Scott Gessler v. Denver clerk Debra Johnson in latest lawsuit to target Secretary of State
After responding to some negative headlines surrounding a botched voter registration mailing, Secretary of State Scott Gessler is fielding more criticism this week -- this time from a lawsuit that first reached his office via reporters' inquiries.
The suit comes from Denver Clerk and Recorder Debra Johnson, a Democrat, who is concerned that a new rule from the Secretary of State would stop some registered voters from receiving mail-in ballots. Gessler says it won't.
Announced on Wednesday, the complaint is the latest suit to arrive on the desk of Gessler, who has been facing a steady stream of criticism and opposition in the months leading up to the November election.
This month, Gessler's office accidentally sent thousands of mailers to registered voters across the state, telling them state records indicated that they were not registered -- a mistake, which some county clerks say has caused a great deal of confusion for legal, registered voters.
Sam Levin Scott Gessler talking to reporters earlier this month.
There's also been fallout from these errors in a registration drive that was supposed to disprove accusations that he is suppressing, not encouraging, voters. But Johnson's suit is actually focused on a rule that wouldn't impact voters in November -- and could instead potentially affect voting in local municipal elections in 2013.
In a press release, Johnson's office said it was challenging election rules recently enacted by the Secretary of State that would impose new restrictions on mail ballots in local, municipal elections such as school boards.
The rules, adopted in August, would restrict county clerks from mailing ballots to voters considered by Gessler's office to be "inactive" -- meaning those who didn't vote in the last election cycle, according to Johnson's office. And this would be a violation of Denver's "home rule authority," which states that the clerk and recorder should have exclusive authority over the conduct of municipal elections.
Johnson says that Gessler is overstepping his bounds by putting in place new rules that are essentially rewriting state law -- an accusation he has also faced from government watchdog groups surrounding campaign finance disclosure policies.
"This rule is stating that I don't have authority in municipal elections," Johnson says. "If you are in the inactive category, you would not receive the ballot in the mail."
Some have see the "inactive" designation as problematic, because voters earn that label after missing an election -- and they may not even realize this would put them in a group that would no longer receive ballots in the mail.
The latest available numbers from Gessler's office shows that there are 1,161,088 inactive voters who are still considered registered.
"I have problems with that whole category to begin with," Johnson says. "An inactive-failed-to-vote elector is a qualified elector.... Just because we have that category doesn't stop them.... It means they have to go through one extra step to get the mail-in ballot."
Johnson emphasizes that the rule change would not affect the November 6 election, but that the clerk's office was required to file the suit because of a 35-day legal deadline for challenging Gessler's rules.
Continue for responses from Gessler's office and Denver Mayor Michael Hancock.