1-40-117. Statement of sufficiency – statewide issues

Overview of Statute

(1)  After examining the petition:

(a)  If the petition proposes a law, the secretary of state shall issue a statement as to whether a sufficient number of valid signatures appears to have been submitted to certify the petition to the ballot; or

(b) If the petition proposes an amendment to the state constitution, the secretary of state shall issue a statement as to whether a sufficient number of valid signatures from each state senate district and a sufficient total number of valid signatures appear to have been submitted to certify the petition to the ballot.

(2) If the petition proposes an initiated law and was validated by random sample, the statement must contain the total number of signatures submitted and whether the number of signatures presumed valid was ninety percent of the required total or less or one hundred ten percent of the required total or more.

(3) (a) If the secretary declares that the petition appears not to have a sufficient number of valid signatures, the statement issued by the secretary must specify the number of sufficient and insufficient signatures. The secretary shall identify by section number and line number within the section those signatures found to be insufficient and the grounds for the insufficiency. Such information shall be kept on file for public inspection in accordance with section 1-40-118.

(b) In the event the secretary of state issues a statement declaring that a petition, having first been submitted with the required number of signatures, appears not to have a sufficient number of total valid signatures, a sufficient number of valid signatures in one or more state senate
districts, or both, as applicable, the designated representatives of the proponents may cure the insufficiency by filing an addendum to the original petition for the purpose of offering such number of additional signatures as will cure the insufficiency. No addendum offered as a cure shall be considered unless the addendum conforms to requirements for petitions outlined in sections 1-40- 110, 1-40-111, and 1-40-113 and unless the addendum is filed with the secretary of state within the fifteen-day period after the insufficiency is declared and unless filed with the secretary of state no later than three months before the election at which the initiative petition is to be voted on. All filings under this subsection (3)(b) shall be made by 3 p.m. on the day of filing. Upon submission of a timely filed addendum, the secretary of state shall order the examination of each signature on the addendum. The addendum shall not be available to the public for a period of up to ten calendar days for such examination. After examining the petition, the secretary of state shall, within ten calendar days, issue a statement as to whether the addendum cures the insufficiencies found in the original petition.

Source: L. 93: Entire article amended with relocations, p. 687, § 1, effective May 4. L. 2009:(3)(b) amended, (HB 09-1326), ch. 258, p. 1176, § 13, effective May 15. L. 2011: (3)(b) amended,(HB 11-1072), ch. 255, p. 1104, § 5, effective August 10. L. 2017: Entire section amended,  (SB
17-152), ch. 169, p. 619, § 6, effective August 9.

Editor’s note: This section is similar to former § 1-40-109 as it existed prior to 1993.

Cross references: For the legislative declaration in the 2011 act amending subsection (3)(b), see section 1 of chapter 255, Session Laws of Colorado 2011.

ANNOTATIONS

René Galindo, Language Restrictionism Revisted: The Case Against Colorado’s 2000 Anti-Bilingual Education Initiative, 7 Harv. Latino L. Rev. 27 (2004).

I. General Consideration.
II. Prima Facie Evidence Signatures Genuine.
III. Amendment and Withdrawal of Petition.
IV. Supplements to the Petition.
 
I.GENERAL CONSIDERATION.

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

Holding that the filing of a protest to the petition does not nullify this primafacie 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).

Holding that the 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.

Holding that 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).

Holding that 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).

Holding that the 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).

Holding that 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 fifteen days allowed by this section. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938).

Holding that 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).

Holding that 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).

Holding that 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).

Holding that iff 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).

Holding that 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).

Holding that 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).

Holding that 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).

Holding that 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).
 
IV.SUPPLEMENTS TO THE PETITION.

Holding that 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).

Holding that it 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).

Holding that section 1 of art. V, Colo. Const., is a self-executing constitutional provision. Christensen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958).

Holding that 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).

Holding that 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).

Holding that § 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).