The Colorado Supreme Court rejected an appeal by Democrats (attorney Mark Grueskin and Pueblo County Clerk & Recorder Gilbert Ortiz) seeking to overturn Monday's ruling by Denver District Court Judge Robert McGahey in favor of plaintiffs (led by the Colorado Libertarian Party, LPCO) advancing a constitutional claim to ballot access in Colorado’s historic Recall elections.
The Colorado Supreme Court ruling ("Order of Court") resulted from a somewhat unusual 3-3 split vote (Chief Justice Bender, joined by Justices Marquez and Coats voted to review and stay [delay] the district court ruling, while Justices Boatright, Eid, and Rice voted to decline review and deny the request for stay; Justice Hobbs did not participate). Since a majority is required to accept and hear the appeal (grant certiorari), the appeal failed. From the Order of Court:
IT IS ORDERED that by operation of law pursuant to C.A.R. 35(e), the decision of the district court in this matter is final and is not subject to further appellate review.
IT IS FURTHER ORDERED that the request for stay of proceedings is DENIED.
Thursday's Colorado Supreme Court ruling is the latest in a series of courtroom losses for the Colorado state senators (John Morse, D-Colorado Springs and Angela Giron, D-Pueblo) targeted for a Recall vote (beginning with their failed attempt to derail the Recall effort by challenging the petition format).
The ruling not only eliminated the last possibility of stopping or delaying the Recall elections (set for September 10th), but also ensured that the elections would be conducted as polling-place elections, instead of the all-mail-ballot procedure (generally held to favor incumbents) resulting from hastily-enacted legislation (the all-mail-ballot statute HB13-1303 ironically co-sponsored by the Recall targets, state senators Giron and Morse) passed AFTER the Recall efforts were already under way.
Meanwhile, Colorado Secretary of State Scott Gessler moved forward with preparing for the Recall elections, releasing draft rules for conducting the Recall votes as polling-place elections following a public hearing late Thursday afternoon (public comment on the rules was due Friday afternoon)
Ultimately, distilled down to its essential elements – a conflict between the clear language of the Constitution versus the requirements of recently-enacted election legislation – an appeal was unlikely to succeed on the merits. Judge McGahey’s choice, and ruling, was clear and perhaps inevitable:
the Constitution wins.