CO Official Spends $238K of Taxpayer Funds Fighting Own Ethics Complaint, Says Voter Rights Sucking Budget Dry

Scott Gessler“Had we not had 1303, our budget would be in exceptionally good shape. We’d be just fine,” Gessler testified to his fellow Legislators last December. “1303 has been a budget-buster. It has completely blown our budget out of the water.”

​This is a lie. It is not taken out of context, nor is it possibly true in some alternate-spin right wing media universe. Secretary of State Gessler has blown his budget, and he is lying about the cause. There are several reasons for the $5.1 million budget deficit in the fiscal year 2014-2015, some of which are Gesssler’s choices, some of which are beyond his control, but implementation of House Bill 13-303, otherwise known as the  “Voter Access and Modernized Elections Act” is not one of the factors leading to the projected $5.1 million budget-buster.

The Colorado State Department runs on cash. Businesses, nonprofits, and all manner of political committees pay registration and late fees to the Secretary of State’s office (JBC 5). Out of these fees, approximately 21 percent is allocated for election expenses  (JBC 4). When HB13-1303 was enacted, the Legislature set aside $1,029,181 from the State Cash fund, $772,905 for information technology expenses, and $256,276 for the elections division. The Joint Budget committee Legislative staff calculated election expenses of $113,959 to implement HB1303, leaving a nice little $142, 317 cushion for unforeseen HB1303-related expenses. The total amount allocated from the cash fund was later amended to be $1,317,181 (FY14-15 JBC). This would have left an even bigger cushion to implement HB1303. That cushion has apparently not been cushy enough to satisfy Mr. Gessler.

Secretary of State Gessler doesn’t like HB1303. He never has, and he never will. Something about the convenience of all-mail ballots, the greater turnout rate, the ability to register and vote on the same day – these things help voters vote, and the more voters turn out, the less likely they are to elect Republicans, and, according to Gessler, a good election is one in which Republicans win.    

At least a million dollars of the budget-busting overrun has been legal expenses related to  Mr. Gessler’s attempts to disenfranchise voters, or to his ethical missteps.

Gessler has chosen to spend about 10 percent of his elections budget litigating, in pursuit of disenfranchising voters. In FY12, legal expenses were $520,665. In FY13, they were $462,164. So far, in FY14, $176,484. Over the last six years, his department has spent an average of $326,925 on legal expenses (JBC 6). No previous Secretary of State has initiated comparable litigation, particularly in challenging existing election law.

  1. Fiscal years run July 1 - June 30. In FY2012, Gessler was still litigating his predecessor, Bernie Buescher's legal battle – a $315,000 lawsuit from the Independence Institute and other conservative entities. This lawsuit was about whether petition gatherers should be able to be paid “per signature,” and also whether the organization driving the petition effort should have to file full financial disclosure. The lawsuit dragged on for three years. The Independence Institute, Cato Institute, et al, took their complaint to the Supreme Court, which declined to hear it. (CEW 1)
  2. In 2012, Marilyn Marks of the Citizen Center challenged various aspects of voter registration and the HAVA (Help America Vote Act) law, to the tune of $18,087. In 2013, Marks and Citizen Center cost the Department of State $44,090. Also in 2013, in the last month of the recall elections, which goes on the FY2014 budget, Marks and Citizen Center again litigated, costing the State fund $8653, plus another $29,908 in advising the Colorado Libertarian Party to attempt to petition onto the recall successor ballots, which ultimately created a Constitutional conflict, and resulted in the limitation of mail ballots in the recall elections.
  3. In 2012, Gessler attempted to “deactivate” the voting status of 20,000 Colorado voters. Debra Johnson and Gilbert Ortiz, Denver and Pueblo election clerks, disagreed. Gessler’s attempt to disenfranchise voters failed, but the litigation cost the department $78,410. By the way, if the State Department had been able to deactivate these voters, it would have been a net loss of around $16,000, as the Department is reimbursed $0.80 for every voter.
  4. It’s impossible to say how much of the State budget has been spent pursuing the purported “thousands” of noncitizen voters Mr. Gessler began to pursue in 2011. Only four of these noncitizen voters were ever found. However, there is a $122,947 legal services expense called “Other Legal Matters” from FY 2012 through FY14, and this may contain some of the costs of Gessler’s fruitless and wasteful wild goose chases of “noncitizen voters.”
  5. Morse/Giron Recall “recall petition matters” in FY2014 were $12,527. (CEW 2)
  6. The full list of legal entanglements initiated or pursued by Mr. Gessler is available on the Colorado Ethics Watch website, through the ScribD link, at http://www.scribd.com/COEthicsWatch  (CEW 1-2)

Gessler spent $238,000 litigating his $1,300 ethics complaint

In 2012, Scott Gessler spent $1,278.90 on travel to the Republican convention and meetings in Florida and DC, and took it out of discretionary funds. Colorado Ethics Watch filed a complaint, and after two years, Mr. Gessler has spent $238, 923 fighting the ethics complaint and appealing the decision. (CEW Appendix E , page 1 – see preparer’s note: “The Majority of Outside Counsel Services for 2013  and 2014 are related to the IEC matter and related appeal.”)

Finally, Gessler repaid the $1,278.90, which he could have done out of pocket at the time. Apparently, he thought spending $238K of his department’s cash fund defending his dip into discretionary funds was the better choice. His conduct at the Independent Ethics Commission hearing entailed absurd memory loss moments:

Initiatives, Ballot issues, and recall elections do contribute to the budget deficit:

There may be legitimate reasons for the projected budget deficit — Colorado voters are notoriously initiative-prone. We like to run local ballot issues, too, and the Department of State has to reimburse the counties for these costs. Both of these together cost the Department of State  approximately $2.5 million in FY2012-2013 (JBC 6).

But these are fairly predictable items, and budgeted for within Elections Division’s 20 percent of the 22 million dollar yearly State Department budget. Recall elections, if they become the new normal, will probably stretch the State budget exponentially.  There are two methods to verify recall petition signatures — the “sampling” method, which samples signatures within parameters, and line-by-line verification. Sampling costs about $30,000 per petition, and line-by-line may cost up to $75,000. In the JBC document, the staff preparer, Alfredo Kemp, argues for legislation amending the requirement for line-by-line verification, and for lowering the standard to sample 110 percent to 105 percent (JBC16).

This does, of course, increase the potential for fraudulent signatures. Remember the strange case of Twila Sue Peach, who voted for the recall after her demise? The possibility of fraud opens up the door for even more litigation, since the Independence Institute was unsuccessful in limiting challenges for fraudulent signatures in the “Buescher” case.

The Help America Vote Act is a Federal law, which attempts to improve and standardize the voting experience from state to state, and had contributed cash infusions to modernize equipment, improve information technology capability, and otherwise help states to run modern elections. HAVA is no longer providing funds to Colorado. So that would decrease State's available election funds. Again, this was completely predictable. Everyone knew that Colorado would still have a legal obligation to implement HAVA, even after the funding stream from the Feds ceased to flow.

A "Fee Holiday" for business filings on the Secretary of State site ended February 28, 2013, and certainly decreased revenues for the State Department, since these fees are the main source of revenue. Fees have since been increased to make up for the holiday. Might work for Walmart, but not a great way to run a government agency.

At the end of the JBC document, State staff Kemp pleads for a $5.1 million cash infusion from the General Fund to the State Department. Gessler has been working the press to promote this, and blaming HB1303 for the budget overrun. His pleas have so far been met with skepticism from his fellow legislators.

Bottom line: If it is voter-initiated actions, such as ballot initiatives and recall elections, which are blowing out the Department of State budget, then Secretary Gessler needs to own up to that, even though this may irk the conservative base which promotes most of these initiatives. If it is his own policies, such as the fee holiday, or Federal policies, such as the end of HAVA funding, then he needs to admit that. In any case, the projected cost overrun has absolutely nothing to do with HB1303, and Gessler needs to stop lying about it.

Until then, the Colorado General Assembly should turn a deaf ear to his pleas for more money.



Colorado Ethics Watch pdf documents available on the CEW website:

Legal expenses:

CEW Appendix E: Department of State Legal Expenses  FY 12-14

CEW Amicus brief on Ethics complaint

To see or download the CEW documents, you will have to create a Scribd account. Click the S in upper right page at http://www.coloradoforethics.org/co

Joint Budget Committee documents:

FY 2014-15 Staff Budget Briefing, Department Of State, prepared by Alfredo Kemm

House Bill 13-1303 Joint Budget Committee Staff Analysis:

Thanks to Ralphie for input and to Luis Toro from Colorado Ethics Watch.

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