CO Code § 1-40-118 (2021)
2021 Colorado Code|Title 1 - Elections|Article 40 - Initiative and Referendum|§ 1-40-118. Protest

  A protest in writing, under oath, together with three copies thereof, may be filed in the district court for the county in which the petition has been filed by some registered elector, within fifteen days after the secretary of state issues a statement as to whether the petition has a sufficient number of valid signatures, which statement must be issued no later than thirty calendar days after the petition has been filed. If the secretary of state fails to issue a statement within thirty calendar days, the petition is deemed sufficient. Regardless of whether the secretary of state has issued a statement of sufficiency or if the petition is deemed sufficient because the secretary of state has failed to issue a statement of sufficiency within thirty calendar days, no further agency action is necessary for the district court to have jurisdiction to consider the protest. During the period a petition is being examined by the secretary of state for sufficiency, the petition shall not be available to the public; except that such period must not exceed thirty calendar days. Immediately after the secretary of state issues a statement of sufficiency or, if the petition is deemed sufficient because the secretary of state has failed to issue the statement, after thirty calendar days, the secretary of state shall make the petition available to the public for copying upon request.      If the secretary of state conducted a random sample of the petitions and did not verify each signature, the protest shall set forth with particularity the defects in the procedure used by the secretary of state in the verification of the petition or the grounds for challenging individual signatures or petition sections, as well as individual signatures or petition sections protested. If the secretary of state verified each name on the petition sections, the protest shall set forth with particularity the grounds of the protest and the individual signatures or petition sections protested.    Regardless of the method used by the secretary of state to verify signatures, the grounds for challenging individual signatures or petition sections pursuant to paragraph (a) of this subsection (2) shall include, but are not limited to, the use of a petition form that does not comply with the provisions of this article, fraud, and a violation of any provision of this article or any other law that, in either case, prevents fraud, abuse, or mistake in the petition process.    If the protest is limited to an allegation that there were defects in the secretary of state's statement of sufficiency based on a random sample to verify signatures, the district court may review all signatures in the random sample.    No signature may be challenged that is not identified in the protest by section number, line number, name, and reason why the secretary of state is in error. If any party is protesting the finding of the secretary of state regarding the registration of a signer, the protest shall be accompanied by an affidavit of the elector or a copy of the election record of the signer. (2.5)   If a district court finds that there are invalid signatures or petition sections as a result of fraud committed by any person involved in petition circulation, the registered elector who instituted the proceedings may commence a civil action to recover reasonable attorney fees and costs from the person responsible for such invalid signatures or petition sections.    A registered elector who files a protest shall be entitled to the recovery of reasonable attorney fees and costs from a proponent of an initiative petition who defends the petition against a protest or the proponent's attorney, upon a determination by the district court that the defense, or any part thereof, lacked substantial justification or that the defense, or any part thereof, was interposed for delay or harassment. A proponent who defends a petition against a protest shall be entitled to the recovery of reasonable attorney fees and costs from the registered elector who files a protest or the registered elector's attorney, upon a determination by the district court that the protest, or any part thereof, lacked substantial justification or that the protest, or any part thereof, was interposed for delay or harassment. No attorney fees may be awarded under this paragraph (b) unless the district court has first considered the provisions of section 13-17-102 (5) and (6), C.R.S. For purposes of this paragraph (b), “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.    A district court conducting a hearing pursuant to this article shall permit a circulator who is not available at the time of the hearing to testify by telephone or by any other means permitted under the Colorado rules of civil procedure.          (Deleted by amendment,L. 95, p. 435, § 13, effective May 8, 1995.)    The secretary of state shall furnish a requesting protestor with a computer tape or microfiche listing of the names of all registered electors in the state and shall charge a fee which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., to cover the cost of furnishing the listing.    Written entries that are made by petition signers, circulators, and notaries public on a petition section that substantially comply with the requirements of this article 40 shall be deemed valid by the secretary of state or any court, unless:   Fraud, as specified in section 1-40-135 (2)(c), is established by a preponderance of the evidence;    A violation of any provision of this article or any other provision of law that, in either case, prevents fraud, abuse, or mistake in the petition process, is established by a preponderance of the evidence;    A circulator used a petition form that does not comply with the provisions of this article or has not been approved by the secretary of state.        History. Source: L. 93: Entire article amended with relocations, p. 688, § 1, effective May 4. L. 95: (1) to (3) amended, p. 435, § 13, effective May 8. L. 2009: (1) and (2) amended and (2.5) and (5) added, (HB 09-1326), ch. 258, p. 1176, § 14, effective May 15. L. 2018: IP(5) and (5)(a) amended, (HB 18-1145), ch. 113, p. 808, § 4, effective August 8. L. 2021: (1) amended, (SB 21-250), ch. 282, p. 1670, § 74, effective June 21.    Editor's note:    This section is similar to former § 1-40-109 as it existed prior to 1993, and provisions of the former § 1-40-118 were relocated to § 1-40-130.    Section 85 of chapter 282 (SB 21-250), Session Laws of Colorado 2021, provides that the act changing this section applies to elections conducted on or after June 21, 2021.     Cross references:   For the legislative declaration in HB 18-1145, see section 1 of chapter 113, Session Laws of Colorado 2018.   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. SPECIFICATION OFGROUNDS AND OATH.    III. AMENDED PROTEST.    IV. PROTESTS BEFORESECRETARY OF STATE.    V. REMEDY PROVIDED.    VI. EFFECT ON OTHER TRIBUNALS.    VII. INJUNCTION FOR FRAUD.     I. GENERAL CONSIDERATION.   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   II. SPECIFICATION OF GROUNDS AND OATH.    The provisions of this section that a protest to a petition for the submission of an act of the general assembly to the people must specify the grounds of such protest, and be under oath, are jurisdictional. Ramer v. Wright, 62 Colo. 53 , 159 P. 1145 (1916); Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).   And the secretary of state is without power to act in the absence of a substantial compliance therewith. Ramer v. Wright, 62 Colo. 53 , 159 P. 1145 (1916); Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).   There was not a substantial compliance where, appended to a protest, appeared the certificate of a notary public that certain persons each “deposes and says: That he subscribed the above protest after reading the same, and the contents thereof are true to the best of his knowledge, information and belief”, but there was no statement that the persons named were sworn. Therefore, the secretary had no authority to entertain the protest. Ramer v. Wright, 62 Colo. 53 , 159 P. 1145 (1916).   The requirement that the protest must be under oath is not so unreasonable as to invalidate the statute. Ramer v. Wright, 62 Colo. 53 , 159 P. 1145 (1916).   III. AMENDED PROTEST.   Whether a protest should specify the names protested was not determined in Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).   Amended protest was properly dismissed by the secretary of state despite the secretary's incorrect notification to the protestor that a protest could be filed by a specified date. The secretary of state lacked the authority to enlarge the protest period provided in former version of this section, and protestor cannot state claim for relief under theory of estoppel against a state entity on the basis of an unauthorized action or promise. Montero v. Meyer, 795 P.2d 242 (Colo. 1990) (decided under law in effect prior to 1989 amendment).   Petitioners properly sought district court review under this section and § 1-40-119 without first pursuing the administrative remedies outlined in § 1-40-132 (1) . Section 1-40-132 (1) is inapplicable to determination whether a petition has a sufficient number of valid signatures to qualify for placement of an initiated measure on the ballot. Fabec v. Beck, 922 P.2d 330 (Colo. 1996).   IV. PROTESTS BEFORE SECRETARY OF STATE.    Where a petition is protested before the secretary of state, that official in making findings should specify the names or categories of names which should be rejected. Miller v. Armstrong, 84 Colo. 416 , 270 P. 877 (1928).   The secretary of state improperly applied the perfect match rule in disallowing signatures where there was a discrepancy between the street directional or apartment number as they appeared on the petition and the master voting list. This information is not required under the statute and is therefore extraneous. McClellan v. Meyer, 900 P.2d 24 (Colo. 1995).   The secretary of state also erred in disallowing signatures based on discrepancies between the name of the town as included with the signature and as stated on the master voting list where the secretary had actual knowledge that the discrepancies were a result of the creation of a town that occurred after preparation of the master voting list. McClellan v. Meyer, 900 P.2d 24 (Colo. 1995).   The secretary of state properly disallowed signatures when the signer indicated or omitted a designation of junior or senior that was omitted from or included on the master list. McClellan v. Meyer, 900 P.2d 24 (Colo. 1995).   Where an elector moves to a new residence and retains the same post office box as a mailing address, the signature should be rejected unless the elector is registered at a post office address and the post office address is the only address assigned to a particular residence. McClellan v. Meyer, 900 P.2d 24 (Colo. 1995).   V. REMEDY PROVIDED.   This section provides one special remedy and only one, a judicial review of “the findings as to the sufficiency” of the petition. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932).   However, this remedy is not compulsory. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932).   The parties may waive it, or abandon or dismiss it after beginning it. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932).   But where a petition is protested before the secretary of state, after whose decision the matter is taken into court, the case is before the court for review and not for trial de novo. Miller v. Armstrong, 84 Colo. 416 , 270 P. 877 (1928).   And on dismissal of such an action, an order of the trial court that the petition be returned to the secretary of state is proper. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932).   If, based on a random sample, the secretary of state issues a good faith determination of insufficiency and a timely protest establishes that the petition contains more than 90 %; but less than 110 %; of the required signatures, the secretary of state is required to conduct a line-by-line examination of each signature. The results of the line-by-line count are subject to the protest and appeal process provided in this section. Buckley v. Chilcutt, 968 P.2d 112 (Colo. 1998).   VI. EFFECT ON OTHER TRIBUNALS.   This section sets up a special procedure for protesting petitions for the initiation of measures. Brownlow v. Wunch, 102 Colo. 447 , 80 P.2d 444 (1938).   But it does not deprive courts of equity of jurisdiction in such cases. Brownlow v. Wunch, 102 Colo. 447 , 80 P.2d 444 (1938).   And the statutory procedure outlined has no application to actions in equity courts. Brownlow v. Wunch, 102 Colo. 447 , 80 P.2d 444 (1938).   This section does not provide an exclusive and adequate remedy so as to deprive equity courts of jurisdiction. Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).   Section inapplicable to actions in court. The provisions of this section concerning the sufficiency of petitions for the initiation of laws have no application to action in court. Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).   And courts may interfere in matters preliminary to elections, such as determining the validity of a petition to initiate a measure. Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).   Proceedings before the secretary of state to determine the validity of a petition to initiate a measure is not another suit pending so as to oust a court of jurisdiction in an action to enjoin the placing of the measure on the ballot. And, where it does not appear on the face of a complaint that there is another suit pending, such objection may not be raised by demurrer. Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).   VII. INJUNCTION FOR FRAUD.   Fraud may be the basis of an injunction against the submission of the subject of the petition to vote, which submission is also a preliminary of the election. Leckenby v. Post Printing & Publ'g Co., 65 Colo. 443 , 176 P. 490 (1918); Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).   And if we do not hold in this way, we shall be compelled to say that if a petition with a sufficient number of names, on its face valid, should be laid before the secretary of state, it could not be successfully attacked even though every name were forged and every affidavit attached to it were false. Leckenby v. Post Printing & Publ'g Co., 65 Colo. 443 , 176 P. 490 (1918); Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).   The petition is a preliminary to an initiated election, and if fraudulent, may not be given effect. Leckenby v. Post Printing & Publ'g Co., 65 Colo. 443 , 176 P. 490 (1918); Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).