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1-4-802. Petitions for nominating minor political party and unaffiliated candidates for a partisan office.

Statute text

(1) Candidates for partisan public offices to be filled at a general or congressional vacancy election who do not wish to affiliate with a major political party may be nominated, other than by a primary election or a convention, in the following manner:

(a) A petition for nominating minor political party or unaffiliated candidates shall be prepared, indicating the name and address of any candidate for the office to be filled. The petition shall indicate the name of the minor political party or designate in not more than three words the political or other name selected by the signers to identify an unaffiliated candidate. No name of any political party shall be used, in whole or in part, to identify an unaffiliated candidate.

(b) Each petition shall contain only the name of one candidate for one office; except that any petition for a candidate for president of the United States shall also include a candidate for vice president, and a candidate for governor shall also include a candidate for lieutenant governor, and together they shall be considered joint candidates at the general election. In the case of nominations for electors of president and vice president of the United States, the names of the joint candidates may be added to the political or other name designated on the petition.

(c) Every petition for the office of president and vice president, for statewide office, for congressional district office, for the office of member of the general assembly, for district attorney, and for county office shall be signed by eligible electors residing within the district or political subdivision in which the officer is to be elected. Except as otherwise provided in subsection (2) of this section, the number of signatures of eligible electors on a petition shall be as follows:

(I) At least five thousand for the office of president and vice president;

(II) The lesser of one thousand or two percent of the votes cast for all candidates for that office in the most recent general election for any statewide office;

(III) The lesser of eight hundred or two percent of the votes cast in the congressional district in the most recent general election for the office of member of the United States house of representatives, member of the state board of education for a congressional district, or member of the board of regents of the university of Colorado for a congressional district;

(IV) The lesser of six hundred or two percent of the votes cast in the senate district in the most recent general election for the office of member of the state senate;

(V) The lesser of four hundred or two percent of votes cast in the house district in the most recent general election for the office of member of the state house of representatives;

(VI) The lesser of six hundred fifty or two percent of the votes cast in the district in the most recent general election for the office of district attorney; and

(VII) The lesser of seven hundred fifty or two percent of the votes cast for all candidates for that office in the most recent general election for any county office.

(d) (I) No petition to nominate an unaffiliated candidate, except petitions for candidates for vacancies to unexpired terms of representatives in congress and for presidential electors, shall be circulated or any signatures obtained thereon earlier than one hundred seventy-three days before the general election.

(II) No petition to nominate a minor political party candidate shall be circulated nor any signatures obtained thereon earlier than the first Monday in February in the general election year.

(e) The petition to nominate an unaffiliated candidate may designate or appoint upon its face one or more unaffiliated registered electors as a committee to fill vacancies in accordance with section 1-4-1008. However, in the case of a petition for the office of state senator or state representative, the petition shall designate or appoint upon its face three or more unaffiliated registered electors as a committee to fill vacancies in accordance with sections 1-4-1008 and 1-12-203.

(f) (I) Except as provided by subparagraph (II) of this paragraph (f), petitions shall be filed no later than 3 p.m. on the one hundred seventeenth day before the general election or, for a congressional vacancy election, no later than 3 p.m. on the twentieth day after the date of the order issued by the governor.

(II) Petitions to nominate candidates of minor political parties shall be filed no later than eighty-five days before the primary election as specified in section 1-4-101.

(g) (I) For congressional vacancy elections, no person shall be placed in nomination by petition unless the person is an eligible elector and was registered as affiliated with a minor political party or as unaffiliated, as shown in the statewide voter registration system, for at least twelve months prior to the last date the petition may be filed.

(II) For general elections, no person shall be placed in nomination by petition unless the person is an eligible elector of the political subdivision or district in which the officer is to be elected and unless the person was registered as affiliated with a minor political party or as unaffiliated, as shown in the statewide voter registration system, no later than the first business day of the January immediately preceding the general election for which the person desires to be placed in nomination; except that, if such nomination is for a nonpartisan election, the person shall be an eligible elector of the political subdivision or district and be a registered elector, as shown in the statewide voter registration system, on the date of the earliest signature on the petition.

(2) Where the electors of the county have voted to increase the membership of the board of county commissioners from three to five pursuant to section 30-10-306.5, C.R.S., or to decrease the membership of the board from five to three pursuant to section 30-10-306.7, C.R.S., for the next two general elections immediately following an election at which the voters have approved a change in the membership of the board, the signature requirements for the petition to select candidates who do not wish to affiliate with a major political party are as follows:

(a) Where any one or more commissioners to be elected to the board of county commissioners will be voted on by voters of the whole county, every petition must require signers equal in number to the lesser of either seven hundred fifty signers or two percent of the average of all votes cast in each county commissioner district for which there was a race on the ballot during the most recent general election;

(b) Where any one or more commissioners to be elected to the board of county commissioners will be voted on only by the electors residing in a particular county commissioner district, every petition must require signers equal in number to the lesser of either:

(I) Seven hundred fifty signers; or

(II) The number realized by first determining two percent of the average of all votes cast in each county commissioner district for which there was a race on the ballot during the most recent general election, and then dividing that number by the total number of commissioner districts in the county where commissioners are voted on only by the electors residing in a district, whether three or five.

(3) Following the first two general elections that are conducted after a change in the membership of the board of county commissioners pursuant to section 30-10-306.5 or 30-10-306.7, C.R.S., the signature requirements for a petition for a county commissioner candidate who does not wish to affiliate with a major political party must follow the procedures specified in subparagraph (VI) of paragraph (c) of subsection (1) of this section.

History

Source: L. 92: Entire part R&RE, p. 685, 7, effective January 1, 1993. L. 95: (1)(a), (1)(c), (1)(d), (1)(e), (1)(f), and (1)(g) amended, pp. 861, 885, 830, 116, 2, 29, effective July 1. L. 96: IP(1) amended, p. 1739, 21, effective July 1. L. 99: (1)(d) and (1)(f) amended, p. 764, 25, effective May 20. L. 2003: IP(1), (1)(a), (1)(d), (1)(e), (1)(f), and (1)(g) amended, p. 1310, 7, effective April 22. L. 2005: (1)(d) and (1)(f) amended, p. 1399, 17, effective June 6; (1)(d) and (1)(f) amended, p. 1434, 17, effective June 6. L. 2010: (1)(g) amended, (HB 10-1271), ch. 324, p. 1503, 5, effective May 27. L. 2011: (1)(d) and (1)(f) amended, (SB 11-189), ch. 243, p. 1064, 10, effective May 27. L. 2012: (1)(b), (1)(d)(I), and (1)(f)(I) amended, (HB 12-1292), ch. 181, p. 680, 13, effective May 17. L. 2013: IP(1)(c) amended and (2) and (3) added, (SB 13-243), ch. 268, p. 1411, 2, effective May 24. L. 2016: (1)(g) amended, (SB 16-142), ch. 173, p. 576, 31, effective May 18. L. 2017: (1)(e) amended, (SB 17-209), ch. 234, p. 962, 8, effective August 9.

Annotations

Editor's note: This section is similar to former 1-4-801 as it existed prior to 1992.

Annotations

Cross references: For filling vacancies in a nomination for an unaffiliated candidate, see 1-4-1002 (4) and (5).

Annotations

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Purpose.
III. Requisites for Nomination.
IV. Requirements of Section.
V. Filing.
VI. Protection of Name of Party.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Constitutional Law", which discusses a Tenth Circuit decision dealing with minor party ballot access, see 62 Den. U. L. Rev. 101 (1985). For article, "Constitutional Law", which discusses Tenth Circuit decisions dealing with minor party ballot access, see 63 Den. U. L. Rev. 247 (1986).

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

The provision for nominating an independent candidate by petition shall receive such construction as will afford to the elector the greater liberty in casting his ballot. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).

An appeal from the denial of an injunction to place a candidate's name on the ballot for the general election will be dismissed as moot where the election has come and gone. Thournir v. Buchanan, 710 F.2d 1461 (10th Cir. 1983).

II. PURPOSE.

The purpose of providing for nomination by petition is to permit electors to make independent nominations for public offices by petition under a name they may lawfully choose, and to vote for such nominees by that designation. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).

In order to give the electors the widest possible latitude in naming candidates, candidates can be nominated by petition direct, without submitting their candidacy to a vote at the primary election. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).

III. REQUISITES FOR NOMINATION.

No violation of equal protection. Requirement that each nominating petition circulated by an individual or political organization contain the name of a single candidate only does not violate equal protection. Nat'l Prohibition Party v. State of Colo., 752 P.2d 80 (Colo. 1988); Colo. Libertarian Party v. Sec'y of State, 817 P.2d 998 (Colo. 1991), cert. denied, 503 U.S. 985, 112 S. Ct. 1670, 118 L. Ed. 2d 390 (1992).

Application of that portion of subsection (1)(g) requiring a congressional candidate to be an eligible elector of the congressional district in which he seeks election violates the qualifications clause of the U.S. constitution. Campbell v. Buckley, 46 F. Supp. 2d 1115 (D. Colo. 1999), aff'd, 233 F.3d 1229 (10th Cir. 2000), cert. denied, 532 U.S. 973, 121 S. Ct. 1605, 149 L. Ed. 2d 471 (2001).

The requirement of subsection (1)(i) (now (1)(g)) that a person be registered as "unaffiliated" for a period of one year as a prerequisite for running for public office is constitutional. Thournir v. Meyer, 708 F. Supp. 1183 (D. Colo. 1989).

Legislative intent of subsection (1)(g) is clear: No unaffiliated candidate may be on the ballot unless registered as an unaffiliated voter at least 12 months prior to last date for filing applications. Conte v. Meyer, 882 P.2d 962 (Colo. 1994).

In order to make nominations by individuals two things are necessary: (1) The filing of a certificate with the proper officer substantially in the form required by law containing the requisite number of signatures of persons entitled to sign; and (2) an acceptance on the part of the candidates so named. O'Connor v. Smithers, 45 Colo. 23, 99 P. 46 (1908).

Unless the latter accept, they are not nominees, and are no more candidates, or affected by the petitions filed, than if none had ever been filed. O'Connor v. Smithers, 45 Colo. 23, 99 P. 46 (1908).

IV. REQUIREMENTS OF SECTION.

The electors are not required to state anything in the petition regarding the political affiliation of the nominees. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).

The subscriber's character as a voter is established by affidavit; no more can be required. Benson v. Gillespie, 62 Colo. 206, 161 P. 295 (1916).

One who has accepted the nomination of a political party may be nominated by petition of independent voters, assuming a different party designation. Pease v. Wilkin, 53 Colo. 404, 127 P. 230 (1912).

The unaffiliation requirement of subsection (1)(i) (now (1)(g)) is not unconstitutional because it serves the compelling state interest of protecting the integrity of Colorado's balloting process and it does not unnecessarily or unfairly impinge on a prospective candidate's right of access to the ballot. Colo. Libertarian Party v. Sec'y of State, 817 P.2d 998 (Colo. 1991), cert. denied, 503 U.S. 985, 112 S. Ct. 1670, 118 L. Ed. 2d 390 (1992).

V. FILING.

The words "not less than" do not require full clear days. The words "not less than" prefixed to the number of days specified in the provision for nomination by petition do not require full clear days. The time limitation is to be interpreted as if the words had been omitted. Luedke v. Todd, 109 Colo. 326, 124 P.2d 932 (1942).

Thus a certificate of nomination filed with the town clerk on February 21st would still be in time for a town election to be held on April 7th. Luedke v. Todd, 109 Colo. 326, 142 P.2d 932 (1942).

Secretary of state or deputy may pass on validity of petition. Although petitions for nominating independent candidates for offices to be voted on by the entire state are properly filed with the secretary of state, the secretary of state is not vested solely with the decision-making power in passing upon the validity of objections to such petition because the secretary of state has the power to appoint a deputy to act for the secretary if the secretary deems it necessary, and the deputy shall have full authority to act in all things relating to the office. Olshaw v. Buchanan, 186 Colo. 362, 527 P.2d 545 (1974).

VI. PROTECTION OF NAME OF PARTY.

Nominations by petitions protected in same manner as nominations by convention. The nomination, by petition, of the candidates of an organized party, authorized by such party, are to be protected to the same extent, and in the same manner, as nominations made by convention, even though such party have not sufficient strength to make nominations by convention. Philips v. Smith, 25 Colo. 456, 55 P. 184 (1898); McBroom v. Brown, 53 Colo. 412, 127 P. 957 (1912).

The authorized use by others of the name of such party, in a petition making nominations for an approaching election, even though prior in point of time to a certificate presented by the proper authorities of the party, will not prevent the filing of the latter. Philips v. Smith, 25 Colo. 456, 55 P. 184 (1898); McBroom v. Brown, 53 Colo. 412, 127 P. 957 (1912).

Name may not be appropriated by others. The name adopted by a new political party placed on a ballot by petition is not subject to appropriation by other petitioners. McBroom v. Brown, 53 Colo. 412, 127 P. 957 (1912).

Section unenforceable. In light of the Colorado Supreme Court decision in McBroom v. Brown, 53 Colo. 412, 127 P. 957 (1912), this section which distinguishes between political parties and political organizations by only allowing parties to prevent unendorsed candidates from running under the party name is unenforceable. Baer v. Meyer, 577 F. Supp. 838 (D. Colo. 1984), aff'd in part and rev'd in part on other grounds, 728 F.2d 471 (10th Cir. 1984).