Rico Figueroa Amicus Brief

8/13/2019 Rico Figueroa Amicus Brief

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SUPREME COURTSTATE 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

COURT USE ONLY

Attorneys for Amici Curiae

Mario Nicolais, II (#38589)Kelly Breuer (#28558)

Hackstaff Law Group, LLC1601 Blake Street, Suite 310

Denver, Colorado 80202

Telephone: 303-534-4317

Email:[email protected]@hackstafflaw.com

Case Number: 2013SA306

AMICUS CURIAE BRIEF OF ENRICO FIGUEROA, BRIAN VANDE

KROL, JOSEPH HOLT, MARK RULE, & MELISSA WILLS

IN SUPPORT OF PETITIONER
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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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 disqualificationwould be an immediate vacancy ................................................................... 4

1. Standard of Review and Preservation of Issue ...................................... 4

2. Declaring the outcome of an election contest was beyond the

jurisdiction of the court ......................................................................... 5

3. School board election outcomes are not determined under the school

board vacancy statute ............................................................................ 8

4. After an election, a vacancy occurs only when no qualified candidate

is legally elected .................................................................................. 12

B. Speers could not be elected to the office of school director for Adams 12

District No. 4 ................................................................................................. 13

1. Standard of Review and Preservation of Issue .................................... 13

2. The Colorado Constitution allows only qualified electors to be

elected to office ................................................................................... 13

3. Speers never qualified for the office she sought and never became an

eligible candidate ................................................................................. 16


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ii

4. Certification to appear on the ballot does not certify that a candidate is

qualified ............................................................................................... 20

5. All mail ballots exacerbate ballot errors and create increased need for

the Secretarys Emergency Rule ......................................................... 21

6. 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. Standard of Review and Preservation of Issue .................................... 23

2. 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. Standard of Review and Preservation of Issue27

2. 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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iii

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 Secretarys 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 Secretarys 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 courts 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.1This 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.2The

Secretarys objections to the district courts jurisdiction and application of vacancy

statutes are central to the matter and argued throughout the proceedings.

1Transcript, 50:9-15.

2Klinger 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 rule-

making), and C.R.S. 1-1-113 (procedures for adjudication of election

controversies prior to ).3Amici 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

3Transcript, 46:24-25, 47:1-4.


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occurs prior to the day of the election.45Amici agree with the Secretarys

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.6In 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 2.7The

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 shallbe 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

4C.R.S. 1-1-113(4).

5SeeApplication for Review Pursant to 1-1-113(3), C.R.S., p. 18-22.

6C.R.S. 1-1-113(1).

7C.R.S. 1-11-201, et seq.

8C.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 post-

election. 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

9C.R.S. 1-11-213(4).



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outcome of the Adams 12 election the necessary facts before to determine the

election outcome hadnt even been established.

The district courts 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 ifMs. Speers garnered

more votes the effect . would be to create an immediate vacancy.11Not only

is reliance on such hypothetical facts clear error by the court, but it leads to

speculative rulings that run afoul of the states bar against advisory opinions.12

3. School board election outcomes are not deteremined under the schoolboard 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 courts opinion relied on any

other statute contained in Title I. Instead, the district courts 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.

11Transcript, 50:9-15 (emphasis added).

12See 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.

13Title I, Art. IV.

14Title I, Art. VII.

15Title I, Art. XI, Part 2.

16C.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 byamendment)19

C.R.S 22-31-124 Canvass of votes certificate of election. (Deleted byamendment).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 officers electionfor any purposewhatsoever, the director office shall be deemed to be vacant, endquote. 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 andthe

director has been improperly sworn into office, thus beginning a new term. In fact,

an incumbent school directors term of office does not end with the election, but

21C.R.S. 22-30-104(1).



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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 personwas legally electedto 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) Ifthe 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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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.


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 electedto any civil or military office in the state.26

In contrast to


26Colo. Const. Art. VII 6 (emphaisis added).


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statutory provisions that limit who may holdpublic office, the Constitution is clear

that unqualified individuals may not even be electedto 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 amicis 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.

27For 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

commissioners30

or school districts.31

In those situations, an elector may be

qualifiedto vote for a public office while at the same time being unqualifiedto

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

30See C.R.S. 22-30-114(1)(h).

31See 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

32Colo. 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 ofEducation when (1) he or she has met allof the legal requirements to

become a candidate and (2) the Districtss 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

33For 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 alllegal 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.

36SeeIn 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 ofClear 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

mustfirstbe 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 Secretarys position, amici believe guidance can be drawn

from the U.S. Supreme Courts 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 office39

before being eligible to be a candidate, a person

necessarily must meet those qualifications before becoming a duly nominated

37SeeApplication for Review Pursuant to 1-1-113(3), C.R.S., p. 26-31; and

Secretarys Brief in Opposition to Verified Complaint for Judicial Review, p. 13-22.38

U.S. v. Debrow, 346 U.S. 374, 377 (1953) citingRobertson v. Perkins, 129 U.S.233, 236 (1889).39

C.R.S. 1-4-501(1).


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candidate40

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.41They 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

40C.R.S. 1-4-506.

41C.R.S. 1-5-203(3)(a).

42C.R.S. 1-4-501(1).


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reasonably rely the facts contained in the statement. But if facts in the candidates

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.43While 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 Secretarys 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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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

Secretarys 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 Courts 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

44C.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.


45C.R.S. 1-7-309 (2013).


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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


47Transcript, 31:21-25, 32:1-15.



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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

49For 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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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.

50See Secretary of State 2010 Election Official Results -

http://www.sos.state.co.us/pubs/elections/Results/2010/general/ColoradoReport.html

51Attached as Exhibit C & D - Election Returns for Adams & Broomfield.
http://www.sos.state.co.us/pubs/elections/Results/2010/general/ColoradoReport.htmlhttp://www.sos.state.co.us/pubs/elections/Results/2010/general/ColoradoReport.htmlhttp://www.sos.state.co.us/pubs/elections/Results/2010/general/ColoradoReport.htmlhttp://www.sos.state.co.us/pubs/elections/Results/2010/general/ColoradoReport.htmlhttp://www.sos.state.co.us/pubs/elections/Results/2010/general/ColoradoReport.html


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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 courts 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.



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 barparties 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




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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 districts 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

54See Exhibit E - Pagosa Springs Sun Article Dated 10/30/13.


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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, & MELISSAWILLS IN SUPPORT OF PETITIONERwas filed with the Court and served

via ICCES, addressed to the following:

Leeann Morrill, First Assistant Attorney General

Matthew D. Grove, Assistant Attorney GeneralSueanna 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-Attorneys Office

Douglas K. Edelstein, Esq.

Heidi Michelle Miller, Esq.Jennifer Dawn Stanley, Esq.

Adams County Attorneys Office-Civil

Signed original is on file at Hackstaff Law

Group, LLC

s/ Rachel S. Davis

Rachel S. Davis, Paralegal

Rico Figueroa Amicus Brief

Documents

Transcript of Rico Figueroa Amicus Brief