“Every vote counts!” (fine print: except in the event of a recall election, in which case said vote may not be counted under certain conditions).
Article VI, section 3 of the Colorado Constitution permits the the Colorado Supreme Court to give “its opinion upon important questions upon solemn occasions” when requested to do so by the Governor or legislator.
On August 23, 2013, the Governor submitted a question to the Court related to the constitutionality under the US Constitution of a provision in the Colorado Constitution regarding recall elections.
Colorado Constitution Article XXI, Section 3 addresses recall elections. It divides the ballot into 2 parts:
The first question must be “‘Shall (name of person against whom the recall petition is filed) be recalled from the office of (title of the office)?’ Following such question shall be the words, ‘Yes’ and ‘No’.” CO. Const. Art XXI, sec. 3.
The second part of the ballot must ask who should succeed the person sought to be recalled, followed by a list the names of those person nominated as candidates.
But, the Section 3 goes on to state that “no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office. ” The effect is that a vote for a candidate will not be counted unless the voter also votes “Yes” or “No” on the recall question.
The Fourteenth Amendment to the US Constitution protects voters rights, including the right to have a vote counted. The First Amendment of the US Constitution protects a voters right not to vote, because requiring a person to vote is unconstitutional compelled speech.
In a challenge related to the recall of California Governor Grey Davis, a United States District Court in the Southern District of California found a provision in the California Constitution that was virtually identical to Article XXI, section 3 of the Colorado Constitution, violated the First and Fourteenth Amendments of the US Constitution in Partnoy v. Shelley, 277 F. Supp. 2d 1064 (S.D. Cal. 2003).
With these concerns in mind, the Governor asked the Colorado Supreme Court the following question: “Colorado Constitution Article XXI, § 3 requires an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue. Is this requirement consistent with the First and Fourteenth
Amendments to the United States Constitution?”
In a short ORDER, the Colorado Supreme Court said NO: “The provision in Article XXI, Section 3, of the Constitution of the State of Colorado stating that “no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office, conflicts with the First and Fourteenth Amendments to the United States Constitution. We therefore answer the Interrogatory in the negative.”
The Court will issue its full opinion at a later date.
On October 21, 2013, the Court issued its full opinion, summarized HERE.