UPDATED: Judge tosses lawsuit aimed at keeping votes for Keyser from being counted
Author: Ernest Luning - May 31, 2016 - Updated: September 21, 2017
A judge on Tuesday dismissed a lawsuit filed late last week to remove candidate Jon Keyser from the Republican U.S. Senate primary, contending that the plaintiffs had waited too long to file it.
Denver District Judge Morris Hoffman ruled as military and overseas voters were beginning to return their ballots for the June 28 primary. County clerks are planning to send ballots to voters statewide starting June 6.
A group of voters had sued Secretary of State Wayne Williams on Friday asking a judge to forbid election officials from counting votes cast for Keyser, charging that his petitions contain at least 60 forged signatures,.
In the lawsuit, the three plaintiffs — former state Rep. Mike Cerbo, D-Denver, and two Republicans — argued that Keyser’s petitions fell short of the number of valid signatures in the 1st Congressional District required to make the primary ballot and asked the court to declare it would be “a wrongful act” for Williams to allow votes for the candidate to be counted.
“It’s important we don’t place someone on the ballot that did not submit enough legitimate signatures to be placed there,” Cerbo told The Colorado Statesman. “It’s an important message to send to other candidates in the future who attempt to petition on that they should not submit fraudulent signatures. Ultimately, it’s the candidate’s responsibility to be responsible for the signatures.”
Cerbo, the former executive director of the Colorado AFL-CIO, added that he has always felt petitions — whether for ballot initiatives or candidates — should be subject to strict scrutiny to make sure those signatures are valid.
“I want to see the candidate, Mr. Keyser, take responsibility and I want to see the secretary of state not put him on the ballot and not count any votes for him. Follow the law,” Cerbo said.
The lawsuit was only the latest development in a string of revelations about fraudulent petition signatures — submitted by a paid circulator hired by an outfit contracted to gather 1,500 valid signatures from each congressional district — that have dogged Keyser in recent weeks.
Prosecutors in Denver and Arapahoe counties have been investigating whether the circulator, Maureen Moss, broke the law by forging the signatures of Republican voters, including one belonging to a voter who died two months before the signature was supposedly affixed to Keyser’s petition.
The lawsuit alleged that Moss submitted at least 60 forged signatures from the 1st Congressional District, where Keyser only had 20 more signatures than the number requirement to get on the ballot. Court documents included sworn affidavits from 10 voters who say they didn’t sign the petitions even though their names and registration information appear on them.
In addition, the lawsuit claimed that because Moss “falsely swore” she had gathered signatures according to the rules, all of the 178 signatures she’d gathered in the 1st CD should be thrown out, which would drop Keyser even further below the requirements.
The Republicans joining Cerbo as plaintiffs in the lawsuit were Loveland resident Marcy Cochran and Cañon City resident Jonathan Royce. Attorney Mark Grueskin, who regularly represents Democratic candidates and interests, is the lead attorney, according to court documents.
“It’s no shock that liberals are deploying the Democratic super lawyer who represents all their pet liberal causes in an attempt to save Michael Bennet from losing to Jon Keyser in November,” said Keyser campaign spokesman Matt Connelly in a statement. “As we’ve stated previously, we are confident that if it becomes necessary, we’ll be able to add hundreds of additional valid signatures to our petitions that were incorrectly excluded.”
Citing ethical restrictions, Grueskin declined to tell The Statesman who is paying for the lawsuit but maintained that the allegation of fraudulent petitions is an important one the court should resolve.
“This is about forgery,” Grueskin said. “This lawsuit hopes to vindicate the rights of petitioners to make sure it doesn’t get abused though fraudulent activity.”
Keyser, a former state representative, is one of five Republicans running in the June 28 primary for the chance to take on U.S. Sen. Michael Bennet, the Democratic incumbent.
Four of the candidates — Keyser, Fort Collins businessman Jack Graham, Colorado Springs businessman Robert Blaha and former Aurora City Councilman Ryan Frazier —petitioned their way onto the primary ballot, although Keyser, Blaha and Frazier had to go to court to reverse an initial finding by election officials that they hadn’t submitted enough signatures. (Frazier just learned this week that votes for him would be counted, following two trips to district court and an appeal to the Colorado Supreme Court.)
El Paso County Commissioner Darryl Glenn qualified for the primary through the caucus and assembly process.
“We followed the rules as laid out by the secretary of state’s office and got on the ballot,” said Graham campaign manager Dick Wadhams. “That’s all I know.”
The lawsuit also asked the court to order Williams to issue a “statement of sufficiency” for Keyser’s petitions, rather than simply certify the statewide ballot to county clerks, as the secretary of state did following court orders that reversed the original statements of insufficiency issued for petitions submitted by Keyser, Blaha and Frazier.
Issuing a statement of sufficiency could have potentially trigger a five-day period when the secretary of state’s decision could again be challenged in court, legal observers told The Statesman.
“We can’t start a race where there’s not a whistle blown so that everybody knows,” Grueskin said.
State Election Director Judd Choate told The Statesman that wasn’t the way the law works.
“We issued a statement of insufficiency, which is what we’re required under the statute,” Choate said in an interview. “What happens next is the person who wants to challenge that, in this case the candidate, goes to court, and the court issues a ruling. Once it gets to the court, it really is past our statutory provisions, and we certified the ballot like the court told us. If these citizens had a problem with Keyser being certified to the ballot, they once again had another five days they could have challenged, and they chose not to.”
An attorney who argued a recently decided case about candidate eligibility before the Colorado Supreme Court said that it’s too late to challenge Keyser’s spot on the ballot or argue whether his votes should be counted.
“Earlier this week, the Colorado Supreme Court ruled that challenges to a candidate appearing on the ballot must be brought within five days of the candidate being certified,” said Mario Nicolais, an election law attorney and columnist for The Statesman. “The complaints here missed that window. Consequently, the district court and Secretary Williams are bound to count all the votes for Keyser, regardless of the underlying merits in the case.”
Following an afternoon of arguments in court — including by Keyser’s attorneys, who intervened in the case — the judge agreed and dismissed the case.
— The Associated Press contributed to this report.