The ruling at a glance (update on CO 7th district)

The Rocky Mountain News (slightly left rag) ^ | 21 Nov 2002 | Unknown

[taxcontrol]

What the ruling said

Denver District Court Judge William Robbins issued a 16-page ruling a day after hearing arguments from the candidates, the attorney general's office and clerks from Adams, Arapahoe and Jefferson counties. Highlights:

• "The right to vote is a fundamental right of the first order."

• "Equal protection applies to the manner of exercise of the right to vote, and a violation of equal protection of the laws exists where there has been arbitrary and disparate treatment of members of a jurisdiction's electorate."

What the ruling means

• Jefferson County: Ballots not affected by the ruling.

• In Adams County, 55 ballots will be added back into the total of roughly 1,000 provisional ballots cast in the district.

• In Arapahoe County, where 960 provisional ballots were cast, officials are checking to see how many, if any, of the 108 initially rejected ballots might need to be included in the total.

What's next

• Final results: Colorado Secretary of State Donetta Davidson is expected to release results in the 7th Congressional District today.

• Appeal: All parties have three days to appeal to the Colorado Supreme Court. Both the Beauprez camp and the Colorado secretary of state's office said they are weighing their options.

[taxcontrol]

We should know by tonight on how the 7th will break. Currently the Republican (Bob Beauprez)leads Feeley by 386 votes. A recount is mandatory if the difference is less than 1/2 of 1% so we will see a recount in this one.

I still think that Beauprez will win this.

[Salvation]

I was not aware that there still were some undecided races.

[Morgan in Denver]

Beauprez should win and I'm glad the GOP in CO is not making too big an issue of the provisional balloting. Jefferson County probably did not purposely make any errors but I have to admit the standards should be uniform through all counties. It is interesting to note the CO legislature will revisit this district as to how well redistricting went with the idea of "adjusting" it for future elections.

[taxcontrol]

Yep, there are still a couple still waiting to be decided.

The 7th is a "new district". Colorado gained one this year. Politics being what they are, the district was drawn to be 1/3 Dem, 1/3 Independant, 1/3 Repub. Still think it will break for the Repubs.

They hold a 380 vote lead and there are only about 160 "disputed" ballots. Some of these may still be not counted due to other disqualifications. I suspect that the provisional ballots will only bring 150 votes into play. Even if they all went to Freaky, that would not be enough to overcome the margin.

[SolidSupplySide]

"Equal protection applies to the manner of exercise of the right to vote, and a violation of equal protection of the laws exists where there has been arbitrary and disparate treatment of members of a jurisdiction's electorate."

Absolutely correct application of the law to this case.

IMHO, you can identify partisans by comparing this case to Bush v. Gore:

If you think Bush v. Gore was correct and this one is wrong, your goal is raw power for Republican candidates.

If you think Bush v. Gore was incorrect, but this one is correct, you support raw power for the Democrats.

If you think both cases were decided correctly, you support the Constitution.

I don't know of anyone who thinks both cases were decided incorrectly.

[Badger1]

I don’t have a problem with the ruling made in this case, other than the law states that provisional ballots have to be marked with a reason why the voter is voting provisionally. Jefferson County did not include this check off box on its ballots, and the other two counties did. Jefferson County counted all provisional ballots, and the other two counties disqualified ballots that did meet the requirements of the law. This ruling has the effect of changing election law after the election, but it does provide for equal protection for all the voters between the three counties in question. Colorado needs to change its election law so that in the future, all counties have the provisional ballot applications so this does not occur again.

[Badger1]

That should be -

all counties have the SAME provisional ballot applications so this does not occur again.

[SolidSupplySide]

This ruling has the effect of changing election law

No it doesn't. The previous ruling changed the law when it told Jefferson County to count all provisional ballots despite the fact that reasons for voting provisionally were unclear. This ruling merely applies the same treatment to provisional voters in Adams and Arapahoe counties.

This case is so similar to Bush v. Gore it surprises me that people don't see it. SCOTUS did not review the fact that the FLASC changed election law. SCOTUS merely stated that everyone should be treated the same under the new law created from the Florida bench.

[Rogle]

In New Mexico

Ex-Mayor Ahead by 7 Votes; GOP Incumbent Vows Recount

If Atkin's challenge fails and Swisstack, a Democrat, is declared the winner, it would boost the Democratic majority in the House, giving the chamber 43 Democrats and 27 Republicans.

Swisstack said after the meeting that he is elated. "A win is a win even if it's by seven votes, and I'll take it," he said. "I think the election officials and the canvassing board went above and beyond the call of duty to make sure the numbers were accurate. And I'm comfortable the results will be able to withstand scrutiny."

The certified results now go to the Secretary of State's Office for the state canvass.

Reasons for Atkin disputing the election results stem from a 73-vote discrepancy between two absentee voting summaries.

The first one, which had a signature sheet signed by members of the precinct board attached to it, gave Atkin a 67-vote lead. The second summary, which wasn't signed, eliminated 73 of her votes and none of Swisstack's giving him a six-vote lead.

When absentee-in-lieu of votes were counted on Nov. 8, Swisstack gained two votes and Atkin gained one, leaving Swisstack with the seven-vote lead.

Ernie Marquez, the Ink Impressions technician who was updating the elections database and creating the voter summaries after the polls had closed on Election Day, said Friday the 73-vote discrepancy was a data entry error that happened towards the end of more than 24 hours of continuous work.

"The error occurred more than likely at the time when I was entering (voting results from the machine and tally sheets). I can't tell you when I transposed the number but I did," Marquez said. "I looked at the report and I noticed that it didn't look right. I had two legislative districts in the same report, which was wrong."

"I said to Eddie (Gutierrez) that we needed to hold off ... and we rechecked our figures and that was when I noticed the error," Marquez said.

Gutierrez said mistakes happen and that's why there are canvasses.

"We don't have an extra 73 votes to count," he said. "When all is said and done, I believe the numbers are correct."

In this race there are a lot of twist and turns. Not only is there a 73 vote trun around but there was also votes that were miraculously found that this story does not mention.

[PatrioticAmerican]

The good news is that Donnetta Davidson is a Republican and a true red-blooded American in every sense, and she is in charge of this. It will be a fair count.

[alwaysconservative]

"If you think both cases were decided correctly, you support the Constitution."

Yay! I passed the test! But I also can't say that I'm not pleased that the Republican looks likely to win anyway. I wonder what "the media" will make of this decision if the Republican maintains his lead.

[Badger1]

The previous ruling changed the law when it told Jefferson County to count all provisional ballots despite the fact that reasons for voting provisionally were unclear.

Both rulings had the effect of changing the election law. The Secretary of State's ruling was an attempt to apply the law as closely as possible to how it was written. The Judges ruling was an attempt to apply the law as the Supreme Court interpreted it in Bush v. Gore. In this case, the only way to apply the law exactly as written would have been to throw out all the provisional ballots in Jefferson County, which is obviously unfair. Again, I have no problem with the Judges ruling, but you have to admit that making the counties who followed the law as written now go back and count ballots that violate the law as written is a de-facto change in the law. In my opinion, it was probably the right thing to do in this case, but the law needs to be clarified so that this type of thing does not happen again.

[SolidSupplySide]

Question decided in Ruling #1:
Must provisional voters declare reasons for doing so? Answer: No

This changed Colorado law which up until that point required provisional voters to declare reasons.

Question decided in Ruling #2:
Does the new law created in Ruling #1 apply to all counties in Colorado? Answer: Yes

This simply applies the new law created in Ruling #1 statewide. This ruling was required under equal protection rights guaranteed under the Constitution. Ruling #2 did not change the law as decided in Ruling #1.

[Badger1]

Question decided in Ruling #1:
Must provisional voters declare reasons for doing so? Answer: No
This changed Colorado law, which up until that point required provisional voters to declare reasons.

Question decided in Ruling #2:
Does the new law created in Ruling #1 apply to all counties in Colorado? Answer: Yes

I think we are arguing the same side here, but we are disagreeing on the technicalities.

My take would be -
Question decided in Ruling #1:
Must provisional voters declare reasons for doing so?
Answer: Yes, if the provisional ballot included the provisions for doing so as required by state law.

Question decided in Ruling #2:
Does the new law created in Ruling #1 apply to all counties in Colorado? Answer: No new law was created, but equal protection rights guaranteed under the Constitution were violated.

So to guarantee equal protection rights guaranteed under the Constitution, all the provisional ballots should be counted.

[r9etb]

It is interesting to note the CO legislature will revisit this district as to how well redistricting went with the idea of "adjusting" it for future elections.

I live in the 11th Senate district -- scene of the dirtiest campaign I've ever seen. It was a swing district for control of the state Senate, and the Denver lefties poured huge bucks into the race. (The Republican won, BTW...)

There's another election in the same area -- House 18 -- that is separated by 75 votes, and hangs on provisionals.

[SolidSupplySide]

Badger, you've got to understand that the law has changed.

Let's assume there is a voter in Adams County who voted provisionally without a good reason in 2002. He does the same thing in 2004. Based on our knowledge of Roe v Alabama, will his vote count in 2004 if the legislature does not act in the interim? If his vote does not count in 2004, we have a new equal protection problem.

[Morgan in Denver]

It will be interesting to see how the whole Colorado election process is affected by these close votes and Democrats out of power, and willing to do anything to win.

[Badger1]

SolidSupplySide, your refrence to Roe v Alabama would be an argument against counting the absentee ballots that did not have the check off box for stating the reason the voter wanted to cast a provisional ballot. Roe v Alabama states that "Fundamental fairness requires election officials to refrain from changing the rules for counting ballots once the election is over." Using this reasoning, all the provisional ballots in Jefferson county should have been discarded. I do not believe this would have been the right thing to do, and I don't think you do either.

The Colorado Secratary tried to reconcile the law with the situation by applying the law as written as closely as possible. However, this brought up equal protection arguments, allowing the judge to rule that all provisional ballots be counted so that all the votes would be treated equally.

As I said before, the Colorado Legislator needs to modify the law and require that all provisional ballot applications be exactly the same throughout the state so this situation does not occur again.

[SolidSupplySide]

Here is my thinking:

1. Colorado law no longer requires a reason for voting a provisional ballot. This was the first case (Ruling #1) decided in Jefferson County. I have never passed an opinion on this case, and I'm glad I didn't have to. But suffice it to say, it is the law of the land in Colorado.

2. The ruling we have been discussing (Ruling #2) was necessary. It says that Colorado laws apply equally in all counties. For some reason, you oppose this ruling.

3. My statement regarding Roe v Alabama was with respect to the 2004 election. Since the law in Colorado has now been interpreted that no reason is necessary to vote provisionally, it will apply in the 2004 election. If reasons *are* required in 2004, then there is a new equal protection problem because the rules will have changed again.

Reading what I had written, I think it is disingenuous of you to apply my statement of Roe v Alabama to the 2002 case. Furthermore, I don't think Roe v Alabama applies to Ruling #2. While it may apply to Ruling #1, I have passed no judgment on Ruling #1. And even so, I don't think the errors of JeffCo officials should have prevented otherwise lawful provisional votes to be counted (you apparently do because you say they should have been "discarded"). But because of the errors of JeffCo officials, there was no way to determine which provisional ballots were legit and which weren't. The judge in Ruling #1 had a hard time.