Judge rules Avon must hold recall election

Judge Russell Granger sides with recall committee in signature dispute

Avon town clerk Brenda Torres, right, counts survey ballots in April 2019. A survey designed to replicate a special election turned out 995 voters. A judge’s ruling this week orders the town to hold a recount election for its mayor and another member of the Town Council.
Chris Dillman/Daily file photo

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

In his ruling, Granger stated that “the Committee obtained a sufficient number of signatures required to trigger a recall of the election.”

As a result of this decision, Avon must now hold a recall election and submit a proposed date for said election by June 30.

Avon officials met on Thursday night with Town Attorney Paul Wisor to discuss the rulings and the obligations of the town, according to Wisor.

As of Thursday afternoon, Wisor wished to withhold any further comments until after Thursday night’s meeting. The Vail Daily also reached out for comment from Underwood and Hymes. Hymes declined to comment at this time; Underwood did not respond to the request by Thursday evening.

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“The entire process up until this point has been extremely dishonest,” said Todd Roehr, speaking on behalf of the Avon Recall Committee. “To us, it’s been a simple matter of reading a sentence and knowing that this is what the law says. The entire process predicated by Eric Heil, who is the town manager and was formally the town attorney, and their new town attorney Paul Wisor, has been to basically obstruct people’s ability to vote.”

On the judgment itself, Roehr said, “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.”

Fighting over votes

This week’s decision comes nearly seven months after the town filed a complaint against the committee, asking the judge to rule on whether or not the committee had submitted enough voter signatures to trigger a recall election.

According to the town’s initial complaint, which was filed Dec. 1, 2020, the Avon Recall Committee submitted 452 valid voter signatures to recall Underwood and 462 valid voter signatures to recall Hymes on Nov. 3. It was the town’s view that these were less than the 496 voter signatures required to trigger a recall election.

In the counter complaint filed on Jan. 11, 2021, by the committee, the committee held that only 330 signatures were required to trigger the recall election.

While both agreed that — per the recall processes outlined in the Colorado Constitution and Colorado Revised Statutes — the number of signatures required must equal 25% of the “entire vote cast” for all the candidates for the particular office in the last preceding election. This 25% must then be divided by the number of candidates who were elected to the office in that preceding election.

The difference comes as to whether or not undervotes — or an uncounted ballot due to a voter not voting or not casting all votes possible — count toward votes cast. The town counted undervotes in its calculation, where the recall committee did not.

And, according to Granger’s judgment, the committee’s number of signatures was sufficient, ruling that undervotes do not count toward total votes cast in the definition of what’s required for a recall.

The decision calls the language of the relevant sections of the Colorado Constitution “unambiguous.”

In the decision, Granger goes on to state that: “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.”

Per this decision, the town has seven days to determine when it will host the recall election. Then, it will be up to the voters as to whether Underwood and Hymes will remain in office .

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