Meyer v. Lamm, 92SA472

Decision Date22 February 1993
Docket NumberNo. 92SA472,92SA472
Citation846 P.2d 862
PartiesNatalie MEYER, Secretary of State for the State of Colorado, Petitioner/Cross-Respondent, and Charlotte Houston, Clerk and Recorder for Boulder County, and Drew Clark, Cross-Respondents, v. Peggy LAMM, Harold M. Anderson, and Raymond Leidig, Respondents/Cross-Petitioners.
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Alesia M. McCloud-Chan, Asst. Atty. Gen., Denver, for petitioner/cross-respondent.

Buchanan, Gray, Purvis & Schuetze, Frank N. Dubofsky, Boulder, for respondents/cross-petitioners.

Chief Justice ROVIRA delivered the Opinion of the Court.

We have agreed to review the final order and judgment of the Boulder County District Court entered in a controversy arising from the 1992 election for the office of state representative from House District 13. See § 1-1-112(2), 1B C.R.S. (1980). Initially, we conclude that the district court had subject matter jurisdiction over the controversy and that the issues presented in the controversy were justiciable. On the merits, we affirm the judgment of the district court in part, and reverse in part.

I

Drew Clark 1 was the Republican Party candidate for state representative from House District 13, and his name was the only name listed on the ballot for that office. Peggy Lamm opposed Clark as a write-in candidate, and was the only person who had filed an affidavit of intent pursuant to section 1-4-1001, 1B C.R.S. (1991 Supp.). She was therefore the only person for whom write-in votes could be counted for the office of state representative from House District 13. Id. The initial canvass of the votes cast in the election revealed that Clark received slightly over 100 votes more than Lamm. Because the difference was less than one percent of the votes cast for Clark, the Colorado Secretary of State, Natalie Meyer, ordered a mandatory recount of the votes. See § 1-11-101, 1B C.R.S. (1980). 2 On November 16, 1992, the Boulder County Clerk and Recorder, Charlotte Houston, sent a letter to the candidates informing them that, pursuant to instructions she had received from the secretary of state, she would direct the recount judges not to count certain ballots that had initially been counted for Lamm. The instructions directed that ballots which contained the surname "Lamm" only, or which contained an incorrect first name or initial, would not be counted for Lamm.

On November 17, 1992, three days before the recount was to be conducted, the plaintiffs 3 filed a complaint for injunctive and declaratory relief in the Boulder County District Court, naming the secretary of state, the Boulder County Clerk and Recorder, and Clark as defendants. The complaint alleged that "there are numerous ballots with just the surname and with incorrect initials or first names which, if properly counted, could change the result of this election." The plaintiffs asserted that sections 1-7-309(3), 1B C.R.S. (1991 Supp.), 4 and 1-7-507(1)(e), 1B C.R.S. (1991 Supp.), 5 upon which the secretary of state's instructions were purportedly based, must be construed in a manner that gives effect to the voter's intent. The complaint also claimed that, if the above statutes were interpreted as the secretary of state interpreted them, the statutes would deprive a voter of his rights under the state and federal constitutions to cast a vote and have the vote counted. The plaintiffs prayed for declaratory relief that the statutes be construed liberally, or in the alternative declared unconstitutional, and asked for a restraining order and other injunctive relief against the secretary of state and the county clerk and recorder to effectuate the court's ruling if necessary.

The district court declined to restrain the recount that was to take place on November 20, 1992. On November 23, the county clerk and recorder sent a letter to the district court which catalogued the results of the recount in the following manner:

The results contained herein have been determined through a manual sort and machine count of all ballots from all House District 13 precincts. This recount has been performed in accordance with the rules provided by the Secretary of State and the order of the District Court in Lamm v. Houston Civil Action No. 92 CV 1532, Boulder District Court.

                               Total count of votes for Drew Clark                    13,139
                              Total count of write-in votes for
                                Peggy Lamm with Secretary of State regulations        12,759
                              Number of Name discrepancies
                                other variations on Peggy Lamm                           234
                                Surname "Lamm" only                                      301
                              Number of Overvotes                                         26
                              Write-in wrong place                                        55
                              Clark vote plus invalid write-in                             3
                The next three categories requested by the Clark Campaign on November 20
                              Punches in line under Clark name
                              (no write-in)                                              531
                              Punches in line over Clark name
                              (no write-in)                                               22
                              Punches in lines under and over Clark name
                              (no write-in)                                                5
                ----------
                

The county clerk and recorder also stated that "no certification of the 'final results' from the recount has been made, due to the pendency of this civil action. My certification of the final results will await further action of the court in this matter." After the recount, under the secretary of state's instructions, Lamm would still trail Clark by 380 votes, but would receive more votes than Clark if all of the ballots containing discrepancies with respect to the name "Lamm" were counted for her.

The secretary of state moved to dismiss the complaint on the grounds that the district court lacked subject matter jurisdiction over the controversy because article V, section 10 of the Colorado Constitution granted the General Assembly the exclusive authority to determine election contests involving its own members, and because no statute gave district courts the jurisdiction to hear election contests involving members of the General Assembly. On November 30, 1992, the plaintiffs filed an amended complaint and verified petition for injunctive and declaratory relief, alleging that the district court had subject matter jurisdiction to hear the matter under, inter alia, sections 1-1-111 and -112, 1B C.R.S. (1980), 6 and 42 U.S.C. § 1983.

The district court held an evidentiary hearing on December 1, 1992, and issued the following orders from the bench. First, the court concluded that it could exercise subject matter jurisdiction over the controversy under section 1-1-112, as well as under the court's inherent power to decide statutory and constitutional issues, notwithstanding article V, section 10. Next, the court held that all ballots with the surname "Lamm" only, or in conjunction with "Miss," "Mrs.," or "Ms.," must be counted for Peggy Lamm. Moreover, the district court allowed to be counted for Peggy Lamm certain ballots on which the correct name was written in close proximity to the area provided on the ballot for House District 13. However, the district court found that write-in votes with the surname "Lamm" but containing an incorrect first initial or first name or nickname could not be counted for Peggy Lamm. The district court also made rulings with respect to the counting of overvotes, and votes where the name was not written in the proper place. Under the district court's rulings, Peggy Lamm would still be credited with fewer votes than Drew Clark, but the margin would be narrower than if the votes were counted under the instructions issued by the secretary of state.

Following the district court's bench ruling, which was incorporated in a written final order and judgment dated December 4, 1992, the defendants petitioned for review of the district court's action, raising two issues:

1. Whether the district court erred in determining that it had subject-matter jurisdiction to determine an election contest between candidates for a state legislative seat.

2. Whether the district court incorrectly construed sections 1-7-309(3) and 1-7-507(1)(e), 1B C.R.S. (1980 & 1991 Supp.), as requiring the count of write-in ballots which did not include a first name (or initial) and a last name.

The plaintiffs cross-petitioned for review of the district court judgment, and their petition fairly raised the following issues:

1. Whether the district court erred as a matter of law in holding that ballots would not be credited to candidate Peggy Lamm unless a correct first name or initial was written in addition to the name "Lamm."

2. Whether the district court erred in applying an improper legal standard in ascertaining the voter's intent.

3. Whether the district court erred in instructing the clerk to count votes for candidate Clark where the hole was punched and an invalid name was written in.

4. Whether the district court erred in concluding that ballots reflecting a write-in vote for Peggy Lamm, as well as a vote for Drew Clark that had been scratched out, should not be counted for either candidate.

5. Whether the district court erred in holding that some write-in votes for candidate Peggy Lamm should not be counted because of their placement on the ballot.

By order dated December 11, 1992, we agreed to review the controversy. Subsequent to the final order and judgment, the district court entered a stay preventing the county clerk and recorder from certifying and transmitting the results of the recount to the secretary of state "until further order of the Supreme Court." 7

II Jurisdiction of the District Court

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    • United States
    • Supreme Court of Connecticut
    • January 30, 2019
    ...constitutional right and obligation of the legislative body to judge the election returns for its own members.20 See Meyer v. Lamm , 846 P.2d 862, 870 (Colo. 1993) ("proceedings involving recounts of election results which are inherently tentative and are not final or conclusive, and in whi......
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