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ADVANCE SHEET HEADNOTE

April 23, 2018

2018 CO 30

No. 18SA176, Kuhn v. Williams—Election Law.

In this expedited appeal under section 1-1-113(3), C.R.S. (2017), the supreme 

court addresses whether the Colorado Secretary of State (“the Secretary”) may certify 

incumbent Representative Doug Lamborn to the 2018 Republican primary ballot for 

Colorado’s Fifth Congressional District. Relying solely on the Colorado Election Code,

the supreme court concludes he may not.

The supreme court holds that although the Secretary properly relied on the 

circulator’s affidavit and information in the voter registration system in verifying the 

petition and issuing a statement of sufficiency, the Petitioners nonetheless had the 

statutory right to challenge the validity of the petition under sections 1-4-909 and 

1-1-113, C.R.S. (2017), before the Secretary certified Representative Lamborn’s name to 

the ballot. The Petitioners properly presented additional evidence to the district court 

in challenging the actual residence of the petition circulators. 

The supreme court concludes the district erred when it focused on the challenged 

circulator’s subjective intent to move back to Colorado, rather than the test set forth in 

section 1-2-102, when determining the challenged circulator’s residency. In applying 
the correct test to the essentially undisputed facts here, the supreme court concludes 

that the challenged circulator was not a resident of Colorado when he served as a 

circulator for the Lamborn Campaign. Accordingly, the supreme court reverses the 

district court’s ruling to the contrary. Because the challenged circulator was statutorily 

ineligible to serve as a circulator, the signatures he collected are invalid and may not be 

considered. That causes the Lamborn Campaign’s number of signatures to fall short of 

the 1000 required to be on the Republican primary ballot. Therefore, the supreme court 

holds that the Secretary may not certify Representative Lamborn to the 2018 primary 

ballot for Colorado’s Fifth Congressional District.

The supreme court does not address the Lamborn Campaign’s arguments 

regarding the constitutionality of the circulator residency requirement in section 

1-4-905(1), because the supreme court lacks jurisdiction to address such claims in a 

proceeding under section 1-1-113.
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2018 CO 30

Supreme Court Case No. 18SA176

Appeal Pursuant to § 1-1-113(3), C.R.S. (2017) 

District Court, City and County of Denver, Case No. 18CV31151

Honorable Brian R. Whitney, Judge

Petitioners-Appellants:

Michael Kuhn, Ashlee Springer, Lydia K. Honken, Jeremy Isaac, and Sharon M. Schafer,

v.

Respondent-Appellee:

Wayne W. Williams, in his official capacity as the Colorado Secretary of State,

and

Intervenor-Appellee:

Lamborn for Congress.

Order Reversed

en banc

April 23, 2018

Attorneys for Petitioners-Appellants:

Statecraft PLLC

Michael Francisco

Colorado Springs, Colorado

Attorneys for Respondent-Appellee:

Cynthia H. Coffman, Attorney General

LeeAnn Morrill, First Assistant Attorney General

Matthew D. Grove, Assistant Solicitor General

Emily Buckley, Assistant Attorney General

Denver, Colorado

Attorneys for Intervenor-Appellee:

Hale Westfall LLP

Ryan R. Call

Richard A. Westfall
2

Denver, Colorado

Attorneys for Amici Curiae Colorado Legislators:

Lewis Roca Rothgerber Christie LLP

Thomas M. Rogers III

Dietrich C. Hoefner

Hermine Kallman

Denver, Colorado

Attorneys for Amici Curiae Ted Harvey, Senator Jerry Sonenberg, Senator John 

Cook, and Greg Brophy:

Klenda Gessler & Blue

Geoffrey N. Blue

Scott E. Gessler

Denver, Colorado

PER CURIAM
3

¶1 In this expedited appeal under section 1-1-113(3), C.R.S. (2017), we address 

whether the Colorado Secretary of State (“the Secretary”) may certify incumbent 

Representative Doug Lamborn to the 2018 Republican primary ballot for Colorado’s 

Fifth Congressional District. Relying solely on the Colorado Election Code, we 

conclude he may not.1

¶2 A major-party candidate in a partisan election may seek access to the primary 

ballot either through the party assembly process or by petition. Lamborn for Congress 

(hereinafter the “Lamborn Campaign”), the authorized federal campaign committee of 

Representative Doug Lamborn, chose the latter. Under section 1-4-801(2)(b), C.R.S. 

(2017), of the Colorado Election Code, he needed 1000 verified signatures from 

registered Republicans in the Fifth Congressional District to qualify for the ballot. His 

campaign hired an organization to circulate petitions and obtain the requisite 

signatures. The campaign then submitted the petition and signatures to the Secretary 

for review and verification.

¶3 After completing his review, the Secretary determined that the Lamborn

Campaign had submitted 1269 valid signatures, so he issued a statement of sufficiency 

pursuant to section 1-4-908(3), C.R.S. (2017). Shortly thereafter, Petitioners filed a 

petition in the district court under sections 1-1-113(1) and 1-4-909(1), C.R.S. (2017),

 

1 We emphasize at the outset the narrow nature of our review under section 1-1-113. 

We do not address the Lamborn Campaign’s arguments challenging the 

constitutionality of Colorado’s circulator residency requirement because such claims

exceed this court’s jurisdiction in a section 1-1-113 action. We therefore express no 

opinion on the constitutionality of the residency requirement in section 1-4-905(1), 

C.R.S. (2017).
4

protesting the Secretary’s finding of sufficiency on grounds that several of the Lamborn 

Campaign’s petition circulators were not bona fide residents of Colorado, as required 

by section 1-4-905(1) of the Election Code. 

¶4 On April 10, 2018, the district court held a hearing on the Petitioners’ claims. 

Petitioners asserted, in part, that it would be a breach or neglect of duty under section 

1-4-908(3) for the Secretary to certify Representative Lamborn’s name to the primary 

election ballot if the necessary signatures were not collected by Colorado residents. 

Petitioners’ arguments to the district court focused principally on two circulators: 

Jeffrey Carter and Ryan Tipple. Following a hearing, the district court concluded that 

Carter was not a resident, and therefore invalidated the 58 signatures he collected. No 

party challenges that ruling.

¶5 This appeal focuses on the 269 signatures gathered by Tipple. Without those 

signatures, Representative Lamborn does not have enough signatures to qualify for the 

ballot. The district court concluded that Tipple’s stated long-term intent to become a 

resident of Colorado satisfied the circulator residency requirement. Because the 

signatures Tipple collected meant that the Lamborn Campaign had satisfied the 

statutory threshold, the court denied Petitioners’ request for relief and upheld the 

Secretary’s finding of sufficiency. Petitioners appealed to us under section 1-1-113(3), 

and we exercised our discretion to review the district court’s ruling.

¶6 We reverse. Although the Secretary properly relied on the circulator affidavits 

and information in the statewide voter registration system in reviewing the sufficiency 

of the petition, section 1-4-909(1) of the Election Code nevertheless affords a narrow 
5

opportunity to challenge the validity of a candidate’s petition before the Secretary 

certifies the candidate to the ballot. Petitioners properly availed themselves of that 

opportunity and challenged the residency of some of the petition circulators for the 

Lamborn Campaign, including Tipple. We reverse the district court’s ruling that Tipple 

is a resident of Colorado. The district court improperly focused on Tipple’s stated 

future intent to move to Colorado, rather than considering whether Tipple presently has

a primary or principal place of abode in Colorado to which he intends to return, as 

confirmed by objective indicia of such residency. 

I. Facts and Procedural History

¶7 We start by identifying the parties. Intervenor Lamborn for Congress 

(hereinafter the “Lamborn Campaign”) is the authorized federal campaign committee 

of Doug Lamborn, the incumbent representative for Colorado’s Fifth Congressional 

District (“CD5”). Representative Lamborn is a Republican, seeking reelection for a 

seventh term. Petitioners Michael Kuhn, Ashlee Springer, Lydia K. Honken, Jeremy 

Isaac, and Sharon M. Schafer are registered voters from CD5 (collectively referred to as 

“the protesters”). Respondent Wayne Williams is the Colorado Secretary of State.

¶8 In Colorado, major-party candidates can qualify for the primary ballot through 

the traditional party caucus and assembly process, § 1-4-601, C.R.S. (2017), or by 

gathering signatures of electors on a petition. § 1-4-801, C.R.S. (2017). The Lamborn 

Campaign, on behalf of Representative Lamborn, used the petition process to seek 

access to the primary ballot. 
6

¶9 Colorado law requires that a major-party candidate in a partisan election seeking 

to petition onto the primary ballot must present to the Secretary at least 1000 signatures 

(or 30% of the votes cast at the preceding primary election, if fewer than 1000), from 

electors registered in their district, § 1-4-801(2)(b), who are affiliated with the

candidate’s party, § 1-4-904(2)(a), C.R.S. (2017). 

¶10 Section 1-4-905(1) outlines several requirements of the people collecting the 

signatures, known as circulators:

No person shall circulate a petition to nominate a candidate unless the 

person is a resident of the state, a citizen of the United States, at least 

eighteen years of age, and, for partisan candidates, registered to vote and 

affiliated with the political party mentioned in the petition at the time the 

petition is circulated, as shown in the statewide voter registration system.

(Emphasis added.) Additionally, for each petition section, a circulator must attach a 

signed, notarized, and dated affidavit that includes, among other information, “a 

statement that the affiant was a resident of the state, a citizen of the United States, and 

at least eighteen years of age at the time the section of the petition was circulated and 

signed by the listed electors.” § 1-4-905(2), C.R.S. (2017) (emphasis added). Finally, the

designated election official “shall not accept for filing any section of a petition which 

does not have attached to it the notarized affidavit required by this section.” 

§ 1-4-905(3), C.R.S. (2017).

¶11 On March 6, 2018, the Lamborn Campaign submitted 1783 signatures to the 

Secretary.

¶12 On March 29, 2018, the Secretary issued a statement of sufficiency, finding 1269 

of the signatures were from eligible and registered CD5 Republican voters. Under 
7

section 1-4-909(1), if a petition that appears to be sufficient is not challenged within five 

days of the statement of sufficiency being issued, it is deemed valid.

¶13 After noticing that six of the circulators with different last names all listed the 

same address in Thornton as their permanent residence, the protesters investigated the 

veracity of the circulators’ representations regarding their ties to Colorado. 

¶14 On April 3, 2018, the protesters filed a verified petition in Denver District Court

under sections 1-1-113(1) and 1-4-909(1), alleging seven of the Lamborn Campaign’s 

circulators did not meet the statutory residency requirements under section 1-4-905.

2

As a result, the protesters claim, it would be a breach or neglect of duty under section 1-

4-908(3) for the Secretary to certify Representative Lamborn’s name to the primary 

election ballot. 

¶15 On April 10, 2018, the district court held a hearing on the protesters’ claims. The 

day before the hearing, the Lamborn Campaign filed a motion to intervene, which the 

district court granted. At the hearing, the protesters presented evidence regarding the 

residency of seven of the circulators at the time they circulated petitions for the 

Lamborn Campaign. 

¶16 Tipple testified by phone (because he was closing on a house that day in 

California). Under oath, he shared the following facts:

 

2 The protesters do not question the identity of the circulators, their status as U.S. 

citizens, their ages, their compliance with the affidavit requirements, or their status as 

registered Republicans in Colorado’s statewide voter registration system before they 

collected the signatures in question. The protesters also do not challenge the validity of 

the signatures obtained by the circulators.
8

• In 2008, he and his wife and their daughter moved to Colorado, where his wife 

had grown up, and they “realized that’s where [they] would like to stay.” 

Tipple’s in-laws live in Colorado Springs. While living in Colorado, Tipple and 

his wife had a boy they named “Breck,” after the town of Breckenridge, 

Colorado.

• In 2008 and 2009, the economic slowdown caused Tipple’s employer to reassign 

him to a project in Texas. His company subsequently moved him around the 

country for various projects, during which time Tipple made occasional trips to 

Colorado, at least once for work.

• Around 2016, Tipple was laid off.

• Since at least 2016, Tipple has lived in Ventura, California with his wife and four 

children. Most of Tipple’s personal property is located in the Ventura home. 

• Since 2016, Tipple has worked as a house flipper in California. He also drives for 

Lyft and Uber in California. 

• In 2017, Tipple paid taxes as a resident in California. Tipple acknowledged that 

last year he spent the “overwhelming majority” of his time working in 

California. 

• In January 2018, Tipple owned two cars registered in California and had a 

California driver’s license with an expiration date in November 2018. He did not 

have a Colorado driver’s license when he circulated the petition. 

• He is registered to vote in California. 

• He and his family spend the vast majority of their time in California. He “might 

have” spent 30 days in Colorado last year. 

• Tipple came to Colorado on a round-trip ticket scheduled for January 15 to 

January 26, 2018, during which time he worked as a circulator for the Lamborn 

Campaign. While doing so, he stayed with his in-laws.

¶17 Tipple registered to vote in Colorado on May 9, 2016 (when he was in Colorado 

for an earlier stint as a circulator). For his Colorado voter registration, Tipple listed his 

in-laws’ house in Colorado Springs as his primary residence.

¶18 Tipple testified he would like to move to Colorado, if he could secure long-term 

employment here. When discussing his job flipping houses, he said, “[I]deally I would 
9

be able to do that back in Colorado . . . .” When asked whether he was mistaken in 

claiming Colorado residence, Tipple testified, “Well, I—I consider myself more a 

resident of Colorado in—in the long-term, uh, since having moved there in 2008.” The 

Secretary asked whether Tipple considered himself a Colorado resident at the time he 

circulated the petition, to which Tipple responded: “Uh, as—as I mentioned earlier, 

uh—in—in a long-term sense, yes.” 

¶19 Ruling from the bench, the district court denied the relief requested by the 

protesters. The district court looked at whether “the circulators were in substantial 

compliance with the . . . election laws.” The district court summarized its perception of 

the relevant law as, “What really governs under the—under the liberal reading of the 

election laws is the person’s intent when they sign up to be a voter here in Colorado. 

Their intent to make Colorado their permanent home.” 

¶20 The district court concluded that five of the challenged circulators met 

Colorado’s residency requirements, because they testified that when they registered to 

vote they intended to stay in Colorado, and they did not immediately leave the state

after concluding their work for the Lamborn Campaign. 

¶21 The district court found the other two circulators more problematic. The district 

court found by a preponderance of the evidence that one of the circulators, Jeffrey 

Carter, “wasn’t, for the purposes of [the] statute, a registered voter” because, despite 

professing an intent to live in Colorado, at the relevant time he was actually looking for 

a job in Missouri while also traveling around the country working as a circulator. 

Having determined that Carter was not a resident of Colorado when he served as a 
10

circulator, the district court struck the 58 signatures collected by Carter. This brought 

down the Lamborn Campaign’s valid signature total down to 1211 signatures. No 

party challenges the district court’s ruling as to Carter.

¶22 As for Tipple, the district court began by noting Tipple’s family ties to Colorado. 

The district court then focused on Tipple’s subjective intent to live in Colorado again in 

the future. It noted that “he had every intent of . . . becoming a resident of the state of 

Colorado. He just hadn’t done so then.” The court also observed that “at the time that 

he was circulating petitions, Mr. Tipple fits the definition of what would fit a registered 

voter. Someone who is attempting to move to the state of Colorado.” The court 

concluded that Tipple was a resident and refused to strike the signatures collected by 

Tipple.

¶23 Because it found more than 1000 signatures to be valid, the district court denied 

the protesters’ request to order the Secretary to refrain from certifying Representative 

Lamborn’s name to the primary ballot.

¶24 On April 13, 2018, the protesters asked this court to review the district court’s 

determination. The protesters argue the district court erred by using an incorrect test to 

determine the circulator’s residency.

¶25 We accepted jurisdiction.3 

 

3 We exercised our jurisdiction to address the following reframed issues:

1. [REFRAMED] What sources of information must the Colorado 

Secretary of State review to confirm a circulator’s residency in 

evaluating the sufficiency of a major party candidate’s petition to be on 

the ballot in a partisan election?
11

II. Standard of Review

¶26 In reviewing the district court’s order, we defer to a district court’s findings of 

fact if they are supported by the record, Jones v. Samora, 2014 CO 4, ¶ 14, 318 P.3d 462, 

467, and we review the district court’s legal determinations de novo, Hanlen v. Gessler, 

2014 CO 24, ¶ 33, 333 P.3d 41, 48. 

III. Analysis

¶27 We first consider what sources of information the Secretary must use to verify a 

major-party candidate petition in a partisan election. Sections 1-4-905(1) and 1-4-908(1) 

require the Secretary to compare the petition information against voter registration 

records to verify the petition. Section 1-4-905(3) also forbids the Secretary from 

accepting any section of a petition that does not have attached to it the notarized 

circulator affidavit required by section 1-4-905(2). Finally, section 1-4-908(1.5) requires 

the Secretary to compare each signature on a candidate petition with the signature of 

the eligible elector stored in the statewide voter registration system. Here, the Secretary

properly relied on the information in the statewide voter registration system and the

 

2. [REFRAMED] If the Colorado Secretary of State properly certifies the 

sufficiency of a major party candidate’s petition to be on the ballot in a 

partisan election, may the Petitioners nonetheless seek, through a 

proceeding under C.R.S. § 1-1-113, to challenge the residency status of 

a circulator?

3. [REFRAMED] If the Petitioners may challenge the residency status of a 

circulator through a proceeding under C.R.S. § 1-1-113 after the 

Colorado Secretary of State has properly certified the sufficiency of the 

petition, should the reviewing court consider the circulator’s subjective 

intent regarding residency or instead rely merely on C.R.S. § 1-2-102 in 

assessing the residency of the circulator?
12

circulator affidavits in reviewing the sufficiency of the petition. The Secretary is neither 

obligated nor equipped to do more.

¶28 The question then becomes whether the review process must end there. In other 

words, does section 1-1-113 allow a protester to challenge the underlying validity of the 

information on which the Secretary legitimately relied? We answer that question in the 

affirmative. Section 1-4-908(3) provides that upon determining that the petition is 

sufficient, the designated election official “shall certify the candidate to the ballot”—but 

only “after the time for protest has passed.” Section 1-4-909(1) expressly provides that 

after a candidate petition “has been verified and appears to be sufficient,” a petition 

pursuant to section 1-1-113 “for a review of the validity of the [candidate] petition” may 

be filed with the district court within five days after the election official issues a 

statement of sufficiency. In the section 1-1-113 proceeding, a protester may present

additional evidence as to a circulator’s compliance with the strictures of section 1-4-905. 

In other words, the protesters here had a narrow opportunity to probe whether Tipple 

really was a Colorado resident when he acted as a circulator for the Lamborn 

Campaign.

¶29 Because the protesters timely challenged the validity of Tipple’s residency, we 

turn to whether the district court erred by focusing almost exclusively on the 

circulator’s subjective intent to move back to Colorado. We conclude that it did err, and 

that it should have instead considered whether Tipple already had a primary or 

principal place of abode in Colorado to which he presently intended to return, as 

confirmed by objective indicia of such residency. In examining the essentially
13

undisputed facts before us here, we conclude that Tipple was not a Colorado resident 

when he acted as a circulator for the Lamborn Campaign. 

A. The Secretary Properly Relied on Information in the 

Statewide Voter Registration System and Circulator 

Affidavits in Verifying the Candidate-Nomination Petition

¶30 Each candidate-nomination petition must include a signed, notarized, and dated 

affidavit executed by the person who circulated the petition. § 1-4-905(2). That affidavit 

must include, among other things, the circulator’s address and a statement that the 

circulator was a resident of the state at the time he circulated the petition signed by the 

listed electors. Id. The designated election official shall not accept for filing any section 

of a petition that does not have attached to it the notarized affidavit required by this 

section. § 1-4-905(3).

¶31 After receiving a candidate-nomination petition, the Secretary must verify the 

petition information, including the circulator affidavit, against voter registration 

records. §§ 1-4-905(1), -908(1), -908(1.5). 

¶32 Section 1-4-908(1) creates this responsibility as to all petition information: “Upon 

filing, the designated election official for the political subdivision shall review all 

petition information and verify the information against the registration records, and, 

where applicable, the county assessor’s records.” (Emphasis added.) For all petitions, 

the Secretary must also verify the collected signatures. § 1-4-908(1.5). The Secretary 

must compare the collected signatures against the signatures of eligible electors stored 

in the statewide voter registration system. Id.
14

¶33 Section 1-4-905(1) echoes this responsibility as to the voter registration and party 

affiliation of circulators:

No person shall circulate a petition to nominate a candidate unless the 

person is a resident of the state, a citizen of the United States, at least 

eighteen years of age, and, for partisan candidates, registered to vote and 

affiliated with the political party mentioned in the petition at the time the

petition is circulated, as shown in the statewide voter registration system.

(Emphases added.) The affidavit required by section 1-4-905(2) supplies the facial 

information verifying a circulator’s residency. Section 1-4-905(2) requires the circulator 

to provide “a signed, notarized, and dated affidavit,” containing, among other 

information, that the circulator “was a resident of the state” at the time the section of the 

petition was circulated. Under section 1-4-905(3), the election official shall not accept 

any petition section that does not have attached a notarized affidavit containing the 

information required by section 1-4-905(2). 

¶34 After receiving a petition, the Secretary subjects it to a paper review. In 

conducting that paper review, the Secretary properly relies on the voter registration 

database information and the affidavit provided by the circulator. As a practical matter, 

the Secretary’s office is not equipped to further investigate residency or other 

requirements.

¶35 Here, the protesters do not dispute that the Secretary followed the appropriate 

verification procedures to do a facial verification of Tipple’s information. Instead, they 

look to the courts for vindication. So, we must address whether judicial review of the 

Secretary’s decision is allowed under section 1-1-113.
15

B. The Protesters May Challenge a Circulator’s Residency in a

Section 1-1-113 Proceeding

¶36 The protesters have sought to challenge Tipple’s status as a Colorado resident 

(and thus, the validity of the Lamborn Campaign’s petition) through a section 1-1-113

proceeding. Section 1-1-113(1) states, in relevant part, the following:

When any controversy arises between any official charged with any duty 

or function under this code and any candidate, or any officers or 

representatives of a political party, or any persons who have made 

nominations or when any eligible elector files a verified petition in a 

district court of competent jurisdiction alleging that a person charged with 

a duty under this code has committed or is about to commit a breach or 

neglect of duty or other wrongful act, after notice to the official which 

includes an opportunity to be heard, upon a finding of good cause, the 

district court shall issue an order requiring substantial compliance with the 

provisions of this code. 

(Emphasis added.) Here, the Secretary properly relied on the circulator affidavit and 

information in the voter registration database to conclude that the Lamborn Campaign’s

petition appeared sufficient. Thus, the question becomes whether the Secretary has 

another relevant duty he might be “about to” breach or neglect, or some other relevant 

wrongful act in which he might be “about to” engage. Id.

¶37 Section 1-4-908(3) states that upon determining that the petition is sufficient, the 

Secretary “shall certify the candidate to the ballot.” Section 1-4-908(3) thus imposes a 

separate duty on the Secretary to place a candidate’s name on the ballot. But that 

provision also makes clear that he may take that step only “after the time for protest has 

passed.” Id. (emphasis added).

¶38 That protest procedure appears in section 1-4-909(1) (“Protest of designations 

and nominations”): 
16

A petition . . . that has been verified and appears to be sufficient under this 

code shall be deemed valid unless a petition for review of the validity of 

the petition pursuant to section 1-1-113 is filed with the district court 

within five days after the election official’s statement of sufficiency is 

issued . . . .

(Emphases added.) Thus, the Election Code expressly contemplates that, within a 

narrow, five-day window after the election official issues a statement of sufficiency, a 

challenge to the “validity of the petition” may be brought through a proceeding under 

section 1-1-113, before the election official certifies a candidate to the ballot. Should the 

court determine that the petition is not in compliance with the Election Code, the 

election official would certainly “commit a breach or neglect of duty or other wrongful 

act,” § 1-1-113(1), to nonetheless certify that candidate to the ballot under section 

1-4-908(3). 

¶39 The Secretary and the Lamborn Campaign argue that the district court’s review

under section 1-1-113 is limited to whether the Secretary technically complied with 

section 1-4-905(1) and section 1-4-908(1). Under their argument, the district court may 

not consider any extrinsic evidence regarding residency, because the Secretary’s duty is 

fulfilled upon verifying the information provided by the circulators against voter 

registration records and the circulator affidavit. In contrast, the protesters argue that 

section 1-4-909(1) permits “review of the validity of the petition,” and therefore, they 

may present evidence demonstrating that a petition actually fails to comply with the 

Election Code, even if it “appear[ed] to be sufficient” in a paper review. § 1-4-909(1).
17

¶40 We agree with the protesters. Both the protest procedure outlined in section 

1-4-911, C.R.S. (2017), and our precedent dictate that the district court can consider 

additional evidence when reviewing the validity of a candidate-nomination petition. 

¶41 Section 1-4-911 states that the “party filing the protest has the burden of 

sustaining the protest by a preponderance of the evidence.” It also provides that the 

“decision upon matters of substance is open to review, if prompt application is made, as 

provided in section 1-1-113.” And as the protesters observe, this court has long rejected 

a narrow definition of the phrase “matters of substance.” In Leighton v. Bates, electors 

brought a challenge to the validity of a party nominee under a predecessor statutory 

scheme similar to that at issue here. 50 P. 856, 856–57 (Colo. 1897). In Leighton, the 

district court held, much as the Secretary now argues, that the district court’s

jurisdiction was “strictly limited to a review of the case as made before the county clerk, 

and upon a certified copy of the proceedings before him; and that the court could not 

take any additional evidence, or try the case de novo.” Id. at 857. We reversed the 

district court. We held that “matters of substance” required the district court to hear 

evidence and review the election official determinations de novo. Id. at 857–58.

¶42 In other election contexts, we have similarly clarified that judicial review 

includes the taking of evidence. For example, in analogous municipal election cases we 

have held that judicial review can include the taking of evidence. See, e.g., Gordon 

v. Blackburn, 618 P.2d 668, 670 (Colo. 1980) (holding in a proceeding under section 

31-10-1305, C.R.S. (1977), that two electors who cast contested votes in a mayoral 
18

election were not residents of the municipality after considering evidence related to 

their residency).

¶43 The Secretary attempts to distinguish the cases in which courts have probed into 

an individual’s residency status by arguing that those cases involved circumstances in 

which a candidate’s nomination petition had not been initially verified by the Secretary; 

whereas here the Lamborn Campaign’s petition had been verified, and the protesters

are seeking to invalidate his verified petition. The Secretary argues that “any 

asymmetry between the situation that we have here, in which the Secretary has 

complied with § 1-4-905(1) and § 1-4-908(1), and cases in which a petition is initially 

deemed insufficient or whose sufficiency is allegedly the product of fraudulently 

procured signatures, is a consequence of the liberal construction of the election code 

that § 1-1-103 requires.”

¶44 But these attempts to distinguish our precedent are unpersuasive. Section 

1-1-103, C.R.S. (2017), does require the Election Code to be liberally construed, but this 

requirement is independent from the issue of whether a protester may challenge the 

validity of a petition under section 1-4-909 by presenting evidence regarding an 

individual’s residency status or other extrinsic evidence in a section 1-1-113 

proceeding. Indeed, the asymmetry that the Secretary urges would permit every 

facially valid petition to proceed, regardless of any underlying flaws. Such an outcome 

could allow egregious misconduct by circulators to stand without recourse, so long as 

the paper review matched the statewide voter registration system. For instance, section 

1-4-905(2) also requires the circulator to include a “statement that the [circulator] has 
19

not paid or will not in the future pay . . . any money or other thing of value to any 

signer for the purpose of inducing or causing the signer to sign the petition.” Under the 

Secretary’s interpretation, so long as the signatures of both the circulator and the 

citizen-signer matched information in the statewide voter registration system, a 

protester would be unable to present extrinsic evidence in a section 1-1-113 proceeding 

that the circulator had paid the citizen-signer to sign the petition. We cannot agree that 

the General Assembly intended such a result. See Burton v. Colorado Access, 2018 CO 

11, ¶ 23, ___ P.3d ___ (“We avoid interpreting a statute in a way that creates absurd 

results if alternative interpretations consistent with the legislative purpose are 

available.” (quotation omitted)).

¶45 Reading sections 1-4-905 and 1-4-908 together, it is clear that the Secretary’s 

duties proceed in the following sequential fashion: (1) upon receipt of a candidate 

petition, the Secretary conducts the “paper review” of the petition by relying on 

information in the circulator affidavit and the statewide voter registration system; (2) if 

the Secretary determines the petition is sufficient, the Secretary issues a statement of 

sufficiency; and (3) after determining that the petition is sufficient, the Secretary certifies

the candidate to the ballot—but only after the time for protest has passed. Any

fact-intensive inquiry into a circulator’s residency status must occur in this five-day 

protest window in which a party, like the protesters here, may seek review of the 

validity of the petition under sections 1-4-909 and 1-1-113. This fact-intensive inquiry 

must permit protesters to bring in extrinsic evidence if that evidence calls into question 
20

the validity of the paper record on which the Secretary’s initial approval appropriately 

rested.

¶46 Here, the protesters presented additional evidence concerning the circulators’ 

residency. We must now determine whether the district applied the correct legal 

standard to determine whether Tipple was, in fact, a resident of Colorado, as required 

by section 1-4-905(1), when he served as a Lamborn Campaign circulator.

C. Tipple Was Not a Resident of Colorado When He Circulated 

the Lamborn Campaign’s Petition

¶47 So, what role, if any, does a circulator’s subjective intent play in determining his 

residency? During its oral ruling, the district court summarized its perception of the 

relevant law as, “What really governs under the—under the liberal reading of the 

election laws is the person’s intent when they sign up to be a voter here in Colorado. 

Their intent to make Colorado their permanent home.” Relying almost exclusively on

Tipple’s testimony that he intended to live in Colorado in the future, the district court 

found that Tipple was a resident of Colorado at the time he served as a circulator.

¶48 The legal standard articulated and applied by the district court is reminiscent of 

the domicile test outlined in Theobald v. Byrns, 579 P.2d 609, 612 (Colo. 1978) (“We 

elect, therefore, to reject the principal-or-primary-home test, and hold that, if any of the 

applicants has a bona fide residence in Blue River and if he or she has the intention that 

Blue River is his or her domicile, which is evidenced by objective factors such as voter 

registration there, then that applicant’s domicile is in Blue River and he or she is entitled 

to be a candidate on the ballot.”). However, as we described more recently in Gordon, 
21

the legislature superseded the subjective test adopted in Theobald with a “new method 

for determining the legal residence of an elector.” Gordon, 618 P.2d at 671. The 

legislature’s current method for determining residency of electors is now set forth in 

section 1-2-102, C.R.S. (2017), titled “Rules for determining residency.” 

¶49 Section 1-2-102 establishes rules to determine an elector’s residency for Colorado 

voter registration. We conclude the factors listed in section 1-2-102(1)(b), C.R.S. (2017), 

also control in determining a circulator’s residency under section 1-4-905(1). We note 

that a person’s residency is raised twice in section 1-4-905(1). First directly, because all 

circulators must be residents of the state; and second indirectly, because circulators for 

partisan candidates must be registered to vote (which implicates section 1-2-102’s 

requirement that the person be a resident of the state). It seems reasonable to infer that 

the General Assembly did not seek to impose two different residency requirements

through these direct and indirect references to residency in section 1-4-905(1). Thus, we 

conclude that the factors listed in section 1-2-102 are controlling for both references to 

residency in section 1-4-905(1). See R.E.N. v. City of Colo. Springs, 823 P.2d 1359, 1364 

n.5 (Colo. 1992) (“In pari materia is a rule of statutory construction which requires the 

various portions of the statute to be read together with all the other statutes relating to 

the same subject or having the same general purpose so that the legislature’s intent may 

be ascertained.” (citation omitted)); People v. White, 242 P.3d 1121, 1125 (Colo. 2010) 

(relying on the principal-or-primary-home test in determining jury residency and 

noting that the test is “now expressly made applicable to motor vehicle and income tax 

matters as well”).
22

¶50 Section 1-2-102(1)(a)(I), C.R.S. (2017), defines residency as a person’s “principal 

or primary home or place of abode.” The statute lists the following factors the court 

must consider to determine a person’s “principal or primary place of abode”:

Business pursuits, employment, income sources, residence for income or 

other tax purposes, age, marital status, residence of parents, spouse or 

civil union partner, and children, if any, leaseholds, situs of personal and 

real property, existence of any other residences and the amount of time 

spent at each residence, and motor vehicle registration.

§ 1-2-102(1)(b). The statute states that intent can be relevant when determining that the 

person, when absent, has the “present intention of returning” to that home or place of 

abode. See § 1-2-102(1)(a)(I) (“A principal or primary home or place of abode is that 

home or place in which a person’s habitation is fixed and to which that person, 

whenever absent, has the present intention of returning after a departure or absence, 

regardless of the duration of the absence.”). Yet, as the Gordon court noted, the 

principal-or-primary-home test rejects a scenario in which a person can subjectively 

declare a second address to be his true home, without considering whether there is 

objective evidence supporting that declaration. Gordon, 618 P.2d at 670–71. 

¶51 Thus, the district court erred as a matter of law by relying exclusively on Tipple’s 

stated subjective intent, without considering the objective indicia of his principal or 

primary place of abode under section 1-2-102(1)(b), to determine Tipple’s residency. 

¶52 Because each of the objective factors delineated in section 1-2-102(1)(b) indicates 

that Colorado was not Tipple’s “primary or principal place of abode,” as a matter of 

law, Tipple was not a resident of Colorado during the time Tipple served as a circulator 
23

in January 2018. When we apply the section 1-2-102(1)(b) factors to the evidence 

regarding Tipple’s primary place of abode, this becomes plain:

• Tipple’s business pursuits, employment, and income sources (as a house flipper 

and Lyft and Uber driver) are in California;

• Tipple filed taxes in California last year;

• Tipple’s wife and four children have lived in California since at least 2016;

• Although Tipple’s in-laws are in Colorado, no evidence was presented regarding 

where his parents reside;

• Tipple does not appear to hold any leasehold interests in Colorado;

• Tipple owns a house in California, and the majority of his personal property is in 

California;

• Tipple and his family spend the vast majority of their time in California; he 

“might have” spent 30 days in Colorado last year; and 

• Tipple’s two vehicles are registered in California.

See § 1-2-102(1)(b).

¶53 Furthermore, Tipple’s stated intent to live in Colorado in the future is relevant 

only if he has a fixed habitation in Colorado to which he presently intends to return. 

See § 1-2-102(1)(a)(I). The record reveals none. While he occasionally stays at his inlaws’ home in Colorado Springs—which is the address he used to register to vote and

on his affidavit—he has no legal interest in the property, nor is there any evidence to 

suggest that at the time he circulated the Lamborn Campaign’s petition it was his fixed 

habitation. On the contrary, all of the objective record evidence regarding his residence

at the time he circulated the petition for the Lamborn Campaign indicates that his
24

primary place of abode was in California. Consequently, we conclude that Tipple was 

not a Colorado resident when he served as a circulator for the Lamborn Campaign.

¶54 Because Tipple did not meet the statutory requirements to be a circulator, the 

signatures Tipple collected must be stricken from the Lamborn Campaign’s 

candidate-nomination petition. See Loonan v. Woodley, 882 P.2d 1380, 1382 (Colo. 

1994) (upholding order vacating the Secretary’s determination of sufficiency and 

enjoining the Secretary from certifying proposed initiative to the ballot due to 

circulator’s failure to comply with statutory requirements).4

IV. Constitutional Challenge

¶55 Finally, to the extent the Lamborn Campaign challenges the constitutionality of 

the circulator residency requirement in section 1-4-905(1), this court lacks jurisdiction to 

address such arguments in a section 1-1-113 proceeding. See Frazier v. Williams, 2017 

CO 85, ¶ 3, 401 P.3d 541, 542 (holding this court has jurisdiction to consider only claims 

of “breach or neglect of duty or other wrongful act” under the Colorado Election Code

 

4 The district court found that Tipple substantially complied with the Election 

Code. See § 1-1-103(3) (“Substantial compliance with the provisions or intent of [the 

Election Code] shall be all that is required . . . .”); Fabec v. Beck, 922 P.2d 330, 341 (Colo. 

1996) (holding a court should consider the following factors in determining whether a 

party has substantially complied with statutory requirements: “(1) the extent of 

noncompliance, (2) the purpose of the applicable provision and whether that purpose is 

substantially achieved despite the noncompliance, and (3) whether there was a 

good-faith effort to comply or whether noncompliance is based on a conscious decision 

to mislead the electorate”). However, residency is not a mere technical requirement 

that is subject to substantial compliance. See, e.g., Order, Frazier v. Williams, 16SA159 

(Colo. May 24, 2016) (“As to the 45 signatures collected by James Day, we conclude that 

the omission of an apartment number meets the standard of substantial compliance.” 

(emphasis added)). A person either is a resident for purposes of the Election Code or he 

is not.
25

when a petition is brought through a section 1-1-113 proceeding). Therefore, we 

express no opinion on this issue.

V. Conclusion

¶56 In sum, although the Secretary properly relied on the circulator’s affidavit and 

information in the voter registration system in verifying the petition and issuing a 

statement of sufficiency, the protesters nonetheless had the statutory right to challenge 

the validity of the petition under sections 1-4-909 and 1-1-113 before the Secretary 

certified Representative Lamborn’s name to the ballot. The protesters properly 

presented additional evidence to the district court in challenging the actual residence of 

the petition circulators. 

¶57 We conclude the district erred when it focused on Tipple’s subjective intent to 

move back to Colorado, rather than the test set forth in section 1-2-102, when 

determining Tipple’s residency. In applying the correct test to the essentially 

undisputed facts here, we conclude that Tipple was not a resident of Colorado when he 

served as a circulator for the Lamborn Campaign. Accordingly, we reverse the district 

court’s ruling to the contrary. Because Tipple was statutorily ineligible to serve as a 

circulator, the signatures he collected are invalid and may not be considered. That 

causes the Lamborn Campaign’s number of signatures to fall short of the 1000 required 

to be on the Republican primary ballot. Therefore, the Secretary may not certify 

Representative Lamborn to the 2018 primary ballot for CD5. We recognize the gravity 

of this conclusion, but Colorado law does not permit us to conclude otherwise.
26

¶58 Finally, we do not address the Lamborn Campaign’s arguments regarding the 

constitutionality of the circulator residency requirement in section 1-4-905(1), because 

we lack jurisdiction to address such claims in a proceeding under section 1-1-113.