What’s next for Lamborn? Questions & answers on Colo.’s ballot mess
Author: Ernest Luning - April 25, 2018 - Updated: May 10, 2018
So what lies ahead for U.S. Rep. Doug Lamborn?
The Colorado Supreme Court on Monday ordered state officials to leave the Colorado Springs congressman’s name off the Republican primary ballot, causing jaws to drop and heads to spin.
Almost immediately, attorneys for the six-term representative vowed to take their case to federal court, where they hope to overturn a state provision at the basis of the ruling, potentially keeping Lamborn’s electoral hopes alive. A filing is likely Wednesday.
At issue are state laws governing how signatures are gathered on petitions placing a candidate on a party-primary ballot, and by whom, and under what circumstances.
What are Lamborn’s chances? And why does Colorado’s petition process seem so fraught with problems?
Here are the key questions, along with the answers we have — and the answers we don’t have yet.
How did we get here?
There are two ways for major-party candidates to get on the ballot in Colorado: Through the caucus and assembly process, in which party delegates pick some candidates and reject others at gatherings, or by circulating petitions to be signed by registered voters.
For candidates who petition on, the number of signatures required varies depending on the office; for congressional seats, it’s 1,000. But the other requirements are the same: Candidates have about two months, from late January to late March, to gather signatures from registered voters who belong to the same party and live within their district.
State law says those who gather the signatures have to meet the same requirements — in Lamborn’s case, petition circulators must be registered as Republicans living in the 5th Congressional District, centered on Colorado Springs — and have to sign notarized paperwork that says they personally gathered all the signatures they’re submitting.
With Lamborn facing numerous primary challengers — four of them made the ballot, including El Paso County Commissioner Darryl Glenn and state Sen. Owen Hill — he decided to go through the petition process and turned in 1,783 signatures, well over the 1,000 it takes to make the ballot.
Secretary of State Wayne Williams’ staff reviewed those signatures and determined 1,269 matched voter data on file, including signature images that are also used to verify mail ballots.
That’s when five Republicans in Lamborn’s district sued, alleging that some of the circulators paid to gather the congressman’s signatures weren’t really Colorado residents, even though they had registered to vote in the state — in some cases, just days before they started work on the petition drive.
After a day-long hearing, a Denver District Court judge decided that one of the circulators, Jeffrey Carter, definitely wasn’t a Coloradan and disqualified 58 signatures he’d gathered. But the judge ruled that another, Ryan Tipple, who gathered 269 of Lamborn’s signatures, qualified as a resident.
That left Lamborn with 1,211 valid signatures, enough to stay on the ballot.
The plaintiffs, represented by Colorado Springs election law attorney Michael Francisco, appealed to the state Supreme Court, which agreed to consider the case and asked interested parties — including Williams’ office and Lamborn — to file legal arguments by late last week.
On Monday, the court ruled that Tipple — who appeared as a witness in the earlier hearing on a phone call from California, where he was closing on a house — didn’t meet legal residency requirements, even though he said he always intended to move his family to Colorado and had named one of his sons “Breck,” after the mountain town of Breckenridge.
That meant another 269 signatures gathered for Lamborn were invalid, which left the congressman 58 signatures short of the 1,000 required to run in the primary.
Why the hurry?
Secretary of State Williams’ office has until Friday to certify the June 26 primary ballot in order to notify county clerks which candidates have qualified. This gives the clerks time to send the ballots to printers and get them in the mail to military and overseas voters by mid-May and then send them out to everyone else — including unaffiliated voters for the first time this year — during the first week of June, as the law requires.
So is Lamborn going to be certified for the ballot?
At this point, no, according to the Colorado Supreme Court’s order. But Lamborn’s attorneys plan to file a different case — not an appeal — in U.S. District Court, most likely on Wednesday, and that lawsuit will ask the judge to order Williams to include Lamborn’s name on the ballots pending resolution of the case.
This is similar to what happened two years ago, when Republican U.S. Senate candidate Ryan Frazier was appealing a different kind of ruling about his petition signatures to the state Supreme Court and ran up against the ballot certification deadline.
In that case, a judge said Frazier’s name had to appear on the ballots because it would be too hard to fix later if he prevailed in his court fight and won a spot in the primary. Clerks, however, wouldn’t count his votes if Frazier was ultimately kept off the ballot.
(Frazier won his case and his votes were counted, but he finished in last place among the five candidates for the nomination. Incidentally, Glenn, who is now running for Lamborn’s seat, won that primary for Senate but went on to lose the general election to Democratic U.S. Sen. Michael Bennet.)
Why is Lamborn going to federal court, and what are his chances?
Lamborn’s attorneys intend to argue that the Colorado law that requires petition circulators to be residents of the state — in addition to registered voters belonging to the same party as candidates — is unconstitutional and should be overturned.
They say the provision amounts to an unconstitutional burden on political speech and interferes with the ability of voters who support a candidate to associate with each other by fixing their names to a petition in order to put the candidate on the ballot, no matter who presents them with the petition.
When federal courts have decided whether requirements surrounding elections — such as the residency requirement for circulators — pass constitutional muster, they’ve often used a test involving whether the restrictions impose a severe or undue burden on “core political speech,” which most federal courts have ruled is unacceptable.
“The Colorado Supreme Court just provided an avenue to have a federal court strike down residency requirements for candidate circulators,” Deputy Secretary of State Suzanne Staiert said in a statement.
Legal experts differ on Lamborn’s chances. Federal courts in different parts of the county — different circuits, with judges of different political leanings — have come to different conclusions on similar questions.
The majority have held that restrictions like Colorado’s are unconstitutional but — and it’s an important but — those cases have nearly all involved circulators for ballot measures, not for partisan candidates, which could complicate predictions in Lamborn’s case.
Why do states have residency requirements for circulators? Why does it matter?
Not all states do. That’s one reason there’s such a thing as a petition-circulator circuit, where seasoned signature gatherers travel from one state to another, following the available jobs.
But in states and other jurisdictions that have the requirements — some of which have been upheld by federal appeals courts — they say it helps prevent fraud and makes it possible for courts to subpoena circulators if questions arise about their petitions.
Some, including Francisco, also argue that ensuring Republicans are gathering signatures for Republican candidates reduces chances of political mischief and meddling — something they fear might happen if, for instance, Democrats decided to put up a primary challenger intended to draw votes from a stronger GOP candidate
In a brief filed before the state Supreme Court, a group of current and former lawmakers argued that the residency rule “restricts the ability of non-residents to hold a critical position in Colorado’s elections process,” which is appropriate, they say, because, non-residents don’t have a right to participate in Colorado’s elections.
The counter argument, however, is that a ruling like the one issued Monday denies all the voters who signed Lamborn’s petitions the right to participate in Colorado’s election by voting for the candidate of their choice — and should be reversed, because the aim here is to encourage voter participation, not quash it.
When will this be decided?
Lamborn’s attorneys anticipate a federal judge will hear the case by the end of the week and possibly render a decision soon after, although there will be appeals available to both sides after that.
Is there another way for Lamborn to get on the ballot?
Not really, although there’s another way for voters to cast votes for him.
It’s too late for Lamborn to change his registration to unaffiliated or join a minor party and run on those tickets — that has to be done by early January for candidates hoping to run on the November ballot — but he can run in the general election as a write-in candidate if he notifies the secretary of state by late July that’s what he intends to do.
How will this affect other candidates who didn’t make the ballot?
It probably won’t. A handful of other candidates have learned in the past week that they didn’t have enough signatures to make the primary — including gubernatorial candidate Doug Robinson and state treasurer candidate Brian Watson, both Republicans, and attorney general candidate Brad Levin, a Democrat — but their petitions were ruled insufficient for different reasons.
All three will be asking a court to order Williams to count as valid some signatures that his staff ruled shouldn’t be allowed. Levin is also challenging the constitutionality of the petition process, although he’s taking a different approach than the Lamborn campaign.
What’s with the petition process? Why are there so many problems?
It’s a matter of perspective. While the court challenges and occasional scandals — like the forged signatures that showed up on Republican U.S. Senate candidate Jon Keyser’s petitions two years ago — grab the headlines, the vast majority of candidates who petition onto the ballot do so without having to involve the courts.
This year, 29 candidates for state and congressional office qualified without incident, and so far just two candidates have been involved in lawsuits over petitions. (A few other candidates will likely be involved in lawsuits that will be filed within the next few days.)
Another candidate — Republican gubernatorial candidate Walker Stapleton, the state treasurer — withdrew petitions earlier this month that had already landed him a spot in the primary after he said he’d determined some signatures were gathered fraudulently. He switched at the last minute to a bid to make the primary ballot via the state assembly and wound up getting enough votes there to make the ballot.
Why so many problems this year?
It’s long been a practice for some petition management firms— including Kennedy Enterprises, the Colorado Springs-based firm engaged this year by Lamborn and Stapleton — to hire transient circulators, but the practice has only faced legal scrutiny this year.
Petition veterans say it’s become harder lately to field enough gatherers, due to a booming economy that makes circulator jobs less attractive at the same time the sheer number of petitioning candidates this year has driven up demand for workers.
Is it time to overhaul the process?
It might be. The system got some upgrades last year in the wake of the 2016 forgery scandal and a crowded court calendar that saw three statewide candidates haul the secretary of state before a judge to get on the ballot.
Under the new law, officials not only determine whether the signatures on petitions match those on file, they have a chance to “cure” some technical issues that previously required going to court to fix.