Colorado Senate President Steve Fenberg rejected a provision requested by Secretary of State Jena Griswold, a fellow Democrat, limiting when candidates can pay for recounts in his measure this year tweaking the state’s election code.
And in another snub, Fenberg’s measure, introduced Tuesday, would prohibit the Colorado Secretary of State’s Office from using state or federal funds for advertising that features candidates for federal, state or local office.
The move appears to come in response to controversial television commercials run by Griswold featuring herself and former Colorado Secretary of State Wayne Williams, a Republican running to be Colorado Springs mayor, in the lead-up to the 2022 election. Griswold was running for reelection at the time.
The measure, Senate Bill 276, represents a rare open disagreement among two powerful, rising Democratic stars in Colorado and it hinges on the sensitive issue of election conspiracies and misinformation.
Colorado law requires that mandatory recounts be conducted in races that are decided by an extremely small margin — 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.
For races where the margin between candidates is larger, a recount can be requested by a campaign and is conducted if they pay for the work.
Griswold wanted to prevent those so-called permissive recounts by candidates who lose by more than 2 percentage points to prevent election workers across the state from having to duplicate their work in contests with a clear outcome. In 2022, for instance, 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 in each of Colorado’s 64 counties were tallied for a second time.
But Fenberg, who lives in Boulder, worried that limiting permissive recounts would decrease confidence in Colorado’s elections.
“I think we want to increase confidence in our elections and not remove options for people,” Fenberg told reporters Tuesday. “Especially if someone is an election denier, I don’t want to do something that feeds into (conspiracies).”
Restricting permissive recounts to races when candidates were within 2 percentage points of each other was a top legislative priority for Griswold this year.
“The Secretary of State’s office does not write legislation but instead works with Colorado’s County Clerks to recommend policies that are needed to administer elections that are free, fair and secure,” Annie Orloff, a Griswold spokeswoman, said in a written statement. “It is disappointing that the Senate president was unwilling to include this already agreed-upon provision that was supported by Colorado’s county clerks and would have protected the state’s dedicated election administrators from performing unnecessary recounts. These unnecessary recounts are being used by election deniers all over the country as a means to sow doubt and burden election workers to the point they are no longer willing to do these jobs.”
Meanwhile, the provision around how advertising dollars can be spent would prohibit a federal, state or local candidate from being prominently featured — either by name, photograph or likeness — in any advertising by the Colorado Secretary of State’s Office.
“This bill is about building confidence and trust in our democracy, which includes strengthening transparency standards, preventing conflicts of interest and ensuring election administration isn’t perceived as partisan in nature,” Fenberg said in a statement.
Griswold and Williams came under fire for appearing together in a TV ad that ran in the months before the 2022 election that was aimed at combating voting conspiracies. The Secretary of State’s Office spent more than $1 million on the spot.
The ad was the subject of a campaign finance complaint filed by a conservative political nonprofit.
Griswold, in an interview Tuesday with The Colorado Sun outside of a courtroom where she was testifying against a man who allegedly threatened her, called the provision “reckless.”
“Doing voter education, outreach to Coloradans is something that statewide elected officials do in the course of normal business,” Griswold said. “To propose something so dramatic without stakeholding, when lives are literally being threatened, feels very reckless.”
Griswold’s office, which in a statement called the restriction “incomprehensible,” said the provision would also restrict its ability to promote business and licensing programs.
The advertising provision only applies to Griswold’s office, but other statewide elected officials have used their likeness in ads paid for with public dollars. For instance, the office of Treasurer Dave Young, also a Democrat, spent thousands of dollars on Facebook ads that featured the treasurer’s photo publicizing its “Great Colorado Payback” program in the weeks before the November election.
Gov. Jared Polis sent a letter to Colorado taxpayers that accompanied Taxpayer’s Bill of Rights refund checks that were sent out in August and September.
Both Polis and Young, like Griswold, successfully ran for reelection in November.
Fenberg’s bill, which was drafted in partnership with Griswold’s office and county clerks, would also make a host of other changes to Colorado’s elections. That includes requiring 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.
The measure also seeks to make candidates’ state financial disclosures more robust and accessible to the public and expand automatic voter registration to tribal land.
Colorado Sun correspondent Sandra Fish contributed to this report.