AG Candidate Loses District Court Fight to Get on Primary Ballot, Appeals Decision

AG Candidate Loses District Court Fight to Get on Primary Ballot, Appeals Decision
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Brad Levin mounted every argument he had to get his name on the June primary ballot.

The Democratic candidate for attorney general claimed before a state district court judge on Wednesday that the Colorado Secretary of State's Office wrongly threw out thousands of his signatures over technicalities.
Thousands of other signatures, he argued, were tossed based on what he says are unconstitutional election laws.

Levin turned in 15,996 signatures to support his candidacy for the attorney general race, even though he only needed 10,500. But the secretary of state tossed thousands in the verification process, leaving him 1,521 short of being eligible for the ballot. More than 2,700 signatures were tossed because they were either signed by or circulated by unaffiliated voters, which Levin says violates their rights. State law now allows unaffiliated voters to cast their ballot in the primaries, but they still can't choose who gets on the ballot, and they can neither circulate nor sign petitions..

"If you're allowing them to vote in the primaries, they should be able to choose who should be on the primary ballot," Levin says.

Levin also argued that the requirement for 1,500 petition signatures from each congressional district violates the "one person, one vote" rule under the equal protection clause of the Fourteenth Amendment. He says that voters in Denver, where registered Democrats run in the hundreds of thousands, are valued less than those in, say, Colorado Springs, a Republican stronghold with far fewer Democrats. The number of signatures required of each of those congressional districts are the same to get on the primary ballot, which he says places more value on districts with a scarcity of Democrats and reduces the value of a person's signature in predominantly Democratic districts.

click to enlarge Brad Levin is a Democratic candidate for attorney general in 2018 and an attorney at Levin Sitcoff. - COURTESY BRAD LEVIN
Brad Levin is a Democratic candidate for attorney general in 2018 and an attorney at Levin Sitcoff.
Courtesy Brad Levin
"It's diluting the impact of a person's vote," Levin says, adding that it shouldn't matter which districts the signatures for a statewide candidate come from as long as the 10,500-signature requirement is met.

But the judge didn't buy any of Levi's arguments. After six hours of testimony, he was denied as a Democratic candidate for the primary ballot.

"That's a pretty rare move for a judge," says Lynn Bartels, the communications director for the secretary of state's office. "Usually if you sue, you get on the ballot because we have to [strictly] follow the law when we say we can't count this signature."

But the fight for the primary ballot isn't over just yet. Levin appealed to the Colorado Supreme Court on Thursday and is asking for emergency relief to have his name placed on the ballot.

Levin hopes the state Supreme Court will clarify a wonky statutory provision that forces the secretary of state to toss signatures over technicalities but allows the courts to intervene and reverse those decisions on a lesser standard known as substantial compliance. An example would be a petitioner listing their P.O. box address rather than the address on their voter registration. Under current law, the secretary of state is forced to throw out that signature even if it aligns with a registered voter because the address is technically incorrect. But the court's lesser standard could reinstate that signature.

"The idea that you have to hire lawyers doesn't make sense," Levin says about working through Colorado election law.

Levin isn't the only candidate to sue over ballot petition issues, although his signature deficiencies are far greater than other candidates who have sued the state over ballot access this cycle.

U.S. Representative Doug Lamborn almost didn't make the ballot. He was initially approved by the secretary of state, but political opponents sued to knock him off the ballot, arguing that he illegally gathered signatures by using out-of-state residents. The case made its way to the Colorado Supreme Court, where several petitions were thrown out because of circulator residency issues. That left Lamborn 58 signatures short of the 1,000-signature requirement, knocking him out of the race.

He sued, and on Tuesday, a federal district court ruled the petition-circulator residency requirement unconstitutional, putting Lamborn back into the race a day before the state was slated to finalize the candidate lists for the ballots. Lamborn has also filed a second lawsuit: a fail-safe to recoup about 100 signatures invalidated over technicalities in case his constitutional argument failed.

Representative Polly Lawrence, a Republican candidate for state treasurer, used the same signature-gathering firm as Lamborn, Kennedy Enterprises. After some legal challenges, she made it onto the ballot. And when Walker Stapleton, the GOP favorite for governor, learned that Kennedy Enterprises used the same petition circulator on his campaign that put Lamborn in hot water, he withdrew his ballot petition after he'd already secured a spot in the primaries and gambled with the Republican state assembly, where he ultimately clenched a nomination.

Republican gubernatorial candidate Doug Robinson didn't have an out-of-state circulator problem, but he was just 22 signatures short of qualifying for the ballot. After suing to reinstate signatures lost over technicalities, he made it back onto the ballot.

Levin, on the other hand, hasn't been as lucky with his legal strategy.

Levin says that the time crunch to certify the ballot — the secretary of state started to print ballots on Thursday morning without Levin's name — might have been the linchpin that sunk his campaign in court. But he remains hopeful that the state Supreme Court will side with him and his name will be put on the ballot.

The state is under a serious time crunch. Not only does it have to prepare ballots for counties across the state, some of which have more than 200 different formats, but it has to send ballots overseas. The Department of Justice warned the state this week about meeting the federally mandated deadline for absentee ballots for military personnel and expatriates on May 12.

But what happens if the Colorado Supreme Court sides with Levin?

"We'll deal with it when it happens," Bartels says.
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Nora Olabi covers general and breaking news for Westword with an emphasis on politics and local government. Prior to making her way to the Front Range and joining Westword in 2017, she worked at major Houston newspapers. She's a proud Houstonian who's acclimating to snow and mountain living.
Contact: Nora Olabi