Political War Over Colorado Recalls

DENVER (CN) - Colorado's Secretary of State sued Gov. John Hickenlooper to force recall elections for two state senators who supported gun control measures while representing conservative districts.

Secretary of State Scott Gessler, a Republican, determined in June that petitions to recall Senate President John Morse, D-Colorado Springs, and state Senator Angela Giron, D-Pueblo, had enough signatures to proceed to ballot, according to Gessler's request for a writ of mandamus in Denver County Court.

Morse and Giron were vocal supporters of legislation that banned high-capacity ammunition magazines statewide and mandated background checks for all gun buyers. The bills were passed and signed into law in March in a largely partisan effort that drew angry protests from lawmakers' pro-gun constituents.

Gessler says he gave Hickenlooper copies of the certified petitions against Morse and Giron on July 5 and July 10 respectively, and says the governor has ignored his constitutional duty to set dates for the recall elections.

Gessler's complaint paints the delay as an affront to the petitioners' civil rights.

"Scott Gessler, Colorado Secretary of State, has a duty of enforce to provisions of Colorado's election code," the complaint states. "But the state constitution does not authorize him to set the date for these recall elections. The only way that the Secretary can preserve voters' fundamental constitutional right to recall officials and fulfill his statutory duty to enforce election laws, is if this court orders the Governor to do what the Colorado Constitution requires: set a date for the recall elections of Senators Morse and Giron."

The Colorado Constitution requires the governor to set a date for the elections within a narrow window that closes 60 days after the secretary of state submitted the certified petitions - Sept. 3 for Morse and Sept. 8 for Giron.

"The Colorado Constitution requires the Governor to set a recall-election date as soon as he receives a recall petition and sufficiency certification from the Secretary," Gessler says in the complaint.

Quoting from the state constitution, the complaint continues: "When such petition is sufficient, the officer with whom such recall petition was filed [the Secretary], shall forthwith submit said petition, together with a certificate of its sufficiency to the governor, who shall thereupon order and fix the date for holding the election not less than thirty days nor more than sixty days from the date of submission of said petition; provided that if a general election is to be held within ninety days after the submission of said petition, the recall election shall be held as part of the general election."

Gessler claims that his office will not be able to certify recall ballots on time if Hickenlooper does not set the dates soon.

Any further delay would make it virtually impossible for Gessler to certify successor candidates, who can't petition to be on the ballot until after the governor sets an election date, or to mail out ballots to military voters on time, the secretary says in the complaint.

"The Governor's refusal to set a date for the recall elections of Sen. Morse or Sen. Giron will prevent the Secretary from complying with or enforcing the statutory deadlines that apply to these recall elections," the complaint states.

Gessler's complaint refers to a previous lawsuit that challenged the sufficiency of the petitions.

In her July 9 lawsuit, Catherine Kleinsmith claimed that the recall petitions are invalid because they did not inform signers that "by signing the petition, they were 'demanding an election of the successor to the officer named in said petition.'"

Her complaint stated: "There is uncontroverted evidence in the record that the majority of registered electors in Senate District 11 were unaware that an election would occur and thought the vacant seat would be filled by means of a simple appointment process, the vacant would not be filled at all for the remainder of the Morse term, or had no idea what process would be used to fill the seat, assuming the recall was successful."

In his own complaint, Gessler questions Kleinsmith's ability to appeal his sufficiency ruling in the first place. He claims that only proponents of failed petitions - not opponents of successful ones - can challenge a sufficiency ruling.

"The Colorado Constitution limits court review of the Secretary's finding that a recall petition is sufficient to the majority of a recall petition's proponents, i.e. the person or majority of the person who represent the petitions signers," according to Gessler's complaint.

"The recall statute implements this constitutional provision by limiting judicial review of a recall petition's sufficiency to an appeal by a recall petition's proponents of a determination that the recall petition is insufficient," Gezzler's complaint states.

Citing the state constitution again, Gessler's complaint states: "If the petition is verified as insufficient, the designated election official shall provide the specific reasons for the determination to the committee. The determination may be appealed by the committee provided in section 1-1-113 to the district court in which the petition was filed. No other person other than those on the committee have standing to appeal a determination that the petition is insufficient."

Hickenlooper and Gessler are political rivals.

Gessler, who has been fighting allegations that he misused public funds, is evaluating a run for governor in 2016.

Colorado Attorney General John Suthers, a Republican who is also mentioned as a possible candidate for governor, told The Denver Post that he encouraged Gessler to take legal action against Hickenlooper.

Yet as attorney general, Suthers represents Hickenlooper against Gessler.

"We recommended to the secretary that he get outside counsel and we would promptly approve that person as a special assistant attorney general, because you can only get outside counsel if we approve of it," Suthers told the Post.

Gessler is represented by Steven Klenda with Adroit Advocates in Denver.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit