Right now, candidates can request a recount even if they’ve lost by a wide margin. Colorado’s top election official wants to change that

Hart Van Denburg/CPR News
A ballot drop box outside the Mesa County Clerk and Recorder’s offices in Grand Junction on Thursday, August 26, 2021.

Colorado lawmakers will consider whether to make it harder for candidates who lose by a wide margin to request a recount.

The proposal stems in part from a statewide recount last year that was conducted at the request of former Mesa County Clerk Tina Peters. She lost the Republican primary for secretary of state by 88,579 votes, or around 14 points. The recount found 13 additional votes for Peters and the primary’s winner, Pamela Anderson.

Right now any candidate can request a discretionary recount, as long as they have the funds to pay for it. State rules require publicly funded recounts when the margin in a race ends up less than 0.5 percent apart.

Democratic Secretary of State Jena Griswold said she’s concerned discretionary recounts can be used to spread distrust in the election system.  

“Democracy should not be exploited by candidates who lost by massive margins to spread disinformation, but also to really just make it harder for county clerks and election officials to do their job,” said Griswold. 

The legislation has not yet been introduced, but under Griswold’s proposal, discretionary recounts would only be allowed if the original margin is within 2 percent. 

Griswold noted that Peters’ recount led to no change in the results and contradicted her false claims about alleged election fraud.

“There's a point at which the margins are so big that you can count the ballots 2, 3, 4, 5, 6 times, and then it's not gonna change the outcome,” said Griswold, adding that limiting discretionary recounts leaves election workers free to prepare for the next election.

Peters wasn’t the only clear loser to go through with a recount last year. El Paso County conducted discretionary recounts for three local Republican primary races after candidates who lost by around 30 points each requested them. The recounts changed less than a handful of votes.

“What we have learned is that our systems are incredibly accurate,” said Matt Crane, a Republican and head of the Colorado County Clerks Association. “We have the strongest post-election tabulation audit in the country.” 

Crane said clerks are generally supportive of the legislation but would like to work with the Secretary to potentially allow for a higher discretionary recount threshold in smaller municipal elections, where fewer votes could make a difference. Counties would also like to see the rules require candidates to cover the full cost of a recount, including if it requires overtime for staff or hiring more workers. 

He also said the change would protect regular people from donating to recounts that have no chance at succeeding. Out-of-state donors covered the majority of the $256,000 cost of Peters’ recount.

Hart Van Denburg/CPR News
Then-Colorado Secretary of State candidate, Republican Tina Peters, in Sedalia at the Wide Open Saloon for a primary night watch party on Tuesday, June 28, 2022. Peters lost the primary race to Pam Anderson.

Democratic Senate President Steve Fenberg said he plans to sponsor the legislation but some of the details are still being worked out.

“I'm not sure if all of the things the Secretary mentioned will be in that bill or if that will be a different bill or not a bill at all,” he said during a media availability on Tuesday.

Fenberg said he also wants to make sure the recount process is not abused, but said it’s a sensitive area to delve into.

“Especially when it's a discretionary recount, when it’s the request of the candidate, the purpose is to make sure there's confidence in the outcome of the election, right? And so I want to make sure that whatever we do, we're actually increasing confidence in our elections, rather than giving people a reason to think someone is hiding something, which we aren't.”

Election bills aim to foster public trust

Another of Griswold’s goals this session is to require larger counties to begin processing and counting ballots at least 4 days prior to Election Day, with the goal of releasing results more quickly on election night. 

“In 2022 we did see some conspiracies about early voting, early vote counting, including among some election officials here in Colorado. So this provision will further safeguard the democratic process (from) those who are trying to harm it by throwing sand in the gears of election administration.”

In the midterm election, a false claim circulated among some voters on the right urging people to vote in person, after 3 p.m., on Election Day, on the groundless theory that voting later would make it harder to stuff the ballot box in favor of non-conservative candidates, or have machines somehow switch votes.

Crane said the vast majority of counties, especially larger ones, already get started on ballots early. Mail-in ballots take longer to process because staff must verify each signature, remove the ballot from its envelope and prepare it for the tabulator. 

Crane said counties are working with Griswold to see what the threshold would be for early ballot processing. Under her proposal, it would apply to counties with more than 10,000 active voters, which is about half of Colorado’s 64 counties. 

Griswold also wants to require counties to post-election night updates at specified times. 

“What we saw in 2020 was the attempted slowing down of reporting ballots across the nation. And in that time when the vote counts were not reported, when the polls closed, it basically was a window to push out conspiracies and lies to the American people,” she said. 

Crane said he wants to be very careful to set realistic expectations for the public. “This move will not see all counties, especially large counties, done counting on election night. It just won't happen with the way voters behave in Colorado, where we get so many ballots back on Election Day.”

It’s not uncommon for close races to take weeks to resolve. The contest between Republican Congresswoman Lauren Boebert and her Democratic challenger Adam Frisch in the 3rd congressional district wasn’t officially called until Dec.12, more than a month after Election Day. The candidates were separated by about 550 votes. 

One other top priority for Griswold is to increase access to voting on Colorado’s two federal Indian reservations. She wants to expand the state’s automatic voter registration system to include tribal membership lists and try to guarantee up to three days of early in-person voting on the Southern Ute and Ute Mountain Ute reservations. 

“It's up to tribal leadership whether they want early voting,” said Griswold. 

In 2019, the state guaranteed access to a dropbox and vote center to voters on tribal lands. 

For clerks, a question of who should bear election costs

While the Clerks Association plans to continue to work closely with Griswold on her priorities, they also have their own goals, including increasing how much state funding they get to run elections. Crane said that breakdown hasn’t changed in more than ten years, even though there are a lot more demands on counties and local election workers. 

The state currently reimburses large counties $0.80 for each active voter. Smaller counties get $0.90. Crane said that covers only about a fifth of what it costs counties to run their elections. They’d like to see the state pick up closer to half.

“It's the right thing to do. There's been a lot of unfunded mandates that have come from the general assembly over the last 10 years, and the majority of that cost falls on the counties, and that's not right.”

Another measure they want to push would expand the timeline for when counties need to send ballots to military and overseas voters by giving clerks an extra week to get those ballots out. 

In recent years Colorado has passed a number of election reforms including a law aimed at deterring insider elections security threats and increased training for clerks and staff on how elections work. The state also banned the open carry of firearms within 100 feet of a polling location and allowed election workers to remove their information from online records to help protect against harassment and threats

But election officials say there’s still more to be done to rebuild trust in the process.

“There's still bad actors out there who are lying about our election processes, trying to undermine it to cause chaos and confusion. So our work continues there on top of our day-to-day jobs,” said Crane. 

Hart Van Denburg/CPR News
Election judge Cyndi Clark makes notes about scanned ballots before sealing their box, on Thursday, Nov. 10, 2022, at Mesa County Elections headquarters in Grand Junction.

Clerks already lost one legislative fight this year

While the Clerks Association is still waiting for some of its main priorities to be introduced at the Capitol, Democratic lawmakers already voted down one bill the bipartisan group supported.

Rural counties were asking for more flexibility on the required number of in-person voting locations. 

Current law requires each county to open a certain number of in-person vote centers for each election, depending on its number of active voters. Counties with between 10,000 and 37,000 electors have to open one center for early voting and three on Election Day. 50 of Colorado’s 64 counties fall into that category.

HB-1149 would have allowed those counties to ask the state to reduce their number of Voter Service and Polling locations if they can show they’re being underutilized. 

Democratic Chaffee County Clerk Lori Mitchell told lawmakers that one of her three vote centers only saw 46 voters last Election Day, in part because it was only a few miles from another voting location.

“We would prefer to focus our resources on voter education and outreach,” Mitchell told lawmakers.

The bill, sponsored by Eastern Plains Republican Rep. Richard Holtorf, also would have sought to reduce the number of election judges rural counties need to hire. Currently, all counties must hire three election judges for each Vote Center. Under HB-1149, clerks in smaller counties could have used an existing election office staff member to fill one of those positions. 

“(It’s) very difficult to find enough election judges as it is, let alone three for eight straight days (of early voting),” Crowley County’s Republican clerk Melinda Carter told the committee. “One size does not fit all, as far as big and small counties.”

In addition to Carter, clerks from eight other counties testified in favor of the bill. They argued that the current rules cost local taxpayers, without making it meaningfully easier for them to vote.

Several progressive election access groups opposed the measure and argued it had the potential to disenfranchise rural voters, especially those from marginalized communities.

“Your ability to cast your vote in Colorado should not be dictated by where you live,” testified Katherine Garcia with the Colorado Immigrant Rights Coalition Action Fund. “This bill inherently suppresses voting and, in turn, the electoral power of smaller communities.”

The bill failed on a nearly party-line vote, with only Democratic state Rep. Elizabeth Epps joining Republicans in voting yes.

Editor's Note: This story has been updated to include remarks from Senate President Steve Fenberg.