The fate of Colorado’s historic legislative Recall elections has once again been thrown into the courts, as Colorado Governor John Hickenlooper filed an interrogatory (request for judicial clarification) with the Colorado Supreme Court seeking a ruling on whether the requirements of the Colorado Constitution (Article XXI Section 3) for voting on the Recall question and possible successor candidates are consistent with the U.S. Constitution (specifically, the First and Fourteenth Amendments):
"Colo. Const. art. XXI, § 3 requires an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue. Is this requirement consistent with the First and Fourteenth Amendments to the United States Constitution?"
The question arises from the 2-part nature of the ballot question in Recall elections under Colorado's Constitution. Part 1 (the Recall question) is phrased as a Yes/No question on whether the incumbent subject to Recall should be removed from office; Part 2 (successor candidates) lists candidates who filed to succeed the incumbent IF (and only if) the Recall question succeeds (Note: the incumbent CANNOT be among the list of potential successors):
There shall be printed on the official ballot, as to every officer whose recall is to be voted on, the words, "Shall (name of person against whom the recall petition is filed) be recalled from the office of (title of the office)?" Following such question shall be the words, "Yes" and "No", on separate lines, with a blank space at the right of each, in which the voter shall indicate, by marking a cross (X), his vote for or against such recall.
On such ballots, under each question, there shall also be printed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled; but no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. [Emphasis added] (Colorado Constitution Article XXI Section 3)
The request for interrogatory arises from the (apparently recently-discovered fact) that similar language in the California Constitution related to Recalls was ruled unconstitutional by the United States District Court for the Southern District of California in a 2003 case (Partnoy v. Shelley, Interrogatory Exhibit A) involving the Recall of California governor Gray Davis.
In that ruling, the (CA) court held that the similarly-worded requirement to count votes for successor candidates only when votes were also cast on the Recall question violated the First and Fourteenth Amendments to the U.S. Constitution.
The Colorado Supreme Court ruling is unlikely to substantially alter the course or conduct of the Recall election, since the Interrogatory does not call into question the 2-part form of the Recall ballot itself, merely the issue of whether a vote in Part 1 (Recall) is a necessary precondition ("prior participation") for counting any votes cast in Part 2 (successor candidates).
At most, an affirmative ruling would impact the accompanying instructions for voting the ballot, and would obviously modify the process for counting votes cast for successor candidates if Recall succeeds.
A Colorado Supreme Court decision to strike down Colorado's constitutional language on Recall ballots is far from a sure thing, however; the case law precedent is weak (a single ruling by a single District Court judge in another state and federal court circuit - the Ninth - NOT a ruling by the Ninth Circuit Court of Appeals, as erroneously reported elsewhere). Moreover, as correctly noted elsewhere, because the ruling occurred in a different federal judicial circuit (California is in the Ninth Circuit, Colorado is in the Tenth) it is NOT binding judicial precedent (although the Colorado Supreme Court will certainly take judicial notice of, and consider, the California Recall ruling in its deliberations).
In any case, having the Colorado Supreme Court issue a ruling on this potential issue BEFORE the elections take place is prudent, as any challenge on this basis filed AFTER the election would certainly result in a (costly) recount, and could possibly lead to "the invalidation of the entire election based on the distribution of faulty ballots" - a "hanging chaos" best avoided. (Interrogatory at p.4)
The Colorado Supreme Court has set a deadline for all interested parties to file briefs by tomorrow morning, Tuesday, August 27. A ruling could occur as early as Tuesday, but at least by Friday August 30th (when the ballot is due to be certified) at the latest.
Read more about legal challenges in the Colorado Recall elections:
- Interrogatory Concerning the Constitutionality of Certain Provisions of Article XXI, § 3
- Interrogatory Exhibit A
- Interrogatory Exhibit B
- Another Recall Legal Question (WatchdogWire, 26 August)
- Hickenlooper puts new wrinkle in Morse, Giron Recall elections (Colorado Springs Gazette, 26 Aug)
- Colorado Recall election rules finalized (24 August)
- Colorado Recall lawsuit success triggers new rules for historic Colorado Recall elections (21 August)
- Colorado Supreme Court rejects appeal to Colorado Recall lawsuit ruling – Recall to go forward as polling place election (16 August)
- Denver District Judge upholds Constitution over election law statute in Colorado Recall legal challenge (12 August)