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Colorado > Colorado Electoral Code > Initiative And Referendum

1-40-116. Verification – ballot issues – random sampling

Statute

(1) For ballot issues, each section of a petition to which there is attached an affidavit of the registered elector who circulated the petition that each signature thereon is the signature of the person whose name it purports to be and that to the best of the knowledge and belief of the affiant each of the persons signing the petition was at the time of signing a registered elector shall be prima facie evidence that the signatures are genuine and true, that the petitions were circulated in accordance with the provisions of this article, and that the form of the petition is in accordance with this article.

(2) Upon submission of the petition, the secretary of state shall examine each name and signature on the petition. The petition shall not be available to the public for a period of no more than thirty calendar days for the examination. The secretary shall assure that the information required by sections 1-40-110 and1-40-111 is complete, that the information on each signature line was written by the person making the signature, and that no signatures have been added to any sections of the petition after the affidavit required by section 1-40-111 (2) has been executed.

(3) No signature shall be counted unless the signer is a registered elector and eligible to vote on the measure. A person shall be deemed a registered elector if the person’s name and address appear on the master voting list kept by the secretary of state at the time of signing the section of the petition. In addition, the secretary of state shall not count the signature of any person whose information is not complete or was not completed by the elector or a person qualified to assist the elector. The secretary of state may adopt rules consistent with this subsection (3) for the examination and verification of signatures.

(4) The secretary of state shall verify the signatures on the petition by use of random sampling. The random sample of signatures to be verified shall be drawn so that every signature filed with the secretary of state shall be given an equal opportunity to be included in the sample. The secretary of state is authorized to engage in rule-making to establish the appropriate methodology for conducting such random sample. The random sampling shall include an examination of no less than five percent of the signatures, but in no event less than four thousand signatures. If the random sample verification establishes that the number of valid signatures is ninety percent or less of the number of registered eligible electors needed to find the petition sufficient, the petition shall be deemed to be not sufficient. If the random sample verification establishes that the number of valid signatures totals one hundred ten percent or more of the number of required signatures of registered eligible electors, the petition shall be deemed sufficient. If the random sampling shows the number of valid signatures to be more than ninety percent but less than one hundred ten percent of the number of signatures of registered eligible electors needed to declare the petition sufficient, the secretary of state shall order the examination and verification of each signature filed.

 

 

Source: L. 93: Entire article amended with relocations, p. 686, § 1, effective May 4.L. 95: (1) amended, p. 435, § 12, effective May 8.

 


Editor’s note: This section is similar to former § 1-40-109 as it existed prior to 1993, and the former § 1-40-116 was relocated. For a detailed comparison, see the comparative tables located in the back of the index.
 
ANNOTATION
 
I. General Consideration.
II. Prima Facie Evidence Signatures Genuine.
III. Amendment and Withdrawal of Petition.
IV. Supplements to the Petition.
 
I. GENERAL CONSIDERATION.

Law reviews. For comment, “Buckley v. American Constitutional Law Foundation, Inc.: The Struggle to Establish a Consistent Standard of Review in Ballot Access Cases Continues”, see 77 Den. U. L. Rev. 197 (1999).

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

Subsection (1) is not unconstitutionally vague. The general reference to circulator affidavits in this section is controlled by the specific affidavit requirements in § 1-40-111(2). Am. Constitutional Law Found., Inc. v. Meyer, 870 F. Supp. 995 (D. Colo. 1994), aff’d in part and rev’d in part on other grounds, 120 F.3d 1092 (10th Cir. 1997), aff’d on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

The secretary of state is deemed to have complied with the 30-day requirement for verifying signatures when he or she conducts the random sampling and issues a statement determining the petition to be either sufficient or insufficient, even though the sampling is later found to be erroneous. The petition is not automatically deemed sufficient even though final determination of the sufficiency of the petition occurs outside of the thirty-day time frame. Buckley v. Chilcutt, 968 P.2d 112 (Colo. 1998).

If, based on a random sample, the secretary of state issues a good faith determination of insufficiency and a timely protest establishes that the petition contains more than 90percnt; but less than 110percnt; of the required signatures, the secretary of state is required to conduct a line-by-line examination of each signature. The results of the line-by-line count are subject to the protest and appeal process provided in § 1-40-118. Buckley v. Chilcutt, 968 P.2d 112 (Colo. 1998).
 
II.PRIMA FACIE EVIDENCE SIGNATURES GENUINE.

The statement in an affidavit attached to a petition for the initiation of a measure, that the signer “is a qualified elector”, is prima facie evidence that the signatures thereon are genuine and that the persons signing are electors. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938).

And the filing of a protest to the petition does not nullify this prima facie status nor relieve the protestants of the burden of establishing the insufficiency of the petition. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938).

Moreover, payment to circulators for procuring signatures held not to constitute fraud. A protest filed to a petition to initiate a measure, alleging fraud in the procurement of signatures, is not supported by the fact that circulators were paid a certain sum for signatures procured, there being nothing in the constitution or statutes prohibiting such practice. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938).
 
III. AMENDMENT AND WITHDRAWAL OF PETITION.

There is no provision permitting the amendment of a protest to a petition for the initiation of a measure after the expiration of the time allowed for filing the protest. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938).

The provision that a rejected petition for the initiation of a measure may be refiled “as an original petition” after amendment is to be construed, not that it must be refiled within the statutory time fixed for the initial filing of such petitions, but after being refiled it is to be considered “as an original petition”. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938).

Former subsection (2), which provided that a rejected petition may be amended and refiled as an original, did not subject a cured petition to the deadline set forth in Colo. Const. art. V, § 11 (2). Montero v. Meyer, 795 P.2d 242 (Colo. 1990) (decided under law in effect prior to 1989 amendment).

But where a petition for the initiation of a constitutional amendment is filed within the time fixed by statute, in the event of protest and rejection, the sponsors, at their election, are entitled to refile the petition when amended within the 15 days allowed by this section. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938).

This is true even though the refiling date may fall beyond the six-month period fixed by § 1-40-104 for the filing of original petitions. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938).

And there is no statutory authorization for a protest against the filing, or refiling after withdrawal, of a petition, to initiate a measure under the initiative and referendum. Brownlow v. Wunch, 102 Colo. 447, 80 P.2d 444 (1938).

Moreover, when a petition to initiate a measure under initiative and referendum is once withdrawn, it passes from official control and may be tampered with, amended, or destroyed. Robinson v. Armstrong, 90 Colo. 363, 9 P.2d 481 (1932); Brownlow v. Wunch, 102 Colo. 447, 80 P.2d 444 (1938).

If the petition is withdrawn, no review can thereafter be prosecuted because without the petition no court could adjudicate its sufficiency. Robinson v. Armstrong, 90 Colo. 363, 9 P.2d 481 (1932).

And an action to review an order of the secretary of state declaring a referendum petition insufficient cannot be left standing until the petition is amended and refiled, and later tried on an issue which did not exist when the cause was instituted. Robinson v. Armstrong, 90 Colo. 363, 9 P.2d 481 (1932).

An action for review cannot survive a withdrawal to be further prosecuted on amendment and refiling because if refiled it comes back “as an original petition”. Robinson v. Armstrong, 90 Colo. 363, 9 P.2d 481 (1932).

Therefore, the withdrawal of such a petition is equivalent to the dismissal of an action to review. Robinson v. Armstrong, 90 Colo. 363, 9 P.2d 481 (1932).

And a demand for its withdrawal and a suit in mandamus to enforce that demand must necessarily have the same effect. Robinson v. Armstrong, 90 Colo. 363, 9 P.2d 481 (1932).

Rule of the secretary of state regarding the procedure to determine the total number of valid petition signatures after submittal of additional signatures by addendum was authorized and is consistent with subsection (4). The rule increases the accuracy of sufficiency determination, enhances the integrity of the petition process, and assures compliance with the constitutionally prescribed minimum number of votes necessary to qualify for placement of a measure on the statewide ballot. Fabec v. Beck, 922 P.2d 330 (Colo. 1996).
 
IV.SUPPLEMENTS TO THE PETITION.

Section 1 of art. V, Colo. Const., fixes the time within which a petition must be filed with the secretary of state. Christensen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958).

And requires a certain number of signatures of legal voters to be affixed thereto before a matter can be submitted to the voters at an election. Christensen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958).

Section 1 of art. V, Colo. Const., is a self-executing constitutional provision. Christensen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958).

So where there are insufficient signatures when a petition is originally presented, and too late filing when the supplements are presented, the petition for an initiated amendment to the constitution is not filed in compliance with § 1 of art. V, Colo. Const. Christensen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958).

Because permitting the filing of late supplements containing enough signatures to satisfy the mandate of the constitution would be a circumvention of this fundamental document. Christensen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958).

Moreover, § 1 of art. V, Colo. Const., mandatorily forecloses the acceptance of tardy supplements to a petition for an initiated amendment to the constitution. Christensen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958).
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 [Circulator]

A person who presents to other persons for possible signature a petition for recall as described in this article. 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 [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.

Cases

Colorado Cases

Out-of-State Cases

Case State: colorado

Case Name: Brownlow v. Wunsch

Citation: 103 Colo. 120, 83 P.2d 775 (1938)

Year: 1938

Case URL: https://perma.cc/M4QQ-2T6L

Case Summary:

  1. Colo. Stat. Ann. ch. 86, § 6 (1935), states that, in case an initiative petition be declared insufficient in form or number of signatures of qualified electors, it may be withdrawn by a majority in number of the persons representing the signers of such petition, and may, within 15 days thereafter, be amended or additional names signed thereto as in the first instance, and refiled as an original petition. The amended petition here was timely refiled under § 6. The six-month limitation for the original petition did not apply.
  2. § 6 and Colo. Const. art. V, § 1 intended that the identity of the affiant as being a qualified elector might be established prima facie by a recital to that effect in the affidavit. It is certain under the express words of the Constitution that a petition so verified shall be prima facie evidence that the signatures thereon are genuine and the persons signing the same are electors.
  3. To the extent that the fraud charged in a protest of an initiative petition is premised on advertisement for circulators and the latter being paid for names procured, it is sufficient to say that this practice is not prohibited by either the Constitution or statutes.

Case State: colorado

Case Name: Brownlow v. Wunch

Citation: 102 Colo. 447, 80 P.2d. 444 (1938)

Year: 1938

Case URL: https://perma.cc/AE5L-4AR8

Case Summary: Holding that a party fearing injury due to a ballot initiative may not intervene. The secretary of state's actions were merely ministerial acts, which did not mandate consideration of the potential intervenor's grievances.

Case State: colorado

Case Name: Fabec v. Beck

Citation: 922 P.2d 330 (Colo. 1996)

Year: 1996

Case URL: https://www.ravellaw.com/opinions/c5be6ab4bb2b1b003a8eb6c361f9ef05

Case Summary: Holding that no administrative review of Secretary's determination concerning sufficiency of signatures is required before protestor can seek judicial relief; it was proper for Secretary to combine valid signatures determined by line-by-line examination of both the original petition and the addendum rather using a random sampling method; substantial compliance is standard applied in assessing effect of signature deficiencies; discrepancies in circulator's date of signing and date of notary acknowledgement made affected petitions invalid; petition that contained altered date next to circulator's signature was invalid; changes to circulator's signing date did not constitute substantial compliance; there was substantial compliance with notarized affidavit requirement; and there was substantial compliance with signature requirements despite omission of signing date from one circulator affidavit.

Case State: colorado

Case Name: Buckley v. Chilcutt

Citation: 968 P.2d 112 (Colo. 1998)

Year: 1998

Case URL: https://www.ravellaw.com/opinions/dd8316fd8f1d881282e84500d3974166

Case Summary: Holding that the secretary of state must certify the number of signatures on a ballot initiative for medical marijuana before including the initiative on a ballot. The sectary initially rejected the initiative because of an insufficient number of signatures. After the elector protested this decision, the secretary overturned its decision and agreed to place the initiative on the ballot while she conducted a line-by-line review.

Case State: colorado

Case Name: Robinson v. Armstrong

Citation: 90 Colo. 363, 9 P.2d 481 (1932)

Year: 1932

Case URL: https://perma.cc/RJK9-7C6G

Case Summary: Holding that a court may not review a petition after plaintiffs withdrew it. Also, judicial review became moot on another petition after the court held in favor of the plaintiff.

Case State: colorado

Case Name: Christensen v. Baker

Citation: 138 Colo. 27, 328 P.2d 951 (1958)

Year: 1958

Case URL: https://www.ravellaw.com/opinions/764ca5d1c85d130541e2bd38091ad01e

Case Summary: Holding that the secretary of state may reject a supplement to an initiative containing additional signatures. The plaintiffs' original initiative contained an insufficient number of signatures. The supplement contained enough additional signatures to meet the required number.

Federal Cases

Case Name: Am. Constitutional Law Found., Inc. v. Meyer

Citation: 120 F.3d 1092 (10th Cir. 1997)

Federal Circuit Court: 10th Circuit Court

Year: 1997

Case URL: https://www.ravellaw.com/opinions/3d3d9c8280768fc2c2d6774c4dc5632d

Case Summary: Holding that state statute requiring petition circulators to be registered electors unconstitutionally impinged on free expression; statute's requirement that circulators wear personal identification badges unconstitutionally infringed their First Amendment rights; and provisions of statute requiring disclosure of information regarding paid circulators violated First Amendment.

Case Name: Montero v. Meyer

Citation: 790 F. Supp. 1531 (D. Colo. 1992)

Federal District Court: District of Colorado

Year: 1992

Case URL: https://www.ravellaw.com/opinions/6b18bc3d0a11bbbb910c562633d94f68

Case Summary: Holding that a group of plaintiffs had a liberty right to challenge the title board's decision on an "English Only" amendment that was added to the Colorado Constitution by the vote of this state's citizens. Therefore, adding an amendment without proper notice violated the 14th Amendment of the United States Constitution. All registered electors also have an interest in the choice of language to be used in a private initiative's title, submission clause and summary.

Case Name: Am. Constitutional Law Found., Inc. v. Meyer

Citation: 870 F. Supp. 995 (D. Colo. 1994)

Federal District Court: District of Colorado

Year: 1994

Case URL: https://www.ravellaw.com/opinions/dc23c68714a93aa29fe2d6a464b267bb

Case Summary: Holding that requirement that petitions be circulated within a six-month period was not an undue restriction and was therefore legitimate.

Regulations & Guidance