Topics
Code Section
colorado > Colorado Electoral Code > Elections - Access To Ballot By Candidates

1-4-802. Petitions for nominating minor political party and unaffiliated candidates for a partisan office

Overview of Statute

Nominations for candidates for partisan public offices may be made by petition. Petitions for the office of president and vice president, for statewide office, for congressional district office, for the office of a member of the general assembly, for district attorney, and for county office must be signed by eligible electors residing in the district or political subdivision in which the officer is to be elected. Unaffiliated candidates cannot start petitioning more than 173 days before the general election. Minor political party candidates cannot start until the first Monday in February of an election year. The statute also provides the number of signatures necessary for each elected office.

Statute

(1) Candidates for partisan public offices to be filled at a general or congressional vacancy election who do not wish to affiliate with a major political party may be nominated, other than by a primary election or a convention, in the following manner:

(a) A petition for nominating minor political party or unaffiliated candidates shall be prepared, indicating the name and address of any candidate for the office to be filled. The petition shall indicate the name of the minor political party or designate in not more than three words the political or other name selected by the signers to identify an unaffiliated candidate. No name of any political party shall be used, in whole or in part, to identify an unaffiliated candidate.

(b) Each petition shall contain only the name of one candidate for one office; except that any petition for a candidate for president of the United States shall also include a candidate for vice president, and a candidate for governor shall also include a candidate for lieutenant governor, and together they shall be considered joint candidates at the general election. In the case of nominations for electors of president and vice president of the United States, the names of the joint candidates may be added to the political or other name designated on the petition.

(c) Every petition for the office of president and vice president, for statewide office, for congressional district office, for the office of member of the general assembly, for district attorney, and for county office shall be signed by eligible electors residing within the district or political subdivision in which the officer is to be elected. Except as otherwise provided in subsection (2) of this section, the number of signatures of eligible electors on a petition shall be as follows:

(I) At least five thousand for the office of president and vice president;

(II) The lesser of one thousand or two percent of the votes cast for all candidates for that office in the most recent general election for any statewide office;

(III) The lesser of eight hundred or two percent of the votes cast in the congressional district in the most recent general election for the office of member of the United States house of representatives, member of the state board of education for a congressional district, or member of the board of regents of the university of Colorado for a congressional district;

(IV) The lesser of six hundred or two percent of the votes cast in the senate district in the most recent general election for the office of member of the state senate;

(V) The lesser of four hundred or two percent of votes cast in the house district in the most recent general election for the office of member of the state house of representatives;

(VI) The lesser of six hundred fifty or two percent of the votes cast in the district in the most recent general election for the office of district attorney; and

(VII) The lesser of seven hundred fifty or two percent of the votes cast for all candidates for that office in the most recent general election for any county office.

(d) (I) No petition to nominate an unaffiliated candidate, except petitions for candidates for vacancies to unexpired terms of representatives in congress and for presidential electors, shall be circulated or any signatures obtained thereon earlier than one hundred seventy-three days before the general election.

(II) No petition to nominate a minor political party candidate shall be circulated nor any signatures obtained thereon earlier than the first Monday in February in the general election year.

(e) The petition to nominate an unaffiliated candidate may designate or appoint upon its face one or more unaffiliated registered electors as a committee to fill vacancies in accordance with section 1-4-1002 (4) and (5). However, in the case of a petition for the office of state senator or state representative, the petition shall designate or appoint upon its face three or more unaffiliated registered electors as a committee to fill vacancies in accordance with section 1-4-1002 (4) and (5) and section 1-12-203.

(f) (I) Except as provided by subparagraph (II) of this paragraph (f), petitions shall be filed no later than 3 p.m. on the one hundred seventeenth day before the general election or, for a congressional vacancy election, no later than 3 p.m. on the twentieth day after the date of the order issued by the governor.

(II) Petitions to nominate candidates of minor political parties shall be filed no later than eighty-five days before the primary election as specified in section 1-4-101.

(g) (I) For congressional vacancy elections, no person shall be placed in nomination by petition unless the person is an eligible elector and was registered as affiliated with a minor political party or as unaffiliated, as shown on the registration books of the county clerk and recorder, for at least twelve months prior to the last date the petition may be filed.

(II) For general elections, no person shall be placed in nomination by petition unless the person is an eligible elector of the political subdivision or district in which the officer is to be elected and unless the person was registered as affiliated with a minor political party or as unaffiliated, as shown on the registration books of the county clerk and recorder, no later than the first business day of the January immediately preceding the general election for which the person desires to be placed in nomination; except that, if such nomination is for a nonpartisan election, the person shall be an eligible elector of the political subdivision or district and be a registered elector, as shown on the registration books of the county clerk and recorder, on the date of the earliest signature on the petition.

(2) Where the electors of the county have voted to increase the membership of the board of county commissioners from three to five pursuant to section 30-10-306.5, C.R.S., or to decrease the membership of the board from five to three pursuant to section 30-10-306.7, C.R.S., for the next two general elections immediately following an election at which the voters have approved a change in the membership of the board, the signature requirements for the petition to select candidates who do not wish to affiliate with a major political party are as follows:

(a) Where any one or more commissioners to be elected to the board of county commissioners will be voted on by voters of the whole county, every petition must require signers equal in number to the lesser of either seven hundred fifty signers or two percent of the average of all votes cast in each county commissioner district for which there was a race on the ballot during the most recent general election;

(b) Where any one or more commissioners to be elected to the board of county commissioners will be voted on only by the electors residing in a particular county commissioner district, every petition must require signers equal in number to the lesser of either:

(I) Seven hundred fifty signers; or

(II) The number realized by first determining two percent of the average of all votes cast in each county commissioner district for which there was a race on the ballot during the most recent general election, and then dividing that number by the total number of commissioner districts in the county where commissioners are voted on only by the electors residing in a district, whether three or five.

(3) Following the first two general elections that are conducted after a change in the membership of the board of county commissioners pursuant to section 30-10-306.5 or 30-10-306.7, C.R.S., the signature requirements for a petition for a county commissioner candidate who does not wish to affiliate with a major political party must follow the procedures specified in subparagraph (VI) of paragraph (c) of subsection (1) of this section.

 

Source: L. 92: Entire part R&RE, p. 685, § 7, effective January 1, 1993.L. 95: (1)(a), (1)(c), (1)(d), (1)(e), (1)(f), and (1)(g) amended, pp. 861, 885, 830, § § 116, 2, 29, effective July 1.L. 96: IP(1) amended, p. 1739, § 21, effective July 1.L. 99: (1)(d) and (1)(f) amended, p. 764, § 25, effective May 20.L. 2003: IP(1), (1)(a), (1)(d), (1)(e), (1)(f), and (1)(g) amended, p. 1310, § 7, effective April 22.L. 2005: (1)(d) and (1)(f) amended, p. 1399, § 17, effective June 6; (1)(d) and (1)(f) amended, p. 1434, § 17, effective June 6.L. 2010: (1)(g) amended, (HB 10-1271), ch. 324, p. 1503, § 5, effective May 27.L. 2011: (1)(d) and (1)(f) amended, (SB 11-189), ch. 243, p. 1064, § 10, effective May 27.L. 2012: (1)(b), (1)(d)(I), and (1)(f)(I) amended, (HB 12-1292), ch. 181, p. 680, § 13, effective May 17.L. 2013: IP(1)(c) amended and (2) and (3) added, (SB 13-243), ch. 268, p. 1411, § 2, effective May 24.

Editor’s note: This section is similar to former § 1-4-801 as it existed prior to 1992.

Cross references: For filling vacancies in a nomination for an unaffiliated candidate, see § 1-4-1002 (4) and (5).
 
ANNOTATION
 
I. General Consideration.
II. Purpose.
III. Requisites for Nomination.
IV. Requirements of Section.
V. Filing.
VI. Protection of Name of Party.
 
I.GENERAL CONSIDERATION.

Law reviews. For article, “Constitutional Law”, which discusses a Tenth Circuit decision dealing with minor party ballot access, see 62 Den. U. L. Rev. 101 (1985). For article, “Constitutional Law”, which discusses Tenth Circuit decisions dealing with minor party ballot access, see 63 Den. U. L. Rev. 247 (1986).

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

The provision for nominating an independent candidate by petition shall receive such construction as will afford to the elector the greater liberty in casting his ballot. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).

An appeal from the denial of an injunction to place a candidate’s name on the ballot for the general election will be dismissed as moot where the election has come and gone. Thournir v. Buchanan, 710 F.2d 1461 (10th Cir. 1983).
 
II.PURPOSE.

The purpose of providing for nomination by petition is to permit electors to make independent nominations for public offices by petition under a name they may lawfully choose, and to vote for such nominees by that designation. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).

In order to give the electors the widest possible latitude in naming candidates, candidates can be nominated by petition direct, without submitting their candidacy to a vote at the primary election. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).
 
III.REQUISITES FOR NOMINATION.

No violation of equal protection. Requirement that each nominating petition circulated by an individual or political organization contain the name of a single candidate only does not violate equal protection. Nat’l Prohibition Party v. State of Colo., 752 P.2d 80 (Colo. 1988); Colo. Libertarian Party v. Sec’y of State, 817 P.2d 998 (Colo. 1991), cert. denied, 503 U.S. 985, 112 S. Ct. 1670, 118 L. Ed. 2d 390 (1992).

Application of that portion of subsection (1)(g) requiring a congressional candidate to be an eligible elector of the congressional district in which he seeks election violates the qualifications clause of the U.S. constitution. Campbell v. Buckley, 46 F. Supp. 2d 1115 (D. Colo. 1999), aff’d, 233 F.3d 1229 (10th Cir. 2000), cert. denied, 532 U.S. 973, 121 S. Ct. 1605, 149 L. Ed. 2d 471 (2001).

The requirement of subsection (1)(i) (now (1)(g)) that a person be registered as “unaffiliated” for a period of one year as a prerequisite for running for public office is constitutional. Thournir v. Meyer, 708 F. Supp. 1183 (D. Colo. 1989).

Legislative intent of subsection (1)(g) is clear: No unaffiliated candidate may be on the ballot unless registered as an unaffiliated voter at least 12 months prior to last date for filing applications. Conte v. Meyer, 882 P.2d 962 (Colo. 1994).

In order to make nominations by individuals two things are necessary: (1) The filing of a certificate with the proper officer substantially in the form required by law containing the requisite number of signatures of persons entitled to sign; and (2) an acceptance on the part of the candidates so named. O’Connor v. Smithers, 45 Colo. 23, 99 P. 46 (1908).

Unless the latter accept, they are not nominees, and are no more candidates, or affected by the petitions filed, than if none had ever been filed. O’Connor v. Smithers, 45 Colo. 23, 99 P. 46 (1908).
 
IV.REQUIREMENTS OF SECTION.

The electors are not required to state anything in the petition regarding the political affiliation of the nominees. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).

The subscriber’s character as a voter is established by affidavit; no more can be required. Benson v. Gillespie, 62 Colo. 206, 161 P. 295 (1916).

One who has accepted the nomination of a political party may be nominated by petition of independent voters, assuming a different party designation. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).

The unaffiliation requirement of subsection (1)(i) (now (1)(g)) is not unconstitutional because it serves the compelling state interest of protecting the integrity of Colorado’s balloting process and it does not unnecessarily or unfairly impinge on a prospective candidate’s right of access to the ballot. Colo. Libertarian Party v. Sec’y of State, 817 P.2d 998 (Colo. 1991), cert. denied, 503 U.S. 985, 112 S. Ct. 1670, 118 L. Ed. 2d 390 (1992).
 
V.FILING.

The words “not less than” do not require full clear days. The words “not less than” prefixed to the number of days specified in the provision for nomination by petition do not require full clear days. The time limitation is to be interpreted as if the words had been omitted. Luedke v. Todd, 109 Colo. 326, 124 P.2d 932 (1942).

Thus a certificate of nomination filed with the town clerk on February 21st would still be in time for a town election to be held on April 7th. Luedke v. Todd, 109 Colo. 326, 142 P.2d 932 (1942).

Secretary of state or deputy may pass on validity of petition. Although petitions for nominating independent candidates for offices to be voted on by the entire state are properly filed with the secretary of state, the secretary of state is not vested solely with the decision-making power in passing upon the validity of objections to such petition because the secretary of state has the power to appoint a deputy to act for the secretary if the secretary deems it necessary, and the deputy shall have full authority to act in all things relating to the office. Olshaw v. Buchanan, 186 Colo. 362, 527 P.2d 545 (1974).
 
VI.PROTECTION OF NAME OF PARTY.

Nominations by petitions protected in same manner as nominations by convention. The nomination, by petition, of the candidates of an organized party, authorized by such party, are to be protected to the same extent, and in the same manner, as nominations made by convention, even though such party have not sufficient strength to make nominations by convention. Philips v. Smith, 25 Colo. 456, 55 P. 184 (1898); McBroom v. Brown, 53 Colo. 412, 127 P. 957 (1912).

The authorized use by others of the name of such party, in a petition making nominations for an approaching election, even though prior in point of time to a certificate presented by the proper authorities of the party, will not prevent the filing of the latter. Philips v. Smith, 25 Colo. 456, 55 P. 184 (1898); McBroom v. Brown, 53 Colo. 412, 127 P. 957 (1912).

Name may not be appropriated by others. The name adopted by a new political party placed on a ballot by petition is not subject to appropriation by other petitioners. McBroom v. Brown, 53 Colo. 412, 127 P. 957 (1912).

Section unenforceable. In light of the Colorado Supreme Court decision in McBroom v. Brown, 53 Colo. 412, 127 P. 957 (1912), this section which distinguishes between political parties and political organizations by only allowing parties to prevent unendorsed candidates from running under the party name is unenforceable. Baer v. Meyer, 577 F. Supp. 838 (D. Colo. 1984), aff’d in part and rev’d in part on other grounds, 728 F.2d 471 (10th Cir. 1984).

Definition [Circulated]

Presented to an elector for the collection of a signature and other information required by this article. C.R.S. § 1-12-100.5.

Definition [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.

Definition [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.

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 [Political organization]

Any group of registered electors who, by petition for nomination of an unaffiliated candidate as provided in section 1-4-802, places upon the official general election ballot nominees for public office. C.R.S. § 1-1-104.

 

Alternate Meaning for Art. 45:

 

A political organization defined in section 527 (e) (1) of the federal “Internal Revenue Code of 1986”, as amended, that is engaged in influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any state or local public office in the state and that is exempt, or intends to seek any exemption, from taxation pursuant to section 527 of the internal revenue code. “Political organization” shall not be construed to have the same meaning as “political organization” as defined in section 1-1-104 (24) for purposes of the “Uniform Election Code of 1992”, articles 1 to 13 of this title.

 

C.R.S. § 1-45-103

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.

Definition [Secretary]

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

Definition [Committee]

The committee of signers described in section 1-12-108(2). C.R.S. § 1-12-100.5.

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.

Cases

colorado Cases

Case Name: Pease v. Wilkin

Citation: 53 Colo. 404, 127 P. 230 (1912)

Year: 1912

Case PDF: Pease v. Wilkin

Case Summary: Holding that a third-party may nominate a candidate already nominated by a major party in an election for a district court judgeship, if receiving a sufficient number of signatures.  

Case Name: Nat’l Prohibition Party v. State of Colo.

Citation: 752 P.2d 80 (Colo. 1988)

Year: 1988

Case URL: https://www.ravellaw.com/opinions/7d0aa5ba0e3a3ec829f994aaec8614e6

Case Summary: Upholding a signature requirement for third-party, or independent, candidates to petition for ballot access. The signature requirement was not particularly onerous, and helped to prevent overcrowding on a ballot.

Case Name: Colo. Libertarian Party v. Sec’y of State

Citation: 817 P.2d 998 (Colo. 1991)

Year: 1991

Case URL: https://www.ravellaw.com/opinions/315f350a104329b170e58e6ce31ff9ad

Case Summary: Holding that the unaffiliation requirement did not violate the right of political association or right to equal protection. A gubernatorial candidate, and the Libertarian party, challenged the constitutionality of the provision after the candidate was denied ballot access due to his party affiliation with the Republican party.  

Case Name: Conte v. Meyer

Citation: 882 P.2d 962 (Colo. 1994)

Year: 1994

Case URL: https://www.ravellaw.com/opinions/bc375509c0a40a5a5b7a2d04939a4ec9

Case Summary: Holding that petition nominating councilperson as independent candidate for state representative satisfied the legislative intent of the statute regarding the petition filing deadline; petition was both accurate and sufficient; and councilperson was an eligible candidate.

Case Name: O’Connor v. Smithers

Citation: 45 Colo. 23, 99 P. 46 (1908)

Year: 1908

Case URL: https://www.ravellaw.com/opinions/f3b5383ad8c560f6f34902303f7069f6

Case Summary: Court held in favor of the secretary of state in a contest involving objections to certificates of nomination. Contestors' complaint also failed to adhere to the required nomination procedure.

Case Name: Luedke v. Todd

Citation: 109 Colo. 326, 124 P.2d 932 (1942)

Year: 1942

Case URL: https://www.ravellaw.com/opinions/74ea41968e2f9d6437b2908724fc3004

Case Summary: Holding that the required timeframe for filing a certificate of nomination before a general election excluded election day but included the date of filing. Thus, the court should have accepted petitioner's certification of nomination.  

Case Name: Olshaw v. Buchanan

Citation: 527 P.2d 545 (Colo. 1974)

Year: 1974

Case URL: https://www.ravellaw.com/opinions/a347565b1b97d8752ed690a95c77dd64

Case Summary: Holding that decision-making power was not vested solely in the Secretary; under statute giving Secretary the power to appoint a deputy to have full authority to act in all things relating to the office, either the Deputy or the Secretary was to have full authority in a given case and not both; and since the Secretary had retained to herself the right to participate in the decision, the Secretary (who was absent during hearing) should have read and considered the evidence.

Case Name: McBroom v. Brown

Citation: 53 Colo. 412, 127 P. 957 (1912)

Year: 1912

Case URL: https://www.ravellaw.com/opinions/28bb3f1b8fdadfec1bb5afc6b9ddae74

Case Summary: Holding that a clerk must accept a certificate of nomination from candidates for county offices, despite the prior filing of a certificate with other names. The political party improperly filed the initial certificate, and the petitioning candidates were instead the proper candidates for nomination.  

Case Name: Philips v. Smith

Citation: 25 Colo. 456, 55 P. 184 (1898)

Year: 1898

Case URL: https://www.ravellaw.com/opinions/d2f99c81615cdd39d9f4615d77711700

Case Summary: Holding that a clerk must only accept a certificate of nomination approved by the party committee. In the dispute, the court denied an initial certificate of nomination when party committee official's subsequently filed an approved certification for the same nomination.  

Out-of-State Cases

Federal Cases

Case Name: Thournir v. Buchanan

Citation: 710 F.2d 1461 (10th Cir. 1983)

Federal Circuit Court: 10th Circuit Court

Year: 1983

Case URL: https://www.ravellaw.com/opinions/a42a3df003b0de2a2b709ec4e7c103a5

Case Summary: Holding that appeal would be dismissed as moot when plaintiff appealed an order refusing to grant a preliminary injunction ordering that her name be placed on the ballot when that election was over.

Case Name: Campbell v. Buckley

Citation: 46 F. Supp. 2d 1115 (D. Colo. 1999)

Federal District Court: District of Colorado

Year: 1999

Case URL: https://www.ravellaw.com/opinions/cb3148b4a82111667f6d4222afc9ebbc

Case Summary: Holding that statute imposing requirements for unaffiliated candidates' nominating petitions, including candidate's being registered to vote, violated the Qualifications Clause of the Constitution.

Regulations & Guidance