1-7-309. Determination of improperly marked ballots
Overview of Statute
Improperly marked ballots and ballots without an official endorsement will not be counted. Improperly marked ballots include those with multiple candidates marked or when a voter’s intent cannot be determined. These ballots will be designated “defective” and set aside. Ballots with deficient cross marks, however, will be counted unless deficient marks have been made to indicate a vote for multiple candidates or positions. Also, ballots with write-in candidates will be counted if meeting certain requirements.
 C.R.S. § 1-7-302: procedure for providing an elector with a ballot
 C.R.S. § 1-7-801: procedure for preserving ballots
 C.R.S. § 1-7-114(1): requirements for a sufficient write-in candidate
(1) Votes cast for an office to be filled or a ballot issue to be decided shall not be counted if an elector marks more names than there are persons to be elected to an office or if for any reason it is impossible to determine the elector’s choice of candidate or vote concerning the ballot issue.
(2) A defective or an incomplete cross mark on any ballot in a proper place shall be counted if no other cross mark appears on the ballot indicating an intention to vote for some other candidate or ballot issue.
(3) No ballot shall be counted unless it has the official endorsement required by section 1-7-302.
(4) Ballots not counted because of the election judges’ inability to determine the elector’s intent for all candidates and ballot issues shall be marked “defective” on the back, banded together and separated from the other ballots, returned to the ballot box, and preserved by the designated election official pursuant to section 1-7-801.
(5) When the election judges in any precinct discover in the counting of votes that the name of any write-in candidate voted for is misspelled or omitted in part, the vote for that candidate shall be counted if the writing meets the requirements of section 1-7-114 (1).
Source: L. 92: Entire article R&RE, p. 742, § 9, effective January 1, 1993.L. 93: (5) amended, p. 1421, § 76, effective July 1.
Editor’s note: This section is similar to former § 1-7-309 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 the method of counting paper ballots, see § 1-7-307.
Annotator’s note. The following annotations include cases decided under former provisions similar to this section.
Ballot not rejected if choice can be gathered. Unless the statute declares that a strict compliance with its requirements by the elector is essential to have his ballot counted, courts will not undertake to disfranchise him by rejecting his ballot where his choice can be gathered from the ballot viewed in the light of the circumstances surrounding the election. Young v. Simpson, 21 Colo. 460, 42 P. 666 (1895).
As where cross mark is before candidates’s name. Where a ballot has no mark opposite any party emblem, but is marked with a cross mark to the left and before the candidate’s name, it should be counted, although the customary and better practice is to put the cross mark to the right of the name of the candidate intended to be voted for. Young v. Simpson, 21 Colo. 460, 42 P. 666 (1895).
Or slightly to the right of the appropriate square. Where a voter designates his choice by placing a cross mark not in the space prepared for the purpose, but slightly to the right of the square opposite it, the ballot is properly counted. Young v. Simpson, 21 Colo. 460, 42 P. 666 (1895).
Similarly, a ballot should be counted if intent can be ascertained with reasonable certainty. A ballot cast by a qualified elector, at an election held according to law and at the time and place provided by law, should be counted if the intent of the voter can be ascertained with reasonable certainty, unless this is forbidden by some positive provision of statute. Baldwin v. Wade, 50 Colo. 109, 114 P. 399 (1911).
As where name is written in under printed name. In the official ballot of a municipal election the name of A was printed as a candidate; below this, and in the same space, the voter wrote the name of B; and in the space left for this purpose, he placed a cross mark, the intersection of which was not directly opposite either name. Considering that the voter, if he desired to vote for A, had no occasion to insert the name of B, it was held that the ballot must be counted for B. Baldwin v. Wade, 50 Colo. 109, 114 P. 399 (1911).
Or above an obliterated printed name. Where a voter obliterates a printed name with ink and writes in a name above it, placing a cross mark at the right, the ballot should be counted. Baldwin v. Wade, 50 Colo. 109, 114 P. 399 (1911).
Nevertheless, an elector, in order to properly express his choice, must do so substantially in the manner provided by statute. 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); Wiley v. McDowell, 55 Colo. 236, 133 P. 757 (1913); Bromley v. Hallock, 57 Colo. 148, 140 P. 186 (1914).
Thus a voter must express his choice by making a “X” opposite candidate’s name. Riley v. Trainor, 57 Colo. 155, 140 P. 469 (1914).
Likewise, voters must make cross marks when they write in more than one name. Where there are several candidates for an office and voters write in the spaces left for this purpose, under the word indicating the office, the names of those persons, among them the name of the contestor but no cross mark set opposite the contestor’s name upon any of these ballots, they are not to be counted for the contestor. Riley v. Trainor, 57 Colo. 155, 140 P. 469 (1914).
An indelible pencil may be used. Where a ballot is in perfect form, but the name of the person voted for and the cross marks are written with an indelible pencil, it should be counted. Baldwin v. Wade, 50 Colo. 109, 114 P. 399 (1911).
A voter prohibited from marking more names on a ballot than there are persons to be elected to an office cannot be construed to prohibit only the double marking of eligible candidates for such office. Moran v. Carlstrom, 775 P.2d 1176 (Colo. 1989).
This section and § 1-4-1001 (now § 1-4-1101) do not conflict. This section regulates the conduct of voters and rejects ballots showing more names than persons to be elected to an office whereas § 1-4-1001 (now § 1-4-1101) regulates the conduct of write-in candidates and prohibits the write-in candidate who fails to file an affidavit of intent from accumulating votes. Moran v. Carlstrom, 775 P.2d 1176 (Colo. 1989) (decided prior to 1992 repeal and reenactment of this article).
1. 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.
2. 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.
3. 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.
4. 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.
5. 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: Young v. Simpson
Citation: 42 P. 666 (Colo. 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: Baldwin v. Wade
Citation: 114 P. 399 (Colo. 1911)
Case PDF: Baldwin v. Wade
Case Summary: Holding that officials should count a ballot in a mayoral contest if possible to ascertain the voter's intent.
Case Name: Heiskell v. Landrum
Citation: 46 P. 120 (Colo. 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)
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: Bromley v. Hallock
Citation: 140 P. 186 (Colo. 1914)
Case PDF: Bromley v. Hallock
Case Summary: Holding that election officials should still count votes, despite the inclusion of many party names instead of just one.
Case Name: Moran v. Carlstrom
Citation: 775 P.2d 1176 (Colo. 1989)
Case Summary: Holding that ballots, upon which voters had marked more names than there were persons to be elected to the office, were properly rejected.
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.