Suthers says the constitutional provision applicable in this situation dates back to 1912, "and the fact that a lot of our recall law stems from 1912 has proved to be problematic throughout this process.
"It hasn't been tested statewide -- this is our first legislative recall -- and we had an issue come up a couple of weeks ago, where the constitutional provision said you had fifteen days until the recall election to petition for the ballot, but the election law said ten days. So those were in conflict, and Judge [Robert] McGahey said, 'I understand, but I've got to go with the Colorado constitution,' which effectively caused the election to be a ballot-box election rather than a mail-in election."As for the latest complication, Suthers notes that the Colorado constitution sets the recall election and a vote for a possible successor to that office holder at the same time, rather than on different dates. Moreover, language requires that "you have to vote in the shall-we-vote-to-recall election before you can vote for the successor," Suthers points out.
California also has such a format when it comes to recall elections -- and back in 2003, when a vote was held about whether or not to recall that state's governor, Gray Davis, the provision was challenged.
In the end, "a California federal district court said it was unconstitutional to require you to vote in the first election in order to vote in the second election," Suthers explains. "Basically, it followed some general case law saying that you don't lose your right to vote in any election by your failure to vote in a prior one."
Election advocate Marilyn Marks, who's been working with the Libertarian Party in matters related to the Morse-Giron recall, brought up this subject, Suthers continues, and it proved serious enough for the attorney general's office to suggest that Hickenlooper raise it in an interrogatory before the Colorado Supreme Court. Suthers couldn't do so directly, because rules dictate that interrogatories can only be presented by the governor or the two houses of the legislature.
In Suthers's view, there's a need for clarity. "Rather than having the election take place and it's very close -- and we've got a constitutional question about whether we count the votes in the candidate portion if people didn't vote in the recall portion -- we convinced the governor that he needed to go to the Supreme Court."With that in mind, Suthers's office filed a brief on behalf of the Secretary of State "saying his preference would be for us to recognize the Colorado constitutional provision, because the California district court case is just that -- a federal district court ruling, and not a 9th Circuit or U.S. Supreme Court case." As for Giron and Morse, "they said, 'We don't think you should accept the interrogatory, but if you do, you should follow the Colorado constitution.'"
What are the state supreme court's likely options? The justices could potentially change their minds about accepting the interrogatory, Suthers acknowledges, "or they could say the Colorado constitution prevails, in which case the clerks will have to see if they answered the first question without determining the identity of the voter -- and only if they answered that will who they voted for [to replace Morse and Giron] count. Or they could say it's a violation of the First and the Fourteenth Amendments to require that you vote in the early election, so you don't have to pay attention to whether that person voted in the recall to count their vote on the successor."
Whatever happens -- and Suthers thinks the court could answer the question as early as today -- he believes that "the legislature is going to have to refer something to the voters to clean up a couple of provisions in the recall portion of the constitution that are pretty outdated."
After all, the vote on the fate of Morse and Giron proves recall elections aren't just theoretical. They can happen -- and in this case, one will, just a couple of weeks from now. But whether all the votes will count is another matter.
More from our Politics archive circa July: "Morse recall: The party-line politics of a gun-rights battle."