1-11-212. Contests for county and nonpartisan officers – ballot issues and ballot questions
Overview of Statute
The district court for the county in which a contest arises will have jurisdiction over cases involving county officers, nonpartisan officers, and ballot questions and issues. If a political subdivision is located in more than one county, the district court of either county may take jurisdiction.
Contested election cases of county and nonpartisan officers and ballot issues and ballot questions shall be tried and decided by the district court for the county in which the contest arises. If a political subdivision is located in more than one county, the district court of either county may take jurisdiction.
Source: L. 92: Entire article R&RE, p. 790, § 14, effective January 1, 1993.L. 94: Entire section amended, p. 1177, § 65, effective July 1.
Cross references: For contested elections, see C.R.C.P. 100.
I. General Consideration.
II. Election May be Contested.
III. Bond Required.
IV. Statement of Contest.
B. Requisites of Statement.
VI. Reception of Illegal Votes or Rejection of Legal Votes.
VII. Reply to Counterstatement.
Law reviews. For comment on Porter v. Johnson appearing below, see 2 Rocky Mt. L. Rev. 1311 (1930).
Annotator’s note. The following annotations include cases decided under former provisions similar to this section.
The provision for contesting the election of county officers is not only special in character, but furnishes a complete system of procedure within itself. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890); Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925).
The provision for contesting the election of county officers lists the pleadings and time within which they are to be filed. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).
And such system is exclusive. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).
II.ELECTION MAY BE CONTESTED.
Scope of contest. Contests of the election of any person declared duly elected to any county office, except the office of county judge, are governed by this section. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890); Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925).
And election contest over the office of county judge comes under Rule 100, C.R.C.P. Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925).
The judge sitting in term time in his regular capacity as the court for the county is invested with jurisdiction to try and determine contested election cases of county officers. Vailes v. Brown, 16 Colo. 462, 27 P. 495 (1891); Gunson v. Baldauf, 88 Colo. 436, 297 P. 516 (1931).
But whether a judge sitting in vacation may exercise such jurisdiction not determined. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).
A contest proceeding is initiated by the filing of a bond and a statement of contest. Gunson v. Baldauf, 88 Colo. 436, 297 P. 516 (1931).
The bond for costs is for the benefit of the contestee. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).
And whether it be given or not in the first instance does not affect the jurisdiction of the court. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).
So contestee must object. If no bond for costs be given when the action is commenced, or if the one accepted be insufficient, it is incumbent upon the contestee, to object at the earliest opportunity. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).
Otherwise, he will waive his rights in this respect. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).
The cost bond should not be in any specified penalty, but should be conditioned for the payment of all costs. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).
But the contestee cannot object to the bond because a penalty is specified, in the absence of a showing that the penalty fixed is insufficient to cover the probable costs which he may incur in the case. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).
Attorney fees are not included in “all costs”. Amaya v. Dist. Court, 197 Colo. 129, 590 P.2d 506 (1979).
IV.STATEMENT OF CONTEST.
The contest must be filed within 10 days after the date when the votes are canvassed. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).
And this means all the votes. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).
However, it does not mean a sufficient number to show that one or the other of the parties was elected. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).
But it means the votes of the entire county. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).
And if for any reason one or more precincts are not canvassed at the time of the first sitting of the board, the statute will not commence to run until those precincts are canvassed, even though the returns from those precincts, when counted, will not affect the result as between candidates for any single office. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).
Moreover, the contest provision is to be construed as a statute of limitations upon a summary proceeding. Vailes v. Brown, 16 Colo. 462, 27 P. 945, 14 L.R.A. 120 (1891).
Whose time limit may not be enlarged. A statutory provision requiring notice of contest to be given within a given time from either the date of the official count, the declaration of the result, or the issuing of the certificate of election, etc., is peremptory, and the time cannot be enlarged. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).
And there is the strongest reason for enforcing this rule most rigidly in cases of contested elections, because promptness in commencing and prosecuting the proceedings is of the utmost importance to the end that a decision may be reached before the term has wholly, or in great part, expired. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).
Furthermore, time cannot be extended on ground that last day falls on Sunday. When the statutory period for filing the statement of an election contest for county officers under this section has fully elapsed, excluding the day when the votes are canvassed, the time cannot be extended merely on the ground that the last day happens to fall on Sunday. This is the reasonable as well as the natural and literal interpretation of the section. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).
Although it is clear that the first day must be excluded, for the contestor is given 10 days after the day when the votes are canvassed to file his statement. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).
B.Requisites of Statement.
There must be reasonable definiteness in statements of election contests. Suttle v. Sullivan, 131 Colo. 519, 283 P.2d 636 (1955).
A statement of contest which contains the averments and matters required by statute is sufficient to state a cause of action and sufficiently alleges the qualifications of the contestor to hold the office. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).
Hence, statement must include the particular cause of the contest. A contest proceeding is initiated by the filing of a statement of contest, the contents of which must conform to this section, and include the particular cause or causes of the contest. Gunson v. Baldauf, 88 Colo. 436, 297 P. 516 (1931).
Causes of contest incorporated by reference. The causes of contest are, insofar as applicable, incorporated by reference into the provision requiring a contestor of the election of county officers to file a written statement setting forth, among other things, the causes of the contest, and hence also into the provision relating to contests in special district elections. Jardon v. Meadowbrook-Fairview Metro. Dist., 190 Colo. 528, 549 P.2d 762 (1976).
Where the statement does not allege facts showing that the irregularities complained of changed the result of the election, the statement does not state a cause of action. Suttle v. Sullivan, 131 Colo. 519, 283 P.2d 636 (1955).
Statement of contestor that he is “an elector of the county” is a material averment and must be proved if denied by the answer or the contest as such must fail. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).
Nor is the contestor excused from producing evidence in support of such averment on the ground that other competent evidence is refused. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).
Statement may be amended as to proper name of contestee. Where there was an admitted mistake in naming the contestee in an election contest, a trial court errs in denying contestor’s motion to amend the statement of contest. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).
If contestee desires to controvert the truth of the matters averred in the statement of contest, he must do so by filing an answer in the time prescribed. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).
And contestee cannot avail himself of a demurrer (now motion to dismiss for failure to state a claim) for the purpose for which it is ordinarily used. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).
But if he elects to interpose such a demurrer (now motion to dismiss), it must be regarded as the equivalent of an answer admitting the truth of the matters averred, in which case it is unnecessary to introduce evidence in support of the allegations of the statement of contest. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).
VI.RECEPTION OF ILLEGAL VOTES OR REJECTION OF LEGAL VOTES.
Although a slight ambiguity exists, the evident purpose of including the list of disputed votes is to require each party to give the other notice of the names of such persons as he claims illegally voted for his competitor and of those whose votes for himself were illegally rejected. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890).
This provision is mandatory. The provision that, where the reception of illegal votes is the ground of contest, a list of the persons alleged to have voted illegally must be set forth in the statement of contest is mandatory. Town of Sugar City v. Bd. of Comm’rs, 57 Colo. 432, 140 P. 809 (1914); Israel v. Wood, 98 Colo. 495, 56 P.2d 1324 (1936); Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).
And it must be strictly construed. Town of Sugar City v. Bd. of Comm’rs, 57 Colo. 432, 140 P. 809 (1914).
Moreover, the provisions of the rules of civil procedure have no application. Town of Sugar City v. Bd. of Comm’rs, 57 Colo. 432, 140 P. 809 (1914).
Consequently, in order to give the court jurisdiction, the contest statement must contain the required list. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890); Town of Sugar City v. Bd. of Comm’rs, 57 Colo. 432, 140 P. 809 (1914).
And an amendment to the statement to include the name of the voters is not permissible. Town of Sugar City v. Bd. of Comm’rs, 57 Colo. 432, 140 P. 809 (1914); Kay v. Strobeck, 81 Colo. 144, 254 P. 150 (1927).
Also, the omission to furnish the required list of names cannot be justified by subsequently alleging that the information necessary to prepare the same was in the hands of contestee by whose fraud and violence contestor was prevented from obtaining it when no effort was made in the first instance to either comply with the section or to excuse the failure. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890).
Hence, there is no error in the refusal of the court to declare a vote illegal where the voter’s name was not set forth in the statement of contest. Kay v. Strobeck, 81 Colo. 144, 254 P. 150 (1927).
List concerning absentee voters held not to meet requirements. Where exhibit incorporated into statement of contest contained a long list of names of persons applying for and voting absentee ballots, but there was nothing in the list to indicate how many persons therein named were not legally qualified residents of the county, or who were not qualified by reason of mental or physical incompetence, or who had subscribed to an oath before a person unauthorized to administer the same, the statement of contest failed to meet the requirements for supplying a list of disputed votes. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).
However, list not required where no “rejection” or “reception” of votes. In an election contest where the contestor alleged that two legal ballots had been rejected after they had been placed in the box, the polls had closed, and the ballots had been counted and canvassed, the ground of contest was not the “rejection” of legal votes or the “reception” of illegal votes, and the contestor was not required to set forth in his statement of contest a list of the number of persons who “so voted” or “offered to vote”. Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).
And a vote is rejected when an elector offers to vote and is not permitted to cast a ballot; the rejected vote is a vote that is not cast – one that did not reach the ballot box. Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).
But if an elector is permitted to cast a ballot and to deposit it in the ballot box, the vote is accepted and must be counted unless it is attacked upon the other ground named in the statute, to wit, “the reception of illegal” votes, in which event the contest provision requires a list of the names of the persons who “so voted”, that is, who voted illegally, to be set out in the statement of contest. Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).
For the term “so voted” refers to alleged illegal votes in the ballot box. Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).
While the term “or offered to vote” refers to electors, the rejected votes of whom were not cast or placed in the ballot box. Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).
Notwithstanding, illegal votes, whether challenged or not, may be considered in an election contest. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).
As there is no statutory requirement that contested votes must be votes which are challenged at the polling place. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).
However, where contestor alleges that an ineligible voter’s ballot was received and counted for contestee, the burden is on the contestor to prove this necessary allegation contained in his statement of contest. Porter v. Johnson, 85 Colo. 440, 276 P. 333 (1929).
VII.REPLY TO COUNTERSTATEMENT.
Contestor’s assertion of counterstatement’s failure to state a claim does not deprive contestee’s right to proof. In view of the specific denial of the charges made in the statement of contest, the counterstatement of contest filed by contestee, and the requirement that judgment be pronounced, it would be unreasonable to hold that the contestor’s demurrer (now motion to dismiss for failure to state a claim) under such circumstances would deprive the contestee of the right to demand proof of the charges made by the contestor and to introduce testimony in support of his counterstatement of contest, inasmuch as such a ruling would deny the contestee his day in court. Gunson v. Baldauf, 88 Colo. 436, 297 P. 516 (1931).
1. Definition for Ballot issue
A nonrecall, citizen-initiated petition or legislatively-referred
measure which is authorized by the state constitution, including a question as defined in sections 1-41-102 (3) and 1-41-103 (3), enacted in Senate Bill 93-98.
2. Definition for Political subdivision
A governing subdivision of the state, including counties, municipalities, school districts, and special districts. C.R.S. § 1-7.5-103.
3. Definition for 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.
4. Definition for 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.
5. Definition for 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.
6. Definition for Section
A bound compilation of initiative forms approved by the secretary of state, which shall include pages that contain the warning required by section 1-40-110 (1), the ballot title, the abstract required by section 1-40-110 (3), and a copy of the proposed measure; succeeding pages that contain the warning, the ballot title, and ruled lines numbered consecutively for registered electors’ signatures; and a final page that contains the affidavit required by section 1-40-111 (2). Each section shall be consecutively prenumbered by the petitioner prior to circulation.
7. Definition for 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.
8. Definition for 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.
Case Name: Hanlen v. Gessler
Citation: 333 P.3d 41 (Colo. 2014)
Case Summary: Holding that Secretary of State acted in excess of his rulemaking authority in making rule that permitted designated election official to determine, after ballots had been printed, that an individual appearing on the ballot was not qualified for office, and directed that votes cast for that individual were invalid.
Case Name: Schwarz v. County Court
Citation: 23 P. 84 (Colo. 1890)
Case PDF: Schwarz v. County Court
Case Summary: Holding that before county court's jurisdiction could be invoked, the statute had to be strictly complied with and facts had to be stated to bring the cases within the statute's purview; jurisdiction depended on the terms of the statute.
Case Name: Kindel v. Le Bert
Citation: 48 P. 641 (Colo. 1897)
Case PDF: Kindel v. Le Bert
Case Summary: Upholding a lower court's holding that declared the defendant as the winner in an election for the office of county clerk; plaintiff may not inspect ballot boxes upon a belief of fraudulent voting without more evidence establishing the presence of the alleged fraudulent behavior.
Case Name: Gray v. Huntley
Citation: 238 P. 53 (Colo. 1925)
Case URL: https://perma.cc/SER7-SVEH
Case Summary: Holding that the trial court properly refused to open the ballot boxes in the absence of any proper showing of why to do so when contestee argued that two absentee voters had no right to vote in the county.
Case Name: Cox v. Starkweather
Citation: 260 P.2d 587 (Colo. 1953)
Case Summary: Upholding the election of an eligible candidate for county commissioner, despite not being a qualified elector in the district where elected.
Case Name: Lewis v. Boynton
Citation: 25 Colo. 486, 55 P. 732
Case PDF: Lewis v. Boynton
Case Summary: Holding that candidate who received fewer votes in an election could not have the result overturned when the winning candidate's name appeared in the wrong place on a ballot; voters still intended to vote for the other candidate and not for the protesting candidate.
Case Name: Boger v. Smith
Citation: 238 P. 57 (Colo. 1925)
Case URL: https://perma.cc/KQ9Q-9G55
Case Summary: Holding that trial court properly dismissed complaint, because allegations of error were too general to notify the contestee of alleged errors; reasonable definiteness in statements of election contests was required.
Case Name: Vailes v. Brown
Citation: 27 P. 945 (Colo. 1891)
Case PDF: Vailes v. Brown
Case Summary: Holding that 10-day statutory period for filing statement of election contest did not include the first day (the day votes were canvassed) but did include a Sunday.
Case Name: Gunson v. Baldauf
Citation: 297 P. 516 (Colo. 1931)
Case URL: https://perma.cc/PF9F-9YPV
Case Summary: Reversing decision of trial court sustaining contestee's demurrer, because the statement of contest would change the result of the election, but that contestee's demurrer was not authorized by statute and that it could not be construed as a general demurrer.
Case Name: Amaya v. Dist. Court
Citation: 590 P.2d 506 (Colo. 1979)
Case Summary: Holding that generally, attorney's fees could not be recovered either as damages or as costs unless specifically provided for by contract or by statute.
Case Name: Vigil v. Garcia
Citation: 87 P. 543 (Colo. 1906)
Case PDF: Vigil v. Garcia
Case Summary: Affirming decision of trial court entering judgment for the contestant after lower court found that the contestant received 23 illegal votes and contestee gained one after a recount.
Case Name: Suttle v. Sullivan
Citation: 283 P.2d 636 (Colo. 1955)
Case Summary: Holding that contestor failed to provide sufficient evidence of defects in the voting procedure that affected the final result.
Case Name: Jardon v. Meadowbrook-Fairview Metro. Dist.
Citation: 549 P.2d 762 (Colo. 1976)
Case Summary: Upholding a vote count that approved a ballot measure to construct a new sewage system; contestors protested the vote count because of alleged improper notice in newspaper publications and irregular voting procedure, but the court held that these alleged defects were insufficient to affect the final vote.
Case Name: Clanton v. Ryan
Citation: 24 P. 258 (Colo. 1890)
Case PDF: Clanton v. Ryan
Case Summary: Holding that contesting candidate failed to offer any legitimate proof of fraud and corruption; in addition, trial court was correct to exclude evidence of ballots cast in certain precincts presented to contradict and dispute the returns, because there was no proof such evidence would have caused the trial court to open the ballot boxes.
Case Name: Graham v. Swift
Citation: 123 Colo. 309, 228 P.2d 969 (1951)
Case Summary: Upholding a decision that a contestee was properly elected to serve in the office of sheriff, as initially indicated by the official canvass of votes. Contestor failed to provide sufficient evidence to support its claim that unqualified electors participated in the election.
Case Name: Town of Sugar City v. Bd. of Comm’rs
Citation: 140 P. 809 (Colo. 1914)
Case Summary: Denying contestors leave to amend their complaint to include a list of allegedly fraudulent voters; under plain terms of the statute, contestors could not amend their statement of contest by supplying the same thing that was essential in the first place to state a ground of contest.
Case Name: Israel v. Wood
Citation: 56 P.2d 1324 (Colo. 1936)
Case URL: https://perma.cc/AY3J-SNPK
Case Summary: Affirming a judgment related to improper voting, despite potential mootness problems caused by the completion of the term of office and holding that certain votes were properly cast in the contested election.
Case Name: Kay v. Strobeck
Citation: 254 P. 150 (Colo. 1927)
Case URL: https://perma.cc/G2U8-29E4
Case Summary: Holding that there was no evidence to support the trial court's conclusion that five voters considered their residence to be somewhere else.
Case Name: Waggoner v. Barela
Citation: 230 P.2d 586 (Colo. 1951)
Case Summary: Holding that board was without authority to refuse two ballots that were thrown out and that they should have been counted in determining the final result of the election; the ballots were cast by qualified electors, and name of electors' choice was written upon a piece of paper in compliance with the statute.
Case Name: Russell v. Wheeler
Citation: 439 P.2d 43 (Colo. 1968)
Case Summary: Reversing lower court's decision dismissing action, because there was sufficient evidence of at least 21 illegal voters.
Case Name: Porter v. Johnson
Citation: 276 P. 333
Case Summary: Affirming the trial court's conclusion that teachers moved into town with the intention of establishing a permanent residence.