DENVER—A federal judge accepted an agreement Wednesday night in a voter registration lawsuit that will give thousands of people ineligible to cast a regular ballot special protections on election day when they vote with provisional ballots.
Colorado Common Cause and other groups filed suit last week against Secretary of State Mike Coffman, alleging the state illegally removed an estimated 27,000 people from the voter list within 90 days of a federal election. They also said the state wrongly removed about 3,000 others whose addresses are listed as undeliverable by the Postal Service.
Lawyers for the state attorney general’s office said the names were removed properly to correct the voter list, in some cases because the voter had moved or was registered more than once, and that no eligible voter would be denied the right to vote. Trevor Timmons, the secretary of state’s chief information officer, testified that the plaintiffs’ estimate was somewhat inflated, but he acknowledged that a “substantial” number of voter records been canceled.
Under an agreement reached by both sides Wednesday, the state will generate a list of voters whose registrations were canceled since May 14, within 90 days of the August primary. Those voters, if they show up on Election Day, will have to cast provisional ballots. But if their names appear on the list, they will be presumed to be eligible voters.
Clerks will be directed to count provisional ballots cast by those people before other provisional ballots. Their ballots cannot be rejected before election officials review the voters’ records in the state’s new online voter registration database, not just paper records. Even if a voter’s record is listed as canceled in the database, the system still contains their name and relevant documents, including scanned copies of their voter registration application. Those records have to be consulted before a provisional ballot of someone on the list could be rejected.
“We believe the settlement protects the voters of Colorado, and that was our mission,” said Penda Hair, a lawyer with the Advancement Project, which helped represent Common Cause as well as the Service Employees International Union and Mi Familia Vota Education Union. She said the overall case challenging how Colorado cancels voters in its database will continue after the election.
Coffman said his office continues to believe that its election practices under state law conform with federal law. “Our goal has always been to have a system in place where every voter, who has the legal right to cast a ballot, is allowed to do so,” he said.
Federal law prohibits any systematic removal of names from voter rolls within 90 days of an election with three exceptions: Voters who have been convicted of a felony, have died or have requested removal can still be removed.
Coffman has maintained that duplicate registrations can still be removed because the most recent registration remains on voter rolls. But Jenny Flanagan, executive director of Colorado Common Cause, said there’s still a chance for someone to be wrongly removed and the state shouldn’t open the possibility of that happening so close to an election. She encouraged voters to check their registrations this week before going to the polls so they could correct any problems in advance.
U.S. District Judge John Kane gave the sides a chance to reach the agreement after listening to about five hours of testimony Wednesday. He told lawyers that he thought there were places where the state was “out of bounds” in canceling voters, but he didn’t want to order any last-minute changes in election rules for poll workers that may result in long lines and other problems at the polls next week.
Earlier Wednesday, Linda and James Johnson of Colorado Springs testified they had been removed from the rolls but didn’t know it until they were contacted by a lawyer working on the lawsuit.
The Johnsons said they registered in May and received mail ballots, but when they discovered they were no longer registered, El Paso County officials told them their votes wouldn’t be counted.
Hilary Rudy of the secretary of state’s office testified that the Johnsons’ names were removed because a voter registration drive submitted another set of registration forms in their names in September with a different address. When a confirmation card was mailed to that wrong address and returned as undeliverable, they were removed from the rolls, she said.
But Rudy said the clerk’s office was wrong and said that the Johnsons’ ballots would have been counted as is because the law gives voters the benefit of the doubt.
Both of the Johnsons are now listed as eligible to vote and plan to cast their mail-in ballots.
