Erickson v. Blair

Decision Date11 October 1983
Docket NumberNo. 82SA351,82SA351
Citation670 P.2d 749
PartiesSteve G. ERICKSON, Plaintiff-Appellee, v. Michael S. BLAIR and the Avon Metropolitan District, Defendants-Appellants.
CourtColorado Supreme Court

Kelly & Stovall, Lawrence J. Kelly, Eagle, for plaintiff-appellee.

George Rosenberg, Avon, Davis, Graham & Stubbs, Thomas S. Nichols, Margaret G. Leavitt, Denver, for defendants-appellants.

QUINN, Justice.

Michael S. Blair and the Avon Metropolitan District appeal from a judgment of the District Court of Eagle County declaring Steve G. Erickson the winner of an election for a seat on the Avon Metropolitan District Board of Directors (Board). The election judges had certified Erickson as the winner of the election, but the Board, after canvassing and recounting the votes, included seven additional absentee ballots rejected by the judges in the final tally and declared Blair the winner. The district court, applying a standard of strict statutory compliance for absentee voting, held that the seven absentee ballots should not have been counted and accordingly reversed the decision of the Board and declared Erickson the winner of the election. Concluding that the district court applied an unnecessarily strict standard of electoral review, we affirm in part, reverse in part, and remand for further proceedings.

I.

The Avon Metropolitan District (District), located in Eagle County, Colorado, is a special metropolitan district organized pursuant to the Special District Act. 1 Sections 32-1-101 to 32-1-1307, C.R.S.1973 (1982 Supp.). On May 4, 1982, the District held a regular election to fill four vacancies on its Board of Directors. Seven candidates, including Erickson and Blair, were vying for three four-year terms on the Board, and one candidate was running uncontested for a two-year term.

Although formal voter registration is not necessary for special district elections, the Special District Act requires in-person voters to sign an affidavit at the polling place on the day of the election and absent voters to sign an affidavit on the return envelope for their ballot. 2 An elector may apply either orally or in writing for an absent voter's ballot not earlier than thirty days before the election or later than 4:00 p.m. on the Friday immediately preceding the election. 3 Section 32-1-821(4), C.R.S.1973 (1982 Supp.), provides, in this respect, as follows:

"The return envelope for the absent voter's ballot shall have printed thereon an affidavit containing a statement of the qualifications for an elector, and it shall contain a space for the person's name, address, and signature, and the date of election. The voter shall sign the affidavit stating that he is an elector of the district and that he has not previously voted at said election."

An elector is defined in section 32-1-103(5), C.R.S.1973 (1982 Supp.), as follows:

"(a) 'Elector' means a person who, at the designated time or event, is qualified to vote in general elections in this state and:

(I) Who has been a resident of the special district or the area to be included in the special district for not less than thirty-two days; or

(II) Who, or whose spouse, owns taxable real or personal property situated within the boundaries of the special district or the area to be included in the special district, whether said person resides within the special district or not.

"(b) A person who is obligated to pay taxes under a contract to purchase taxable property situated within the boundaries of the special district shall be considered an owner within the meaning of this subsection (5)."

In the instant case, the following form of affidavit was contained on the return envelopes issued to those applying for an absent voter's ballot:

"STATE OF COLORADO ) RECEIVED BY SECRETARY

)ss __________o'clock__M.

County of__________) _______________19__

Delivered by

Name____________________________

Address_________________________

"I,__________________________

of lawful age, being first duly

sworn, upon my oath, depose

and say:

"That I am a person qualified to vote at a general election

in the State of Colorado, and (Indicate applicable phrase by

placing a cross (X) in the box preceding the appropriate words.)

[ ] "I have been a resident of the____District,______

County, Colorado or the area to be included in the district for

not less than thirty-two (32) days.

[ ] "I (or my spouse) own taxable real or personal property

within the ____District,______County, Colorado,

or the area to be included in the district.

[ ] "I am obligated to pay general taxes under a contract to

purchase real property within the district.

"That I reside at______; and that I have not

previously voted at the election of Directors held on

________, 19__.

________________________________

Elector's Signature"

Immediately after the polls closed on May 4, 1982, the election judges proceeded to count the votes cast. 4 The judges rejected the seven absentee ballots in question here because, in their view, some part of the affidavit had not been properly completed. The election judges then issued a certificate of returns declaring that Erickson had received 81 votes and Blair 73 votes for the third Board seat.

Under the Special District Act, the Board oversees "the conduct of all ... regular and special elections of the special district" and "render[s] all interpretations and make[s] all decisions as to controversies or other matters arising in the conduct of such elections." Section 32-1-803(1), C.R.S.1973 (1982 Supp.). Pursuant to statutory authorization, the Board conducted a canvass and recount on May 7, 1982. After examining the ballot envelopes, the Board concluded that eleven additional absentee ballots, including the seven ballots rejected by the election judges, should be counted in the final tally. The Board added these eleven votes to the previous totals and certified that Blair, an incumbent member of the Board, had received 83 votes to 82 votes for Erickson.

On June 7, 1982, Erickson filed a timely statement of intent to contest the election in the District Court of Eagle County on the ground that the eleven absentee ballots did not comply with the statutory requirements for absentee voting. 5 Blair and the District filed an answer and counter-statement, and the matter was set for trial. Prior to trial the parties stipulated that the eleven absent voters were in fact qualified to vote in the district and had properly submitted an absentee ballot application, which required a listing of the voter's address and the date of election for which the ballot was sought. It was undisputed that no person involved in the election had engaged in fraud or other wrongdoing.

The evidence at trial was basically undisputed. Four of the contested affidavits were those of two married couples--Ronald D. and Joyce A. Allred and Forrest H. and Maria F. Faulconer--who had voted on numbered ballots which had been issued to the respective spouses instead of the numbered ballots issued to them individually. The district court held that the Board correctly counted these four ballots because the corresponding envelope affidavits had been completed in compliance with the statutory requirements for absentee voting in section 32-1-821(4), C.R.S.1973 (1982 Supp.). The seven absentee ballots ultimately rejected by the court fell into various groupings. 6 Two voters, David and Diane E. Doyle, failed to write the election date and address on the affidavit form. In addition, the Doyles failed to check one of the three boxes designating the basis upon which they were entitled to vote, although they did write in the word "Eagle" in the following qualification category: "I (or my spouse) own taxable real or personal property within the __________ District, Eagle County, Colorado, or the area to be included in the district." Three voters--April R. Nottingham, Brian L. Nottingham, and Duane Piper--placed an "X" in the taxable property category of voter qualification and filled in the blank lines in that category, but failed to complete the address and election date blanks on the affidavit form. Another voter, James J. Collins, had checked the residency box as a basis for his qualification to vote, but listed a Vail address, outside the district, in the appropriate space at the bottom of the affidavit. Finally, Barbara Koch had crossed out entries made in the blank lines for her address and date, and although she signed her name on the first name identification line on the affidavit form, she failed to sign her name on the line at the bottom of the affidavit designated "Elector's Signature."

The court rejected the seven ballots because the absent voter affidavits did not comply with those statutory provisions in section 32-1-821(4) relating to "a statement of the qualifications for an elector," "a space for the person's name, address, 7 and signature, and the date of election," and the voter's signed statement "that he is an elector of the district and that he has not previously voted at said election." Since the court upheld the Board's decision to count four of the absentee ballots, a ruling not challenged on this appeal, the court assumed that Blair had received these four absentee votes. Proceeding from this assumption, the court then determined that Blair 8 could only have received 77 votes and that Erickson, who was assured of 81 uncontested votes, was the winner of the election.

Blair and the District claim that the trial court erroneously applied a strict compliance standard in holding that the defects in the seven affidavits required automatic disqualification of the absent voter ballots. We find their claim meritorious and conclude that where, as here, there is neither claim nor proof of fraud, undue influence, or intentional wrongdoing in the election, the appropriate standard in determining the validity of absent voter ballots is whether the absent voter affidavits...

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  • Fay v. Merrill
    • United States
    • Connecticut Supreme Court
    • February 11, 2021
    ...provisions governing absentee balloting in order to protect the sanctity of the vote by preventing fraud. See, e.g., Erickson v. Blair , 670 P.2d 749, 754 (Colo. 1983) ; Wrinn v. Dunleavy, supra, 186 Conn. at 141–42, 440 A.2d 261 ; Dombkowski v. Messier , 164 Conn. 204, 209, 319 A.2d 373 (1......
  • Roe v. Mobile County Appointment Bd.
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    • Alabama Supreme Court
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    ...(emphasis original). The Colorado Supreme Court also relied on Boardman in adopting its rule of substantial compliance. Erickson v. Blair, 670 P.2d 749, 755 (Colo.1983). In Erickson, the election dispute over a seat on the Avon Metropolitan Board of Directors involved the improperly complet......
  • Meyer v. Lamm, 92SA472
    • United States
    • Colorado Supreme Court
    • February 22, 1993
    ...with the district court's rulings, if necessary. "[T]he right to vote is a fundamental right of the first order." Erickson v. Blair, 670 P.2d 749, 754 (Colo.1983). It is guaranteed by the federal constitution, and by article II, section 5 of the Colorado Constitution. Concomitant with the r......
  • In re Interrogatory Propounded By Governor John Hickenlooper Concerning the Constitutionality Article
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    • October 21, 2013
    ...Indeed, when assessing voters' fundamental right to vote in the moments preceding an election, there are no do-overs. SeeErickson v. Blair, 670 P.2d 749, 754 (Colo.1983) (“[T]he right to vote is a fundamental right of the first order.”); W–470 Concerned Citizens v. W–470 Highway Auth., 809 ......
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1 books & journal articles
  • The Democracy Canon.
    • United States
    • Stanford Law Review Vol. 62 No. 1, December 2009
    • December 1, 2009
    ...of absent voters for unintended and insubstantial irregularities without any demonstrable social benefit. Erickson v. Blair, 670 P.2d 749, 754-55 (Colo. 1983) (citations omitted); see also Adkins, 755 So. 2d at 218 ("The weaknesses in strict compliance, however, are too unforgiving, attenda......

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