Upwards of 1,900 possible "under-voted" ballots could now be at play in District 61 State Rep. Kathleen Curry's court challenge over this week's election outcome.
"The number keeps changing, but it does look we're talking about a lot more ballots than we earlier thought," Curry said Thursday.
After Tuesday's election, unofficial results from the five counties in District 61 had the three-term Gunnison legislator losing her independent write-in bid for re-election by 492 votes to Democrat Roger Wilson of Glenwood Springs.
Initially, the Curry campaign was told there were between 1,100 and 1,300 "under votes" - ballots on which a vote was either not cast in the District 61 race, or where a voter wrote Curry's or someone else's name on the write-in line provided but failed to fill in the accompanying box.
The larger the number of such ballots, the greater Curry's odds are of overtaking Wilson's vote total.
Denver District Court Judge John W. Madden was to rule Friday on whether a recount is in order, mandating that those ballots be brought into the mix. However, that ruling now may not come until next week.
"The state has asked for a delay in the ruling until the county clerks can get all of the provisional ballots counted," Curry said. "We wanted a ruling by noon [Friday, Nov. 5], but we may not get a decision until the end of the day, or even Monday or later."
Aside from the questionable "under votes," county clerks in Garfield, Pitkin, Eagle, Gunnison and Hinsdale counties are currently in the process of determining which provisional ballots that were cast in the election can be counted.
Provisional ballots are cast by voters in cases where they may have shown up at the wrong polling place on election day, or who were registered as a mail-in voter but went to their polling place instead.
In Garfield County alone, there were believed to be 164 provisional ballots cast in District 61, Garfield Clerk Jean Alberico said.
County clerks are also holding out for any overseas military ballots that may also be outstanding. Those could come in as late as Nov. 10 and still be counted, Alberico said.
Depending on how many provisional and military ballots get counted, it could potentially close the gap in the race enough to trigger an automatic recount. In that case, voter intent on any write-in votes cast would come into play.
"The law is on my side in either case, because it doesn't require the box or oval to be filled in, as long as the voter's intention is clear," Curry said.
In any case, she wants a recount, even if it means paying an estimated $10,000 from her campaign funds to have one done.
Initially, she had hoped that the judge would rule before the election that any ballots where a name was written in but the box left blank should be counted.
"It would still be easier on the clerks to just count those ballots instead of having to recount the whole thing," Curry said.
"If there weren't so many of these under-counted ballots around the district, I wouldn't be raising such a stink," she said. "But I have to be ready to do whatever it takes to make sure every ballot gets counted."
Meanwhile, the District 61 race is one of three House races in the state that are considered still in play in determining the balance of power come January when the General Assembly convenes.
Following Tuesday's election, it appeared Republicans would hold a 33-32 edge over Democrats in the House. However, recounts and provisional ballots could change the outcome in at least two other races as well. If Curry ends up winning after a recount, it's even possible the House could end up split 32-32, with Curry as the lone independent.
Curry was elected to three terms as a Democrat before changing her party affiliation to independent last December. Her move was too late, according to state election laws, to be included on the Nov. 2 ballot as an unaffiliated candidate, leaving her to run for re-election as a write-in candidate.
According to unofficial final vote tallies after Tuesday's election, Wilson won with 9,495 votes to Curry with 9,003 and Republican Luke Korkowski of Mt. Crested Butte with 8,892.