Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Information and Analysis

Colorado SoS Race: Gap Exceeds Uncounted Ballots

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November 14, 2006

The AP now reports that less than 13,000 uncounted ballots remain in Democratic-leaning counties, thereby making it mathematically impossible for Ken Gordon to overtake Mike Coffman’s 21,163-vote lead as of Monday afternoon. In fact, AP also quotes Gordon as saying, “If those numbers are accurate, then I wish Mike Coffman the best in his new job.” But this statement was not yet a formal concession of defeat.

From this statement as well as previous ones, however, it does appear that Gordon would be unwilling to pursue litigation in an effort to overturn the result of the election if, as is now virtually certain, the final count of the ballot shows him coming up short. One possible basis for such litigation (at least theoretically), were Gordon of a different mindset, would be that an unknown number of voters were prevented from casting ballots last Tuesday as a result of polling place problems. As another report today recounted, these problems were not confined to Denver, but extended elsewhere: Davidson County saw polling place lines of over 5 and ½ hours in length. Even so, it would appear difficult for any such litigation raising this kind of claim to document enough disenfranchised voters statewide to attack a 20,000, or even 10,000, vote victory among ballots actually cast.

Gordon, assuming he loses this Secretary of State election, still can go back to his current job as majority leader in the state’s Senate.

The polling place problems in Colorado, however, still have the potential of affecting some other races in the state, including a Denver tax levy for which “yes” votes exceed “no” votes by about 1500.