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Election judge Richard Korinek (right) confers with Carl Salazar (left) Monday during the first day of the ballot recount in Broomfield.
(
MARK LEFFINGWELL
)
Meanwhile, on the same day suit was filed against Broomfield for the way the election was conducted, the Colorado Oil and Gas Association brought suits against Lafayette and Fort Collins for fracking bans passed by voters in those communities.
Tuesday night, just before the recount showed the anti-fracking measure passed by 20 votes -- not the 17 by which elections officials originally reported it won -- the Broomfield Balanced Energy Coalition filed a lawsuit in Broomfield District Court. The lawsuit alleges the elections division failed to provide legal access for BBEC election watchers throughout the controversial ballot-counting process.
The lawsuit was filed as Broomfield was still completing its recount on Question 300, which bans fracking in Broomfield for five years. The measure passed by 17 votes during the original count -- which took into account ballots that were not tallied on election night, when the measure was failing by 13 votes. The narrow margin of victory triggered an automatic recount per state law.
The recount was complete as of 6:35 p.m. Tuesday. According to the unofficial amended abstract of votes cast for Question 300, 20,702 votes were counted on the issue.
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Bill Tuthill, Broomfield city and county attorney, said he expects the measure to become law unless an interested party files an election challenge.
Broomfield also could face an additional legal battle because of questions about as many as 18 ballots for which eligibility, or lack thereof, has been called into question. City and County Manager Charles Ozaki said a full review of eligibility and final findings will be completed sometime this week.
The BBEC lawsuit takes issue not with the outcome of the election, but with the way the election was conducted. The lawsuit argues Broomfield elections staff examined voters' envelopes and ballots at certain times outside of the view of election watchers. The lawsuit also states BBEC watchers were “systematically denied access … to witness and verify ballots, envelopes and self-affirmations received before and after the election date,” and argues that several meetings regarding election processes took place behind closed doors, instead of being open to the public.
The BBEC is seeking an injunction to stop the ban from taking effect until it can obtain "all information in election documents that is available to election judges," such as vote logs, and access to what election staff talked about during the alleged closed-door sessions.
Jim Candelarie, city and county clerk, said he had not seen the lawsuit and did not want to comment on the matter until he had read through the documents.
Tuthill said Broomfield has given election watchers fair access to the election and does not believe the lawsuit will impact the outcome of the recount.
Calls made to Don Beezley, a member of BBEC who is listed as the plaintiff in the case, were not immediately returned.
The BBEC lawsuit was filed the same day the Colorado Colorado Oil and Gas Association announced it filed lawsuits against Fort Collins and Lafayette, which passed fracking bans on Election Day.
COGA says the bans in the two cities are illegal, because state regulations and the state Supreme Court say oil and gas development “supersedes local laws” and fracking cannot be banned, according to a news release sent Tuesday afternoon by COGA.
The COGA release does not mention Broomfield, but Tuthill said Broomfield will monitor the matter, because COGA's position on fracking bans is well-known.
The Broomfield fracking issue has been mired in controversy since the Nov. 5 election, in part because of questions over voter eligibility, debates over the role of election watchers and increased scrutiny because the margin of victory was so slim. The BBEC lawsuit is the latest criticism election officials have faced over the vote-counting process.
A report by the Colorado Secretary of State's Office released Nov. 27 criticized Broomfield's vote-counting process. The report cited issues such as "illegally and improperly updating voters' residential addresses; illegally issuing ballots from drop-off locations away from the clerk's office; improperly counting ballots cast by ineligible electors; and improperly rejecting ballots cast by eligible electors."
City Manager Ozaki said much of the controversy came from concern “regarding residency-based qualification stems from registrations and address changes that occurred fewer than 30 days before the election.”
As of election day, there were 507 registered voters in that category, he wrote in an email to staff on Tuesday morning. Of those 507 people, 18 votes have been called into question because of eligibility concerns that stemmed from a law change passed in May. One additional ballot was initially rejected, but was found to be eligible, because the voter changed their name, he said.
Those ballots were not included in the recount.
City Councilman Mike Shelton said Broomfield should have sorted out voter verifications prior to conducting the recount, or allowed council to decide whether to conduct a new election on Question 300.
He said Broomfield election officials would not gain any new insight by conducting a recount, especially because the recount only included ballots that were previously counted and will not determine the fate of the other 18 ballots.
"It gives legitimacy to an illegitimate process," he said.
Candelarie said it was critical for Broomfield to complete the recount before moving forward with the additional questions about voter eligibility.
Voter registration laws, which changed in May, caused confusion over which Broomfield voters were allowed to vote on Question 300, according to Tuthill. The rule change allows people who have lived in Colorado for just 22 days to vote in state elections. But Broomfield requires 30-day residency to vote on municipal questions, such as Question 300.
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