Devil’s Advocate, Scott Gessler, September 28, 2012

Station:      KBDI, Channel 12

Show:        Devil’s Advocate with Jon Caldara

Guests:      Gessler


Date:         September 28, 2012

Topics:      Voter Registration, SAVE, Department of Homeland Security, Secretary of State, County Clerk and Recorder, Voter Rolls, Ineligible Voters, Colorado Election Law

HOST JON CALDARA:  But first, you know him, you love him, and he rubs so many people the wrong way because you do your job –Scott Gessler, Secretary of State.  Glad to have you.

SECRETARY OF STATE SCOTT GESSLER:  Thanks for having me on.

CALDARA:  The Post has really been ripping into you lately, and I haven’t figured this one out, because your job is to run clean elections, and to follow the election law.  And your job is to make sure that people who aren’t eligible to be registered to vote aren’t there to vote.  Isn’t that basically it?

GESSLER:  Pretty much.  I mean, the way I look at it is you want to make it easy to vote, tough to cheat.  And some people don’t like it when you pay attention to the “tough to cheat” part, and try and make sure that our elections are fair and honest, and you’ve got integrity behind them.

CALDARA:  Let me see if understand what was going on.  You put together a list of about 4000 people who were registered, but you really weren’t certain if they were really eligible to be registered.  Is that the best way to put it?

GESSLER:  Exactly.  So what we did is we compared our drivers’ license rolls to our voter registration rolls.  And we confirmed that there are about 4000 people who proved that they were non-citizens when they got their drivers’ license, but were also registered to vote.

CALDARA:  That doesn’t by itself mean that they were ineligible to vote, does it?

GESSLER:  Exactly.  We don’t know.  We assume that a lot of people had become naturalized citizens since they got their drivers’ license. But we also recognized, when you look at other states’ experiences and all the people who have come to our office and voluntarily withdrawn as non-citizens, but we also recognized that there is a sizeable portion of those folks who weren’t properly registered to vote.  But we didn’t know how big or how small that was.  So what we did, is we uh —

CALDARA:  [If you’re not a citizen and you’re registered to vote, and if you vote, especially –both of those are crimes, aren’t they?]

GESSLER:  Yep.  So in order to register to vote you have to be 18 years old by the time of the election, you have to be a resident, and you have to be a US citizen. So we don’t verify citizenship, at all.  It’s an honor system, basically, and so people can show up and sometimes they misunderstand, sometimes there’s problems, but they nonetheless register.

CALDARA:  How in the world can it be an honor system?  […]  People can say they’re eligible and your job is just  to trust them?

GESSLER:  Absolutely.  So what happens is, they fill out a voter registration form.  And frankly, sometimes they don’t entirely understand it.  The interesting thing we’ve found is a lot of times is that people will say that they’re not a citizen on the voter registration form.  So it says, “Are you a citizen?”  And there will be a box that says ‘yes’ and one that says ‘no’.  And we have people that say, “No, I’m not a citizen.”  And yet they register to vote.  What that means is two —

CALDARA:  [But you can’t register them then – at the SOS office you should catch that and not register them]

GESSLER:  Yeah.  What it means is two things.  One, people don’t understand the law, so there’s a real lack of education out there on what the law is.  And secondly, it’s the clerks that actually go through those forms and register people to vote— the county clerks, and it secondly show that there is some slop as far as people not carefully looking at those registration forms and making sure that if someone says, “no” they’re not registered to vote, you know, that person shouldn’t be registered.  And instead we’ve seen instances where people register them anyway.So there’s a couple problems we’ve found in the system

CALDARA:  Tell me if I’ve got the timeline right.  You found the names of these people you weren’t certain of, and you sent them a letter.  And said, “By the way, we’re not certain that you’re eligible to vote.  If you are, please tell us how you are, and show us that you’re eligible, or if you’re not eligible, please remove your name.”  Did I get that part right?

GESSLER:  That’s exactly – It was a voluntary compliance, is what we asked.  We said–

CALDARA:  [incredulous] What?!  Why were people so hacked off about this?  I don’t get that part!

GESSLER:  I don’t know.  I think part of the reason that people were hacked of is they want to politicize this.  I think there’s people on another ideological end of the spectrum and they want to politicize this and use it as a way to sort of create anger and rile up people to help them out, by creating a boogie man that doesn’t exist. I think that’s one thing that’s going on.  I think the second thing that’s going on is we’ve done –no one’s ever done this before.  We’ve done it for the first time – to actually go out and try and make sure that our voter rolls are accurate in this way.  And whenever you do something new, or when you change the status quo, when you challenge the status quo, there’s people who get really mad.  The status quo is the status quo for a reason.  And there’s people who are entrenched and they are the ones who are happy with the way things work, and so when you try and make changes along those lines, you get people who just get mad about it.

CALDARA:  Now, you’ve been trying to get some extra data from the Feds.  Homeland security has a database that you could use to compare.  They haven’t been very cooperative, in fact, they didn’t cooperate until after you sent the letters.  Right?

GESSLER:  Right. Well, we’ve been trying for about a year –well, well over a year to actually get access to –it’s called the SAVE program. But, what it is, it verifies non-citizen information.  So if someone is here legally, or used to be here legally, when they apply they get a number.   And what this system does is if you put in that number and the name and the date of birth, you can verify whether or not someone is a legal resident here, whether someone has since become illegally here, for example, their residency expired, or whether they’ve become a naturalized citizen.  And there’s about 1000-1500 agencies across the country that use this system.  For welfare benefits.  We use it in our office for notaries public.  So it’s used in a lot of ways, and what we wanted to do is use it for voting purposes.  And it took us, geez, over a year before we could actually get access to this.  And first they said no, you can’t do it at all .  And so then we sent letters and then we got other states on board, and FL was involved in a lawsuit. And they finally said yes, but they didn’t say yes until after – actually give us the access, until after we had sent out those letters.

CALDARA:  And if they had given that to you earlier, you probably would have sent out fewer letters because that would have clarified many of these voters.

GESSLER:  Absolutely.

CALDARA:  But for the sake of time, out of that you still found people who were ineligible to vote and it looks as though they have voted.  I understand you have to go through some due process, but it’s not like this came out, that all, ALL these people are eligible to vote.  That’s not the case.

GESSLER:  No.  What we did is we were able to check on the Federal database about 1400 people.  And of that, one in ten came back, 10%, came back as non-citizen still.  Improperly registered to vote.  And of that 1 in 10 (and that’s about 140 out of 1400), about 35 or so had actually voted in prior elections.  Now, we’re pretty sure that they shouldn’t have voted, and shouldn’t be registered to vote.  But we’re not absolutely sure. And so —

CALDARA:  But it looks as though it was a crime

GESSLER:  It very much looks that way.  And so what we’re doing is we’re saying, “Look, you still have the opportunity to come in and tell us if the information is wrong.”  Sometimes it’s a crime, and probably sometimes it may not be a crime.  And here’s why.  Remember I told you a lot of people register to vote even tho they’re non-citizens and they think they can register to vote?   So I think a lot of what’s going on out here is that people are erroneously registering to vote, thinking that they can.  We’ve had letters.  We have copies of letters in our office of people who have written us and said, “Hey, please remove me from your voting roles.  I’m a non-citizen and I actually voted.  And I thought I could vote,.  In fact, I thought it was my duty to vote as a permanent resident.  But since then I’ve learned I can’t, and so please remove me from the voting roles

CALDARA:  What do you say to those people who say Come on, so you found a 140 guys who shouldn’t be voting or potentially shouldn’t be voting, shouldn’t be registered.  We’ve got a state of 5 miollion people here and you’re getting your panties in a wad over 140 guys.  That’s a rounding error.

GESSLER:  Well, a couple things.  First of all, so far we know that’s how big it is.  We really don’t know how big or how small this problem is.  At the end of the day, the tools we have are very crude.  So it could be much bigger.  Those 140, that’s based on 1400 that we were able to check.  So there’s probably more out there.

CALDARA:  [of those you checked, 10% were bad]

GESSLER:  Exactly.  Secondly, I don’t think any fraud is acceptable. I don’t think any mistake is acceptable.  We have to do a good job because, thirdly, we have a history of close elections in the state of Colorado.  So, Congressman Jared Polis, he got  his start by winning a state wide Board of Education election –state wide, across the entire state of Colorado, by 90 votes.  Bob Beauprez, used to be a Congressman, he won by 121 votes.  We’ve had County Commisioner races, state legislative races, decided by a handful of votes.  This stuff matters

CALDARA:  What do you say to people who say, “you know, this is intimidating.  When you ask people to probve that they’re eligible to vote or taking this up, really what you’re doing is you’re making it difficult for people to vote.  It’s intimidating for them to do so.  They like to say, “you’re disenfranchising people by doing this.”

GESSLER:  Two things I’ll say.  There’s a grea–  In 2004, the John Kerry Presidential campaign, their Colorado election manual on election day said that you should claim – they should claim voter intimidation, even if there isn’t any evidence for it yet.  So this a common tactic I think on the left to do that, without any evidence.  And in 2004, they actually said, in the presidential campaign, that they will do this without any evidence.  So it’s a talking point.  Secondly, if you really look at what’s going on, we’re asking people, we have voluntarily, to come forward.   We’ve done lots of checks on databases.  We need to have accurate voter rolls. And my view is, and I think if you look at data, it supports it. When people think that the elections are honest,when people think their votes count, when people think that their vote is not diluted by illegal voting, they’re more likely to vote.  They’re inspired.  They have confidence that our elections are good, not that our elections are rotten like other countries.

CALDARA:  [People can challenge the voter rolls – say “that’s not a legal registrant”. You have to look at it.  You can put those challenges in up to 60 days before the election.  Yet we have voter registration drives going on like crazy.  You have to take registration up to 29 days before the election.  I don’t know if my math is all that good here, but it seems as though there’s another month that people can dummy up registration numbers and cards and people, give it to you, and for the purposes of this fall’s election, you have to accept it. Am I – tell me I’m wrong on this.  Please tell me I’m wrong!]

GESSLER:  Well, the only mistake you make is that [the] Secretary of State doesn’t accept it, the Clerks and Recorders do.  But with that said, you’re right.  We’ve got a problem with Colorado law.  Challenge procedure can happen on election day or when the mail ballot comes in, if they’re there at that time when that voter shows up.  You can do that challenge procedure.  But you’re right.  As far as registration challenge, the time is past

CALDARA:  So, in other words, if there is a poll watcher, they can say, “Hey, this is a new registrant.  I’m going to challenge that.”  And they put that ballot aside?

GESSLER:  Yeah, they can do that.  Um, well, they’ll put it aside, and then the Clerk, right there, will resolve that.  The Clerk and Recorder should hold a – like sort of a mini-hearing, and say, “Well, what’s your evidence?” Then talk to the voter and make a decision, right there on the spot.   So there’s still a procedure in place, but you’re right, it’s not as good as it should be.  It has some problems.

CALDARA:  No wonder the SEIU and others are running around like mad, trying to register certain people before this election.  Hey.  We’ve got about a minute left here.  Even less.  Tell me.  People want to get registered.  People should get registered.  And I want that.  For those that aren’t registered, what do they need to know?  How difficult is this to do?  I mean, It sounds as though you have  to go across to the Ganges in order to register.  It’s actually pretty easy.

GESSLER:  It’s very easy. Go to  Almost everyone in Colorado who is a voter has either a state ID or a drivers’ license.  And if someone has a State ID or Drivers’ licence,  You can do it online, five minutes.

CALDARA:  Scott Gessler, thank you so much.  We’ll keep in touch.  Stay tuned.  It’s all about school taxes.