Avon recall dispute now unfolding in district court

Town of Avon, Avon Recall Committee, disagree about the number of voter signatures needed to trigger a recall election

A judge has been asked to resolve a dispute over how many signatures are required to trigger a Town Council recall.
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A contentious recall effort sparked feuds and colored campaigns for Avon Town Council last summer and fall. But the last word on a so-far failed attempt to recall two councilmembers will come from an Eagle County District Court judge.

The town of Avon and the Avon Recall Committee — locked in a fight over how many voter signatures the committee needed to submit to force a recall election for Sarah Smith Hymes and Tamra Underwood — have each filed a first round of briefs in a pending case before Judge Russell H. Granger.

Last November, the town determined the committee did not submit enough voter signatures for a recall election to proceed. On Dec. 1, the town filed a complaint against the Avon Recall Committee, asking the district court to weigh in with an opinion.

“This is not a matter of the town disagreeing with the Avon Recall Committee as to their right to pursue a recall or their rationale for undertaking a recall effort. Rather, it is a fundamental disagreement with respect to the proper interpretation of law related to the recall process,” Avon Town Attorney Paul Wisor said in an emailed statement about the case. “The town is asking the court to tell the town and the Avon Recall Committee the proper way under Colorado law to calculate the number of signatures necessary to trigger a recall election.”

While some have bristled over the complaint, characterizing it as town officials suing residents for exercising rights to pursue a recall election, Wisor said the complaint is the mechanism available to the town to ask an independent judge to settle the dispute.

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“The town is not suing the Avon Recall Committee members in the traditional sense,” Wisor said. “In its pleadings, the town has reserved the right to seek attorney’s fees in the event that the Avon Recall Committee or its legal representatives assert a frivolous claim or defense against the town. The town, however, is not otherwise seeking damages or fees in this case.”

Leave it to the judge

Town officials did not have to file the complaint. They could have done nothing and left it up to the Avon Recall Committee to challenge the town’s decisions denying the recall effort in court if it chose to do so.

“Having a district court judge exercise his authority … to determine the proper methodology under Colorado law is the most fair and public way for the town, the Avon Recall Committee and the community as a whole to reach an answer with respect to this disagreement,” Wisor said of the town’s decision to move forward with the complaint.

The recall effort continued throughout much of last summer and fall. It marks the first recall attempt in Avon’s history, town officials said, and prompted numerous conflicts and disagreements between the people supporting it and people opposing it.

According to the town’s complaint, the Avon Recall Committee submitted 452 valid voter signatures to recall Underwood and 462 valid voter signatures to recall Hymes on Nov. 3. Those totals were less than the 496 voter signatures the town determined were needed to trigger a recall election. That prompted the town clerk to issue “certificates of insufficiency” for both recall petitions on Nov. 9.

In its complaint, the town also alleges that the Avon Recall Committee submitted a protest against those certificates of insufficiency on Nov. 24, after deadlines to protest the decision had passed — something the committee disputes in its initial answer to the town’s complaint.

Both petitions contained more than the 330 signatures the Avon Recall Committee believes were actually needed to trigger a recall election for Hymes and Underwood.

Differing math

Each side points to provisions governing recall processes in the Colorado Constitution and Colorado Revised Statutes. Those require signatures equaling 25% of the “entire vote cast” for all the candidates for the particular office in the last preceding election, with that 25% of the entire vote cast then divided by the number of candidates who were elected to the office in that preceding election.

The town and the Avon Recall Committee seem to agree that 1,984 voters cast 5,276 votes in the 2018 election for the Avon Town Council, when Hymes and Underwood were elected to their seats. Disagreement seems to center around the “undervotes” in the election, and how they should factor into the tally of votes cast.

With eight candidates running for four open seats on the Avon Town Council in 2018, people could vote for up to four candidates. Not every voter cast all four votes, however, resulting in 2,660 undervotes.

The town of Avon argues that the undervotes, along with the 5,276 votes cast, make up the “entire vote cast” total used to determine how many voter signatures the Avon Recall Committee needed to submit. That results in the town’s calculation of 496 voter signatures.

The Avon Recall Committee, in its answer to the town’s complaint, argues that the undervotes should not be part of the total, resulting in its calculation of 330 signatures needed to trigger a recall election.

“Had each elector cast their maximum allowable votes for town councilor positions, i.e. four votes for four open candidate seats, there would have been 7,936 total votes cast for the town councilor candidates. Under that scenario, there would have been no undervotes,” the Avon Recall Committee writes in its answer to the town’s complaint, filed Jan. 11 by attorney Alan Sweetbaum, of Denver.

“However, the town contends there were undervotes, which necessarily eliminates the possibility that there were 7,936 total votes cast in the 2018 election for the town councilor positions. Yet, the town contends that 7,936 total votes were cast for purposes of determining the number of signatures required to trigger a recall election … The town clerk’s miscalculation improperly increased the number of signatures the town claimed were required to trigger a recall election.”

Wisor and Sweetbaum declined to comment on why the undervotes should be included or excluded from the total vote used to calculate the signatures needed, with more filings in the case expected in coming weeks.

In its complaint, the town of Avon argues that interpreting Colorado law for recalls and the “entire vote cast” as the Avon Recall Committee proposes would “violate the First and Fourteenth Amendments to the United States Constitution because they require a town elector to cast the maximum votes allowed in order to have their participation in the town council election equally and fully counted for purposes of a recall.”

Having now gone through the first recall effort in Avon’s history, town officials are considering adopting recall procedures to help eliminate future confusion around processes and requirements. The idea was one of nearly 90 goals the town identified as a possibility for 2021 at the most recent Avon Town Council meeting.

“We’ve seen other communities that have adopted recall procedures that are basically citizen handbooks that explain the process and how a group can pursue a recall, and make the process more understandable to the citizenry,” Avon Town Manager Eric Heil said.

But for now, the town is asking Eagle County District Court to affirm that it correctly handled its first recall dispute and to uphold its decisions to deny the two recall petitions. Meanwhile, the Avon Recall Committee is asking the court to do the opposite, and find that it submitted enough voter signatures for a recall election for Hymes and Underwood to proceed.

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