by Forrest Reilly, Contributor
Coloradoans like voting. Colorado had the third highest voter turnout in the country during last year’s election, with seventy-one percent of its voting-eligible population casting ballots. Republicans and Democrats alike praised the smooth, efficient election process. Nonetheless, in the wake of the election the Colorado legislature passed a bill designed to further streamline and modernize Colorado’s elections. In broad strokes, the new law allows voters to register in person until election day, all ballots are delivered to voters through the mail, and voters who skip a general election will no longer face additional obstacles to voting – such voters were previously termed “Inactive Failed to Vote” (IFTV), but that designation is now defunct. IFTV voters in previous years had to specially request that they receive their mail ballot or they would not receive one; the courts effectively suspended this provision last year when a judge threw out the Colorado Secretary of State’s suit filed against Pueblo County Clerks to enjoin them from sending unsolicited ballots to IFTV voters.
Not everyone is on board with the new law, however, and Secretary of State Scott Gessler argues in an op-ed that the legislature did not think through all of the consequences of key provisions. Gessler states that the law suffers from accelerated implementation, an overdependence on mail ballots, and vulnerability to voter fraud. He further rests the blame on the Democratic Party, which currently controls the Governorship and Colorado State Senate. As evidence of rushed implementation, Gessler points to the chaos of Colorado’s recent recall elections in which two Democratic State Senators were actually unseated. The content of the law may not be entirely to blame, however. This was Colorado’s first recall election in history, which likely adds a new layer of confusion to the difficulties with implementing a brand new election procedure. Gessler may be correct that rushing the implementation did not help, but a shaky first implementation in a surprise election does not necessarily entail deep-seated problems with the law itself.
Gessler’s second contention – that the new law requires mail ballots, which came in late in the recall election and depend on the shrinking postal service – is more elusive. While the law states that all elections will be conducted with mail ballots, it also requires that districts have a minimum number of voter service and polling centers. These centers serve as a drop off location for ballots, voter registration centers, provisional voting centers, and even provide replacement ballots to registered voters. In fact, this recall election involved none of the mandatory mail ballots at all due to a conflict between the Colorado Constitution and the new law as to how many days before the election a candidate may be added to the ballot – the constitution allows candidates to jump on to the ballot fifteen days before the election, while the law only provided for ten days. This expensive, confusing mail ballot kerfuffle certainly strengthens Gessler’s prior point that the Colorado government rushed implementation of the new law, but does not suggest any material problem with the law itself.
Gessler’s final contention is perhaps the most serious. He suggests that the new law opens Colorado up to rampant voter fraud. Voters previously had to reside in Colorado and the precinct in which they intended to vote for at least 30 days before the election in order to register; the new law requires 22 days of Colorado residency and eliminates the requirement that potential voter have lived in a particular precinct for any amount of time before the election. Gessler does not explicitly describe how this provision will open the state to voter fraud, but the implicit argument is that people will find ways to influence the results of other precincts though transient voting due to the lack of time in residence requirement. However, this ignores that the law still requires a legal residency in the precinct, and the voter service and polling stations are equipped to cross check a voter’s residency and determine whether they have already submitted a ballot in another precinct. Supposing a voter had a legal residence in more than precinct and strategically chose to vote in the precinct where her vote was more essential, it’s not clear that anything fraudulent has occurred. Voter fraud has been a platform priority for Gessler; in August he ordered an investigation of seventeen persons suspected of voting in last November’s election as non-citizens – all suspects were found to be U.S. citizens and were cleared of wrongdoing by Boulder District Attorney Stan Garnett.
This new law has only been implanted in one election thus far, and it was the state’s first recall election at that. Gessler may be right that Colorado was overly hasty in implementing the law for the recall election, but it seems equally hasty to demand legislative action to repeal a law which we have yet to see entirely in action. Maybe this law is all grit and no gold, but a single election is not a trend, and Colorado knows that panning for gold takes a little time.