Election Preview: New Statutory Duties to Investigate Ineligible Voters and Fraud?

• Publication year: 1998
• Pages: 67
• Citation: Vol. 27 No. 8 Pg. 67

27 Colo.Law. 67 Colorado Lawyer 1998.

1998, August, Pg. 67. Election Preview: New Statutory Duties to Investigate Ineligible Voters and Fraud?

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Vol. 27, No. 8, Pg. 67

The Colorado Lawyer
August 1998
Vol. 27, No. 8 [Page 67]

Specialty Law Columns
Government and Administrative Law News
Election Preview: New Statutory Duties to Investigate Ineligible Voters and Fraud?
by Ron Carlson

During 1998, various municipal, special, and general elections will occur. The general and municipal elections are mostly covered under the Uniform Election Code of 19921 and the Municipal Election Code.2 Clerks and recorders, municipal clerks, and practitioners of election law are generally aware that after the completion of the canvass, the deadline for filing election law challenges is ten days. However statutory revisions and case law may have changed both the definition of "canvass" and the time from which the ten days run

The 1992 revision of the Uniform Election Code revised the general election law extensively. The subsequent amendments to the Municipal Election Code were not as extensive. The question of the definition of what constitutes a canvass and when that canvass is completed was addressed at the trial court level in a recent Colorado case, in which the district court ruled that the new code amendments can create an administrative duty to turn the canvass into an administrative investigation or hearing on election fraud.3 In Burnell v. Town of Silverthorne,4 testimony by a former Secretary of State employee5 as an expert witness has given the expanded statutory duty a toe-hold in Colorado law

This article is intended to make practitioners aware that there is a school of thought now supporting these expanded duties.

A Wal-Mart Super Store?

On May 20, 1997, the Town of Silverthorne conducted a municipal election as to whether to approve the annexation, purchase, and resale of property for a proposed Wal-Mart Super Center Store.6 The Silverthorne special election was initially canvassed on May 23, 1997, within the seven days' limit on conducting canvasses.7 The town officials declared the annexation a victor by the slim margin of ten votes8 and declared the annexation valid. It was noted that there was a discrepancy in the computer list of voters and the actual voters. The town officials then prepared an "Abstract of Votes Cast and Statement of Certificate of Determination."9

A certified request for recount was submitted on May 27, 1997. The recount was conducted on June 2, 1997, the tenth day after the canvass. At the recount, the town officials acknowledged three obvious ineligible voters from town records. The town took a position that the recount was only a mathematical and clerical function to establish the accuracy of the abstract. The town's position was that the town officials did not have to investigate allegations that people living outside the town in unincorporated areas with town addresses had voted in the election.

At the conclusion of the recount, the town attorney...