If a registered voter failed to vote in the last election he or she is counted as “inactive.”  There are tens of thousands of inactive voters in Denver.  And a battle is playing out over whether or not to mail them ballots for the upcoming election.  CPR’s Ben Markus has more. 


Reporter Ben Markus: There are 55,000 inactive voters in Denver.  And Debra Johnson, the City and County’s Clerk and Recorder, says they could have missed voting in the last election for any number of reasons.

Johnson: I mean, you had to work late -- overtime -- you know, I mean, you’re sick.  I mean, so should they have one time and not have the same ballot mailed to them?

Reporter: She thinks they should get a ballot.  And Denver has mailed ballots to inactive voters in the last 5 elections.

Johnson: I’m leaning on the side of inclusion. I want to make sure that the same people, the people that are eligible to vote have the ability to vote like anyone else. But this election is different, says Scott Gessler, Colorado’s Secretary of State.  He says yes, the state allowed clerks to send ballots to inactive voters after long lines at the polls in 2006 may have turned some voters away -- and lawmakers didn’t want them left out next time. But Gessler notes that law ended this summer.

Gessler: I think the law is pretty clear, Clerks and Recorders are, when it comes to state elections, are only allowed to do what the State Legislature allows them to do, that’s how we have elections statewide.

Reporter: Denver Clerk Debra Johnson says nothing in the current law prohibits her from mailing ballots.  So Gessler sued.  Now that legal question could be decided tomorrow by a Denver district court judge. Meanwhile Gessler’s critics charge that the Republican is trying to suppress votes in largely Democratic Denver.  Gessler denies that.  He says inactive voters can go online or to the Clerk and Recorder’s office to become active.  And they can vote at a polling place on election day.

Gessler: So inactive voters throughout Denver have lots of opportunities to be able to become active voters or to show up and vote.

Reporter: Still, congressmen from Texas and Pennsylvania have called on the Justice Department to investigate Gessler for a violation of the Voting Rights Act -- which prohibits discrimination toward minority voters.  One state rep says that’s just what’s happening.

Duran: This is about the numbers and the facts don’t lie.

Reporter: That’s Crisanta Duran who represents House District 5 in Denver -- which includes the Elyria     Swansea neighborhood with some of the highest rates of inactive voters.

Duran: And you’re decision to sue the Clerk and Recorder in Denver for mailing to these legally registered voters is disproportionally effecting people of color, in Latino and African American neighborhoods.  I mean those are the facts.

Reporter: But Victor Mitchel a former Republican State Representative, who runs SaveColoradoJobs.org says if voters have become inactive then that’s they’re own fault.  Mitchel’s concerned that if liberal Denver’s 55-thousand inactive voters get ballots in the mail, that could unfairly tip the scales in favor of Proposition 103 -- which would raise taxes for the state’s schools.

Mitchel: It could have a significant impact potentially on the outcome of this.  Right now the polls are neck and neck on how Prop 103 will turn out.

Reporter: For her part, Denver Clerk Debra Johnson says her decision to mail ballots to inactive voters was never about politics.

Reporter: Not for me, it is not, to me this is kind of a fundamental right and that this is a practice that Denver has been doing and I’m carrying that out. One other county is eagerly awaiting the court decision tomorrow.  Pueblo County also planned to send ballots out to more than 17,000 inactive voters -- including dozens of military men and women overseas who Gessler also said were ineligible to get ballots automatically mailed to them.