Colo. Supreme Court will review ballot challenge to Lamborn
Author: Ernest Luning - April 17, 2018 - Updated: April 18, 2018
The Colorado Supreme Court will decide whether U.S. Rep. Doug Lamborn stays on the primary ballot, or if a legal challenge over petition signatures will derail the Colorado Springs Republican’s bid for a seventh term.
The high court on Monday agreed to review an appeal arguing that some of the signatures that secured Lamborn a place on the June primary ballot were gathered by paid circulators who don’t satisfy legal requirements for residency in Colorado.
Lamborn is facing primary challenges from four Republicans — El Paso County Commissioner Darryl Glenn, state Sen. Owen Hill, former Texas judge Bill Rhea and former Green Mountain Falls Mayor Tyler Stevens.
State officials have until April 27 to certify the ballot ahead of the June 26 primary election.
A campaign spokesman said Tuesday that Lamborn is confident the high court will uphold a lower-court ruling that found he qualified for the election.
“We welcome the appeal and believe the Supreme Court’s review of this case will provide helpful clarity to the standards that ought to apply to ballot petition challenges in the future,” said Lamborn spokesman Dan Bayens in a statement.
Five Republicans filed the lawsuit after Colorado Secretary of State Wayne Williams determined Lamborn had gathered more than the 1,000 valid signatures required. They alleged seven of the circulators hired by Lamborn had registered to vote in Colorado but didn’t fulfill any of a number of other requirements for residents.
But a Denver District Court judge mostly disagreed last week. In a ruling from the bench, Judge Brian Whitney threw out 58 signatures gathered by one circulator but let the other challenged signatures remain, leaving Lamborn with 1,211 signatures.
Michael Francisco, the Colorado Springs attorney representing the Republicans challenging Lamborn, celebrated the Supreme Court’s announcement that it will take the appeal.
“From the beginning we have maintained this case is important for protecting the integrity of Colorado elections, including from cases of circulator fraud,” he said in a statement. “The legal questions the Supreme Court will review have far-reaching implications. Residency for petition circulators in Colorado should be governed by objective standards.”
Francisco noted that Lamborn petition circulator Ryan Tipple, whose 269 signatures the judge allowed, didn’t appear to have any lasting connection to Colorado other than a “vague” intention to live in the state someday — and added that he hopes the Supreme Court makes clear that isn’t enough.
The court has asked attorneys to file briefs by the end of day Thursday addressing questions involving how the state should determine whether petition circulators are legal residents.
At issue is whether someone’s “subjective intent” can outweigh legal standards for establishing residency.
If Tipple — who maintains a home and small business in California, where his wife and young children live — can qualify as a resident, Francisco said, “then anyone can claim Colorado residence.”
But Francisco’s critics argue that intent goes to the heart of the matter. A new resident who intends to live in Colorado doesn’t have to abandon all ties to a previous residence before arriving in the state — and can register to vote right away, Lamborn’s attorneys argued last week in court.
“Why is it illegitimate for someone to move to Colorado for the political industry” — to circulate petitions — “but it’s legitimate to move to the state for the oil and gas industry, or to work here in the recreational industry, and be considered a resident?” Ryan Call, one of the attorneys representing Lamborn and a former chairman of the state GOP, told Colorado Politics. “We want to encourage more people to participate in the political process and not throw up arbitrary barriers to that.”
He added: “One of the challenges that we’re beginning to see is that campaigns are attempting to use litigation like this tactically to disqualify their opponents rather than letting the decision be made by the electorate. That adds significant cost and complexity to a situation that should be more straightforward.”
In the appeal brief filed with the Supreme Court, Francisco maintained that it’s up to the court to clarify the rules candidates are expected to follow.
“An objective test for residency is critical to provide a level playing field for all candidates,” the plaintiffs wrote. “If the lower court’s decision remains the final word, future candidates will likely be left with a subjective residency test that can be easily manipulated by those who choose to ignore the objective, statutory factors of residency.”
Mario Nicolais, an attorney who has argued petition and election-related residency cases before the supreme court, told Colorado Politics he doesn’t expect the justices will rule against Lamborn, but he warned against making assumptions in the case.
“Courts absolutely do not like to take candidates off of ballots,” Nicolais said in an interview. “If they can avoid it, they will. They want to leave it up to voters to make the decision.”
“That said,” he added, “if the court sides with Rep. Lamborn, we’re never going to see someone disqualified from circulating petitions for residency reasons. Any circulator can say, ‘Colorado’s great, I want to live there, why wouldn’t you want to live there?'”
In the end, Nicolais said, Colorado courts tend to award tough calls to the voters and their intent — in this case, those who signed a petition to get a candidate on the ballot. “They might say, what is more important, that the circulator qualify for everything, or that we abide by the residents who actually signed the petition?”