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SUPREME COURT STATE OF COLORADO 2 East 14th Avenue Denver, CO 80203 Defendant/Petitioner: SCOTT GESSLER, in his official

capacity as Colorado Secretary of State v. Plaintiffs/Respondents: NICOLE S. HANLEN, LYNN D. USSERY, JAMES H. JOY, JUNE MARIE MCNEES, KELLY L. MCNEES, KAREN MARQUEZ, MEAGAN GABALDON, and DAVID J. RODENBAUGH Attorneys for Amici Curiae Mario Nicolais, II (#38589) Kelly Breuer (#28558) Hackstaff Law Group, LLC 1601 Blake Street, Suite 310 Denver, Colorado 80202 Telephone: 303-534-4317 Email: mn@hackstafflaw.com kb@hackstafflaw.com

▲ COURT USE ONLY ▲

Case Number: 2013SA306

AMICUS CURIAE BRIEF OF ENRICO FIGUEROA, BRIAN VANDE KROL, JOSEPH HOLT, MARK RULE, & MELISSA WILLS IN SUPPORT OF PETITIONER

TABLE OF CONTENTS TABLE OF CONTENTS ...........................................................................................i TABLE OF AUTHORITIES .................................................................................. iii CERTIFICATE OF COMPLIANCE ........................................................................vi STATEMENT OF ISSUES PRESENTED ............................................................ 1 STATEMENT OF THE CASE ............................................................................... 2 SUMMARY ....................................................................................................2 LEGAL ARGUMENT .............................................................................................4 A. The district court erred declaring the effect of Speers’ disqualification would be an immediate vacancy ................................................................... 4 1. 2. 3. 4. B. Standard of Review and Preservation of Issue...................................... 4 Declaring the outcome of an election contest was beyond the jurisdiction of the court ......................................................................... 5 School board election outcomes are not determined under the school board vacancy statute ............................................................................8 After an election, a vacancy occurs only when no qualified candidate is legally elected ..................................................................................12

Speers could not be elected to the office of school director for Adams 12 District No. 4.................................................................................................13 1. 2. 3. Standard of Review and Preservation of Issue....................................13 The Colorado Constitution allows only “qualified” electors to be elected to office ...................................................................................13 Speers never qualified for the office she sought and never became an eligible candidate.................................................................................16

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4. 5. 6.

Certification to appear on the ballot does not certify that a candidate is qualified ...............................................................................................20 All mail ballots exacerbate ballot errors and create increased need for the Secretary’s Emergency Rule .........................................................21 Votes for candidates appearing on the ballot are not always counted ...................................................................................................22

C.

Qualified candidates receiving the most votes should be deemed elected.. ...................................................................................................23 1. 2. Standard of Review and Preservation of Issue....................................23 Votes for qualified candidates are counted and should be given full credit ....................................................................................................24

D.

The district court erred when it ruled the Secretary had no basis for Rule 107.5 .....................................................................................................27 1. 2. Standard of Review and Preservation of Issue………………………27 Rule 107.5 is necessary to ensure uniform election results and bar parties from acting in bad faith ...........................................................27

CONCLUSION.......................................................................................................29 CERTIFICATE OF SERVICE ................................................................................31

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TABLE OF AUTHORITIES Page(s) CASES Cameron v. Carroll, 138 Colo. 432 (1959) ............................................................................................8 In The Matter of the Complaint Filed by Colorado Ethics Watch Regarding Alleged Campaign and Political Finance Violations by Clear the Bench Colorado, Case. No. OS 2010-0009 ....................................................................................18 Klinger v. Adams Cnty. Sch. Dist. No. 50, 130 P.3d 1027 (Colo. 2006) ................................................................4, 13, 24, 27 Robertson v. Perkins, 129 U.S. 233, 236 (1889)....................................................................................19 U.S. v. Debrow, 346 U.S. 374 (1953) ............................................................................................19 STATUTES C.R.S. 1-11-201, et seq. .............................................................................................6 C.R.S. 1-11-212 .........................................................................................................6 C.R.S. 1-11-216 .......................................................................................................12 C.R.S. § 1-1-113 ............................................................................................5, 6, 7, 8 C.R.S. § 1-1-113(1) ....................................................................................................6 C.R.S. § 1-1-113(4) ....................................................................................................6 C.R.S. § 1-2-101, et. seq. .........................................................................................14 C.R.S. § 1-2-102 ......................................................................................................14 C.R.S. § 1-4-205 ......................................................................................................17

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C.R.S. § 1-4-501(1) ............................................................................................19, 20 C.R.S. § 1-4-506 ......................................................................................................20 C.R.S. § 1-4-1001(1) ................................................................................................28 C.R.S. § 1-5-203(3)(a) .............................................................................................20 C.R.S. § 1-5-406 ......................................................................................................20 C.R.S. § 1-5-412(3) ..................................................................................................29 C.R.S. § 1-7-309 ................................................................................................22, 23 C.R.S. § 1-11-213(4) ..................................................................................................7 C.R.S. § 22-30-104(1) ..............................................................................................10 C.R.S. § 22-30-114(1)(h) .........................................................................................15 C.R.S. § 22-31-105(1)(a) .........................................................................................11 C.R.S. § 22-31-107 ..................................................................................................17 C.R.S. §22-31-107(1) .........................................................................................14, 17 C.R.S. § 22-31-107(2) ..............................................................................................22 C.R.S § 22-31-113 .....................................................................................................9 C.R.S § 22-31-117 .....................................................................................................9 C.R.S § 22-31-121 .....................................................................................................9 C.R.S § 22-31-124 .....................................................................................................9 C.R.S § 22-31-127 .....................................................................................................9 C.R.S. § 24-4-106 ......................................................................................................5 C.R.S. § 30-10-306 ..................................................................................................15 C.R.S. § 31-10-301 ..................................................................................................17
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OTHER STATUTORY REFERENCES Title I .................................................................................................................passim Title I, Article 11, Part 2 ........................................................................................6, 9 Title XII......................................................................................................................8 Title I, Art. IV ......................................................................................................9, 19 Title I, Art. VII ...........................................................................................................9 Title XXII .............................................................................................................9, 10 Title I, Article 2 ........................................................................................................14 OTHER AUTHORITIES Colo. Const. Art. VI § 9(1) ........................................................................................5 Colo. Const. Art. VII § 6..........................................................................................13 Colo. Const. Art. VII § 11........................................................................................16

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CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that the brief complies with C.A.R. 28(g). It contains 6,203 words. Further, the undersigned certifies that the brief complies with C.A.R. 28(k). It contains under separate headings, sections addressing the standard of review and preservation of appeal.

s/ Mario Nicolais Mario Nicolais

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STATEMENT OF ISSUES PRESENTED 1. In an election contest, a court with competent jurisdiction can only declare a

vacancy after it determines no one was elected to office. In the Adams 12 election, only the Adams or Broomfield District Courts have competent jurisdiction to determine the election outcome. Did the Denver District Court err when it took jurisdiction over the Adams 12 election outcome and then declared a vacancy without first determining whether a qualified candidate had been elected?

2.

Only electors who meet constitutional and statutory qualifications may

become a candidate, be elected, and hold office. Amy Speers did not meet the qualifications for the office she sought. Did the district court err when it ordered Speers could be elected over a qualified candidate?

3.

The Secretary of State has the authority to promulgate rules to ensure

uniform elections. The Secretary’s Rule 107.5 protects uniform elections. Did the Secretary have the authority to promulgate Rule 107.5?

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STATEMENT OF THE CASE

The amici curaie agree with the statement of facts provided by the Secretary. Amici believe the Court should also note that Adams 12 electors, including amici, cast 14,081 votes for Figueroa in the election for school director.

SUMMARY The case arose in reaction to the election outcome of the Adams 12 election for District Director No. 4. The district designated election official certified two people to the ballot, but a week before Election Day determined that one did not meet the qualifications for the office. The unqualified person refused to withdraw from the race. In reaction to this case and others in the state, the Secretary of State enacted an emergency rule directing clerk not to count votes cast for people unqualified to hold office. The Denver District Court ruled (1) the Secretary did not have the authority to enact the emergency rule and that clerk must count all votes cast, and (2) the effect of an unqualified person receiving the most votes would be an immediate vacancy in office. Because amici include the qualified candidate for the Adams 12 office and several additional electors from Adams 12, this brief focuses primarily on issues surrounding the Adams 12 election outcome.

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First, amici believe the Denver District Court erred taking jurisdiction over the outcome of the Adams 12 election and then determining that an immediate vacancy would occur. The proper jurisdiction for declaring the outcome is with a district court where Adams 12 is located. Additionally, a vacancy only occurs after it can be determined that no qualified candidate was elected. Second, amici believe the district court erred when it determined that a person unqualified to hold office could be elected to that office. Unqualified individuals can neither be elected nor become a candidate. In the Adams 12 race, Speers never met the residency requirement to qualify for the office of school director. Consequently, she never qualified to be a candidate for that office or to be elected. In contrast, Figueroa qualified as a candidate and qualified to be elected and received over 14,000 votes. By determining that a vacancy would occur if Speers had more votes cast than Figueroa, the district court disenfranchised voters casting ballots for a qualified candidate. Finally, while the this matter addresses the Secretary’s Rule 107.5 through the Adams 12 election, amici believe the rule is necessary to ensure uniform elections throughout the state. The surrounding the Adams 12 election are not unique and without Rule 107.5, uniform elections cannot be protected.

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Additionally, without Rule 107.5, an incentive could be created for unqualified individuals to act in bad faith in hopes of circumventing the electorate.

LEGAL ARGUMENT A. The district court erred declaring the effect of Speers’ disqualification would be an immediate vacancy. In the district court’s ruling, the court found that “if Ms. Speers garnered more votes than her opponent in the election … the effect of her disqualification as a candidate for that office would be to create an immediate vacancy.” 1 This ruling is in error for three reasons: (1) the Denver District Court did not have jurisdiction to determine the outcome of a contest in an election held in Adams and Broomfield Counties; (2) election outcomes must be determined under Title I; and (3) under Colorado election contest statutes, a vacancy occurs only when no qualified candidate is legally elected. 1. Standard of Review and Preservation of Issue

The issue presented is a matter of law that the Court reviews de novo.2 The Secretary’s objections to the district court’s jurisdiction and application of vacancy statutes are central to the matter and argued throughout the proceedings.
1 2

Transcript, 50:9-15. Klinger v. Adams Cnty. Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006).
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2.

Declaring the outcome of an election contest was beyond the jurisdiction of the court.

This matter presents two separate and distinct issues for review. First, Plaintiffs/Respondents asked the district court to review the rule-making authority of the Secretary. Second, Plaintiffs/Respondents asked the district court to determine the outcome of the Adams 12 election. Though inter-related, the two issues are separate and jurisdiction for each issue should be made independently. The district court erred when it took jurisdiction over the outcome of the Adams 12 election. The court took jurisdiction under Colo. Const. Art. VI § 9(1) (general jurisdiction of district courts), C.R.S. § 24-4-106 (judicial review of agency rulemaking), and C.R.S. § 1-1-113 (procedures for adjudication of election controversies prior to ). 3 Amici do not dispute that the Denver District Court generally has jurisdiction over agency rule-making by the Secretary. However, the district court did not have jurisdiction over the outcome or subsequent proceedings of the Adams 12 election. The Secretary argued that the district court did not have proper jurisdiction under Section 1-1-113 because the statute only applies to a controversy that

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Transcript, 46:24-25, 47:1-4.
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“occurs prior to the day of the election.” 4 5 Amici agree with the Secretary’s position. Amici also believe jurisdiction over the outcome of the Adams 12 election is improper for two additional reasons. First, the statute is only meant to provide judicial oversight for the actions of election officials, not the outcome of the election itself. Second, Section 1-1-113 does not independently grant jurisdiction; it only references controversies filed “in a district court with competent jurisdiction.” 6 In regard to the outcome of the Adams 12 election, the Denver District Court does not have competent jurisdiction. Election outcomes must be contested under Title I, Article 11, Part 2. 7 The statutory structure developed therein provides the only process for challenging the outcome of an election, determining who has been legally elected, or declaring a vacancy. Specifically, contests for nonpartisan offices must be brought under C.R.S. 1-11-212 which mandates: “Contested election cases of county and nonpartisan officers … shall be tried and decided by the district court for the county in which the contest arises. If a political subdivision is located in more than one county, the district court of either may take jurisdiction.” 8

4 5

C.R.S. § 1-1-113(4). See Application for Review Pursant to § 1-1-113(3), C.R.S., p. 18-22. 6 C.R.S. § 1-1-113(1). 7 C.R.S. 1-11-201, et seq. 8 C.R.S. 1-11-212.
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The Adams 12 subdivision is located in Adams and Broomfield Counties. No part of Adams 12 is located in Denver County. Consequently, jurisdiction to determine the outcome of an election contest for Adams 12 is only proper in either the Adams or Broomfield District Courts. Jurisdiction is not proper in the Denver District Court. In contrast to Section 1-1-113 controversies arising prior to an election, election contests under Section 1-11-213 regarding the outcome occur postelection. This makes logical sense because a contest challenging the outcome of an election must necessarily occur after the election has taken place and all votes have been cast. Specifically, contests to the outcome of an election must be filed within ten days of when the official surveys of election returns are filed with the designated election official.9 At the time the district court made its ruling, the official surveys had not been provided for Adams 12. In fact, operating in compliance with Rule 107.5, the Broomfield Clerk did not count votes for Speers until after the district court issued its ruling and ordered the clerk to do so.10 These very circumstances demonstrate why the Denver District Court did not have competent jurisdiction to rule on the

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10

C.R.S. § 1-11-213(4). Transcript, 53:17-23.
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outcome of the Adams 12 election – the necessary facts before to determine the election outcome hadn’t even been established. The district court’s own decision highlights why a court cannot exercise jurisdiction over an election outcome until after the election has occurred. Lacking actual facts, the district court predicated its ruling on hypothetical facts using an “if-then” rationale. Specifically, the district court stated “if Ms. Speers garnered more votes … the effect …. would be to create an immediate vacancy.” 11 Not only is reliance on such hypothetical facts clear error by the court, but it leads to speculative rulings that run afoul of the state’s bar against advisory opinions. 12 3. School board election outcomes are not deteremined under the school board vacancy statute.

While the district court took jurisdiction under C.R.S. § 1-1-113 in Title I, it is instructive to this Court that no part of the district court’s opinion relied on any other statute contained in Title I. Instead, the district court’s entire ruling is based on a vacancy statute found in Title XII. The district court erred when it abandoned the election law statues to determine the outcome of an election.

11 12

Transcript, 50:9-15 (emphasis added). See Cameron v. Carroll, 138 Colo. 432 (1959).
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Title I governs and structures how elections are conducted in Colorado. It covers subjects from ballot access 13 to conduct of elections 14 and election contests.15 Consequently, election outcomes should only be determined under the statutes contained in Title I. In contrast to Title I, other statutory provisions only outline the defining characteristics of a public office (such as duties, term, and specific qualifications), but do not govern the conduct of the elections to the office. In fact, prior references to the conduct and outcome of elections in other statutes have been deleted by amendment in order to provide deference to Title I. This applies directly to statutes deleted from Title XXII, including “notice of school elections,” 16 “voting at school elections,”17 “count and certification of votes,” 18 “canvass of votes – certificate of election,”19 and school director election “contests.” 20 All have been deleted.

13 14

Title I, Art. IV. Title I, Art. VII. 15 Title I, Art. XI, Part 2. 16 C.R.S § 22-31-113 – “Notice of school election. (Deleted by amendment).” 17 C.R.S § 22-31-117 – “Voting at school elections. (Deleted by amendment).” 18 C.R.S § 22-31-121 – “Count and certification of votes. (Deleted by amendment)” 19 C.R.S § 22-31-124 – “Canvass of votes – certificate of election. (Deleted by amendment).” 20 C.R.S § 22-31-127 – “Contests. (Deleted by amendment).”
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Instead, the conduct of all elections for school districts is statutorily required to occur under Title 1.21 Despite the clear statutory scheme, the district court nonetheless dictated the outcome of the election under Title XXII. The court found: “With specific regard to school district board elections, quote, If the person who was duly elected or appointed is, and I underscored the word is, or becomes during the term of office, a nonresident of the director district which the director represents or if a court of competent jurisdiction avoids an officer’s election for any purpose whatsoever, the director office shall be deemed to be vacant, end quote. Colorado Revised Statute 22-31-129(1)(d),(f).”22 The first clause makes it apparent that the district court understood this to be an election matter. That alone should have directed the district court to Title I. But, the district court then proceeded to ignore two other critical clauses. First, the emphasis on “is” is misplaced and should have been put on the phrase “during the term of office.” The district court seemed to believe the word “is” necessarily could only apply in a situation like the instant Adams 12 election. However, a better interpretation would apply the vacancy statute only when it is determined that a school director “is” a nonresident after both the election and the director has been improperly sworn into office, thus beginning a new term. In fact, an incumbent school director’s “term of office” does not end with the election, but
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C.R.S. § 22-30-104(1). Transcript, 49:12-20.
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only after “a successor has been elected and qualified.” 23 Given the regular confusion over boundary lines, it is not unimaginable that no one would realize a school director lived outside the lines until weeks or months after the election and swearing in ceremony. This possibility becomes even more likely if the new school director ran unopposed in an election. In contrast, putting the operative emphasis on “during the term of office” recognizes that this vacancy statute is intended to be used only post-election and after a new term has begun. Consequently, this statute is inapplicable until after a new term has begun. In this matter, it seems uncontested that Speers is unqualified to be sworn into the school director office and, consequently, a new term of office cannot begin. The vacancy statute, therefore, cannot be applied. Second, the district court failed to recognize that the statute can only be applied “if a court of competent jurisdiction avoids an officer’s election.” As discussed above, the Denver District Court does not have competent jurisdiction to avoid an officer’s election in the Adams 12 election. Only the Adams or Broomfield District Courts have that jurisdiction. Additionally, the word “if” is a subordinating conjunction that should have made the district court aware that a

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C.R.S. § 22-31-105(1)(a).
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vacancy is not mandatory. In fact, as discussed below, it is a matter of last resort when all other options have been exhausted. 4. After an election, a vacancy occurs only when no qualified candidate is legally elected.

The district court also ruling is flawed in its determination that “when a candidate for whom votes have been cast is deemed to be ineligible to hold office or to be a candidate … [t]he vacancy appointment process is to be used to fill the office until the next election.” 24 Vacancy appointments should not be used to fill public office unless no candidate is legally elected. The language of Title I can only be read to presuppose that a vacancy committee is a matter of last resort. Specifically, C.R.S. 1-11-216 sets forth rules for judgment by a district court overseeing an election contest, including: (1) “whether the contestee or any other person was legally elected to the contested office” (emphasis added); (2) “If the judgement is against a contestee who has received a certificate, the judgement annuls the certificate;” and (3) “If the court finds no person was legally elected, the judgement shall set aside the election and declare a vacancy in the office contested” (emphasis added). This structure creates a clear multi-step, linear process that allows a district court to declare the winner of an election. That winner can be anyone who may be
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Transcript, 53:9-14.
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legally elected, whether it is another qualified candidate appearing on the ballot or a qualified write-in candidate. It is only when all other options have been exhausted that a court sets aside the election and orders the vacancy appointment process to be used. Choosing to set aside an election and proceed to a vacancy appointment as anything other than a measure of last resort would be in direct conflict with the elective franchise of the people. B. Speers could not be elected to the office of school director for Adams 12 District No. 4. 1. Standard of Review and Preservation of Issue

The issue presented is a matter of law that the Court reviews de novo.25 Speers eligibility to be candidate, be elected, or hold office are central to the matter and run throughout the record. 2. The Colorado Constitution allows only “qualified” electors to be elected to office.

The Colorado Constitution limits who may be elected or appointed to public office. The title of Article VII, Section 6 declares “ELECTORS ONLY ELIGIBLE TO OFFICE” and the section itself states “No person except a qualified elector shall be elected to any civil or military office in the state.” 26 In contrast to
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Klinger v. Adams Cnty. Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006). Colo. Const. Art. VII § 6 (emphaisis added).
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statutory provisions that limit who may hold public office, the Constitution is clear that unqualified individuals may not even be elected to office. The Court should interpret the modifier “qualified” to mean individuals who are both (1) qualified to vote in a jurisdiction and (2) qualified for the office sought. In most instances, the former is already a requirement of the later. To the best of amici’s knowledge, every local and state office in Colorado includes a statutory qualification that a candidate must be an “eligible elector” or “registered elector.” 27 The Colorado constitution sets the baseline qualifications for an elector to vote in Colo. Const. Art. VII, Section 1. The constitutional qualifications include voter age, residency, and registration. 28 Qualification and registration of electors is further fleshed out in Title I, Article 2. 29 Notably, C.R.S. § 1-2-102 structures the rules for determining residency down to the precinct level. Under this structure, an elector is only eligible to register, and only qualified to vote, in the precinct where they reside. Furthermore, that individual is only qualified to vote in political subdivisions that include that precinct.

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For example, see C.R.S. §22-31-107(1) (school board candidates must be a “registered elector”). 28 Colo. Const. Art VII § 1. 29 C.R.S. § 1-2-101, et. seq.
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Generally, electors residing in precincts within a political subdivision are qualified to vote for the public office representing that political subdivision and only that political subdivision. For example, electors residing in a precinct within State House District 1 are eligible to vote for the state representative from House District 1 and only that state representative. Those electors are not qualified to vote for the state representative for House District 2 or House District 3 or any other state house district. In this instance, being an elector qualified to vote in the district and being an elector qualified to hold office (assuming all other qualifications are met) are one and the same. There are some very specific instances where being qualified to vote in a district and being qualified to hold office in a district do not perfectly correspond. These instances exist when a political subdivision has created a plan of representation that divides the subdivision into districts, such as county commissioners 30 or school districts.31 In those situations, an elector may be qualified to vote for a public office while at the same time being unqualified to hold the same office. For example, all eligible and registered electors residing in the Adams 12 political subdivision are qualified to vote for school directors in every district within the subdivision. But those same electors would only be
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See C.R.S. § 22-30-114(1)(h). See C.R.S. § 30-10-306.
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qualified to hold office in the director district where they reside. They would be unqualified to be to hold office in any of the other districts. It is in these later instances where it becomes critical for the Court to interpret the term “qualified” in Article VII to require that an elector is qualified to hold the office sought. If the Court declines to do so, it leads to the absurd result that people unqualified to hold an office may regularly appear on the ballot. In turn, if such an individual receives the most votes cast, in every occurrence it would force either or both (1) a costly and divisive election contest lawsuit, and (2) a nullification of the entire election and disenfranchisement of thousands of voters in favor of a small vacancy committee. Neither outcome helps to further the “purity of elections” and the second stands in direct contrast to the constitutional mandate to “guard against abuses of the elective franchise.” 32 3. Speers never qualified for the office she sought and never become an eligible candidate.

Beyond the dictates of Article VII, the Colorado Constitution does not create further qualifications to hold specific offices. Instead, determination of additional

32

Colo. Const. Art. VII § 11.
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qualifications is granted to the legislature. 33 To be an elector qualified to hold the office of school district director, or even be a candidate for the office, a person must meet the requirements included in C.R.S. § 22-31-107. Section 1 of the statute requires: “[A]ny candidate for the office of school director of a school district shall have been a registered elector of the district for at least twelve months consecutive prior to the election. If the school district has a director plan of representation … the candidate shall be a resident of the director district that will be represented.” 34 Consequently, to be qualified for the office of school director in the Adams 12 District No. 4, a person must have lived in the director district for twelve months prior to the election. In addition to state statutes, the Adams 12 Board of Education Bylaws do not allow individuals to become official candidates when they have failed to meet all legal requirements. Specifically, the Section 13.1 states: “A person shall officially become a candidate for the Board of Education when (1) he or she has met all of the legal requirements to become a candidate and (2) the Districts’s designated election official notifies that person in writing that he or she has met all of the legal requirements and is an official candidate.” 35
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For example, see C.R.S. § 1-4-205 for the required qualifications of a county commissioner or C.R.S. § 31-10-301 for the required qualifications of electors eligible to hold municipal office. 34 C.R.S. § 22-31-107(1). 35 Exhibit A – Adams 12 BOE Bylaws, Section 13.1 (emphasis added).
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Without first meeting all legal requirements, an individual can never become an official candidate. In a similar instance, a Colorado administrative law judge declined to expand the definition of “candidate” to include “‘prospective’ candidates or ‘possible’ candidates” who had not met all legal requirements to become an “actual candidate.” 36 Speers never met all the legal requirements to become an official candidate. She may have believed she resided in Adams 12 Director District No. 4, causing her to execute a candidate affidavit to that extent, and provide it to the Adams 12 designated election official with the intent of becoming a candidate. But Speers never actually resided in the district, much less for twelve months prior to Election Day. Consequently, regardless of her subjective intent to become a candidate, and even the affirmative steps she took to do so, the objective facts demonstrate that she could not meet all legal requirements and barred her from actually becoming a candidate.

See In The Matter of the Complaint Filed by Colorado Ethics Watch Regarding Alleged Campaign and Political Finance Violations by Clear the Bench Colorado, Case. No. OS 2010-0009, “Order Granting Motion for Summary Judgment of Clear the Bench Colorado, and Denying Motion for Summary Judgment of Colorado Ethics Watch,” p. 4-5 (attached as Exhibit B).
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The Secretary has argued at length that Speers could not be “duly nominated” to the ballot. 37 Amici agree with the arguments of the Secretary. In particular, the amici agrees that in order to be a candidate “duly elected,” a person must first be “duly nominated” to the ballot. The district court erred when it failed to determine whether Speers was duly nominated prior determining whether she was duly elected. In support of the Secretary’s position, amici believe guidance can be drawn from the U.S. Supreme Court’s review of the term “duly taken” in regard to a sworn oath. In U.S. v. Debrow, the Supreme Court stated that “‘Duly taken’ means an oath taken according to a law which authorizes such an oath.” 38 Similarly, this Court should interpret “duly nominated” to the ballot to mean nominated according to the laws which authorize ballot access. Colorado authorizes ballot access under Title I, Article 4. Because C.R.S. § 1-4-501(1) requires a person “fully meets the qualifications of that office” 39 before being eligible to be a candidate, a person necessarily must meet those qualifications before becoming a “duly nominated

See Application for Review Pursuant to § 1-1-113(3), C.R.S., p. 26-31; and Secretary’s Brief in Opposition to Verified Complaint for Judicial Review, p. 1322. 38 U.S. v. Debrow, 346 U.S. 374, 377 (1953) citing Robertson v. Perkins, 129 U.S. 233, 236 (1889). 39 C.R.S. § 1-4-501(1).
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candidate”40 eligible to appear on the ballot under C.R.S. § 1-5-406. Because Speers failed to ever fully meet the qualifications of the office she sought, she did not gain access to the ballot in accordance with state law, but despite it. Consequently, she was not a “duly nominated candidate” and never properly appeared on the ballot. 4. Certification to appear on the ballot does not certify that a candidate is qualified.

State statute only requires designated election officials to certify the ballot order and the ballot content.41 They do not certify that individuals appearing on the ballot are qualified as candidates. From a practical and policy standpoint, this approach makes sense. The person seeking office is in the best position to know if they meet all qualifications for office. Comparatively, the potential administrative burden to designated election officials to “fact-check” each and every qualification for each and every candidate could be very costly in both monetary and time resources. To balance these burdens, individuals seeking office are required to file swearing or affirm under oath to their eligibility. 42 Without any cause to question the sworn statement of the candidate, designated elections officials are entitled to

40 41

C.R.S. § 1-4-506. C.R.S. § 1-5-203(3)(a). 42 C.R.S. § 1-4-501(1).
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reasonably rely the facts contained in the statement. But if facts in the candidate’s statement later turn out to be inaccurate, the subsequent certification of a person to the ballot by a designated election official does not “cure” the inaccuracies. In this matter, Speers’ own actions and statements led the designated election official it improperly place Speers on the ballot. Frances Mullins, the Adams 12 designated election official (“Mullins”), certified Speers to the ballot based on the accuracy of her sworn affidavit. 43 While it does not seem that Speers intended to mislead Mullins, a material subject of the affidavit she provided was inaccurate. Mullins certification does not cure Speers’ inaccuracy. Furthermore, it does not certify Speers was qualified to appear on the ballot. 5. All mail ballots exacerbate ballot errors and create increased need for the Secretary’s Emergency Rule.

Errors on certified ballots are exacerbated by the recent passage of “all mail ballots” by the Colorado legislature. By requiring that all Coloradans be mailed a ballot, (1) more mail ballots are pre-printed weeks before Election Day, and (2) the ability of clerks to correct errors prior to Election Day is decreased by the compressed timeline for sending ballots out. Because mail ballots must be printed weeks in advance to provide enough time for printing, mailing, and return from voters, the window for corrections by county clerks is substantially limited. That
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Transcript, 36:15-16.
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situation is further compounded in races such as those for school board director where petitions for nomination cannot be circulated more than 90 days before the election and only need to be turned in 67 days prior to the election. 44 Here, even though the error was uncovered a full week before Election Day, the ballots had already been printed and sent to registered voters several weeks earlier. Consequently, the error could not be corrected on those ballots. In that context, the Secretary’s Rule helps ameliorate the problem. When individuals erroneously appear on a ballot, declining to count votes for that individual allows an election to be properly determined by the votes cast among all other individuals appearing on the ballot properly and legally. This in turn protects the purity of the election. 6. Votes for candidates appearing on the ballot are not always counted.

The Secretary has previously cited to several statutory instances where votes are not counted for someone appearing on the ballot. However, there is at least one additional instance that my help guide this Court’s decision. Votes for “improperly marked ballots” also are not counted. C.R.S. § 1-7-309 governs “improperly marked ballots” and Section 1 states that “Votes cast … shall not be counted if an elector marks more names than there

44

C.R.S. § 22-31-107(2).
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are persons to be elected to an office.” 45 In this event a vote has been cast for individuals appearing on the ballot – likely qualified candidates – but not counted. Even though the elector has clearly made an intention to vote for certain individuals, because the ballot has been improperly marked, none of the votes are counted or tabulated. The current case presents a similar situation. While votes have been cast for a person appearing on the ballot, because that individual was not a duly nominated candidate, the votes are akin to an improperly marked ballot and should not be counted. While voters may have had a clear intention to vote for Speers, because she did not qualify to be elected or hold office, votes cast by a mark next to her name have been improperly marked. Consequently, they should not be counted. C. Qualified candidates receiving the most votes should be deemed elected. Unlike Speers, Figueroa met all the qualifications and legal requirements to be a candidate for Adams 12 School Director for District No. 4. He resides, and did reside, within the district. He submitted the required number of petition signatures. The designated election official properly certified him to the ballot. And on November 5, 2013, more than 14,000 electors cast votes for him. 1.
45

Standard of Review and Preservation of Issue

C.R.S. § 1-7-309 (2013).
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The issue presented is a matter of law that the Court reviews de novo.46 The Secretary argued that allowing an unqualified individual to be elected would deny an eligible candidate. 47 2. Votes for qualified candidates are counted and should be given full credit.

Counsel for Plaintiffs/Respondents argued before the district court that “more important, if the votes are deemed invalid for the disqualified or to be disqualified candidate, the default in the election goes to the other candidate because it will be the number of votes that the other candidate has against zero for the --- for the candidate whose vote is not counted.” 48 But this statement is misleading. First, it presupposes a zero-sum outcome between only two individuals. Second, it implies that votes cast for one candidate equate to votes against another candidate. Both suppositions are wrong. Many elections have multiple individuals listed on the ballot for the same office. Even partisan races where parties may nominate only one candidate often have multiple candidates from minor parties. In nonpartisan races, where there are no party affiliation limitations, every individual who has completed the ballot access process will be listed. Consequently, these races do not present a zero-sum
46 47

Klinger v. Adams Cnty. Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006). Transcript, 31:21-25, 32:1-15. 48 Transcript, 10:2-7.
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circumstance. In the event that multiple candidates appear on a ballot and votes cast for one are not counted, the winning candidate would be the one receiving the most votes from the remaining qualified candidates. Counsel for Respondents also stated that some votes may have been cast against “a candidate against whom voters have voted because they want that candidate out of office.” Counsel would implicitly invite the Court to engage in a speculative and subjective process without any evidence. Besides being wholly irrelevant to the vote count, the motives of voters are secret and private. There are no means to collect and tabulate the motives and reasons why every voter chose to vote in the manner they did. Beyond being practicably impossible to track, such a system would violate the very premise of a secret ballot. Additionally, outside of very narrow and specific circumstances, 49 voters do not “vote against” candidates, but rather “vote for” them. Elections are determined by tabulating what candidate received the most votes for election. That principle is readily demonstrated by public officials elected through a plurality and not a majority. In deed, the current Colorado Secretary of State was elected by plurality

For example, recall elections or judicial retention elections, both of which employ a “yes/no” format on the ballot for voting on a single candidate.
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49

of votes.50 Applying the rule requested by Counsel for Plaintiffs/Respondents, the Secretary would not have been elected because more people “voted against” him than “voted for” him. In this matter, votes were cast for two individuals appearing on the ballot. However, only one was qualified to be a candidate, to be elected, and to hold office. In fact, according to the official surveys of election returns, 51 Figueroa received 14,081 votes cast. That represents more than 14,000 voters who exercised their elective franchise to “vote for” Figueroa, including each individual for this amici. Plaintiffs/Respondents’ argument effectively asks the court to ignore the more than 14,000 votes cast for Figueroa. It is the legal equivalent of determining that two wrongs make a right. Plaintiff/Respondents request that the Court negate a “wrong” committed by Speers – providing inaccurate information in her affidavit – by committing another wrong, namely disenfranchising the electors who cast votes for Figueroa. The Court should decline Plaintiffs/Respondents’ offer and rule that the qualified candidate receiving the most votes cast is elected.

50

See Secretary of State 2010 Election Official Results http://www.sos.state.co.us/pubs/elections/Results/2010/general/ColoradoReport.ht ml
51

Attached as Exhibit C & D - Election Returns for Adams & Broomfield.
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D.

The district court erred when it ruled the Secretary had no basis for Rule 107.5. The district court found “the Secretary of State has no basis of authority for

directing that the votes for Ms. Speers or any other candidate for school district race [sic] are simply invalid and not to be counted.” 52 The district court’s decision is in error because the Secretary had good reason to enact Rule 107.5. The rule is necessary to protect uniform elections in the state and prevent parties in an election from acting in bad faith.

1.

Standard of Review and Preservation of Issue

The issue presented is a matter of law that the Court reviews de novo.53 In enacting Rule 107.5 and defending this action, the Secretary argued extensively throughout the proceedings that he had the proper basis and authority to promulgate the rule. 2. Rule 107.5 is necessary to ensure uniform election results and bar parties from acting in bad faith.

From a public policy perspective, Rule 107.5 is necessary to (1) ensure uniform election results, and (2) bar parties from acting in bad faith. At first blush, it may seem that the facts surrounding the underlying election in Adams 12 are
52 53

Transcript, 51:4-7. Klinger v. Adams Cnty. Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006).
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extraordinary and rarely occur. In fact, the circumstances presented here are not that unusual. During the same election, the Bayfield School District in southwestern Colorado faced a nearly identical situation. Days before the election, La Plata County Clerk and Recorder Tiffany Parker (“Parker”) and the Bayfield School District told Justin Ross (“Ross”) that he did not qualify for the ballot because he did not meet the residency requirements. Ross had already been certified to the ballot by the school district’s designated election official and ballots including Ross had been printed and delivered to voters. 54 Ross, acting in good faith, withdrew under C.R.S. § 1-4-1001(1). Parker did not count or tabulate votes cast for Ross. Without the protection of uniform election treatment of individuals unqualified to hold office, parties would be incentivized to act in bad faith and undermine the election process. As discussed above, Mullins relied on the accuracy of Speers’ sworn affidavit when she certified Speers to the ballot. When Mullins discovered Speers’ error a week before the election, she immediately attempted to correct it. She requested Speers act in good faith and file for withdrawal just as Ross had done. Had Speers filed the withdrawal, the process would have clearly
54

See Exhibit E - Pagosa Springs Sun Article Dated 10/30/13.
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been governed under C.R.S. § 1-5-412(3). However, unlike Ross, Speers refused to withdraw. Knowing that she could not be elected or hold office, she nonetheless refused Mullins request. Instead, it appears she acted in bad faith to remove the election from voters within the district and put it into the courts, and, if the electors in this proceeding prevail, a vacancy appointment process. Actions that dictate such removal run contrary to the democratic form of government. CONCLUSION In regard to the Adams 12 election for school director, the Court should rule that the Denver District Court did not have jurisdiction to determine the outcome of the election. Additionally, the Court should overturn the district court and declare that a vacancy does not occur unless a no qualified candidate is legally elected. In this case, the Court should find that because Speers did not meet the qualifications for office, she could not be a candidate, be elected, or hold office. And because Figueroa received the most votes cast among qualified candidates, he should be elected. In regard to the Secretary’s Rule 107.5, the Court should overturn the district court and rule that the Secretary had the proper authority and basis for the rule.

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Respectfully submitted this 16th day of December, 2013.

HACKSTAFF LAW GROUP, LLC Signed original is on file at Hackstaff Law Group, LLC

By: s/ Mario Nicolais Mario Nicolais, II (#38589) Kelly Breuer (#28558) Attorneys for Amici Curaie

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CERTIFICATE OF SERVICE I hereby certify on this 16th day of December, 2013, a true and correct copy of the foregoing AMICUS CURIAE BRIEF OF ENRICO FIGUEROA, BRIAN VANDE KROL, JOSEPH HOLT, MARK RULE, & MELISSA WILLS IN SUPPORT OF PETITIONER was filed with the Court and served via ICCES, addressed to the following: Leeann Morrill, First Assistant Attorney General Matthew D. Grove, Assistant Attorney General Sueanna P. Johnson, Assistant Attorney General Edward T. Ramey, Esq. Martha Moore Tierney, Esq. HEIZER PAUL LLP Gillian Dale, Esq. Thomas J. Lyons, Esq. Hall and Evans LLC William A. Tuthill, III, Esq. City & County of Broomfield-Attorney’s Office Douglas K. Edelstein, Esq. Heidi Michelle Miller, Esq. Jennifer Dawn Stanley, Esq. Adams County Attorney’s Office-Civil Signed original is on file at Hackstaff Law Group, LLC

s/ Rachel S. Davis Rachel S. Davis, Paralegal

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