Election officials in three counties are still counting about 2,000 so-called provisional ballots that will determine the outcome of the race, but Democrats complain they are using different methods to determine which ballots to count.
Provisional ballots were used for the first time in a Colorado general election Nov. 5. They permit voters who have registration problems to vote with the condition that their qualifications will be checked out later by election officials.
Ballots in Jefferson County did not have a check-off box for voters to give a reason for using the special ballots, but those in Arapahoe and Adams counties did. Democrats charged that Arapahoe and Adams county clerks have disqualified some ballots because the voters did not check a box.
Colorado Secretary of State Donetta Davidson has welcomed the assistance of the courts in the election dilemma and postponed the release of the provisional vote count until Wednesday. The new count was to be released late Tuesday.
A court hearing has been scheduled Tuesday to hear lawyers for Feeley who said in a statement Monday that he had hoped to avoid a lawsuit.
"We hoped to avoid the courts, but the Secretary of State has left us little choice by indicating that she needs judicial guidance on deciding the legitimacy of some ballots," Feeley said. "If I don't ask the court for help, many voters who cast their ballot on election day will not have their votes counted."
In a Nov. 11 memo to the three county clerks, Davidson stated that the boxes were merely a procedural mechanism and not a statutory requirement; therefore, common sense should be applied to ballot qualification, according to the Feeley campaign.
The Beauprez campaign did not immediately return calls for comment on the legal action.
An attorney for Feeley said the U.S. Supreme Court addressed the issue of equal treatment of voters and ballots nearly two years ago in Bush v. Gore.
"We have asked the court to make sure that all provisional ballots are tested using the same standard," said Mark Grueskin. "If the three counties in the 7th Congressional District evaluate the same type of ballot using different criteria, many voters will have lost the right to vote."