To get back into the fiercely contested primary race for Colorado's 5th Congressional District, Lamborn and five of his petitioners sued the Colorado Secretary of State in federal district court in Denver. The court hearing was Monday morning, but a ruling has yet to be made.
Lamborn was disqualified from the Republican primaries after the state's Supreme Court ruled that 127 signatures had been illegally gathered because two petition circulators working for his campaign were not Colorado residents, which is a violation of state election law. Lamborn is arguing that the residency requirement for petition circulators is unconstitutional.
In his federal lawsuit, Lamborn points to the Tenth Circuit Court of Appeals case Chandler v. City of Arvada, where the court deemed in 2002 that Arvada's residency requirement for petition circulators on municipal ordinances was unconstitutional.
The congressman is also arguing that invalidating signatures of the eligible voters who signed his petition is a violation of their First Amendment right to free speech and freedom of association.
"We hope and pray that I'm restored to the ballot," Lamborn told reporters outside of a courtroom on Monday.
The Colorado Secretary of State argued that it has a "compelling interest" in its state residency requirement for circulators because of the quick turnaround in election-law litigation.
"We still believe [the state residency requirement] has some value in ensuring we can contact circulators in cases like this where we have to do such quick turnaround on litigation."
"We still believe [the state residency requirement] has some value in ensuring we can contact circulators in cases like this where we have to do such quick turnaround on litigation. If they're out of state, it makes it that much harder to get them into the jurisdiction of the court," says Deputy Secretary of State Suzanne Staiert.
To hedge against a potentially unfavorable vote from the federal court, Lamborn filed another lawsuit on Friday, April 27 — this time in state district court — against the Colorado Secretary of State to reinstate signatures that were invalidated in the initial verification process. Each candidate petitioning for the primary ballot needs 1,000 valid signatures. When Lamborn turned over his 1,783 petition signatures in March, 514 of them were invalidated. But after the Colorado Supreme Court's decision on April 27, he was left 58 signatures short of making the primary ballot.
So Lamborn is suing the secretary of state to validate 112 of the 514 signatures it initially threw out, which would put Lamborn over the top and back into the race.
Those 112 signatures were thrown out for "technical details," including 29 signatures where the petition circulator mistakenly transposed two digits of a ZIP code in the notarized circulator affidavit. Another 72 signatures were thrown out because of minor misspellings in names or addresses, or because residents put down their mailing address rather than their home address on their voter registration or moved to a new home address and didn't update their information with the state. Eight signatures were invalidated because the dates accompanying their signatures were stricken and re-dated and those voters did not initial their mistakes. And finally, two signatures were tossed because the petition itself was improperly filled out.
"We're pursuing every possible avenue to ensure Congressman Lamborn's name is on the ballot and that the people who signed the petitions for Congressman Lamborn and Republican primary voters aren't disenfranchised," says Dan Bayens, a spokesperson for Lamborn's re-election campaign.
But there may be a kink in Lamborn's argument to reinstate these 112 signatures. Revalidating signatures that have been tossed must occur within five days of a state election official's decision on those signatures. The Colorado Secretary of State is arguing that the clock started ticking back in March and that Lamborn is far past his deadline. But Lamborn is arguing that the clock started on April 23, when he was disqualified as a candidate by the Colorado Supreme Court, which would put his lawsuit on the tail end of a five-day window.
"We're not sure the court has jurisdiction anymore," Staiert says.
A court hearing in Lamborn's fight over the signature verification issues is expected to be held sometime in the next few days. But if his lawsuits aren't decided on before Wednesday, he may miss the boat altogether.
The Colorado Secretary of State has a court-ordered injunction preventing it from certifying the primary ballot before the end of the day Wednesday over another signature debacle from Brad Levin's campaign for attorney general. When the clock runs out on that, Staiert says her office has every intention of certifying the ballot with or without Lamborn.
"Yup," Staiert says in response to moving forward without Lamborn if lawsuits are pending past Wednesday. "And we would, because the standing order right now is from the Colorado Supreme Court to take him off the ballot."