Gessler v. Doty, 10CA2533.

• Docket Nº: No. 10CA2533.
• Citation: 272 P.3d 1131, 2012 COA 4
• Case Date: January 05, 2012
• Court: Court of Appeals of Colorado

2012 COA 4
272 P.3d 1131

Scott GESSLER, in his official capacity as Secretary of State for the State of Colorado, Plaintiff–Appellee,
v.
Nancy DOTY, in her official capacity as the Clerk and Recorder for Arapahoe County, and the Board of County Commissioners of the County of Arapahoe, State of Colorado, Defendants–Appellants.

No. 10CA2533.

Colorado Court of Appeals, Div. I.

Jan. 5, 2012.

[272 P.3d 1131]

John W. Suthers, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Kathryn L. Schroeder, County Attorney, John E. Bush, Jr., Deputy County Attorney, Ronald A. Carl, Assistant County Attorney, Littleton, Colorado, for Defendants–Appellants.

Opinion by Chief Judge DAVIDSON.

¶ 1 This case requires us to decide whether counties or the state must bear the cost of providing drop-off boxes for mail-in ballots at every polling place.

¶ 2 In 2009, the General Assembly passed House Bill 1186, amending Colorado's Election

[272 P.3d 1132]

Code (Code), § 1–8–113(1)(a), C.R.S.2011, to permit voters personally to deliver mail-in ballots “on election day to any polling place in the county in which the elector is registered to vote.” Previously, voters had been permitted to deliver their ballots on election day, but only to a limited number of early voters' polling places. An effect of this amendment was to require Arapahoe County to make available 197 additional locations for drop-off of mail-in ballots during the 2010 general election, at an alleged added cost of $80,000.

¶ 3 Defendants, Nancy Doty, in her official capacity as the Clerk and Recorder for Arapahoe County, and the Arapahoe County Board of County Commissioners (the county), notified plaintiff, the Secretary of State (the state), that because the General Assembly had not appropriated additional funding to cover the county's increased cost, it would not provide the additional drop-off boxes, pursuant to section 29–1–304.5, C.R.S.2011, commonly referred to as the unfunded mandate statute. The unfunded mandate statute applies to any “new state mandate or ... increase in the level of service for an existing state mandate beyond the existing level of service required by law.” § 29–1–304.5(1), C.R.S.2011. A “state mandate,” generally, is a legal requirement established by statute or rule which requires a local government to provide a service or undertake an activity according to state standards. See § 29–1–304.5(3)(d), C.R.S.2011.

¶ 4 The state then filed this action seeking a preliminary injunction requiring the county to enable the delivery of mail-in ballots on election day to every polling place. See § 1–1–107(2)(d), C.R.S.2011 (secretary of state may enforce the election code by injunctive action). The court granted the injunction in favor of the state, determining that the Code's requirement that “the cost of conducting ... elections ... shall be a county charge,” § 1–5–505(1), C.R.S.2011, took precedence over the unfunded mandate statute's provision that any new state mandate or increase in the accompanied by a reimbursement to cover local governments' costs “shall be optional on the part of the local government,” 29–1–304.5(1).

¶ 5 The county appeals. The question we address is, notwithstanding the unfunded mandate statute, must a county bear the cost of providing drop-off boxes for mail-in ballots at every polling place on election day, as required by the amendment to section 1–8–113(1)(a)? We agree with the trial court that section 1–8–113(1)(a) of the Code is in irreconcilable conflict with section 29–1–304.5(1) of the unfunded mandate statute, and with its resolution of that conflict in favor of the state. Therefore, we answer yes, and affirm.

I. Standard of Review

¶ 6 The only contested factor raised in the trial court relevant to the grant of a preliminary injunction concerned the relationship between the Code and the unfunded mandate statute. See Rathke v. MacFarlane, 648 P.2d 648, 653 (Colo.1982) (setting forth factors for consideration in deciding preliminary injunction motion). Thus, because the trial court's ruling concerned only legal questions, we review that ruling de novo. See CF&I Steel, L.P. v. United Steel Workers of America, 990 P.2d 1124, 1127 (Colo.App.1999), aff'd, 23 P.3d 1197 (Colo.2001).

II. Background: Elections and the Colorado Constitution

¶ 7 A typical “state mandate” is a statutory prescription, categorized as either a program or procedural mandate. See § 29–1–304.5(3)(d)(I)–(II), C.R.S.2011; see, e.g., § 30–11–104(1)(a), C.R.S.2011 (counties shall provide necessary county buildings); § 29–22–103(2)(a)–(b), C.R.S.2011 (counties shall designate an emergency response authority to mitigate hazardous waste incidents); § 30–15–201(1), C.R.S.2011 (counties shall erect and maintain roadside notices concerning campfire safety).

¶ 8 The issue here involves state election law, however, which has its underpinning, not in legislative policy or programs, but in the constitutionally guaranteed right of suffrage. See, e.g., Bullington v. Grabow, 88 Colo. 561, 564, 298 P. 1059, 1060 (1931) (absentee voting legislation constitutionally “enacted for the purpose of procuring a fuller expression of the public will at the ballot box” (quoting

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Jenkins v. State Bd. of Elections, 180 N.C. 169, 104 S.E. 346, 351 (1920))).

¶ 9 The Colorado Constitution expressly recognizes the right of citizens to vote and to have their votes counted. Colo. Const. art. II, § 5; see also Reynolds v. Sims, 377 U.S. 533, 561–62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (“[T]he right of suffrage is a fundamental matter in a free and democratic society.”); Jarmel v. Putnam, 179 Colo. 215, 217, 499 P.2d 603, 603 (1972). The constitution assigns to the General Assembly the duty to “pass laws to secure the purity of elections, and guard against abuses of the elective franchise.” Colo. Const. art. VII, § 11.

¶ 10 The framers deemed all territorial laws, including those stating the counties' obligations concerning elections, to be effective unless and until changed by the legislature. E.g., R.S. 1868, ch. XXVIII, §§...