Debunking Nonsense About Colorado Election Law (Again)

Wayne Laugesen, editor of the Colorado Springs Gazette.

Yesterday, Colorado Springs Gazette editor Wayne Laugesen published an editorial demanding a special session to "fix" the election modernization bill passed by the General Assembly this year, House Bill 1303. Republican opponents of this new law, which was written in large part by county clerks from both parties, have made a range of highly dubious claims about this bill, from warnings that it would facilitate "gypsy voting" by nonresidents to the bizarre assertion that ballots might arrive "from Chicago" and be legally cast in Colorado elections.

Jon Caldara of the right wing Independence Institute went so far as to cast a ballot in the recent Senate District 11 (Colorado Springs) primary, even though he has lived in Boulder for nearly 30 years. As we've explained based on sound legal opinions we've heard, Caldara's logic is fundamentally flawed, and he has exposed himself to criminal prosecution by falsely affirming his "residence" in Colorado Springs. It seems like part of the purpose of Laugesen's silly editorial is to run cover for Caldara's election fraud, but he doesn't even manage that as we'll explain.

Here are some of the major claims made by the Gazette yesterday about Colorado election law, with their debunking. We hope that at some point journalists will stop allowing this nonsense to be uncritically repeated by their outlets, to include their editorial boards:

The new law undoes traditional checks and balances that have kept elections fair. Gone are assurances that only lawful residents of a jurisdiction get to vote in an election. Before HB1303, only the tinfoil hat crowd worried much about election fraud. Today, with HB1303, it's a legitimate concern…

Now first of all, we're pretty sure Laugesen just accused Secretary of State Scott Gessler and a whole lot of other Republicans who do indeed "worry about election fraud" of being members of the "tinfoil hat crowd!" Setting that aside for a moment, Laugesen is wrong–House Bill 1303 does not eliminate "assurances that only lawful residents of a jurisdiction get to vote in an election." Voting fraud is today–and always has been–a felony. Same day registration doesn’t remove any checks and balances, and actually isn't all that new. As the Secretary of State's office itself explained, the law allows voters to cast a ballot after they have already moved to the district and their address is verified.

We know the law can be abused, which is obvious to anyone who reads it. Any question about the biggest flaw in HB1303 was eliminated when Jon Caldara, a Boulder resident and president of Colorado's Independence Institute, cast a blank ballot in the District 11 recall to make a point.

You might recall during the debate over gun safety legislation in the General Assembly this year, a key contention by opponents was that "criminals don't care about laws." This argument always dumbfounded us, because it's a completely ridiculous tautology–of course criminals "don't care about laws," that's why they're criminals. But here we have one of the same people who made this ridiculous argument, that criminals don't follow laws, calling for–wait for it–stricter election laws! Because–wait for it–it's possible to break the law! We agree Caldara is a great example of the problem of people breaking laws.

Oops.

That was a high-profile stunt, and authorities could do nothing to stop it because of HB1303.

If someone swears under penalty of perjury that something is true, generally that sworn statement is accepted by whoever is asking for it. If it is determined that a person lied under penalty of perjury, they then can be prosecuted. That didn't change with House Bill 1303. Caldara committed a felony by pretending to move to Colorado Springs and casting a ballot in the recall election. As we've explored in detail, it was obviously never Caldara's "intention" to move to Colorado Springs. So he committed a felony. The threat of felony prosecution is now, and has always been, the principal deterrent to election fraud. 

Traditionally, one had to have roots in a community before voting in it. Not now. The wording below clearly shows that one can show up in a jurisdiction on the day of an election and vote with nothing more than an "intention" of making the place a permanent home…

This gives almost any Coloradan – especially those among us who are willing to lie – an easy opportunity to vote in local elections.

We're kind of amazed to see such unthinking nonsense coming from the editor of a major newspaper. Folks, we hate to break this to you if you didn't already know it, but people who are "willing to lie" can vote wherever they want. They are committing a felony if they do, just like they were before House Bill 1303. If this seems obvious to you, it's probably because you are smarter than a proverbial fifth grader.

As for "roots in the community?" Before House Bill 1303, a voter had to live in the district they voted in for a whopping 29 days. Under House Bill 1303, it's 22 days resident in-state, a person must have already moved to the district, and their intention must be to remain in the district. Now, it's possible that Laugesen is referring to some other kind of long-ago "tradition," back in the days of poll taxes or literacy tests? But if he's discussing the laws Colorado has used for elections since well before House Bill 1303, the residency requirement was always 29 days. We have no idea what kind of "roots in the community" one can establish in 29 days, but we'd say probably not very damned much.

Want to pass or kill a local school tax? Bring in voters willing to state an "intention" to move. Want to undo a municipal gun law? Ask impassioned gun-rights activists to show up and state their intentions to move.

In a hurry? Run a stop light. Want more money? Rob a bank.

Please remember that there are consequences if you do.

Even if county officials can prosecute, they have no good means of detecting such activity.

Again, this is just not true. Pueblo County Clerk Gilbert "Bo" Ortiz was able to show inquiring reporters that there had only been 39 same-day registrants in the SD-3 primary out of some 11,000 votes that had been cast by that time. According to Ortiz, it's no problem to track these registrations, and anyone he suspects of voter fraud will be turned over to the local distract attorney. Laugesen says that such prosecutions can't "undo the damage" of voter fraud, but how could they ever? How can you un-commit any crime?

This concludes today's lesson in remedial critical thinking, which unfortunately newspaper editors are not required to pass. We'll be happy to recount this as many times as necessary, but we hope–probably in vain–that the Wayne Laugesens of the world get their facts straight first.

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The Return of Scooter McPlagiarist! (Election Pending)

Scott “McPlagiarist” McInnis.

According to the Grand Junction Sentinel's Emily Shockley today (story behind the paywall), former U.S. Representative, brief 2008 candidate for U.S. Senate, and 2010 GOP gubernatorial candidate Scott McInnis has announced a return to electoral politics–at a much lower level than before, seeking the seat on the Mesa County Board of Commissioners set to be vacated next year by term limited Republican Steve Aquafresca. McInnis will reportedly run against another Republican, former Grand Junction Mayor Gregg Palmer, among other candidates who may get in the race.

The Sentinel's Gary Harmon reported in July about McInnis' anticipated return to politics:

“I missed helping people out,” McInnis said of what prompted him to consider a return to elected politics.

We assume the people McInnis hopes to "help out" include fellow Republicans, but there are plenty of reasons they might think the best way for McInnis to help would be to stay away.

As our longtime readers remember well, McInnis lost the GOP gubernatorial primary in 2010 after revelations that a series of essays on water policy and history written for the Hasan Foundation and attributed to him were extensively plagiarized, including material directly lifted without attribution from articles written by a Colorado Supreme Court justice. McInnis' loss to unqualified minor candidate Dan Maes following his plagiarism scandal was a part of a wide-ranging breakdown for Colorado Republicans in an otherwise Republican wave year. It also allowed now-Gov. John Hickenlooper to skate through that election without having to make a serious effort.

The following year, McInnis escaped professional sanction by the state Office of Attorney Regulation, an outcome that was dubiously represented as "exoneration"–the defrauded party, the philanthropic Hasan family, certainly didn't consider McInnis "exonerated."

For our part, we consider the Ward Churchill amalgam we Photoshopped up in July of 2010 (above right) to be some of our very best work, and we look forward to breaking it out of cold storage–much like McInnis himself.

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Recall Election Post-Mortem: Ballots, Bitterness, and Bloviation

An unexpectedly brutal recall special election night for Democrats has left observers scrambling to recalculate the Colorado political landscape. With a headline-grabbing victory in hand, beleaguered Colorado Republicans are (understandably) looking to capitalize with an eye toward an electoral turnaround in 2014. Beneath the headlines, there are some underlying factors responsible for last night's success that are indeed warning signs for Democrats going forward–but, as we'll explain, also teachable moments. And Republicans should not feel overly buoyant about last night's results, as much of what happened can't be replicated. Here's our initial read of some key factors: 

Balloting problems can fully account for Sen. John Morse's margin of defeat. Litigation from a third-party candidate, who in the end failed to garner the needed signatures to join the race, prevented the normal delivery of mail ballots in this election. The situation was further compounded by limited voting hours and locations set up by El Paso County Clerk Wayne Williams. Early voting locations in SD-11 opened days after those in Pueblo, and some as centers, such as liberal Manitou Springs, didn't open until Monday.

The preliminary tally as of this morning has Morse trailing by a mere 343 votes to Senator-elect Bernie Herpin. But more telling is the stark difference in the total number of votes cast in the SD-11 recall election versus SD-3 in Pueblo: Over 35,000 in Pueblo compared to fewer than 18,000 in Colorado Springs. At least some of that gap must be attributed to impaired access to the vote in El Paso County.

Pueblo Democrats have a lot to answer for today. The unique characteristics of the blue-collar Democratic stronghold of Pueblo caused some concern, as we touched on a few times about how Democratic infighting could result in trouble for Senator Angela Giron. That said, the modeling by Democrats did not forecast the crushing loss she suffered last night, and field strategists on the ground did not detect the Democratic votes against Giron that contributed to her defeat yesterday. 

The transpartisan pull of the gun issue is almost certainly a factor, but there's more to this story that involves personal conflicts between Giron and other Pueblo Democrats. We're not making any judgments about who may be right or wrong in such infighting. The problem for Giron's detractors today is that nobody outside Pueblo gives a crap about their petty squabbles–we simply want to know why this Democratic stronghold could not defend their state senator. We wouldn't want to be the ones trying to explain today why they as Democrats sat this out, or worse.

Democrats fought the message war in these recalls with one hand tied behind their backs. There was a strategic decision made early on by Democrats and third party recall opponents to avoid the subject of guns as much as possible during the defense of Morse and Giron. This was not a decision made lightly, after polling clearly showed how much the issue agitated conservatives while contributing relatively little to motivating the Democratic base. But what Democrats rejected, or at least didn't account for for in this strategy is one inexorable fact: the recall elections were always about guns, and no amount of denial could change that.

As a result, Democratic messaging tended to dance uncomfortably around what everyone following the recalls knew was the central issue. News reports repeatedly zeroed in on the fact that the issue was not being mentioned in pro-Democratic ads. Part of this was skittishness left over from the long and vicious debate over the gun safety bills passed in the Colorado legislature this year. Democratic attempts to strengthen their message on guns during the session frequently met with gaffe-riddled disaster. The media's coverage of the issue has ranged from incompetent to openly hostile. And of course, there was a long list of positive accomplishments unrelated to guns, and attacks on opponents, that it was hoped would motivate the Democratic base to get out and vote.

But in the end, avoidance of the unavoidably central issue confronting Senators Morse and Giron contributed to their defeat. One of the best indicators of Democratic messaging failure on the issue of guns is recent polling that shows Colorado voters dislike the amorphous concept of "gun control," but support the bills actually passed by the legislature this year. That disconnect, exploited and widened by pro-gun misinformation, is a major reason Giron and Morse were recalled yesterday.

These recalls are likely the high water mark of the latest Colorado Republican "comeback." The ability to pour disproportionate resources into two state senate districts to win recall special elections does not automatically portend general election success for Republicans in the future. For one thing, it was already the case before these recalls that Democrats felt they had accomplished their objectives with regard to gun safety. Especially now, it's a safe bet there will be no push next January for more gun legislation. The single-issue anger over these new laws will subside now that the gun lobby has extracted their pound of flesh, and the issue won't be salient in November of 2014 the way it is today.

The recalls also continue a trend of hard-right candidates being not just elected, but placed in highly visible roles by the Colorado GOP. What we hear about Senators-elect Bernie Herpin and George Rivera suggests their time in office will be quite memorable, adding even more color to a Senate caucus already blessed by the likes of Sens. Vicki Marble and Ted Harvey. Again, polling shows that statewide, the view of these recalls is very different than the voting results in these two districts. If Republicans interpret these results as an excuse to delay getting their public embarrassments under control–or worse, create new ones–they'll be worse off in the long run.

No Democrat should be under any delusions about what happened yesterday. It was a victory by the gun lobby and longsuffering Colorado Republicans, but it was also a defeat for Democrats worsened by avoidable aggravating circumstances–only partly cushioned by the fact that two of the four recalls ended in defeat before they began. The messaging failure we discussed above was perhaps inevitable as soon as Democrats lost control of the narrative around gun safety during the legislative session. In all the years we've been involved in politics, we've never seen an issue successfully managed by avoidance–but we do see it unsuccessfully tried an awful lot.

We'll have much more to say about the lessons of this historic–for good or ill–election in the coming days.

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Recall Election Night Open Thread

UPDATE 10:35PM: Senator Angela Giron taking the stage to concede defeat to GOP opponent George Rivera. Trailing 56-44% with most precincts in.

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UPDATE 9:50PM: After a significant shift following ballots counted in conservative Pueblo West, Sen. Angela Giron now trailing 57-43%. Experts caution that many solidly Democratic areas of Senate District 3 not yet reporting.

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UPDATE 9:30PM: Senate President John Morse concedes defeat to Bernie Herpin.

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UPDATE 8:15PM: Another reminder for local and national media covering the results: the NRA and RMGO have already failed at two recall attempts earlier this summer. We'd hope that media coverage won't miss this important point, because the context of the overall recall effort is a critical piece of the story.

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UPDATE 7:50PM: In Senate District 3, very early numbers show Sen. Angela Giron winning with 69%.

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UPDATE 7:30PM: with 15% in, Yes to recall John Morse: 6751 52.18% No: 6186 47.82%.

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"Moral courage is a rarer commodity than bravery in battle or great intelligence."

–Robert F. Kennedy

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Recall Special Election Day Open Thread

"Every election must have a bogy man. If you haven't got a programme, a bogy man will do."

–Aneurin Bevan 

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Jon Caldara, Colorado’s New (And Maybe Only) Election Scofflaw

Jon Caldara.

?

The Gazette's Megan Schrader reports from Colorado Springs yesterday, where Independence Institute president Jon Caldara committed an act Democrats insist is a felony under Colorado election law:

Caldara lives in Boulder but attested a Colorado Springs address was his permanent residence in a sworn affidavit.

"It is easy to move voters around," Caldara said Saturday morning after casting a ballot he left blank at the Garden of the Gods voting center. "The whole purpose of this was to finally show what I think and I speculate happens often, that people come and use this same-day voter registration to move voters around."

Yet El Paso County Clerk and Recorder Wayne Williams said very few, if any, voters have exercised the rights granted by the new law.

No, folks, it appears that after so much hype about so-called "gypsy voters," the one person to try it is the conservative director of the organization that has staked its credibility on the claim. Election law experts have told us this is not just wrong, but preposterous–the law in question revolves around "intentions," and Caldara's "intentions" were to pull a stunt–to make a bogus point about a bill that was authored by county clerks on both sides of the aisle. And by pulling that stunt, no matter how many contrived "legitimate" circumstances he offers to prove his "residency," Caldara committed vote fraud yesterday. 

El Paso County Clerk Wayne Williams says to his knowledge, nobody besides Caldara has even tried this, because the circumstances where one could even plausibly attempt it are in fact quite limited. Williams reaffirmed that it's a felony to lie on the sworn affidavit Caldara signed, and that he will refer such attempts for prosecution. In Pueblo, Clerk Gilbert "Bo" Ortiz reports that only 39 voters have same-day registered out of some 11,000 votes cast, and all of them were required to legally affirm their residence.

“And those 39 have to sign a signature card affirming they are legally entitled to vote in Pueblo County,” he said. “To do otherwise is to commit voter fraud and I will refer any voters I suspect of that to the district attorney’s office.”

As for Caldara's "residence," it's purportedly a "week-to-week lease" of a single room in ex-GOP Rep. Mark Barker's house. Caldara owns a home in Boulder where he lives with his children. The idea that a bedroom in Mark Barker's house is now Caldara's "sole residence" is absurd on its face. There is precisely zero chance that Caldara truly "intends" to make a bedroom in Barker's house his sole residence. Ipso facto, he committed fraud by attesting that he did.

Bottom line: based on the competent legal opinions we're hearing, Caldara went too far this time and broke the law. His actions meet every definition of an attempt to defraud the election system, and vote in a district he does not reside in. Caldara reportedly turned in a blank ballot, perhaps as a firewall against prosecution, but we're told that doesn't matter. He still cast a fraudulent ballot.

The next step is for the El Paso Clerk to refer the case to the local district attorney for prosecution. Given the partisan affiliations of both of those men, we've already heard talk of going over their heads–to the federal Justice Department if needed–should they decide to let Caldara's actions slide.

For our part, we're relieved to hear that despite Caldara's blatant attempt to destabilize this election, spreading the utterly false story that anyone in the state can vote in these two Senate districts, few if any fellow citizens are listening to him.

We really hope that doesn't change between now and Tuesday.

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Caldara Vows To “Gypsy Vote” In Recall Election

Jon Caldara.

On Tuesday, we took note of a new website from the right-wing Independence Institute that appears to give instructions on how to vote in the upcoming recall special elections in Colorado Springs and Pueblo, even if you don't live there. The severely flawed premise of the site is a fictitious "unintended consequence" of this year's Colorado House Bill 1303, the Voter Access and Modernized Elections Act, which some Republicans have claimed might allow voters from outside the two senate districts in question to participate. As even Secretary of State Scott Gessler's office has confirmed, that's false: a voter must have already moved to the district to claim their "intention" to reside there, and any false statement in the process of registering to vote is a crime. To actually vote under those false pretenses is felony voter fraud.

But nonetheless, as a press release from the Independence Institute announces today:

The Independence Institute president will exercise his legal voting rights in next week's recall election, casting a ballot in a district outside his current residence.

Independence Institute president Jon Caldara's decision to vote in the Senate District 11 recall kicks off the "Bring in the Vote" educational campaign, highlighting the significant legal changes in Colorado's "Voter Access and Modernized Elections Act," signed into law by Gov. John Hickenlooper on May 10.

Calling attention to the lax new election law sponsored by Senators John Morse and Angela Giron, both facing recall elections, Caldara announced that he has the "intention" to make his permanent home in Senate District 11, currently represented by Morse.

Under HB 1303, the "intention" to establish residence along with a few minor requirements such as being 18 years of age, living in Colorado for 22 days, and having an address in the district, permits almost anyone to "Bring in the Vote" and cast a ballot in any district.

"It is my belief that this extremely sloppy new election law was designed to legally move voters into districts where their vote is most useful. I will show how this dangerous new law works by easily and legally voting in the John Morse recall election," explained Caldara.

"John Morse sponsored this law and worked its passage through the Senate. And now, sadly, under this law future Colorado elections will be decided by which candidate has the most buses." [Pols emphasis]

Now folks, we don't know where Caldara is getting his legal advice, but we surer than hell wouldn't try this based on every sane interpretation of House Bill 1303 we've heard. Certainly if the legal question hinges on "intent," Caldara's "intent" is to mess with the system–and quite possibly to encourage fellow Republicans to do the same. That and to draw attention to himself, naturally. Either way, we are very confident that no one on the Democratic side of these recalls has any plans to bus people in to so-called "gypsy vote," because they all think this half-baked theory is completely wrong.

But apparently Jon Caldara isn't convinced. Maybe he's right–or maybe he's setting fellow conservatives up for disaster.

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