1-11-215. Recount in contests for county and nonpartisan elections

Overview of Statute

If, at trial of any election contest as provided in section 1-11-214 and this section, the statement or counterstatement alleges an error in the abstract of votes cast sufficient to change the result, the district judge has the power to order a recount of the ballots cast or the votes tabulated in the precincts in which the alleged error was made. The court may also require the production before it of witnesses, documents, records, and other evidence as may have or contain information regarding the legality of any vote cast or counted for either of the contesting candidates or a ballot issue or ballot question, or concerning the correct number of votes cast for a candidate or a ballot issue or ballot question. The court may order the returns corrected in accordance with the evidence presented and the court’s findings.

Source: L. 92: Entire article R&RE, p. 792, § 14, effective January 1, 1993.L. 94: Entire section amended, p. 1178, § 67, effective July 1.L. 99: Entire section amended, p. 491, § 21, effective July 1.

Editor’s note: This section is similar to former § 1-11-212 as it existed prior to 1992.
 
ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Contestor has no absolute and unqualified right to have ballot boxes opened and a recount of ballots. Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925).

Rather, before such an order can be properly made, there must be some preliminary evidence supporting the alleged charges. Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925).

And then the matter is within the sound legal discretion of the trial court. Kindel v. Le Bert, 23 Colo. 385, 48 P. 641, 58 Am. St. R. 234 (1897); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925); Harper v. City of Pueblo, 109 Colo. 411, 126 P.2d 339 (1942).

In addition, the exercise of such discretion, when within the limits of the constitution and statutes, is final on review when wisely exercised. Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925); Winters v. Pacheco, 88 Colo. 105, 292 P. 106l (1930).

Ballot boxes should not be ordered open until some positive proof is offered to show that the election returns are not justified by the ballots in the ballot boxes. Winters v. Pacheco, 88 Colo. 105, 292 P. 1061 (1930).

And definite allegations of fraud or allegations that a recount will change the result, and a prima facie showing thereof, are essential for a recount. Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Harper v. City of Pueblo, 109 Colo. 411, 126 P.2d 339 (1942).

For, in the absence of a definite and specific assertion, no recount is allowed. Harper v. City of Pueblo, 109 Colo. 411, 126 P.2d 339 (1942).

But when this preliminary proof is offered, it would be a gross abuse of discretion for a court to deny contestor the right to substantiate his cause by documentary evidence. Winters v. Pacheco, 88 Colo. 105, 292 P. 1061 (1930).

And since the ballot itself is the best evidence, with all other secondary, it is idle to require witnesses to testify as to the illegibility of a ballot which can be produced and thereby refute or confirm their statements with reference to it. Winters v. Pacheco, 88 Colo. 105, 292 P. 106l (1930).

Thus, where two witnesses testified that they had seen a questioned ballot and that it was absolutely illegible, this was sufficient proof to justify an order of court for the opening of the ballot box and production of the ballot where the result of the election depended on such. Winters v. Pacheco, 88 Colo. 105, 292 P. 1061 (1930).

Also, comparison of ballots with the poll lists is allowed in connection with evidence. Upon the production of evidence tending to show error, mistake, fraud, malconduct, or corruption on the part of the election board, or any of its members, in the matter of receiving, numbering, depositing, or canvassing the ballots, or other illegal or irregular conduct in respect thereto, an inspection and comparison of the ballots with the poll lists should be allowed in connection with the oral evidence in reference thereto. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).

Charge in answer sufficient to entitle contestor to recount as matter of course. Where the answer charged that the boxes had been tampered with and had not been preserved by the county clerk in the manner provided by law, the contestor assumed the burden of proving that they had not been tampered with or molested, that they were in the same condition as when received by the clerk, and under the issues as made by the pleadings, the contestor was entitled to a recount of these ballots as a matter of course. Wiley v. McDowell, 55 Colo. 236, 133 P. 757 (1913).