Colorado § 1-7-309 - Determination of improperly marked ballots.

§ 1-7-309. Determination of improperly marked ballots.

(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; except that an elector's rankings of multiple candidates in an election using instant runoff voting shall be recorded and counted in accordance with section 1-7-1003 and rules promulgated by the secretary of state.

(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. L. 2021: (1) amended, (HB 21-1071), ch. 367, p. 2420, § 11, effective July 1, 2022.

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 and 1-7-304 (1); for the method of counting paper ballots, see § 1-7-307.

ANNOTATION

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).

PART 4

VOTING MACHINES