Colorado Supreme Court Decides Prior Participation Requirement – Colorado Constitution Article XX1, Section 3 – Violates First and Fourteenth Amendments

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Recall election provision declared unconstitutional in addressing question raised by the Matthew C. Ferguson Law Firm on behalf of Colorado Libertarian Party.

The Colorado Supreme Court issued its Opinion in In Re: Interrogatory Propounded by Governor Hicklenlooper, 2013 CO 62. The Matthew C. Ferguson Law Firm, P.C., representing the Libertarian Party of Colorado, posed a question in the context of the Senate Districts 3 and 11 recall elections concerning the constitutionality of the state constitution’s prior participation requirement on those recall ballots. Based on the Matthew Ferguson Law Firm’s question, Governor John Hickenlooper posed his own Article VI § 3, “solemn” question to the Colorado Supreme Court. This section is rarely invoked by the Governor. The Supreme Court chose to exercise jurisdiction on August 26, 2013, and accepted the Governor’s question posed by the Aspen law firm, because it was an important question. It specifically asked the Supreme Court whether a Colorado Constitutional provision governing the operation of recall elections conflicted with the U.S. Constitution’s First and Fourteenth Amendments. The Court issued an order on August 26th, which required SD 3 and 11 election officials to redo the ballots.

The Supreme Court concluded that this was a solemn question regarding the conflicts between the U.S. Constitution and the Colorado Constitution and there was an actual case in controversy. The Matthew C. Ferguson Law Firm researched the question while representing the Libertarian Party in a separate action in which a Denver trial court and the Supreme Court found that Colorado’s new election law requiring all-mail ballots conflicted with recall candidates’ right to submit their successor candidate petitions up to 15 days before the recall election. The Colorado Secretary of State had significantly reduced the time to file, which was found unconstitutional.

In today’s opinion, Colorado’s high court held that the prior participation requirement that voters must vote on the recall referendum in order to vote for a replacement candidate was unconstitutional, because it compelled voters to express a view on the question of whether or not to recall an elected official. The Court struck down Article XXI § 3 requiring that “no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against a recall of such persons sought to recall from said office.” The Court held that it conflicts with the First and Fourteenth Amendments to the United States Constitution.

The Matthew C. Ferguson Law Firm and Mr. Ferguson raised this unique and rare question setting out a conflict between the U.S. Constitution and the Colorado State Constitution. This may be the first time that the Colorado Supreme Court has struck down any section of the Colorado Constitution based upon violations of the U.S. Constitution.

The Supreme Court’s opinion was rendered in Supreme Court Case 2013CO62.

The Matthew C. Ferguson Law Firm is a civil litigation and trial/appellate firm based in Aspen, Colorado.

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Matthew Ferguson
@LawFerguson
since: 02/2013
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