Scott Gessler's emergency election rule shot down by Colorado Supreme Court
Secretary of State Scott Gessler overstepped his bounds when he issued an emergency rule on election night in November 2013 declaring that votes cast for ineligible candidates are invalid and shouldn't be counted, the Colorado Supreme Court ruled this week.
Gessler on Westword's cover.
In a legal challenge brought by eight voters in the Adams 12 Five Star School District, the high court sided with the voters, finding that Gessler's rule conflicts with a state law that says such votes "are to be counted and recorded."
The story behind the legal fight begins with Amy Speers, a nurse who decided to run for the school board against incumbent Rico Figueroa. Both wanted to represent District 4, which includes parts of Northglenn and Thornton.
Speers's campaign was going well, but a week before the election, Adams 12 officials discovered that she lives outside District 4. The boundaries for school board members had been redrawn in 2012, though Speers didn't realize it when she signed up to run.
Even after the discovery, she refused to withdraw from the race. She says she encouraged people to vote for her anyway to send a message that District 4 supported non-conservative candidates such as herself.
But at 5:19 p.m. on election day, Gessler issued an emergency rule that blocked Speers's votes from being counted. The rule states, "If the designated election official determines, after ballots are printed, that an individual whose name appears on the ballot is not qualified for office, the votes cast for that individual are invalid and must not be counted."
Soon thereafter, a group of eight citizens filed a lawsuit against Gessler and the clerks, alleging that the emergency rule went against the law. They argued that the clerks should count Speers's votes -- and that if she won, the District 4 seat should be declared vacant and the school board should appoint someone to fill it.
On November 18, Denver District Court Judge Robert Hyatt sided with the eight citizens. Within the next few days, the counties that comprise Adams 12 released the vote totals: Speers earned 24,169 compared to Figueroa's 14,081. She'd won the election.
Gessler wasn't happy with that ruling. He appealed it to the Colorado Supreme Court, which heard oral arguments on January 29. On April 7, it issued its ruling (which is on view below in its entirety). In summary, the high court found that according to state law, the only instances in which a candidate's votes should not be counted is if the candidate withdraws from the race or dies. In all other instances -- including when a candidate is found to be ineligible -- the votes should be counted. The justices also disagreed with the part of Gessler's rule that says an election official can determine whether a candidate is ineligible. Only a court can make that determination, the justices ruled.
Rico Figueroa and his wife.
However, the members of the high court didn't weigh in on whether Figueroa won the District 4 seat by default or whether the seat should be declared vacant. They left that decision up to the district court in Broomfield, where Figueroa has filed an election challenge.
Gessler spokesman Rich Coolidge e-mailed us the following statement: "Unfortunately, five months after the election, parents still don't know who their school board member should be because of an administrative mistake. The Supreme Court's decision moves the debate back to the lower court and pushes the legal costs on the candidate."
Read the state Supreme Court's ruling below.
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