Judge denies Hill’s bid to intervene in Lamborn’s lawsuit over ouster from primary
Author: Ernest Luning - April 30, 2018 - Updated: April 30, 2018
A federal judge ruled over the weekend that state Sen. Owen Hill and a group of fellow Republicans won’t be allowed to intervene in a lawsuit filed by U.S. Rep. Doug Lamborn in the six-term GOP incumbent’s bid to get back on the primary ballot after the Colorado Supreme Court removed him.
It’s the latest twist in an evolving courtroom fight that has lasted most of the month over whether Lamborn turned in enough petition signatures to qualify for the June primary.
Attorneys for Hill, one of four Republicans running to oust Lamborn in the primary, and the other Republicans said they filed a motion late Sunday asking the U.S. District Court Judge Philip Brimmer to reconsider his ruling and plan to attend a scheduled 9 a.m. hearing at the Alfred A. Arraj United States Courthouse in Denver, where Lamborn is also set to testify.
“The Court has accepted our brief and will be, at a minimum, considering our legal positions,” said Kyle Fisk, spokesman for those seeking to intervene, in a statement.
“The Proposed Intervenors continue to seek to participate in this important case, and its far-reaching implications for the Colorado electoral process. We have filed a detailed motion for reconsideration. For the Court to not hear the additional evidence that would be presented by these intervenors, who have significant interest in these proceedings, would be a shame.”
Major party candidates in Colorado can get on the ballot two ways: by getting the support of 30 percent of delegates at party assemblies or by turning in signatures — for congressional candidates, 1,000 are required — from registered voters who meet certain criteria. For petitioning candidates, Colorado law also sets a number of requirements for signature gatherers, and Lamborn is suing to overturn the one that says circulators must be state residents.
The requirement, in place for decades, amounts to an unconstitutional restriction on the First Amendment rights of a candidate’s supporters to exercise their political speech and freely associate by signing a nominating petition and getting to vote for the candidate of their choice, Lamborn’s attorneys argue in federal court filings.
Lamborn submitted 1,783 signatures to the secretary of state’s office, which determined that 1,269 were valid — more than the 1,000 needed to make the ballot. But after a group of five El Paso County Republicans challenged Lamborn’s petitions, a Denver District Court judge invalidated 58 signatures, and then the Supreme Court tossed another 269, leaving the congressman 58 signatures short.
Until a week ago, Lamborn argued that he complied with the law, but after Colorado’s high court ordered Lamborn off the ballot, he filed the separate federal lawsuit against Secretary of State Wayne Williams seeking to overturn the state law the justices said he violated.
Lamborn is also asking the court to issue an injunction ordering his name onto the ballot pending resolution of his legal challenges.
Williams was supposed to certify the primary ballot Friday, April 27, but another candidate obtained an order last week delaying certification until Wednesday, May 2. County clerks are awaiting official word from the secretary of state so they can design ballots and get them printed before mailing them to military and overseas voters on May 12 and then to voters in Colorado starting in the first week of June.
At the end of last week, Hill, along with nine Republican legislators and the five El Paso County voters who initiated the original lawsuit against Lamborn, moved to intervene in the case — arguing that they don’t believe Williams would adequately represent their interests.
The Republican election law attorneys arguing on behalf of Hill and the others are Michael Francisco, the Colorado Springs lawyer who filed the original lawsuit against Lamborn, and Scott Gessler, a former Colorado secretary of state.
Attorneys representing Lamborn and Williams — who is being represented by the Colorado attorney general’s office — asked the court to deny the motion for Hill and the lawmakers to intervene, arguing, in essence, that they already had both sides of the case covered.
In a ruling issued late Saturday, Judge Brimmer agreed with Lamborn and Williams, although the judge said he would consider portions of Hill’s argument concerning a narrow question in the case without granting the lawmaker status as an intervenor, which would include the right to present evidence and file an appeal in a case.
Ryan Call, an attorney for Lamborn and a former state GOP chairman, called the ruling a win.
“Last night, the federal judge denied the attempt by Sen. Owen Hill and certain other lawmakers to intervene in the federal case, expand the case far beyond the constitutional arguments at issue here, and turn this proceeding into a political show trial to score political points against a long serving Republican member of Congress,” Call told Colorado Politics in an email.
Fisk told Colorado Politics Sunday night that his clients are concerned Williams — a longtime political ally of Lamborn — hadn’t committed to appealing if the federal judge strikes down the state law.
“If the judge grants a preliminary injunction tomorrow and Secretary Wayne Williams chooses not to appeal, this will be a default win for Lamborn, effectively overturning the Colorado Supreme Court. This is a big deal,” Fisk said.
“Would Wayne Williams really accept having a provision of state law struck down by a federal judge, after only an hour or two of hearing, especially after refusing to allow key intervenors, including a candidate for office, with specific interests, to even participate and make their case? If Wayne Williams won’t defend Colorado law and integrity in the electoral process then we will, including appeals to the 10th Circuit if necessary.”
A spokeswoman for Williams told Colorado Politics on Friday that Williams would be unavailable to comment on the lawsuit until after Monday’s hearing.
Deputy Secretary of State Suzanne Staiert said Friday that the office would evaluate whether to appeal the case after the judge’s ruling. She pushed back, however, at suggestions by the proposed intervenors that Williams’ defense of the law would be anything less than wholehearted.
“We will defend the case when it gets to federal court. We have attorneys that are very good, that are the best in the state. They will defend state law whether or not this office philosophically disagrees with it,” she said.
The other Republicans challenging Lamborn in the June primary — El Paso County Commissioner Darryl Glenn, retired Texas state judge Bill Rhea and former Green Mountain Falls Mayor Tyler Stevens — petitioned their way onto the ballot. Hill started out collecting petition signatures but switched to the caucus and assembly process and won a spot in the primary without opposition.