Secretary of State Scott Gessler has won the latest but perhaps not the last battle over whether ballots should be mailed to inactive voters. Denver District Court Judge Michael Martinez sided with Gessler, who adopted a rule last year blocking clerks from automatically sending mail ballots to inactive voters in city and school board elections in a suit brought by Denver Clerk and Recorder Debra Johnson. Martinez said Denver’s status as a home-rule county did not exempt it from following state election rules. “I think it’s fundamentally an equal-treatment issue,” Gessler said. “The rules and provisions El Paso County uses needs to be the same ones that Denver uses. … You can’t have one county, for instance, that wants to leave the polls open for an hour and another that leaves them open for 20.”
When she filed the suit in September, Johnson said, “The Colorado Constitution and Denver City Charter make it clear municipal elections in the City and County of Denver are regulated at the local level and that the clerk and recorder has exclusive authority to conduct municipal elections.”
Martinez’s ruling follows that of District Court Judge Edward D. Bronfin, who, in January, ruled that state law allows county clerks to send ballots to “inactive failed to vote” voters in mail-in-only elections. In that case Gessler sued Johnson in 2011.
An elections bill pending before the state Senate, however, would make the point moot. House Bill 1303, which has passed the House with the support of Democrats in a party-line vote, would provide mail ballots to all state voters, including those previously considered inactive.