Colorado Supreme Court strikes down SOS emergency rule to block vote counting for disqualified school board candidate
The Colorado Supreme Court issued a ruling last week striking down the election-day emergency rule issued by the Colorado Secretary of State to block counting of votes for an ineligible candidate in the Adams-12 school board elections last November (the case was argued before the Colorado Supreme Court at the end of January). The ruling upholds part of a lower court ruling that awarded an electoral “win” to the ineligible candidate, but sends the bulk of the substantive issues back to trial court to resolve the results of the contested election.
The Colorado Supreme Court ruling struck down the emergency rule based on two factors:
- Conflict with statutory language governing withdrawals and vacancies for candidates; and
- Conflict with statutory language granting courts – not election officials – authority to determine challenges to candidate eligibility
The statute cited by the court majority – C.R.S. 1-4-1002 – governs “withdrawals from and vacancies in nominations and designations” – expressly deals with vacancies occurring for a variety of reasons after certification of candidacy and issue of ballots but before election day:
vacancy in a party nomination occurring less than eighteen days before the general election that is caused by the declination, death, disqualification, or withdrawal of any person
However, that statute applies expressly to partisan elections – which were explicitly excluded from application of the rule, in the language of the rule, as noted in Justice Eid’s dissent:
Except in the case of a vacancy to be filled in accordance with the provisions of section 1-4-1002 (2.3) or (2.5) [the partisan vacancy provisions], if the ballots are already printed, the votes cast for the withdrawn or deceased candidate are invalid and shall not be counted. [Dissent at 2, footnote 1]
The court’s majority is on somewhat less shaky ground in citing statute(s) requiring “issues regarding a certified candidate’s eligibility to be determined by the courts.” [Ruling at 3] The majority opinion raises the concern that under the SOS Rule, determination of a candidate’s qualification for office could be “unilaterally” determined by election official(s), potentially depriving candidates of due process.
As noted in the majority opinion,
Once an election official has verified a petition or certificate of designation or nomination and determined that it appears to be sufficient, the election code expressly grants courts – not election officials – the authority to determine subsequent questions concerning a candidate’s eligibility. [C.R.S. 1-4-1002(2.5)(a)]
The majority also noted that “challenges to a candidate’s eligibility can be raised by any eligible elector at multiple junctures in the election process, and specifically that Section 1-11-201(1)(a) expressly provides that an election challenge may be brought on grounds that “the candidate elected is not eligible to hold the office for which elected.” [Ruling at 21]
Indeed, a post-election challenge has been filed in Broomfield District Court concerning the school district director election underlying this case. Any issues in that election concerning the challenged candidate’s eligibility for office, and any potential controversy regarding the school district director vacancy provision in section 22-31-129, are properly resolved by that court; we do not opine on the merits of that dispute here. [Ruling at 3]
The dissent notes, however, that under the SOS rule, any determination by the “designated election official” is not unilateral, but remains subject to judicial review under the procedures set forth in section 1-1-113(1)” [Dissent at 4]
Most importantly – although the majority opinion expressly declined to rule on the merits of whether the ineligible candidate was – or could be – “duly elected” despite her ineligibility to run for the contested office in the first place – the ruling, by failing to expressly strike down the district court’s “duly elected” rationale, may have prejudiced the trial court in the pending election contest in Broomfield District Court and lead to the facially absurd result that a candidate ineligible to run for or hold office could “win” an election and “shifting the power of selecting a candidate from the electorate to the school board” vacancy committee. [Dissent at 6]
References and Analysis:
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)
The election contest now moves to the Broomfield District Court for trial proceedings.
It may still 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:
- Colorado Supreme Court ruling in 13SA306 Hanlen v. Gessler
- 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)
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions.
Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.