Ohio Secretary of State Jon Husted said in a release Monday that, of the 333,063 signatures turned in by petitioners for the referendum on HB 194, only 221,572 of them were valid.

That’s 9,578 less than the required number, 231,150, or six percent of the total number of votes cast for governor in 2010.

Democrats say they have collected more than enough signatures since the due date, September 29, to make up the difference.

“In keeping with our constitutional rights to continue circulating petitions while the September 29 submission was being validated, we have been inspired by the tens of thousands of voters from all 88 counties across the state who have continued to sign the petition to prevent HB 194 from ever becoming law in Ohio,” said former Secretary of State Jennifer Brunner in a release.  Brunner, who spearheaded the 2006 reforms as a response to chaotic presidential elections in 2000 and 2004, is now with Fair Elections Ohio, the organization that ran the signature-gathering drive against HB 194.

“Thanks to these efforts, Fair Elections Ohio currently has more than enough signatures on hand to overcome this small deficit,” said the release, adding that the total number of signatures gathered since September will be released next week.

HB 194 is one of three bills championed by the state’s Republican legislative majority in the 2011 session that has received enough criticism to warrant a voter referendum. Referendums are valid in Ohio thanks to a 1912 amendment in the state’s constitution that provides for a citizen’s veto of unpopular laws. Senate Bill 5, which would have stripped public-employee unions of many collective bargaining rights, as well as the right to binding third-party dispute arbitration, was nixed at the polls on Election Day last Tuesday, while HB 319, which re-draws the state’s congressional districts to favor Republicans 12-4, could go on the ballot next November alongside the voter suppression bill if lawmakers can’t reach a compromise soon.

“We’re batting around a lot of different ideas,” state Representative Crisanta Duran, D-Denver, told the Colorado Independent. “We’ll be looking at where there’s common ground. We’ll be talking with county clerks to find the best way to reach out to voters and to establish a system where all Coloradans have equal access to the political process.”

Duran was speaking generally about conversations taking place among members of the Democratic caucus in the state House, but she added that she’s confident there would be bipartisan support for any well-crafted bill that fairly addresses the question raised by Secretary of State Scott Gessler when he sued Denver County last month to prevent Clerk Debra Johnson from mailing ballots to legally registered but “inactive” voters.

“The overall goal has to be to facilitate the right to vote. Voting is an American value that people cherish. Expanding the franchise is the goal,” said Duran. “I mean, we have GOP county clerks like Sheila Reiner in Mesa County who agree that Gessler’s action was an overstep.”

Gessler, a Republican who made a career as a private attorney championing partisan interpretations of election and campaign finance law, argued that state law requires clerks mail ballots to only active registered voters. Gessler said he was seeking to prevent fraud but he supplied no evidence that any fraud had occurred in Colorado in recent elections, much less fraud that suggested mailing ballots to inactive voters in any way increased the likelihood of fraud.

Inactive voters in Colorado are those who have registered but who have failed to cast a ballot in the previous even-year election.

Roughly 2.4 million Coloradans voted in the presidential election of 2008. The 2010 midterm election, however, drew only 1.8 million voters. There are now roughly 1.2 million voters categorized as inactive in Colorado. A disproportionate share of those inactive voters live in Democratic Party dominated Denver County.

Mailing ballots to inactive voters has been demonstrated to increase participation. Voters are much more likely to cast ballots they receive in the mail than they are to track down a ballot or request one to complete and return.

In Denver last year, Clerk Johnson estimated that mailing to inactive voters translated to 10,000 votes. That same year, Democratic US Senator Michael Bennet defeated Republican Ken Buck by only roughly 15,000 votes statewide.

On October 7, Judge Brian Whitney threw out Gessler’s lawsuit, ruling that the Secretary of State’s interpretation of election law in the case was insupportable. Gessler has not said whether or not he plans to appeal the decision.

That Gessler’s actions seemed rushed and even slapdash bolstered the impression among legal analysts and members of the press that Gessler was acting baldly to suppress votes in the state, joining Republicans in states coast to coast who this year have spearheaded an historic raft of similar efforts.

Maps of inactive voters in Denver broadcast by MSNBC’s Rachel Maddow highlighted the fact that Gessler’s injunction against mailing inactive voters ballots, had it been upheld, would have overwhelmingly affected minority voters in the city, voters with less access to the internet, for example, who move often and who are clustered partly in Representative Duran’s House District 5.

“I’m watching this very closely,” Duran said. “This is just incredibly important. There’s no reason why legally registered voters should have to jump through additional hoops.”

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The discussion touches on stories reported by the Michigan Messenger on a new Brennan Center for Justice report on the new rash of voter laws and on the fact that Michigan appears to be violating federal laws that seek to expand voter registration there.

Note: At the end of the discussion, Tomasic refers to the Denver District judge who ruled against Gessler on the matter of inactive voter ballots as “she.” He meant “he,” as in Judge Brian Whitney.

“Apologies, Judge Whitney! I had Denver County Clerk Debra Johnson’s face playing across my mind,” says Tomasic.

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Colorado Secretary of State Scott Gessler

This week’s report consisted primarily of an interview with Pueblo County Clerk and Recorder Gilbert Ortiz.

Maddow introduces the segment by saying that Gessler’s efforts to reduce voter turnout in Colorado is part of a concerted, sustained national attack on voting.

“Sometimes it comes down to one person, one official, doing what he or she thinks is the right thing, and doing it right now,” she said about Ortiz’s decision to mail ballots to American soldiers serving overseas.

She said Ortiz was in the courtroom Friday when a judge ruled that county clerks in Colorado could mail ballots to inactive voters, and that he immediately got on the phone to his office and ordered that the ballots be sent.

Ortiz did not return a call seeking further comment.

Gessler’s rise to national prominence began when he sued Denver’s clerk and recorder in order to force her not to mail ballots to inactive voters. Gessler said he was trying to ensure fair elections, which he said would not happen if some counties mailed to inactive voters and others didn’t.

Critics of the move, though, saw it as an effort to reduce voting by Democrats and minorities and as such saw it as part of a national effort to reduce the number of such voters prior to the 2012 election.

Pueblo Clerk Ortiz joined the lawsuit as a defendant, and held off on mailing ballots to soldiers and other inactive voters until Friday when a judge ruled the ballots could go out.

These new restrictions fall most heavily on young, minority, and low-income voters, as well as on voters with disabilities. This wave of changes may sharply tilt the political terrain for the 2012 election. Based on the Brennan Center’s analysis of the 19 laws and two executive actions that passed in 14 states, it is clear that:

• These new laws could make it significantly harder for more than five million eligible voters to cast ballots in 2012.
• The states that have already cut back on voting rights will provide 171 electoral votes in 2012 – 63 percent of the 270 needed to win the presidency.
• Of the 12 likely battleground states, as assessed by an August Los Angeles Times analysis of Gallup polling, five have already cut back on voting rights (and may pass additional restrictive legislation), and two more are currently considering new restrictions.

States have changed their laws so rapidly that no single analysis has assessed the overall impact of such moves. Although it is too early to quantify how the changes will impact voter turnout, they will be a hindrance to many voters at a time when the United States continues to turn out less than two thirds of its eligible citizens in presidential elections and less than half in midterm elections.

There are no such bills either passed or pending in Michigan right now, but voting rights groups say the state is violating federal law by not adequately enforcing current law that requires voter registration services be made available at all public assistance offices.

He also said his intention in filing the suit was to ensure that all counties are consistent in who they send ballots to.

His statement:

“The judge today did not decide on the merits of the case as this was a preliminary decision. The judge said we have a reasonable probability of success on the merits but also admitted his decision could throw the outcome of the election in doubt.

“Coloradans can continue to expect my office to enforce the laws on the books, preserve statewide uniformity, and ensure election integrity,” Gessler said. “Unfortunately, the judge’s decision today allows counties to operate this election differently based on how much money they have. We’ve seen constant erosion of personal responsibility and this decision continues that erosion.

“There can be respectful disagreement over whether Colorado has a good law. But the issues argued in court were largely muddled by overblown political rhetoric and grandstanding by those seeking partisan gain. As we move into the presidential election, I would challenge Coloradans to look beyond the rhetoric, beyond the embellishments and beyond the overblown statements to arrive at your own conclusions. This is merely the first salvo in a long election year to come.

“As I’ve said, inactive voters can still participate in this election by updating their status at GoVoteColorado.com, by contacting their county clerk or by showing up to any service center or polling place before the election.”

Mayor Hancock’s statement:

“I am pleased with the court’s ruling and believe this is a great victory for Denver voters. I applaud the work of our Clerk and Recorder Debra Johnson and our City Attorneys for their diligent representation of the rights of our registered voters. As stewards of good government, our efforts should and will always be focused on encouraging all of our residents to vote, eliminating unnecessary obstacles to participation and working to increase civic engagement through the voting process.”

Rep. Crisanta Duran:

“This is a win for the 54,000-plus legally registered voters of Denver who would have been discouraged from voting by Secretary Gessler’s demand. I’m thrilled that all those folks will have the opportunity to participate in Colorado’s upcoming election, and that people won out over political maneuvering.”

She showed a map comparing areas of Denver with the most inactive voters to a map showing areas of heavy Hispanic concentration, and guess what? They match.

Gessler last week ordered Colorado’s county clerks not to mail ballots to inactive voters, actually filing suit against Denver County. Pueblo County Clerk Gilbert Oritz wrestled publicly with the question of whether to follow Gessler’s order or not, saying it seemed wrong–and possibly illegal–not to mail ballots to active duties soldiers who had been deemed inactive. Ortiz finally said he would comply with the order, but today joined Denver as a defendant in the lawsuit.

“Pueblo County will honor Secretary Gessler’s order but this is not over,” Ortiz is quoted to say. “Pueblo County is currently weighing [its] legal options, including taking the issue to court. The Secretary of State effectively has denied 64 active military personnel the opportunity to vote.”

Gessler unveiled a new interpretation of state election law last week, when he filed a lawsuit to stop Denver County from mailing ballots to “inactive” voters as it had done for the last five years. An inactive voter in Colorado is a voter who is legally registered but who has failed to cast a vote in the previous general election– in this case the election of 2010.

Pueblo County, like Denver, has routinely mailed ballots to all registered voters. Ortiz was committed to do the same this year and pushed back against Gessler this week. He said counsel had advised that Gessler’s interpretation of election law would force Pueblo– and all the counties of Colorado by extension– to violate the federal Uniform Military and Overseas Voters Act, which requires clerks to mail ballots to all eligible voters in the military.

For that reason Ortiz sent a letter to Gessler asking him to submit in writing by Friday an order to Pueblo County not to send ballots out to soldiers. Gessler sent the order Thursday evening. Ortiz has been debating what course of action to take in the hours since.

“The soldiers won’t technically be disenfranchised. They can fax or email for ballots,” Ortiz told the Colorado Independent. To his way of thinking, however, that’s not good enough. The point of mailing the ballots is to help the soldiers out.

“You can just imagine, they have bigger things on their minds. When they have the ballot in their hand, they’ll vote,” he said.

Research on voting and elections backs up Ortiz’s common sense take. A University of Colorado-Denver study (pdf) prepared this year for the Colorado Secretary of State by the Buechner Institute of Governance, reports that mailing ballots to all registered voters, active and inactive, would increase participation. Mailing only to active voters, on the other hand, could well suppress turnout because registered inactive voters, although predisposed to cast ballots, are busy and distracted or in and out of town. The mailed ballots remind them to participate, and they do.

Surely soldiers are as busy and distracted as any of us, said Ortiz, and probably more so. He points to legislative efforts to ensure soldiers have access to ballots and a relatively easy time casting them.

The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986 and the Military and Overseas Voter Empowerment Act (Move) of 2009 set up timelines and procedures to make sure service members can exercise their right to vote without undue burden. The acts removed notarization requirements, required registration applications and absentee ballots be available online and established a 45-day window for ballots to be mailed and returned, for example.

Ortiz takes his cue as clerk from the priorities guiding such legislative efforts.

“UOCAVA and MOVE make it easier for soldiers to vote,” said Ortiz. “But why not make it even easier? That’s how I see it.”

In the release he said much the same thing but perhaps more artfully.

“It’s only right that Pueblo residents who are serving our country in the military should have the chance to cast their ballot here at home. Military men and women should be given every opportunity to participate in the democracy they’re defending …they may be listed as ‘inactive’ voters in our system but, when they’re on active duty, how can we deny them a ballot?”

Gessler made a career as a lawyer of defending Republican clients and causes in election and campaign finance cases. He has been a controversial secretary of state since winning office in the “GOP wave election” of 2010. He has said that, in directing majority Democratic Denver and Pueblo county not to mail ballots to inactive voters, he is seeking to guard against fraud and make the state’s election rules uniform. His detractors have said Gessler has displayed a pattern of endorsing radical solutions to problems that don’t really exist, that what he’s really up to is suppressing the vote in advance of the presidential election of 2012.

Ortiz’s letter:

Pueblo Overseas Ballots Rls-1

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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 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.

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Proponents of the legislation (typically Republicans) generally argue that voter ID is not an onerous burden but is necessary to prevent voting fraud.

“These photo ID proposals, while appearing benign on their face, are not,” said Denise Lieberman, the report author and senior attorney of Advancement Project. “They’re part of a larger and more insidious coordinated effort to push back voting rights for voters of color and other vulnerable populations, who saw increased voter turnout in 2008, in an effort that will have the effect of depressing voter turnout in 2012.”

In addition to voter ID legislation, Lieberman highlights initiatives such as King Street Patriot’s True the Vote (KSP/TTV) project to recruit 1 million poll watchers for Election Day 2012. The report cites articles from the Texas Independent on KSP/TTV, and from the Minnesota Independent on assertions by the state’s county attorneys that Minnesota Majority’s reports of massive voter fraud in 2008 were “frivolous.”

Lieberman referred to the Houston tea party’s recent national summit, which drew attendees from more than two dozen states. “This isn’t limited to Harris County, Texas — 2010 was a practice run for a similar nationwide effort in urban centers across the nation in 2012, playing on unsubstantiated fears of so-called voter fraud, which has been documented not to exist, to justify placing full-scale voter challenge and voter-intimidation efforts at polling places and precincts that have disproportionate minority populations,” she said.

The Texas House and Senate have passed differing versions of voter ID legislation, Senate Bill 14 by state Sen. Troy Fraser (R-Horseshoe Bay). The legislation is now in conference committee.

The House’s version of the bill is especially troublesome, Lieberman said because it does not contain an exemption to the requirement for people age 70 and over.

“Seniors are a particularly vulnerable population because now that exemption is gone, a lot of seniors in Texas will be significantly affected. Many of bills across the U.S. do exempt senior citizens, partly because those are the folks who have the hardest time getting original source documents,” she said.

Additionally, Lieberman said the Texas legislation’s fiscal note is not a true reckoning of how much the law would cost to implement.

Lieberman, of Missouri, said, “One of the problems with Texas is the Legislature is estimating it will cost $2 million. In Missouri, it cost $20 million to implement. We only have 4 million voters, and our law exempts senior citizens from the requirement. $2 million is a paltry sum. It doesn’t begin to account for the actual cost Texas is going to have to incur in providing free IDs.”

She said she would expect the U.S. Department of Justice to raise the same kinds of objections it presented against Georgia’s voter photo ID legislation, which she said only eventually passed Voting Rights Act preclearance once the state spent 10s of millions of dollars to give citizens notice, including via direct mail, public service announcements, public notices, television advertising and notices in everyone’s utility bills.

“If Texas is actually to do all that, do everything Georgia has done, it’s going to cost a lot more than $2 million. They have not allocated the resources to do this right,” she said. “They simply can’t on $2 million, and the bill doesn’t require them to do all of these things. I think that does make it quite suspect under the Voting Rights Act.”

Describing her group as a “civil rights action tank” based in Washington, D.C., Lieberman said Advancement Project and its attorneys are working to combat pending legislation, examining possible legal challenges to laws that are passed, and pushing for gubernatorial vetoes of bills (though not in Texas, where Gov. Rick Perry has deemed it a legislative priority).