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Scott Gessler pushes new bill that would allow him to remove non-citizen voters from the rolls

This week in print, we take an in-depth look at Secretary of State Scott Gessler, who has faced ongoing accusations of suppressing voters.

We published the story the same day that Republican lawmakers at the start of the new legislative session put forth a bill they crafted with Gessler that would allow his office to directly remove voters who he believes aren't American citizens. The full bill is on view below.

As we've reported, Gessler -- the state's chief election officer and a Republican who has gotten a great deal of attention not typical of his office -- made it a priority from the beginning of his term to proactively pursue voter fraud.

In print, we detail the various steps Gessler and his staff have taken as part of the anti-fraud project, including cross checks with state and federal databases to identify immigrants who are incorrectly registered to vote. Twice, he sent large groups of suspected non-citizens letters asking them to prove their citizenship or remove themselves. Their names were also sent their names to county clerks.

Secretary of State Scott Gessler
Secretary of State Scott Gessler
Sam Levin

Voter rights groups and left-leaning critics have consistently slammed these efforts as a wild goose chase and one that has the potential to intimidate or disenfranchise legal voters; Gessler says he is simply addressing registration loopholes -- making elections cleaner and voter rolls more accurate.

Since he stepped into office, a total of 518 registrations were cancelled because those listed aren't citizens. Gessler has repeatedly emphasized that he has not directly removed any voters.

That could change going forward, though, if the Secretary's new legislative effort is successful.

"What we're trying to do is seek express authority to be able to remove non-citizens," says Gessler spokesman Rich Coolidge.

House Bill 13-1050, on view below, has sponsorship from Republican Representatives Lori Saine and Chris Holbert in the House and Kevin Grantham in the Senate.

Gessler's office and election officials across the state maintain the voter rolls and currently are able to remove ineligible voters who have died or are felons. Non-citizens also aren't allowed to vote or be on the rolls, but Coolidge says there is a lack of clarity in terms of how the Secretary of State's office can handle these voters.

"What this does is give us the...authority in the law to be able to [remove non-citizens]," he says.

Saine, who is sponsoring this bill as her first of the session, says the idea is a no-brainer.

"The integrity of our elections is such a nonpartisan issue," she says. "The General Assembly is constitutionally obligated to pass laws that secure the purity of elections."

She continues, "It's an issue of fairness on many, many levels.... For immigrants, the very objective and goal to become citizens is permanently damaged when they register to vote."

Saine is echoing a common refrain of Gessler, who says that in preventing fraud, he is not only making the elections more fair, but he is also doing a service to immigrants who, due to loopholes in the system, may accidentally register. If they do ultimately vote, it is against the law and can hurt them when they are trying to become citizens. As proof of this problem, Gessler's office has shared with us numerous letters from confused immigrants asking to be removed from the rolls.

Saine says if even one person illegally votes, it diminishes the integrity of the whole process. "We want to make sure every vote counts."

Continue for more details on the bill and response from Colorado Common Cause.

How would the proposal work?

If the law passed, Gessler's office could remove suspected non-citizens, who would then have the opportunity for a hearing on the matter to present their side -- and potentially proof of citizenship if they have been incorrectly flagged.

The bill says, in part:

The secretary of state has unambiguous existing authority to detect and electronically cancel the registrations of electors who are deceased or have been convicted of a felony, but there is no explicit analogous authority pertaining to removal of non-citizens from the voter registration record; and.... Therefore, consistent with the foregoing, the general assembly finds it necessary to:

(I) Direct the secretary of state to ensure that the names of persons who are not citizens of the United States and thus ineligible to vote do not appear in the voter registration record; and

(II) Clearly affirm the ability of the secretary of state to cancel ineligible voters from the voter registration record.

Coolidge emphasizes that the legislation would give the Secretary of State this authority but also would require an administrative hearing before his office can cancel the voter.

"It provides due process...a public hearing to say the federal government has identified you as a non-citizen," he says.

His office has identified non-citizens on the rolls by cross-checking names with a federal database called the Systematic Alien Verification for Entitlements Program, or SAVE, which is part of U.S. Citizenship and Immigration Services.

Gessler has unsuccessfully pursued similar anti-fraud legislation in the past, and the groups that have been critical of this work are likely going to be loud opponents this time around.

The problem, they say, is that the SAVE information can be inaccurate and out-of-date and is not designed to function as a verification tool for voter rolls. That means if someone is incorrectly flagged -- and we've interviewed two different legal citizens who were falsely thought to be immigrants -- they could be disenfranchised.

Under past procedures, in which Gessler only sent letters, the concern was that individuals could be intimidated or confused by the process. With this new proposal, the potential for suppression is even greater, critics believe, because his office would have direct authority to remove them, and if legal citizens are targeted and don't show up to the administrative hearing, they would lose the right to vote.

"Whenever you question a voter's eligibility, it can create an intimidating environment, and that's always a concern," says Elena Nunez, executive director of Colorado Common Cause, a group that has closely scrutinized Gessler since he took office. "But this raises...the concern.... If the person doesn't participate [in the hearing]...they can be removed and won't be eligible to vote."

She says, "We continue to have concerns about using [this]...database.... We think it's an appropriate debate for the legislature to have, and we'll encourage [lawmakers]...to reject the bill. The Secretary of State should be focused on making sure all eligible citizens can participate, not continuing this project."

Coolidge counters that if the federal government has someone listed as a non-citizen, and for some reason that's inaccurate, those individuals should know about it. Additionally, he argues, it would be easy for legal citizens to prove that they are legitimate voters and avoid being removed if there were errors in data.

Scott Gessler in his office.
Scott Gessler in his office.
Photo by Mark Manger

"We have a safeguard in place," he says, referencing the administrative hearing. "If they have inaccurate immigration [records], it's good for the person on the ground to know the federal government doesn't recognize them as a citizen."

He adds, "If they simply say, here's proof of citizenship, we are all set."

Continue for more details on the proposal and the full bill.

Coolidge says Gessler's office is interested in getting access to other federal databases that have relevant immigration information, but notes that his office would not use records from the state Division of Motor Vehicles to remove suspected non-citizens under this law. (The office has used the DMV records in the past to send letters and may continue to do similar checks, but, Coolidge says, would not remove registered voters who had at some point shown an immigration record at the DMV).

"We should make every effort we can to use every database available," says Saine. "It's just...common sense, whether it's one or 5,000 [ineligible voters]."

It makes for a more consistent process, she argues, noting that suspected felons or deceased individuals can be removed. "Why would possible non-citizens be any different?"

Coolidge says that suspected non-citizens, unlike felons or deceased voters on the rolls, would have an expanded opportunity to respond and prove eligibility.

"It's a more thorough process," he says.

"This is our suggestion to the legislature," he continues. "If they have a better idea...we are willing to have that conversation at the Capitol."

Coolidge adds that with the general election passed, "we have breathing room to develop the idea."

Here's the full proposal.

House Bill 13-1015

More from our Politics archive: "Scott Gessler: Inside Colorado's charges and prosecutions of voter fraud"

Follow Sam Levin on Twitter at @SamTLevin. E-mail the author at Sam.Levin@Westword.com.


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