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Republican Walker Stapleton, right, concedes to Democrat Jared Polis on Tuesday night, Nov. 6, 2018. He was flanked by his wife and children. (Jesse Paul, The Colorado Sun)

Colorado has deep-seated problems with its petition system that could prevent qualified candidates from getting on the ballot, says an attorney for 2018 Republican gubernatorial nominee Walker Stapleton.

Stapleton is suing a company he hired to collect thousands of signatures to land him on the primary ballot in a case that is slated to go to trial Monday in Denver. His lawyer, Democrat Stan Garnett, says it shows the broken nature of the signature-gathering process, which requires statewide candidates to spend hundreds of thousands of dollars on a private company in order to reasonably be able to collect the thousands of signatures needed to get on the ballot.

It’s complex and costly, he says, and hence problem prone.

“This case will illustrate the kinds of problems that a candidate for statewide office runs into when trying to petition onto the ballot,” said Garnett, of the Denver law and lobbying firm Brownstein Hyatt Farber Schreck, in a Friday interview with The Colorado Sun and its news partner CBS4. “… There’s a long history of people having problems with this process, of people using it against them in the primary and it becoming a big distraction. So I think we need to figure out how to fix that.”

With the 2020 elections fast approaching and Republican recall efforts against Democrats and their policies gaining steam, signature gathering in Colorado is likely to return to the spotlight. That’s especially true with the large Democratic field running to unseat Republican U.S. Sen. Cory Gardner next year, since most of them will likely seek to make the ballot through the signature-gathering route. 

MORE: Here’s who’s running to unseat Republican U.S. Sen. Cory Gardner in 2020 — and who’s thinking about it

Stapleton’s lawsuit alleges civil theft and breach of contract against signature-gathering firm Kennedy Enterprises. The trial will be decided by a judge, not a jury.

Stapleton hired the company in 2018 to collect signatures to land him on the GOP primary ballot for governor. But on April 10 of that year, Stapleton told reporters he was invalidating the signatures he turned in to the Colorado Secretary of State’s Office, alleging fraud on the part of Kennedy Enterprises and instead making a last-minute switch to get on the ballot through Colorado’s assembly process instead. 

“Some information that was extremely disturbing came to light after my campaign and my attorneys had been asking questions of Daniel Kennedy and Kennedy Enterprises,” Stapleton said at an April 10, 2018, news conference. “… Mr. Kennedy comported himself in an unethical manner and in so doing put in jeopardy Colorado’s process and integrity of how we run elections.”

Jared Polis, left, speaks with CBS4’s Shaun Boyd, center, and Walker Stapleton before the television news station’s gubernatorial debate, in partnership with The Colorado Sun, on Friday, Oct. 5, 2018. Polis went on to win the governor’s race. (Jesse Paul, The Colorado Sun)

Kennedy Enterprises, owned by Daniel Kennedy, has worked on numerous Republican campaigns in Colorado over the years. Candidates in Colorado can get on the primary ballot either by collecting signatures — an expensive, but usually surefire choice — or winning over the support of at least 30% of their party’s delegates at statewide assembly, which can be difficult and unpredictable.

The lawsuit alleges that Kennedy knowingly allowed unqualified people to gather signatures on behalf of the Stapleton campaign. The signatures collected by the unauthorized gatherers were then allegedly reported to have been collected by qualified gatherers.

The lawsuit says Kennedy lied to the Stapleton campaign when they asked about the situation. The legal action says it was filed in part to “vindicate the interest of all Coloradans in ethical and transparent conduct in candidate petition gathering.”

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In Colorado at the time, signature gatherers needed to meet strict requirements, including that they be residents and be registered voters in the political party of the candidate they are collecting signatures for. (The residency requirement has since been removed.)

Garnett said some of those who were gathering signatures were allegedly felons and that he thinks Coloradans will be surprised at the crimes the signature gatherers were accused or convicted of. Those convicted of felonies in Colorado can still register to vote and hence collect signatures, but only if they have completed their sentences and are no longer on parole.

Garnett declined to say what crimes the gatherers were accused of or if any of the gatherers were on parole, saying that information would come out at trial. 

Attorney Stan Garnett, who is representing 2018 Republican gubernatorial nominee Walker Stapleton in his lawsuit against signature-gathering firm Kennedy Enterprises, speaks to reporters in his downtown Denver office Friday, Aug. 2, 2019. (Jesse Paul, The Colorado Sun)

“Dan Kennedy looks forward to proving the same position he has held throughout this matter – that his company followed Colorado law,” said Susan Klopman, who is representing Kennedy.

In court filings, they have also denied the allegations brought by Stapleton.

Stapleton is seeking the roughly $250,000 — or the $11 per signature — he paid to Kennedy Enterprises to collect signatures for his campaign, as well as other damages. 

“Signature-gathering law has become really complicated, not just in Colorado but across the country,” Garnett said. “The more complicated it becomes, the more expensive it is to get people to obtain the signatures. The more expensive it is, the more incentive there is for people to cut corners as they are doing it.”

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And Garnett, the former district attorney in Boulder who has a long history in Colorado politics himself, says there are plenty of examples of things going wrong in recent years. 

“The average Coloradan should want good, qualified people to run for office, in both parties,” he said. “Everybody who cares about democracy should want that. For that to happen, good qualified people need to know that it’s attainable, that you can do it, that you can get on the ballot.”

Election judges process ballots at Denver’s 14th Avenue and Bannock Street polling station on Tuesday, Nov. 6, 2018. (Jesse Paul, The Colorado Sun)

The 2018 reelection campaign of Republican U.S. Rep. Doug Lamborn, of Colorado Springs, was almost derailed because of issues with Kennedy Enterprises signature gatherers. After a high-stakes legal battle, Lamborn was allowed to stay on the ballot. 

And in the 2016 campaign cycle, Republican U.S. Senate candidate Jon Keyser’s primary bid was thrown into chaos and ultimately undone by wrongdoing on the part of one of his signature gatherers. 

“It can happen in both parties,” Garnett said. “It’s not a partisan problem.”

He is urging the legislature to change the system, saying it’s in everybody’s best interest. 

Updated on Aug. 5 at 11 a.m.: This story has been updated to clarify that Colorado signature gatherers no longer have to be residents as was the case during the 2018 election cycle.

The Colorado Sun — Desk: 720-432-2229 Jesse Paul is a political reporter and editor at The Colorado Sun, covering the state legislature, Congress and local politics. He is...