Scott Gessler, two county clerks targeted with lawsuit over "election from hell"

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The filing, from late last month, was made by Lu Ann Busse, a Republican candidate in Colorado's House District 39, which includes parts of Douglas and Teller counties. Busse, 56, who lives in Douglas County, lost her primary race for the open seat and is arguing that the election was plagued with so many different problems that a judge should void it. She is suing clerks in both counties as well as Secretary of State Scott Gessler, who oversees elections in the state.

And internal documents from the Secretary of State's office (on view below), along with comments directly from Teller County Clerk Judith "JJ" Jamison, reveal that officials facing the lawsuit agree that the election was, in many respects, a huge debacle.

Before we get into what allegedly went wrong here, it's worth noting why -- beyond the scope of a primary impacting two counties of Colorado -- this case matters.

"If we have the problems that went on in Douglas and Teller counties and those continue to the general election," Busse says, "we are going to have significant issues, because either side could come in and...challenge."

In other words, doubts about the process in any Colorado counties could potentially open the door for candidates to contest the results in the November presidential election -- in the worst case scenario prompting a recount like the infamous 2000 one in Florida. And in a swing state like Colorado that could determine the next president of the United States, every vote counts.

Anyway, here are what Busse sees as the main flaws in the election -- ones that, in her opinion, should encourage a judge to rule null and void.

In Douglas County, ballots had unique bar codes that made them traceable to specific voters, violating voter's right to secret ballots. This has been an issue in counties across the state, and Gessler recently adopted an emergency rule to ensure that in November, no counties will have ballots with unique bar codes that could, in theory, be traced back to voters.

In Teller County, the situation is more complicated.

"It was a flawed election from the start," Busse says.

In Teller, mail-in ballots were sent out without a place on the envelopes for voters to sign, which is required, and Busse says more than 70 percent of the ballots in the primary were mail-in. When county officials realized the mistake, Busse alleges that the county clerk let voters just send in signatures pretty much any way that they could -- faxing, scanning, e-mailing, mailing, etc. The lawsuit says that in trying to correct the mistake this way, Teller County officials violated a rule mandating that voters sign affidavits in person in front of the clerk or her designee.

Busse also invokes the Fourteenth Amendment in her lawsuit, arguing that the election as a whole violated voters' right to equal treatment given that the unique problems in each county made access to voting inconsistent across the district.

For one thing, Teller County voters could mail in their signatures, whereas Douglas County voters who may have forgotten to sign their envelopes did not have the same opportunity -- one that existed only because of Teller County's original error. Busse says Douglas County results show that 107 ballots were rejected because they were returned with missing or questionable signatures. These are voters who theoretically would have been able to vote through the last-minute correction in Teller. At the same time, voters in Teller County had secret ballots without unique bar codes, while those in Douglas did not.

And those are just some of the complaints in the lawsuit.

"My contention is with the fundamental problems of the election," Busse says. "All these things combined could have made a difference of several hundred voters, which means I could've won the election."

Busse even paid for a recount, which she argues was still riddled with most of the same problems. (In the recount, she got 3,109 votes and her opponent earned 3,570 votes, according to her website).

"My bigger focus is standing up for the constitutional statutory rights of all voters," Busse says.

And documents obtained by a voter rights advocacy group show that Teller County has been a major headache for Scott Gessler's office.

Continue reading for internal Secretary of State documents as well as responses from both counties.

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Sam Levin
Contact: Sam Levin