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Colorado > Colorado Electoral Code > Initiative And Referendum

1-40-117. Statement of sufficiency – statewide issues

Statute

(1) After examining the petition, the secretary of state shall issue a statement as to whether a sufficient number of valid signatures appears to have been submitted to certify the petition to the ballot.

(2) If the petition was verified by random sample, the statement shall contain the total number of signatures submitted and whether the number of signatures presumed valid was ninety percent of the required total or less or one hundred ten percent of the required total or more.

(3) (a) If the secretary declares that the petition appears not to have a sufficient number of valid signatures, the statement issued by the secretary shall specify the number of sufficient and insufficient signatures. The secretary shall identify by section number and line number within the section those signatures found to be insufficient and the grounds for the insufficiency. Such information shall be kept on file for public inspection in accordance with section 1-40-118.

(b) In the event the secretary of state issues a statement declaring that a petition, having first been submitted with the required number of signatures, appears not to have a sufficient number of valid signatures, the designated representatives of the proponents may cure the insufficiency by filing an addendum to the original petition for the purpose of offering such number of additional signatures as will cure the insufficiency. No addendum offered as a cure shall be considered unless the addendum conforms to requirements for petitions outlined in sections 1-40-110, 1-40-111, and 1-40-113 and unless the addendum is filed with the secretary of state within the fifteen-day period after the insufficiency is declared and unless filed with the secretary of state no later than three months and three weeks before the election at which the initiative petition is to be voted on. All filings under this paragraph (b) shall be made by 3 p.m. on the day of filing. Upon submission of a timely filed addendum, the secretary of state shall order the examination and verification of each signature on the addendum. The addendum shall not be available to the public for a period of up to ten calendar days for such examination. After examining the petition, the secretary of state shall, within ten calendar days, issue a statement as to whether the addendum cures the insufficiency found in the original petition.

 

 

Source: L. 93: Entire article amended with relocations, p. 687, § 1, effective May 4.L. 2009: (3)(b) amended, (HB 09-1326), ch. 258, p. 1176, § 13, effective May 15.L. 2011: (3)(b) amended, (HB 11-1072), ch. 255, p. 1104, § 5, effective August 10.

 

Editor’s note: This section is similar to former § 1-40-109 as it existed prior to 1993.

Cross references: For the legislative declaration in the 2011 act amending subsection (3)(b), see section 1 of chapter 255, Session Laws of Colorado 2011.
 
ANNOTATION
 
I. General Consideration.
II. Prima Facie Evidence Signatures Genuine.
III. Amendment and Withdrawal of Petition.
IV. Supplements to the Petition.
 
I.GENERAL CONSIDERATION.

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.
 
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 primafacie 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 fifteen 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).
 
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 [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: 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: 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.