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Colorado > Colorado Electoral Code > Certificates of Election And Election Contests

1-11-203.5. Contests concerning ballot order or ballot title – ballot issue or ballot question elections

Overview of Statute

Except petitions to rehear a title board decision, the district court for the political subdivision where a ballot initiative contest arises prior to the election will adjudicate and decide the rules for contests involving the order on the ballot, the form of the ballot, and the content. This court will exercise exclusive jurisdiction. The contestor in each dispute must file with the clerk of the court a bond, with sureties, approved by the judge running to the contestee and conditioned to pay all costs, including attorneys fees, in case of failure to maintain the contest.

In the initial petition filed with the court, the contestor must explain the grounds for the contest and provide a proposed alternative order, form, or content for the contested ballot depending on the grounds of the petition. The contestee will be the state for all contests involving statewide ballot initiatives or the political subdivision that placed the contested initiative on the ballot for non-statewide initiatives. This petition must be filed and served on the contestee within five days after the title of the initiative is set by the state or political subdivision, and an answer under oath must be given within five days after the proper service. If the contestee fails to answer in the time provided, and a required twenty-four hours pass after the court gave notice of the date, time, and place of the adjudication, the court will immediately set the matter for trial on the merits and adjudicate the contest within ten days after the answer filed or the time for filing an answer expires.

If the court finds that the order, form, or content of the ballot does not conform to the requirements of the state constitution and statutes, the court must provide an amended version of the ballot and award costs and reasonable attorney fees to the contestor. The court must award costs and reasonable attorney fees to the contestee when a petition is deemed frivolous and a contested ballot found to be in conformity with the state constitution and statutes. When the court issues an order concerning the ballot, the state or political subdivision must certify the ballot title and deliver it to the county clerk and recorder for a vote unless the vote has been canceled according to law. Appeals from district court orders must be taken directly to the Colorado Supreme Court, who must decide the issue as expeditiously as practicable.

Statute

(1) Except for petitions for rehearing pursuant to section 1-40-107, all election contests arising out of a ballot issue or ballot question election concerning the order on the ballot or the form or content of any ballot title shall be summarily adjudicated by the district court sitting for the political subdivision within which the contest arises prior to the election. Except as otherwise provided in this section, the style and form of process, the manner of service of process and papers, the fees of officers, and judgment for costs shall be according to the rules and practice of the district court. The court that first acquires jurisdiction of any contest shall have exclusive jurisdiction. Before the district court is required to take jurisdiction of the contest, the contestor shall file with the clerk of the court a bond, with sureties, running to the contestee and conditioned to pay all costs, including attorneys fees, in case of failure to maintain the contest. The judge shall determine the sufficiency of the bond and, if sufficient, approve it.

(2) Every such contest shall be commenced by verified petition filed by the contestor to the proper court, setting forth the grounds for the contest and a proposed alternative order for the ballot or alternative form or content for the contested ballot title. The contestee shall be the state in the case of a statewide ballot issue or statewide ballot question or the political subdivision that proposed to place the contested ballot issue or ballot question on the ballot, as applicable, and the petition representative of an initiated measure. The petition shall be filed and a copy served on the contestee within five days after the title of the ballot issue or ballot question is set by the state or political subdivision and for contests concerning the order of a ballot, within five days after the ballot order is set by the county clerk and recorder and not thereafter. The designated election official or other authorized official, on behalf of the contestee and the proponent of an initiated measure, shall answer under oath within five days after service. Upon the expiration of the time for the answer, and following at least twenty-four hours advance notice of the date, time, and place of the adjudication given by the clerk of the court by letter, telephone, or fax to the contestor and contestee, the court having jurisdiction of the contest shall immediately set the matter for trial on the merits and shall adjudicate it within ten days of the date of filing of the answer by the contestee or expiration of the time for the answer.

(3) If the court finds that the order of the ballot or the form or content of the ballot title does not conform to the requirements of the state constitution and statutes, the court shall provide in its order the text of the corrected ballot title or the corrected order of the measures to be placed upon the ballot and shall award costs and reasonable attorneys fees to the contestor. If the court finds that the order of the ballot and the form and content of the ballot title conform to the requirements of the state constitution and statutes and further finds that the suit was frivolous as provided in article 17 of title 13, C.R.S., the court shall provide in its order an award of costs and reasonable attorneys fees to the contestee state or political subdivision and to the proponent of an initiated measure.

(4) Following entry of the order of the district court pursuant to this section, the ballot title shall be certified by the state or political subdivision to the county clerk and recorder, to be voted upon at the election as so certified unless the election on the ballot issue or ballot question is canceled in the manner provided by law. Notwithstanding any other provision of law, any appeal from an order of the district court entered pursuant to this section shall be taken directly to the supreme court, which shall decide the appeal as expeditiously as practicable.

(5) The procedure provided in this section shall be the exclusive procedure to contest or otherwise challenge the order of the ballot or the form or content of the ballot title.

(6) This section shall not apply to a ballot title for a statewide ballot issue or statewide ballot question that is set by a title setting board or court as provided by law.

 

 

Source: L. 94: Entire section added, p. 1175, § 64, effective July 1.

 

ANNOTATION

This section is constitutional and permissibly limits challenges based on the form and content of a ballot title but it cannot and does not time-bar constitutional challenges to the substance of a ballot issue or ballot question. This section does not conflict with art. X, § 20, of the Colorado Constitution because the requirements of that section that relate to ballot titles address only the form and content of ballot titles and not what that section substantively permits voters to approve. Cacioppo v. Eagle County Sch. Dist. RE-50J, 92 P.3d 453 (Colo. 2004).

A challenge to a ballot title involves the substance of a ballot issue if it relates to the language in the ballot title itself and it would be legally impossible for the court hearing the challenge to reform or reword the ballot title to any constitutionally or statutorily acceptable level so that regardless of any contest filed before the election, the ballot issue as approved cannot be upheld under the laws or constitution of the state. Cacioppo v. Eagle County Sch. Dist. RE-50J, 92 P.3d 453 (Colo. 2004).

A claim that a ballot issue proposed a “phased-in” tax increase and that a ballot title that disclosed only the first rather than the final full fiscal year dollar increase was, therefore, improper involved only the form and content of the ballot title, could be resolved by the type of summary adjudication contemplated by this section, and was time-barred by this section because it was not made within five days of the setting of the ballot title. Cacioppo v. Eagle County Sch. Dist. RE-50J, 92 P.3d 453 (Colo. 2004).

This section does not apply to a notice required by art. X, § 20, of the Colorado Constitution that accompanied a ballot title and, therefore, did not bar claims that such a notice contained inaccurate financial data and had a misleading purpose. Section 1-11-213 (4), however, did bar the claims. Cacioppo v. Eagle County Sch. Dist. RE-50J, 92 P.3d 453 (Colo. 2004).

The final action of a local government legislative body to settle or decide the wording of a ballot title constitutes the setting or fixing of the ballot title under § 31-11-111. Under subsection (2), a person must, therefore, contest the form or content of a ballot title within five days of the legislative body’s final action concerning the ballot title. Cacioppo v. Eagle County Sch. Dist. RE-50J, 92 P.3d 453 (Colo. 2004).

The five-day time limit imposed by subsection (2) is constitutional because it is not “manifestly so limited as to amount to a denial of justice”. Cacioppo v. Eagle County Sch. Dist. RE-50J, 92 P.3d 453 (Colo. 2004).

Claim that a ballot issue was invalid because it contained multiple purposes is a challenge to the form or content of the ballot title. Consequently, the claim was time-barred because it was not filed within five days after the title of the ballot issue was set. Busse v. City of Golden, 73 P.3d 660 (Colo. 2003).
Definition [Political subdivision]

A governing subdivision of the state, including counties, municipalities, school districts, and special districts. C.R.S. § 1-7.5-103.

Definition [Designated election official]

The secretary of state, a county clerk and recorder, or other election official as provided by article XXI of the state constitution. C.R.S. § 1-12-100.5.

Definition [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.

Definition [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.

Definition [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.

Definition [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.

Cases

colorado Cases

Case Name: Cacioppo v. Eagle County Sch. Dist. RE-50J

Citation: 92 P.3d 453 (Colo. 2004)

Year: 2004

Case URL: https://www.ravellaw.com/opinions/815e345d350a764bb4ae9261c16a0a8b

Case Summary: Dismissing challenge to an approved ballot issue that raised taxes to provide increased funding for a school district; challenge was time-barred, and challenges related to ballot form are not judiciable if the challenge was improperly filed.

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