A bill designed by Secretary of State Scott Gessler and sponsored by Rep. Chris Holbert, R-Parker, to ensure the integrity of the Colorado voting system is being called a means to reduce voter participation by voters’ rights advocates. Gessler said his bill fixes what he sees as a serious problem of ineligible voters on the voter rolls.

The bill would give the secretary of state the authority to check names on voter registration lists against state and federal records that provide information on immigration status. In those cases where the secretary of state’s office determines that there is enough information to believe a person is not eligible to vote, the person would be given 90 days to provide evidence they are eligible. Individuals could prove their citizenship by showing photocopies of a passport, birth certificate, naturalization papers or through other methods. For those who could not afford a birth certificate the secretary of state’s office would provide the necessary funds.

 ”This should have been done four years ago during the special session,” Holbert told the committee.

However, Rep. Lois Court, D-Denver, said she would like to see evidence that non-citizens have participated in voter fraud and said she did not see a reason to tackle a problem that had not been proven to exist.

Jenny Flanagan, executive director for Colorado Common Cause, told the Colorado Independent the bill went one step too far.

“This is just another attempt to limit people’s participation in the vote,” Flanagan said. ”It is in the guise of an integrity measure, but it is really anything but.”

She said the bill likely violated constitutional voting rights.

Gessler said the bill was sure to stand up to both constitutional and statutory challenges.  

Telling the committee that he was nearly certain 106 individuals who should not be voting were currently on the rolls, Gessler said there could be many more. Gessler said that after attaining drivers license data, his office was able to determine the type of identification used to acquire either an ID or driver’s license. He said that 11,805 individuals used identification to get a drivers license that would not have allowed them to legally vote at the time–even though those people are currently on the voting rolls.

Rob DuRay, field director for New Era Colorado, questioned the secretary of state’s investigative methods.

“I think there are some holes in the [secretary of state's] argument. Some of the databases are updated and maintained at different times and ways, so there is a strong chance that in the last five years those people could have become citizens.”

While admitting that many of those who registered at the time with records identifying them as foreign nationals could have received their citizenship since that point, Gessler said that it was likely at least some had not. He went on to say that 106 were found to have registered for a license after signing up to vote or did so on the same day.

Rep. Claire Levy, D-Boulder, said she felt the bill had the potential to reverse the burden of proof onto the accused and concurred  that other databases did not use the same criteria to judge citizenship.

“The voter is presumed to be ineligible based on the secretary of state’s use of records that may or may not be a valid method,” Levy said. She went on to note that many of those the bill would target would not need copies of birth certificates but other forms of identification related to naturalization.

Gessler said he would be willing to amend his bill so that those who demonstrate hardship will be able to get naturalization papers to prove their citizenship at little or no cost. His office further indicated he is willing to include a clause that the bill will comply with the National Voter Registration Act.

DuRay said his main problem with the bill was that it had the potential to increase steps to voting for eligible citizens.

Other witnesses said the secretary of state’s office should be subject to a citizen oversight board when making any determinations on how to determine citizen eligibility.  

While no vote was cast by the Republican controlled House committee, Colorado Springs Republican Rep. Larry Liston’s concerns about “nefarious organizations” working to influence local elections, might provide insight into the flavor of the debate.

“There are nefarious organizations that are working to affect the outcome of elections. Let’s not kid ourselves, there are,” Liston said. “This doesn’t appear to be anything too onerous for people. Some people, I know, will object. Some people can’t find their wallet from day to day, but we all have to accept a certain level of responsibility and so forth. So, I would just say that something like this makes sense.”

If the bill does not pass into law, Gessler said he would likely get an opinion from the attorney general as to whether he needed General Assembly authorization to conduct the search and would likely turn the cases over to prosecutors as it is the only tool available to him right now.

(Photo/Monocle, Flickr)

The Advancement Project, a national voter protection group, filed suit against Coffman late last week to force the secretary to reinstate the voters and halt any new purges. Coffman’s removals included people who moved, inactive citizens, and newly registered individuals whose voter cards bounced back to county clerks. The Advancement Project claimed that Coffman’s removals violated the National Voter Registration Act because they occurred within 90 days of a federal election. Coffman denied any wrongdoing.

But with the general election less than a week away, both sides agreed to a preliminary fix during a Wednesday hearing. After deliberations that stretched more than eight hours, the Advancement Project and its plaintiffs — Colorado Common Cause, Mi Familia Vota and the Service Employees International Union — gave up on restoring purged voters to the rolls. Instead, they agreed to let them vote by provisional ballot.

“It was important for these voters to have their voices heard and to not be turned away on Election Day,” said Grace Lopez Ramirez, director of Mi Familia Vota after the settlement. “They’ll be counted and identified.”

The crux of the settlement has to do with the way these provisional ballots will be treated. Under federal law, anyone who shows up at the polls but can’t be identified in the state’s voter database may cast a provisional ballot. Those forms are investigated in the two weeks after the election. If it turns out that the person is an eligible voter, then the vote will be counted. If not, then the ballot is tossed out. The Wednesday settlement essentially prioritizes the purged provisional voters. County clerks will have to assume that the voter is eligible until proven otherwise.

In order for the counties to identify the purged provisional voters, the secretary of state will give them an electronic list of voters canceled between May 14 and Nov. 4, 2008. In a small win for the voting rights advocates, those groups got to use their own list of purged voters, rather than rely on Coffman, whose purge list is much shorter.

Though the secretary of state didn’t cop to any wrongdoing with the settlement, U.S. district court judge John Kane on Wednesday said he thinks “there are places where the state went out of bounds on the removal of these names.” But he agreed with the defendant, that changing the voter rolls just days before the election could portend technical problems and even chaos.

During the hearing, the Advancement Project provided witnesses who were wrongly purged from the voter rolls and then never alerted to the fact. Linda Townsend Johnson and her husband, James Edward Johnson, recently moved to Colorado Springs from Mississippi and registered to vote in May. The couple — Linda is in a graduate program while James works as a security officer — requested mail-in ballots so they could take more time to learn the issues in their new state. The mail-in forms arrived. But soon after, Linda got a call from a woman at the Brennan Center for Justice, a New York public policy institute, asking Linda if she was aware that she had been purged.

“She said that my name and my husband’s name had been taken off. I said, ‘I have my registration card and mail-in ballot and everything.’ She said, ‘It appears that your name has been taken off.’”

Linda and James went to the El Paso County clerk’s office to sort out the problem, bringing their paperwork with them. A woman at the clerk’s office told them that they were not registered to vote. “I said, ‘I don’t understand,’” said Linda. “‘Someone made a mistake.’ I laid out my voter registration card, and I gave her my social security number. She said she didn’t understand what happened. So she fixed it.”

The woman also told Linda that if she had cast her mail-in ballot without fixing her registration, then the ballot would be tossed. That assertion, the court hearing revealed, turned out to be false.

No one ever told Linda and James why they were purged.

“Nobody would explain it to me,” she said. “This is my right. This is my voice, and I don’t think it should be taken from me. I don’t take this for granted. I am an African-American, and I am a woman. I don’t take for granted that people suffered for me so I could have this right.”

Later on in the hearing, however, a witness from the defendant’s side explained exactly what had happened to the Johnsons’ missing registrations.

Linda and James, it turned out, were canceled because another Linda and James Johnson had registered in the state. Those registration forms were returned in September rather than May. They featured a different address than the original Johnsons’ forms, and they were filled out in strikingly different handwriting. Yet the El Paso County clerk and recorder’s office tossed out Linda and James’ registrations anyway.

According to Hilary Rudy, the witness who serves as a legal analyst with the secretary of state’s office, things got even more complicated when the second Johnson registrations were tossed out because of the so-called 20-day rule. The Colorado law stipulates that if a voter card sent to a newly registered voter bounces back to the county clerk, than that person must be removed from the rolls. The policy is meant to confirm an applicant’s address, but the plaintiffs claim that it too violates the NVRA, since it kicks off voters without sufficient notice. In Michigan, the Advancement Project and the American Civil Liberties Union recently successfully sued to stop a similar practice in that state.

After the hearing, Linda said she was happy to have spoken in court about her registration. “I knew I was going to do something about that,” she said. “I teach my kids, ‘Don’t stay silent when something is wrong.’”

But the voting rights advocates say that not everything is perfect.

“A settlement is always a partial win,” said Penda Hair, co-director of the Advancement Project. “The case is not over.”

Hair said that the group plans to contest the 20-day rule and other purges at a later date.