Hanlen v. Gessler

Justice Eid,

dissenting.

152 The majority concludes that Rule 10.7.5 is void for two reasons. First, it states that the Rule conflicts with the partisan exception to section 1-5-4128), C.R.S. (2013), which requires that votes be counted in virtually all cireumstances so that the disqualified candidate's party may fill the vacancy. But this is undisputedly not a partisan election, and there is no argument that the partisan exception should be or hgs been applied here. The majority's use of a possible misapplication of the Rule to void the Rule in its entirety turns on its head our obligation to read statutes and regulations as a harmonious whole where possible.

1153 More important, however, is the majority's second rationale, which posits that a court, not the designated election official, should be the ultimate arbiter of candidate qualifications. With this proposition I wholeheartedly agree. But I would conclude that this is precisely what happened here jinder the Rule. When the designated elgction official declined to count the votes of the candidate he had determined to be ineligible due to improper residency, that act was challenged in a court proceeding under section 1-1-113(1), C.R.S. (2018), which th turn has led us to our current teview. Ironically, then, by voiding the Rule for lack of judicial review, the majority short-cireuits the very judicial review it seeks to protect,

154 Finally, the majority discounts the Secretary's rationale for promulgating the Rule-namely, to avoid the possibility that a candidate, whose ineligibility is discovered before the election, will refuse to withdraw and is subsequently deemed to be "duly elected" under section 22-31-129, C.R.S. (20183), which in turn shifts the power to choose a candidate from the voters to the school board. That this is a serious concern is again demonstrated by the proceedings in this case, where the district court came to the precise conclusion that the candidate was "duly elected" and the vacahcy should be filled by the board appointment process. For all of these reasons, I respectfully dissent from the majority's opinion.

1] 55 The majority's first ground for voiding Rule 10.7.5 is that it is a rule of "general applicability" that would apply to the partisan exception under section 1-5-412(8), which provides that in virtually all cireum-stances the votes should be counted in order to trigger the party vacancy process¹ I agree with the majority that application of the Rule in the partisan context would conflict with the partisan exception, and, in fact, the Secretary is considering the issue in ongoing proceedings regarding the promulgation of a permanent rule that would take the place of the temporary rule at issue here. Where I disagree with the majority is that the possible application of the Rule in the partisan context voids the Rule as applied here. Plainly, the partisan exception reflects the legislature's policy choice that where a candidate in a partisan election is disqualified, the party itself should control the process of filling the vacancy. But the statute is set up as a general rule-under which the election official is not to count the votes in cases of death or withdrawal-with a partisan exception. This case involves the application of the Rule in the general, non-partisan context. It is not a facial challenge that attacks the Rule in all its applications, and even if it were, demonstrating the invalidity in one application (Le., the partisan context) would not be enough to invalidate the entire Rule. Stated differently, the fact that the Rule is one of general applicability does not mean that it applies in all cireumstances.

[ 56 Of course, it is appropriate to consider the partisan exception as a matter of statutory interpretation. But we are obligated to interpret regulations and statutory provisions as a consistent, harmonious whole where possible, not to maximize discord, as the majority does. See Bd. of Cnty. Comm'rs. v. Vail Assocs., 19 P.3d 1263, 1273 (Colo.2001); Regular Route Common Carrier Conference v. Pub. Utils Comm'n, 761 P.2d 737, 745 (Colo.1988). In my view, as a matter of statutory interpretation, the partisan exception simply demonstrates a specific legislative choice in the area of partisan elections, which area is not implicated here.

57 With regard to the majority's second rationale, I agree that the election code requires courts, rather than election officials, to be the ultimate arbiter of candidate eligibility. But I disagree with the majority's suggestion that Rule 10.7.5 runs afoul of this principle. In fact, the litigation before us shows that a designated election official's determination under Rule 10.7.5 not to count the votes cast for a given candidate is subject to review by a court (or, in this case, courts). When the official determines under the Rule that votes which were cast for a candidate who was mistakenly certified should not be counted, the candidate (or others, as was the case here) may bring suit against the official for failing to perform a duty under section I-1-118(1), C.R.S. (2018). At that point, the court must decide whether the official, pursuant to the Rule, properly determined that the candidate was "not qualified for office," such that the votes she received were "invalid" and "not [to] be counted." If the designated election official was wrong in his assessment of the candidate's qualifications, the votes for that candidate are counted, and if she receives the highest number of votes, she is certified as the winner. The only reason the district court in this case did not perform the analysis required under the Rule was that it voided the Rule. In other words, an election official's assessment of a candidate's qualification is not "unilateral," as the majority perceives. Maj. op. 145. Rather, it subject to judicial review under the procedures set forth in section 1-1-113(1), which we continue to perform today.

58 The question, then, becomes whether there is a gap in the statutes which Rule 10.7.5 properly filled. As this case aptly demonstrates, there is. Here, the designated election official certified the candidate as meeting the qualifications of office, including the residency requirement. But a week before the election, the official discovered that the candidate was not a resident of the district from which she was running and therefore was not eligible to run for the office. Maj. op. 1 11. The official informed the candidate of her ineligibility and asked her to withdraw. Id. Although she did not dispute the official's statement regarding her ineligibility, she refused to withdraw. Id. Rule 10.7.5 allowed the election official to treat the candidate as the functional equivalent of a withdrawn candidate under section 1-5-4128), which instructs that the election officials shall not count the ballots for withdrawn candidates, thus setting the stage for a challenge under section 1-1-1183.

T59 Without Rule 10.7.5-that is, under the majority's "no gap" rationale-the election official would be left with few options. The majority points to sections 1-4-501(8) and 1-4-909(1), C.R.S. (20183) as providing an opportunity to challenge a candidate's qualifications. Maj. op. 140. But these provisions create an extremely narrow five-day period in which to challenge the designated election official's initial certification of the candidate's eligibility. The short five-day timeframe is intended to give deference to the official's initial determination of eligibility,² not to deprive him of the ability to fix his own mistakes. In any event, the mistake here was not discovered until after the five-day window had passed, so sections 1-4-501(8) and 1-4-909(1) never came into play.

T 60 The majority also points to the post-election contest provisions, section 1-11-201, C.R.S. (2013), as creating an opportunity for review. But under this seenario, the election official would be required to count the votes for the ineligible candidate, certify the ineligible candidate as the winner (if she received the highest number of votes, as was the case here), and then turn around and file a post-election contest suit against himself to undo the certified results, since he had known all along that the candidate was ineligible. Rule 10.7.5 avoids this awkward situation. By permitting the election official to treat the ineligible candidate as the functional equivalent of a withdrawn candidate, the Rule fills the gap in judicial review that exists between the initial five-day period and the post-election contest provisions.

1 61 But an even greater problem with the majority's "no gap" rationale is the one identified by the Secretary as the basis for the Rule-namely, that a candidate whose ineligibility is discovered prior to the election but who refuses to withdraw will be deemed "duly elected" under section 22-81-129, thus shifting the power of selecting a candidate from the electorate to the school board. § 22-31-129(1)(d) & (2) (instructing that the Board shall fill by appointment a vacancy created "[i]f the person who was duly elected . is or becomes ... a nonresident of the school district"). The majority discounts the Secretary's concern, maj. op. 1 45, but that is precisely what the district court's "duly elected" rationale permitted in this case. Such an improper shift in selection authority should not be permitted. Cf. Smith v. Cherry, 489 F.2d 1098 (7th Cir.1973) (holding that allegations that a primary winner withdrew after his victory in order to allow the party committee, rather than voters, to select the party's candidate were sufficient to state a cause of action under the Civil Rights Act).

1 62 The majority asserts that the question here is not whether the candidate was eligible or whether the school board itself should fill any vacancy under section 22-81-129, but rather, whether the Rule is valid. Maj. op. 45. But the two questions are inextricably intertwined. As noted above, the candidate's eligibility and the applicability of section 22-31-129 would be at issue if Rule 10.7.5 were upheld and allowed to play out. The majority seems to believe that it has left those questions open, but by discounting the Secretary's rationale for the Rule and by leaving the district court's rationale in place, its opinion leads inexorably to the conclusion that the candidate was "duly elected" and that the vacancy should be filled by the board by operation of section 22-81-129. For these reasons, I respectfully dissent from its opinion.

T 63 I am authorized to state that Justice COATS joins in this dissent.

1 . The general non-partisan vacancy provision of section 1-5-412(3), with the partisan exception emphasized, states: "If, before the date set for election, a duly nominated candidate withdraws by filing an affidavit of withdrawal with the designated election official or dies and the fact of the death becomes known to the designated election official before the ballots are printed, the name of the candidate shall not be printed on the ballots. Except in the case of a vacancy to be filled in accordance with the provisions of section 1-4-1002(2.3) or (2.5) [the partisan vacancy provisions], if the ballots are already printed, the votes cast for the withdrawn or deceased candidate are invalid and shall not be counted." Section 1-4 1002(2.5) provides that if a vacancy is created within 18 days of an election due to the "declination, death, disqualification, or withdrawal" of a party's candidate, the votes for that candidate shall be counted and, if the candidate prevails, the party vacancy committee shall fill the vacancy. Section 1-4-1002(2.3), meanwhile, provides that if the vacancy occurs more than 18 days from the election, the party vacancy committee shall select a replacement candidate and notice of the substitution shall be provided according to the statute's notice provisions.

2 . "A petition or certificate of designation or nomination that has been verified and appears to be sufficient under this code shall be deemed valid unless a petition for a review of the validity of the petition pursuant to section 1-1-113 is filed with the district court within five days after the election official's statement of sufficiency is issued or, in the case of a certificate of designation, within five days after the certificate of designation is filed with the designated election official." § 1-4-909(1) (emphasis added).