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Voters enter Augustana Lutheran Church to cast their ballots Nov. 8, 2022, in Denver. (Olivia Sun, The Colorado Sun via Report for America)

Colorado Secretary of State Jena Griswold, a Democrat, wants the state legislature this year to limit the circumstances under which losing candidates can pay for a recount and force ballots to be tabulated for a second time. 

But she is facing skepticism from a top Democratic lawmaker at the Capitol and may have trouble finding someone to pursue the policy change, which is already sure to irk Republican election conspiracy theorists. 

Right now, any Colorado candidate can initiate a recount if they lose an election, no matter how big their loss is, as long as they are willing to fork over enough money to cover the cost of ballots being counted for a second time. (Colorado also has mandatory, government-funded recounts, but only when races are within an extremely slim margin.)

Griswold wants to prevent so-called permissive recounts by candidates who lose by more than 2 percentage points. Her idea is to prevent election workers across the state from having to duplicate their work in contests with a clear outcome at a time when they’re already under immense pressure. 

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“What we saw in 2022 was a candidate who lost by massive margins taking the whole state into a recount,” she said in an interview with The Colorado Sun last week. “It’s basically a third partial election. The election calendar is very tight. It’s a lot of work. Adding in a statewide recount is a big burden for election officials across the state.”

In 2022, then-Mesa County Clerk Tina Peters paid more than $100,000 for a recount in her GOP primary loss in the secretary of state’s race after alleging fraud and malfeasance but providing no evidence. There was no shift in Peters’ 14-percentage-point loss after the votes were tallied for a second time.

But Colorado Senate President Steve Fenberg, a Boulder Democrat, has his doubts. And given that he’s expected to run the annual bill this year tweaking Colorado’s election code, it’s unclear whether the proposal will make its way before the legislature. 

“It might not be in the bill,” Fenberg told reporters Tuesday, “and if it is, it might not necessarily look exactly the way” Griswold has proposed. 

Fenberg points out that discretionary recounts are relatively rare. He feels the 2-percentage-point cap may be too low and he’s also worried about limiting a process aimed at helping voters have confidence in election results.

Sen. Steve Fenberg, D-Boulder, makes a point during a news conference on the west steps of the State Capitol about legislative plans for the upcoming session Monday, Jan. 10, 2022, in Denver. (AP Photo/David Zalubowski)

“I’m open to making sure that the recount process is not abused,” he said. “But I also feel that, at the end of the day, a recount — especially when it’s a discretionary recount — is (meant) to make sure there’s confidence in the outcome of the election. I want to make sure that whatever we do we’re actually increasing confidence in our elections, rather than giving people a reason to think someone was hiding something, which we aren’t.”

Republicans, for instance, are already alleging that Griswold is trying to make elections less transparent through the recount proposal.

“She wants to further keep voters in the dark,” said Dave Williams, an election denier who is chair of the Colorado GOP. 

Williams believes that former President Donald Trump was the true winner of the 2020 presidential election. There has been no evidence of fraud or malfeasance that would have overturned President Joe Biden’s win in the contest. 

State Rep. Ryan Armagost, R-Berthoud, thinks a limit on when discretionary recounts can be pursued should be made by voters, not by the secretary of state or legislature. He pointed out that there were candidates who lost by 3 or 4 percentage points last year. 

“I think denying them that opportunity to get the recount for a potential overturn of the vote or election would be bad,” he said.

Two Republican legislative candidates paid for recounts last year. Neither changed the outcome of the election or revealed any significant irregularities. 

Colorado law requires that candidate-initiated recounts be conducted in the same way ballots were initially counted. Some of those demanding recounts, including Peters, wanted the ballots to be recounted by hand. Legal challenges to achieve that failed.

A mandatory recount, paid for by the state, only occurs in Colorado when the number of votes separating the leading two candidates is less than 0.5% of the number of votes cast for the leading candidate. So, for instance: If Ronald McDonald had 1,000 votes and the Burger King had 999 votes, the one-vote difference would be 0.1% of McDonald’s votes, triggering a recount.

Griswold said candidates have a right to pay for a recount and that permissive recounts are a good way to ensure a race’s outcome is legitimate. But there are limits, especially in contests where “it’s an impossibility that the recount is really going to shift the outcome of the race.”

“We have to make election administration work for election officials,” Griswold said. “Part of the attack on democracy is making it so that good people step down.”

A dozen other states have similar provisions limiting discretionary recounts. 

In Delaware, for instance, a candidate can request a recount only when they lose by 1,000 votes or less than 0.5% of all votes cast for all candidates. In Georgia, Missouri, Montana, New Hampshire, North Carolina and North Dakota, a losing candidate may request a recount only when the race is within 0.5% of total votes cast. In Virginia, candidates can request a recount only if they lost by less than 1 percentage point. 

Nine states — Arizona, Connecticut, Florida, Hawaii, Illinois, Mississippi, New York, South Carolina and Tennessee — don’t allow candidate-requested recounts under any circumstances. 

Matt Crane, the executive director of the Colorado County Clerks Association, said the group favors some way to limit recounts requested by candidates.

Colorado Secretary of State Jena Griswold, a Democrat, responds to a question during a candidate debate, Tuesday, Oct. 11, 2022, on the campus of the University of Denver in southeast Denver. (AP Photo/David Zalubowski)

“The association is in favor of some kind of cap on when someone can request a recount,” he said. “Is it absurd for someone who’s losing by 18 points to request a recount? Yes.”

But the 2-percentage-point standard might not be the answer.

“In a general election, a 2-percentage-point difference is a lot different than a school board election in a small district that comes down to one or two votes,” Crane said.

The other big change Griswold is requesting would require counties with more than 10,000 voters — more than half of Colorado’s 64 counties — to begin counting ballots at least four days before Election Day in an effort to ensure results are posted as quickly as possible to prevent election conspiracies from spreading.

Counties may begin processing ballots 15 days before Election Day, and most do. But in 2022, Griswold said Elbert County, whose clerk and recorder’s office was led by a man working with election conspiracy theorists, waited until Election Day to begin counting ballots, slowing the release of results.

“It is generally best practice to post results as quickly as possible,” Griswold said.

Fenberg, the Senate president, said he’s fully on board with that shift. 

Fenberg said his election measure will be introduced in the coming weeks. Colorado’s 2023 legislative session ends May 8.

Colorado Sun staff writer Elliott Wenzler contributed to this report.

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Jesse Paul

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...