McConnell questions legality of secret party ballot
January 25, 2011
Steamboat Springs — Former U.S. congressional candidate and Steamboat Springs resident Bob McConnell is challenging the legality of a vacancy committee's Jan. 3 secret ballot that gave Hayden Republican Jean White a seat in the state Senate.
In a mass e-mail sent Sunday, McConnell said committee members' votes at the Moffat County Courthouse should have been cast publicly under Colorado open meetings law because they were appointing someone to a public position.
McConnell said Monday that he's not planning any legal action related to the ballot process, but his e-mail strongly left the door open to that possibility.
Two lawyers gave different reactions to his assertions Monday.
Attorney Chris Beall, who provides legal counsel to the Steamboat Pilot & Today and the Colorado Press Association, said McConnell's arguments could have "some persuasive force" in a courtroom.
"There is no case that establishes whether a partisan vacancy committee is subject to open meetings law," Beall said. "So it's an open question."
Not according to Ryan Call, an election law attorney who represents the Colorado Republican Party and works for the law firm of Hale Westfall in Denver. Call agreed that there is no specific case law on the matter but said cases on similar issues date to 1903 in Colorado and have made it as far as the U.S. Supreme Court.
"Every few years or so, someone raises the question as to whether political party organizations … are subject to the open meetings law, and the answer is very clearly 'no,'" Call said. "These folks who are casting votes in vacancy committees are not doing so in representative capacities. … It's not a delegation of authority in the same way you might see in open meetings law."
Call attended the Jan. 3 meeting in Craig in which the state Senate District 8 vacancy committee selected Jean White to replace her husband, former state Sen. Al White, in the state Legislature. The selection required five rounds of voting to reach a majority of the committee, which included the district's executive officers and Republican Party chairpersons from counties in its Northwest Colorado boundaries.
Seven members of the nine-member committee voted. Jean White, an executive officer for the district, recused herself. Eagle County Republican Party Chairman Randy Milhoan was hospitalized and unable to vote.
Jean White could not be reached late Monday.
McConnell was one of six candidates vying to complete Al White's term. Al White left his seat to become executive director of the Colorado Tourism Office.
Vacancy committee members have released the tally for each candidate in each round but have not specified which members cast which votes.
McConnell said he's "just raising the question" about whether the committee violated open meetings law.
"I'm not in this to undo what was done," McConnell said Monday. "But I think we need to fix the process. I'm putting the Republican Party on notice that a bunch of us are upset about that."
Vacancy committee Chairman Phil Vaughan, of Garfield County, said the state Republican Party specifies the use of secret ballots for vacancy appointments.
"That's very clear in the Colorado Republican bylaws," he said.
McConnell ran for Congress as a Republican last year but lost in the primary in August to Cortez businessman and state legislator Scott Tipton, who went on to defeat incumbent Democrat John Salazar and win a seat in the U.S. House of Representatives.
When Al White announced his departure from the state Senate, McConnell threw his hat in the ring for the seat. Shortly after the seat went to Jean White, McConnell announced his departure from the Republican Party, also in a mass e-mail.
He said he's now registered as unaffiliated.
McConnell expressed how he felt about the vacancy process in Sunday's e-mail.
"As we saw recently in the dog and pony show that was the SD 8 vacancy committee, the secret ballot protects good old boys from accountability and allows them to perpetuate the back door deals that have nearly destroyed the Colorado GOP and indeed, this country," McConnell wrote.
Beall said the primary question is not whether secret ballots are permissible.
"The real question is whether a vacancy committee is a body that is subject to open meetings law," Beall said.
Colorado's Sunshine Law imposes strict regulations on public and private entities that have been delegated a governmental decision-making function.
Beall said the distinction lies in whether the vacancy process constituted a representative body seeking to enact the will of its constituents.
"It's unclear to me whether a vacancy committee functions in that way — whether committee members are representatives or direct voters," he said.
Call said the state Republican Party is a private association.
He compared a vacancy appointment to votes made at party caucuses, assemblies and other such functions.
"That is not a grant of government authority within the open meetings law," he said.
"The Republican Party has a long tradition of preserving and protecting the right of secret ballots," Call continued. "To take a position that the party has to conduct all of its meetings and procedures in open meetings … would really undermine the autonomy of individual voters selecting their choice."
McConnell stated a potential for litigation in the Sunday e-mail after alleging that Colorado politicians have "hidden behind" the Republican Party's bylaws.
"If this bylaw is not changed, we will take the party to court under the state open meetings law, and we will win," he wrote.
— To reach Mike Lawrence, call 970-871-4233 or e-mail mlawrence@SteamboatToday.com