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Scott Gessler v. Denver clerk Debra Johnson in latest lawsuit to target Secretary of State

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After responding to some negative headlines surrounding a botched voter registration mailing, Secretary of State Scott Gessler is fielding more criticism this week -- this time from a lawsuit that first reached his office via reporters' inquiries.

The suit comes from Denver Clerk and Recorder Debra Johnson, a Democrat, who is concerned that a new rule from the Secretary of State would stop some registered voters from receiving mail-in ballots. Gessler says it won't.

Announced on Wednesday, the complaint is the latest suit to arrive on the desk of Gessler, who has been facing a steady stream of criticism and opposition in the months leading up to the November election.

This month, Gessler's office accidentally sent thousands of mailers to registered voters across the state, telling them state records indicated that they were not registered -- a mistake, which some county clerks say has caused a great deal of confusion for legal, registered voters.

There's also been fallout from these errors in a registration drive that was supposed to disprove accusations that he is suppressing, not encouraging, voters. But Johnson's suit is actually focused on a rule that wouldn't impact voters in November -- and could instead potentially affect voting in local municipal elections in 2013.

In a press release, Johnson's office said it was challenging election rules recently enacted by the Secretary of State that would impose new restrictions on mail ballots in local, municipal elections such as school boards.

The rules, adopted in August, would restrict county clerks from mailing ballots to voters considered by Gessler's office to be "inactive" -- meaning those who didn't vote in the last election cycle, according to Johnson's office. And this would be a violation of Denver's "home rule authority," which states that the clerk and recorder should have exclusive authority over the conduct of municipal elections.

Johnson says that Gessler is overstepping his bounds by putting in place new rules that are essentially rewriting state law -- an accusation he has also faced from government watchdog groups surrounding campaign finance disclosure policies.

"This rule is stating that I don't have authority in municipal elections," Johnson says. "If you are in the inactive category, you would not receive the ballot in the mail."

Some have see the "inactive" designation as problematic, because voters earn that label after missing an election -- and they may not even realize this would put them in a group that would no longer receive ballots in the mail.

The latest available numbers from Gessler's office shows that there are 1,161,088 inactive voters who are still considered registered.

"I have problems with that whole category to begin with," Johnson says. "An inactive-failed-to-vote elector is a qualified elector.... Just because we have that category doesn't stop them.... It means they have to go through one extra step to get the mail-in ballot."

Johnson emphasizes that the rule change would not affect the November 6 election, but that the clerk's office was required to file the suit because of a 35-day legal deadline for challenging Gessler's rules.

Continue for responses from Gessler's office and Denver Mayor Michael Hancock. Gessler's office says Johnson is completely misinterpreting the rule, which would in no way violate her authority or stop the Denver clerk and recorder's office from mailing ballots to inactive voters in its local elections.

"We thought we had come to terms on that," says Gessler spokesman Rich Coolidge. "We were rather taken aback when they filed the suit."

Coolidge passed along this statement from Gessler, saying: "As of last week, the clerk agreed with my office's position, so this appears to be more grandstanding than actual policy differences."

But Johnson's office is not convinced that it will have proper authority over its own elections. "My interpretation is different than his."

A spokesman for Johnson tells us that the clerk and recorder's office has not agreed with Gessler on this and has had numerous meetings in which representatives have made that clear. He also says they've been waiting for written confirmation that this new rule would not impact Johnson's ability to mail out ballots.

"We asked for a written response and did not receive one," says spokesman Alton Dillard.

For his part, Coolidge says Gessler "has never taken taken issue with home rule authority to [mail ballots]."

When asked about the request for written confirmation, he says in an e-mail to us:

We've actually been talking with Denver's attorneys for the past week and didn't know they were still waiting on "written confirmation." We learned of the challenge from a Denver Post reporter, who forwarded us a copy of the release. We were happy to continue to work together to find some resolution but instead it looks like this will be resolved in court.

Johnson says she just wants to be sure eligible voters are able to easily vote.

"My philosophy is to try and make elections as fair and accessible as I possibly can," she says. "I just have to make sure that I protect the citizens and electors of Denver."

Unsurprisingly, Johnson got support from Denver Mayor Michael Hancock, who sent out a statement praising her efforts. His statement says in part:

We should be straightforward with our electors, the laws on the books do not contain the restrictions imposed by Secretary Gessler's new election rules. These rules are excessive and interfere with Denver's home rule powers to manage our mail ballots.... I have stood with the Denver Election Division's efforts to increase voter access and participation for many years. And today I proudly stand with them again to firmly say 'enough.' Denver is a city that remains steadfast in its resolve to protect every eligible voter's right to vote. We will continue to focus our efforts on increasing civic engagement through the voting process.

More from our Politics archive: "Marijuana: Colorado Education Association opposing Amendment 64"

Follow Sam Levin on Twitter at @SamTLevin. E-mail the author at Sam.Levin@Westword.com.

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