What happens to votes cast in Colorado for Trump in the primary?

From the conclusion of the Colorado Supreme Court’s decision in Anderson v. Griswold:

¶257 The district court erred by concluding that Section Three does not apply to the President. We therefore reverse the district court’s judgment. As stated above, however, we affirm much of the district court’s reasoning on other issues. Accordingly, we conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him. See § 1-7-114(2), C.R.S. (2023) (“A vote for a write-in candidate shall not be counted unless that candidate is qualified to hold the office for which the elector’s vote was cast.”). But we stay our ruling until January 4, 2024 (the day before the Secretary’s deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires, it shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot until the receipt of any order or mandate from the Supreme Court.

January 4 has come and gone. An appeal is pending. Barring an order from the Supreme Court ordering otherwise in days ahead, it appears Trump’s name will be listed on the ballot.

There is no explanation of why the Colorado Supreme Court granted a stay or what factors it considered. In particular, the stay requires Trump’s name to appear on the ballot “if review is sought in the Supreme Court” before January 4, 2024, unless there is an order from the Supreme Court. Now, one might rightly think a stay is warranted because there is significant harm to voters who want to vote for a candidate later deemed eligible on appeal. But one might also think that a stay is not warranted because there is significant harm to voters who may cast their ballots for Trump only to have them discarded later. The court never explains this or any other factor.

Importantly, too, the Court does not explain whether votes cast for Trump during the stay will later be counted.

This is a curious outcome for an ineligible candidate, but not unprecedented in Colorado. Part of the state jurisdictional hook for a state court to hear a claim like this comes from precedent in a case called Frazier v. Williams, in 2016 and 2017. And Frazier saw an unusual proposal at the district court level:

Less than a day after a court decision erased him from the Colorado U.S. Senate race, Republican candidate Robert Blaha’s campaign won a second life.

District Court Judge Elizabeth Starrs signed a new order Thursday that permits the secretary of state’s office to count enough disputed signatures to qualify the candidate for the June 28 primary ballot.

. . .

The court issued a separate order authorizing the state to certify the ballot with Ryan Frazier’s name listed as a candidate, even though he must win a legal appeal to the Colorado Supreme Court to qualify.

. . .

If votes are cast for Frazier, and he loses the appeal, they will not count, the judge ordered.

Earlier in the day the court put a stay on the ballot amid the legal challenge, but Secretary of State Wayne Williams convinced the court that counties needed to print ballots for overseas and military voters ahead of the May 14 mailing deadline.

This is a suboptimal outcome, of course, and not a remedy I’ve seen elsewhere (but perhaps it’s happened in other states). And that express two-part solution in Frazier during the appeal–the candidate’s name will appear on the ballot, but votes will only be counted if he was successful on the appeal–was not an express provision of the Colorado Supreme Court’s stay in Anderson.

Now, one could imagine a variety of outcomes. The cleanest, of course, is that the Supreme Court concludes he is eligible, and votes cast for him are counted.

But what if the Supreme Court concludes he is not qualified ? Might Colorado count ballots cast for him because it was implied to run with the appearance of the candidate’s name on the ballot? Or might Colorado not count them, because, well, he’s not qualified, and it would separately violate the Secretary’s duties to count such votes–or, perhaps, would require a separate action to enforce? And if that’s the case, it seems like a risk voters ought to be more clearly on notice about (like Frazier).

What if the appeal is still pending? The Colorado Secretary of State has indicated that she must certify the election by March 28. That’s some time, and it’s likely the Supreme Court issues a decision before then. But hardly guaranteed. Would the state order the Secretary to delay certifying the results as the case remains in front of the Supreme Court? Does a state court have power to do that?

The Colorado Supreme Court’s decision simply (and unfortunately) leaves open an unresolved issue, one more element of uncertainty in this process. Perhaps, however, it won’t matter if the case is resolved quickly enough.

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