Procedures & Remedies (CO)

Colorado Procedure & Remedies Tutorial

When deciding election law cases, the judiciary encounters procedural obstacles that are largely absent from other strains of legal dispute. For example, courts deciding election cases often must render decisions under pressing time constraints as democratic outcomes wait in limbo.[1] These temporal pressures necessitate time-sensitive procedural mechanisms not typically found in other types of litigation. Further, judicial immersion in electoral matters can embroil courts in inherently partisan processes that are traditionally within the purview of the elected branches. The judiciary’s entanglement in the “political thicket” inevitably stokes anxieties over judicial neutrality, and can seem incongruent with the constitutional norms of federalism and separation of powers.[2]

In response to these procedural difficulties, both legislatures and the judiciary have, in certain instances, tweaked procedural rules and doctrine to fit the electoral context. These responses range from statutory expedition of certain election law cases to adjustment of pleading rules. This tutorial reviews procedural distinction at the federal level and in Colorado developed to confront challenges posed by certain election cases. Part I looks at Voter Registration claims; Part II concerns Ballot Access laws; Part III examines Election Administration; Part IV centers on Redistricting litigation; Part V focuses on Election Contests; and Part VI reviews Campaign Finance enforcement procedure.

Readers should bear in mind that this tutorial is not intended as an exhaustive assessment of civil procedure in relation to the myriad topics within the umbrella of election law. Many important components of civil procedure are not covered. Instead, this tutorial aims to highlight instances when election law procedure deviates from rules and standards applicable in other areas.


Part I. Voter Registration

In the early 1990s, Congress passed the National Voter Registration Act (“NVRA”) to bolster participation in federal elections.[3] To promote expansion of voter registration lists, the NVRA requires states to implement processes allowing citizens to register to vote when applying for a driver’s license or government services, or through a mail-in application.[4] The Justice Department is authorized to bring civil suits in federal court against states and their political subunits to compel compliance with the NVRA.[5] Knowing and wilful violations of the act are subject to criminal prosecution, and applicable penalties include fines and up to five years imprisonment.[6]

The NVRA also authorizes private actions, though persons generally must try to resolve their grievance through administrative channels prior to filing suit, unless the violation occurs in the thirty days before a federal election.[7] Specifically, the NVRA requires that the aggrieved person notify a state’s chief election officer of an alleged violation and afford election officials some time to remedy the grievance. If state officials do not correct the violation in 90 days, or twenty days if within 120 days of a federal election, the complainant may initiate a civil action in federal district court.[8]

The procedures for bringing actions in Colorado state court related to voter registration track those of the NVRA. In Colorado, a person may file a complaint with the secretary of state alleging a violation of the state’s registration laws within sixty days of the alleged violation.[9] If the secretary concurs that a violation has occurred, the Colorado attorney general may bring a civil enforcement action in district court. If the attorney general does not bring an enforcement action within 120 days of the complaint’s filing, the complainant can sue in district court. Importantly, the complainant must initiate a civil action within a year of the alleged violation or he will lose his private right of action.[10]


Part II. Ballot Access

The Elections Clause of the U.S. Constitution empowers states to regulate the time, place, and manner of federal elections,[11] and a significant component of states’ electoral authority is the power to set ballot access qualifications.[12] Consequently, both candidates and parties have attacked the constitutionality of state ballot access laws, contending that ballot access requirements impermissibly burden associational and voting rights protected by the First and Fourteenth Amendments.

When considering constitutional challenges to ballot qualifications, courts balance “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments” against “the precise interests put forward by the State as justifications for the burden.”[13] Courts particularly focus on the degree to which ballot access statutes restrict political opportunity.[14] If a statute’s restrictive effect on ballot access is severe, the court will uphold the law only if it is “narrowly drawn to advance a state interest of compelling importance.”[15] Alternatively, “reasonable, nondiscriminatory restrictions” are typically upheld as furthering important state interests in avoiding voter confusion over overcrowded ballots and “protect[ing] the integrity of its political processes from frivolous or fraudulent candidacies.”[16] In general, courts uphold ballot access laws requiring a candidate to collect petition signatures equal to some modest percentage of the electorate,[17] prohibitions on multiparty nominations,[18] and sore loser statutes.[19] Conversely, courts have invalidated ballot laws demanding excessive filing fees[20] or an unreasonably large number of petition signatures.[21]

States have considerable latitude in setting ballot qualifications for state and local elections, and specific requirements often vary with the office sought. In Colorado, prospective candidates have two avenues for placement on the primary election ballot. First, political parties can nominate a candidate at an assembly where delegates select their preferred candidate through a vote.[22] Alternatively, candidates can gain access to the primary ballot by submitting a petition signed by a certain number of Colorado voters.[23] For general elections, minor party and unaffiliated candidates also gain ballot access through the petition process.[24]

State officials determine the sufficiency of all candidate petition filings.[25] A candidate whose petition is deemed insufficient can, within five days of the state official’s decision, request that a district court to review the determination of sufficiency.[26] Upon a showing of good cause, district courts can order state officials to place the petitioning candidate’s name on the ballot.[27] Following culmination of the district court proceedings, either party may appeal to the state supreme court within three days. Colorado’s supreme court has discretion to hear the case, and, if it declines review, the district court’s decision is final.[28]

Colorado permits anyone to protest a petition’s sufficiency in district court within five days of an election official’s issuance of a statement of sufficiency.[29] Either party may appeal the results of the district court proceedings to the supreme court within three days of the termination of district court proceedings.[30]


Part III. Election Administration

In the wake of the 2000 presidential election, Congress passed the Help America Vote Act (“HAVA”) to “establish minimum election administration standards for States and units of local government responsible for the administration of federal elections.”[31] Among its mandates, HAVA compels states to establish procedures for provisional voting; upgrade voting equipment and replace punch card and level voting systems; create electronic voter registration databases; and implement voter identification standards for first time voters.[32] The Act also created the Election Assistance Commission (“EAC”), which disperses federal funds to states and generally assists in furthering HAVA’s aims.[33]

HAVA has two enforcement mechanisms. First, the U.S. Attorney General’s office can bring civil actions against states and localities in federal district court to compel compliance with HAVA.[34] Second, while HAVA does not expressly allow private actions, the Act obliges states to formulate administrative complaint procedures for certain electoral grievances.[35] As part of HAVA’s mandates, states must make a final determination regarding a complaint within ninety days, or else undertake alternative dispute resolution to achieve resolution.[36]

While HAVA does not create an explicit private right of action, at least one federal appellate court has held that it grants a federal right to cast a provisional ballot that is enforceable against state officials through 42 U.S.C. § 1983.[37] On the other hand, the Supreme Court largely foreclosed the argument that HAVA’s voter registration provisions provide a private right of action in Brunner v. Ohio Republican Party.[38] The Brunner decision reflects the federal judiciary’s general hesitancy to recognize private rights of action conferred by HAVA.[39]

State election administration, and the judicial processes related to it, is shaped considerably by HAVA. In accordance with federal law, Colorado allows citizens to file complaints with the secretary of state alleging violations of HAVA’s specifications within a year of the alleged violation. The secretary then reviews the complaint, and must issue a determination within 90 days of its filing or proceed to alternative dispute resolution. Following official review, the secretary can furnish an appropriate remedy to correct the HAVA violation. A party may appeal the sectary’s decision in district court within thirty days of the administrative determination.[40]

Colorado similarly permits voters to challenge election officials’ conduct in district court through civil actions alleging breach or neglect of duty or some other wrongful action. District courts are empowered to issue orders compelling the official to perform a duty or desist from an improper conduct. Any appeal from the district court proceedings is made directly to the Colorado supreme court, which has discretion to review the case. A party seeking supreme court review must appeal within three days of the district court proceeding’s conclusion.[41]


Part IV. Redistricting

Actions challenging the constitutionality of federal and state redistricting plans[42] in federal court follow a distinct jurisdictional sequence in which they are initially decided by a specially convened three-judge district court and directly appealed to the Supreme Court.[43] Upon the filing of a constitutional challenge to a redistricting plan in federal court,[44] a district court judge initially determines, on the basis of the claim’s pleadings, whether the action necessitates the convening of a three-judge district court.[45] If the district judge determines a three-judge court is merited, the chief judge of the relevant circuit convenes a three-judge panel, which must include at least one circuit court judge as well as the district judge who made the preliminary ruling on the three-judge court’s necessity.[46] The three-judge district court practically functions like a typical district court, conducting a trial on the merits and issuing both factual findings and legal conclusions.[47] The Supreme Court has jurisdiction for appeals from the three-judge district court, and the Court cannot decline the appeal. The Court may summarily affirm or reverse, or engage in a full hearing on the merits of the case.[48]

Colorado’s constitution instructs an atypical method for the reapportionment of state legislative districts following a census. An eleven-member reapportionment commission, composed of legislators and judicial and executive appointees, is tasked with drafting a districting map following the release of federal census data.[49] The commission submits the proposed plan to the Colorado supreme court, which reviews the scheme for compliance with the state constitution’s redistricting stipulations.[50] Review of the plan “take[s] precedence over other matters before the court,” and the court may either approve the plan or return it to the commission with a detailed explanation of its disapproval.”[51] Upon a plan’s return, the commission must revise and resubmit it to the supreme court within a specified timeframe. Regardless of whether it approves or returns the commission’s initial proposal, the supreme court must approve a redistricting plan “by a date that will allow sufficient time for such plan to be filed with the secretary of state no later than fifty-five days prior to the date established in statute for precinct caucuses in the second year following the year in which the census was taken or, if the election laws do not provide for precinct caucuses, no later than fifty-five days prior to the date established in statute for the event commencing the candidate selection process in such year.”[52]


Part V. Election Contests

An unsuccessful congressional candidate seeking to contest the election of a member of the House of Representatives must file notice of intent to contest with the Clerk of the House within thirty days after electoral results are announced. The Committee on House Administration reviews the contest action, and then issues a resolution with recommendations to the full House. Possible recommendations include dismissing the challenge, declaring a winner, or ordering a new election. The full House votes to adopt the committee’s resolution, and a majority vote is necessary. The House can order a recount if the contestant is able to demonstrate that he has exhausted available corrective options through the relevant state court system. Throughout the proceedings, the burden is on the contestant “to prove that the election results entitle him to the contestee’s seat.”[53]

A range of grounds can give rise to an election contest in Colorado, including candidate ineligibility, electoral illegality, or official error.[54] The specific procedures for contesting an election in Colorado depend on the office involved, but all contain some requirement of expedition in order to hasten electoral resolution. For instance, contests stemming from primary elections need to be initiated “within five days after the occurrence of the grounds of the contest.”[55] For general election contests, the contestor must file a statement of intention to contest the election with the district court clerk within ten days of the issuance of the official survey of returns.[56] Similarly, a person seeking to contest a legislative election must file a statement of intention to contest the election within ten days after the official abstract of votes is finalized.[57]

For certain election contests, the Colorado Supreme Court possesses original jurisdiction. Specifically, contests related to primary elections for statewide offices[58] as well as contests for presidential electors originate in the state’s highest court.[59] District court decisions over election contests related to ballot order or the form and content of ballot titles are directly appealed to the state supreme court, which must render a decision “as expeditiously as practicable.”[60] Likewise, district court determinations for county and nonpartisan offices forgo intermediate courts and are appealed to the Colorado Supreme Court.[61]


Part VI. Campaign Finance

Actions contesting the constitutionality of federal campaign finance laws chart a distinct jurisdictional path in the federal court system. For constitutional challenges to the Bipartisan Campaign Reform Act (“BCRA”), a specially convened three-judge district court, consisting of at least one circuit court judge, initially hears the case and makes factual and legal findings.[62] Available remedies include declaratory and injunctive relief.[63] Litigants can appeal the district court’s decision to the Supreme Court within ten days, and the Court cannot decline the appeal.[64] Moreover, both the district court and the Supreme Court must “advance on the docket and [] expedite to the greatest extent the disposition of the action and appeal.”[65]

Challenges to FECA’s constitutionality similarly follow a special course through the federal courts.[66] A federal district court first reviews the challenge and certifies constitutional questions to the relevant circuit court. The en banc circuit court then rules on the constitutionality of the certified questions using a de novo standard of review.[67] As originally enacted, FECA obligated mandatory Supreme Court review of the circuit court decision, but Congress subsequently eliminated this requirement. Accordingly, the Court now has discretion to review the circuit court’s decision on certiorari.[68]

If a district court only certifies some of a plaintiff’s constitutional questions and dismisses others as frivolous, the plaintiff can appeal such dismissal to a three-judge circuit court panel. The three-judge panel then decides whether the district court abused its discretion in dismissing some of the plaintiff’s constitutional claims. An upshot of this process is the potential for parallel proceedings within the circuit, with the en banc court considering the certified constitutional questions and a smaller panel simultaneously reviewing the dismissal. [69] Like the special jurisdictional track for other kinds of election law cases, FECA’s unique procedure helps to expedite constitutional challenges to the Act. However, with a notable recent exception, litigation invoking this process is relatively infrequent.[70]

Under Colorado’s election code, a person alleging violations of the Fair Campaign Practices Act must file a complaint with the secretary of state within 180 days of the alleged violation.[71] Within three days of the complaint’s filing, the secretary must refer the complaint to an administrative law judge who conducts a hearing within fifteen days of the referral. Within fifteen days of the hearing, the administrative law judge must issue a determination of whether a violation occurred. If a violation is found, the administrative law judge may impose civil penalties, and the determination is subject to review by the Colorado Court of Appeals. The secretary of state is empowered to enforce the administrative judge’s decision. Alternatively, if the secretary takes no enforcement action within thirty days, the individual who filed the complaint may initiate a private cause of action in district court within a year of the violation. [72]


[1] The quintessential modern example of a court decision dictating a democratic outcome is Bush v. Gore, 531 U.S. 98 (2000), where the Supreme Court’s holding ultimately determined the 2000 presidential election.

[2] The federal constitution effectively divides regulatory authority over federal elections between the states and Congress. See U.S. Const. art. I, §4, cl. 1.

[3] 52 U.S.C. §20501(b) (“The purposes of this chapter are . . . to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office…”.)

[4] 52 U.S.C. § 20503.

[5] 52 U.S.C. §20510.

[6] 52 U.S.C. § 20511.

[7] 52 U.S.C. §20510. If within thirty days of a federal election, a person can immediately bring a civil action to enforce the NVRA’s mandates.

[8] 52 U.S.C. § 20510.

[9] Colo. Stat. §1-2-511.

[10] Colo. Stat. §1-2-511.

[11] U.S. Const. art I. §4 cl. 1.

[12] Storer v. Brown, 415 U.S. 724, 730 (1974).

[13] Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

[14] Lubin v. Panish, 415 U.S. 709, 716 (1974).

[15] Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).

[16] Bullock v. Carter, 405 U.S. 134, 145 (1972).

[17] Jenness v. Fortson, 403 U.S. 431, 442 (1971).

[18] Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

[19] South Carolina Green Party v. South Carolina State Election Comm’n, 612 F.3d 752 (4th Cir. 2010).

[20] Bullock v. Carter, 405 U.S. 134 (1972).

[21] Norman v. Reed, 502 U.S. 279 (1992).

[22] Colo. Stat. §1-4-601.

[23] Colo. Stat. §1-4-801.

[24] Colo. Stat. §1-4-802.

[25] Colo. Stat. §1-4-908.

[26] Colo. Stat. §1-4-909.

[27] Colo. Stat. §1-1-113.

[28] Colo. Stat. §1-1-113.

[29] Colo. Stat. §1-4-909.

[30] Colo. Stat. §1-1-113.

[31] Help America Vote Act of 2002, PL 107-252 (2002).

[32] Leonard M. Shambon, Implementing the Help America Vote Act, 3 Election L.J. 424 (2004).

[33] Id. at 428-29.

[34] 52 U.S.C. §21111.

[35] 52 U.S.C. §21112.

[36] 52 U.S.C. §21112.

[37] Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir. 2004).

[38] 555 U.S. 5 (2008).

[39] See Daniel P. Tokaji, HAVA in Court: A Summary and Analysis of Litigation, 12 Election L.J. 203 (2013).

[40] Colo. Stat. §1-1.5-105.

[41] Colo. Stat. §1-1-113.

[42] 28 U.S.C. § 2284 (“A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.”).

[43] Joshua A. Doulgas, The Procedure of Election Law in Federal Courts, 2011 Utah L. Rev. 433, 455 (2011).

[44] BCRA and VRA Section 5 challenges must be filed in the U.S. District Court for the District of Columbia.

[45] 28 U.S.C. § 2284(b)(1); Armour v. Ohio, 925 F.3d 987, 989 (6th Cir. 1991) (“[T]he sufficiency of the complaint for three-judge jurisdictional purposes must be determined by the claims stated in the complaint and not by the way the facts turn out.”).

[46] 28 U.S.C. § 2284.

[47] Douglas, supra note 43, at 455-56.

[48] Id.

[49] Colo. Const. art. V. §48.

[50] Id.; see Colo. Const. art. V. §46, 47.

[51] Colo. Const. art. V. §48; see also In re Reapportionment of Colorado General Assembly, 45 P.3d 1237 (Colo. 2002).

[52] Colo. Const. art. V. §48.

[53] 2 U.S.C. §383 et seq.

[54] Colo. Stat. §1-11-201.

[55] Colo. Stat. §1-11-203.

[56] Colo. Stat. §1-11-213.

[57] Colo. Stat. §1-11-208.

[58] Colo. Stat. §1-11-203.5.

[59] Colo. Stat. §1-11-204.

[60] Colo. Stat. §1-11-204.

[61] Colo. Stat. §1-11-224.

[62] 52 U.S.C. § 30110 note.

[63] 52 U.S.C. §30110 note.

[64] 52 U.S.C. §30110 note.

[65] 52 U.S.C. §30110 note.

[66] 52 U.S.C. § 30110.

[67] Douglas, supra note 43, at 472.

[68] Id. at 469.

[69] Id. at 471-72.

[70] Id. at 471.

[71] Colo. Const. art. XXIX § 9

[72] Id.