Judge rules ‘under votes’ in House race must be inspected
November 6, 2010
DENVER – A district court judge in Denver ruled late Friday that “under votes” in the House District 61 race must be inspected, and any clear votes for write-in candidate Kathleen Curry be added to the tally.
“It is possible Curry may have received the greatest number of votes in the HD 61 race,” Judge John W. Madden ruled. “Refusing to count these votes would thwart the clear intention of the electorate, as well as the intent of the election code.”
Madden ordered Colorado Secretary of State Bernie Buescher’s office to perform an inspection of more than 2,000 ballots constituting the under vote, and to add to Curry’s total those ballots in which her name has been written on the write-in line for the HD 61, even if the accompanying box or oval was not filled in.
Buescher’s office has unitl 5 p.m. Wednesday to appeal the decision to the Colorado Supreme Court. “We hope the county clerks are allowed to do their job soon, and begin the count,” Curry said in an e-mail sent out to supporters and news media Saturday morning. “The state could still delay this decision if they choose to fight against voter intent and appeal this ruling.”
Curry, the incumbent District 61 representative from Gunnison who had to run as a write-in candidate after switching her party affiliation from Democrat to independent last year, still trailed Democrat Roger Wilson of Glenwood Springs as of the latest tally by 495 votes. The district encompasses the Roaring Fork Valley, including Aspen and Pitkin County.
Madden noted in his ruling that “a few” provisional ballots still have yet to be counted in the race, but not enough provisional ballots to move Curry ahead of Wilson.
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There are, however, more than enough “under votes” to potentially change the outcome in Curry’s favor, the judge ruled.
Results of the five-county HD 61 race adjusted later in the week after the Nov. 2 election gave Wilson 9,496 votes to Curry’s 9,001 write-in votes. Republican Luke Korkowski of Mt. Crested Butte had 8,892 votes.
Madden noted that there were a total of 29,390 ballots cast in the house district, but only 27,389 votes recorded in the race, leaving 2,001 under votes.
Under votes are recorded when a voter either chooses not to vote in that particular race, or, in cases where there is a write-in candidate, if they write in a name but don’t fill in the box or oval.
While those votes are not picked up by optical scanners during the initial counting process, election rules require that they be inspected and “voter intent” be taken into consideration, the judge ruled.
Short of counting those votes, the race was not close enough to trigger an automatic recount of the ballots, in which case “voter intent” would come into play.
If the state does not appeal and the judge’s ruling stands, a recount taking into consideration the under votes would begin late next week. If not, Curry could still pay to have a recount done.
“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,” Madden concluded in his Friday ruling. “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.”