Inside Candice Bailey's Suit Against Aurora Over Felony Conviction

Candice Bailey is an Aurora activist and advocate who hopes to run for Aurora City Council in order to effect change in her community, including ending perceived police bias against people of color. But because she has a felony conviction on her record, Aurora's city charter deems her ineligible to become a candidate.

Colorado's branch of the American Civil Liberties Union would like to change that. So the organization filed suit in late May on Bailey's behalf, and ACLU of Colorado legal director Mark Silverstein puts the matter in stark terms.

"We filed suit to challenge the provision of Aurora law on the grounds that it violates our client's constitutional rights," he explains.

Aurora spokesperson Ryan Luby declines to weigh in on the case because the litigation is active — but he does offer some context. "It is important to note that Aurora’s felony candidate rule was first included in the city charter, which was approved by voters in 1961," Luby points out. "City officials must follow the city charter. Any changes to the charter require voter approval."

Bailey's criminal record dates back to the end of the last century: In 1999, when she was 22 years old, she entered a guilty plea to second-degree assault and served approximately three years in prison. But Silverstein stresses that the consequences of such a mark should be limited.

"The Colorado Constitution actually speaks to this issue in regard to civic life," he says. "When you're sentenced to prison, you lose your right to vote — but it's automatically restored when you've completed your sentence. The Constitution says your full rights to citizenship are fully restored, and that includes not just the right to vote, but the right to run for public office."

As a result, he continues: "It's a violation of our client's rights for Aurora to hold that our client is permanently disqualified from public office in that city simply because of a two-decade-old felony conviction. She could run for the House of Representatives, she could run for any statewide office — but for some reason in Aurora, a felony conviction bars her from participating in local government in that manner."

Silverstein believes that the Aurora charter language "also violates the rights of her supporters, who have the right to vote for who they feel would best represent them," he adds. "And if the felony conviction makes enough of a difference or not, there's no reason why the City of Aurora, as a matter of law, ought to take away that right from voters. It's not like the felony conviction would be some kind of secret during the election. Everyone who participates will know that Candice Bailey has a felony conviction on her record. But what's important is that she be allowed to ask voters to view her as she is now, and not who she was two decades ago."

That same logic applies to Bailey's filing for personal bankruptcy in 2017. If her past financial challenges trouble voters, they can throw their support behind someone else, but as a candidate, she can offer an explanation as to why such matters shouldn't be disqualifying. For example, while Donald Trump never filed for personal bankruptcy, his hotel and casino businesses took advantage of bankruptcy laws six times between 1991 and 2009, yet he was still elected President of the United States in 2016.

There's a Colorado precedent for felony convictions being used to prevent a person of color from running for a position with municipal government: the Reverend Promise Lee, who recently served as a spokesperson for De'Von Bailey, a teenager fatally shot by Colorado Springs Police officers in 2019.

"Twenty years ago, Colorado Springs adopted an ordinance that would have prevented Reverend Lee from running for city council, a candidacy he was seriously considering," Silverstein reveals. "At that time, we wrote a letter to Colorado Springs saying that the ordinance violated the rights of Reverend Lee, and Colorado Springs repealed the ordinance even though the Reverend ultimately decided not to run for city council."

The Bailey case is more complicated, because the felony conviction rule is written into the city charter. "In Aurora, this can't be fixed by writing a letter to city government," Silverstein acknowledges. "Aurora officials can't just repeal part of the charter the way a city council can repeal an ordinance. If Ms. Bailey is to be allowed to run, a court has to tell Aurora it can't enforce this unconstitutional provision. That's why we're asking Arapahoe County District Court to send that message to the city."

No hearing dates in the case have been set at this writing, but opening briefs were filed in the case on July 2, and responses are due back on Friday, July 9. Click to read Candice Bailey v. City of Aurora, et al.