Will Colorado become the Florida of 2004, with vote litigation putting the results in doubt for weeks after Election Day? Based on the polls, there is no way to tell — the presidential and Senate races are breathtakingly close in some polls and not in others. But we do know there are a number of potential problems with the election process in Colorado that could lead to lawsuits — and delays — over the vote tally.
Perhaps the biggest issue is the determination of Secretary of State Donetta Davidson that provisional ballots will be counted only in the presidential election.
Provisional ballots were first used in Colorado two years ago as a way to deal with voters who don’t show up on a precinct poll list. These ballots aren’t counted until after the voter’s registration is verified, which can sometimes take days after an election.
Davidson’s ruling was surprising in view of the fact that in 2002, Colorado voters who cast a provisional ballot could vote in all races; if the rule had been in effect then, there would have been no provisional voting in that election. Davidson’s determination was challenged in a lawsuit filed by Common Cause, but the trial judge did not address the issue in his ruling, leaving the rule to stand for now. Common Cause, which prevailed in other parts of its suit (for example, the judge overturned Davidson’s ruling that people who applied for absentee ballots but did not turn them in may cast a provisional ballot) has not appealed to the Colorado Supreme Court, but could still file an appeal after Election Day. Regardless of what Common Cause does, if the Senate race or one of the Congressional races is close enough to make provisional ballots matter, expect further litigation over whether the provisional ballots should count in those races.
Another source of potential litigation is Colorado’s obscure “Emergency Registration” law. This statute, which was originally passed in 1995, appears to allow people who registered on time but who are not on the final voter roll to swear to the fact of their timely registration and cast a regular, non-provisional ballot. But the statute itself is not a model of clarity (some might interpret it as allowing emergency registration only when the voter has moved from one county in Colorado to another), and the Secretary of State’s official summary at her website does nothing to clear up the confusion. Because the various counties were flooded with registrations this year, and because of Davidson’s aforementioned ruling on provisional ballots, there may be a large number of voters who show up at County Clerk offices tomorrow trying to emergency register. The confusion over what this law means could generate lawsuits.
And of course, there is the possibility of large scale challenges to voter credentials or other Election Day surprises. All of these potential problems, plus the simple fact that Colorado allows the polls to stay open as long as necessary to let everyone who shows up by 7:00 p.m. cast a ballot, means that at least some of the races here in Colorado might not be determined by Wednesday morning.