1-11-213. Rules for conducting contests in district court
Overview of Statute
The district court’s rules and practices related to form of process, manner of service of process, officer fees, and judgment for costs govern election contests. Likewise, venue changes and appellate review will be subject to the same rules as apply to all other civil and criminal actions. Prior to assuming jurisdiction, the district court must approve a bond filed by contestors, with sureties, that will cover all costs should the contest fail. Within ten days after the designated election official receives the official survey of returns, contestors must also file with the clerk of court a written statement declaring an intention to contest the election. The written statement must include the parties’ names, affirmation of the contestor’s voter eligibility in the political subdivision, the specific ballot issue or office being contested, the time of the election, and the grounds for the contest. An affidavit from the contestor or an eligible elector will verify the statement upon information and belief. Any political subdivision involved in a contest involving a ballot initiative will be added as a contestee.
No court will have jurisdiction over contests when a contestee fails to file the written statement within ten days of the receipt of the official survey of returns. The clerk of court must serve a summons on the contestee within ten days of receiving the statement of intention. The contestee must then file an answer either admitting or denying each allegation and asserting any counterstatements within ten days of receiving the summons. Should the contest involve the potential suppression of eligible voters or fraudulent voting, the contestor, or the contestee if alleged in a counterstatement, must include a list of eligible electors who voted or offered to vote in the initial filing with the clerk of court. The contestor will also have ten days to file an answer in response to any counterstatements alleged in the contestee’s answer.
(1) The style and form of process, the manner of service of process and papers, the fees of officers, and judgment for costs and execution shall be according to the rules and practice of the district court.
(2) Change of venue may be taken from any district court for any cause in which changes of venue might be taken in civil or criminal actions. The decisions of any district court are subject to appellate review as provided by law and the Colorado appellate rules.
(3) Before the district court is required to take jurisdiction of the contest, the contestor shall file with the clerk of the court a bond, with sureties, running to the contestee and conditioned to pay all costs in case of failure to maintain the contest. The judge shall determine the sufficiency of the bond and, if it is sufficient, approve it.
(4) The contestor, within ten days after the official survey of returns has been filed with the designated election official, shall file in the office of the clerk of the district court a written statement of the intention to contest the election, setting forth the name of the contestor, that the contestor is an eligible elector of the political subdivision, the name of the contestee, the office or ballot issue or ballot question being contested, the time of the election, and the particular grounds for the contest. The statement shall be verified upon information and belief by the affidavit of the contestor or of an eligible elector of the political subdivision. If the contest is based upon a ballot issue or ballot question, the political subdivision or subdivisions for which the ballot issue or ballot question was decided shall be named as a contestee. If a written statement of intent to contest the election is filed more than ten days after the completion of the official survey of returns, no court shall have jurisdiction over the contest.
(5) The clerk of the district court shall then issue a summons in the ordinary form, in which the contestor shall be named as plaintiff and the contestee as defendant, stating the court to which the action is being brought, the political subdivision for which the contest is filed, and a brief statement of the grounds for contest as set forth in the contestor’s statement. The summons shall be served upon the contestee and political subdivision in the same manner as other district court summonses are served in this state, within ten days after the statement of intention is filed.
(6) The contestee, within ten days after the service of the summons, shall file an answer with the clerk of court, which admits or specifically denies each allegation of the statement and asserts any counterstatement on which the contestee relies as entitling him or her to the office to which elected.
(7) If a contestor alleges the reception of illegal votes or the rejection of legal votes as the grounds for the contest, a list of the eligible electors who so voted or offered to vote shall be set forth in the statement of the contestor and likewise in the answer of contestee if the same grounds are alleged in the counterstatement.
(8) When the answer of the contestee contains a new matter constituting a counterstatement, within ten days after the answer is filed, the contestor shall file a reply with the clerk of court admitting or specifically denying, under oath, each allegation contained in the counterstatement.
Source: L. 92: Entire article R&RE, p. 790, § 14, effective January 1, 1993.L. 94: (4) and (5) amended, p. 1177, § 66, effective July 1.
Editor’s note: This section is similar to former § 1-11-210 as it existed prior to 1992.
Annotator’s note. The following annotations include cases decided under former provisions similar to this section.
Timing requirement for an election contest not met by a lawsuit for injunctive relief filed prior to the election. The phrase “within ten days after” imposes two sequential conditions on an election contest: (1) “[A]fter” certification of election results, and (2) “within” 10 days. Neither condition was met. Taxpayers Against Congestion v. Reg’l Transp. Dist., 140 P.3d 343 (Colo. App. 2006).
Subsection (4) barred claims that a notice required by art. X, § 20, of the Colorado Constitution that accompanied a ballot title contained inaccurate financial data and had a misleading purpose, because the claims did not involve the legality or constitutionality of the ballot issue’s substance but instead concerned only the means by which election results were obtained. Cacioppo v. Eagle County Sch. Dist. RE-50J, 92 P.3d 453 (Colo. 2004).
Subsection (6) mandates factual specificity. Where the cause of a contest in an action challenging a school bond issue is that illegal votes have been received, subsection (6) mandates factual specificity. Abts v. Bd. of Educ., 622 P.2d 518 (Colo. 1980).
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 Ballot title
The language which is printed on the ballot which is comprised of the submission clause and the title.
3. 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.
4. Definition for Designated election official
The secretary of state, a county clerk and recorder, or other election official as provided by article XXI of the state constitution. C.R.S. § 1-12-100.5.
5. 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.
6. Definition for Title
A brief statement that fairly and accurately represents the true intent and meaning of the proposed text of the initiative.
7. 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.
8. 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.
9. 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.
Case Name: Taxpayers Against Congestion v. Reg’l Transp. Dist.
Citation: 140 P.3d 343 (Colo. App. 2006)
Case Summary: Dismissing appeal, because there were pleading deficiencies (statement of intention to contest election missing), and rejecting plaintiffs' assertion that a pre-election lawsuit satisfied statutory requirements.
Case Name: Cacioppo v. Eagle County Sch. Dist. RE-50J
Citation: 92 P.3d 453 (Colo. 2004)
Case Summary: Dismissing challenge to an approved ballot issue that raised taxes to provide increased funding for a school district; challenge was time-barred, and challenges related to ballot form are not judiciable if the challenge was improperly filed.
Case Name: Abts v. Bd. of Educ.
Citation: 622 P.2d 518 (Colo. 1980)
Case Summary: Holding that notice of election specifying general election and not school election precincts was sufficient to inform the public and constituted substantial compliance with the statute.