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Scott Gessler, two county clerks targeted with lawsuit over "election from hell"

Lu Busse.
Lu Busse.

The "election from hell." A "COLOSSAL problem." A "stunning level of incompetence."

These are all phrases used to describe a primary race in Teller and Douglas counties that was allegedly so disastrous that one of the candidates, in a new lawsuit, is arguing that the election should be voided.

First proof the process was a mess? Those quotes all come from officials in charge of the election -- the ones being targeted in the suit.

The filing, from late last month, was made by Lu Ann Busse, a Republican candidate in Colorado's House District 39, which includes parts of Douglas and Teller counties. Busse, 56, who lives in Douglas County, lost her primary race for the open seat and is arguing that the election was plagued with so many different problems that a judge should void it. She is suing clerks in both counties as well as Secretary of State Scott Gessler, who oversees elections in the state.

Secretary of State Scott Gessler at a recent press conference.
Secretary of State Scott Gessler at a recent press conference.
Sam Levin

And internal documents from the Secretary of State's office (on view below), along with comments directly from Teller County Clerk Judith "JJ" Jamison, reveal that officials facing the lawsuit agree that the election was, in many respects, a huge debacle.

Before we get into what allegedly went wrong here, it's worth noting why -- beyond the scope of a primary impacting two counties of Colorado -- this case matters.

"If we have the problems that went on in Douglas and Teller counties and those continue to the general election," Busse says, "we are going to have significant issues, because either side could come in and...challenge."

In other words, doubts about the process in any Colorado counties could potentially open the door for candidates to contest the results in the November presidential election -- in the worst case scenario prompting a recount like the infamous 2000 one in Florida. And in a swing state like Colorado that could determine the next president of the United States, every vote counts.

Anyway, here are what Busse sees as the main flaws in the election -- ones that, in her opinion, should encourage a judge to rule null and void.

In Douglas County, ballots had unique bar codes that made them traceable to specific voters, violating voter's right to secret ballots. This has been an issue in counties across the state, and Gessler recently adopted an emergency rule to ensure that in November, no counties will have ballots with unique bar codes that could, in theory, be traced back to voters.

In Teller County, the situation is more complicated.

"It was a flawed election from the start," Busse says.

In Teller, mail-in ballots were sent out without a place on the envelopes for voters to sign, which is required, and Busse says more than 70 percent of the ballots in the primary were mail-in. When county officials realized the mistake, Busse alleges that the county clerk let voters just send in signatures pretty much any way that they could -- faxing, scanning, e-mailing, mailing, etc. The lawsuit says that in trying to correct the mistake this way, Teller County officials violated a rule mandating that voters sign affidavits in person in front of the clerk or her designee.

Lu Ann Busse
Lu Ann Busse

Busse also invokes the Fourteenth Amendment in her lawsuit, arguing that the election as a whole violated voters' right to equal treatment given that the unique problems in each county made access to voting inconsistent across the district.

For one thing, Teller County voters could mail in their signatures, whereas Douglas County voters who may have forgotten to sign their envelopes did not have the same opportunity -- one that existed only because of Teller County's original error. Busse says Douglas County results show that 107 ballots were rejected because they were returned with missing or questionable signatures. These are voters who theoretically would have been able to vote through the last-minute correction in Teller. At the same time, voters in Teller County had secret ballots without unique bar codes, while those in Douglas did not.

And those are just some of the complaints in the lawsuit.

"My contention is with the fundamental problems of the election," Busse says. "All these things combined could have made a difference of several hundred voters, which means I could've won the election."

Busse even paid for a recount, which she argues was still riddled with most of the same problems. (In the recount, she got 3,109 votes and her opponent earned 3,570 votes, according to her website).

"My bigger focus is standing up for the constitutional statutory rights of all voters," Busse says.

And documents obtained by a voter rights advocacy group show that Teller County has been a major headache for Scott Gessler's office.

Continue reading for internal Secretary of State documents as well as responses from both counties.

Marilyn Marks, founder and president of Citizen Center, a nonpartisan, nonprofit group that focuses on accountability in elections, has been supporting Busse in this case, in part because she has been at the forefront of the fight to eliminate traceable ballots.

Marks filed requests using the Colorado Open Records Act and was able to obtain documents featuring exchanges between different officials in the Secretary of State's office. Here's an e-mail from Gary Zimmerman, an official in Gessler's office, to several others, about problems in Teller County:

Scott Gessler, two county clerks targeted with lawsuit over "election from hell"
Courtesy of Marilyn Marks

Here's another statement from Judd Choate, director of elections, to Gessler:

Scott Gessler, two county clerks targeted with lawsuit over "election from hell"
Courtesy of Marilyn Marks

The Secretary of State's office acknowledges the problems in Teller County. A report about the primary from Gessler's office, dated August 13 and on view below, says: "Based upon an eighteen-month assessment of activity in Teller County, the Secretary concludes that Teller County is not prepared to properly administer elections."

Rich Coolidge, spokesman for Gessler, says the office received the lawsuit last week and is reviewing it.

In the meantime, Gessler's office has brought in an official from Arapahoe County to oversee elections in Teller to ensure the November vote goes smoothly.

"We are putting the right people in place to make sure Teller County voters have a fair [election]," he says, adding that the report speaks for itself in regard to concerns with the county clerk.

For her part, Teller County Clerk Judith Jamison admits that it was pretty bad.

"Anything that could go wrong did go wrong," she says, adding, "It was the election from hell."

She says fires around Election Day on the west side of the county made it very difficult for her office to run things smoothly, with some staff members forced to evacuate.

As per the mistake with the mail-in ballots, she says, "It was a clerical error.... I have nothing more to say on that."

She adds: "We learned a great deal about our equipment and some best practices and procedures for doing this, and this office is moving forward with grace."

Meanwhile, Lance Ingalls, Douglas County attorney, tells us in an e-mail that the county did not violate any provision of the Colorado Constitution with regard to the secrecy of ballots, saying in part:

Consistent with legal precedent, Douglas County has at all times carefully protected secrecy of ballots throughout the primary election process on all ballots and does not agree with Ms. Busse's contrary conclusions. Bar codes are used to preserve the integrity of the election and process and are separated from voter identifying information (e.g. mailing envelopes) in a highly regulated process and still within secrecy envelopes, before any ballots are counted or election choices revealed.

And in regards to questions about inconsistencies across the two counties, he writes:

While Douglas County is in no position at this point to comment on alleged differences in procedure between Douglas County and Teller County, Douglas County believes all of its procedures were legally adequate and appropriate.

For Marks, a frequent critic of Gessler and the county clerks, time is running out for Colorado to clean up its election processes.

"It is a huge mess, and it shows how unready we really are for the election in November," she says.

Continue reading for some of the key documents involved in this case.

Internal e-mail from the Secretary of State's office, courtesy of Marilyn Marks:

Choate on Teller

Busse v. Gessler petition:

Petition for Emergency Relief Busse v Gessler

Teller County Primary Election Report from Secretary of State Scott Gessler, August 13, 2012:

Teller County Primary Election Report, August 13, 2012

More from our Politics archive: "Where's Mike Coffman? website targets congressman -- and his campaign hits back"

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


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