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Judge denies recall election injunction

Posted: Monday, Mar 25th, 2013

By Teresa L. Benns

CENTER —On March 8 Jennie Sanchez and her supporters filed an injunction to halt Tuesday’s Center recall election. But then Thursday, after a two-day emergency hearing with District Judge Martin Gonzales, the injunction was denied.

The initial motion to halt the election stated that the there was “a substantial likelihood that Plaintiff will prevail on the merits.”

The group complained that the ballot was illegal and was not put together according to state statute. Gonzales, despite some reservations, ruled otherwise. With the election now accomplished, it is believed Sanchez will file an election contest soon.

Sanchez, backed by the former Center utility board, Head Start Director Mary McClure, Center Housing Authority Director Audrey Chavez and former town clerk Bill McClure, among several others, supported the lawsuit. Boulder attorney Shelley Wittevrongel and Alex C. Myers with Rothberger, Johnson and Lyons of Denver represented the group.

Wittevrongel and Myers also filed a lawsuit recently against the town to halt the construction of a new water tower. In the past two years, the group has filed a total of three legal actions against the town, including the injunction. Bill McClure sued separately using another attorney concerning his dismissal as town clerk, that suit was filed in three separate jurisdictions, (state, federal and now the suit is back in the state court).

Testimony during the hearing

For her first witness Wittevrongel called Jennie Sanchez. Sanchez testified that she has been a lifetime Center resident and a longtime political activist, an election judge for 35 years and a committee chairperson. She described the ballot as “difficult, confusing, and no way my vote is going to count. I have never come across a ballot like this,” while serving as an election judge, she added.

Sanchez maintained that she felt the ballot was illegal. When cross-examined by the town attorney for Center, Eugene Farish, she could not give a reason why her vote would not count regardless of how Farish phrased the question. At one point Sanchez became very irate, talking over Judge Gonzales and interrupting Farish.

“I appreciate that you are riled up but do not interrupt me and you and I will get along,” Gonzales told her. “And don’t interrupt the counsel.” Farish then concluded that if anything, Sanchez was confused about how to vote for one candidate out of several on the ballot.

Wittevrongel then presented a telephone witness from the Brennan Center for Social Justice, headquartered at New York University. Farish objected to the testimony on the grounds that the witness was not a legal expert as defined by the court.

Gonzales, however, allowed the testimony and after offering a variety of credentials, the witness testified that the ballot was confusing and could be better constructed. She suggested that the recall questions be placed first and who would succeed the candidates later, on a separate page. A proposed ballot demonstrating the change in order was presented as an exhibit. She also said the ballot should show how the candidates are related to each other.

Next on the stand was former town board member and current candidate in the Center election, Geraldine Martinez. Martinez complained that the votes for those who would succeed the trustees who are recalled was not clear. She said it appeared that one could vote three times, on each square provided for each candidate, for who would replace the trustees. She also voiced fears that such votes would not be counted properly and the selections would unnecessarily confuse voters.

The main problem seemed to arise in filling out the initial petitions to run as candidates, since no one trustee was specified for each candidate to run against. This is because all Center trustees are at-large candidates not assigned to any particular district. Also, trustees who were listed to be recalled each had different term expiration dates.

When Center Town Clerk and Treasurer Christian Samora was called to the stand, he testified that under Farishs' guidance of, he constructed the ballot as best he could according to state statues. It was noted, however, that the state statutes contain no provision for addressing how the ballot is to be constructed when several trustees are recalled, several candidate are running against them and trustee terms expire at different times.

Farish said prior to the hearing that the ballot was submitted to Colorado Municipal League attorneys for review before it was printed. The main concern of the town, he pointed out, was that the ballot was in compliance with the statutes regulating its construction. He emphasized in his examination of Samora that the statues state it is entirely up to the town clerk ”to render all interpretations.”

Summarizing the testimony

In her closing arguments, Wittevrongel stated that voters have looked at the ballot and say they cannot figure out how to vote. She acknowledged that Samora was laboring under unclear regulations, noting that: “The town clerk had no guidance from the law [because] the recall statute doesn’t cover [Center’s situation].” But she held to the assertion that the town ballot was not in compliance with that clause of the law that governs who succeeds whom, resulting in an “absurd outcome” regarding the election. Wittevrongel says it all would depend on how Farish “advises the town to count the ballots.”

In his closing comments, Farish suggested that the plaintiffs based their case that the ballots were confusing and possibly illegal on skewed principles. “They didn’t bring people here who are disinterested,” he observed, referring to the fact that all those protesting the ballot, attending the hearing and testifying on the issue supported the recall. He stated that in asking witnesses what is confusing, “I’m not getting an answer — nothing prevented candidates from understanding it.” He maintained that the language in the ballot is clear and that only if a candidate is not recalled by the majority of votes (a yes or no vote on the recall was specified in a box beside the mayor’s and each current trustee’s name) would votes not be counted in that particular contest.

Judge’s decision

On Thursday, Judge Gonzales handed down his decision concerning the legality of the ballot. “Colorado precedent…provides that unless an election regulation expressly declares that strict compliance with its requirements is essential, courts should construe such provisions to be directory in nature and not mandatory.

“Imposing a requirement of strict compliance with voting regulations, especially in the absence of any showing of fraud or other intentional wrongdoing, would unduly restrict the franchise,” and here Gonzales referred to several precedent cases. One case mentions that strict interpretation would actually disenfranchise voters, as Gonzales observes, an outcome the plaintiffs clearly did not want.

“Substantial compliance with the C.R.S § § 31-4-504 (3) (c) and C.R.S § 31-4-504(7) under the Plaintiff’s proposals would be met if all of the offices subject to the recall were identical as to expiration date. The terms of the officeholders at risk here do not have identical expiration dates. [Therefore] the publics’ will is best expressed fairly and intelligently only if all of the contestants are deemed to be candidates for each office,” (Grubb v. Wyckoff, 52 N.J. 599, 602, 247 A.2d 481, 482 -1968).

“Under the nomination process utilized here by both sides (town and nominee) under the differential terms, the town’s ballot is in substantial compliance,” and satisfies the requirements of the statute, Gonzales concluded.

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