Disqualified Adams County School Board candidate awarded “win” after District Court ruling; Secretary of State appeals

School Board election results in the Adams-12 school district were upended at the start of this week after a Denver District Court judge ruled that votes cast for an ineligible candidate must be counted – and the ineligible candidate received more votes than her opponent.

Candidate Amy Speers was discovered to be ineligible only days before election day (although many ballots had already been cast in the mail-ballot-only election) because she did not reside in the district.  Although declared ineligible, Ms. Speers declined to officially withdraw from the race, leading to an Election-day ruling by the Office of Secretary of State that votes for the ineligible candidate should not be counted:

Secretary of State Scott Gessler issued an emergency rule today following the announcement by the Adams and Broomfield County Clerks that they would tabulate votes for Amy Speers, whose name appears on the ballot in the Adams 12 Five Star Schools District 4 school board race. Speers was erroneously included on the ballot- only after ballots were printed was it determined that she lived outside the District 4 boundaries and was therefore not eligible to be a candidate for that race.

“No one disputes that after the school board erroneously certified Amy Speers as a candidate, it corrected the error and notified both Adams and Broomfield County that Ms. Speers is ineligible to run for office. We have spoken with the Clerks on this issue. They asked for clarification in the form of a rule. We have issued an emergency rule to provide that guidance so that we avoid confusion.”

Just over a week after the election, some district residents (represented by Democrat Party attorney Martha Tierney and attorney Ed Ramey) filed suit, claiming that votes for Speers should be counted (although she was ineligible and cannot take office) in order to trigger a vacancy appointment:

Ed Ramey, the lawyer for the school district residents who filed the lawsuit, argued that the law that applies to school boards says if a “duly elected” person lives outside his or her district, the seat is vacated; it doesn’t default (“Disqualified candidate wins Adams 12 school board race after new count” Denver Post 19 Nov 2013)

Colorado Secretary of State Scott Gessler appealed the District court’s late-Monday ruling to the Colorado Supreme Court on Thursday.

Can Ineligible Candidates be “Duly Elected” to Public Office?

Plaintiffs in the lawsuit seeking to count votes cast for the ineligible candidate (Speers) did not intend that she actually take office, but that she count as “duly elected” for the purpose of allowing the incumbent school board (not the district’s voters) to select a replacement via vacancy appointment.  Thus, achieving the legal status of “duly elected” would not equal actual election to (and occupation of) the office sought, but merely serve as a legal fiction to allow a vacancy appointment instead.

Plaintiffs based their argument on a particular parsing of the elections law:

Denver attorney Edward Ramey, one of the plaintiffs’ lawyers, said Hyatt’s oral ruling was guided by Colorado law, which provides only two circumstances in which votes are deemed invalid and therefore not to be counted — death or withdrawal of a candidate.

“Ms. Speers has neither died nor withdrawn to my knowledge,” Ramey wrote in an email.

However, Speers HAD been requested to withdraw by the Designated Election Official prior to election day (albeit after ballots had been printed, mailed, and in many cases voted on due to the mail-ballot nature of the coordinated election):

Once Ms. Speers’ disqualification and the error in certification of her candidacy were discovered, the school district, as the Designated Election Official, requested that Ms. Speers “submit a notice of withdrawal pursuant to C.R.S. § 1-5-412.” See Exhibits A and B to Brief in Opposition (letters from school district to Ms. Speers). Although she acknowledged her ineligibility to hold office, Ms. Speers declined to withdraw from the race.  (SOS Appeal for Review at 6)

In any case, as noted in the Secretary of State’s Appeal:

• A person cannot be a “duly nominated” candidate or a “duly elected” officer if the individual does not meet the qualifications for office. Brief in Opposition at 15.
• The vacancy statute in § 22-31-129(1) is inapplicable to this situation because Ms. Speers cannot legally be certified as the winning candidate, has not been “duly elected” for the director district 4 seat, and cannot initiate a valid term of office by swearing the oath of office because she did not meet the mandatory qualifications to become a candidate for office as set forth in § 22-31-107(1) at the time she became a candidate. Brief in Opposition at 18-20.

Colorado’s ballot access statute (§ 1-4-501(1) C.R.S.) states: “No person is eligible to be a designee or candidate for office unless that person fully meets the qualifications of that office as stated in constitution and statutes of this state on or before the date of the term of that office begins.”

Ergo, “a run for office by an unqualified individual is void rather than voidable. It should be considered “a nullity, invalid ab initio, or from the beginning, for any purpose.” Delsas v. Centex Home Equity Co., 186 P.3d 141, 144 (Colo. App. 2008).  (SOS Appeal for Review at 28)

 Quo Vadis?

The Colorado Supreme Court is not required to take up the appeal, but given the issues at stake (not just the results of the Adams-12 School Board election, but more generally, the issue of candidate eligibility, election certification and the Secretary of State’s authority for rulemaking), consideration of the case on appeal is highly likely.

It may yet be some time before the final results of the Adams-12 School Board election are known (or, indeed, actually final).

Read more about the Adams-12 School Board Candidate Eligibility case:

• Notice of Temporary Adoption – Election Rules 8 CCR 1505-1
• Verified Complaint for Judicial Review of Emergency Election Rule
• Secretary’s Brief in Opposition to Verified Complaint for Judicial Review
• Ex A to SOS Brief
• Ex B to SOS Brief
• Ex C to SOS Brief
• Ex D to SOS Brief
• Ex E to SOS Brief
• SOS Appeal for Review
• Adams 12 candidate’s votes must be counted, judge rules  (Broomfield Enterprise, 19 Nov 2013)

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