Senate President John Morse
day after their District 11 candidate, Jan Brooks
, was rejected from the ballot
, the Libertarian Party of Colorado
has sued Secretary of State Scott Gessler
— for a totally different matter.
The Libertarians says that Gessler has created unfair and illegal rules for the Sept. 10 recall elections of Senate President John Morse and Sen. Angela Giron. Their biggest objection is to the use of email ballots.
Gessler wrote the new rules following a judge's decision in another legal challenge brought by the Libertarians. In that case, the Party was asking for more time to petition their candidates onto the ballot, saying the state Constitution allowed them a larger window. The judge sided with the Libertarians, throwing the election calendar into chaos, making the widespread use of mail ballots impossible, and making current election law unenforceable.
Gessler was then charged with making new, temporary rules for the recall, including accommodations for out-of-state, overseas and disabled voters who cannot reach the polls. Thus, the creation of email ballots. Now, the Libertarians are challenging those rules.
For Immediate Release
August 28, 2013
Denver, Colorado — The Libertarian Party of Colorado has presented a legal challenge to the temporary Election Rules, including allowance of email voting for the September 10th Recall Election, promulgated by Secretary of State Scott Gessler. Secretary Gessler filed his temporary rules with the Denver District Court on August 24th and requested that the court approve the rules as compliant with the Election Code. The Libertarian Party responded with its objection. A hearing is scheduled today in Denver District Court in front of Judge Robert McGahey, who retained jurisdiction in the Libertarian Party v Gessler et al. for purposes of addressing future controversies regarding the execution of his ruling on the constitutionality of the ballot access question, successfully litigated by the Libertarian Party on August 12, 2013.
The Libertarian Party of Colorado disputes the validity and wisdom of many of the Secretary’s recently promulgated rules, but focuses its current legal challenge on key main points:
1. The unwarranted use of email ballot delivery and return.
2. The violation of the secret ballot requirements of the Colorado Constitution.
3. The use of the wrong section of the election code to govern the conduct of this election and the issuance of rules.
“Our Party cannot stand by and allow Secretary Gessler and the Clerks to use this recall election to start Colorado’s slide down the slippery slope of email/internet voting - a practice that is not accepted anywhere in the U.S. for secure public elections. Thousands of pages have been written by experts agreeing that email/internet voting poses scores of unacceptable risk to the integrity of elections,” said Jeff Orrok, Chair of the Libertarian Party of Colorado.
Orrok notes that in January, the Fort Morgan Times reported Gessler himself stating, "There is talk, but we're not there yet. Frankly, I don't know if we'll ever be.” The Times further reported that Gessler “said that the problems with Internet-based voting included no guarantee of anonymity for the voter and that the system theoretically could be hacked, potentially compromising the election's security.” Orrok, noting the disastrous experiment with email voting for New Jersey voter in the aftermath of Hurricane Sandy, remarked that this nationally watched recall election is no time for an unplanned and unnecessary experiment with voter’s ballots.
Matthew Ferguson, of Matthew C Ferguson Law Firm of Aspen, counsel for the Party, has opposed the Secretary's rules, pointing out that it appears that the wrong statutory framework has been used after Judge McGahey’s ruling to promulgate emergency rules for the recall election. Mr. Ferguson stated, “The Libertarian Party asserts that the use of internet voting is unconstitutional because the voter is entitled to an absolutely secret ballot. This is consistent with the Secretary’s concerns about internet voting expressed in the past. The Libertarian Party has been put in the position of safeguarding the sanctity of secret ballots.” Orrok added that even the delivery of ballots by email to be printed at home and returned by U.S. Mail presents unacceptable risks of fraud and abuse.
The Libertarian Party believes that the unnecessary and confounding problems presented by the temporary rules are a direct result of Secretary Gessler’s failure to recognize that existing time-tested statutes are in place to conduct polling place elections, such as this recall election, and to accommodate absentee and mail-in ballot voters. Rather than referencing the proper statutes for Mail-In and Early Voting in polling place elections, (Title 1, Article 8), the rules inappropriately assume that the election is a modified, ever-changing All Mail Ballot election as detailed in a different article of the statutes.
“Had the Secretary only worked within the existing polling place election statutes, few new rules would have been required given the time-tested statutes in place. Election process changes need prudent study, debate, and consideration to protect the integrity of the most important democratic exercise, “ said Orrok. “Hastily-promulgated rules with limited public oversight invite a flawed election, particularly when established, legislatively mandated statute should control.”
Orrok added that even with the compressed time frames of a recall election, mail ballots may reasonably be delivered to voters who apply for absentee ballots. He stated that the Party believes that the “excuse-based” rules to obtain absentee ballots is subject to eligibility bias, discrimination, and interpretation. “Through our challenge to the unnecessary and illogical rules, we urge voters to take action, and contact their elected officials to express disapproval of the slide down this slippery slope,” he said.