In filing suit yesterday against Denver County over its 2011 election plan, Colorado Secretary of State Scott Gessler has raised the specter for the second time since he took office in January that he is using his position as head of elections not to expand but to suppress voting in the state.

Citing state election law, Gessler contends that the Denver plan to send mail ballots to all registered voters in the county is illegal because the law forbids sending ballots to “inactive voters” — that is, registered voters who failed to cast ballots in the last election. At a heated press conference Wednesday, he explained he was filing the suit in order to bring Denver County in line with the law and to establish a uniform election process in counties across the state.

In a release announcing the suit, Gessler quoted a Colorado statute that directs county clerks to “mail [ballots] to each active registered elector.” Gessler is apparently pinning his case in part to a state law passed in 2008 that explicitly required Colorado counties to mail ballots to inactive as well as to active voters. That law was passed only as a temporary measure amid complaints that it established an unfunded mandate. In its absence, Gessler will argue, counties can not send ballots to inactive voters.

Counties have taken different approaches on the subject in the years since but a scan of coverage suggests that cost has been the controlling factor in clerks’ offices not legal questions.

Before he was elected Secretary of State in the GOP “wave election” last year, Gessler built a high-profile law career as a Republican champion of partisan interpretations of campaign finance and election law. Denver is one of the most populous counties in Colorado and is dominated by Democratic voters. News of Gessler’s lawsuit sounded immediate warning bells, as voter groups and members of the media now trained to expect controversy from Gessler, began sending out social-media commentary and email blasts.

Denver Post editorial page editor Curtis Hubbard set the tone with a shorthand Twitter summary of the argument against the lawsuit.

“Sorry, but I don’t see ‘ONLY active voters’ in statute,” he tweeted.

The complaint from Gessler’s detractors is that, in the spirit of facilitating as much voter participation as possible, the law Gessler is citing is actually meant to establish a bare minimum for county clerks. That is, the law compels them to, at the very least, send out ballots to active voters; it is not meant to preclude clerks from doing more than that to get as many legally registered voters to the polls as possible.

Inactive, not dead

Ellen Dumm, director of social-justice organization Campaign for a Strong Colorado, asked Gessler at the Wednesday press conference whether he had considered the fact that he would be, in effect, creating a separate class of voters who would have to jump additional hurdles in order to cast ballots.

“My mother is 85 years old, has voted in Denver since the 1950s. She no longer drives. She doesn’t know how to use the internet and only votes in presidential elections. So you’re telling her that she has to continually do something special to keep voting? You say Just get online and, you know, you can reactivate [your voter status] online. But my mom can’t do that.”

“[Gessler’s suit] would disproportionately affect the elderly, young voters, low income voters, the disabled…That’s not uniformity,” Dumm told the Colorado Independent. “These are legally registered voters. There’s a huge number of people who voted in the presidential election of 2008 who didn’t vote in the off-presidential election of 2010. They’re still registered. He’s creating a new class of voters.”

Dumm conceded that, in addition to typical presidential-election-year-only voters like her mom, a lot of the voters who would fall into Gessler’s new category would be so-called Obama surge voters– young and minority voters drawn out in 2008 by Obama and his get-out-the-vote grassroots army.

Denver Post columnist Mike Littwin directly asked whether, as head of elections, Gessler considered it part of his responsibility to work to encourage people to vote, including voters who are members of traditionally low-turn-out minority communities.

Gessler tap danced in response. He said his office had a lot of responsibilities. Littwin said he took that as a “no.”

The mostly unspoken assumption surrounding the suit is that Gessler’s proposed interpretation of election law would engender a downward-spiraling effect on voter turnout. Inactive voters would not receive ballots in the mail and so would fail to submit them on time and so would not vote this year, ratcheting up the total number of inactive voters for the next election. A greater number of the new larger population of inactive voters would be less likely to vote without having received ballots in the mail, which would again ratchet up the number of inactive voters for the subsequent election, and so on.

According to Denver Clerk and Recorder Debra Johnson, approximately 15 percent of the county’s inactive voters, or 10,655 people, cast ballots in the last municipal election. That’s a significant number of votes. US Senator Michael Bennet defeated Republican challenger Ken Buck by only roughly 15,000 votes in the statewide election last year.

“This is a fundamental issue of fairness and of keeping voting accessible to as many eligible voters as possible,” Johnson said in a release. “We have mailed to [inactive ] voters consistently and without issue from the Secretary of State for the last five mail ballot elections…. These voters deserve equal access to the ballot.”

‘Voter fraud’

During the legislative session last spring, Gessler was the architect and main lobbyist for House Bill 1252, introduced by Republican lawmakers Chris Holbert and Ted Harvey. The bill sought to give the new secretary of state expansive powers to throw registered voters off the rolls. The law would have required Gessler to “periodically check” voter rolls against a vague collection of databases “maintained by federal and state agencies.” If the secretary suspected that any registered voter “may not be a citizen,” he could initiate a 90-day process whereby the voter would have to prove again his or her right to vote.

Gessler argued that he had found cases of voter fraud in which non-citizens had cast ballots in Colorado in the 2010 election. His numbers looked fuzzy or worse to lawmakers and election analysts.

In a committee hearing on the bill, longtime elections integrity watcher Denver Democratic Rep Lois Court told Gessler she would like to see evidence that any non-citizens had participated in voter fraud. No solid evidence ever came, despite the fact that Gessler appeared not just before lawmakers in Denver but also in Washington to tout the unverified statistics his office compiled in support of the bill.

Most damning, perhaps, is that Republican Sheila Reiner, clerk of Mesa County, a county Gessler mentioned in making his alleged fraud case, felt he was undercutting her integrity and repeatedly demanded that he produce the evidence that supported his claims. Like Rep Court, Reiner has yet to be satisfied.

On Wednesday, Gessler made reference to “reducing the potential for fraud” with the Denver County lawsuit, but he didn’t elaborate.

Republican officeholders around the country this year have pushed anti-fraud voter ID bills that opponents say are bald attempts– in some cases pathetically unpersuasive— to tamp down voting among Democratic constituencies, such as students, poor people and minorities.

GOP campaign strategists, speaking mostly but not entirely off the record, have long argued the benefits to their party of lower voter turnout.

“I don’t want everybody to vote,” Reagan Revolution figure Paul Weyrich, co-founder of the billionaire-funded Heritage Foundation and the Moral Majority, said in 1980. “[O]ur leverage in the elections goes up as the voting populace goes down.” Weyrich said people who seek “good government” through voter participation were saps who suffered from the “goo goo syndrome.”

The suit filed by Gessler on Wednesday comes late in the election cycle. Counties will be mailing their ballots out in the next few weeks. Court rulings on the matter will likely have to be made quickly.

Denver County officials have said they will follow the plan the county has in place and mail ballots to active and inactive voters, unless ordered not to do so by the judge hearing the case. Officials from Pueblo County, who also planned to mail ballots to inactive voters, said they would wait to see how the case develops.