Colorado Controversy Over Mailing Ballots to Inactive Voters

On Sept. 21, 2011 Colorado Secretary of State Scott Gessler filed suit in District Court in Denver against Debra Johnson Clerk and Recorder for the City and County of Denver over mailing of ballots to voters deemed "Inactive Failed to Vote"  (Gessler v. Johnson).  The suit was filed in advance of a Nov. 1, 2011 statewide election.  A judge issued a preliminary ruling on in Oct. 2011, but the final ruling did not come until Jan. 2013.

The crux of Gessler's argument appears in point 10 of the complaint:

In 2008, the General Assembly enacted H.B. 08-1329. This measure added section 1- 7.5-108.5(2)(b), which provided:

(I) In connection with any mail ballot election to be conducted in November 2009, a mail ballot shall be mailed to all registered electors whose registration record has been marked as “inactive- failed to vote”. Such mail ballots shall not be sent to registered electors whose registration has been marked as “inactive- undeliverable”.

(II) This paragraph (b) is repealed, effective July 1, 2011.

(Exhibit A, attached hereto) The General Assembly required clerks to send mail ballots to persons who were inactive and failed to vote as well as to active voters. The intent of the measure was to reduce the number of persons who were designated as “inactive failed to vote” due unique election problems in Denver and Douglas County in 2006. The authority to send mail ballots to voters who were inactive and failed to vote expired on July 1, 2011.

PRESS RELEASE from Secretary of State Scott Gessler

October 7, 2011
Andrew Cole

Gessler responds to judge's decision

Denver, Colorado – Following the motion issued by Judge Brian Whitney in Gessler v. Johnson, Secretary of State Scott Gessler released the following statement:

"The judge today did not decide on the merits of the case as this was a preliminary decision. The judge said we have a reasonable probability of success on the merits but also admitted his decision could throw the outcome of the election in doubt.

"Coloradans can continue to expect my office to enforce the laws on the books, preserve statewide uniformity, and ensure election integrity," Gessler said. "Unfortunately, the judge’s decision today allows counties to operate this election differently based on how much money they have. We’ve seen constant erosion of personal responsibility and this decision continues that erosion.

"There can be respectful disagreement over whether Colorado has a good law. But the issues argued in court were largely muddled by overblown political rhetoric and grandstanding by those seeking partisan gain. As we move into the presidential election, I would challenge Coloradans to look beyond the rhetoric, beyond the embellishments and beyond the overblown statements to arrive at your own conclusions. This is merely the first salvo in a long election year to come.

"As I’ve said, inactive voters can still participate in this election by updating their status at, by contacting their county clerk or by showing up to any service center or polling place before the election."

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PRESS RELEASE from Colorado House Democrats

July 23, 2012

Legislators to Gessler: Halt Voter Suppression

(Denver) – Rep. Crisanta Duran and 29 other state legislators called on Secretary of State Scott Gessler today to halt his efforts “to restrict the legitimate exercise of Coloradans’ right to vote. 

At a hearing convened by the Secretary of State’s office this afternoon to discuss rules proposed by Secretary Gessler to prevent county clerks from mailing ballots to inactive voters, Rep. Duran (D-Denver) planned to hand him a letter, signed by 29 Democratic state representatives, saying his proposal “clearly oversteps your rulemaking authority. 

“The Secretary of State can ‘administer and enforce’ election laws,” the letter read. “What he or she cannot do is rewrite them. That prerogative is exclusively reserved to the General Assembly.”

Rep. Claire Levy (D-Boulder) was the prime House sponsor of the legislation that allowed permanent vote-by-mail status, which would be undercut by the proposed rules. “It was our intention in that bill to increase voter participation, not to create obscure procedural obstacles,” Rep. Levy said 

The letter accused Secretary Gessler of waging “a campaign to create obstacles to voting by validly registered electors in the State of Colorado.” 

“The right to vote is a fundamental constitutional right,” the letter said. “Your efforts to alienate that right are no more justifiable than abridging the freedom of speech or the free exercise of religion.”


Below is the state representatives’ letter to Gessler:


Honorable Scott Gessler

Secretary of State

State of Colorado


Dear Mr. Secretary:

We have asked Representative Crisanta Duran to deliver this letter to you and to testify on our behalf at today’s rules hearing at the Colorado Secretary of State’s office. We are confident in her ability to eloquently express our views, but we want to underscore two points:

1. We believe your proposed rule to prevent county clerks from mailing ballots in all-mail elections clearly oversteps your rulemaking authority.

There is nothing in the election law that currently prohibits clerks from mailing ballots to Inactive-Failed to Vote electors in a mail ballot election.  The Secretary of State can “administer and enforce” election laws.  What he or she cannot do is rewrite them. That prerogative is exclusively reserved to the General Assembly, of which we, the undersigned, are members.

We predict that your efforts to reach beyond your office’s allocated authority will be met with skepticism by the courts.  

2. We believe your attempt to rewrite the law through these proposed rules is part of a campaign to create obstacles to voting by validly registered electors in the State of Colorado.

The right to vote is a fundamental constitutional right. Your efforts to alienate that right are no more justifiable than abridging the freedom of speech or the free exercise of religion.

Our democratic process works best when the greatest number of people participate in it. Intimidation and suppression of legitimate voters harkens back to some of the darkest days in our nation’s history. Attempts to reduce voter participation run contrary not only to the letter of the law, but also to the spirit of America and of the State of Colorado.

Mr. Secretary, you are the state’s chief elections official. The people of Colorado look to you to be the guardian and protector of fair and free elections. We strongly urge you to halt all efforts to restrict the legitimate exercise of Coloradans’ right to vote.

ed. the District Court ruled on this matter 2 1/2 months after the Nov. 6 election...


Brennan Center: Erik Opsal

Colorado Common Cause: Elena Nuñez    Holland and Hart: J. Lee Gray

Colorado Victory: Judge Rules for Voting Rights

Denver, CO The voting rights of thousands of Colorado citizens were protected today as a state district court judge blocked Secretary of State Scott Gessler’s controversial interpretation of Colorado’s mail ballot election law. Under Sec. Gessler’s reading of the law, county clerks could not mail ballots in elections conducted only by mail to voters who did not vote in the most recent general election. In effect, thousands of eligible voters—including many longtime voters—would not be able to vote unless they jumped through new and burdensome hurdles.

Colorado election law gives counties the option of conducting certain elections by mail. In these elections, there are no traditional polling places; instead, citizens vote by mailing in ballots sent to them by county election administrators. Just before the November 2011 election, Sec. Gessler issued an order prohibiting counties from mailing ballots to voters who did not vote in the last general election (2010). These voters, so called “inactive-failed to vote” voters, could only be sent mail ballots if they submitted to a confusing and burdensome administrative process to “reactivate” their status by effectively re-registering to vote.

In response to Gessler’s order, Denver County Clerk and Recorder Debra Johnson, who believed the order was inconsistent with state law, stated her intent to send mail ballots to all eligible voters in the county, as the county had for the prior five elections. Sec. Gessler filed a lawsuit against the county, asking a court to rule that county election administrators must follow his interpretation of the mail ballot law. Sec. Gessler also asked for a court order preventing the county from sending mail ballots to inactive-failed to vote voters in the upcoming mail only election. The court refused, and allowed Denver County and other counties to send mail ballots to these voters. Thousands of affected voters participated in the mail-only election after receiving the ballots.

Colorado Common Cause, represented by attorneys from the Brennan Center for Justice and the law firm of Holland and Hart, sought to participate in the lawsuit on the side of Denver and other counties as the court considered whether Gessler’s interpretation would apply to future elections. Colorado Common Cause argued that Colorado law and the constitutions of Colorado and the United States prohibit Gessler’s interpretation.

Today, after considering the evidence submitted by the parties and hearing hours of oral arguments, the court ruled Gessler’s interpretation of the mail ballot law was incorrect, and that counties can send ballots to inactive-failed to vote voters.

The Court emphasized that Colorado law prohibited “any elector’s registration record from being canceled solely for failure to vote” but that the Secretary's interpretation of the law would have required some voters who had missed a single election to “re-register” to vote, “effectively penaliz[ing]” citizens “for not voting.” This would have “impeded the voting of some 4,000 – 6,000 IFTV electors in Denver in November 2011 ... and tens-of-thousands of citizens statewide.”

“Today’s ruling is a clear victory for Colorado voters,” said Myrna Pérez, senior counsel for the Brennan Center’s Democracy Program, the attorney who argued the case for Colorado Common Cause. “The court was right not to accept a position that would have penalized registered and eligible voters for not participating in just one election.”

“As Colorado’s chief elections officer, the Secretary of State should focus his resources on promoting electoral participation and assisting voters, not disenfranchising certain eligible voters,” said Elena Nuñez, Executive Director of Colorado Common Cause. “The Colorado legislature must now act to clarify the law so that voters who miss one election will not be disenfranchised in future elections. We understand Sec. Gessler has announced his support for this kind of legislation and we welcome his participation in the process.”

“The evidence was clear that disenfranchising inactive failed to vote voters would detrimentally affect Colorado’s communities of color,” said Lee Gray of Holland and Hart, pro bono counsel in the case. “The legislature should take note of this evidence and clarify the statute in the upcoming legislative session.”

Common Cause is represented by the Brennan Center for Justice, and pro bono by Lee Gray and Jesse Horn from the law firm Holland and Hart. Myrna Pérez of the Brennan Center argued the case before the court.

Click here for more background information on this lawsuit.