Judge rules undervotes must be inspected in HD61

By Troy Hooper
Real AspenNovember 6, 2010
Filling in the oval next to a write-in candidate's name is not a requirement, a district judge in Denver ruled late Friday, setting the stage for a recalculation next week of the Colorado House District 61 race.

Judge James Madden agreed with Kathleen Curry that ballots with her name written on the write-in line for the HD61 race should be counted regardless of whether voters filled in the oval or box next to it.

The decision opens the door for Curry to potentially catch Roger Wilson, who is currently leading the election with 9,496 votes compared to the 9,001 votes Curry received — a difference of 495 votes. There were 29,390 ballots cast in the HD61 race. So far, only 27,389 of them have been counted.
Kathleen Curry

“It is possible Curry may have received the greatest number of votes in the HD 61 race. Refusing to count these votes would thwart the clear intention of the electorate, as well as the intent of the election code,” Judge John W. Madden wrote in his four-page decision released last night.

“The Court disagrees with the Secretary’s argument that a provision for write-in votes which does not also require a particular box to be marked would frustrate the legislative intent of the election code or that it would render any part of the code superfluous. The overall intent of the election code is to permit qualified electors to cast their votes for eligible candidates and ballot issues of their choosing, not to thwart the intent of voters by imposing technical obstacles,” Judge Madden wrote.

The ruling noted that Colorado Secretary of State Bernie Buescher is not complying with election code.

The judge ordered Buescher to inspect the 2,001 undervotes in the race “and to include in the vote total for Curry those ballots in which Curry’s name has been written on the write-in line for the HD 61 race whether or not the target area designating the selection of a write-in candidate has been marked.”

Curry, a three-term state representative from Gunnison, was forced to campaign as a write-in candidate this year because Buescher previously declared she was one month short of meeting a state rule that requires candidates to be unaffiliated for 12 months in order to have their names listed on the ballot.

Roger Wilson

Buescher, who recently lost his own election to Republican Scott Gessler, has until the end of Wednesday to appeal Madden's ruling.

“We hope the county clerks are allowed to do their job soon, and begin the count,” Curry wrote in an e-mail Saturday morning. “The state could still delay this decision if they choose to fight against voter intent and appeal this ruling.”

Republican Luke Korkowski, who received 8,892 votes, has already conceded the HD 61 race. In a post-election interview with Real Aspen, Korkowski admitted he wasn't certain who he was conceding to — Wilson, the Democrat in the lead, or Curry, the independent who still has a shot at retaining her seat.

After saying see ya later to the Democrats in December of last year, Curry knew it would be hard to get elected as a write-in candidate since no one is believed to have ever won a write-in campaign for a Colorado House seat before.

“I knew it would be close and I'm very happy over 9,000 voters remembered to write in my name and do it correctly,” Curry told Real Aspen . “But I never expected 29,390 people to vote. That's higher than my race in 2008, which was a banner year. It's been very gratifying to see the participation.”

Clerks in Pitkin, Eagle, Garfield, Gunnison and Hinsdale counties are expected to begin tallying the undervotes in the HD61 contest Thursday. Depending on the outcome, Curry could pay for a recount in any or all of the five counties. She has already questioned the accuracy of the Pitkin County tally and may request a recount here.

comments: 1 Comment on "Judge rules undervotes must be inspected in HD61 "

Marilyn Marks – Nov. 08, 2010, at 10:11 a.m.

To see details of the court's order and discussion of the impact, see:

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