1-1.5-105. Complaint procedure
Overview of Statute
In accordance with section 402 of HAVA, the secretary may establish a uniform administrative complaint procedure to remedy grievances brought under Title III of HAVA. Complaint procedures created must adhere to listed regulations, including a uniform and nondiscriminatory complaint procedure that allows both aggrieved parties and witnesses of Title III violations to file a complaint, an opportunity for a hearing on the record, and other procedural rules. Other regulations regarding adjudication of the dispute will also apply.
(1) Subject to the requirements of this section, in accordance with section 402 of HAVA, the secretary may establish by rule a uniform administrative complaint procedure to remedy grievances brought under Title III of HAVA.
(2) Any rules promulgated pursuant to subsection (1) of this section shall provide for, but need not be limited to, the following:
(a) A uniform and nondiscriminatory complaint procedure;
(b) Authorization for any person who has either been personally aggrieved by or has personally witnessed a violation of Title III of HAVA that has occurred, is occurring, or that is about to occur, as applicable, to file a complaint;
(c) A description by the complainant in his or her complaint of the alleged violation with particularity and a reference to the section of HAVA alleged to have been violated;
(d) A requirement that the complaint be filed no later than one year from the date of either the occurrence of the alleged violation or of the election giving rise to the complaint, whichever is later;
(e) A requirement that each complaint be in writing and notarized, signed, and sworn by the person filing the complaint;
(f) Authorization for the secretary to consolidate two or more complaints;
(g) At the request of the complainant, a hearing on the record;
(h) Authorization for the secretary to provide an appropriate remedy if the secretary determines that any provision of Title III of HAVA has been violated or to dismiss the complaint and publish the results of his or her review if the secretary determines that no provision of Title III of HAVA has been violated;
(i) A final determination on the complaint by the secretary prior to the expiration of the ninety-day period that begins on the date the complaint is filed, unless the complainant consents to an extension of time for making such determination;
(j) Resolution of the complaint within sixty days under an alternative dispute resolution procedure that the secretary shall establish in accordance with the requirements of this section if the secretary fails to satisfy the applicable deadline specified in paragraph (i) of this subsection (2), and the availability of the record and any other materials from any proceedings conducted under the complaint procedures established for use under such alternative dispute resolution procedures;
(k) Authorization for the secretary to conduct a preliminary review of any complaint submitted to him or her and to dismiss any complaint that he or she finds is not supported by credible evidence; and
(l) Recovery by the secretary of the costs of the proceeding against any complainant who files a complaint that, in connection with the final determination by the secretary pursuant to paragraph (i) of this subsection (2), is found, on the basis of clear and convincing evidence, to be frivolous, groundless, or vexatious.
(3) Notwithstanding any other provision of law:
(a) No complaint shall be brought pursuant to the procedure created by this section unless the complaint alleges a violation of Title III of HAVA;
(b) Proceedings for the resolution of a complaint brought pursuant to this section shall not be considered an adjudication under article 4 of title 24, C.R.S.; and
(c) The procedures created by this section shall constitute the exclusive administrative remedy for a violation of Title III of HAVA.
(4) Any person aggrieved by a final determination by the secretary acting pursuant to paragraph (i) of subsection (2) of this section may appeal the secretary’s determination to the district court in and for the city and county of Denver within thirty days of the date of the determination.
Source: L. 2003: Entire article added, p. 2069, § 7, effective May 22.
Federal and state provisions regarding who is authorized to file an administrative complaint under the federal Help America Vote Act (HAVA) are in conflict because the rule of standing under subsection (2)(b) is narrower than, and inconsistent with, the federal provision under 42 U.S.C. § 15512(a)(1) and (a)(2)(B). Therefore, according to § 1-1.5-103 and 42 U.S.C. § 15512 (a)(1), the federal statute must control. Marks v. Gessler, 2013 COA 115, — P.3d –.
Secretary of state’s dismissal of complaint for lack of standing constituted a final determination on the complaint pursuant to subsection (2)(i) and, therefore, the decision was appealable to the district court under the appeal clause in subsection (4). Marks v. Gessler, 2013 COA 115, — P.3d –.
The district court did not err in considering complainant’s state HAVA claims under the judicial review principles of the State Administrative Procedure Act (APA) and in remanding the case for further administrative proceedings. When considered in conjunction with § 24-4-105, the purpose of subsection (3)(b) of this section, the so-called “adjudication clause” of the state version of the federal HAVA, is to spare the secretary and persons filing administrative complaints under the state HAVA from having to observe the numerous, and somewhat complex, procedural requirements contained in § 24-4-105, and to curtail the administrative rights and obligations the parties would ordinarily have in adjudicatory proceedings. The court also rejected the secretary of state’s assertion that, if a statute precludes the application of the administrative procedures under this section, it necessarily precludes judicial review under the APA. Accordingly, the district court had plenary authority under § 24-4-106 (7) to review and remand this case for further proceedings if it concluded that the agency acted contrary to law. Marks v. Gessler, 2013 COA 115, — P.3d –.
The exclusive administrative remedy clause under subsection (3)(c) does not limit an aggrieved party’s judicial remedies. The clause does not refer to a complainant’s available judicial remedies; it refers only to the procedures that constitute the administrative remedy for a violation of title III of the federal HAVA. The plain meaning of “administrative remedy” does not include a judicial remedy. This interpretation is further supported by the appeals clause in subsection (4), which allows a person aggrieved by a final determination of the secretary to appeal the decision to the district court, and thus, potentially obtain a judicial remedy. Marks v. Gessler, 2013 COA 115, — P.3d –.
Although the APA rules and procedures do not apply to the secretary’s resolution of a state HAVA administrative complaint at the agency level, the APA does apply to judicial review in the district court of the secretary’s determination. Subsections (3)(b) and (3)(c) exclude only the administrative procedure provisions set forth under § 24-4-105. They do not limit the availability of judicial remedies. At the agency level, a person filing a state HAVA administrative complaint is only entitled to administrative procedures and rights included in the state HAVA statute itself and is not entitled to or burdened by the additional administrative procedures, rights, and obligations provided under the APA. Marks v. Gessler, 2013 COA 115, — P.3d –.
Complainant satisfied jurisdictional prerequisites for standing as well as the standing requirements to obtain judicial review of an agency action under the APA and HAVA. Complainant had legal standing to maintain her first claim for relief in which she sought judicial review under subsection (4) and § 24-4-106 of the dismissal of her state HAVA complaint. Because complainant alleged that defendants deprived her of her legally protected interests in using the administrative complaint procedure to remedy violations of the federal HAVA and a hearing on the record in connection with her state HAVA administrative complaint, she alleged a sufficient injury in fact. Injury in fact is also supported by complainant’s allegations in her administrative complaint that she believed violations of title III of the federal HAVA occurred during the 2010 general election. Marks v. Gessler, 2013 COA 115, — P.3d –.
Complainant also suffered an injury to a legally protected interest. Subsection (2)(b) provides complainant with a right to file a state HAVA complaint and subsection (2)(g) states that a complainant is entitled to a hearing on the record. In addition, complainant has a right under § 24-4-106 (2) of the APA to seek judicial review of the agency action. Defendants’ dismissal of her complaint for lack of standing violated her right to file a state HAVA complaint, and, therefore, she was adversely affected by the decision. Likewise, subsection (4) also provides complainant with a right to seek judicial review of the decision. Marks v. Gessler, 2013 COA 115, — P.3d –.
- Administrative Involvement
- Election Offenses & Judicial Proceedings
- HAVA Implementation
- Technological Standards
- Voting Technology
Marks v. Choate, Colorado Supreme Court. The Court affirmed the court of appeals finding requiring the Secretary of State hold a hearing to consider complaint before determination.
1. Definition for HAVA
The federal “Help America Vote Act of 2002”, P.L. No. 107-252, codified at 42 U.S.C. sec. 15301 et seq.1. C.R.S. § 1-1.5-102.
2. Definition for State
A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.
3. Definition for Person
Any natural person, partnership, committee, association, corporation, labor organization, political party, or other organization or group of persons. Section 2(11) of article XXVIII of the state constitution.
4. Definition for Election
Any election under the “Uniform Election Code of 1992” or the “Colorado Municipal Election Code of 1965”, article 10 of title 31, C.R.S. C.R.S. § 1-7.5-103.
5. Definition for Secretary
The Colorado secretary of state. C.R.S. § 1-1.5-102.
Case Name: Marks v. Gessler
Citation: 350 P.3d 883 (Colo. App. 2013)
Case Summary: The APA applies to judicial review of decisions made by the Secretary of State concerning the Help America Vote Act (HAVA). A district court has subject matter jurisdiction to hear claims about a potential conflict between state HAVA provisions and federal law. The right to an administrative hearing within the federal HAVA does not create a right enforceable in a § 1983 claim.