In 3-2 vote, Avon Town Council favors appeal of judge’s order to hold recall election

Under the guidance of its attorney, Town Council members decide on path forward

In a special session on Thursday night, members of the Avon Town Council voted to appeal the decision handed down this week by District Court Judge Russell H. Granger.

In a special session Thursday night, members of the Avon Town Council voted 3-2 to appeal the decision handed down this week by District Court Judge Russell H. Granger.

On Wednesday, Granger ruled in favor of the Avon Recall Committee in the dispute over voter signatures and ordered the town of Avon to host a recall election for Mayor Sarah Smith Hymes and Council member Tamra Underwood.

During Thursday’s special session, Town Attorney Paul Wisor provided legal advice to the remaining five members of the Town Council not targeted in the recall. After that, the Town Council voted 3-2 to appeal Granger’s decision. Council members Lindsay Hardy, Chico Thuon and Mayor Pro Tem Amy Phillips voted in favor of the appeal, while RJ Andrade and Scott Prince voted against the appeal. Hymes and Underwood did not participate in any portion of the meeting, according to Wisor.

Andrade said in an email that his vote did not indicate that he felt Underwood or Hymes should be recalled.

“In my time serving with them on council, they both have shown to be extremely capable of performing the job they were elected to and dedicated to doing just that,” he wrote.

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Andrade added that his vote meant one thing: “I agree with Judge Granger and the Recall committee’s definition of the term ‘entire votes cast.’ While my personal feelings towards recalling these officials has been made clear, I also feel the committee (residents) have met the requirements to bring this to a vote, which is their right.”

The Vail Daily also reached out to Prince regarding his decision, but he had not responded to the request as of Friday afternoon.

The town intends to file its appeal either Friday or Monday.

“We were deeply disappointed in the order, because it did not address many of the important legal arguments that we raised, including but not limited to certain constitutional issues that implicate the First and 14th Amendment rights of Avon voters,” Wisor said. “We think it is important, not only for Avon, but Colorado communities as a whole, that we get the correct answer. We do not feel that the judge, by avoiding those issues, did that.”

A difference in interpretation

The disagreement between the town and the Avon Recall Committee comes down to a difference of interpretation of the Colorado Constitution. The portion the Colorado Constitution in question details the number of signatures required to trigger a recall.

This recall provision requires signatures equaling 25% of the “entire vote cast” for all the candidates for the particular office in the last preceding election.

In its interpretation, the town believes that the number of undervotes — or votes not cast — should be included in entire vote cast.

In his order, Granger ruled that these undervotes should not be included. “Applying the plain and ordinary meaning to the term ‘entire vote cast’ includes votes cast; not those withheld, undervotes, or otherwise not cast. The legislative history supports this interpretation.”

In this ruling, Wisor said the judge “failed to accurately articulate the facts and the law that he was analyzing.”

In the order, Granger refers to 1991, when the General Assembly amended the recall statute, which was initially enacted in 1947, to change the language from “all ballots cast” to “entire vote cast.”

“The amendment changed the signature requirement to trigger a recall based on the number of ballots cast to the number of votes cast,” Granger wrote in the order. “The Town’s interpretation would require application of the former ‘all ballots cast’ language of the statute; that is, the total number of votes cast plus the number of ‘undervotes’ or votes not cast, which will always be equal to the total number of ballots cast. This position is untenable.”

And while Wisor agrees with the history laid out by Granger, he said the judge left out “the division part,” which is “key” to the town’s interpretation of the math.

According to Wisor, in 1991, the General Assembly “also said you divide all votes cast by the number of candidates who are running (so in this case four) and then you multiply by 25%.”

Wisor referred to this as a “fundamental flaw in his order.”

A violation of rights

And according to Wisor, the town believes the recall committee’s interpretation — which does not include these undervotes — violates the First and 14th amendments of the state Constitution. The violation of which, Wisor said, Granger did not address in his order.

“To say that we were shocked that he did not address that issue would be an understatement,” Wisor said.

Essentially, these violations, according to Wisor, have to do in part with the way that elections in Avon are run.

In a Town Council election, like the one in question, all candidates run for the open number of seats. In this election, there were four open seats. However, not all voters, according to Wisor, vote for all four seats.

Regardless of why voters chose not to cast all four votes, it is the town’s belief, according to Wisor, that their ballot still counts toward the calculation of voter signatures required to trigger a recall election under the Colorado Constitution.

According to Granger’s order, which is in favor of the recall committee, the number of undervotes does not count under the Colorado Constitution.

Under this interpretation, an Avon voter must cast all four votes for council members in order to be included in the calculation, according to Wisor.

“Under our interpretation, I cast our ballot and my participation in that election is fully accounted for. No matter how many people I actually allocate votes to,” Wisor said. “Under the recall committee’s interpretation, when I show up and I only vote for one or two or three candidates, my participation in that election is not fully accounted for.”

He went on to state that the latter interpretation “is a fundamental violation of the basic tenants of our democracy.”

Complex or not?

Wisor called this a “very complicated issue,” that the town is dedicated to getting right. “We think that this, not only is an issue the town of Avon, but it’s an important issue for the state of Colorado,” he said.

This is contrary to the belief of the Avon Recall Committee. “We did not want this to be a political issue, we wanted it to be a straight-forward legal issue, and it is a straight-forward legal issue. And the judge got it absolutely right,” said Todd Roehr, speaking on behalf of the committee.

Expensive either way

Should the town be forced to hold a recall election — as was the order handed down by Granger — the estimated cost would be $15,000, according to Wisor. And should Underwood and Hymes prevail in that election, the town would also be responsible to reimburse them for the cost of the campaign.

However, the town’s chosen course of action at this point also has costs associated with it. Wisor estimated that the appeal will cost the town an additional $15,000 to $20,000 on top of the $6,300 in litigation fees it has incurred to date on the issue.

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