Contested School Board Election “Win” by Disqualified Candidate Argued Before Colorado Supreme Court

Challengers and supporters of a lower court order awarding a “win” to a disqualified candidate for School Board in Colorado’s Adams-12 school district argued their respective cases last week before the Colorado Supreme Court.

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.  Supporters of the disqualified candidate filed suit a week after the election, claiming that votes for Speers should be counted (although she was ineligible and cannot take office) in order to trigger a vacancy appointment.  A lower court agreed, and awarded the “win” to the disqualified candidate, triggering the appeal and review by the Colorado Supreme Court.

Much of the argument presented before the court revolved around jurisdictional and procedural technicalities, including the appropriate type and statutory grounds for filing a challenge.  The authority of the Secretary of State to order an emergency rule to resolve the controversy was also at issue. Other points were made, however, that have bearing on future elections in more general terms.

Key Arguments:

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

Attorneys for the state argued that “a person cannot be a “duly nominated” candidate or a “duly elected” officer if the individual does not meet the qualifications for office. ”
This argument is important not only because it would eliminate the election controversy “ab initio” – since
“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)
It is also important because it would “prevent use of sham candidates” – popular figures ineligible to actually run for office serving as stand-in vote-getters.

• Can a vacancy committee appoint a successor to someone never eligible or elected to take 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.  However, the applicable statute (C.R.S. 22-31-129) contemplates vacancy replacements for officers – not candidates.  Since unelected candidates are not officers, they cannot have a “successor” appointed to an office they never held.

•  Can a candidate be removed from the ballot for reasons other than death or withdrawal?

Supporters of the disqualified candidate based their legal argument on statutory language addressing the correction of errors in ballots (C.R.S. 1-5-412) which lists only death or withdrawal as grounds for not counting votes:

if the ballots are already printed, the votes cast for the withdrawn or deceased candidate are invalid and shall not be counted.

This argument generated the most questions from the bench, and appeared to trouble several of the justices, particularly in light of the fact that the disqualified candidate was notified of ineligibility and requested to withdraw, but refused to do so.  One justice questioned what might happen were a dog to get certified on the ballot, then neither die nor withdraw its (canine?) candidacy; another noted that an unqualified candidate could thus be placed in position to determine the outcome of an election – remaining on the ballot simply by refusing to withdraw.  Attorneys argued back and forth about whether there was a “gap” in the law that necessitated the Secretary of State issuing an emergency rule, or whether “death or withdrawal” was exhaustive and exclusive.

 Quo Vadis?

The Colorado Supreme Court is likely to issue a decision within the month; based on arguments presented and questions asked at the hearing, it appears likely that neither side will come away entirely satisfied; a split decision is likely, both in terms of votes and resolution of issues.

In any event, even a definitive ruling by the court may not produce a final outcome in the school board election, since a separate election contest has been filed and will move forward once this court rules (the election contest is only partially contingent on the Colorado Supreme Court ruling in this case).

Welcome to the age of court-contested elections – at ALL levels.

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

• Colorado Supreme Court hears arguments in Adams 12 election case, Denver Post 29 January 2014
• Colorado Supreme Court to hear oral arguments in Adams 12 school board election case,
  Westword 16 January 2014
• 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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