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AG's office answers Saguache clerk

Posted: Friday, May 6th, 2011

DENVER — Colorado Deputy Attorney General Maurice Knaizer issued a response last Friday to the recent brief filed by Saguache County Clerk Melinda Myers and the Colorado County Clerk Association’s (CCCA) amicus brief.

The briefs were filed concerning the injunction entered against Myers by Secretary of State Scott Gessler in March to hand count ballots cast in the Saguache 2010 General Election. The injunction was sought after Myers refused to allow Gessler to review the ballots, protesting that this would violate the confidential nature of ballots cast.

Knaizer’s answer to the two briefs denied that the clerk’s office has the right to determine whether Gessler’s request is inappropriate or illegal, cited case law demonstrating the clerk must obey Gessler’s command and stated, “The hand review is part and parcel of the review of the practices and procedures of the county with respect to the conduct of the 2010 primary and general elections in Saguache County.”

Referring to Myer’s brief, Knaizer defines the word “supervise” in the state statutes governing the SOS right to oversee primary and general elections, observing:

“The Secretary’s power is not limited to issuing orders in the context of a pending election controversy. The Secretary is obligated ‘[t]o supervise the conduct’ of primary and general elections, (Section 1-1-107(1)(a).

“’Supervise’ is an expansive word. It means ‘to coordinate, direct and inspect continuously and at first hand the accomplishment: oversee with powers of direction and decision the implementation of one’s own or another’s intention,’ (Webster’s Third New International Dictionary, Unabridged (1993) 2296). The Secretary cannot supervise elections unless he has the power to inspect and review.

“Thus, contrary to the argument of the Clerk and the Amicus, the Secretary’s power is much broader than consultation at or around the time of a pending election. It is ongoing, continuous, first hand and all-encompassing...If the Secretary spots potential problems in a post-election review and inspection, he has a legal obligation to investigate and provide solutions if the investigation discloses violations.

“An ‘election official’ is “any county clerk and recorder, election judge, member of a canvassing board, member of a board of county commissioners, member or secretary of a board of directors authorized to conduct public elections, representative of a governing body, or other person contracting for or engaged in the performance of election duties as required by this code,” Knaizer points out, citing state statute, (Section 1-1-104(10), C.R.S. (2010). “Both the Secretary AND the Clerk are election officers,” he emphasized.

Knaizer addressed in his answer to the brief what others have observed all along. Calling Myers conclusion that the ballots are excluded as the actual object of practices and procedures “rather absurd,” he continues: “The Secretary supervises primary and general elections. In order to properly supervise elections, the Secretary must have access to all election materials. Under the Clerk’s legal theory, the Secretary would not have access to the most elemental election material - the ballot.”

In concluding his statements, Knaizer explained that the SOS can take precautionary measures to protect ballot privacy during the proposed hand review and also can screen ballots prior to viewing. For this reason, he styled the objections filed in the CCCA amicus brief as “unfounded.”

CCCA’s belief, expressed in their amicus brief, is that “’future [clerk and staff] training would be sufficient to rectify problems.’ The Amicus suggests that the Court should not defer to the Secretary’s decision, [to hand count the ballots].” But as Knaizer notes: “The Secretary’s decision is administrative and ministerial. The decision is not subject to questioning by the Clerk or to review by this Court,” (Beeney v. Irvin, 6 Colo. App. at 71, 39 Colo. App. at 902).

District Judge Martin Gonzales will hear the case in Saguache District Court May 31.

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