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Colorado Election-Reform Bill: It's Scott Gessler Versus Most All Other County Clerks

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SCOTT GESSLER ELECTION REFORM
Colorado Secretary of State, Scott Gessler during a campaign and political finance hearing at the Secretary of State offices. (Photo By Andy Cross/The Denver Post via Getty Images) | Getty Images

From The Colorado Independent's John Tomasic.

DENVER — Colorado’s Republican Secretary of State Scott Gessler arrived late to testify at the Senate committee hearing, but he came prepared. A practiced courtroom lawyer, he began slowly. He threw in folksy asides. He answered his own rhetorical questions. And he smiled at the majority-Democratic committee members as he railed against the election-reform bill they all support and that he wants desperately to derail. It was a dramatic moment in Colorado politics that had been building since Gessler took office two years ago.

“This isn’t the way to make good law,” he fumed at the April 24 Senate State Affairs Committee hearing. Gessler gave testimony on the bill the week before in the House and was now delivering large stretches of his testimony extemporaneously. He said his office had been “entirely excluded” from the deliberations that shaped the bill. He called the bill a “polluted” “rush to failure” and the product of “incompetent government.”

House Bill 1303 (pdf) seeks to expand voter participation mainly by establishing a system that includes same-day registration up to Election Day and that mails ballots to all eligible voters in the state. Under the proposed law, voters would choose whether to mail their ballots back to the clerks, drop them off at early voting centers or fill them out at the polls on Election Day.

“There’s a way to do this. This isn’t the way,” Gessler said, urging the majority Democratic lawmakers to work harder at collaboration in order to more effectively do the people’s business.

Gessler was one of the highest-profile conservative-politics attorneys in the state before taking office, and his brief tenure as secretary of state has been marked by partisan controversy. He has issued election and campaign-finance rules that critics say undercut lawmaker intent. He has waged legal battles against Democratic county clerks. And he has delivered speeches decrying Democrats and “the left” as being anti-rule-of-law and opposed to fair elections. His call for collaboration was one of the many head-spinning turns that came during the five-hour hearing.

Another sharp curve came as Gessler’s plea was still bumping around the chamber, when Highlands Ranch Republican committee member Ted Harvey announced he would not be introducing amendments he had prepared for the hearing.

Harvey was riled up by testimony delivered by Gessler and by a series of citizen-witnesses deeply anxious about voter fraud who told unsubstantiated tales of Election Day abuses. Harvey called the elections bill an “atrocity” and said he didn’t want to try to improve it. He said he would rely instead on citizens to sue the state to overturn the reforms after they passed.

In the end, the committee voted 3-2 in favor of the bill along party lines. The bill has already passed in the House and is likely to pass another Senate committee and out of the full Democratic-majority Senate before the legislative session ends next week.

Gessler’s office didn’t respond to messages seeking comment on the debate over the bill.

An officeholder and a political brand

House Bill 1303, the Voter Access and Modernized Elections Act, sponsored by Democrats Angela Giron in the Senate and Dickey Lee Hullinghorst and Dan Pabon in the House, is based on a plan approved by a large bipartisan majority of clerks who run the state’s elections county to county. The Colorado County Clerks Association reports that 75 percent of the 64 clerks in the state support the bill. The Association is anything but a left-wing cabal: At least 44 of the clerks, some 70 percent, are Republican officeholders. That the bill nevertheless has sparked a major partisan scrap at the capitol is no surprise.

In the Obama era, the long-simmering national war over elections administration has come to a rolling boil. Battles in statehouses have been shaped by opposing philosophies in which Republicans generally prioritizing system-security seek to restrict access and Democrats generally prioritizing voter participation seek to ease access.

Over the last two years, Colorado has been on the front lines in the fighting.

When Secretary Gessler issued an elections rule in 2011 that sought to prevent clerks from sending mail ballots to “inactive voters” — registered voters who failed to cast a ballot in the previous election — Democrats called foul. The preceding election had been the Tea Party/Republican-wave election in which GOP turnout was high. That meant that an unusually large percentage of the state’s “active voters” — the only ones entitled to mail ballots in 2011, under Gessler’s rule — would be Republican voters. Clerks overseeing the state’s large, mostly Democratic-leaning, urban constituencies — citizens who tend to vote less regularly but who nevertheless depend on receiving their ballots for general elections — had made it policy to send ballots in all elections to inactive as well as active voters. Gessler’s rule would have barred those clerks from doing that. In the court case that followed, a judge ultimately ruled that Gessler’s interpretation went against the spirit of the law.

Working in the wake of the ruling, proponents of the elections bill sought to put an end to confusion in the matter and included a provision that would limit inactive status only to cases in which mail has been returned, requiring voters to reconfirm their address.

The Secretary drew criticism during his first year in office when he claimed he had evidence that more than 11,000 non-citizens may have voted in Colorado’s elections. Democrats and voting-rights groups sounded warnings that the assertion would end in voter intimidation. But under Gessler’s direction, the Elections Division treated the issue as a priority. Gessler gave testimony in Congress and talked about the gravity of the problem at fundraisers and at meetings with the press.

A year later, the presidential election just weeks away, it became clear that non-citizen voting was not the problem Gessler had made it out to be. His office had sent letters to 4,000 suspected non-citizen Colorado residents asking them to confirm their voter eligibility. As The Associated Press reported, only 12 percent of those letters went to registered Republicans and, in the end, Gessler offered an unconfirmed shriveled list of 35 non-citizens who may have cast votes in past elections.

At the state capitol, Gessler has become, in effect, his own conservative political brand. Reaction to his name has become a measure of Colorado political leanings. Democratic lawmakers increasingly view him as a partisan-above-all-else whose claims should be viewed with skepticism. Republicans tend to see him as an embattled standard bearer. The result is reflexive hyper-polarization on matters tied to the secretary of state’s office – and the hyper-polarization around House Bill 1303 is perhaps the most glaring example of that phenomenon yet. The apparent calculation among Republican lawmakers is that, if Democrats are for it and Gessler is against it, the best thing to do is to oppose it.

County clerks supporting the bill testified at last week’s Senate hearing that, in such an atmosphere, the fact that the bill is likely to pass out of the legislature and head to the governor’s desk without a single Republican supporter says little about its merits.

Boulder’s Democratic Clerk Hillary Hall asked lawmakers to take a step back from the seesaw routine of legislative debate and consider the position of the clerks supporting the bill.

“I have nothing to gain by sitting here today and saying this system will work,” she said. “I’m the one on the front line and I’m the one who, if it doesn’t work, is going to be the first one shot at.”

It’s not about Republicans and Democrats, said La Plata Republican Clerk Tiffany Parker.

“Although this has become a very partisan issue, we elected officials have to remember who we’re working for, and that’s the people of Colorado,” she said.

Ambitious versus aggressive

By all accounts, House Bill 1303 is an ambitious proposal. The Clerks Association says the bill is needed to bring state elections administration more fully into the information age and to prepare for future challenges.

The clerks point out that people now change residences more frequently than ever before and routinely update all kinds of personal information on the fly and in realtime. Arguing that registering should be made more user-friendly, they say there’s no reason to halt voter registration 29 days before Election Day, a confirmation period held over from a pre-digital paper-based era. The clerks add that resources needed to maintain aging voting systems are running out and that they could save millions of dollars by moving to universal mail ballots and fully wired voting centers that can serve residents without regard to voting-district boundaries.

Gessler and other critics say the bill is too ambitious, given that key provisions kick in almost immediately for the off-year election being held later this year. But, as longtime national elections-administration watchdog Brad Friedman notes, House Bill 1303 “draws, in almost each element, from procedures that have been used and/or tried elsewhere.” Representatives of the Clerks Association say the changes in the bill build on procedures and technologies already in use in Colorado counties. If the measure becomes law, clerks say they’ll only need to extend those technologies and will be able to do so with relative ease this year when voter turnout will be low.

As Clerk Hall told The Independent, the challenges set out by this bill are minimal compared to the challenges clerks faced during the high-turnout 2012 presidential election.

Opponents of the bill mainly base their criticism on remarks made by Gessler and a Denver Post editorial that generally praised the measure but, apparently relying on Gessler alone as a source, argued the timeline proposed in the bill was “too aggressive” because it “relies on technology that hasn’t been tested.”

Clerk Hall said she and other clerks have been trying to understand the arguments against the bill but that she, at least, finds them baffling. She said the bill doesn’t propose using any untested technology. She said that for this November’s election, clerks would continue to use SCORE, the state’s electronic voter registration and election management system, which has been in place since 2008.

“We already have statewide connectivity for early voting,” she said. “We use it right now and have for years in the weeks before Election Day. We’re simply extending that registration period by 29 days.”

If anything, the measure may work to reduce stress on resources by spreading registration activity over a longer period and lessening the kinds of voter rushes that lead to long lines.

“If the concern is tied to same-day registration and voting, well, this bill doesn’t just put in same-day registration. That piece joins with a larger system that, again, draws on functions and practices already in place,” Hall said.

More Coloradans will receive ballots in the mail, she said, and so more of them will vote by mail or drop ballots off at vote centers. She said all that will free up county staffers to register new voters in person.

Gessler claims that authority on the SCORE system resides not with the clerks, but in his office, where its designers work.

“We’re the experts on SCORE,” he said at the Senate hearing. “The people who support this bill talking about SCORE, they don’t know anything about it.”

Hall is serving her second term as Boulder County clerk. She has overseen voting for the past two high-turnout presidential elections and all of the elections in between. She represents the clerks on the SCORE advisory board. She and the other clerks around the state are quick to say that, despite SCORE’s imperfections, they’re fully able to make it serve their constituents. Hall sees no challenge presented in the bill tied to the alleged “untested” technologies that troubled the Denver Post editorial board.

“I called up the Denver Post after I read the editorial,” she said. “I asked them about it. I tried to explain. They — well, they just didn’t seem to hear what I was saying.”

When pressed, she said she thinks the difference of opinion on the bill comes down to a “question of will.” She said the clerks are motivated to update the system and eliminate voter confusion and inefficiencies.

“I listened to Gessler’s testimony [last week] and I honestly don’t know why the secretary sees this differently than we do.”

Denver Clerk Debra Johnson explained to the committee that her office recently ran a two-day mock election on SCORE to test its capacity in light of any demands the bill might place on it. “Is it the most efficient, the most effective way to run an election?” she asked. “Probably not. But will it take us through the 2013 election? Yes it will.”

Gessler has said there’s no need for the bill. If the point is to increase participation, he argues, lawmakers should know that Colorado boasts one of the top turnout rates in the nation. He told the committee that Colorado ranked third in the nation and improved turnout over the historic numbers notched in 2008.

Gessler based his testimony on a report issued by his office in February. But that report leaned selectively on numbers compiled by the United States Elections Project, according to the director of that project, George Mason University Prof. Michael McDonald. He wrote in the Huffington Post last month that Gessler’s report incorrectly touted Colorado as the very top turnout state in the country and claimed state turnout in 2012 improved over 2008 by 1.8 percent.

McDonald said the real numbers show Colorado’s voter participation ranked third and that the state’s turnout rate last year declined from 2008 by 0.7 percent. The Colorado turnout numbers are very good, McDonald wrote, but they’re not the best, and so they could afford to improve.

“As Colorado policymakers consider reforms, I urge them to listen to their local election administrators, since they know best how to efficiently run elections to serve their voters,” he wrote.

Gessler’s most sensational argument against the elections bill is that it would increase the risk of voter fraud.

Clerks respond that the same checks on voter fraud that apply now would apply once the bill becomes law. And they argue that the alarming allegations of fraud being drawn out by the bill paint a false picture of the state’s election-administration system and the challenges it faces.

The numbers

Ana Nucete was born in Venezuela and as an adult worked there for more than a decade in public affairs for ExxonMobil until President Cesar Chavez nationalized the oil industry in 2007. She emigrated to the U.S. that year, when she was 47, joining family in Denver where she tried and failed to land an oil-industry job. So she started fresh, working at first as a community liaison for the state’s Department of Transportation and then teaching math on an alternative license for Denver Public Schools while attending a teacher-certification program.

“My fellow students, they’re all half my age. It’s fun to be with them but, if I really knew how hard it would be, to start over, I don’t know if I would have been able to do it,” she said.

Nucete knows about the order of U.S. presidential succession, the difference between Constitutional rights and responsibilities and the wars fought by the United States in the 18th century. She learned those things because she had to take the U.S. citizenship test last year, which she passed before swearing allegiance to her new country in what she described as an extremely moving ceremony at the naturalization center in Aurora.

The speaker at the ceremony talked about how the United States was made by people just like Nucete, immigrants from all over the world chasing their dreams. That was Monday, November 5, 2012, the day before Election Day. Because of Colorado’s registration waiting period, however, none of the 70 new citizens in the room — all brimming with patriotism and living in a swing state bombarded for the preceding 24 months with political campaign messages — could vote.

“You come out of that ceremony, you feel so inspired, so attached to this country,” she said. “You want to vote so badly, as soon as you can, because that’s how you express yourself as a citizen.”

In the debate over House Bill 1303, where concerns about voter fraud are stacked against concerns about voter participation, the numbers pile up on only one side of the scale.

As Colorado Judicial Branch Analyst Jessica Zender told Westword in January, there have been 48 charges of voter fraud heard in courts here over the last decade and 16 of those charges led to convictions. In that time, millions of Coloradans have voted — and millions of Coloradans have never made it to the polls.

According to stats compiled by the Secretary of State’s office, more than 900,000 Coloradans who took the time to register to vote didn’t cast ballots in last year’s presidential election. That’s roughly a quarter of the state’s registered voters. What’s more, about 200,000 Coloradans eligible to vote never even registered.

Nucete said she did some voter math after the ceremony in Aurora. There are generally two citizenship ceremonies held there every week. If the number of applicants who attended her ceremony is a fair average, that means roughly 550 people became citizens in Aurora just in the month before last year — all of them too late to vote.

The one-way mail express

For some critics who otherwise support the election-reform bill, it’s the provision allowing clerks to send ballots to all registered voters in the state that raises concerns.

Friedman, the elections analyst at the influential BradBlog, has long cautioned against the growing movement in the U.S. toward mail elections. He has argued that mailing ballots extends the chain of custody, presenting greater opportunity for election fraud — the kind committed by overzealous campaign staffers, incompetent poll workers and corrupt special interest groups.

Voter fraud, the kind of fraud committed by individuals, is mostly discounted as a serious threat to election integrity — because even the most single-minded individual willing to risk repeat felony penalties couldn’t vote enough times to reliably influence an election. Larger-scale election fraud, on the other hand, can not be so easily discounted.

Mail ballots can be intercepted and tampered with, and organizations can intimidate voters when they’re filling out ballots outside the privacy of the voter booth.

There is also a concern tied to mail ballots that transparency and citizen oversight are falling away in the service of efficiency.

Mary Eberle, a longtime volunteer Colorado poll watcher, testified against the election-reform bill this month for the same reasons she has protested other recent changes to election administration in the state. She sees home mail boxes, post offices, ballot-sorting-and-reading machines and the rooms where they’re housed as democratic dark areas that invite abuse, places where citizens like herself can’t properly measure ballot integrity.

But supporters of the bill — and, most ardently, the clerks who back it — respond to those kinds of security concerns by pointing to the ballot bar-code tracking system in place and to practices developed to allow voters and elections staffers to trace ballots as they progress through the system. They also underline the independent review commission the bill sets up tasked in the years ahead with assessing the strengths and weaknesses of the system.

In any case, they say, the mail-ballot train has left the station. In a letter sent to lawmakers late last year detailing the proposals that shaped the bill, the Clerks Association reported that 74 percent of Coloradans voted by mail ballot in the 2012 election. They described that number as a “clear mandate from the electorate.” At the capitol the last two weeks, individual clerks have praised the efficiency and distinct qualities of the mail-ballot system in Colorado, which includes the drop-off and live-voting options.

The election-reform bill would retain those options. Alton Dillard, Denver Clerk and Recorders spokesman, told The Independent that, in Denver, 51 percent of voters mail back their ballots to the clerks. That’s a high number and one likely to climb. But that also means half of mail-ballot voters are electing to hand-deliver their ballots or to vote in person.

“Voters have options and they have put their confidence in this system,” said Clerks Association Executive Director Donetta Davidson, a Republican and former secretary of state. “Voters know security is in place. Voters with disabilities, many of whom depend on modern security measures, have endorsed this bill.”

Republicans are hoping that Gov. John Hickenlooper, a moderate Democratic, will look askance at the lopsided legislative support for the bill if and when it makes its way to his desk. But Democrats say any hope of a veto is chimerical, that the governor wouldn’t take cues on how to address perceived partisanship from the fractious legislature. They point out that Hickenlooper, once a savvy brew-pub owner, learned to look to his wait staff for lessons on how to run his business. In this case, they say, the view of the clerks association would likely weigh more than any other factor.

“[Public] perception on this is hard to gauge,” said Clerk Hall. “But we [clerks] do this day in and day out.”

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