CO Code § 1-40-116 (2021)
2021 Colorado Code|Title 1 - Elections|Article 40 - Initiative and Referendum|§ 1-40-116. Validation - Ballot Issues - Random Sampling - Rules

  For ballot issues, each section of a petition to which there is attached an affidavit of the registered elector who circulated the petition that each signature thereon is the signature of the person whose name it purports to be and that to the best of the knowledge and belief of the affiant each of the persons signing the petition was at the time of signing a registered elector shall be prima facie evidence that the signatures are genuine and true, that the petitions were circulated in accordance with the provisions of this article, and that the form of the petition is in accordance with this article.    Upon submission of the petition, the secretary of state shall examine each name and signature on the petition. The petition shall not be available to the public for a period of no more than thirty calendar days for the examination. The secretary shall assure that the information required by sections 1-40-110 and 1-40-111 is complete, that the information on each signature line was written by the person making the signature, and that no signatures have been added to any sections of the petition after the affidavit required by section 1-40-111 (2) has been executed.    No signature shall be counted unless the signer is a registered elector and eligible to vote on the measure. A person shall be deemed a registered elector if the person's name and address appear on the master voting list kept by the secretary of state at the time of signing the section of the petition. In addition, the secretary of state shall not count the signature of any person whose information is not complete or was not completed by the elector or a person qualified to assist the elector. The secretary of state may adopt rules consistent with this subsection (3) for the examination and verification of signatures.      The secretary of state shall examine the signatures on the petition by use of random sampling. The random sample of signatures to be examined must be drawn so that every signature filed with the secretary of state is given an equal opportunity to be included in the sample. The secretary of state is authorized to engage in rule-making to establish the appropriate methodology for conducting such random sample.      The random sampling to validate signatures on a petition proposing an initiated law must include an examination of no less than five percent of the signatures, but in no event fewer than four thousand signatures. If the random sample examination establishes that the number of valid signatures is ninety percent or less of the number of registered eligible electors needed to find the petition sufficient, the secretary of state shall deem the petition to be not sufficient. If the random sample establishes that the number of valid signatures totals one hundred ten percent or more of the number of required signatures of registered eligible electors, the secretary of state shall deem the petition sufficient. If the random sample shows the number of valid signatures to be more than ninety percent but less than one hundred ten percent of the number of signatures of registered eligible electors needed to declare the petition sufficient, the secretary of state shall order the examination and validation of each signature filed. (b) (I) The random sampling to validate signatures on a petition proposing an initiated law must include an examination of no less than five percent of the signatures, but in no event fewer than four thousand signatures. If the random sample examination establishes that the number of valid signatures is ninety percent or less of the number of registered eligible electors needed to find the petition sufficient, the secretary of state shall deem the petition to be not sufficient. If the random sample establishes that the number of valid signatures totals one hundred ten percent or more of the number of required signatures of registered eligible electors, the secretary of state shall deem the petition sufficient. If the random sample shows the number of valid signatures to be more than ninety percent but less than one hundred ten percent of the number of signatures of registered eligible electors needed to declare the petition sufficient, the secretary of state shall order the examination and validation of each signature filed.    The random sampling to validate signatures on a petition proposing an amendment to the state constitution must include an examination of no fewer than five percent of the signatures, but in no event less than four thousand signatures. If the random sample establishes that the number of valid signatures is ninety percent or less of the number of registered electors required by section 1 (2) of article V of the state constitution to find the petition sufficient, the secretary of state shall deem the petition to be not sufficient. If the random sample shows the number of valid signatures to be more than ninety percent of the number of registered electors required by section 1 (2) of article V of the state constitution to declare the petition sufficient, the secretary of state shall order the examination of each signature filed.           History. Source: L. 93: Entire article amended with relocations, p. 686, § 1, effective May 4. L. 95: (1) amended, p. 435, § 12, effective May 8. L. 2017: (4) amended, (SB 17-152), ch. 169, p. 618, § 5, effective August 9.    Editor's note:   This section is similar to former § 1-40-109 as it existed prior to 1993, and the former § 1-40-116 was relocated. For a detailed comparison, see the comparative tables located in the back of the index.   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. PRIMA FACIE EVIDENCESIGNATURES GENUINE.    III. AMENDMENT ANDWITHDRAWAL OF PETITION.    IV. SUPPLEMENTS TOTHE PETITION.     I. GENERAL CONSIDERATION.   Law reviews. For comment, “Buckley v. American Constitutional Law Foundation, Inc.: The Struggle to Establish a Consistent Standard of Review in Ballot Access Cases Continues”, see 77 Den. U. L. Rev. 197 (1999).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   Subsection (1) is not unconstitutionally vague. The general reference to circulator affidavits in this section is controlled by the specific affidavit requirements in § 1-40-111(2) . Am. Constitutional Law Found., Inc. v. Meyer, 870 F. Supp. 995 (D. Colo. 1994 ), aff'd in part and rev'd in part on other grounds, 120 F.3d 1092 (10th Cir. 1997), aff'd on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).   The secretary of state is deemed to have complied with the 30-day requirement for verifying signatures when he or she conducts the random sampling and issues a statement determining the petition to be either sufficient or insufficient, even though the sampling is later found to be erroneous. The petition is not automatically deemed sufficient even though final determination of the sufficiency of the petition occurs outside of the thirty-day time frame. Buckley v. Chilcutt, 968 P.2d 112 (Colo. 1998).   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 § 1-40-118 . Buckley v. Chilcutt, 968 P.2d 112 (Colo. 1998).   II. PRIMA FACIE EVIDENCE SIGNATURES GENUINE.    The statement in an affidavit attached to a petition for the initiation of a measure, that the signer “is a qualified elector”, is prima facie evidence that the signatures thereon are genuine and that the persons signing are electors. Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).   And the filing of a protest to the petition does not nullify this prima facie status nor relieve the protestants of the burden of establishing the insufficiency of the petition. Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).   Moreover, payment to circulators for procuring signatures held not to constitute fraud. A protest filed to a petition to initiate a measure, alleging fraud in the procurement of signatures, is not supported by the fact that circulators were paid a certain sum for signatures procured, there being nothing in the constitution or statutes prohibiting such practice. Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).   III. AMENDMENT AND WITHDRAWAL OF PETITION.    There is no provision permitting the amendment of a protest to a petition for the initiation of a measure after the expiration of the time allowed for filing the protest. Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).   The provision that a rejected petition for the initiation of a measure may be refiled “as an original petition” after amendment is to be construed, not that it must be refiled within the statutory time fixed for the initial filing of such petitions, but after being refiled it is to be considered “as an original petition”. Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).   Former subsection (2), which provided that a rejected petition may be amended and refiled as an original, did not subject a cured petition to the deadline set forth in Colo. Const. art. V, § 11 (2). Montero v. Meyer, 795 P.2d 242 (Colo. 1990) (decided under law in effect prior to 1989 amendment).   But where a petition for the initiation of a constitutional amendment is filed within the time fixed by statute, in the event of protest and rejection, the sponsors, at their election, are entitled to refile the petition when amended within the 15 days allowed by this section. Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).   This is true even though the refiling date may fall beyond the six-month period fixed by § 1-40-104 for the filing of original petitions. Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).   And there is no statutory authorization for a protest against the filing, or refiling after withdrawal, of a petition, to initiate a measure under the initiative and referendum. Brownlow v. Wunch, 102 Colo. 447 , 80 P.2d 444 (1938).   Moreover, when a petition to initiate a measure under initiative and referendum is once withdrawn, it passes from official control and may be tampered with, amended, or destroyed. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932); Brownlow v. Wunch, 102 Colo. 447 , 80 P.2d 444 (1938).   If the petition is withdrawn, no review can thereafter be prosecuted because without the petition no court could adjudicate its sufficiency. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932).   And an action to review an order of the secretary of state declaring a referendum petition insufficient cannot be left standing until the petition is amended and refiled, and later tried on an issue which did not exist when the cause was instituted. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932).   An action for review cannot survive a withdrawal to be further prosecuted on amendment and refiling because if refiled it comes back “as an original petition”. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932).   Therefore, the withdrawal of such a petition is equivalent to the dismissal of an action to review. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932).   And a demand for its withdrawal and a suit in mandamus to enforce that demand must necessarily have the same effect. Robinson v. Armstrong, 90 Colo. 363 , 9 P.2d 481 (1932).   Rule of the secretary of state regarding the procedure to determine the total number of valid petition signatures after submittal of additional signatures by addendum was authorized and is consistent with subsection (4). The rule increases the accuracy of sufficiency determination, enhances the integrity of the petition process, and assures compliance with the constitutionally prescribed minimum number of votes necessary to qualify for placement of a measure on the statewide ballot. Fabec v. Beck, 922 P.2d 330 (Colo. 1996).   IV. SUPPLEMENTS TO THE PETITION.    Section 1 of art. V, Colo. Const., fixes the time within which a petition must be filed with the secretary of state. Christensen v. Baker, 138 Colo. 27 , 328 P.2d 951 (1958).   And requires a certain number of signatures of legal voters to be affixed thereto before a matter can be submitted to the voters at an election. Christensen v. Baker, 138 Colo. 27 , 328 P.2d 951 (1958).   Section 1 of art. V, Colo. Const., is a self-executing constitutional provision. Christensen v. Baker, 138 Colo. 27 , 328 P.2d 951 (1958).   So where there are insufficient signatures when a petition is originally presented, and too late filing when the supplements are presented, the petition for an initiated amendment to the constitution is not filed in compliance with § 1 of art. V, Colo. Const.Christensen v. Baker, 138 Colo. 27 , 328 P.2d 951 (1958).   Because permitting the filing of late supplements containing enough signatures to satisfy the mandate of the constitution would be a circumvention of this fundamental document. Christensen v. Baker, 138 Colo. 27 , 328 P.2d 951 (1958).   Moreover, § 1 of art. V, Colo. Const., mandatorily forecloses the acceptance of tardy supplements to a petition for an initiated amendment to the constitution. Christensen v. Baker, 138 Colo. 27 , 328 P.2d 951 (1958).