1-11-201. Causes of contest
Overview of Statute
Permissible grounds for contesting a candidate’s election to office include the candidate’s eligibility for the particular office, the vote count as it relates to potentially fraudulent votes counted and votes denied, perceived error or fraud by the election judge or canvass board in the process of determining election winner, and belief that another candidate legally elected. In elections for the governor and lieutenant governor, violation by one of the candidates does not invalidate the election of the other joint candidate.
The result of any election to determine a ballot issue or ballot question may likewise be contested on these same grounds, as well as under the belief that any ballot issue involving the creation of debt or other financial obligation failed to meet the notice requirements articulated in C.R.S. § 1-7-908.
(1) The election of any candidate to any office may be contested on any of the following grounds:
(a) That the candidate elected is not eligible to hold the office for which elected;
(b) That illegal votes were received or legal votes rejected at the polls in sufficient numbers to change the result of the election;
(c) That an election judge or canvass board has made an error in counting or declaring the result of an election that changed the result of the election;
(d) That an election judge, canvass board, or member of a canvass board has committed malconduct, fraud, or corruption that changed the result of the election; or
(e) That, for any reason, another candidate was legally elected to the office.
(2) For the purpose of this part 2, if the election or nomination of either the governor or lieutenant governor is found to be invalid for any reason, the finding shall not in any way be construed to invalidate the election or nomination of the other joint candidate.
(3) The result of any election to determine a ballot issue or ballot question may be contested on any of the following grounds:
(a) That illegal votes were received or legal votes were rejected at the polls in sufficient numbers to change the result of the election;
(b) That an election judge or canvass board has made an error in counting or declaring the result of an election that changed the result of the election; or
(c) That an election judge, canvass board, or member of a canvass board has committed misconduct, fraud, or corruption that changed the result of the election.
(4) In addition to the grounds set forth in subsection (3) of this section, the result of any election to determine a ballot issue that includes approval of the creation of any debt or other financial obligation may be contested if the notice required by section 1-7-908 is not provided in accordance with that section or contains any material misstatement of the information required to be set forth in the notice.
Source: L. 92: Entire article R&RE, p. 785, § 14, effective January 1, 1993.L. 94: (3) added, p. 1175, § 62, effective July 1.L. 99: (1)(c), (1)(d), (3)(b), and (3)(c) amended, p. 490, § 19, effective July 1.L. 2003: (4) added, p. 749, § 2, effective August 6.
Editor’s note: Articles 1 to 13 were numbered as articles 1, 3, 4, 9 to 19, and 21 of chapter 49, C.R.S. 1963. The substantive provisions of these articles were repealed and reenacted in 1980, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to these articles prior to 1980, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. numbers prior to 1980 are shown in editor’s notes following those sections that were relocated. For a detailed comparison of these articles for 1980, see the comparative tables located in the back of the index.
Cross references: For school elections, see articles 30, 31, and 42 of title 22; for elections for removal of county seats, see article 8 of title 30; for municipal elections, see article 10 of title 31; for special district elections, see part 8 of article 1 of title 32; for exemption of certain statutory proceedings from the rules of civil procedure, see C.R.C.P. 81; for recall from office, see article XXI of the state constitution; for recall of state and county officers, see part 1 of article 12 of this title; for recall of municipal officers, see part 5 of article 4 of title 31; for recall of directors of special districts, see § § 32-1-906, 32-1-907.
Editor’s note: Articles 1 to 13 were repealed and reenacted in 1980, and this article was subsequently repealed and reenacted in 1992, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1992, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor’s note following the title heading. Former C.R.S. section numbers are shown in editor’s notes following those sections that were relocated in 1992. For a detailed comparison of this article for 1980 and 1992, see the comparative tables located in the back of the index.
Editor’s note: This section is similar to former § 1-11-201 as it existed prior to 1992.
Cross references: For contests for county and nonpartisan officers, ballot issues, and ballot questions, see § 1-11-212; for contested elections, see C.R.C.P. 100.
Election is contested under subsection (1)(a) when candidate in nonpartisan election did not meet the residency requirement to serve the position. Figueroa v. Speers, 2015 CO 12, 343 P.3d 967.
I. General Consideration.
II. Causes of Contest.
A. In General.
Annotator’s note. The following annotations include cases decided under former provisions similar to this section.
Pursuant to the constitutional mandate of Colo. Const., art. VII, § 12, the procedure to be followed in election contests was enacted. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).
II.CAUSES OF CONTEST.
In an election contest, the statement of contest must bring the case within one of the enumerated causes constituting grounds for contest. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).
For, in an election contest, the contestor should be able to show some good reason for the contest. Todd v. Stewart, 14 Colo. 286, 23 P. 426 (1890); Smith v. Harris, 18 Colo. 274, 32 P. 616 (1893); Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925).
And in the absence of some definite and specific assertion, a court will assume that there are none to be made. Todd v. Stewart, 14 Colo. 286, 23 P. 426 (1890); Smith v. Harris, 18 Colo. 274, 32 P. 616 (1893); Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925).
Moreover, a statement of contest not vulnerable to demurrer (now dismissal for failure to state a claim) may be assailable on other grounds, e.g., that it is ambiguous, unintelligible, and uncertain. Collins v. Heath, 76 Colo. 600, 233 P. 838 (1925); Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925).
And contestors are without right to amend their statement of contest by supplying the very thing which was essential in the first instance to state a ground of contest and give the court jurisdiction. Town of Sugar City v. Bd. of Comm’rs, 57 Colo. 432, 140 P. 809 (1914).
Causes of contest incorporated by reference. The causes of contest are, insofar as applicable, incorporated by reference into provisions requiring a contestor of the election of county officers to file a written statement setting forth, among other things, the causes of the contest, and hence also into provisions relating to contests in special district elections. Jardon v. Meadowbrook-Fairview Metro. Dist., 190 Colo. 528, 549 P.2d 762 (1976).
Eligibility is to be determined at the date of qualifying. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).
And the word “eligible” has reference to the capacity not of being elected to office, but of holding office. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).
Thus it is wholly immaterial whether contestee is qualified at the time of election when at the time of taking office his eligibility exists. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).
For the eligibility of a candidate to office is to be ascertained as of the time of his entering upon the duties of the office. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).
An election will not be set aside for irregularities unless they affect the result of the election. People v. Keeling, 4 Colo. 129 (1878); Kellogg v. Hickman, 12 Colo. 256, 21 P. 325 (1888); Todd v. Stewart, 14 Colo. 286, 23 P. 426 (1890); Allen v. Glynn, 17 Colo. 338, 29 P. 670 (1892); Smith v. Harris, 18 Colo. 274, 32 P. 616 (1893); People ex rel. Johnson v. Earl, 42 Colo. 238, 94 P. 294 (1908); Littlejohn v. People, 52 Colo. 217, 121 P. 159 (1912); City of Loveland v. Western Light Power Co., 65 Colo. 55, 173 P. 717 (1918); Suttle v. Sullivan, 131 Colo. 519, 283 P.2d 636 (1955).
The causes for contest make no provision for a contest of an election upon the removal of a county seat, for the only election contests authorized are those of officers. Accordingly, it is also clear that there is no remedy by quo warranto, for that remedy is only employed to test the right of an officer or franchise. People v. Bd. of County Comm’rs, 6 Colo. 202 (1882).
Similarly, failure of election officials to issue absentee ballots upon oral application, although they had previously promised to do so, amounts to nothing as a ground of contest. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).
And an allegation that the name of the contestee was unlawfully printed upon the official ballot under the name and emblem of a political party of which he was not the nominee, that the filing of the certificate of nomination of contestee as the nominee of such political party was the result of a fraudulent conspiracy between contestee and the county clerk, and that by reason of having his name so printed under the name and emblem of the said political party he had counted for him a large number of votes to which he was not entitled, sufficient to reduce the number of his votes below the number cast for contestor, does not state a cause for contest under this section. Rather, it was contestor’s duty to make his objection to the printing of contestee’s name on the official ballot under the name and emblem to which he was not entitled in seasonable time and in the manner provided by the election law, and failing to do so, he cannot be heard after election to urge such objections when to uphold them would be to overthrow the expressed will of a majority of the legal voters of the county. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).
1. Definition for Political party
Any group of registered electors who, by petition or assembly, nominate candidates for the official general election ballot. “Political party” includes affiliated party organizations at the state, county, and election district levels, and all such affiliates are considered to be a single entity for the purposes of this article, except as otherwise provided in section 7. Section 2(13) of article XXVIII of the state constitution.
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 Ballot
(a) A federal write-in absentee ballot;
(b) A ballot specifically prepared or distributed for use by a covered voter in accordance with this article; or
(c) A ballot cast by a covered voter in accordance with this article.
(2) “Covered voter” means:
(a) A uniformed-service voter defined in paragraph (a) of subsection (9) of this section who is a resident of this state but who is absent from this state by reason of active duty and who otherwise satisfies this state’s voter eligibility requirements;
(b) An overseas voter who, before leaving the United States, was last eligible to vote in this state and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements;
(c) An overseas voter who, before leaving the United States, would have been last eligible to vote in this state had the voter then been of voting age and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements; or
(d) An overseas voter who was born outside the United States, is not described in paragraph (b) or (c) of this subsection (2), and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements if the last place where a parent, legal guardian, spouse, or civil union partner of the voter was, or under this article would have been, eligible to vote before leaving the United States is within this state.
C.R.S. § 1-8.3-102.
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 Candidate
Any person who seeks nomination or election to any state or local public office that is to be voted on in this state at any primary election, general election, school district election, special district election, or municipal election. “Candidate” also includes a judge or justice of any court of record who seeks to be retained in office pursuant to the provisions of section 25 of article VI. A person is a candidate for election if the person has publicly announced an intention to seek election to public office or retention of a judicial office and thereafter has received a contribution or made an expenditure in support of the candidacy. A person remains a candidate for purposes of this article so long as the candidate maintains a registered candidate committee. A person who maintains a candidate committee after an election cycle, but who has not publicly announced an intention to seek election to public office in the next or any subsequent election cycle, is a candidate for purposes of this article. Section 2(2) of article XXVIII of the state constitution.
Case Name: Cox v. Starkweather
Citation: 260 P.2d 587 (Colo. 1953)
Case Summary: Upholding the election of an eligible candidate for county commissioner, despite not being a qualified elector in the district where elected.
Case Name: Lewis v. Boynton
Citation: 25 Colo. 486, 55 P. 732
Case PDF: Lewis v. Boynton
Case Summary: Holding that candidate who received fewer votes in an election could not have the result overturned when the winning candidate's name appeared in the wrong place on a ballot; voters still intended to vote for the other candidate and not for the protesting candidate.
Case Name: Todd v. Stewart
Citation: 14 Colo. 286, 23 P. 426 (1890)
Case PDF: Todd v. Stewart
Case Summary: A losing candidate for county judge failed to establish a contest challenging the results of an election. The candidate alleged that the winning candidate engaged in both voter fraud and improper voter registration. Even if true, these effects did not materially effect the election results.
Case Name: Smith v. Harris
Citation: 18 Colo. 274, 32 P. 616 (1893)
Case Summary: Affirming the election of a county judge, despite the secretary of state's allegedly improper certification of the candidate's name on the ballot.
Case Name: Boger v. Smith
Citation: 238 P. 57 (Colo. 1925)
Case URL: https://perma.cc/KQ9Q-9G55
Case Summary: Holding that trial court properly dismissed complaint, because allegations of error were too general to notify the contestee of alleged errors; reasonable definiteness in statements of election contests was required.
Case Name: Collins v. Heath
Citation: 76 Colo. 600, 233 P. 838 (1925)
Case URL: https://perma.cc/4PH9-KYE2
Case Summary: Candidate for county commissioner failed to support a challenge to a vote count with sufficient evidence. Court would not allow candidate to proceed on more narrow grounds.
Case Name: Town of Sugar City v. Bd. of Comm’rs
Citation: 140 P. 809 (Colo. 1914)
Case Summary: Denying contestors leave to amend their complaint to include a list of allegedly fraudulent voters; under plain terms of the statute, contestors could not amend their statement of contest by supplying the same thing that was essential in the first place to state a ground of contest.
Case Name: Jardon v. Meadowbrook-Fairview Metro. Dist.
Citation: 549 P.2d 762 (Colo. 1976)
Case Summary: Upholding a vote count that approved a ballot measure to construct a new sewage system; contestors protested the vote count because of alleged improper notice in newspaper publications and irregular voting procedure, but the court held that these alleged defects were insufficient to affect the final vote.
Case Name: People v. Keeling
Citation: 4 Colo. 129 (1878)
Case PDF: People v. Keeling
Case Summary: The Court upheld an election result from an election held on the wrong day. Contestors proffered no evidence that demonstrated purposeful misconduct or fraud.
Case Name: Kellogg v. Hickman
Citation: 21 P. 325
Case PDF: Kellog v. Hickman
Case Summary: Holding that it was "contrary to right, reason, and authority" to deduct votes from a candidate's count because of irregularities on the part of judges on the day after the election.
Case Name: Allen v. Glynn
Citation: 29 P. 670
Case Summary: Holding that unsuccessful candidate could not object to the form of the ballot after the election was held, because legislature provided for ample opportunities for the correction of ballots prior to the election.
Case Name: People ex rel. Johnson v. Earl
Citation: 42 Colo. 238, 94 P. 294 (1908)
Case PDF: People ex rel. Johnson v. Earl
Case Summary: Upholding an election result against citizens' lawsuit alleging improper registration process. So long as no qualified voter was denied access and no unqualified voter cast a ballot, a plaintiff will likely fail to maintain a cause of action protesting registration procedure.
Case Name: Littlejohn v. People
Citation: 52 Colo. 217, 121 P. 159 (1912)
Case PDF: Littlejohn v. People
Case Summary: A candidate's failure to file a notice of intention in an election for school director did not prevent him from taking office after receiving the majority of votes. The voters' intention to elect the candidate instead decided the result.
Case Name: City of Loveland v. Western Light Power Co.
Citation: 65 Colo. 55, 173 P. 717 (1918)
Case Summary: Upholding a trial court's decision that election was valid, even though county taxpayers were prohibited from voting, because it was the intention of the legislature that only city taxpayers vote on erecting, owning, and operating municipal light plant.
Case Name: Suttle v. Sullivan
Citation: 283 P.2d 636 (Colo. 1955)
Case Summary: Holding that contestor failed to provide sufficient evidence of defects in the voting procedure that affected the final result.
Case Name: People v. Bd. of County Comm’rs
Citation: 6 Colo. 202 (1882)
Case PDF: People v. Bd. of County Comm'rs
Case Summary: Upholding a cause of action, despite a potential conflict with the state constitution, because the contestors sufficiently alleged a claim disputing an election result. Final decision required a proper determination of fact, and the case was remanded for determination of the number of proper ballots counted in an election for a ballot proposition.
Case Name: Graham v. Swift
Citation: 123 Colo. 309, 228 P.2d 969 (1951)
Case Summary: Upholding a decision that a contestee was properly elected to serve in the office of sheriff, as initially indicated by the official canvass of votes. Contestor failed to provide sufficient evidence to support its claim that unqualified electors participated in the election.