After Colorado redrew its congressional and legislative districts following the 2010 census, did the Secretary of State have to recalculate candidate petition signature requirements as if the prior elections in those districts had not happened?

Opinion 12-06: Reapportionment changed who can sign a candidate petition, not how many signatures are required

Plain-English summary

After every decennial census, Colorado redraws its congressional and state legislative districts. Following the 2010 census, the redrawn districts did not match the boundaries that existed when the prior election was held. The 2012 redistricting moved nearly 1.4 million Coloradans, almost a third of the state's population, into different congressional districts.

Secretary of State Scott Gessler asked: when the petition statute requires a percentage of votes cast in the district's preceding primary or general election, and the district has been redrawn, what does "the district" mean? Does the percentage formula apply to the redrawn district (in which no prior election ever occurred) or to the predecessor district that shared the office?

The AG concluded the percentage formula still applied. Petition signatures had to come from electors currently residing in the redrawn district, but the number of signatures was set by reference to the preceding election for that office, regardless of how the district lines had moved. Reading the statute the other way (treating the redrawn district as having no prior election) would have eliminated the percentage alternative and forced candidates to gather a much larger absolute number of signatures, contrary to the legislature's clear intent to use the least burdensome ballot-access threshold available.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Colorado's Secretary of State supervises primary, general, congressional vacancy, and statewide ballot issue elections under § 1-1-107(1)(a), C.R.S. (2011), and is directed to enforce the election laws and, with the AG's advice, make uniform interpretations of them under § 1-1-107(1)(b)-(c).

For candidates accessing the ballot via petition rather than party convention, signatures must come from "electors resident within the district for which the officer is to be elected," § 1-4-801(2)(b) and § 1-4-802(1)(c), C.R.S. (2011). The statute sets the required signature number as the lesser of an enumerated absolute number or a number equaling a percentage of the votes cast in a previous election. The percentage formula scales with the office's geographic scope, so requirements for statewide offices are higher than for legislative districts.

Colorado courts had directed that statutes limiting the right to hold public office must be construed in favor of access, because that right is "one of the valuable and fundamental rights of citizenship." Conte v. Meyer, 882 P.2d 962, 966 n.2 (Colo. 1994).

What the AG concluded at the time

The AG concluded that petition signatures must come from electors currently residing in the redrawn district, but that reapportionment and redistricting did not affect the number of signatures the petition required. The percentage-of-prior-votes formula in §§ 1-4-801(2)(b) and 1-4-802(1)(c) operates on the preceding primary or general election for the office sought, period. The legislature had not written any adjustment for redistricting cycles into the formula.

The AG offered two concrete examples to show why ignoring prior elections after redistricting would frustrate legislative intent. In House District 2's 2010 primary, Republicans received 702 votes total. Under the percentage formula, a Republican petition candidate in 2012 needed only 211 signatures. If the prior election were treated as nonexistent, the candidate would need 1,000 signatures. In House District 17's 2010 general election (the smallest legislative contest in the state), 8,962 votes were cast; the percentage formula gave a 2012 petition candidate a 179-signature threshold, while ignoring the prior election would push it to 400.

These examples showed that disregarding the prior election results would frustrate the General Assembly's intent that the least burdensome signature requirement apply.

Common questions

Did redistricting reset petition requirements to a higher absolute number?
No. The AG concluded the percentage formula still applied, and that formula references the preceding primary or general election for the office sought, regardless of district line changes.

Where do the signers themselves have to live?
In the current (redrawn) district. The AG was clear that the residency rule applies to the present-day district, not the predecessor district.

What if a brand-new congressional seat is added by reapportionment, with no predecessor district?
The AG noted this is the one situation where the percentage formula has nothing to reference, "except when an additional representative is apportioned by the United States Congress, there always will have been a previous election in a district from which to measure a percentage of votes cast." For that narrow case, the absolute-number floor would govern.

Why does this favor candidates?
The statutes set the signature requirement as the lesser of two numbers (an enumerated number or a percentage). The legislature wanted the least restrictive threshold to apply. Reading redistricting to wipe out the prior-election percentage would systematically push candidates onto the higher absolute floor.

Did the AG cite any precedent for this approach?
The AG drew on Conte v. Meyer for the principle that ballot-access statutes must be read to least infringe on the right to seek office, and Hall v. Moreno's description of the "seismic shift" in district populations after the 2011 redistricting to underscore that even dramatic boundary changes did not change the statutory formula.

Citations

Statutes:

• § 1-1-107(1)(a), (b)-(c), C.R.S. (2011) (Secretary of State election authority)
• § 1-4-801(2)(b), C.R.S. (2011) (major-party petition requirements)
• § 1-4-802(1)(c), C.R.S. (2011) (minor-party and unaffiliated petition requirements)

Cases:

• Conte v. Meyer, 882 P.2d 962 (Colo. 1994)
• Romero v. Sandoval, 685 P.2d 772 (Colo. 1984)
• Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo. 2011)
• Hall v. Moreno, 270 P.3d 961 (Colo. 2012)

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-12-6-The-Effect-of-Congressional-Redistricting-and-the-State-Legislative-Reapportionment-on-Candidate-Petition-Signatures.pdf

Original opinion text

John W. Suthers, Attorney General
STATE OF COLORADO
Cynthia H. Coffman, Chief Deputy Attorney General
Office of the Attorney General
DEPARTMENT OF LAW
Daniel D. Domenico, Solicitor General

State Services Building
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
Phone (303) 866-4500

FORMAL OPINION OF JOHN W. SUTHERS, Attorney General
No. 12-06
AG Alpha No. ST EL AGBDQ
September 5, 2012

This opinion, requested by Secretary of State Scott Gessler, concerns the effect of congressional redistricting and state legislative reapportionment on candidate petition signature requirements.

QUESTION PRESENTED AND ANSWER

Question: For the 2012 and 2014 primary and general elections, how should the Secretary of State calculate the candidate petition requirements for races affected by the redistricting and reapportionment that followed the 2010 Federal Census?

Answer: The General Assembly requires a candidate seeking placement on a ballot via petition to obtain the lesser of an enumerated number of signatures or a number of signatures equaling a percentage of votes cast in the district's preceding primary or general election for the office being sought. The signatures must come from electors currently residing in the district, but reapportionment and redistricting have no effect on the number of signatures required by law. Therefore, the Secretary of State should reference a district's preceding primary or general election for the office being sought to determine how many signatures are required for a candidate's petition.

ANALYSIS

The Secretary of State is charged with "supervis[ing] the conduct of primary, general, congressional vacancy, and statewide ballot issue elections in this state." § 1-1-107(1)(a), C.R.S. (2011). In addition, the Secretary of State is directed "to enforce," and "[w]ith the assistance and advice of the attorney general, to make uniform interpretations of," election laws. § 1-1-107(1)(b)-(c). The Secretary seeks my opinion on how to calculate petition signature requirements when, as now, reapportionment and redistricting have changed the boundaries and population of the state's congressional and legislative districts from what existed in previous elections.

Candidates for public office in Colorado may access a ballot in multiple ways. In addition to political party conventions, the General Assembly affords a statutory petition process, where candidates must obtain petition signatures from "electors resident within the district for which the officer is to be elected." § 1-4-801(2)(b), C.R.S. (2011); see also § 1-4-802(1)(c), C.R.S. (2011) (requiring signatures from "eligible electors residing within the district or political subdivision"). The number of signatures required differs for major and minor political parties and unaffiliated candidates. Compare generally § 1-4-801, with § 1-4-802. Most signature requirements are set forth as the lesser of an enumerated number or a number equaling a percentage of votes cast in a previous election. See generally §§ 1-4-801(2) and 802(1)(c).

Statutes must be construed in context, according to their plain and ordinary meaning. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088-89 (Colo. 2011). "[S]tatutes limiting a person's right to hold public office" must be construed "in a way that will least infringe upon that right," because the right is "'one of the valuable and fundamental rights of citizenship.'" Conte v. Meyer, 882 P.2d 962, 966 n.2 (Colo. 1994) (quoting Romero v. Sandoval, 685 P.2d 772, 774-75 (Colo. 1984)).

The plain and ordinary meaning of the statutes implicated here indicates that the General Assembly intended to use the least restrictive ballot requirements possible for each election. Candidates can readily locate electors currently residing in a district, whether or not population or boundaries have changed. However, it would be far more burdensome to determine which electors resided in a since-redrawn district's preceding election. In addition, under subsection 1-4-802(1)(c), unaffiliated candidates and candidates from minor political parties face less stringent signature requirements than those facing major political party candidates. Cf. § 1-4-801(2). Subsection 1-4-802(1)(c) correlates ballot-access thresholds with the scope of the elections for particular elected offices, progressively increasing signature requirements for offices of greater statewide scope. Finally, the statutory formulas for petition signature requirements uniformly mandate that the lesser number of signatures be used.

The statutes make no unique, numerical adjustment for periodic reapportionment and redistricting. District boundaries and populations can be changed, so much so that a "district" could be said to continue in name only. See Hall v. Moreno, 270 P.3d 961, 983-84 (Colo. 2012) (Eid, J., dissenting) (noting the "seismic shift" of moving "nearly one-third of Colorado's total population — almost 1.4 million people — to a different congressional district"). Yet, except when an additional representative is apportioned by the United States Congress, there always will have been a previous election in a district from which to measure a percentage of votes cast. To ignore prior district elections after reapportionment and redistricting would remove the percentage-of-votes-cast alternative from the General Assembly's formula for determining petition signature requirements.

In some cases, disregarding the votes cast in a district's prior election could make ballot access more onerous. For example, in the 2010 primary election, the Republican Party candidates in House District 2 received a total of 702 votes. Under the statutory percentage approach to determining the petition signature requirement, a Republican candidate seeking access to the primary ballot via petition in this year's election for District 2 will need just 211 signatures. See § 1-4-801(2)(b). If, however, reapportionment is deemed to mean there was no previous primary election in House District 2, and therefore no votes had been cast in that district, the candidate would need to obtain 1,000 signatures, because subsection 1-4-801(2)(b) requires a petition to be signed by at least some number of "eligible electors."

Similarly, of all state legislative contests in the 2010 general election, the contest for House District 17 garnered the fewest votes, just 8,962. Applying the statutory percentage, a minor party or unaffiliated candidate seeking access to the ballot via petition in this year's election will need just 179 signatures. See § 1-4-802(1)(c)(V). Yet, if reapportionment is deemed to mean there was no previous general election in the current House District 17, the candidate would need to obtain 400 signatures. These two illustrations demonstrate that ignoring pre-redistricting and reapportionment election results would frustrate the General Assembly's intent that the least burdensome signature requirement apply. Cf. Conte, 882 P.2d at 966 & n.2 ("The construction urged by the Secretary and adopted by the trial court fails to further the intent and purpose of the statute [regarding unaffiliated candidates]. In addition, such construction leads to an absurd result. . . . The construction we adopt least infringes upon Conte's right to seek public office.").

CONCLUSION

For the foregoing reasons, I conclude candidate petition signatures must come from electors currently residing in a district, but reapportionment and redistricting have no effect on the number of signatures required by law. Subsections 1-4-801(2)(b) and 1-4-802(1)(c) require a candidate seeking placement on a ballot via petition to obtain the lesser of an enumerated number of signatures or a number of signatures equaling a percentage of votes cast in a district's preceding primary or general election for the office being sought. Nothing in these statutes indicates an intent by the General Assembly that the percentage alternative should be disregarded after districts have been redrawn. Except when an additional representative is apportioned by the United States Congress, there always will have been a previous election in a district from which to measure a percentage of votes cast. Therefore, the Secretary of State should reference a district's preceding primary or general election for the office being sought to determine how many signatures are required for a candidate's petition.

Issued this 5th day of September, 2012.

JOHN W. SUTHERS
Attorney General