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

1-11-208.5. Certification of questions to administrative law judge

Overview of Statute

The house of the general assembly where a contest arose must certify questions to the office of administrative courts for referral to an administrative law judge. The administrative law judge may only certify questions that relate to election returns and vote count, and cannot certify any question involving a candidate’s eligibility or qualifications. After certification, the house of general assembly must also transmit the papers submitted to the secretary of state in accordance with C.R.S. § 1-11-210 and any other papers submitted in connection with the contest. The administrative law judge will have jurisdiction to make findings of fact and recommendations on the certified questions presented, with consideration given to any other evidence the parties submit. In addition, prior decisions in judicial proceedings cannot be used by an administrative law judge to affect either party in a contest involving the election of a state senator or representative.

An administrative law judge must hold a hearing within twenty days of receiving the materials in a contest, and must then issue findings of fact and recommendations within ten days of the hearing. Using a preponderance of the evidence standard, the administrative law judge may either affirm a vote count and recommend the person to be seated in the district or recommend that irregularities in voting require the affected house to resolve the election contest. The affected house may call a special legislative election pursuant to C.R.S. § 1-11-303 to resolve the contest. The findings of fact and recommendations by the administrative law judge are final and cannot be subject to review by any other court.

Statute

(1) The house of the general assembly in which any contest for senator or representative, as applicable, is to be tried shall certify questions to the office of administrative courts for referral to an administrative law judge. The questions shall relate exclusively to the election returns in the district and the number of votes cast for each of the candidates for the contested seat. No question may be certified regarding the eligibility or qualification of any person for the contested office.

(2) Upon certification pursuant to subsection (1) of this section, the house of the general assembly in which the contest is to be tried shall transmit to the administrative law judge any papers submitted by the secretary of state pursuant to section 1-11-210 or any other documents submitted to that house in connection with the election contest.

(3) The administrative law judge shall have jurisdiction to make findings of fact on the questions certified by a house of the general assembly pursuant to subsection (1) of this section. Further evidence upon the points specified in such questions may be submitted by the contestor, the contestee, or both, in such contest. The administrative law judge may take and consider such additional evidence but shall limit its findings of fact to the questions certified.

(4) Any issues of law or findings of fact decided in a prior judicial proceeding that affect a party that contests an election for state senator or representative pursuant to section 1-11-208 shall not be conclusive upon an administrative law judge conducting fact finding or making recommendations pursuant to this section.

(5) The administrative law judge shall hold a hearing within twenty days after the date that questions were certified to the administrative law judge pursuant to subsection (1) of this section. The administrative law judge’s findings of fact and recommendations shall be completed not more than ten days after the date of the hearing. Such findings of fact and recommendations shall take precedence over all other business of the administrative law judge.

(6) (a) If the administrative law judge finds that, based on a preponderance of the evidence, an accurate and verifiable vote count can be determined in the contested district showing that a person had the highest number of votes cast in the district for the contested state senate or state house of representatives seat, the administrative law judge shall make recommendations to the house that certified the questions, including, but not limited to, that such person be seated as the senator or representative from the contested district.

(b) If the administrative law judge finds that, based on a preponderance of the evidence, irregularities in the votes cast or counted in the district for the contested state senate or state house of representatives seat both prevented an accurate and verifiable vote count and may have directly affected the outcome of the election, the administrative law judge shall make recommendations to the house that certified the questions, including, but not limited to, that such house further resolve the election contest or call a special legislative election pursuant to section 1-11-303.

(7) The administrative law judge shall transmit all the files and records of the proceedings to the presiding officer of the house in which the contest for senator or representative was filed.

(8) The administrative law judge’s findings of fact and recommendations shall be final and not be subject to review by any other court.

(9) Upon receipt of such findings of fact and recommendations, the house in which the contest for senator or representative arose may take appropriate action, including, but not limited to:

(a) A trial of the election contest;

(b) Declaration of the duly elected member in the contested district in accordance with the findings of the administrative law judge; or

(c) Adoption of a resolution pursuant to section 1-11-302 calling for a special legislative election.

 

 

Source: L. 99: Entire section added, p. 1385, § 3, effective June 4.L. 2005: (1) amended, p. 853, § 6, effective June 1.

 

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 [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.

Definition [Secretary]

The Colorado secretary of state. C.R.S. § 1-1.5-102.

Definition [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.