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Colorado > Colorado Electoral Code > Initiative And Referendum

1-40-123. Counting of votes – effective date – conflicting provisions

Statute

The votes on all measures submitted to the people shall be counted and properly entered after the votes for candidates for office cast at the same election are counted and shall be counted, canvassed, and returned and the result determined and certified in the manner provided by law concerning other elections. The secretary of state who has certified the election shall, without delay, make and transmit to the governor a certificate of election. The measure shall take effect from and after the date of the official declaration of the vote by proclamation of the governor, but not later than thirty days after the votes have been canvassed, as provided in section 1 of article V of the state constitution. A majority of the votes cast thereon shall adopt any measure submitted, and, in case of adoption of conflicting provisions, the one that receives the greatest number of affirmative votes shall prevail in all particulars as to which there is a conflict.

 

Source: L. 93: Entire article amended with relocations, p. 691, § 1, effective May 4.L. 95: Entire section amended, p. 436, § 17, effective May 8.

 

Editor’s note: This section is similar to former § 1-40-113 as it existed prior to 1993.
 
ANNOTATION

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

This section enhances rather than limits the right of the people to amend the Colorado constitution. In re Interrogatories Propounded by Senate Concerning House Bill 1078, 189 Colo. 1, 536 P.2d 308 (1975).

Conflicting constitutional amendments. Amendment nos. 6 and 9, proposed constitutional amendments relating to reapportionment on the ballot at the general election held on November 5, 1974, are in conflict where the former, a housekeeping amendment, among many other things, provides that the general assembly is to establish district boundaries and that there is to be no more than a five percent population deviation from the mean in each district while the latter, dealing exclusively with reapportionment, provides for a commission to promulgate a plan of reapportionment which the supreme court either approves or, in effect, orders modified as required by the court and for a maximum five percent deviation between the most populous and the least populous district in each house. In re Interrogatories Propounded by Senate Concerning House Bill 1078, 189 Colo. 1, 536 P.2d 308 (1975).

One with most votes prevails. In order to carry out the meaning and purpose of § 1 of art. V, Colo. Const., the one of two inconsistent amendments which received the most votes must prevail. That, in the view of the supreme court, is what the “republican” form of government means with respect to the right of the people to amend the constitution. In re Interrogatories Propounded by Senate Concerning House Bill 1078, 189 Colo. 1, 536 P.2d 308 (1975).

It is the duty of the court, whenever possible, to give effect to the expression of the will of the people contained in constitutional amendments adopted by them. In re Interrogatories Propounded by the Senate Concerning House Bill 1078, 189 Colo. 1, 536 P.2d 308 (1975); Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1 (Colo. 1993).

When two constitutional amendments are simultaneously adopted, the court should not resort to rules that give effect to one provision at the expense of the other unless there is an irreconcilable, material, and direct conflict between the two amendments. Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1 (Colo. 1993).

When constitutional amendments enacted at the same election are in such irreconcilable conflict, the one which receives the greatest number of affirmative votes shall prevail in all particulars as to which there is a conflict. Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1 (Colo. 1993).

The test for the existence of a conflict is: Does one authorize what the other forbids or forbid what the other authorizes? Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1 (Colo. 1993).
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.

Cases

colorado Cases

Case Name: In re Interrogatories Propounded by Senate Concerning House Bill 1078

Citation: 189 Colo. 1, 536 P.2d 308 (1975)

Year: 1975

Case URL: https://www.ravellaw.com/opinions/cac5edcff3085672acd472805ff8f698

Case Summary: Holding that an amendment passed by voters related to reappointment violated the federal constitution because it usurped the power of the state reappointment commission to draw district boundary lines. The court also upheld a related amendment that allowed the state supreme court to veto proposed reapportionment plans. The structure of reapportionment created by the second amendment did not violate the separation of powers.

Case Name: Submission of Interrogatories on Senate Bill 93-74

Citation: 852 P.2d 1 (Colo. 1993)

Year: 1993

Case URL: https://www.ravellaw.com/opinions/df32c8aefc08042da2ecdbf1296bd3b6

Case Summary: Providing guidance to the General Assembly of the State of Colorado concerning a senate bill intended to reconcile two amendments passed by voters related to the state lottery.

Out-of-State Cases

Federal Cases