Judge Weighs Pros, Cons Of New Ballot Rules

Jon Sarche, Associated Press Writer

Oct 7, 2004 DENVER (AP) Any burden put on voters by new state rules governing the use of provisional ballots and requiring voters to prove their identity at the polls is outweighed by the value they have in reducing the risk of voter fraud, Secretary of State Donetta Davidson said Wednesday.

During testimony in a lawsuit filed by Colorado Common Cause asking a judge to block those rules, Davidson also said she believed new state and federal laws required her to establish the rules.

"We have very close elections in Colorado," she said. "We looked at (use of) ID as a safeguard. ... It stops the ability of any type of game-playing, and people who are actually trying to vote more than once."

She also said rules limiting the use of provisional ballots, which are cast by people whose eligibility to vote is in question, will ease the workload of county clerks and their staff, reducing the potential for error.

Davidson said that is particularly important this year because of an unprecedented surge in voter registration prompted by political activity in the past several months.

Denver District Judge Morris Hoffman said he probably would issue a ruling no later than Oct. 15. An immediate appeal to the state Supreme Court is expected.

Colorado Common Cause sued the secretary of state last month over the rules, which it said deprived several people of the right to vote during the August primary. The group filed the lawsuit on behalf of several of those people.

Besides the identification requirement, the public advocacy group is challenging a rule under which people who vote in the wrong precinct can cast ballots only for president and not for U.S. senator or any other statewide race, even though such races appear on every ballot in every precinct.

Also under fire from the group is a rule prohibiting provisional ballots for voters who applied for absentee ballots. Provisional ballots, used for the first time in Colorado in the 2002 general election, are cast by voters whose eligibility is in question.

Colorado Common Cause attorney Martha Tierney said because there is no evidence of voter fraud, the state should continue using laws and regulations in place for the 2002 general election.

"We should err on the side of allowing people to vote rather than closing that process and taking away the fundamental right to vote," she said.

During her closing argument, Hoffman questioned the amount of inconvenience placed on voters by the requirements. He said under federal law, voters who registered without producing identification are required to show some sort of identification at the polling place, and said broadening that requirement did not seem burdensome.

Hoffman also questioned how burdensome it is to require voters to know which polling place they should use, and to require them to use an absentee ballot if they applied for one.

Tierney said the identification requirement amounted to a poll tax and did not provide significant fraud protection. She also said the two other requirements were being enforced differently in different counties, violating voters' constitutional right to equal protection.

Attorney Richard Daily, representing Davidson, argued that each of the people that Colorado Common Cause named as plaintiffs in the lawsuit could have resolved the problems they had through existing complaint procedures.

"These issues are not of a constitutional dimension," he said. "The three individual plaintiffs' disputes and purported injuries stem from poorly informed or mistrained election judges."

Earlier in the day, Jefferson County elections director Susan Miller said that the disputed regulations protect against fraud, but she also told Common Cause attorney Norman Haglund the election still could be managed properly without the regulations.