Judge Orders State to Delay Primary Ballot Certification Over Levin's Signature Debacle

At least three candidates for statewide office and a congressman have been caught in a tug of war with the Colorado Secretary of State's Office this year over the validity of petition signatures for the June primary ballot.

The latest candidate to enter the ballot-access fight is Brad Levin, a Democratic candidate for attorney general. His campaign collected 15,996 signatures, but only 8,979 of them were considered valid by the Secretary of State, putting him 1,521 signatures short of being eligible for a spot on the primary ballot. His campaign sunk about $190,000 into the attorney general race as of December, according to the latest campaign finance disclosures. So to stay in the running, Levin is suing over what he sees as inadequacies in the signature-verification process for petitions. His court hearing is on May 2.

The district court judge ordered the state to delay certifying primary ballots, which was supposed to happen today, April 27, until after a decision is handed down.

"I'm confident at the end of the day, I'll be on the ballot," Levin says.

Levin will present two arguments to a Denver District Court. The first is that the Secretary of State has abdicated its constitutional duty to thoroughly vet every signature before determining whether a signature is valid. Thorough vetting, to Levin, means using the existing two-step verification process rather than tossing out signatures of registered Coloradans that might fail the initial screening, sometimes for simple mistakes.
Two-step voter verification — comparing signatures on a petition with a digital copy in the state's voter registration database — is a new process that the Secretary of State instituted this year following a new law aimed at preventing forged signatures, which plagued three elections in 2016.

The state rejected 7,017 signatures for a handful of reasons. Around half of those signatures — 3,401 to be exact — were tossed out because the Secretary of State said it could not find the registration information for those voters. The signatures themselves, Levin says, did not go through the digital verification process to determine if those voters did in fact exist. Rather, they were invalidated over what Levin has called technicalities, including accidentally misspelled names or addresses, registered voters who put down addresses that weren't on their voter registration file, or technology issues where the scanned copies of the paper petitions weren't legible.

"We believe there are large numbers of these petitions rejected out of hand without going to the next step" of digitally verifying the signatures of petitioners, Levin says. "These are still folks who are eligible electors in the state of Colorado. [The Secretary of State] still needs to go and do the signature match. They did not do the signature matches. That's what we're asking the court to do, is to do those matches," adding that a difference in address can't be grounds for invalidating a signature.

An example would be a registered voter who listed their P.O. Box number on a petition rather than the physical address listed on their voter registration card. (The state requires a physical address for voter registration.) However, that signature could still be considered valid, as was the case in Republican gubernatorial candidate Doug Robinson's district court lawsuit. Robinson was booted from the race last week for being 22 signatures shy of the ballot-eligibility requirements.

Robinson went to court last week to contest some of the signatures that were initially rejected, and a judge overturned the Secretary of State's decision on forty of those invalidated signatures, putting Robinson back in the race.

Secretary of State spokesperson Lynn Bartels says that her office has to follow strict guidelines for signature verification. In some cases, she says, even if the agency believes the signature belongs to a registered voter, it may still need a court ruling to be legally valid.

"We basically agreed that this person matches the signature on file, but they used the P.O. box [address instead of the address on file]. We just can't make that decision on our own. A judge has to make that decision," Bartels says about the signature-verification process, using Robinson as an example.

The second argument Levin is making to the judge is that not accepting signatures from unaffiliated voters is unconstitutional, because those same voters can participate in the primary elections. State election laws stipulate that only registered voters can sign candidate ballot petitions. (This is the first year that primary elections will be open to unaffiliated voters.)

The state tossed 1,800 signatures from unaffiliated voters from Levin's petition. Another 920 signatures were thrown out because some petition circulators were not registered Democrats, another legal requirement under state election laws.

"We have the statute that says unaffiliated voters can vote in the primary, but you're not giving them any say as to who is on that primary ballot," Levin says. "I think at the end of the day, again, we want to make sure we have an electoral system that's going to treat everybody fairly, and everybody's voice is being heard. One of the seminal aspects of our democracy is people's right to vote is being ensured, and we need to make sure everybody is being treated fairly and equally."

The constitutional argument isn't a dig at the Secretary of State, which is bound by state election laws. It's an argument aimed at upending part of the candidate nomination process. But the rules are currently what they are, and Bartels put it bluntly: "He collected signatures from unaffiliated voters, and they had non-Democrats collecting signatures. You can only have members of your own party collect signatures, and they can only collect signatures from your own party."

Another 300 signatures were determined by the Secretary of State to be "signature mismatches." Basically, the signature on the petition itself did not look like the signature in that person's voter registration file.

Levin isn't the only candidate to run into problems over signature gathering issues.

U.S. Representative Doug Lamborn, a six-term congressman in Colorado Springs, is in the midst of a lawsuit that could kick him out of the race. Lamborn is facing a heated primary battle against four challengers, including an El Paso County commissioner and state Senator Owen Hill. After the Secretary of State validated Lamborn's signatures and confirmed his position on the ballot, the state was sued over the validity of those petitions. Last week, the Colorado Supreme Court ordered Lamborn's name be removed from the ballot because several petition circulators were not Colorado residents, another legal requirement under state law. Lamborn filed a lawsuit in district court on Wednesday to get his name back on the GOP primary ballot. His case will be heard on Monday, where a ruling could come down.

Republican gubernatorial candidate Walker Stapleton is another high-profile candidate who faced a signature gathering scandal this cycle. Stapleton chose to toss out his petition over allegations of illegal signature gathering by the same campaign consulting firm that put Lamborn in hot water this election cycle. Kennedy Enterprises, a firm that had been embroiled in a separate petition scandal in 2014, subcontracted with a petition circulator that was not a Colorado resident. But Stapleton still made it on the ballot after winning over 43 percent of delegates at the Republican state assembly earlier this month.