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Jonathan Brater

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A Win for Voters Is Gessler's Second Loss

Posted: 10/10/11 03:32 PM ET

Across the country, legislators and political operatives seem determined to make it more difficult for American citizens to vote. Since January, more than a dozen states passed a variety of different laws and executive actions that will make it far more difficult for millions to vote. Seven states, including Texas and South Carolina, will now require voters to present specified government-issued photo IDs to vote. Florida has gone after organizations like the League of Women Voters, threatening them with huge fines if they try to help register citizens to vote unless they comply with a new set of byzantine state rules. Georgia and Arizona are trying to knock down the Voting Rights Act, the most successful piece of civil rights legislation, in a court challenge. And Colorado Secretary of State Scott Gessler made headlines with the false claim that thousands of non-citizens were voting in Colorado. Last week, Secretary Gessler was at it again. This time he asked a court to essentially freeze the Denver electorate to those who voted in 2010. The court refused.

Colorado gives counties the option of conducting certain elections by "mail ballot." In those elections, there are no traditional polling places; instead, citizens vote by mailing in ballots sent to them by the state. Colorado is holding such an election this November, and the Denver County Clerk and Recorder had planned to take the unremarkable step of sending ballots to all registered voters in the County, as she has for the last five election cycles. Secretary Gessler sued the Denver County Clerk and Recorder to make her stop, arguing that she may only send ballots to voters who voted in the last election. This move, had it prevailed, could have kept thousands of eligible and registered Colorado citizens from participating in this November's elections, for no good reason.

Secretary Gessler's position is that mail ballots should be sent only to voters who voted in the last election, or to those who contact the County Clerk in writing or show up in person at the election office to specifically tell the county that they would like to receive a mail ballot. This could have effectively prevented thousands of Denver residents who would otherwise vote from doing so -- in the last Denver mail-ballot election, 6,138 of the 55,023 voters who did not participate in the prior election voted when mail ballots were sent to them. Under Secretary Gessler's plan, all of them would have been out of luck. Secretary Gessler claims this step is necessary to prevent "fraud," but there is absolutely no factual or logical connection between skipping a single election and voter fraud.

There are a variety of reasons why someone might not vote in a given election, and they should not be penalized for so doing. In fact, under the U.S. Constitution, a person's decision not to vote is protected political expression. Yet Secretary Gessler would penalize those who choose to stay home by taking away their right to vote unless they go through a burdensome administrative process to regain a right they never surrendered.

If it sounds strange that Colorado's secretary of state would go to such lengths to stop citizens from voting, remember that this is the same secretary of state who has been trying to make it harder to vote, and justifying his efforts with dubious claims of voter fraud, ever since taking office. He submitted documents to Congress claiming that 11,805 non-citizens were registered to vote in Colorado. This allegation was debunked, but nevertheless Secretary Gessler pressed -- unsuccessfully -- for the Colorado Assembly to enact a burdensome "proof of citizenship" law, which would have required that registered voters provide citizenship documentation (which many citizens don't have and which is expensive to obtain) if they wanted to vote. Ultimately, his proposed law was rejected by the legislature. This time, he took on vote suppression on his own.

On Friday, a Colorado state court denied Secretary Gessler's attempt to keep these Denver County citizens from getting ballots. The court recognized that the right to vote is fundamental, and that Secretary Gessler's efforts would seriously harm voters. But with the 2012 Election on the horizon, let's hope he will discontinue his war on voting -- and if he does not, that those committed to ensuring all eligible can vote continue to succeed in battling back.