Two Colorado state senators are subject to a recall election this year.
From Article XXI, Section 3, of the Colorado Constitution:
There shall be printed on the official ballot, as to every officer whose recall is to be voted on, the words, “Shall (name of person against whom the recall petition is filed) be recalled from the office of (title of the office)?” Following such question shall be the words, “Yes” and “No”, on separate lines, with a blank space at the right of each, in which the voter shall indicate, by marking a cross (X), his vote for or against such recall.
On such ballots, under each question, there shall also be printed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled; but no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office.
In 2003, Californians prepared for a recall election in which they would ultimately recall Governor Gray Davis and elect Arnold Schwarzenegger. There, California had a provision of the elections code that provided, "No vote cast in the recall election shall be counted for any candidate
unless the voter also voted for or against the recall of the officer
sought to be recalled." Plaintiffs sued in federal court alleging that the provision impermissibly burdened their right to association. That is, they wanted their votes for gubernatorial candidates to count regardless of whether they voted on the prior question on the ballot, whether to recall the sitting the governor.
In Partnoy v. Shelley (PDF), the court agreed. It concluded, "[I]f Plaintiffs decline to vote on the question of recall as a protest of the recall process, they are denied the right to have their vote counted on the question of who shall govern them. In order to have a condition precedent to the exercise of the right to vote for who will be one's Governor, California must advance evidence it is 'narrowly drawn to advance a state interest of compelling importance.'" (Citing Burdick v. Takushi.) The rule would "effectively bar Plaintiffs from having their otherwise valid vote for a gubernatorial successor counted, or compel them to vote on a separate issue upon which they do not wish to vote," which was a "severe burden."
The court rejected the State's proffered interests in ensuring that a majority of voters supported the recall if they ultimately voted on the replacement, or else "chaos and disruption: would ensue; that only those with a "direct" interest in the recall should vote on the replacement; that it would protect the "integrity and continuity of validly elected officials"; that the law helped avoid having those with "an indirect or remote interest" in the recall determine the winner of the election; and that there might be uncertainty in other election statutes. In a subsequent severability analysis, the court found the provision severable.
The California statute is basically identical to Colorado's constitutional provision.
So, will Colorado's provision stand?
Citation to Partnoy is sparse. The case was not appealed. I didn't find a reference to it in any of the four Election Law casebooks on my shelf. It's been cited in one series of cases since, one evaluating California's instant runoff voting system, and there the Ninth Circuit, when distinguishing Partnoy , emphasized that it need not decide if Partnoy was correct. Citations to Partnoy by scholars such as Vikram David Amar and Elizabeth Garrett are provided primarily as background material to a broader narrative. The area is, shall we say, murky.
But I anticipate that this is a case ripe for litigation as the deadline for Colorado's election. I imagine that some voters, agnostic on the recall, may still want to vote for a replacement candidate. And I imagine that they would proceed as California voters did. Whether Colorado can muster stronger arguments on behalf of its law, or obtain a judge with a more favorable outlook on its reasons, is a matter yet to be determined.
UPDATE: I now see that Josh Spivak over at The Recall Elections Blog had similar thoughts earlier this week.