Colorado § 1-11-212 - Contests for county and nonpartisan officers - ballot issues and ballot questions.

§ 1-11-212. Contests for county and nonpartisan officers - ballot issues and ballot questions.

Contested election cases of county and nonpartisan officers and ballot issues and ballot questions shall be tried and decided by the district court for the county in which the contest arises. If a political subdivision is located in more than one county, the district court of either county may take jurisdiction.

Source: L. 92: Entire article R&RE, p. 790, § 14, effective January 1, 1993. L. 94: Entire section amended, p. 1177, § 65, effective July 1.

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

Cross references: For contested elections, see C.R.C.P. 100.

ANNOTATION

I. General Consideration.

II. Election May be Contested.

III. Bond Required.

V. Answer.

VI. Reception of Illegal Votes or Rejection of Legal Votes.

VII. Reply to Counterstatement.

I. GENERAL CONSIDERATION.

Law reviews. For comment on Porter v. Johnson appearing below, see 2 Rocky Mt. L. Rev. 1311 (1930).

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

The provision for contesting the election of county officers is not only special in character, but furnishes a complete system of procedure within itself. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890); Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925).

The provision for contesting the election of county officers lists the pleadings and time within which they are to be filed. Cox v. Starkweather, 128 Colo. 89, 260 P.2d 587 (1953).

And such system is exclusive. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).

II. ELECTION MAY BE CONTESTED.

Scope of contest. Contests of the election of any person declared duly elected to any county office, except the office of county judge, are governed by this section. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890); Kindel v. Le Bert, 23 Colo. 385, 48 P. 641 (1897); Gray v. Huntley, 77 Colo. 478, 238 P. 53 (1925).

And election contest over the office of county judge comes under Rule 100, C.R.C.P. Boger v. Smith, 77 Colo. 475, 238 P. 57 (1925).

The judge sitting in term time in his regular capacity as the court for the county is invested with jurisdiction to try and determine contested election cases of county officers. Vailes v. Brown, 16 Colo. 462, 27 P. 495 (1891); Gunson v. Baldauf, 88 Colo. 436, 297 P. 516 (1931).

But whether a judge sitting in vacation may exercise such jurisdiction not determined. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).

A contest proceeding is initiated by the filing of a bond and a statement of contest. Gunson v. Baldauf, 88 Colo. 436, 297 P. 516 (1931).

III. BOND REQUIRED.

The bond for costs is for the benefit of the contestee. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).

And whether it be given or not in the first instance does not affect the jurisdiction of the court. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).

So contestee must object. If no bond for costs be given when the action is commenced, or if the one accepted be insufficient, it is incumbent upon the contestee, to object at the earliest opportunity. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).

Otherwise, he will waive his rights in this respect. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).

The cost bond should not be in any specified penalty, but should be conditioned for the payment of all costs. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).

But the contestee cannot object to the bond because a penalty is specified, in the absence of a showing that the penalty fixed is insufficient to cover the probable costs which he may incur in the case. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).

Attorney fees are not included in "all costs". Amaya v. Dist. Court, 197 Colo. 129, 590 P.2d 506 (1979).

IV. STATEMENT OF CONTEST.

A. Filing.

B. Requisites of Statement.

A. Filing.

The contest must be filed within 10 days after the date when the votes are canvassed. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).

And this means all the votes. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).

However, it does not mean a sufficient number to show that one or the other of the parties was elected. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).

But it means the votes of the entire county. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).

And if for any reason one or more precincts are not canvassed at the time of the first sitting of the board, the statute will not commence to run until those precincts are canvassed, even though the returns from those precincts, when counted, will not affect the result as between candidates for any single office. Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).

Moreover, the contest provision is to be construed as a statute of limitations upon a summary proceeding. Vailes v. Brown, 16 Colo. 462, 27 P. 945, 14 L.R.A. 120 (1891).

Whose time limit may not be enlarged. A statutory provision requiring notice of contest to be given within a given time from either the date of the official count, the declaration of the result, or the issuing of the certificate of election, etc., is peremptory, and the time cannot be enlarged. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).

And there is the strongest reason for enforcing this rule most rigidly in cases of contested elections, because promptness in commencing and prosecuting the proceedings is of the utmost importance to the end that a decision may be reached before the term has wholly, or in great part, expired. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).

Furthermore, time cannot be extended on ground that last day falls on Sunday. When the statutory period for filing the statement of an election contest for county officers under this section has fully elapsed, excluding the day when the votes are canvassed, the time cannot be extended merely on the ground that the last day happens to fall on Sunday. This is the reasonable as well as the natural and literal interpretation of the section. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).

Although it is clear that the first day must be excluded, for the contestor is given 10 days after the day when the votes are canvassed to file his statement. Vailes v. Brown, 16 Colo. 462, 27 P. 945 (1891).

B. Requisites of Statement.

There must be reasonable definiteness in statements of election contests. Suttle v. Sullivan, 131 Colo. 519, 283 P.2d 636 (1955).

A statement of contest which contains the averments and matters required by statute is sufficient to state a cause of action and sufficiently alleges the qualifications of the contestor to hold the office. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).

Hence, statement must include the particular cause of the contest. A contest proceeding is initiated by the filing of a statement of contest, the contents of which must conform to this section, and include the particular cause or causes of the contest. Gunson v. Baldauf, 88 Colo. 436, 297 P. 516 (1931).

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

Where the statement does not allege facts showing that the irregularities complained of changed the result of the election, the statement does not state a cause of action. Suttle v. Sullivan, 131 Colo. 519, 283 P.2d 636 (1955).

Statement of contestor that he is "an elector of the county" is a material averment and must be proved if denied by the answer or the contest as such must fail. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).

Nor is the contestor excused from producing evidence in support of such averment on the ground that other competent evidence is refused. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).

Statement may be amended as to proper name of contestee. Where there was an admitted mistake in naming the contestee in an election contest, a trial court errs in denying contestor's motion to amend the statement of contest. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).

V. ANSWER.

If contestee desires to controvert the truth of the matters averred in the statement of contest, he must do so by filing an answer in the time prescribed. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).

And contestee cannot avail himself of a demurrer (now motion to dismiss for failure to state a claim) for the purpose for which it is ordinarily used. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).

But if he elects to interpose such a demurrer (now motion to dismiss), it must be regarded as the equivalent of an answer admitting the truth of the matters averred, in which case it is unnecessary to introduce evidence in support of the allegations of the statement of contest. Lewis v. Boynton, 25 Colo. 486, 55 P. 732 (1898).

VI. RECEPTION OF ILLEGAL VOTES OR REJECTION OF LEGAL VOTES.

Although a slight ambiguity exists, the evident purpose of including the list of disputed votes is to require each party to give the other notice of the names of such persons as he claims illegally voted for his competitor and of those whose votes for himself were illegally rejected. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890).

This provision is mandatory. The provision that, where the reception of illegal votes is the ground of contest, a list of the persons alleged to have voted illegally must be set forth in the statement of contest is mandatory. Town of Sugar City v. Bd. of Comm'rs, 57 Colo. 432, 140 P. 809 (1914); Israel v. Wood, 98 Colo. 495, 56 P.2d 1324 (1936); Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).

And it must be strictly construed. Town of Sugar City v. Bd. of Comm'rs, 57 Colo. 432, 140 P. 809 (1914).

Moreover, the provisions of the rules of civil procedure have no application. Town of Sugar City v. Bd. of Comm'rs, 57 Colo. 432, 140 P. 809 (1914).

Consequently, in order to give the court jurisdiction, the contest statement must contain the required list. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890); Town of Sugar City v. Bd. of Comm'rs, 57 Colo. 432, 140 P. 809 (1914).

And an amendment to the statement to include the name of the voters is not permissible. Town of Sugar City v. Bd. of Comm'rs, 57 Colo. 432, 140 P. 809 (1914); Kay v. Strobeck, 81 Colo. 144, 254 P. 150 (1927).

Also, the omission to furnish the required list of names cannot be justified by subsequently alleging that the information necessary to prepare the same was in the hands of contestee by whose fraud and violence contestor was prevented from obtaining it when no effort was made in the first instance to either comply with the section or to excuse the failure. Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890).

Hence, there is no error in the refusal of the court to declare a vote illegal where the voter's name was not set forth in the statement of contest. Kay v. Strobeck, 81 Colo. 144, 254 P. 150 (1927).

List concerning absentee voters held not to meet requirements. Where exhibit incorporated into statement of contest contained a long list of names of persons applying for and voting absentee ballots, but there was nothing in the list to indicate how many persons therein named were not legally qualified residents of the county, or who were not qualified by reason of mental or physical incompetence, or who had subscribed to an oath before a person unauthorized to administer the same, the statement of contest failed to meet the requirements for supplying a list of disputed votes. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).

However, list not required where no "rejection" or "reception" of votes. In an election contest where the contestor alleged that two legal ballots had been rejected after they had been placed in the box, the polls had closed, and the ballots had been counted and canvassed, the ground of contest was not the "rejection" of legal votes or the "reception" of illegal votes, and the contestor was not required to set forth in his statement of contest a list of the number of persons who "so voted" or "offered to vote". Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).

And a vote is rejected when an elector offers to vote and is not permitted to cast a ballot; the rejected vote is a vote that is not cast - one that did not reach the ballot box. Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).

But if an elector is permitted to cast a ballot and to deposit it in the ballot box, the vote is accepted and must be counted unless it is attacked upon the other ground named in the statute, to wit, "the reception of illegal" votes, in which event the contest provision requires a list of the names of the persons who "so voted", that is, who voted illegally, to be set out in the statement of contest. Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).

For the term "so voted" refers to alleged illegal votes in the ballot box. Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).

While the term "or offered to vote" refers to electors, the rejected votes of whom were not cast or placed in the ballot box. Waggoner v. Barela, 123 Colo. 436, 230 P.2d 586 (1951).

Notwithstanding, illegal votes, whether challenged or not, may be considered in an election contest. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).

As there is no statutory requirement that contested votes must be votes which are challenged at the polling place. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).

However, where contestor alleges that an ineligible voter's ballot was received and counted for contestee, the burden is on the contestor to prove this necessary allegation contained in his statement of contest. Porter v. Johnson, 85 Colo. 440, 276 P. 333 (1929).

VII. REPLY TO COUNTERSTATEMENT.

Contestor's assertion of counterstatement's failure to state a claim does not deprive contestee's right to proof. In view of the specific denial of the charges made in the statement of contest, the counterstatement of contest filed by contestee, and the requirement that judgment be pronounced, it would be unreasonable to hold that the contestor's demurrer (now motion to dismiss for failure to state a claim) under such circumstances would deprive the contestee of the right to demand proof of the charges made by the contestor and to introduce testimony in support of his counterstatement of contest, inasmuch as such a ruling would deny the contestee his day in court. Gunson v. Baldauf, 88 Colo. 436, 297 P. 516 (1931).