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colorado > Colorado Electoral Code > Conduct of Elections

1-7-307. Method of counting paper ballots

Overview of Statute

The process for counting ballots involves first confirming that the number of cast ballots in the boxes matches the number of votes identified in the pollbooks. If the numbers do not match, counting judges will set aside any ballot missing the proper official endorsement as “excess ballots.” Once the ballots and pollbooks match, the judges will begin counting the ballots. During counting, judges will record the ballot results on two accounting forms for each ballot before moving onto the next ballot. After all ballots have been counted and recorded, the ballot box will be sealed, initialed, and delivered to the designated election official.[1]

[1] C.R.S. § 1-7-101: guidelines for the designation of election officials.

Statute

(1) The election judges shall first count the number of ballots in the box. If the ballots are found to exceed the number of names entered on each of the pollbooks, the election judges shall then examine the official endorsements. If, in the unanimous opinion of the judges, any of the ballots in excess of the number on the pollbooks are deemed not to bear the proper official endorsement, they shall be put into a separate pile and into a separate record, and a return of the votes in those ballots shall be made under the heading “excess ballots”. When the ballots and the pollbooks agree, the judges shall proceed to count the votes.

(2) Each ballot shall be read and counted separately. Every name and all names of joint candidates separately marked as voted for on the ballot shall be read and an entry made on each of two accounting forms before any other ballot is counted. The entire number of ballots, excepting “excess ballots”, shall be read, counted, and placed on the accounting forms in like manner. When all of the ballots, except “excess ballots”, have been counted, the election judges shall post the votes from the accounting forms.

(3) When all the votes have been read and counted, the ballots shall be returned to the ballot box, the opening shall be carefully sealed, and the election judges shall place their initials on the seal. The cover shall then be locked and the ballot box delivered to the designated election official, as provided in section 1-7-701.

(4) All persons, except election judges and watchers, shall be excluded from the place where the ballot counting is being held until the count has been completed.

 

Source: L. 92: Entire article R&RE, p. 741, § 9, effective January 1, 1993.L. 93: (1) amended, p. 1421, § 75, effective July 1.

 

Editor’s note: This section is similar to former § 1-7-307 as it existed prior to 1992.

Cross references: For the form of ballots, see § § 1-5-407, 1-5-408, 1-7-304 (1), and 1-7-503 (1); for improperly marked ballots, see § 1-7-309; for penalty for divulging information concerning the count prior to 7:00 p.m., see § 1-13-718.
 
ANNOTATION

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

The intention of the voter, as expressed upon the face of his ballot, has always been regarded as the cardinal principle controlling the count. Under a system providing for balloting like the Australian, it is necessary that certain rules be prescribed to prevent confusion and secure uniformity; by this means the intention of the voter is to be ascertained. Young v. Simpson, 21 Colo. 460, 42 P. 666 (1895); Heiskell v. Landrum, 23 Colo. 65, 46 P. 120 (1896); Rhode v. Steinmetz, 25 Colo. 308, 55 P. 814 (1898); Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900); Wiley v. McDowell, 55 Colo. 236, 133 P. 757 (1913).

So neither the judges of the election nor the courts are authorized to go beyond what the voter has set down upon his ballot to ascertain his intention. Wiley v. McDowell, 55 Colo. 236, 133 P. 757 (1913).

But in order to designate his choice, a voter must use a cross mark as the law requires. Riley v. Trainor, 57 Colo. 155, 140 P. 469 (1914).

Hence, where no cross mark is used anywhere with reference to any of the candidates for the particular office in question, the ballots ought not to be counted. Riley v. Trainor, 57 Colo. 155, 140 P. 469 (1914).

Definition [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.

Definition [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.

Definition [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.

Definition [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.

Definition [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.

Cases

colorado Cases

Case Name: Young v. Simpson

Citation: 42 P. 666 (Colo. 1895)

Year: 1895

Case PDF: Young v. Simpson

Case Summary: Holding on appeal that a contested election, in which one candidate improperly received two votes in a close election, should have been declared a tie vote. Decision remanded to trial court for further proceedings.

Case Name: Heiskell v. Landrum

Citation: 46 P. 120 (Colo. 1896)

Year: 1896

Case PDF: Heiskell v. Landrum

Case Summary: Holding that "in cases in which the ballot was marked once for the party-wide ticket and another time for a candidate from another party for a position for which the party-wide vote would have been counted the votes canceled each other out and were not to be counted."  

Case Name: Rhode v. Steinmetz

Citation: 25 Colo. 308, 55 P. 814 (1898)

Year: 1898

Case Summary: Reversed a lower court ruling, and held in favor of the appellant candidate who defended an election result. Holding that a voter must vote substantially in the manner provided by statute in order to properly express his or her choice.

Case Name: Wiley v. McDowell

Citation: 133 P. 757 (Colo. 1913)

Year: 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.

Case Name: Riley v. Trainor

Citation: 57 Colo. 155, 140 P. 469 (1914)

Year: 1914

Case Summary: Holding that a ballot should not be counted unless the voter complies with the law to specify a candidate for the particular office in question.

Out-of-State Cases

Federal Cases

Regulations & Guidance