Colorado prepares to mail ballots as usual despite order

The debate over mail-in ballots and election security reached a peak in March. That's when President Donald Trump issued an executive order that required the U.S. Postal Service to create and implement rules to prevent ballots from being mailed to people not on a new U.S. Postal Service list of registered voters. Supporters of the rules say this would keep elections secure by preventing noncitizens from voting, but opponents warn the new rule-making could keep the ballots out of the hands of some registered voters.

The League of Women Voters subsequently filed a lawsuit on April 2 that specifically challenged section 3 of the executive order on constitutional grounds. 

Then 23 states, including Colorado, and the District of Columbia filed a suit one day later challenging the executive order, contending that the Constitution gives states authority over how elections are conducted.

On July 7, federal Judge Indira Talwani of Massachusetts issued an injunction order that prohibited the implementation of section 2 and 3 of the executive order in the plaintiffs’ jurisdictions. 

On Aug. 11, Talwani issued a preliminary injunction for the League of Women Voter’s lawsuit. This injunction prevented the U.S. Postal Service from implementing section 3 of Trump's executive order.

This decision meant all 50 states didn't have to change their mail voting system before the Nov. 3 election.

As early as June 2, however, the U.S. Postal Service began drafting new rules as required by the executive order. The Postal Service continued developing new rules despite both injunctions. 

U.S. Supreme Court vacates injunction 

On Aug. 24, the U.S. Supreme Court vacated Talwani’s injunction for the 23 states and Washington, D.C.

Justices did not say in their ruling that future government action implementing the executive order would be lawful. Instead, the court stated that the plaintiffs did not have standing because the U.S. Postal Service had not issued a new rule, making the challenge purely speculative.

But all of that changed on Aug. 26 when the Postal Service issued its rules.

That same day, Colorado, alongside 23 other states, the District of Columbia and the League of Women Voters, filed another suit — this time against the U.S. Postal Service for its final rule requiring states to provide a list of people receiving mail-ballots. The plaintiffs argued the rule would limit who could receive a mail-in ballot. 

The following day on Aug. 27, Talwani issued a 14-day temporary restraining order against the U.S. Postal Service, effectively prohibiting it from implementing most provisions within their final rule. Additionally, the temporary restraining order applies to all 50 states – not just the plaintiff jurisdictions. A hearing was scheduled for Thursday in Talwani's courtroom to assess if the order should be converted to a long-term preliminary injunction.

Colorado is one of eight states where election officials send mail ballots to every registered and eligible voter. Because of this, Colorado was one of 30 states targeted by the U.S. Department of Justice, which wanted it to share voter data and information. However, the federal department has so far lost 20 court cases related to this.

Colorado Secretary of State Jena Griswold expressed her distaste for the administration’s executive order and said she was disappointed with the Supreme Court’s decision on Aug. 24. 

Griswold, who's the Democratic candidate for attorney general in the Nov. 3 general election, said she plans to fight the implementation of Trump's executive order.

Jack Todd, the Secretary of State’s Office’s communication director, told The Center Square that the attempt to do so was exemplified in the state’s participation in the multi-state Aug. 26 lawsuit.

Because of the current stage of litigation, Griswold and other state officials have stated regular rules will remain in place for the November elections, which is in 61 days. 

Colorado Attorney General Phil Weiser, a Democrat running against Republican candidate Victor Marx for governor, applauded the temporary restraining order. He wrote in a statement on Aug. 28 that “[t]he Trump administration is trying to interfere with Colorado’s elections and put up new barriers to voting just weeks before Election Day. We will not allow that to happen.”

Lawrence Pacheco, the Attorney General’s Office’s chief communications officer, declined to provide any additional comments to The Center Square.

County clerk weighs in 

The recent rulings and litigation efforts have raised significant concerns to county clerks regarding how they should proceed with administering ballots. The Secretary of State’s Office is in charge of coordinating with county clerks so that their elections process goes smoothly, especially as active litigation ensues. 

Steve Schleiker, the El Paso County clerk and recorder, told The Center Square that the county has not received final, county-specific implementation instructions from the Secretary of State regarding the U.S. Postal Service changes.

He also said that the county is aware of Trump's executive order and has been monitoring the related litigation efforts, but “[a]t this time, El Paso County has not received a formal directive from the Secretary of State requiring our office to alter its election procedures in response to the Executive Order.”

 “We must also be exceptionally cautious about placing voter information, particularly information involving confidential or otherwise protected voters, into a centralized federal database," Schleiker said. “Election officials should never be required to disclose more voter information than is legally necessary, and strong privacy, cybersecurity, retention, and accountability protections must be established before such a system is used."