1-4-909. Protest of designations and nominations

Overview of Statute

(1) A petition or certificate of designation or nomination that has been verified and appears to be sufficient under this code shall be deemed valid unless a petition for a 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 or, in the case of a certificate of designation, within five days after the certificate of designation is filed with the designated election official.

(1.5) If the election official determines that a petition is insufficient, the candidate named in the petition may petition the district court within five days for a review of the determination pursuant to section 1-1-113.

(2) This section does not apply to any nomination made at a primary election.

Source: L. 92: Entire part R&RE, p. 690, § 7, effective January 1, 1993.L. 93: (1) amended, p. 1407, § 35, effective July 1.L. 95: (1) amended, p. 833, § 37, effective July 1.L. 2001: (1) amended, p. 1002, § 6, effective August 8.L. 2007: (1) amended and (1.5) added, p. 1971, § 10, effective August 3.

Editor’s note: This section is similar to former § 1-4-901 as it existed prior to 1992.

Cross references: For designation of candidates by assembly, see § 1-4-601; for designation of party candidates by petition, see § 1-4-603; for nomination of candidates by convention, see § 1-4-701.
 
ANNOTATIONS
 
I. General Consideration.
II. Apparent Conformity.
III. Proceedings Summary.
IV. Jurisdiction.
V. Review.
 
I.GENERAL CONSIDERATION.

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Holding that a failure to pursue remedies under the objection provision does not constitute waiver of the right of an elector to contest the eligibility of one to be a candidate of his political party. Ray v. Mickelson, 196 Colo. 325, 584 P.2d 1215 (1978).
 
II.APPARENT CONFORMITY.

Holding that the secretary of state, in the absence of objection, is not vested with authority to refuse to certify a nomination because he has some objection to it for some substantive reason. Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902).

Holding that he may, on his own motion, refuse to file a certificate, based on some formal ground. Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902).

Holding that if it is “in apparent conformity” with the applicable provisions that the secretary may not, of his own motion, and in the absence of some objection based upon matters of substance, refuse to certify the nomination. Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902).

Holding that the law regards certificates of nomination as having been filed where the parties presenting them did all that was possible in complying with the designation and nomination provision even though the secretary of state refused to file the certificate. Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902).

Holding that the objection provision does not contemplate that void certificates of nomination can be cured or amended so as to make them valid after the time for filing such certificates of nomination has expired. O’Connor v. Smithers, 45 Colo. 23, 99 P. 46 (1908).
 
III.PROCEEDINGS SUMMARY.

Holding that the formalities which are required in ordinary civil actions need not be strictly observed in proceedings based on objections to designations and nominations. Phillips v. Curley, 28 Colo. 34, 62 P. 837 (1900).
 
IV.JURISDICTION.

Holding that filing officers in the first instance and the courts upon review have jurisdiction to determine the regularity of party conventions and the claims of rival factions of the same political party to have their nominees placed on the official ballot. Leighton v. Bates, 24 Colo. 303, 50 P. 856, 50 P. 858 (1897); Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897); Whipple v. Owen, 24 Colo. 319, 50 P. 861 (1897); McCoach v. Whipple, 24 Colo. 379, 51 P. 164 (1897); Whipple v. Broad, 25 Colo. 407, 55 P. 172 (1898); Whipple v. Wheeler, 25 Colo. 421, 55 P. 188 (1898); Spencer v. Maloney, 28 Colo. 38, 62 P. 850 (1900).

Holding that the decision of the filing officer as to formal matters in a certificate of nomination is final. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Holding that his decisions of matters of substance are reviewable by lower courts. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Holding that when reviewed by a lower court in the manner prescribed, the decision of such lower court is final. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Holding that authority is only to the power of the supreme court, in its discretion, to review summarily the judicial proceeding below. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).
 
V.REVIEW.

Holding that a review is ordinarily had of record only, and as made by the lower tribunal. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Holding that the review may not be so limited. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Holding that because of accompanying or explanatory words, the review may be enlarged so as to embrace the taking of additional evidence, or practically to constitute a trial de novo. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Holding that review in the trial courts contemplated by the objection provision was such as the section on settlement of controversies provided. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Holding that it is clear that the provision for settlement of controversies contemplates the taking of evidence where the issues require it. Leighton v. Bates, 24 Colo. 303, 50 P. 856 (1897).

Hlding that the objection provision does not contemplate a review in supreme court of the same character as that provided for in county or district court. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Holding that review in the supreme court is to be upon the record as made in the lower court. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Holding that the decision of the trial court will not be disturbed except for strong and persuasive reasons. Since the decision of the trial court is final, that decision should not be disturbed except for strong and persuasive reasons. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Holding that the supreme court should interfere if the trial court acts without jurisdiction, or in excess thereof, or acts arbitrarily, or grossly abuses its discretion. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Holding that the supreme court may in its discretion accept or reject an appeal with respect to nominations of candidates, and if it elects to accept the appeal, it may proceed in a summary way to dispose of it. In re Weber, 186 Colo. 61, 525 P.2d 465 (1974).

Holding that the matter of review by the supreme court, in an action to compel a town clerk to accept and file certificate of nomination and to certify and have printed on the official ballot the names of certain candidates, is entirely discretionary with the court. Luedke v. Todd, 109 Colo. 326, 124 P.2d 932 (1942).

Holding that an objection to a petition not raised before the county clerk cannot be raised on review. In a proceeding to protest the placing of nominations upon the official ballot, an objection that the petition failed to show the authority of the petitioner to make the protest, if not raised before the county clerk, cannot be raised on review. Phillips v. Curley, 28 Colo. 34, 62 P. 837 (1900).

Holding that in order to invoke the appellate jurisdiction of the supreme court, in the exercise of its discretion to review the proceedings of the lower court determining the validity of objections to certificates of nomination, a certified copy of the record and judgment of the trial court, or the material parts thereof, sufficient to present the questions relied upon, with a brief petition stating the nature of the controversy, the points at issue, and the errors relied upon, should be filed in the supreme court. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Holding that a motion should then be made, based upon this petition, asking the court to exercise its appellate jurisdiction, specifying time and place of hearing of the application. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Holding that notice of the motion should be served upon the opposing party. Liggett v. Bates, 24 Colo. 314, 50 P. 860 (1897).

Holding that in an action to compel a county clerk to receive and file nominations for county offices which was refused by him on the ground that no election for such offices could be held at the ensuing election, where in the absence of one of the judges of the supreme court the other two disagree as to whether the court should exercise its discretion to review the judgment of the lower court even if it has jurisdiction to do so, the proceeding must be dismissed and it is unnecessary to determine whether or not the court has jurisdiction to review the judgment of the lower court. Beach v. Berdel, 31 Colo. 505, 74 P. 1129 (1903).

Holding that the district judge was interested in the result and thus disqualified to try cause. Where a list of nominations for county officers filed with the county clerk was protested on the ground that the party name assumed was an infringement on the name of another political party and tended to deceive the voters, a district judge who had been nominated under the same party name and the nomination filed with the secretary of state was interested in the result and disqualified to try the cause, although the judgment in the cause would not directly affect his own nomination, since it involved the determination of a question which if raised in the proper tribunal would determine the validity of his own nomination on the ticket. Phillips v. Curley, 28 Colo. 34, 62 P. 837 (1900).