As has become customary in recent years, the deadline for election officials to certify Colorado's primary ballot is fast approaching, but the Secretary of State's Office can't forward the paperwork to county clerks until the courts have had their say.
As usual, it's up to the third branch of government to determine whether the petitions turned in by some candidates meet legal requirements, though the questions before the bench are more weighty than they have been in past years.
This year, only a few candidates are awaiting judicial decisions before they'll know whether their names will appear on the June 30 ballot. But in a break from the last two cycles — when the fate of numerous candidates rested on court rulings — the arguments aren't over whether individual signatures match the ones on the voter rolls or whether a candidate's petition circulators followed the rules.
Instead, all of this year's ballot-access court cases involve the coronavirus pandemic that swept into the state, just as the political season was hitting high gear.
Like in 2016 and 2018, judges are faced with deciding whether petitions filled with voters' signatures "substantially comply" with the standards spelled out in state statute, but this year they're being asked to weigh those standards against unprecedented obstacles that arose in the weeks before petitions were due.
Events happened quickly, beginning toward the end of February, when news reports were filled with alarming stories about COVID-19 outbreaks in the Pacific Northwest. On Tuesday, March 3, the votes were counted in Colorado's first presidential primary in two decades, and two days later Colorado's first coronavirus case was announced on March 5.
By Saturday's March 7 precinct caucuses, Coloradans had begun taking precautions, including slathering their hands with sanitizer and — for some reason — buying up all the toilet paper. Gov. Jared Polis declared a state of emergency on March 10, by that Friday, he announced the first death in the state attributed to the virus. Candidate petitions, which had been in circulation since late January, were due to the Secretary of State's Office by the following Tuesday, March 17.
Three Democrats running for the U.S.. Senate seat held by Republican Cory Gardner, all first-time candidates, took their petitions to court — two of them after Secretary of State Jena Griswold's staff found they didn't collect enough valid signatures, and the third when she turned hers in, acknowledging that she came up short.
All three — Michelle Warren, who filed her lawsuit the same day she turned in her petitions, and Diana Bray and Lorena Garcia, who waited until they received statements of insufficiency from Griswold — were hoping to join former Gov. John Hickenlooper and former state House Speaker Andrew Romanoff, who had already qualified for the ballot by petition and through the caucus and assembly process, respectively.
As of April 30, just one of the three cases had reached a final resolution.
A Denver District Court judge ruled that Bray fell too far short of the required 10,500 valid signatures — 1,500 from each of the state's seven congressional districts — to make the ballot. But the same judge ruled a week earlier that Warren, who collected about half the required number, belonged on the ballot because she was prevented from finishing her petition drive, due to restrictions on public gatherings and voters' understandable reluctance to stand face-to-face with a stranger offering a pen and clipboard.
"In the best of times," wrote Judge Christopher J. Baumann, "engaging strangers in public, holding their attention, and acquiring their signatures on a petition is challenging. In a climate of social distancing to mitigate the spread of a communicable disease, it is even more so. During a declared state of emergency, it becomes almost futile."
Griswold appealed Baumann's decision to the Colorado Supreme Court, arguing that justices should remove Warren from the ballot because the lower court judge established standards that Griswold considers too lenient.
The third Democrat, Garcia, came closest to satisfying the legal requirements — with nearly 10,000 valid signatures, though she was short by big margins in a couple of congressional districts — and was in the process of preparing to rehabilitate individual signatures . That painstaking process involves scouring the list of rejected signatures for instances where Griswold's verifiers made mistakes — it happens — or where voters filled out the petition differently than their voter record, using a nickname instead of their proper name, leaving out a middle initial, transposing a number in their address. She's planned to go through the list signature by signature, asking a judge to agree that the voters had intended to sign her petition despite not signing in a way that satisfied the Secretary of State's Office's strictest standards.
But after the Warren decision, she changed her strategy and argued that she, too, had done as well as could be expected, considering the pandemic.
Late Thursday, Baumann agreed, ruling that Garcia had turned in enough signatures and should be on the primary ballot.
“Our grassroots team organized nearly 200 volunteers all across Colorado to collect signatures to make sure that Coloradans have a true people-centered candidate on the ballot this June,” Garcia said in a statement. “COVID19 has turned everyone’s world upside down, including political campaigns, and we are pleased with the decision of the court.”
Added Garcia: “We continue this fight because we refuse to give in to the political machine that keeps diverse voices off the ballot. Colorado deserves elected leaders who will always put people first. We continue this fight because our values command it. We deserve a society in which equal opportunity is a reality, in which people work one job and earn a living wage, and in which our planet is thriving, not dying."
Under the standards Griswold proposed in her Supreme Court appeal, Garcia would likely be able to stay on the ballot.
Colorado's secretaries of state are no strangers to last-minute court rulings determining whether candidates can be included on the ballot. In one case four years ago, the ruling came after the ballots had already been certified.
That year, a judge ruled that Republican U.S. Senate candidate Ryan Frazier's name would be included on the ballot pending a trip to the Colorado Supreme Court, but that his votes wouldn't be counted if the high court ruled against him.
As it turned out, Frazier prevailed, though he finished fifth in a five-way primary.