1-11-203. Contests arising out of primary elections

Editor’s note: This section is similar to former § 1-11-214 as it existed prior to 1992.
 
ANNOTATION
 
I. General Consideration.
II. Jurisdiction.
III. Petition.
   A. Sufficiency.
   B. Service.
 
I.GENERAL CONSIDERATION.

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

The provision relating to contests arising subsequent to a primary election is not applicable to controversies over the right to appear on the ballot as a designee of a political party for nomination of that party to a particular office. Anderson v. Kilmer, 134 Colo. 270, 302 P.2d 185 (1956).

Summary adjudication of election contests. Election contests shall be “summarily adjudicated” by the court, and strict adherence to procedural requirements is not the rule; as long as due process is afforded and a fair hearing is provided the contestants, the statutory requirements are deemed satisfied. Ray v. Mickelson, 196 Colo. 325, 584 P.2d 1215 (1978).
 
II.JURISDICTION.

Provision conflicts with U.S. constitution as to jurisdiction over elections for U.S. Senate and House. The provision which purports to vest the Colorado supreme court with jurisdiction to try election contests arising out of a primary election for nomination to the United States Senate and House of Representatives conflicts with article I, section 5(1), of the United States Constitution, allowing each house to “be the judge of the elections, returns, and qualifications of its own member”, and in such situation the United States Constitution must prevail: Inasmuch as the authority given Congress by article I, section 4(1), of the United States Constitution to regulate elections for senators and representatives includes the authority to regulate primary elections where, under the law of the state, they are an integral part of the procedure for the choice of representatives in Congress, and it logically follows as a corollary thereof that the provisions of section 5(1) also apply to primary elections for the U.S. Senate and House of Representatives. Rogers v. Barnes, 172 Colo. 550, 474 P.2d 610 (1970).
 
III.PETITION.
 
A. Sufficiency.

A nominee is under no duty to prove that he has been nominated. People ex rel. Flebbe v. Mitchell, 88 Colo. 102, 292 P. 228 (1930).

But on the contrary, the contesting party must allege sufficient specific facts so that the contestee may be advised with reasonable definiteness and certainty the character of the charges to be met and be thus afforded an opportunity to properly present a defense thereto. People ex rel. Flebbe v. Mitchell, 88 Colo. 102, 292 P. 228 (1930).

For, in election contest proceedings, courts cannot properly embark on a mere fishing expedition by opening ballot boxes when there is an utter lack of specific allegations as to the distribution of votes and no charge of fraud or irregularity. Cruse v. Richards, 95 Colo. 485, 37 P.2d 382 (1934).

And it is always necessary to allege facts which will enable the court to determine that a different result would follow in the vote by reason of such alleged facts. Cruse v. Richards, 95 Colo. 485, 37 P.2d 382 (1934).

Hence, petition which does set out facts is insufficient. A petition in a primary election contest which merely charges a mistake in the counting of votes, and that a recount would result in the nomination of petitioner, without setting out the facts, is insufficient. People ex rel. Flebbe v. Mitchell, 88 Colo. 102, 292 P. 228 (1930).
 
B. Service.

One proposing to contest a nomination made by petition must follow the provision for contests arising out of primary elections. McCall v. Pearce, 53 Colo. 409, 127 P. 956 (1912).

Or petitioner’s rights may be foreclosed by laches. McCall v. Pearce, 53 Colo. 409, 127 P. 956 (1912).

Furthermore, service of summons in a primary election contest one day later than the time specified will not give the court jurisdiction, notwithstanding the last day upon which service could be made within the statutory time falls on Sunday. Cruse v. Richards, 95 Colo. 485, 37 P.2d 382 (1934).

And a contestee does not waive any objection to defective service of summons by filing a demurrer (now motion to dismiss for failure to state a claim) simultaneously with his motion to dismiss for want of service of process. Cruse v. Richards, 95 Colo. 485, 37 P.2d 382 (1934).