1-11-215. Recount in contests for county and nonpartisan elections
Overview of Statute
The district court judge hearing a contest may demand a recount of votes in contests involving a county or nonpartisan election, when one party claims an error in the abstract of the votes cast sufficient to change the result. The recount may include either all ballots cast or just the ballots cast in precincts where the alleged error was made. The judge may also request additional evidence, including witnesses, documents, and additional records, to help ascertain the legality of any vote cast for a candidate, ballot issue, or ballot question. The judge may also order the returns corrected in accordance with the record presented and other findings by the court.
 C.R.S. § 1-11-214: Explains the process for these contests
If, at trial of any election contest as provided in section 1-11-214 and this section, the statement or counterstatement alleges an error in the abstract of votes cast sufficient to change the result, the district judge has the power to order a recount of the ballots cast or the votes tabulated in the precincts in which the alleged error was made. The court may also require the production before it of witnesses, documents, records, and other evidence as may have or contain information regarding the legality of any vote cast or counted for either of the contesting candidates or a ballot issue or ballot question, or concerning the correct number of votes cast for a candidate or a ballot issue or ballot question. The court may order the returns corrected in accordance with the evidence presented and the court’s findings.
Source: L. 92: Entire article R&RE, p. 792, § 14, effective January 1, 1993.L. 94: Entire section amended, p. 1178, § 67, effective July 1.L. 99: Entire section amended, p. 491, § 21, effective July 1.
Editor’s note: This section is similar to former § 1-11-212 as it existed prior to 1992.
Annotator’s note. The following annotations include cases decided under former provisions similar to this section.
Contestor has no absolute and unqualified right to have ballot boxes opened and a recount of ballots. Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925).
Rather, before such an order can be properly made, there must be some preliminary evidence supporting the alleged charges. Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925).
And then the matter is within the sound legal discretion of the trial court. Kindel v. Le Bert, 23 Colo. 385, 48 P. 641, 58 Am. St. R. 234 (1897); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925); Harper v. City of Pueblo, 109 Colo. 411, 126 P.2d 339 (1942).
In addition, the exercise of such discretion, when within the limits of the constitution and statutes, is final on review when wisely exercised. Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925); Winters v. Pacheco, 88 Colo. 105, 292 P. 106l (1930).
Ballot boxes should not be ordered open until some positive proof is offered to show that the election returns are not justified by the ballots in the ballot boxes. Winters v. Pacheco, 88 Colo. 105, 292 P. 1061 (1930).
And definite allegations of fraud or allegations that a recount will change the result, and a prima facie showing thereof, are essential for a recount. Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Harper v. City of Pueblo, 109 Colo. 411, 126 P.2d 339 (1942).
For, in the absence of a definite and specific assertion, no recount is allowed. Harper v. City of Pueblo, 109 Colo. 411, 126 P.2d 339 (1942).
But when this preliminary proof is offered, it would be a gross abuse of discretion for a court to deny contestor the right to substantiate his cause by documentary evidence. Winters v. Pacheco, 88 Colo. 105, 292 P. 1061 (1930).
And since the ballot itself is the best evidence, with all other secondary, it is idle to require witnesses to testify as to the illegibility of a ballot which can be produced and thereby refute or confirm their statements with reference to it. Winters v. Pacheco, 88 Colo. 105, 292 P. 106l (1930).
Thus, where two witnesses testified that they had seen a questioned ballot and that it was absolutely illegible, this was sufficient proof to justify an order of court for the opening of the ballot box and production of the ballot where the result of the election depended on such. Winters v. Pacheco, 88 Colo. 105, 292 P. 1061 (1930).
Also, comparison of ballots with the poll lists is allowed in connection with evidence. Upon the production of evidence tending to show error, mistake, fraud, malconduct, or corruption on the part of the election board, or any of its members, in the matter of receiving, numbering, depositing, or canvassing the ballots, or other illegal or irregular conduct in respect thereto, an inspection and comparison of the ballots with the poll lists should be allowed in connection with the oral evidence in reference thereto. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).
Charge in answer sufficient to entitle contestor to recount as matter of course. Where the answer charged that the boxes had been tampered with and had not been preserved by the county clerk in the manner provided by law, the contestor assumed the burden of proving that they had not been tampered with or molested, that they were in the same condition as when received by the clerk, and under the issues as made by the pleadings, the contestor was entitled to a recount of these ballots as a matter of course. Wiley v. McDowell, 55 Colo. 236, 133 P. 757 (1913).
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 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.
3. 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.
4. 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.
5. 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.
6. 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: 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: 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: 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: Harper v. City of Pueblo
Citation: 126 P.2d 339 (Colo. 1942)
Case URL: https://perma.cc/P963-FL2W
Case Summary: Holding that employees' action alleging irregularities in a municipal election relating to an amendment raising their salaries was properly characterized by the lower court as a "fishing expedition"; therefore, employees were not entitled to relief.
Case Name: Winters v. Pacheco
Citation: 292 P. 1061 (Colo. 1930)
Case URL: https://perma.cc/ET8X-RWUN
Case Summary: Holding that ballot box should be opened after two witnesses testified that a counted ballot had been illegible and that ballot was in fact illegible and should not have been counted; therefore, the election was a tie, and a special election needed to be called.
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: Wiley v. McDowell
Citation: 133 P. 757 (Colo. 1913)
Case PDF: Wiley v. McDowell
Case Summary: Holding that the intention of the voter, who incorrectly marked a ballot with words instead of a mark, should not determine the allocation of a vote if requiring discretion by a judge.