Democratic U.S. Senate candidate Lorena Garcia says she's taking her case to federal court after a Colorado Supreme Court decision Tuesday afternoon removed her from the state's primary ballot.
In a brief, unanimous ruling the state supreme court declared that Garcia didn't submit the required number of valid petition signatures to make the ballot. The order reversed last week's Denver District ruling that found the candidate did well enough, considering the growing coronavirus pandemic.
The ruling leaves just two Democrats running to challenge Republican U.S Sen. Cory Gardner — former Gov. John Hickenlooper, who qualified for the primary by petition, and former state House Speaker Andrew Romanoff, the only candidate to emerge from last month's state assembly.
Garcia's place on the June 30 primary ballot is the latest domino to fall in a series of lawsuits involving candidates who argue they were prevented from finishing their petition drives as the COVID-19 outbreak was sweeping the state in the weeks before signatures were due.
On Monday, the supreme court kicked Democrat Michelle Ferrigno Warren off the primary ballot in response to an appeal filed by Secretary of State Jena Griswold. In a decision that served as the basis for the Garcia ruling, the high court said that the courts don't have the authority to waive signature requirements set by the legislature, even in the face of an unprecedented public health emergency.
Garcia said late Tuesday that she decided to sue in U.S. District Court for a spot in the primary after consulting with campaign volunteers and supporters.
"My supporters across Colorado were loud and clear," she told Colorado Politics in a statement."It is our duty to fight this violation of our democratic process."
Garcia said the Colorado legislature didn't take petitioning candidates into account when lawmakers scrambled to pass emergency legislation in March to enable the political parties' assemblies and conventions to proceed in the face of restrictions on public gatherings.
"[T]he Colorado state legislature failed in ensuring equal protection under the law when they had the chance to protect the public health of circulators and voters when COVID-19 struck Colorado. This violated the people of Colorado's right to support their candidate," she said.
Major party candidates can make Colorado's ballot two ways — by receiving the votes of at least 30% of delegates at assembly or, in the case of statewide candidates, by turning in petitions containing 1,500 valid signatures from each of the state's seven congressional districts, for a total of 10,500 signatures.
During a hurried couple of days before departing the Capitol, state lawmakers considered changing requirements for petitioning candidates but eventually only addressed the assembly route to the ballot in temporary, emergency legislation to let political parties convene remotely instead of having to nominate candidates at in-person meetings.
That could amount to violations of the First and 14th amendments — abridging freedom of speech and freedom of assembly for both voters and candidates, and interfering with the right of voters to choose candidates, in addition to violating an equal protection guarantee, according to Joy Athanasiou, Warren's attorney, who told told Colorado Politics her client was considering pursuing the question in federal court.
A spokeswoman told Colorado Politics that Griswold is waiting to see what lands in the federal court.
"The Secretary of State's Office recognizes the challenges posed by the coronavirus, and believes our democratic processes must remain accessible and fair during this trying time," Betsy Hart, communications director for the Secretary of State's Office, said in an email. "Once the case has been filed in Federal court, we will review and work closely with the Attorney General's office to determine our next steps."
Whatever the candidates do, they'll have to do it quickly. Griswold is facing a Thursday deadline to certify the primary ballot to county clerks, who are required to send ballots to military and overseas voters by May 16.