Colorado Supreme Court declares disqualified Adams 12 School Board candidate “legally elected” but seat nonetheless vacant

The Colorado Supreme Court, in what appears to be a classic case of legal sophistry, held that a candidate disqualified from running for a school board elected office was nonetheless “legally elected” to that office – but, because she was “unqualified to serve” the seat is therefore vacant (and must be filled by a vacancy board appointment instead of by the legally qualified candidate who also ran).

In reviewing the court’s ruling, the appropriate response would seem to be

The court’s ruling –  No. 14SA235, Figueroa v. Speers – Election Law – Candidate Elected But Unqualified to Serve – held that “the unqualified candidate was legally elected despite not meeting the residency requirement” but that since “the candidate who was legally elected is not qualified to serve in the office for which she was elected, the supreme court upholds the trial court’s declaration of a vacancy in the contested office.”

So, in plain English – a candidate legally disqualified from running for office was “legally elected” but cannot take office because she was legally disqualified.

Truly, dizzying.

The court hangs its ruling on the fact that “although Speers was unqualified to serve, no court declared her to be unqualified until after voting had been completed.” [Emphasis added]

However, as noted in both the district court election challenge trial and in arguments before the Colorado Supreme Court itself, candidate Amy Speers was discovered to be ineligible only days before the election – and, despite notice, refused to withdraw her candidacy, as foreseen by law – and thus no court could possibly have issued any declaration prior to the election.

In fact, Speers’ candidacy was not only disqualified – but, arguably, perjurious, since she submitted a signed affidavit affirming that she “met all the requisite qualifications to hold the office.”

However, since the “sufficiency” of her affidavit was not challenged “within the respective five-day windows under section 1-4-909(1), C.R.S. (2014) (allowing five days to challenge the sufficiency of a petition before certification), or section 1-4-501(3), C.R.S. (2014) (allowing five additional days to challenge the certification of a candidate to the ballot)” and was not caught by the certifying officer, her certification to the ballot was held to be valid “despite Speers’s unwitting failure to meet the residency requirement.” [Ruling at 3]

The dizziness only gets better.

Ironically, the court noted that the certifying authority [Mullins] promptly requested that Speers withdraw from the race, which Speers refused to do. Mullins then notified the relevant county clerks to withdraw Speers’s name, but the clerks similarly refused to do so. Nobody involved requested judicial intervention of any kind prior to the election, and voting proceeded with both candidates remaining on the ballot.” [Ibid]

Ironic – because the court itself struck down the only attempt at “judicial intervention” in the form of an emergency rule issued by the Secretary of State in the Hanlen v. Gessler case, which held that “questions regarding a certified candidate’s eligibility [must] be determined by a court, not an election official.”

The court’s ruling is troubling on another level, as well.  By asserting sole authority to act as the arbiter of certifying candidate eligibility (rather than election officials, who have that duty in their job description) the court places itself squarely in the midst of the political process.  The increasing, and willful, self-politicization of the state’s judicial branch is (or should be) deeply troubling to anyone concerned with fair electoral process.

Although the court was at least consistent in voiding the election post-hoc for the ineligible candidate –

recognizing that a legally elected person is entitled to take office only “upon proper qualification” and instructing the court to set aside an election and declare a vacancy in the contested office if no person was legally elected [Ruling at 10]

it appears to be inconsistent in defining just what constitutes “legally elected” to (or even qualified to run for) public office.

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

The court apparently rejected the argument 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.

Did the court’s ruling open the door for “sham candidates” to disrupt future elections?

Only time will tell.

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

• Contested School Board Election “Win” by Disqualified Candidate Argued Before Colorado Supreme Court
• Disqualified Adams County School Board candidate awarded “win” after District Court ruling; Secretary of State appeals
• Colorado Supreme Court hears arguments in Adams 12 election case, Denver Post 29 January 2014
• Adams 12 candidate’s votes must be counted, judge rules  (Broomfield Enterprise, 19 Nov 2013)