Recall: Attorney general on John Morse-Angela Giron election confusion

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John Morse.
On September 10, as we've reported, voters in southeastern Colorado will decide whether state senators John Morse and Angela Giron should be recalled because of their advocacy of gun-control measures. But with the election looming, a technical question over the vote threatens to make a controversial matter even messier. Hence, Governor John Hickenlooper has asked the Colorado Supreme Court for guidance. Colorado Attorney General John Suthers describes the basics for us.

Suthers says the constitutional provision applicable in this situation dates back to 1912, "and the fact that a lot of our recall law stems from 1912 has proved to be problematic throughout this process.

"It hasn't been tested statewide -- this is our first legislative recall -- and we had an issue come up a couple of weeks ago, where the constitutional provision said you had fifteen days until the recall election to petition for the ballot, but the election law said ten days. So those were in conflict, and Judge [Robert] McGahey said, 'I understand, but I've got to go with the Colorado constitution,' which effectively caused the election to be a ballot-box election rather than a mail-in election."

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John Suthers.
As for the latest complication, Suthers notes that the Colorado constitution sets the recall election and a vote for a possible successor to that office holder at the same time, rather than on different dates. Moreover, language requires that "you have to vote in the shall-we-vote-to-recall election before you can vote for the successor," Suthers points out.

California also has such a format when it comes to recall elections -- and back in 2003, when a vote was held about whether or not to recall that state's governor, Gray Davis, the provision was challenged.

In the end, "a California federal district court said it was unconstitutional to require you to vote in the first election in order to vote in the second election," Suthers explains. "Basically, it followed some general case law saying that you don't lose your right to vote in any election by your failure to vote in a prior one."

Election advocate Marilyn Marks, who's been working with the Libertarian Party in matters related to the Morse-Giron recall, brought up this subject, Suthers continues, and it proved serious enough for the attorney general's office to suggest that Hickenlooper raise it in an interrogatory before the Colorado Supreme Court. Suthers couldn't do so directly, because rules dictate that interrogatories can only be presented by the governor or the two houses of the legislature.

In Suthers's view, there's a need for clarity. "Rather than having the election take place and it's very close -- and we've got a constitutional question about whether we count the votes in the candidate portion if people didn't vote in the recall portion -- we convinced the governor that he needed to go to the Supreme Court."

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Angela Giron.
With that in mind, Suthers's office filed a brief on behalf of the Secretary of State "saying his preference would be for us to recognize the Colorado constitutional provision, because the California district court case is just that -- a federal district court ruling, and not a 9th Circuit or U.S. Supreme Court case." As for Giron and Morse, "they said, 'We don't think you should accept the interrogatory, but if you do, you should follow the Colorado constitution.'"

What are the state supreme court's likely options? The justices could potentially change their minds about accepting the interrogatory, Suthers acknowledges, "or they could say the Colorado constitution prevails, in which case the clerks will have to see if they answered the first question without determining the identity of the voter -- and only if they answered that will who they voted for [to replace Morse and Giron] count. Or they could say it's a violation of the First and the Fourteenth Amendments to require that you vote in the early election, so you don't have to pay attention to whether that person voted in the recall to count their vote on the successor."

Whatever happens -- and Suthers thinks the court could answer the question as early as today -- he believes that "the legislature is going to have to refer something to the voters to clean up a couple of provisions in the recall portion of the constitution that are pretty outdated."

After all, the vote on the fate of Morse and Giron proves recall elections aren't just theoretical. They can happen -- and in this case, one will, just a couple of weeks from now. But whether all the votes will count is another matter.

More from our Politics archive circa July: "Morse recall: The party-line politics of a gun-rights battle."

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22 comments
Rob Shander
Rob Shander

Wrong Dan.....maybe you should take some history lessons........

Jasun Thomas
Jasun Thomas

Yes they should. The people do not "overwhelmingly support gun control" that's a media lie. People want government to stop writing laws to take away rights, and even worse using lame titles like "common sense gun laws". The laws in place now work just fine if we had a legal system that worked the way it's supposed to. Making new laws will not make anyone safer.

Rich Madison
Rich Madison

This is not about gun control. The fact that people keep regurgitating that is ridiculous. These recalls are due to the fact that these politicians refused to listen to their constituents. Morse himself said on national television that he was ignoring people who disagreed with him even though they outnumber his opinion significantly. It doesn't matter what the issue is. When an elected official promises to represent you and then they REFUSE to represent you they outright lied and manipulated the people for person gain. This lack of integrity and character does not belong in our government. Unfortunately people get so wound up in 'politics' and supporting their 'party' that they fail to see this.

Dan Brown
Dan Brown

Incorrect. They are elected to do the right thing, not the popular thing.

Armin Cosmo Sarabi
Armin Cosmo Sarabi

No, they deserve to lose their jobs for violating the Constitution.

Gipke Mikel
Gipke Mikel

Yes, The Deserve To Be Fired, And Never Allowed Another Federal Job.

Gerald Calvin Bohmer Jr
Gerald Calvin Bohmer Jr

:) The NRA is funded by individual contributors for the most part. I'm sure there are sponsors among the manufacturers as well. However, I was referring to Bloomberg putting his nose in where it has no business. I'd like to see all PACs outlawed myself. Let the people learn for themselves, rather than be spoonfed by mass media.

Joe Felice
Joe Felice

And, of course, no other issue ever attracts "out-of-state" money. Where do you think the NRA gets the majority of its money?

Joe Felice
Joe Felice

Of course they don't! No one should be subjected to this sort of tyranny for their political views. They were elected to do a job. The majority of Coloradans overwhelmingly support gun control, so I would say these folks did the job they were elected to do. Plus, their constituents knew how they felt on these, and other issues when they voted them into office. Just think how dysfunctional we will become now that extremists have figured out how to terrorize politicians (in addition to sending 211 members to kill them). If you don't like the way your representative votes, your option is to vote differently at the next election, not waste the taxpayers' money holding a "special" election only-one year before the next congressional election. Unbelievable! This will not serve our country well, regardless of your political view point.

Rob Shander
Rob Shander

To ANYONE who thinks that elected officials are to vote on bills based on their personal beliefs instead of the will of their constituency you need to go back to school and study American history. It is called checks and balances. You get some idiot who wants to impose his agenda, which is a direct violation of our constitution, they will face those who chose them to represent and face the consequences......

Pam Stiffler
Pam Stiffler

This is America. The way it's supposed to work, the elected officials are supposed to express what their constituents say, not their own agendas (doesn't usually happen that way...nothing new). If you want them out, vote them out next election. Quit wasting money on freaking temper tantrums.

Michael Sabin
Michael Sabin

Yes, Send them to work with Bloomberg....he likes lackeys...

Clayton Capra
Clayton Capra

Morse should because he's a sneaky little bastard.

Gerald Calvin Bohmer Jr
Gerald Calvin Bohmer Jr

Yes. The measures they pushed were backed by out of state money & have NO PLACE in Colorado.

Russ Hollar
Russ Hollar

Yes because it's the will of the people

Dan Brown
Dan Brown

No. Representatives are not elected to do exactly what their constituents want, they are elected to do what is best for their constituents. The attempt at common sense gun law (attempt... wish it had been written better) was the right idea.

Suni Daze
Suni Daze

No its the will of the people

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