When state Rep. Kathleen Curry left the Democrats to seek re-election as an independent, she knew she'd have to fight to get her seat back. But Curry isn't just fighting against her opponents. She's also fighting against state election laws.
In her latest move, Curry has filed a lawsuit in Denver District Court against Secretary of State Bernie Buescher in a bid to have election workers throughout her district count every ballot by hand to make sure no vote for her is missed. On Tuesday, her attorney Robert Zimsky, of Durango, filed a motion seeking an expedited hearing to resolve the issue before election day.
"We've got to get this thing filed," Zimsky told me. "We can't wait."
The move would mean some 25,000 ballots would have to be counted by hand in Garfield, Eagle, Pitkin, Gunnison and Hinsdale counties.
Buescher has determined that voters supporting write-in candidates must not only write in the candidate's name but also check a box on the ballot. The box alerts ballot-counting machines, which are supposed to separate those ballots for a hand-count.
Curry argues that state statutes say nothing about filling in the box, and that Buescher's rule violates voters' First Amendment rights because it "dilutes their votes" if they failed to fill in the box.
Those votes would be counted only in the event of a recount. Curry wants every ballot hand counted in the first round to avoid a recount.
"The law says that the ballot should count," she said. "Right now, that's not how the secretary of state wants the election run."
Buescher defends the requirement as a common-sense solution to write-in candidates across the state. Curry isn't the only write-in candidate in Colorado, said Buescher spokesman Rich Coolidge, and to treat her differently wouldn't be fair. Write-in candidates are also running for governor and other offices.
"We just don't have the capability to do a statewide hand count," Coolidge said. "That's over two-and-a-half million ballots."
Most write-in campaigns are long shots, but Curry, a three-term incumbent with bipartisan support, said polls show she could beat Republican Luke Korkowski of Crested Butte and Roger Wilson of Carbondale.
"I sympathize with especially Pitkin and Garfield County that are going to have thousands of ballots," Curry said. "I sympathize with the need to use a machine. But on the other hand, the law says those ballots should be counted, whether or not they fill in the box."
Curry previously filed lawsuits challenging the registration date for unaffiliated voters to appear on the ballot and caps on campaign contributions for unaffiliated candidates, which at $200 is half that of affiliated candidates. Curry argued both rules put unaffiliated candidates at a disadvantage.