House District 61 race taking legal detour

Curry questions reliability of count in Pitkin County

By Troy Hooper
Real AspenNovember 5, 2010
Independent Kathleen Curry hasn't just faced Democrat Roger Wilson and Republican Luke Korkowski in her bid to retain her seat in House District 61. She's had to square off with the secretary of state, too.
Kathleen Curry

Now the outcome of the race could come down to whether a Denver District Court judge rules in Curry's favor today or endorses Bernie Buescher's stance that ballots with the three-term state representative's name on them will not count unless the box, or oval, next to her name is filled.

House District 61 county clerks are tabulating provisional ballots and the secretary of state has asked the judge to delay his ruling until noon today as it is possible that those votes, as well as any cast overseas, could be enough for Wilson to create more distance from Curry than undervotes can make up. Or, provisional and overseas ballots could theoretically push Curry ahead and render the dispute moot.

Election observers say it is more than likely that the race will boil down to the judge's decision and, if Curry prevails, whether there are enough ballots cast that clearly intended to go Curry's way. She currently trails Wilson by nearly 500 votes. Korkowksi has already conceded that he cannot win.

“The race could come down to a handful of votes,” Curry said Thursday. “What we were envisioning here is kind of a supplemental approach where we take these 1,900 or so additional ballots that haven't been counted yet, the undervote ballots, and record what they say and add 'em to the totals we already have.”

Curry said she is trying to avoid an all-out recount in her district — consisting of Eagle, Garfield, Gunnison, Hinsdale and Pitkin counties —but she will likely ask for a recount in Aspen.

“I have concerns about the count in one county and that would be Pitkin County,” she said. “And it's not what the clerk did or didn't do. I know they absolutely have good intentions. My understanding is there were mechanical problems separating ballots. I do have a fear that the initial count in Pitkin County may not be that reliable based on the input I've received.”

Curry noted that she has passed along her concerns about the vote in Pitkin County to her lawyer.

Pitkin County Clerk Janice Vos Caudill and her team have acknowledged mechanical problems occurred during mail-in ballot processing, but they insist the problems have been corrected.

If there are not enough undervotes that count toward Curry, she still could keep her hopes alive. She could pay for a recount in all five counties — a cost that could run $20,000 or more. By law, taxpayers could foot the bill if the contest between Curry and Wilson gets much closer.

“If it comes down to five or 10 votes, we may be looking at a full-blown recount,” she said.

Curry contends that her poll watchers indicate she might gain one hundred votes right now if voter intent guidelines were broadened. There were that many ballots, she said, where voters wrote her name down but in the wrong race. Her poll watchers said there were 69 of those cases in Gunnison, between 20 and 24 in Garfield and 10 or 12 in Eagle. So it's possible that voter confusion could ruin Curry's election.

“I may just have to live with that, but it is something we're thinking about looking into,” she said.

Should the judge agree that ballots with her name on them should count even if the box or oval next to it is not filled in, Secretary of State Buescher would have three days to decide whether to appeal and, if he did, the matter would go to the Colorado Supreme Court.

Of course, none of this would be happening if Curry had been listed on the ballot in the first place.

Earlier this year, Buescher ruled that she wasn't allowed to run as an independent on this November's ballot because she dropped out of the Democratic Party in December 2009 and the law requires a person to be registered as unaffiliated for 12 months in order to get on the ballot. She sued in federal court and lost.

This time Curry is hoping for better luck in the courtroom.

If not, she could decide to run for office again some other time. And she won't likely face Buescher.

Voters threw Buescher out of office on Tuesday. He will be replaced by Republican Scott Gessler.

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