Critics have questioned Gessler’s priorities, given that the number of documented incidents of voter fraud in Colorado is tiny.

Yet Gessler argued his case at committee hearings in Washington and Denver by citing statistics. There were hundreds and maybe thousands of non-citizens registered to vote in Colorado who may or may not be casting ballots, he said, as an example.

Wisconsin governor Scott Walker has also sounded alarms on voter fraud. Taking a page from Gessler, he recently cited numbers to back up his claims.

In an interview with the Weekly Standard, Walker said he thought fraud typically accounted for 2 percent of the vote in the state and likely swayed elections.

“I’ve always thought in this state, close elections, presidential elections, it means you probably have to win with at least 53 percent of the vote to account for fraud. One or two points, potentially.”

That’s enough to change the outcome of the election.

“Absolutely. I mean there’s no question why they went to court and fought [to undo] voter ID.”

Indeed, ever since judges there enjoined Wisconsin’s new controversial voter ID law in March, Walker supporters have been warning that voter fraud will make it more difficult for the governor to survive the coming June 5 recall election.

“As we’ve been telling you, the liberal power network is pulling out all the stops to RECALL Gov. Scott Walker. We’ve now received news that liberal judges have teamed up to block Wisconsin’s new Voter ID law,” wrote Walker supporters at the the Campaign to Defeat Obama in an email last month.

“This means we will not be able to fight voter fraud, and this means that our margin of victory must be much larger now — to compensate for any fraudulent ballots cast by RECALL proponents.”  

The email begs the usual questions: How much voter fraud is happening in the state and would the voter ID law prevent it?

After the 2008 presidential election, Wisconsin Attorney General J.B. Van Hollen and Milwaukee County District Attorney John Chisholm formed an Election Fraud Task Force to investigate.

In February of 2011, the Department of Justice released a statement on the results of that investigation: Authorities charged 11 felons for voting, 6 people for voter registration misconduct and 2 people for voting twice.

As the Badger Herald’s Sean Kirkby reported, authorities also charged one Milwaukee County resident for acquiring a ballot in his late wife’s name in order to fulfill her “dying wish” and vote for Obama.

The investigation may seem to confer some legitimacy on the concerns about voter fraud. As Dave Weigel at Slate points out, however, the yearlong “deep-dive” investigation in Wisconsin found a mere 20 cases of fraud, so Walker’s math is way off, Weigel writes. The 20 cases don’t reach anything close to 2 percent of the 3 million votes cast in Wisconsin in 2008. They amount to 0.0007 percent of the vote.

“For fraud to equal ‘one or two points’ in that election, you’d have needed 30,000 to 60,000 phony ballots,” Weigel explains.

University of Wisconsin political science professor David Canon told Kirkby that Wisconsin’s voter ID law would have done nothing to prevent the 20 cases of fraud found by the DOJ investigators.

“[The law] would not prevent felons or non-citizens from voting,” Canon said. “The only type of fraud it will catch is impersonators.”

The DOJ and Wisconsin county authorities found no polling-place voter impersonators who committed fraud in Wisconsin in 2008.

[ Image via tychay at Flickr ]

Got a tip? Story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter.

Part of the reason, perhaps, is that, within the increasingly complex system of U.S. campaign finance, Democrats and Republicans here tend to use different channels to make political donations. Democrats give through so-called Super PACs, which make their records public on a sometimes delayed but regular schedule. Republicans, however, lean toward a maze of difficult-to-track 527 committees. The 527s give the money to other committees, which often pass the money on to yet more committees, which eventually buy campaign ads. What’s more, the people on the right who give the most cash also often use multiple versions of their names on public records, making the money they give even more difficult to tally.

Add to that rules adopted by the Secretary of State’s office in March that could allow many of these 527 committees to avoid most reporting requirements and you have the makings of an interesting election season. Where in the past 527s were difficult to track, in the future it may simply be impossible to follow the money.

Colorado is perhaps a microcosm or a laboratory for the ways and means of money in politics. We have it all: Deep pocketed, highly motivated donors, a partisan, outspoken secretary of state, and left-leaning watchdog groups who pay special attention to Secretary of State Scott Gessler and campaign finance rules.

While PACs–which Colorado Democrats typically fund–can advocate for candidates, and 527s–which Republicans fund–cannot, that difference becomes less and less important as 527s push the envelope and courts rule in their favor. The rules governing what 527 committees cannot say have come to be known as The Magic Words, which include “vote for,” “elect,” and “vote against”. Anything less explicit than that is generally acceptable.

Right now, two Republican committees–Colorado Leadership Fund and Senate Majority Fund–together are sitting on more than $1.1 million–money no betting person expects to still be there after November’s election. These committees were sued by Ethics Watch in 2008 for stepping over the “magic words” line, but the Colorado Supreme Court ruled for the committees, setting the stage for more election seasons of big spending.

Last month Ethics Watch and Colorado Common Cause filed suit against the Secretary of State’s office to stop the SOS’s new, less stringent 527 reporting requirements from taking effect. While waiting for a court date, the rules have gone into effect.

Luis Toro, director of Ethics Watch, argues that Gessler does not have the authority to make rules that Toro says contradict existing state statutes. Ethics Watch has won similar suits against Gessler in the past. Gessler’s new rules, if they stand, would mean that 527s will not have to report contributions and expenditures if they do not expressly advocate for a candidate.

“Secretary Gessler appears not to have gotten the message that both the court and the legislature have already sent: his job is to enforce the laws on the books, not rewrite them to his liking in an election year,” said Toro. “We are confident that the result in this case will be no different from what has happened before. Unfortunately, the State of Colorado will spend a great deal of public money attempting to defend the indefensible.”

“Coloradans fought for the right to know who is spending money to influence their votes,” said Elena Nunez, executive director of Colorado Common Cause. “As we approach an election expected to have record spending, Secretary Gessler’s rules rewrite will leave Coloradans in the dark.”

Gessler was blunt in his response to the suit: “This challenge comes as no surprise. Groups opposing common sense rules have stacked the deck in their favor,” Gessler said. “Yet again, the office has been sued by the same secretive, unaccountable, taxpayer-subsidized groups.

“We should be encouraging civic engagement by clarifying the rules and creating a level playing field for everyone,” Gessler added.

Even the rules that up until March required 527 committees to file reports often leave voters in the dark as money moves around so deftly as to be almost impossible to follow.

A moving target

Because people often write checks to one 527 committee, which then turns around and writes checks to other committees, it is difficult to track exactly how much is raised and spent. Throw into this mix the fact that some committees come into existence one month, receive a large check from another committee, buy a load of ad time or produce and mail thousands of post cards and then disband a week later, and 527 money becomes even harder to track.

In fact, Colorado Democratic Party spokesman Matt Inzeo said the Party doesn’t even try to track Republican 527s. “We just can’t devote the resources to tracking that money,” Inzeo said. “New committees can appear out of nowhere. You just never know what group will emerge to buy ads and mailers in the month before an election. We know they are out there and they are well funded and well organized, but they are a moving target.”

The Western Skies Economic Growth Committee, for instance, was opened in October 2008 and shut down barely a month later. It got all of its money in one contribution from Western Skies Coalition. Not surprisingly it also spent all the money at once, with Strategic Media Services, to create and place advertising. Western Skies Coalition is a Virginia non profit supporting energy concerns.

Innocuous names like Western Skies Economic Growth Committee are common in the world of 527s. Who doesn’t like Western Skies? Or Economic Growth? You can’t tell from the name whether the committee is liberal or conservative.

Mashup of mailers targeting Democrats in Colorado. These were sent by Western Tradition Partnership, now known as American Tradition Partnership. (Image: ColoradoPols)

“That’s no accident,” said Inzeo.

Every political ad purchased has to say who paid for it, but if the committee only existed for a month and got all of its money from another committee, the name on the ad becomes meaningless. “There is no transparency and that leads to greater and greater levels of distrust from the public,” Inzeo said. He noted that if the Democratic Party–or the Republican Party–buys an ad, you know who is behind the ad, but that if the ad is purchased by a committee that existed only long enough to buy the ad, then voters really have no idea who bought the ad.

“From the point of view of Democrats, we are really not in a good place in the post Citizens United world of unlimited corporate contributions to 527s,” he said.

Citizens United was the Supreme Court case that ruled that for the purposes of donating money to 527s, corporations have the same rights as individuals–which is to give as much money as they want to give.

Ken Gordon, former state senate majority leader and now the driving force behind CleanSlateNow.org, says no one is in a good place after Citizens United.

“The way we finance campaigns is destroying democracy. It takes the power that should belong to people and gives it to wealthy interests. The problem is not just one party or the other. Both sides are trying to use money to get more power than they would get based on the merit of their ideas,” Gordon said.

CleanSlateNow.org is dedicated to supporting candidates who refuse to take any special interest money. Gordon says that ultimately it is up to voters to decide that they won’t support candidates who take special interest money. Under current campaign finance laws, though, even if a candidate refuses special interest or corporate money, there is nothing to stop a special interest from forming a 527 committee for the express purpose of supporting that candidate, who will have nothing to say about the way the money is spent.

Rick Palacio, chairman of the Colorado Democratic Party, says it really doesn’t matter if Republicans raise and spend as much or more than Democrats.

“At a certain point, money has diminishing returns if you have candidates that are of out of touch, extreme, and have serious flaws.

“Nationally you see this with candidates like Mitt Romney and locally with the tea party extremists,” Palacio said.

Why 527s?

An individual, or a corporation, or another 527 committee can give unlimited funds to a 527 committee, and there is a long list of Colorado Republicans who have written five- and six-figure checks to 527s. The committees cannot coordinate with a candidate and cannot advocate directly for a candidate’s election, but as court case after court case has shown, it is a very fine line–a line some say is crossed every election.

One person who has litigated the issue is Luis Toro, of Colorado Ethics Watch. He has filed suit against two Colorado 527s, alleging that they had crossed the line into direct campaigning for candidates. The courts ruled for the committees.

“Much of the controversy over election spending in Colorado has focused on so-called “527″ groups, which refer to political groups that do not meet the definition of a PAC (or “political committee” under Colorado law), because they don’t expressly advocate for or against candidates. The key difference has been that contributions to PACs are limited while contributions to 527s are not,” Toro wrote in a recent Denver Post column.

When a wealthy individual writes a large check to a 527, and then that committee writes a check to another committee which purchases the actual advertising, three things potentially happen, according to campaign finance experts who did not want to be quoted for this article.

1) The money becomes harder to track in a timely manner by reporters, by candidates who are being targeted with negative ads and by attorneys representing campaign finance watchdog groups or representing competing interests.

2) Wealthy, well-known, public-image conscious individuals or companies have some deniability in that they did not give their money to the committee that bought the negative or misleading ads.

3) It might look to the world that more money is being raised and spent than actually is, which can make it easier to raise even more money. For instance, if committee A raises $1 million during a reporting period and gives all the money to committee B, advocates and fundraisers can say that the two committees, which both support similar things, raised $2 million between them, which can make other donors more likely to jump on the bandwagon and spend their own money.

“In most other lines of work, moving money from committee to committee and finally using a brand new committee no one has heard of to buy the ads would be called money laundering,” Inzeo said.

Emphasizing that he thinks Democrats game the system as much as Republicans, Gordon said he thinks Republicans have been especially artful in setting up dozens of committees that routinely transfer funds to each other.

“It is wrong because voters can’t tell who is purchasing political influence. Both sides use whatever means they can to get more influence,” he said.

Jon Caldara, director of the Independence Institute, agrees the system is broken, but he says getting money out of politics is probably impossible. He says campaign finance laws, which limit how much anyone can give to any candidate has driven the money underground.

“Our campaign finance laws have separated candidates from their campaigns,” he said.

With more and more of the money going to PACs and 527s, he said, “You have other people working for or against a candidate, but the candidate has no control over it.”

Caldara said the answer is to get rid of the limits on how much people can give directly to candidates. “Let the money go straight to the campaigns. Let the candidates run their own campaigns.”

Richard Westfall, a partner at the law firm Hale Westfall and general counsel to the Colorado Republican Party, agreed with Caldara.

“Whether you think these committees are good or bad, they arose out of campaign finance reform laws,” Westfall said. “If you go back twenty years, the messaging was done by the candidates and the parties. Campaign reform, designed to get money out of politics, has instead moved the money to independent expenditure groups,” he said.

Westfall emphasized that he was not speaking in his official capacity with the Republican Party, but instead as a private attorney who is a Republican.

He said all of the 527s and PACs are run by groups who have a special interest. Some are pro-environment, some support traditional energy interests, some support abortion rights while other are against abortion rights, etc.

In the old days, he said, candidates could choose whether to take money from a special interest. Today, the special interests can spend their money without a candidate’s knowledge or approval. Both he and Caldara noted that sometimes committees which intend to support a certain candidate actually harm that person’s campaign by misrepresenting their positions, or making them seem more extreme than they actually are, for instance.

Westfall said the people who pushed campaign finance reform were “all on the left.” He said they were well-intended, but that the results have been disastrous.

“Can anyone argue that campaign finance reform has kept money out of politics?” he asked.

Indeed, the amount of money spent locally, across the state and nationally goes up every election, sometimes almost exponentially.

Colorado Leadership Fund–and its offspring

The Colorado Leadership Fund, which describes its purpose as to “elect Republican candidates” has raised more than $782,000 since December 2010, according to reports filed with the Secretary of State’s office. Contributions came from insurance companies, energy companies, pharmaceutical interests and General Motors among others.

Among big recent donors are Edward McVaney ($100,000); Phillip Morris ($115,000); The Apartment Association of Metro Denver ($103,000); PHRMA ($120,500) and Farmers Insurance ($168,000).

This 527 committee often gives its money to other committees, including the now defunct Colorado Leadership Fund Political Committee and Coloradans for Change among others.

When it was active, the Colorado Leadership Fund Political Committee gave substantial amounts of money to Colorado Citizens for Accountable Government.

Asked why Colorado Leadership Fund would give so much of its money to other committees instead of spending it directly on its own ad buys, registered agent Timothy Gilmore answered succinctly: “I cannot tell you that.”

The Colorado Leadership Fund’s most recent filing says “NA” for cash on hand, but lifetime expenditures are about $622,000 less than lifetime income, so it stands to reason the committee has at least $600,000 in the bank. A spokesperson for the Secretary of State’s office confirmed that committees do not have to include cash on hand in their reports and that simply subtracting expenditures from contributions should tell you how much money the committee has on hand.

Asked what the committee’s plan for this election cycle were, Gilmore answered, “I cannot tell you that.”

Mario Nicolais, a well-known campaign finance attorney at the Hackstaff Law firm, said he represents a number of Republican committees, but he wouldn’t talk about them, except to say, “I am sure that lots of outside interest groups on both sides will be very involved in this election.”

Colorado Citizens for Accountable Government

CCAG seems to be the big daddy of GOP committees in Colorado, and is the recipient of large donations not just from individuals but also from other committees. In 2010, it spent about $1.7 million in Colorado–some of that money going to producing and placing negative ads attacking Democrats.

In October and November of 2010, CCAG received a total of $350,000 from American Justice Partnership. Also in October 2010, it received $300,000 from Colorado Leadership Fund and $145,000 from Senate Majority Fund. It received smaller donations that month from Greg Stevinson and Encana Oil and Gas.

The national Republican State Leadership Committee gave CCAG $515,000 in 2010. Interestingly, Colorado House Speaker Frank McNulty recently skipped two days of legislative business in order to hobnob with this same Republican State Leadership Committee.

He made the point then that Republicans need to work extra hard to keep up with Democratic fundraising.

A recent article in a Denver daily once again recounted how Democrats have become formidable in Colorado, and said they have out-raised Republicans by 150 to 1.

Specifically the article said Democrat Super PACs outraised Republican Super PACs $4.24 million to $28,644 over the last election cycle (presumably December 2008 to December 2010), which might technically have been true, but it failed to take into account the fact that Republicans put their money into 527s instead of PACs.

“I can guarantee you, Democrats are not sitting on $150 million right now,” Inzeo said, joking about the purported 150-1 fundraising ratio.

Where did CCAG’s money go in 2010? It went to television and direct mail. In October, 2010 alone, CCAG dished out nearly $323,000 to Targeted Creative Communications of Alexandria, VA for direct mail campaigns. Almost $465,000 went to Rock Chalk Media of Grand Junction for the production and placement of advertising, all according to reports on file with the Secretary of State’s office.

Targeted Creative Communications brags on its website about its success electing Republican candidates. A flashing screen asks the question: What drives votes? Among several answers that rotate through is “Fear.”

Colorado Citizens for Accountable Government mailed this flyer in a successful effort to defeat House incumbent Debbie Benefield, who actually supported tough immigration reforms. (Image: ColoradoPols)

Rock Chalk Media was in the news not too long ago, as the company that U.S. Rep. Scott Tipton still owed money to long after he defeated incumbent John Salazar.

CCAG gave $19,500 to Coloradans for Change. Coloradans for Change, like a number of these groups, has as its registered agent Mario Nicolais, of the Hackstaff Law Firm, where SOS Gessler used to work.

CCAG is still raising and spending money, but its heyday (so far anyway) was during the 2010 election cycle when it raised and spent more than a half million dollars. Of course, there is no saying it won’t reach that level again this election season.

With most of CCAG’s money coming from other committees, the question that has to be asked is, “who’s funding those committees?”

In the case of American Justice Partnership, there is no easy answer. As a non-profit 501c4, AJP does not have to disclose its donors. Interestingly, one of the top features on the AJP website is a “follow the money” button where it invites people to see what causes liberals are bankrolling.

Are Republican donors getting their money’s worth? The Republican Party did not return a call seeking comment and no one directly associated with a 527 would discuss it. Inzeo said “I’m not sure anyone putting money into Ken Buck’s (failed) campaign (for U.S. Senate) is feeling very good about it, but they can have a big effect on down ticket races. It was just a few hundred votes that put the State House in Republican control, so you can’t say the money didn’t have an effect.”

The money men

Alex Cranberg, chairman of energy company Aspect Holdings, has given at least $900,000 to GOP causes in Colorado in recent years. Big recipients have been The Trailhead Group, Coloradans for Change, Colorado Republican Committee and Senate Majority Fund. He also gives to individual candidates. The SOS database shows $280,000 as the total given by Alex Cranberg, with the rest of the money given by Alex M. Cranberg and A.M. Cranberg. Cranberg answered a few questions submitted in writing.

That email exchange is here:

1) Why do you give so much, and do you think it has made a difference?

Cranberg: I express myself in part through election advocacy because it is my responsibility as a citizen. My goal is to advance effective ways to produce prosperity and freedom for the largest number of people possible.

2) Are campaign finance rules fair? Do they make elections more fair, or do they need to be changed?

Cranberg: Campaign finance rules often restrict legitimate expression. Why should any person NOT be allowed such voice as his/her determination, creativity, access and resources allow?
Whose opinion, no matter how many times expressed, should we be afraid of? Which citizens do we need to “protect” from hearing which opinions? Is it unfair for celebrities to replace money with fame to amplify their voice? Going down the road of trying to make each person’s voice have equal influence is to go down a road toward tyranny.

3) Some people say we should eliminate all big donations to committees and get the money out of politics. Others say we should eliminate limits on what someone can give to a candidate as long as it is disclosed. Right now, a person can only give a small amount to a candidate but can give unlimited amounts to a 527, which some say removes the campaign from the candidate and has driven donations essentially underground. How should the system work?

Cranberg: I don’t know. I’m in favor of freedom of expression. I understand the benefits of disclosure, but I also believe that people should be able to support causes they believe in without exposing themselves to politically motivated retribution.

Thomas Paine wrote and distributed Common Sense which became the largest selling media property to date in American history. He did it anonymously. This tradition should be respected also.

4) A lot of times a person will give money to one 527 which then gives to another. The second committee might give to a third committee that actually just opened, which then buys the ads and closes shop. Is this an abuse of the system or does it serve a legitimate purpose?

Cranberg: See above.

Cranberg’s wife, Susan Morrice, has also given more than $25,000 to GOP causes in Colorado over the years, much of it in smaller amounts to individual candidates.

Edward McVaney in 2010 and 2011 gave at least $124,775 to GOP causes in the state, including $100,000 to Colorado Leadership Fund. He also gave $20,000 to school board candidates and donated to the campaigns of Attorney General John Suthers and Secretary of State Scott Gessler. McVaney was the founder of JD Edwards, now owned by Oracle. He has donated millions to the University of Nebraska as well.

Over the years, McVaney and various family members have given around $900,000 to conservative causes in Colorado. Among those contributions: $250,000 to Coloradans for School Choice in 1998; $100,000 to Vote No; It’s Your Dough in 2005; $100,000 to Coloradans for Marriage in 2006.

Somewhat common to big donors, McVaney and his wife use several variations of their names when making contributions.

Dan Ritchie has given at least $128,000 in disclosed contributions to political causes in Colorado since 2010. A large share of that has gone to school board candidates. He has given about $1000 each to the Colorado Democratic Party and to the campaign of John Hickenlooper. He gave $30,000 to the Business Opportunity Fund and $25,000 to the Trailhead Group, both of which have supported conservative causes in Colorado. Variations on his name are even more numerous than with other donors.

Ritchie, former chancellor and chairman of the board at the University of Denver, has given the university millions over the years. As a businessman, he was involved in numerous industries, from banking to Hollywood.

The Coors family and family of businesses have given millions to conservative political causes over the years. Former U.S. Senate candidate Pete Coors has given at least $179,000 to GOP causes in Colorado since 2010, according to the Secretary of State’s database. Of that, $175,000 went to the Trailhead Group. Pete’s brother Joe is currently running for the U.S. House against incumbent Democrat Ed Perlmutter. Joe Coors has not been as obviously generous, but he did give $1000 to Personhood Colorado in 2010. He just gave more than $200,000 to his own campaign to defeat Perlmutter.

Pete Coors was one of the founders of Trailhead, along with former governor Bill Owens and former oilman and current CU Chancellor Bruce Benson. Coors is listed on Wikipedia as the sixth wealthiest politician in the U.S., with a net worth of $750 million.

Greg Stevinson donated at least $100,000 to conservative causes in Colorado in 2010. His largesse was divided among CCAG, Coloradans for Responsible Reforms, Business Opportunity Fund and Senate Majority Fund.

Anheuser Busch has given hundreds of thousands of dollars to Colorado political causes over the years, including plenty of money to both up and down ticket Democrats. The company has spent its big money on Republicans, though, giving $41,000 to the Colorado Leadership Fund in 2009-11.

Big Democratic donors that we tracked tended to use only the most commonly known form of their names.

Committees come, committees go

While it is easy enough to look back at which committees raised and spent the most money in a prior election, it is impossible to predict which committees will have the money in 2012′s election.

In addition to the big players from past years, there are a number of other committees that are active today and may or may not be big players this year.

Coloradans for a Better Future has raised and spent about $90,000 over the years, but currently had no money in the bank as of its last report.

Perhaps the most famous of the negative mailers sent by a Republican independent expenditure committee, this one, sent by Western Tradition Partnership, targets Sen. Gail Schwartz, who won anyway.

Another to keep an eye on is the Committee for the American Dream.

Coloradans for Change is still raising and spending money, but its heyday was during the 2008 election cycle when it raised and spent more than a half million dollars.

One thing is imminently clear, with an election just a few months away, one or more of these committees will see an infusion of cash. If that isn’t true, it will only be because old committees are abandoned and new ones formed–the better to fly below the radar.

One committee to watch is The Senate Majority Fund, a 527 committee set up to support Republicans running for the Colorado Senate, which is sitting on a war chest of more than $500,000 in advance of this year’s election. One of its bigger recent expenses was just over $10,000 to Gessler’s old firm the Hackstaff Law Group.

The Senate Majority Fund was sued unsuccessfully by Ethics Watch. Again, from Luis Toro’s recent Post column:

In 2008, two 527s, the Senate Majority Fund and the Colorado Leadership Fund, ran ads supporting Republican candidates. Each of the ads named a candidate and the office he or she sought, extolled their virtues, directed voters to candidate websites, and in some cases even mentioned endorsements. These 527s were breaking new ground by running ads that were like PAC ads in all respects except one: they never used “magic words” like “vote for” or “elect.” Ethics Watch filed suit arguing that the 527s were illegally operating as PACs. The judge ruled that under Colorado’s Amendment 27, an ad doesn’t expressly advocate for candidates unless it uses “magic words,” thus the 527s were not PACs. Last month the Colorado Supreme Court affirmed that ruling.

Katie Kennedy, registered agent for the Senate Majority Fund, said she is not the person who makes decisions about how to spend the fund’s money. She described herself as being the compliance officer. She said she would have someone call the Colorado Independent, but no one did.

Gordon says waiting for campaign finance laws to change is a fool’s game. “Campaign finance laws were written by people whose hearts weren’t in controlling money in politics. The laws were written by people inside the system. Congress is against transparency and disclosure, and even if Congress passes a law that would help, the Supreme Court will overturn it,” he said.

“It is a terrible thing we are doing,” Gordon said.

It is impossible to post links directly to a contributor’s report in the Secretary of State’s database. This link will allow you to type in a name and get a report.

(Image of cash in hand: Wikimedia Commons: Psychonaught)

Unique identifying numbers, or bar codes, that can trace citizens to how they voted appear on ballots in dozens of counties in Colorado — a revelation that is not only troublesome but possibly illegal.

Ballots are not allowed to have “distinguishing marks,” according to state law.

A coalition of Colorado voters is suing Gessler (pdf) and a half dozen county clerks in a Denver federal court, contending the officials are presiding over unconstitutional elections. The litigation stems from a separate dispute over whether cast ballots should be made public so that elections can be verified by someone outside of government. When clerks argued ballots could not be seen by members of the public because it was theoretically possible to figure out how specific people voted in certain elections, the bar code problem became apparent.

“We didn’t think the clerks were serious. We thought they were pulling our leg, putting up a smokescreen,” said Aspen-based election activist Marilyn Marks. “We didn’t think it was true, but it is.”

Marks and a handful of other activists across the state soon learned that 46 counties in Colorado use Hart brand ballots that have bar codes affixed to them that are not torn off before they are tallied. Their lawsuit asks the court to prohibit the government from placing identifiers on ballots, or otherwise using mechanisms to track vote choices, both of which the suit says are already against the law.

“We’re suing Gessler because he hasn’t enforced the law and we think he should,” Marks said.

Messages left for Gessler and his spokesman were not immediately returned.

Marilyn Marks

“During the ballot verification and counting processes, it is beneficial for election officials to maintain procedures for tracking ballot batches,” the letter states. “These processes allow election officials and judges to quickly identify problems. But if an individual had access to the voted ballots and the tracking reports, then the person could track a ballot to a specific elector. Our office was made aware of the issues identified in your complaint during the past election cycle.”

Michael Hagihara, the state’s voter registration and elections manager who penned the letter, wrote that state officials are working to solve the problem by preventing the public from viewing identifiable ballots. The Colorado Court of Appeals, however, ruled that voted ballots are public records and should be available for public inspection. That case is being appealed to the Colorado Supreme Court.

“The problem is they think it is OK if the government knows how we vote. Government officials are the last people in the world who should know how we vote,” Marks said.

State officials and election clerks counter that they never trace votes or abuse their power.

The secretary of state is already the target of a potential recall. Gessler’s detractors believe his Republican partisanship is so overt that it is compromising the ethics of his office. Specifically, they complain of Gessler’s mandates to make voting more difficult. He has claimed that some of the measures he is taking are designed to ensure that non-citizens don’t vote in U.S. elections.

In addition to Gessler’s office, clerks in Boulder, Chaffee, Eagle, Jefferson, Larimer and Mesa counties are targets of the lawsuit that Marks and her group filed. A former owner and CEO of a trailer manufacturing firm, Marks lives in Aspen where she ran for mayor in 2009. She lost the election but learned a lot about voting in Colorado. She grew so troubled with what she discovered that she now has eight active lawsuits in the state demanding improved election quality and transparency.

(Image courtesy of Citizen Center)

Reiner was referring to allegations made again recently by Secretary of State Scott Gessler that non-citizens are registered to vote in the state. Reiner said she has asked Gessler in the past to share what he knows so that she and the other clerks in the state can address any potential problem. She said that, in roughly the year that has passed since he first brought up the issue, details from Gessler’s office have not materialized.

“I asked for the lists when I first heard about this. I haven’t gotten any information. I just don’t know,” she said.

Gessler shared more detailed information on the topic last month at an Arapahoe County Republican Men’s Club fundraiser. He said that 150 or so non-citizen residents of the state who had been erroneously registered to vote contacted him before he had even become secretary of state and asked to be removed from the registration rolls. He said that in 2011, his first year in office, 400-some erroneously registered non-citizens had asked to be removed from the rolls, the climbing number, he said, clearly indicates a wider and more serious problem.

This week, Gessler told KLZ talk radio listeners not only that non-citizens were being registered to vote in the state but that they were also casting votes.

“We’re continuing to do the analysis on the issue… of non-citizens being on the voting rolls here in Colorado and some of them voting,” he said. “We did a study last year and we’re going to do some more analysis and come up with more evidence to show people that there, in fact, are problems here in Colorado.”

At the end of last month, the Colorado Independent asked the secretary of state’s office to elaborate on his concerns and findings for the record but received no response.

The Independent then filed an open records request (pdf) with the office asking for any communication conducted between non-citizens registered to vote and the secretary’s office and/or conducted between the secretary’s office and county clerks on the subject of non-citizens asking to be removed from the voter rolls.

Secretary of State spokesman Rich Coolidge responded to say his office “is not the custodian” of such records. “You’ll need to submit your request directly to the county clerk and recorders, who register and cancel voter records,” he wrote in an email.

Voter rights watchdog group Colorado Common Cause subsequently submitted a similar records request and told the Independent that Coolidge had asked for an extension on the three-day statutory delivery period.

County clerks and staff contacted by the Independent so far in some of the state’s most populous counties, including Adams, Boulder, Denver and Pueblo, have said that they, like Reiner in Mesa County, have no knowledge of any non-citizens ever being registered to vote nor have they knowingly received any requests to be removed from the voter rolls from non-citizen residents of the state.

The Colorado Independent today submitted another open records request asking for any related “work product” created or commissioned by the secretary’s office, including any database searches seeking information concerning non-citizens being registered to vote in Colorado.

A standard form

“There’s nothing on the form like that,” Adams County Clerk Karen Long told the Colorado Independent, referring to the state’s standard “Withdrawal of Colorado Voter Registration (pdf)” form, the one available online that anyone seeking to remove their name from the rolls must submit to their county clerk. (Click on the image to the right for an enlarged version.)

“[The form] doesn’t ask anywhere for the reason you want to be removed,” Long said. “It asks for your name and ID or social security number and then you have to affirm it–you have to sign it and affirm it’s what you want and it’s accurate. That’s it. The only time we would know why someone wants to be removed is if they tell us, voluntarily. Maybe they’re moving out of state,” Long said.

Reiner said people sometimes come into her office upset about politics in general and want to be removed from the rolls.

Joan Fitz-Gerald, the highly respected former Jefferson County clerk, state senate president and now president of nonprofit watchdog AmericaVotes, said occasionally people asked her to remove them from the rolls because they were looking to avoid jury duty.

Boulder Clerk Spokesman Brad Turner didn’t hesitate to let on he was baffled.

“I don’t know how [Gessler] would know whether non-citizens were asking to be removed from the lists. That information just isn’t here, as far as I can tell.”

‘No need for a bill’

Gessler pushed hard last year at the state legislature for the “Proof of Citizenship” bill sponsored by Rep. Chris Holbert, R-Parker, and Sen. Ted Harvey, R-Highlands Ranch. The bill came in response to a study Gessler conducted based on database search and comparisons that he said suggested thousands of non-citizens could be voting in Colorado.

The bill, HB 1252, would have granted the secretary power to “periodically check” voter registration records against a collection of databases “maintained by federal and state agencies.” If the secretary suspected any registered voter “may not be a citizen,” he could suspend that voter’s registration, giving him or her 90 days to (re)submit documents proving their right to vote.

The bill failed to pass but, as the Colorado Independent reported in January, Gessler waved off Holbert and Harvey this year, saying there was “no need for a bill,” according to a Holbert staffer, because he felt he could address the issue outside the halls of the capitol with means available to him through his office.

Trimming voter rolls based on database searches like the ones described in the “Proof of Citizenship” bill– searches centered on comparing ID numbers listed in the state’s voter registration database, known as SCORE, and ID numbers listed in databases that include state or federal immigration information– is a prospect that alarms voting-rights watchdogs and at least some of the state’s county clerks, who openly doubted the accuracy of such an approach.

Clerks said that conducting those kind of database searches would give Gessler numbers of likely “suspects” but no confirmation that the people he thinks he is dealing with are actually the ones tied to the information on his lists. They added that he wouldn’t know whether people’s citizenship status had changed or to what extent human error had fouled up his searches.

That kind of skepticism has been the reaction among government watchdogs since Gessler first began talking about non-citizen voters.

Estelle Rogers, director of advocacy for Project Vote, looked closely at the six-page report Gessler produced last March that started the conversation in the state. In the report, Gessler said his office, working mainly from the Department of Revenue driver’s license database, was “nearly certain” that 106 immigrants were improperly registered to vote in Colorado. The report concluded that perhaps as many as 11,805 people were improperly registered to vote in the state and that 4,000 of them had voted in the 2010 elections.

Rogers told the Colorado Independent that such claims should come with more detailed supporting material that could be independently reviewed.

“The secretary says he is ‘certain’ that 106 people on Colorado’s voter roll of 3.7 million are ‘improperly registered.’ That’s about 0.0028648648649 percent of the voter roll,” she wrote in an email. “Obviously such an error rate is to be expected whenever human beings are copying data from one list to another. Before the secretary of state jumps to the conclusion that these are 106 cases of voter fraud, he should have a lot more evidence than mere suspicion. Non-citizen voting is a fashionable political theme these days, but it has no basis in reality. And the right to vote is too important to confuse with sloganeering.”

Fitz-Gerald echoed those sentiments.

“Clerks know that you never do anything without documentation. There are very specific processes outlined by law when you’re dealing with voter registration. There has to be a paper trail.”

She said that accuracy and accountability is everything when it comes to removing voters from the registration lists.

“You have to be sure that somebody isn’t removing someone else’s name. It can be very basic. Neighbors could be fighting.”

Fitz-Gerald pointed as a cautionary tale to the error-ridden “scrub lists” controversial Florida Secretary of State Katherine Harris used in 2000 to purge voter rolls there of alleged felons. Roughly 173,000 names made it onto Harris’s list but many of the names were tied to people with only misdemeanor convictions, others merely shared the same name with a felon.

Florida tried to rectify the problem as the errors came to light but evidence from Election Day polling places suggest thousands of legally registered voters may have been turned away as a result of the purge.

‘This matters’

“If I’m a clerk in Colorado, I wanna know who are these people [Gessler] is talking about. I wanna know what he’s doing. I’d be camping out in his office,” said Fitz-Gerald. “This matters. This is important.”

A high-profile conservative politics election and campaign finance attorney for years before he took office, Gessler has drawn heat for pushing election rules changes that he says are necessary to prevent voter fraud and that critics contend would make it more difficult for many legally registered Coloradans to cast votes. In addition to seeking the power to independently purge the voter rolls of suspected noncitizens, Gessler sued to prevent clerks from mailing ballots to inactive voters.

His efforts reflect moves Republicans have made nationwide since the GOP “wave election” of 2010 to stiffen voting requirements, efforts watchdogs and Democrats characterize as attempted vote suppression of left-leaning constituencies, including young people and members of minority groups.

Given that context, Fitz-Gerald says you would expect Gessler to be taking greater pains to justify his proposals.

“He’s not just a partisan attorney anymore,” she said. “He’s in a much different role. He’s an officeholder responsible to all voters– Republican, unaffiliated and Democratic. If something is wrong with the voter registration system, it is his responsibility not just to call it out at party dinners but to fix the problem and to work with the clerks to do that. It has to be a collaborative effort to keep the system solid.

“If he’s right there’s a problem, then it’s a state problem and it’s tied to the public trust. So take it to the clerks. Let’s get it worked out. You either want to solve the problem or you don’t. There are laws about how you go about these things and for good reason, too.”

Got a tip? Story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter.

Republican lawmakers and witnesses who testified in support of the bill said state-issued photo IDs would be “one more tool” clerks could use in the work of securing elections against fraud. They argued that Americans use photo IDs to conduct the commonplace business of their lives, to travel, do banking, visit the doctor, buy alcohol, for example, and that voting is at least as important as those everyday activities.

Democrats pointed out that photo ID laws create obstacles to voting and only work to prevent polling-place voter impersonation, a problem that they said statistically does not exist. They cited the five-year Bush justice department effort to root out voter fraud that found only 86 instances in a period where 300 million votes were cast, the fraud overwhelmingly stemming from polling place and registration mistakes and not from conspiracy to influence voting results.

Witnesses opposed to the bill pointed to studies that suggest it is not voter fraud that presents the real challenge to the integrity of U.S. elections, but election fraud– where ballot boxes are stuffed, votes are hidden, electronic voting machines tampered with, for example.

Like other witnesses, AARP spokesman Dennis Valentine reminded the committee that, although it might seem impossible to middle class Americans between the ages of 21 and 61, acquiring and keeping an updated photo ID can be difficult for whole demographic categories of citizens, including seniors.

“Maybe you have one at 65,” he said “but not at 75 or 85. You’re not driving anymore. And if you don’t have one, it’s a long tough process to get one.”

Linda Olson, an attorney with Colorado Legal Services’ Collaborative ID Project, said the project has helped secure IDs for 10,000 Coloradans in the last three years and turned away hundreds of others. She described the red-tape tangles that plague the efforts of the project and the fees that mount into the hundreds of dollars for people working in ID limbo with missing birth certificates and unmatching social security numbers and competing official and semi-official names.

Democratic members of the committee asked supporters of the bill, including two county clerks, for evidence that polling-place impersonation was being perpetrated in the state in a way that would justify the new law.

Arapahoe County Clerk Nancy Doty said she thought there had been a handful of likely examples in the eight years she has been clerk. She recalled that one man voted for his father and a woman had voted twice.

Blogger Kelly Maher testified as she has in the past to what she characterized as Colorado’s lamentable “low bar” voter ID requirements. She waved in the air the home-computer printout of an electric bill she uses as her voter ID. “This is it,” she said with dramatic irony. She asked the committee members to pass the photo ID bill as a way to fight disillusionment among citizens who fear their votes are being compromised.

Maher’s testimony perhaps unintentionally highlighted a key dynamic running under the issue.

Although no committee member nor witness in favor of the bill delivered evidence that polling-place impersonation occurred here in a way that might influence election results, they sparked serious discussion about polling-place voter impersonation fraud. The effect was that, at some point, the argument turned almost imperceptibly from being about the need to battle polling-place fraud to the need to battle the perception that polling places are vulnerable to fraud, a perception spurred at least in part by the steady push year after year to pass photo ID laws.

Got a tip? Story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter.

“People were not citizens. They got their driver’s license, they became a citizen, they registered to vote, it’s a good thing. But I know some of that’s not OK. Now and then these things crop up in other states, big problems,” Gessler reportedly said. “The last two or three years prior to me taking office, there were about 150 people who had asked me to remove them from the voting rolls because they were non-citizens.

“So they’d registered to vote and then they’d realized, oftentimes when they applied for citizenship, that they’re not allowed to vote because of [being a] non-citizen, otherwise they can never become a citizen. So they asked to be removed, so I know there’s problems out there….

“Remember I told you about 150 people have been removed from the voter rolls as non-citizen? That number has ballooned to well over 400. In one more year we’ve more than doubled.”

Messages left with the secretary of state’s office seeking confirmation of the quotes and evidence to support the assertions they contain have so far gone unreturned.

In speaking to the Arapahoe County Republicans, Gessler, an unabashedly partisan conservative politics attorney for years before winning office, was defending moves he has made over the last year that he says were aimed at guarding against voter fraud. His actions– such as pushing legislation that would grant him the power to purge voters from registration rolls based on comparisons conducted by his office of “government databases” and suing Denver County to prevent its clerk from mailing ballots to registered voters before elections– drew howls from members of the media, county clerks and government watchdog organizations, who looked on them with deep suspicion and demanded evidence of voter fraud that might justify them.

Indeed, only weeks after taking office in 2011, Gessler had conjured the prospect that Colorado was plagued by noncitizen voter fraud in 2010. He delivered testimony in DC to that effect and the national Fox News website reported that 5,000 noncitizens had cast ballots here. Yet Gessler delivered scant evidence when journalists in Colorado came looking for him to back up his claims.

This latest report from the Statesman, published Thursday, continues a seesaw pattern, where Gessler pronounces a number– “400 noncitizens”– and the number is reported. Skepticism spirals out into the media landscape and then into the general public where the number and the word “noncitizen” live at the middle of a fuzzier, complicated, rippling story.

Still, Gessler’s latest comments on voter-roll purging came tied to red meat assertions about how the primary reason he ran for secretary of state was to help “stop the Obama train” and “turn it around,” so they come delivered in an especially charged package for an election-year audience.

Gessler, for example, told the Arapahoe Republicans that the alleged 400 noncitizens erroneously registered to vote had in fact been purged from the rolls. Removing a voter from the registration list, however, is an action that secretaries of state must do according to a process governed by federal law, according to Jenny Flanagan at Common Cause, a fact Coloradans may well recall.

“We’re talking about a systematic program proscribed by the National Voter Registration Act,” Flanagan told the Colorado Independent. “This is nothing haphazard.”

Flanagan’s group was part of the coalition that in 2008 sued then-Colorado GOP Secretary of State Mike Coffman to stop him from purging voter rolls in the state just weeks before the presidential election–the same election that put Coffman into Congress. The coalition was successful. U.S. District Court Judge John Kane ordered Coffman to cease and desist, calling the secretary of state “obdurate” for seeming to push back against the court on such a vital issue.

“Some voter registration rolls are messy, of course,” Flanagan said, “but… I can just say that these stories of noncitizens voting are always more complicated than they at first appear and so we are concerned.”

Flanagan said the 400 residents of Colorado, people who Gessler suggests in his quotes are documented but not yet citizens, would have had to submit requests to either the secretary of state’s office or county clerk offices to be removed from the voter rolls.

The Colorado Independent submitted an open records request with the secretary of state’s office Tuesday seeking documentary evidence that any such noncitizens asked to be removed from the rolls. According to state law, the secretary’s office has three days to deliver any relevant documents.

Got a tip? Story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter.

Pic by samantha celera, via Flickr

A right-wing group has announced it will “pressure states and localities” through lawsuits, if necessary, “to clean up voter registration rolls pursuant to Section 8 of the National Voter Registration Act (NVRA).” The group claims that several states, including Colorado, have voters on their registration rolls that are ineligible to vote.

Judicial Watch, a group that describes itself as a “conservative, non-partisan educational foundation [that] promotes transparency, accountability and integrity in government, politics and the law,” has announced it is setting its sights on voter registration rolls with help from a group called True the Vote.

True the Vote is a voter integrity initiative launched by the Houston tea party group King Street Patriots. The group held a national summit last year featuring some of the right’s most incendiary speakers, such as Andrew Breitbart, The Texas Independent reported. According to the Independent, “representatives from more than 25 states attended the two-day national summit in Houston to receive training and information about the conservative organization’s efforts to combat voter fraud.”

Catherine Engelbrecht, the president of King Street Patriots, said during the group’s summit that she is hoping to mobilize teams of three people to watch over every voting precinct in the country. That would add up to roughly 1 million right-wing tea party volunteers nationwide by the 2012 general election, the Independent reported.

Judicial Watch’s recent announcement, which is being circulated by at least one Florida tea party group, says the organizations are launching an “Election Integrity Project” spurred from an “ investigation based upon publicly available data indicates voter rolls.”

According to Judicial Watch, “the following states appear to contain the names of individuals who are ineligible to vote: Mississippi, Iowa, Indiana, Missouri, Texas, Ohio, Pennsylvania, West Virginia, Florida, Alabama, California, and Colorado.”

The group reports that it sent “initial warning letters on February 7, 2012, to election officials in Indiana and Ohio, as well as letters of inquiry to Florida and California officials, investigating problematic voting lists in those states.” The groups says they are launching this project because “election fraud was a significant concern during the 2008 and 2010 election seasons,” and states are currently poised to see rampant voter fraud in this year’s elections.

“President Obama and the Holder Justice Department evidently have no interest in clean elections this year, so this responsibility has now fallen to Judicial Watch,” Judicial Watch President Tom Fitton said in a statement. ”And given the rampant election fraud that occurred during the last two election cycles, this is a matter of the highest priority as we head into the 2012 election season. It is simply impossible to have any faith in the integrity of an election where dead people remain on the voting rolls. This is a recipe for voter fraud and stolen elections.”

Tea party and other right-wing groups have already been decrying looming voter fraud as the 2012 election approaches. In Florida, groups are preparing to get right-wing activists to man polling locations on election day.

In Colorado, Secretary of State Scott Gessler is known for his claims that voter fraud is a large problem in the state.

Altogether, the Secretary of State’s office certified 83,696 signatures out of the 86,105 needed to place a measure on the ballot this year. Organizers have until Feb. 21 to come up with 2409 more valid signatures. They expressed confidence today that they could do that.

Campaign leader Mason Tvert issued this statement via email:

Today’s news is unexpected, but it is really just a very small bump in the road on our journey to end the irrational policy of marijuana prohibition in the state. Fortunately, we started this signature drive in 2011 so that we would have the opportunity to cure any shortfall in our count. We now have 15 days to collect approximately 3,000 valid signatures. Given that we were able to collect an average of 3,000 valid signatures per week during the first six months, we are confident we will complete this process successfully and qualify the initiative for the ballot. Then, in November, the people of Colorado will help us tax and regulate marijuana and end the insanity of punishing adults who make the rational choice to use a substance less harmful than alcohol.

Today’s announcement follows one made January 19 by the Secretary of State’s office that because a random sampling of signatures turned in by initiative supporters indicated that the total number of valid signatures would likely be within 10 percent of the total number needed, a line by line verification of signatures was required under state law.

This measure would allow adults to possess up to one ounce of marijuana. A second group is working on another initiative that would legalize marijuana without placing a limit on how much a person could have.

Image: Campaign supporter and attorney Brian Vicente speaks to the press the day the petitions were handed over to the Secretary of State. (Kersgaard)

In past years, biweekly reporting was required beginning in the July before the primary, with quarterly reporting required before that. Last year, though, the legislature voted to move primaries from August to May but did not change the reporting requirements, thus creating a situation where biweekly reporting would have to begin almost a year before the primary instead of a month prior. That prompted Secretary of State Scott Gessler to implement a rule that eliminated bi-weekly reporting altogether.

Since quarterly reports had been required in the off-years, the SOS office said under current law, candidates would have to file both quarterly and biweekly reports, which the office said was absurd.

At a hearing last summer then-Deputy Secretary of State William Hobbs agreed that it is up to the Legislature to change or clarify the requirements for this year. In the meantime, though, he said the SOS wanted the new rule be adopted on an emergency basis.

That rule, which was adopted by the Secretary of State’s office, eliminated biweekly filing altogether, with quarterly reports filed in the year prior to the election, and then monthly reports being filed during election years.

Attorney Mark Grueskin, representing Citizens for Integrity, said at the time that that would mean a candidate could receive huge amounts of money in the month prior to the primary without having to report it until after the election.

Those opposed to the emergency rule stressed that it was not the Secretary of State’s responsibility to enact rules based on the idea that the Legislature screwed up.

“There is an assumption that the Legislature acts deliberately,” Grueskin said. He said there should be the same assumption when the Legislature chooses not to act.

He said the Secretary of State does not have the luxury of deciding what the Legislature meant to do and then crafting a rule based on what might have been meant. Best to leave the law alone until the Legislature can make itself clear, as needed, in January, he said.

Today, that happened.

The Colorado House of Representatives today passed Senate Bill 12-014, which establishes that biweekly campaign finance reports will be filed for several weeks prior to the primary election. The bill, sponsored by Sens. Bob Bacon, D-Fort Collins, and Ellen Roberts, R-Durango, and Reps. Bob Gardner, R-Colorado Springs, and Claire Levy, D-Boulder, synchronizes the statutory disclosure schedule with the new June primary date. The bill was signed by Gov. Hickenlooper today, the first bill signed this session.

Ethics Watch filed suit last year in Denver District Court challenging the rule on the grounds that the Secretary of State has no authority to override statutory disclosure requirements. The legislature’s Legal Services Committee voted 8-2 to reject the rule as exceeding the Secretary of State’s authority, leading Gessler to withdraw the rule on December 27. After the rule was withdrawn, Ethics Watch dismissed its lawsuit.

“We congratulate the legislature on its quick, bipartisan action to restore reasonable disclosure rules for the June primary,” said Luis Toro, director of Ethics Watch. “If Secretary of State Gessler had his way, voters would have been in the dark just as fundraising and spending pick up before the primary date. This is a victory for Coloradans from across the political spectrum who believe in the people’s right to know about money in elections.

“This shows there is bipartisan support in Colorado for transparency in campaign finances,” Toro added.

“Gessler said he was confident he could accomplish what he wanted to accomplish without legislation,” Katherine Vitale, an aide to House sponsor of the bill, Rep. Chris Holbert, told the Colorado Independent. “[Gessler] said there was no need for a bill.”

Vitale added that Holbert, a Republican from Parker, remains “tenaciously” committed to the issue.

Aides to the Senate sponsor of the bill, Highlands Ranch Republican Ted Harvey, told the Independent that reintroducing the bill is not among the senator’s immediate priorities this session.

Messages asking the secretary of state’s office to expand on Gessler’s plans were not returned.

House Bill 1252, Holbert and Harvey’s “Proof of Citizenship” legislation, mirrored a law that passed in Tennessee last year. Both bills came as part of a wave of Republican-sponsored election legislation introduced in capitols around the country.

The Colorado bill would have granted the secretary of state expansive power to throw registered voters off the rolls. Specifically, it would have required the secretary to “periodically check” voter registration records against a collection of databases “maintained by federal and state agencies.” If the secretary suspected that any registered voter “may not be a citizen,” he or she could initiate a 90-day process whereby the voter would have to prove again his or her right to vote.

For government watchdogs who have battled Gessler all year on issues from inactive voter ballots to campaign finance reporting thresholds and schedules, the news that he intends to address the “proof of citizenship” question through his office alone is as alarming as it is unsurprising.

“Last year, the secretary of state asked the legislature to change the law to give him authority to address this alleged problem,” Colorado Ethics Watch Director Luis Toro wrote in an email. “Nothing has changed since then, except that the secretary has apparently made the calculation that he won’t fare better with the legislature this year than he did last year. We appear headed for a repeat of the all-too-familiar pattern where Secretary Gessler simply does as he pleases, forcing someone to go to court for yet another ruling that the Secretary has overstepped his authority.”

Gessler, a high-profile Republican election and campaign finance law attorney, was a main driver behind the Proof of Citizenship bill. He testified on its behalf in Denver and on Capitol Hill, referring to a study conducted by his office that found more than 11,000 “individuals who (1) were non-citizens at the time they obtained a [Colorado] driver’s license, and (2) are registered to vote.”

Gessler was suggesting his office had uncovered a flaw in the state’s voter registration system that opened a door through which thousands of undocumented residents might land on the voter rolls and fraudulently cast ballots. It was a dramatic charge, although under scrutiny the numbers Gessler cited kept shifting, mostly downward. Thousands of illegally registered individuals became hundreds and then at last “106.” What’s more, Gessler was even less clear on whether or not even a single one of these 106 alleged illegally registered people had ever cast a vote.

Although county clerks, Democrat and Republican, pressed Gessler to reveal how and where they had failed to protect the state against fraud, they were never satisfied.

Gessler’s testimony in Denver and Washington and the study conducted by his office nevertheless garnered attention-getting headlines like the one run by Fox News pictured below, fueling doubts about the integrity of elections and playing into anti-Latino sentiment bolstering Tea Party legislative and election campaigns coast to coast.

Opponents of the Proof of Citizenship bill railed against it as flawed in its purpose and its design. They said there would be no real oversight on the secretary’s review of voter registration records and that, more significantly, the legislation proposed a solution to a problem that they believed Gessler had failed to persuade existed.

The fact that Gessler never produced substantial clear-cut evidence that the kind of voter fraud he was alleging had occurred bolstered the views of skeptical lawmakers that his claims did not justify putting in place a major new election law that could work to throw legitimate voters off the rolls, even if the new powers granted to the secretary’s office were not abused.

Asked by the Colorado Independent to examine the bill last year, Estelle Rogers, director of advocacy for Project Vote, said the bill should surely be rewritten or opposed.

“This does not appear to be a usual proof of citizenship bill,” she wrote in an email. “Instead it purports to allow ongoing questioning of one’s citizenship once a registrant is already on the rolls, setting up a class of voters who are, in effect, constantly ‘on probation’ because the secretary of state has ‘reason to believe’ they are not citizens.

“The secretary says he is ‘certain’ that 106 people on Colorado’s voter roll of 3.7 million are ‘improperly registered.’ That’s about 0.0028648648649 percent of the voter roll. Obviously such an error rate is to be expected whenever human beings are copying data from one list to another. Before the secretary of state jumps to the conclusion that these are 106 cases of voter fraud, he should have a lot more evidence than mere suspicion. Non-citizen voting is a fashionable political theme these days, but it has no basis in reality. And the right to vote is too important to confuse with sloganeering.”

Gessler recently announced he was seeking to loosen rules governing the use of electronic voting machines in the state, raising eyebrows again, given the dismal record of e-voting machine reliability over the last decade in the United States.

Got a tip? Story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter.