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1-4-909. Protest of designations and nominations

Overview of Statute

A verified petition will be deemed valid unless a petition for review of validity[1] is filed within five days of the issuance of a sufficient statement. If the petition is found to be insufficient, the candidate must request review within five days. This section does not apply to any nomination made at a primary election.

[1] C.R.S. § 1-1-113: Guidelines for review of petitions

Statute

(1) A petition or certificate of designation or nomination that has been verified and appears to be sufficient under this code shall be deemed valid unless a petition for a review of the validity of the petition pursuant to section 1-1-113 is filed with the district court within five days after the election official’s statement of sufficiency is issued or, in the case of a certificate of designation, within five days after the certificate of designation is filed with the designated election official.

(1.5) If the election official determines that a petition is insufficient, the candidate named in the petition may petition the district court within five days for a review of the determination pursuant to section 1-1-113.

(2) This section does not apply to any nomination made at a primary election.

 

Source: L. 92: Entire part R&RE, p. 690, § 7, effective January 1, 1993.L. 93: (1) amended, p. 1407, § 35, effective July 1.L. 95: (1) amended, p. 833, § 37, effective July 1.L. 2001: (1) amended, p. 1002, § 6, effective August 8.L. 2007: (1) amended and (1.5) added, p. 1971, § 10, effective August 3.

Editor’s note: This section is similar to former § 1-4-901 as it existed prior to 1992.

Cross references: For designation of candidates by assembly, see § 1-4-601; for designation of party candidates by petition, see § 1-4-603; for nomination of candidates by convention, see § 1-4-701.
 
ANNOTATION
 
I. General Consideration.
II. Apparent Conformity.
III. Proceedings Summary.
IV. Jurisdiction.
V. Review.
 
I.GENERAL CONSIDERATION.

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

Failure to pursue remedies under the objection provision does not constitute waiver of the right of an elector to contest the eligibility of one to be a candidate of his political party. Ray v. Mickelson, 196 Colo. 325, 584 P.2d 1215 (1978).
 
II.APPARENT CONFORMITY.

The secretary of state, in the absence of objection, is not vested with authority to refuse to certify a nomination because he has some objection to it for some substantive reason. Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902).

He may, on his own motion, refuse to file a certificate, based on some formal ground. Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902).

But if it is “in apparent conformity” with the applicable provisions the secretary may not, of his own motion, and in the absence of some objection based upon matters of substance, refuse to certify the nomination. Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902).

The law regards certificates of nomination as having been filed where the parties presenting them did all that was possible in complying with the designation and nomination provision even though the secretary of state refused to file the certificate. Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902).

The objection provision does not contemplate that void certificates of nomination can be cured or amended so as to make them valid after the time for filing such certificates of nomination has expired. O’Connor v. Smithers, 45 Colo. 23, 99 P. 46 (1908).
 
III.PROCEEDINGS SUMMARY.

The formalities which are required in ordinary civil actions need not be strictly observed in proceedings based on objections to designations and nominations. Phillips v. Curley, 28 Colo. 34, 62 P. 837 (1900).
 
IV.JURISDICTION.

The filing officers in the first instance and the courts upon review have jurisdiction to determine the regularity of party conventions and the claims of rival factions of the same political party to have their nominees placed on the official ballot. Leighton v. Bates, 24 Colo. 303, 50 P. 856, 50 P. 858 (1897); Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897); Whipple v. Owen, 24 Colo. 319, 50 P. 861 (1897); McCoach v. Whipple, 24 Colo. 379, 51 P. 164 (1897); Whipple v. Broad, 25 Colo. 407, 55 P. 172 (1898); Whipple v. Wheeler, 25 Colo. 421, 55 P. 188 (1898); Spencer v. Maloney, 28 Colo. 38, 62 P. 850 (1900).

The decision of the filing officer as to formal matters in a certificate of nomination is final. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

But his decisions of matters of substance are reviewable by lower courts. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

And when reviewed by a lower court in the manner prescribed, the decision of such lower court is final. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Subject only to the power of the supreme court, in its discretion, to review summarily the judicial proceeding below. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).
 
V.REVIEW.

A review is ordinarily had of record only, and as made by the lower tribunal. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Yet the review may not be so limited. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Because of accompanying or explanatory words, the review may be enlarged so as to embrace the taking of additional evidence, or practically to constitute a trial de novo. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

The review in the trial courts contemplated by the objection provision was such as the section on settlement of controversies provided. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

And it is clear that the provision for settlement of controversies contemplates the taking of evidence where the issues require it. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

The objection provision does not contemplate a review in supreme court of the same character as that provided for in county or district court. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Review in the supreme court is to be upon the record as made in the lower court. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Decision of trial court will not be disturbed except for strong and persuasive reasons. Since the decision of the trial court is final, that decision should not be disturbed except for strong and persuasive reasons. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

The supreme court should interfere if the trial court acts without jurisdiction, or in excess thereof, or acts arbitrarily, or grossly abuses its discretion. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Supreme court may in its discretion accept or reject an appeal with respect to nominations of candidates, and if it elects to accept the appeal, it may proceed in a summary way to dispose of it. In re Weber, 186 Colo. 61, 525 P.2d 465 (1974).

The matter of review by the supreme court, in an action to compel a town clerk to accept and file certificate of nomination and to certify and have printed on the official ballot the names of certain candidates, is entirely discretionary with the court. Luedke v. Todd, 109 Colo. 326, 124 P.2d 932 (1942).

Objection to petition not raised before county clerk cannot be raised on review. In a proceeding to protest the placing of nominations upon the official ballot, an objection that the petition failed to show the authority of the petitioner to make the protest, if not raised before the county clerk, cannot be raised on review. Phillips v. Curley, 28 Colo. 34, 62 P. 837 (1900).

In order to invoke the appellate jurisdiction of the supreme court, in the exercise of its discretion to review the proceedings of the lower court determining the validity of objections to certificates of nomination, a certified copy of the record and judgment of the trial court, or the material parts thereof, sufficient to present the questions relied upon, with a brief petition stating the nature of the controversy, the points at issue, and the errors relied upon, should be filed in the supreme court. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

A motion should then be made, based upon this petition, asking the court to exercise its appellate jurisdiction, specifying time and place of hearing of the application. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

And notice of the motion should be served upon the opposing party. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

In an action to compel a county clerk to receive and file nominations for county offices which was refused by him on the ground that no election for such offices could be held at the ensuing election, where in the absence of one of the judges of the supreme court the other two disagree as to whether the court should exercise its discretion to review the judgment of the lower court even if it has jurisdiction to do so, the proceeding must be dismissed and it is unnecessary to determine whether or not the court has jurisdiction to review the judgment of the lower court. Beach v. Berdel, 31 Colo. 505, 74 P. 1129 (1903).

District judge was interested in the result and disqualified to try cause. Where a list of nominations for county officers filed with the county clerk was protested on the ground that the party name assumed was an infringement on the name of another political party and tended to deceive the voters, a district judge who had been nominated under the same party name and the nomination filed with the secretary of state was interested in the result and disqualified to try the cause, although the judgment in the cause would not directly affect his own nomination, since it involved the determination of a question which if raised in the proper tribunal would determine the validity of his own nomination on the ticket. Phillips v. Curley, 28 Colo. 34, 62 P. 837 (1900).

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 [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 [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.