Posted on 11/21/2002 8:15:51 AM PST by 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.
I still think that Beauprez will win this.
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.
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.
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.
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.
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.
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.
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.
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