A lawsuit filed in Denver District Court Monday against the Colorado Secretary of State challenges her decision to allow voters in the new Senate District 13 to determine the fate of state Sen. Kevin Priola, the Republican-turned-Democrat from Henderson.

Priola currently represents Senate District 25, primarily based in eastern Adams County. 

The lawsuit, which seeks a temporary restraining order and preliminary injunction, claims that voters in SD25 should be the ones to determine whether Priola, who announced on Aug. 22 he was switching from Republican to Democrat, should be recalled. Priola has twice been elected by the voters in SD25 to represent the district, in 2016 and 2020. He is term-limited in 2024.

Democratic Secretary of State Jena Griswold announced that voters in the new SD13, which stretches from Henderson to Greeley, will be allowed to sign petitions for the recall.

The petition language was approved on Sept. 9, and recall organizers now have 60 days to collect 18,291 valid signatures. Should they succeed, a special recall election will be held, at a cost to taxpayers in the district of nearly $200,000. 

The lawsuit’s plaintiff, Fred Sandoval, moved to SD25 in December 2020, but once the new maps go into effect in January, he will be in SD24. Prior to December 2020, Sandoval had been a resident of SD21, which is represented by Sen. Dominick Moreno, D-Commerce City. Sandoval voted in SD21 in the 2020 election, according to voting records, and previously served as the chair of the SD21 committee for the Adams County Democratic party.

What that means is that Sandoval never voted for or against Priola in either 2016 or 2020.  

The lawsuit claims allowing SD13 voters to make the decision “deprives the electors of Senate District 25 their state and federal constitutional rights to participate in the recall” process. It also argues there is no constitutional or other enabling legislation that permits the electors of one Senate district to participate in a recall for a senator elected in another district. 

Were Priola to be recalled before the General Assembly convenes on Jan. 9, 2023, and based on the petitions coming from SD13, the residents of SD25 would be without representation until Jan. 9, 2023, the lawsuit claimed. It could also result in a situation where residents of SD13 would have two senators – whomever replaced Priola, and Sen. John Cooke, R-Greeley, who is term-limited as of the beginning of the 2023 session.

The lawsuit suggests those interested in recalling Priola ought to wait until after Jan. 9, 2023, when Priola is officially the senator for SD13.

“Priola and Democrats know this recall effort is only gaining momentum, so they are getting desperate,” Michael Fields of Advance Colorado Action, who is leading the recall effort, said in a statement. “The voters of Senate District 13  should get to decide who represents them for the next two years. The Secretary of State is right that the recall should take place in the district he will be representing when the recall election occurs.”

Democrats are gearing up for the fight, too. They’ve formed an anti-recall group, the Colorado Over Party. Spokesman Curtis Hubbard said Monday that the “special-interest driven recall effort is not only a waste of time and taxpayer dollars, it is a folly built on a faulty premise.”

Hubbard added: “Just like a company cannot recall a product it didn’t produce, voters cannot recall a Senator who doesn’t represent them. Sen. Priola represents the voters of Senate District 25 and cannot be recalled by voters who do not live in his current district.”

On the Colorado Over Party website, Priola said “special interests with deep pockets filed this recall as personal and political retribution for my decision to put people over partisan politics.”

“I have confidence you will see through their deceptive tactics. Ask yourself why these special interests are just now calling for my recall over votes I took over a year and a half ago, and in some cases four years ago. This is clearly not about my voting record,” he said. 

He also warned voters to be wary of petition circulators, saying that providing the “special interests” circulating the petitions with a voter’s personal information could put that information at risk.

“You cannot know what they will do with your information,” Priola said. 

Neither committee has yet to report any campaign contributions, but many expect the dollars to flow, given the seat’s importance to both parties. 

Indeed, what’s at stake is nothing less than control of the state Senate. Democrats hold a 21-14 advantage, but that advantage is expected to shrink, with at least eight Senate seats in play in November. One seat is already gone – the one held by Democratic Sen. Tammy Story of Evergreen, which was redrawn as a safe Republican seat that extends from Evergreen all the way to Fremont County.

Two of the eight seats in play are held by incumbent Republicans – SD11 in Colorado Springs and SD15 in Larimer County; SD3 Pueblo is held by an incumbent who has been in office just a few months; the rest are open seats. 

Should Republicans gain enough seats to be just one seat shy of securing the majority, Priola’s seat would become the swing that will determine which party controls the state Senate in 2023.