1-11-203. Contests arising out of primary elections
Overview of Statute
The district court in the political subdivision where a contest arises will have original jurisdiction to summarily adjudicate all election contests arising out of a primary election, except contests for national or state offices. This court will be subject to appellate review as provided by law and the Colorado appellate rules. For contests involving contests for state offices, the Colorado Supreme Court will instead have original jurisdiction. Contests must be instituted by verified petition to the proper court, and the petitions must be filed and served on the contestee within five days after the occurrence of the grounds of the contest. The contestee must answer under oath within five days after service of the petition. If unable to personally serve the petition, service may be completed through the clerk of the court having original jurisdiction who must search for the contestee to ensure an answer may be filed. Should the contestee fail to file an answer in the time provided, the court must set the matter for trial on the merits and summarily adjudicate it.
(1) All election contests arising out of a primary election, except contests for national or state offices, shall be summarily adjudicated by the district court sitting for the political subdivision within which a contest arises. The court which first acquires jurisdiction of any contest shall have original jurisdiction, subject to appellate review as provided by law and the Colorado appellate rules. In all cases involving contests for state offices, the supreme court shall take original jurisdiction for the purpose of summarily adjudicating any contest.
(2) Every contest shall be instituted by verified petition to the proper court, setting forth the grounds for the contest. The petition shall be filed and a copy served on the contestee within five days after the occurrence of the grounds of the contest. The contestee shall answer under oath within five days after service. If the petition cannot be personally served within the state on the contestee, service may be made by leaving a copy of the petition with the clerk of the court having original jurisdiction of the controversy or contest who shall search for the contestee so that an answer may be filed. Upon the expiration of the time for the answer, the court having jurisdiction of the contest shall forthwith set the matter for trial on the merits and shall summarily adjudicate it.
Source: L. 92: Entire article R&RE, p. 786, § 14, effective January 1, 1993.
I. General Consideration.
Annotator’s note. The following annotations include cases decided under former provisions similar to this section.
The provision relating to contests arising subsequent to a primary election is not applicable to controversies over the right to appear on the ballot as a designee of a political party for nomination of that party to a particular office. Anderson v. Kilmer, 134 Colo. 270, 302 P.2d 185 (1956).
Summary adjudication of election contests. Election contests shall be “summarily adjudicated” by the court, and strict adherence to procedural requirements is not the rule; as long as due process is afforded and a fair hearing is provided the contestants, the statutory requirements are deemed satisfied. Ray v. Mickelson, 196 Colo. 325, 584 P.2d 1215 (1978).
Provision conflicts with U.S. constitution as to jurisdiction over elections for U.S. Senate and House. The provision which purports to vest the Colorado supreme court with jurisdiction to try election contests arising out of a primary election for nomination to the United States Senate and House of Representatives conflicts with article I, section 5(1), of the United States Constitution, allowing each house to “be the judge of the elections, returns, and qualifications of its own member”, and in such situation the United States Constitution must prevail: Inasmuch as the authority given Congress by article I, section 4(1), of the United States Constitution to regulate elections for senators and representatives includes the authority to regulate primary elections where, under the law of the state, they are an integral part of the procedure for the choice of representatives in Congress, and it logically follows as a corollary thereof that the provisions of section 5(1) also apply to primary elections for the U.S. Senate and House of Representatives. Rogers v. Barnes, 172 Colo. 550, 474 P.2d 610 (1970).
A nominee is under no duty to prove that he has been nominated. People ex rel. Flebbe v. Mitchell, 88 Colo. 102, 292 P. 228 (1930).
But on the contrary, the contesting party must allege sufficient specific facts so that the contestee may be advised with reasonable definiteness and certainty the character of the charges to be met and be thus afforded an opportunity to properly present a defense thereto. People ex rel. Flebbe v. Mitchell, 88 Colo. 102, 292 P. 228 (1930).
For, in election contest proceedings, courts cannot properly embark on a mere fishing expedition by opening ballot boxes when there is an utter lack of specific allegations as to the distribution of votes and no charge of fraud or irregularity. Cruse v. Richards, 95 Colo. 485, 37 P.2d 382 (1934).
And it is always necessary to allege facts which will enable the court to determine that a different result would follow in the vote by reason of such alleged facts. Cruse v. Richards, 95 Colo. 485, 37 P.2d 382 (1934).
Hence, petition which does set out facts is insufficient. A petition in a primary election contest which merely charges a mistake in the counting of votes, and that a recount would result in the nomination of petitioner, without setting out the facts, is insufficient. People ex rel. Flebbe v. Mitchell, 88 Colo. 102, 292 P. 228 (1930).
One proposing to contest a nomination made by petition must follow the provision for contests arising out of primary elections. McCall v. Pearce, 53 Colo. 409, 127 P. 956 (1912).
Or petitioner’s rights may be foreclosed by laches. McCall v. Pearce, 53 Colo. 409, 127 P. 956 (1912).
Furthermore, service of summons in a primary election contest one day later than the time specified will not give the court jurisdiction, notwithstanding the last day upon which service could be made within the statutory time falls on Sunday. Cruse v. Richards, 95 Colo. 485, 37 P.2d 382 (1934).
And a contestee does not waive any objection to defective service of summons by filing a demurrer (now motion to dismiss for failure to state a claim) simultaneously with his motion to dismiss for want of service of process. Cruse v. Richards, 95 Colo. 485, 37 P.2d 382 (1934).
1. Definition for United States
Used in the territorial sense, means the several states, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.
2. 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.
3. Definition for Political subdivision
A governing subdivision of the state, including counties, municipalities, school districts, and special districts. C.R.S. § 1-7.5-103.
4. 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.
5. 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.
6. 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.
7. 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.
Case Name: Anderson v. Kilmer
Citation: 302 P.2d 185 (1956)
Case Summary: Holding that where candidate was first registered as a Republican in the books of the county clerk on April 29, 1956, and primary election was held September 11, 1956, such individual was ineligible for designation as a candidate.
Case Name: Ray v. Mickelson
Citation: 584 P.2d 1215, 196 Colo. 325 (1978)
Case Summary: Holding that a candidate could not represent a political party if not a member of the party for at least 12 months immediately preceding the election. Not important that county assembly mistakenly designated candidate as the primary nominee, party voters properly nominated the candidate, and the contestor improperly filed the complaint. Lastly, the trial court acted within its discretion to permit the contestor to supply additional evidence demonstrating a right to bring the contest.
Case Name: Rogers v. Barnes
Citation: 172 Colo. 550, 474 P.2d 610 (1970)
Case Summary: Parties were nominees in a Democratic Party primary for a seat in the House of Representatives. Given that primary serves as a part of electoral process for a congressional seat, Court held that only Congress could exercise jurisdiction according to the U.S. Constitution.
Case Name: People ex rel. Flebbe v. Mitchell
Citation: 88 Colo. 102, 292 P. 228 (1930)
Case URL: https://perma.cc/KRM5-XJ4J
Case Summary: Defendant candidate need not prove his nomination in a contest requesting a recount of votes. Plaintiff requested a recount of votes in a primary election for the nomination of a county commissioner. Accordingly, plaintiff failed to sufficiently allege claims supporting a recount and complaint was dismissed.
Case Name: Cruse v. Richards
Citation: 95 Colo. 485, 37 P.2d 382 (1934)
Case URL: https://perma.cc/V5VM-N4PG
Case Summary: Court dismissed a complaint requesting a recount in a political party's primary for nomination in an election for county commissioner. No indication that vote count affected by any of the alleged improper behavior.
Case Name: McCall v. Pearce
Citation: 53 Colo. 409, 127 P. 956 (1912)
Case PDF: McCall v. Pearce
Case Summary: Court granted a motion to dismiss in a case brought by candidates who claimed that the secretary of state impermissibly failed to file a petition for their nomination. Candidates failed to follow proper procedure when initiating their action.