Colorado § 1-11-201 - Causes of contest.

§ 1-11-201. Causes of contest.

(1) The election of any candidate to any office may be contested on any of the following grounds:

(a) That the candidate elected is not eligible to hold the office for which elected;

(b) That illegal votes were received or legal votes rejected at the polls in sufficient numbers to change the result of the election;

(c) That an election judge or canvass board has made an error in counting or declaring the result of an election that changed the result of the election;

(d) That an election judge, canvass board, or member of a canvass board has committed malconduct, fraud, or corruption that changed the result of the election; or

(e) That, for any reason, another candidate was legally elected to the office.

(2) For the purpose of this part 2, if the election or nomination of either the governor or lieutenant governor is found to be invalid for any reason, the finding shall not in any way be construed to invalidate the election or nomination of the other joint candidate.

(3) The result of any election to determine a ballot issue or ballot question may be contested on any of the following grounds:

(a) That illegal votes were received or legal votes were rejected at the polls in sufficient numbers to change the result of the election;

(b) That an election judge or canvass board has made an error in counting or declaring the result of an election that changed the result of the election; or

(c) That an election judge, canvass board, or member of a canvass board has committed misconduct, fraud, or corruption that changed the result of the election.

(4) In addition to the grounds set forth in subsection (3) of this section, the result of any election to determine a ballot issue that includes approval of the creation of any debt or other financial obligation may be contested if the notice required by section 1-7-908 is not provided in accordance with that section or contains any material misstatement of the information required to be set forth in the notice.

Source: L. 92: Entire article R&RE, p. 785, § 14, effective January 1, 1993. L. 94: (3) added, p. 1175, § 62, effective July 1. L. 99: (1)(c), (1)(d), (3)(b), and (3)(c) amended, p. 490, § 19, effective July 1. L. 2003: (4) added, p. 749, § 2, effective August 6.

Editor's note: This section is similar to former § 1-11-201 as it existed prior to 1992.

Cross references: For contests for county and nonpartisan officers, ballot issues, and ballot questions, see § 1-11-212; for contested elections, see C.R.C.P. 100.

ANNOTATION

I. General Consideration.

I. GENERAL CONSIDERATION.

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

Pursuant to the constitutional mandate of Colo. Const., art. VII, § 12, the procedure to be followed in election contests was enacted. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).

II. CAUSES OF CONTEST.

A. In General.

B. Causes.

A. In General.

In an election contest, the statement of contest must bring the case within one of the enumerated causes constituting grounds for contest. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).

For, in an election contest, the contestor should be able to show some good reason for the contest. Todd v. Stewart, 14 Colo. 286, 23 P. 426 (1890); Smith v. Harris, 18 Colo. 274, 32 P. 616 (1893); Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925).

And in the absence of some definite and specific assertion, a court will assume that there are none to be made. Todd v. Stewart, 14 Colo. 286, 23 P. 426 (1890); Smith v. Harris, 18 Colo. 274, 32 P. 616 (1893); Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925).

Moreover, a statement of contest not vulnerable to demurrer (now dismissal for failure to state a claim) may be assailable on other grounds, e.g., that it is ambiguous, unintelligible, and uncertain. Collins v. Heath, 76 Colo. 600, 233 P. 838 (1925); Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925).

And contestors are without right to amend their statement of contest by supplying the very thing which was essential in the first instance to state a ground of contest and give the court jurisdiction. Town of Sugar City v. Bd. of Comm'rs, 57 Colo. 432, 140 P. 809 (1914).

Causes of contest incorporated by reference. The causes of contest are, insofar as applicable, incorporated by reference into provisions 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 provisions relating to contests in special district elections. Jardon v. Meadowbrook-Fairview Metro. Dist., 190 Colo. 528, 549 P.2d 762 (1976).

B. Causes.

Eligibility is to be determined at the date of qualifying. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).

And the word "eligible" has reference to the capacity not of being elected to office, but of holding office. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).

Thus it is wholly immaterial whether contestee is qualified at the time of election when at the time of taking office his eligibility exists. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).

For the eligibility of a candidate to office is to be ascertained as of the time of his entering upon the duties of the office. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).

Election is contested under subsection (1)(a) when candidate in nonpartisan election did not meet the residency requirement to serve the position. Figueroa v. Speers, 2015 CO 12, 343 P.3d 967.

An election will not be set aside for irregularities unless they affect the result of the election. People v. Keeling, 4 Colo. 129 (1878); Kellogg v. Hickman, 12 Colo. 256, 21 P. 325 (1888); Todd v. Stewart, 14 Colo. 286, 23 P. 426 (1890); Allen v. Glynn, 17 Colo. 338, 29 P. 670 (1892); Smith v. Harris, 18 Colo. 274, 32 P. 616 (1893); People ex rel. Johnson v. Earl, 42 Colo. 238, 94 P. 294 (1908); Littlejohn v. People, 52 Colo. 217, 121 P. 159 (1912); City of Loveland v. Western Light & Power Co., 65 Colo. 55, 173 P. 717 (1918); Suttle v. Sullivan, 131 Colo. 519, 283 P.2d 636 (1955).

The causes for contest make no provision for a contest of an election upon the removal of a county seat, for the only election contests authorized are those of officers. Accordingly, it is also clear that there is no remedy by quo warranto, for that remedy is only employed to test the right of an officer or franchise. People v. Bd. of County Comm'rs, 6 Colo. 202 (1882).

Similarly, failure of election officials to issue absentee ballots upon oral application, although they had previously promised to do so, amounts to nothing as a ground of contest. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).

And an allegation that the name of the contestee was unlawfully printed upon the official ballot under the name and emblem of a political party of which he was not the nominee, that the filing of the certificate of nomination of contestee as the nominee of such political party was the result of a fraudulent conspiracy between contestee and the county clerk, and that by reason of having his name so printed under the name and emblem of the said political party he had counted for him a large number of votes to which he was not entitled, sufficient to reduce the number of his votes below the number cast for contestor, does not state a cause for contest under this section. Rather, it was contestor's duty to make his objection to the printing of contestee's name on the official ballot under the name and emblem to which he was not entitled in seasonable time and in the manner provided by the election law, and failing to do so, he cannot be heard after election to urge such objections when to uphold them would be to overthrow the expressed will of a majority of the legal voters of the county. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).