Return to Sender: Colorado’s Response to Controversial Election Mailer
October 2, 2020
By: Anna Pesetski
COVID-19 has spurred a whole host of challenges in 2020 and the upcoming presidential election in November is no exception to these challenges. Given the concerns with voters travelling to the polls to cast their ballots in person, many states have opted for voting by mail. In response to the surge in mail-in voting, the United States Postal Service circulated a mailer to all fifty states and the District of Columbia containing information about the process of voting by mail. Top election officials in states across the nation have expressed concerns and frustrations with the mailer because its content conflicts with state election laws, likely causing voter confusion. The mailer has sparked controversy among Democrats, who have communicated growing fears that these mailers have been distributed out of political bias because of President Trump’s aversion to voting by mail. These fears have been exacerbated by the fact that Postmaster General Louis DeJoy has made large donations to the president’s campaign.
Colorado Secretary of State Jena Griswold initiated a lawsuit in the U.S. District Court for the District of Colorado in early September against Postmaster General DeJoy and other Postal Service officials. The lawsuit claimed that the mailers would mislead and disenfranchise voters because they contained false statements about the process of voting by mail in Colorado. Judge William J. Martinez granted the injunction to temporarily prevent the Postal Service from distributing the mailers to Colorado voters. He stated that “Colorado will suffer irreparable harm if the Notice is delivered to Colorado households and that no adequate remedy exists to undo or mitigate Colorado’s injury.” The parties have since reached a settlement, which requires that the undelivered mailers be destroyed and that the Postal Service works with Griswold to change confusing information regarding voting on its website.
From a purely legal standpoint, the mailer is dubious because it directly contradicts Colorado election law. A particularly problematic provision of the mailer is the instruction that voters request their mail-in ballots at least fifteen days before Election Day. Voters in Colorado do not need to request a ballot because they will automatically be receiving one. Section 1-7.5-107(3)(a)(I) of the Colorado Electoral Code specifically states that, for mail ballot elections, “[n]ot sooner than twenty-two days before a general, primary, or other mail ballot election, and no later than eighteen days before the election, the county clerk and recorder or designated election official shall mail to each active registered elector…a mail ballot packet.” Another provision on the mailer that contradicts Colorado election law is the instruction for voters to return their marked ballots by mail at least seven days prior to Election Day. Section 1-7.5-107(3)(b)(I)(A) of the Colorado Electoral Code explains that eligible voters can mail their ballots back to the county clerk and recorder or designated official, but they also have the option of “depositing the ballot at the office of the county clerk and recorder or designated election official or at any voter service and polling center, drop box, or drop-off location designated by the county clerk and recorder or designated election official.”
Unless Colorado voters have previously voted by mail or are generally familiar with Colorado election law, they are likely unaware that the mailer contains misleading information about mail-in voting. Accurate information is critical in all political processes, but it is especially vital when citizens are choosing who will be leading the nation for the next four years. Colorado’s commitment to providing its voters with information that reflects its election law will hopefully help voters successfully cast their mail-in ballots in November.