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Colorado 5th District Congressman Doug Lamborn.
Colorado 5th District Congressman Doug Lamborn.

Lamborn May Not Be Out of the Woods With His Fight for the Primary Ballot

Doug Lamborn has been battered by lawsuits this election cycle over his petition to get on the June Republican primary ballot.

It started when the six-term congressman from Colorado Springs came under fire from five of his constituents over potentially illegal signature-gathering by two Kennedy Enterprises LLC subcontractors. Lamborn's campaign paid the company to gather 1,000 signatures for the primary ballot, which for a congressional district of 200,000 registered Republicans should have been a cakewalk. The problem was that two of the petition circulators gathering signatures for Lamborn's re-election campaign were accused of being out-of-state residents, which is illegal under state election law.

The case made its way through state courts, and the Colorado Supreme Court ruled last week that the petition circulators were, in fact, out-of-state residents, meaning whatever signatures they gathered, even from registered Republican Colorado voters, had to be tossed. That left Lamborn just 58 signatures short of qualifying for the primary ballot.

So Lamborn fired back with his own lawsuit in federal district court and argued on Monday that the state's residency requirement for petition circulators was unconstitutional and violated voters' First Amendment rights. Lamborn pointed to a Tenth Circuit Court of Appeals decision on a 2002 case out of Arvada, where the city's petition-circulator residency requirement for municipal ordinances was ruled unconstitutional.

Late Tuesday, the federal district court handed down a preliminary injunction that reinstated all of the signatures that were tossed, meaning that Lamborn more than meets the petition requirement with his 1,269 valid signatures. The preliminary injunction was made on the basis that Lamborn was likely to succeed on his First Amendment claims; the case is still pending.

“We are extremely pleased that the judge ruled in our favor and has ensured that Congressman Lamborn’s name will appear on the primary ballot," says campaign spokesperson Dan Bayens. "Consistent with court rulings here in Colorado and around the country, the federal court agreed that the part of Colorado election law that requires petition collectors to be state residents is unconstitutional and unduly infringes on the First Amendment rights of voters and petition circulators."

But Lamborn may not be out of the woods just yet.

Even if he is on the primary ballot, the secretary of state could choose to appeal the preliminary injunction. Ballots are expected to be certified by May 3.

"We are evaluating our appellate options," said Suzanne Staiert, deputy secretary of state, in a statement to Westword. "We have to weigh the merits of the decision in light of binding precedent in the Tenth Circuit [Court of Appeals]. We also must consider our risk of additional attorney's fees we would owe in the event of a loss."

Senator Owen Hill, one of four Republican primary challengers for the congressional seat, filed an emergency appeal to the Tenth Circuit Court of Appeals Wednesday morning as an intervenor in the case, Bayens says. It was denied. The secretary of state's office says the denial will not affect any potential appellate decisions it makes.

An attorney for the secretary of state argued in the court hearing that a residency requirement maintained election integrity for a few reasons: it reduces circulator fraud; it ensures that circulators can be subpoenaed and appear in court on short notice; it enables the state to confirm whether a circulator meets other requirements, including being a citizen; and it allows for access to the circulator if there is a problem in the petition.

Lamborn's campaign is crossing its fingers that the issue will die and that everyone will move on with the primaries.

"We believe it is time to move on from this issue, and we hope our opponents will end their legal maneuverings in an effort to disqualify Congressman Lamborn from the Republican primary. As we have said all along, we believe voters — not lawyers and judges — should decide the outcome of elections," Bayens says.

Here's the federal district court order:

Lamborn isn't the only candidate this election cycle to get burned by Kennedy Enterprises' out-of-state petition circulators. Republican gubernatorial frontrunner Walker Stapleton tossed his petition altogether just before the Republican state assembly, which was his last chance to make it onto the ballot. (Of course, the GOP favorite passed with flying colors.) Representative Polly Lawrence, a Republican candidate for state treasurer, also used Kennedy Enterprises and faced the same petition-circulator issues. She could be 120 signatures short because of an out-of-state resident who helped gather signatures for her campaign, so she is suing the secretary of state to reinstate other signatures that were previously invalidated in the initial signature-validation process.

The signature-gathering debacle this session extends beyond out-of-state circulators. Brad Levin, a Democratic candidate for attorney general, is suing the state to have his name placed on the primary ballot after he says thousands of his petition signatures were invalidated over minor technicalities. He is in a hearing this afternoon.

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