The Gessler 155: Zero prosecutions of people secretary of state says voted illegally
Since taking over the Secretary of State’s Office in 2011, Scott Gessler has loudly and repeatedly claimed that non-citizens were illegally voting in Colorado elections.
The Republican, who has long called for a new law requiring people to show proof of citizenship before voting, made national news when he went before Congress that year making a blockbuster statement that 16,270 non-citizens were registered to vote in Colorado and 5,000 of them actually had cast ballots in the 2010 state elections, when Democrat Michael Bennet narrowly defeated Republican Ken Buck for the U.S. Senate.
But since making those claims, Gessler’s office said it has been able to identify only 80 non-citizens statewide who were on the voter rolls over the past nine elections, representing 0.0008 percent of the more than 10 million ballots that have been cast in those general elections, and those ballots don’t include primary races or local elections that were held during that time.
After years of critics demanding that Gessler forward names of suspected non-citizens whom he said were on the voter rolls, his office referred a list of 155 suspected non- citizen voters in July to 15 district attorneys across the state, recommending prosecution and issuing a strongly worded statement saying the list was proof the state’s election system is “vulnerable.”
A check by The Daily Sentinel with those district attorneys over the past two weeks, however, revealed that none of the referrals led to criminal prosecutions, though some still are under investigation. The analysis also showed that although some of the non-citizen voters did cast ballots in at least one election going as far back as 2004, the preponderance of the other voters actually were citizens who legally had the right to vote.
Despite criticism to the contrary, officials in Gessler’s office say the entire effort was never about political gain for the secretary of state, who now is seeking the GOP nomination for governor next year, when Democratic Gov. John Hickenlooper faces a re-election bid.
The state needed to check its vulnerability to ensure no one is voting illegally, and Gessler was only being prudent in researching the issue, said his spokesman, Andrew Cole.
“Like the secretary has been saying all along, there’s some kind of problem here,” Cole said. “When we started this process two years ago, we didn’t know the scope of the problem so we walked down a path of trying to get more information. Early on, the secretary said he’s not interested in prosecuting anyone. What he wants is to make sure that non-citizens are not voting.”
But Gessler’s critics, primarily Democratic legislators and a few county clerks from both political parties, said the entire thing has been an utter waste of time and resources, saying there are far more pressing issues his office could have been working on.
CLASH WITH CLERK
Several of the cases Gessler forwarded to prosecutors weren’t investigated because they were well beyond the three-year statute of limitations. Others were “innocent mistakes” that likely wouldn’t lead to actual convictions, the district attorneys said, adding that the bulk of them were legal citizens with U.S. passports.
“Our efforts could be better spent on focusing on improving where the majority of our ballots are processed, or working with the DAs to find out how we could better work together to give them the most meaningful cases so they don’t have so many referrals every year,” said Mesa County Clerk Sheila Reiner, who is set to be president of the Colorado County Clerks Association next year.
“The elections world is just so broad, sometimes you have to weigh what you feel like you need to spend your resources on,” said Reiner, a Republican who has clashed with Gessler on numerous occasions over this and other elections issues. “None of us want illegal votes to negate one of our votes, but the problem is this isn’t based on good data.”
Other Gessler critics, however, say his real intent hasn’t been to bring integrity to the state’s election system, but to disenfranchise voters, particularly young, Latino and low-income voters who tend to vote for Democrats, said state Rep. Dan Pabon, D-Denver.
None of the documented cases of non-citizens that Gessler’s office has managed to uncover as illegal voters involved someone from a Latino nation. Some hailed from Canada, while others have come from such countries as Belgium and England. Still others were from Scandinavia and the Far East.
“Voter fraud in our system cannot be tolerated, there’s no disagreement on that,” Pabon said. “But voter fraud, frankly, is not happening to any large degree in Colorado despite what so many Republicans who are hell-bent on voter suppression to justify their actions espouse. We have to take the fear and the rhetoric out. It’s obvious that voter fraud is just simply not happening, and we need to look at voting from the perspective of enfranchising as many voters as we can.”
The only benefit county clerks and state prosecutors say have come from Gessler’s non-citizen voting issue is that he has shown there are cracks, however small, in the way people are registered to vote.
Many of the non-citizens who did get onto the voter rolls, whether they actually voted or not, did so because of errors by those who registered them, some of the prosecutors said.
Some of those people did say on their registration forms that they were not citizens, but believed they could vote when they mistakenly received registration cards from their county clerks.
Similar to the single case referred to the 9th Judicial District Attorney’s Office, which includes Garfield County, a case in the 10th Judicial District, which is Pueblo County, a legal resident from Belgium believed she could vote for that reason, and did so a couple of times in 2006 and 2007.
She subsequently discovered she wasn’t an eligible voter and had her name removed from the voter rolls, said Pueblo District Attorney Jeff Chostner.
“We took a look at it and thought, ‘This was a mistake of fact on her part,’ but the elections goes back to 2006 or 2007,” Chostner said. “One, we had a statute of limitations problem and, two, we had a mistake of fact problem, so nothing was done with that. The other person was from England, and he’s back there now. And that was in the 2006 time frame, too.”
While Boulder County District Attorney Stan Garnett called the Gessler referrals “a political wild goose chase,” Chostner said he understands the need to look into such cases, regardless of the small number.
Still, Chostner doesn’t see non-citizen voting as a major issue, adding that he thought it was ironic that none were Hispanic voters, who make up a large percentage of voters in his district.
“We have the odd one or two that we take a look at, but the kind of systemic voter fraud that has been suggested at the state level, I’m not seeing here locally,” he said. “The underlying implication is that you may have Hispanic voters up from Mexico here illegally voting. I’m just not seeing that, either. They’re not Hispanic voters at all.”
Lee Richards, spokeswoman for District Attorney Dan May in the 4th Judicial District, which includes El Paso and Teller counties, said the voting-related cases that routinely get referred from the local county clerks don’t involve non-citizens.
“It’s fairly routine at every election that they send over a certain number, and 95 percent of the time typically it’s nothing,” she said. “Sometimes, it’s people like spouses mixing up the envelope and signing each other’s (ballot) or something like that.”
When Gessler first made his claim about the non-citizen voters, he said his information was based on a check of state voter rolls against people who got driver’s licenses from the Colorado Division of Motor Vehicles. Those applications call on registrants to affirm their citizenship status through the Motor Voter law, which allows people to register to vote at the same time.
But because the state’s driver’s license laws don’t verify citizenship status, Gessler’s office did what a handful of other states have done — seek special permission to use the federal Systematic Alien Verification for Entitlements computer database program maintained by the U.S. Department of Homeland Security.
After much to-do with the federal government, he got that permission and, in April, ran the names of nearly 7,000 people the office suspected were non-citizens based on DMV records, Cole said.
Of those, 299 came back as either non-citizens or had incomplete records in the federal database.
Letters were sent to each asking them to verify their citizenship status. Most showed that they were, but a handful turned out to be non-citizens who subsequently requested to be removed from the voter rolls, Cole said.
One hundred and fifty-five did not respond, and were referred to the DAs.
Like many of those cases, the one referred to Reiner’s office in Mesa County turned out to be a Republican who became a U.S. citizen as a minor, which became automatic when his parents obtained citizenship. Dan Hotsenpiller, district attorney in the 7th Judicial District, which includes Montrose and Delta counties, reported similar circumstances last month in the one case referred to his office.
Attempts to reach those voters failed.
PROVING A CASE
For prosecutors, the first hurdle in proving in a court of law that someone is guilty of illegally voting, a class 5 felony punishable by up to 3 years in prison and a $100,000 fine, is to show they are non-citizens.
But when an investigator in the Denver District Attorney’s Office tried to get that proof from the Secretary of State’s Office for the 32 cases referred there, his requests were met with little cooperation.
After corresponding with Cole and Deputy Secretary of State Suzanne Staiert four times, Joseph Morales, chief deputy district attorney in Denver, gave up.
“We have still yet to receive any information that would lead us to believe that the SAVE database is a reliable source of information and that the information was lawfully obtained,” Morales said in an Oct. 1 letter to Staiert, which was obtained through a Colorado Open Records Act request filed with Gessler’s office. “To pursue a criminal investigation we must have admissible credible and competent evidence which would lead us to believe that a crime has been committed. The information you have provided thus far does not satisfy that level.”
Cole and Staiert, however, said they stopped working with Morales when they came to the conclusion that his motives were in question, saying he seemed to be trying to build a case against them, and not the non-citizen voters.
“Morales accused us of improperly using the database,” Cole said. “He more or less threatened us.”
They said Morales made reference to Cory Voorhis, the federal immigration agent who was fired but later exonerated for accessing a federal law enforcement database in 2006, and sharing that information with former GOP congressman Bob Beauprez. In that year’s governor’s race, Beauprez subsequently tried to use that information to show that Democrat Bill Ritter, while he was Denver district attorney, plea bargained with an illegal immigrant who later was wanted in California on suspicion of sexual assault on a child.
Lynn Kimbrough, spokeswoman for Denver District Attorney Mitchell Morrissey, said Morales was interested in getting evidence he could legally use to support any possible prosecution, saying he did not want to be involved in a “Voorhis” case.
“(He) relayed that to the SOS,” Kimbrough said. “The comment of having a fear of prosecution from (Morales) is not consistent with the information I have.”
Cole and Staiert said they were able to get special permission from Homeland Security to provide prosecutors in the 18th Judicial District “screenshots” that showed some of the registered voters were non-citizens.
That district is expected to announce in the next few days whether it will file charges in any of the 41 cases referred to it.