I’ve never made any secret of the fact that I usually vote against retaining judges. \u00a0It’s not out of any personal animus, of course. \u00a0For citizens who are asked to keep track of so much when they vote, it’s almost impossible to learn enough law, let alone enough about every judge, to make a truly informed decision on a given judge. \u00a0But we have retention votes for a reason, and it’s helpful to judges to be reminded every so often that the law belongs to the people, not to the lawyers, or even to the legislature. \u00a0As long as the retention voters weren’t close, a No vote was a reasonably safe protest vote that would only tip the scales if other, well-known information about that particular judge pushed a lot of other people to vote the same way.<\/p>\n

But times have changed, the retention votes have gotten closer, and it’s important now to reward judges who’ve actually done a good job on the bench.<\/p>\n

So I’ll be voting to retain Morris Hoffman as a Denver judge, and I would ask all those voting in Denver to do the same.<\/p>\n

I had the pleasure of sitting in Hoffman’s court eight years ago as he decided\u00a0Common Cause v. Davidson –<\/em>\u00a0an attempt by Common Cause and other Democrat groups to hijack the voting rules in Colorado in order to prevent certain basic ballot security measures – and\u00a0was impressed with Hoffman’s<\/a> humor and ability to keep things moving without cutting people off. \u00a0The opinion<\/a>\u00a0is readable even by laymen – not an easy thing for a judge to do when time is short and the pressure to be right is long. \u00a0And the ruling itself was a model of understanding both of the role of judges and of the nature of voting.<\/p>\n

I quoted some of the salient bits at the time, but they’re worth quoting again:<\/p>\n

But the Court has also recognized that the right to vote, unlike some other individual rights that are exercised in essential opposition to the state, is a right that has meaning only in a highly regulated social context. A vote is not merely one individual\u2019s casual expression of political opinion at any particular time on any particular subject. Votes\u00a0count<\/em>, and because they count they must be sought and given in a structured environment that allows the votes of all other proper voters to count….<\/p>\n

Maximizing voters\u2019 access to the process is just one part of the compelling interest the state has in regulating the architecture of elections. Preventing voters from voting more than once, preventing otherwise ineligible voters from voting, and preventing other kinds of election fraud, is part and parcel of this same compelling state interest, as the Burdick<\/em> Court expressly recognized when it included the words \u201cfair and honest\u201d at the very beginning of its litany of state interests in structuring elections. Professor Chemerinsky had it only half right, and perhaps not even that, when, in the aftermath of the controversy of the 2000 election, he wrote \u201cWhat good is the right to vote if every ballot isn\u2019t counted?\u201d (Erwin Chemerinsky, Fairness at the Ballot Box, 40 TRIAL\u2014APRIL 32 (2004).) A complete description of the state\u2019s interest in regulating elections should have included something like, \u201cWhat good is the right to vote, even if every ballot is counted, if the votes of duly registered voters are diluted by the votes of people who had no right to vote?\u201d<\/p>\n

…<\/p>\n

It may or may not be true, as Plaintiffs claim, that as an historical matter actual voter fraud has been rare in Colorado. But the state has a legitimate, indeed compelling, interest in doing what it can to make sure that last month\u2019s fraudulent or no-longer-eligible registrant does not become next month\u2019s fraudulent voter.<\/em> Ms. Davidson and local election officials testified that once a fraudulent regular ballot is cast, and the voter\u2019s identity forever divorced from the ballot, there is no way to remedy the fraud. The fraudulent vote will count. That is, election fraud must be detected before fraudulent regular ballots are cast and fraudulent provisional ballots are counted.<\/p>\n

…<\/p>\n

Nor do I think it likely that Plaintiffs will be able to demonstrate that the identification requirement is discriminatory or will have disparate impacts…. Plaintiffs\u2019 suggestion that the identification requirement will \u201cchill\u201d people without identification may be true (though there was absolutely no credible evidence of that), but then again it may also \u201cchill\u201d fraudulent voters. Whether one kind of chill justifies the other is precisely the kind of public policy choice that must be made by legislators, not by judges legislating under the cover of strict scrutiny.<\/em><\/p>\n

…<\/p>\n

In what must surely qualify as one of the understatements of the year, even Plaintiffs\u2019 own witness, a Denver election official, testified that allowing voters to vote in any precinct they wished \u201ccould be problematic.\u201d<\/p>\n

…At the moment, if I were to try to design a system that maximizes the chances that fraudulent and ineligible registrants will be able to become fraudulent voters, I\u2019m not sure I could do a better job than what Plaintiffs are asking me to do in this case\u2014allow voters to vote wherever they want without showing any identification.<\/p>\n

(My own emphasis added throughout.)<\/p><\/blockquote>\n

For better or for worse – and probably for the much worse – courts across the country haven’t accepted these basic tenets of how a voting system ought to work, but that doesn’t make the reasoning here any less correct.<\/p>\n

I don’t want to go overboard here. \u00a0We’re talking about one decision, one data point, in a much longer judicial career. \u00a0But given the stakes of the case, it’s a pretty large data point, and it’s one more than most of us will have on most of the judges. \u00a0Let’s reward it.
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