In a special session Thursday night, members of Avon City Council voted 3-2 to appeal the ruling this week by District Court Judge Russell H. Granger.
On Wednesday, Granger ruled in favor of the Avon recall committee in the voter signature dispute and ordered the town of Avon to hold a recall election for Mayor Sarah Smith Hymes and council member Tamra Underwood.
During Thursday’s special session, City Attorney Paul Wisor provided legal advice to five other city council members not affected by the recall. After that, the city council voted 3-2 to appeal Granger’s decision. Council members Lindsay Hardy, Chico Thuon and Pro Mayor Tem Amy Phillips voted in favor of the call, while RJ Andrade and Scott Prince voted against the call. Hymes and Underwood did not participate in any part of the meeting, according to Wisor.
Andrade said in an email that his vote did not indicate that he felt Underwood or Hymes should be recalled.
“When I served with them on the board, they were both extremely capable of doing the job they were elected to do and dedicated themselves to doing just that,” he wrote.
Andrade added that his vote meant one thing: “I agree with Justice Granger and the recall committee’s definition of“ full votes cast. ”Although my personal feelings about the recall of these officials have been clearly expressed, I also believe that the committee (the residents) have met the requirements to put this to a vote, which is their right.
The Vail Daily also contacted Prince about his decision, but he had not responded to the request on Friday afternoon.
The city intends to file its appeal on Friday or Monday.
“We were deeply disappointed with the ordinance, as it failed to address many of the important legal arguments we raised, including, but not limited to, certain constitutional issues involving the rights of Avon voters. to the first and 14th amendments, “said Wisor. “We think it’s important, not only to Avon, but to Colorado communities as a whole, that we get the right answer. We do not think that the judge, by avoiding these problems, did this. “
A difference in interpretation
The disagreement between the city and the Avon recall committee boils down to a difference in interpretation of the Colorado Constitution. The part of the Colorado Constitution in question details the number of signatures required to trigger a recall.
This recall provision requires signatures equivalent to 25% of “the total votes cast” for all candidates for the post in question in the last previous election.
In its interpretation, the city believes that the number of sub-votes – or votes not cast – should be included in the total number of votes cast.
In his order, Granger decided that these sub-votes should not be included. “The application of the simple and ordinary meaning to the expression ‘all the votes cast’ includes the votes cast; not those withheld, sub-votes or otherwise not cast. The legislative history supports this interpretation.
In that decision, Wisor said the judge “failed to articulate precisely the facts and the law he was analyzing.”
In the ordinance, Granger refers to 1991, when the General Assembly amended the revocation statute, which was originally enacted in 1947, to change the wording from “all ballots cast” to “whole vote cast” .
“The amendment changed the signature requirement to trigger a recall based on the number of ballots cast by number of votes cast,” Granger wrote in the order. “The City’s interpretation would require the application of the old wording“ all ballots cast ”in the law; ie the total number of votes cast plus the number of “sub-votes” or votes not cast, which will always be equal to the total number of votes cast. This position is untenable.
And although Wisor agrees with the story presented by Granger, he said the judge left out “the division part,” which is “the key” to the city’s interpretation of mathematics.
According to Wisor, in 1991 the General Assembly “also said that you divide all the votes cast by the number of candidates running (so in this case four) and then multiply by 25%”.
Wisor called this a “fundamental flaw in his order.”
A violation of rights
And according to Wisor, the city believes that the interpretation of the recall committee – which does not include these sub-votes – violates the First and 14th Amendments to the state Constitution. The violation which, Wisor said, Granger did not address in his order.
“To say we were shocked that he didn’t address this issue would be an understatement,” Wisor said.
In essence, these violations, according to Wisor, have to do in part with the way the elections in Avon are run.
In a City Council election, like the one in question, all candidates run for the number of open seats. In this election, there were four open seats. However, according to Wisor, not all voters vote for all four seats.
Regardless of why voters chose not to vote, the city is confident, according to Wisor, that their ballot still counts towards calculating the voters’ signatures needed to trigger a recall election under the Constitution of the Colorado.
According to Granger’s Order, which is in favor of the recall committee, the number of sub-votes does not count under the Colorado Constitution.
Under this interpretation, an Avon voter must vote for council members in order to be included in the calculation, according to Wisor.
“According to our interpretation, I voted and my participation in this election is fully taken into account. It doesn’t matter how many people I actually allocate votes to, ”Wisor said. “According to the interpretation of the recall committee, when I run and vote for only one, two or three candidates, my participation in this election is not fully taken into account.”
He went on to say that the latter interpretation “is a fundamental violation of the fundamental principles of our democracy”.
Complex or not?
Wisor called this a “very complicated problem”, which the city is committed to solving. “We believe that not only is this a problem for the city of Avon, but it is a significant problem for the state of Colorado,” he said.
This is against the belief of the Avon recall committee. “We didn’t want it to be a political issue, we wanted it to be a straightforward legal issue, and it’s a straightforward legal issue. And the judge is absolutely right, ”said Todd Roehr, speaking on behalf of the committee.
If the city were forced to hold a recall election – as was the order issued by Granger – the estimated cost would be $ 15,000, according to Wisor. And if Underwood and Hymes were to win in this election, the city would also be responsible for reimbursing them for the cost of the campaign.
However, the action plan chosen by the city at this stage also has associated costs. Wisor has estimated that the appeal will cost the city an additional $ 15,000 to $ 20,000 on top of the $ 6,300 in litigation costs it has incurred to date on the matter.
Journalist Ali Longwell can be reached at [email protected]