. Gessler, Secretary of State 2012COA147 (August 30, 2012)

“Committee: n. A body that keeps minutes and wastes hours.” (Paul Ogden). The Colorado Constitution and related legislation, subjects an “issue committee” to registration and disclosure requirements once it receives $200. The Secretary of State, Scott Gessler, issued a rule that said that the “issue committee” regulations were not triggered until the group received $5000. At the center of this case is a 10th Circuit opinion holding that the “issue committee” registration requirements, as applied to a group of neighbors distributing fliers in opposition to the annexation of their neighborhood, unconstitutionally infringed on their First Amendment rights. That opinion did not, however, invalidate the law. So, the new rule, intended to address some uncertainty from the 10th Circuit opinion, contravened the law, and therefore the Secretary exceeded his authority to issue it.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2405-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8647&courtid=1

Certiorari GRANTED

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