The Sept. 10 recall elections of two Democratic Colorado lawmakers was supposed to be the first test-run of a new election overhaul, passed this year by Democrats, that would have sent mail ballots to every voter. Now, those elections won’t involve any mail ballots at all. After a long day in court, District Judge Robert McGahey ruled in favor of Colorado Libertarians, who’d sued after being denied a spot on the recall ballot because they failed to meet a deadline, put in place by the new election law, to submit petitions within 10 days of the election date being set. McGahey agreed with the plaintiffs that the state constitution — which has, for 101 years, allowed candidates up to within 15 days of an election to submit their petitions — takes precedence over the new and, ultimately, flawed law. “I know what this decision means,” McGahey told the court as he issued the ruling around 7 p.m. Monday night, alluding to concerns from county clerks of escalating election costs and from Democrats who worried that the loss of mail ballots, which can’t be printed and mailed to voters in time if candidate signatures are validated so late, will lower voter turnout.
“I wish I didn’t have to make this decision, but I do,” McGahey said. “The constitution can’t be ignored.”
The argument from the plaintiffs was simple and, it turned out, on solid legal ground: that the constitution trumps conflicting state statutes.
“It says what it says and the minute we start to say it doesn’t say what it says or call it archaic, we start to get into trouble,” said Matt Ferguson, the Aspen attorney hired just this weekend to argue the plaintiffs’ case.
Ironically, Secretary of State Scott Gessler and El Paso County Clerk Wayne Williams, both Republicans who vocally opposed the elections overhaul, House Bill 1303, earlier this year when it was debated at the Capitol, found themselves in the position of defending it in McGahey’s courtroom.