Section 1-40-118 - Protest(1) A protest in writing, under oath, together with three copies thereof, may be filed in the district court for the county in which the petition has been filed by some registered elector, within fifteen days after the secretary of state issues a statement as to whether the petition has a sufficient number of valid signatures, which statement must be issued no later than thirty calendar days after the petition has been filed. If the secretary of state fails to issue a statement within thirty calendar days, the petition is deemed sufficient. Regardless of whether the secretary of state has issued a statement of sufficiency or if the petition is deemed sufficient because the secretary of state has failed to issue a statement of sufficiency within thirty calendar days, no further agency action is necessary for the district court to have jurisdiction to consider the protest. During the period a petition is being examined by the secretary of state for sufficiency, the petition shall not be available to the public; except that such period must not exceed thirty calendar days. Immediately after the secretary of state issues a statement of sufficiency or, if the petition is deemed sufficient because the secretary of state has failed to issue the statement, after thirty calendar days, the secretary of state shall make the petition available to the public for copying upon request.(2)(a) If the secretary of state conducted a random sample of the petitions and did not verify each signature, the protest shall set forth with particularity the defects in the procedure used by the secretary of state in the verification of the petition or the grounds for challenging individual signatures or petition sections, as well as individual signatures or petition sections protested. If the secretary of state verified each name on the petition sections, the protest shall set forth with particularity the grounds of the protest and the individual signatures or petition sections protested.(b) Regardless of the method used by the secretary of state to verify signatures, the grounds for challenging individual signatures or petition sections pursuant to paragraph (a) of this subsection (2) shall include, but are not limited to, the use of a petition form that does not comply with the provisions of this article, fraud, and a violation of any provision of this article or any other law that, in either case, prevents fraud, abuse, or mistake in the petition process.(c) If the protest is limited to an allegation that there were defects in the secretary of state's statement of sufficiency based on a random sample to verify signatures, the district court may review all signatures in the random sample.(d) No signature may be challenged that is not identified in the protest by section number, line number, name, and reason why the secretary of state is in error. If any party is protesting the finding of the secretary of state regarding the registration of a signer, the protest shall be accompanied by an affidavit of the elector or a copy of the election record of the signer.(2.5)(a) If a district court finds that there are invalid signatures or petition sections as a result of fraud committed by any person involved in petition circulation, the registered elector who instituted the proceedings may commence a civil action to recover reasonable attorney fees and costs from the person responsible for such invalid signatures or petition sections.(b) A registered elector who files a protest shall be entitled to the recovery of reasonable attorney fees and costs from a proponent of an initiative petition who defends the petition against a protest or the proponent's attorney, upon a determination by the district court that the defense, or any part thereof, lacked substantial justification or that the defense, or any part thereof, was interposed for delay or harassment. A proponent who defends a petition against a protest shall be entitled to the recovery of reasonable attorney fees and costs from the registered elector who files a protest or the registered elector's attorney, upon a determination by the district court that the protest, or any part thereof, lacked substantial justification or that the protest, or any part thereof, was interposed for delay or harassment. No attorney fees may be awarded under this paragraph (b) unless the district court has first considered the provisions of section 13-17-102 (5) and (6), C.R.S. For purposes of this paragraph (b), "lacked substantial justification" means substantially frivolous, substantially groundless, or substantially vexatious.(c) A district court conducting a hearing pursuant to this article shall permit a circulator who is not available at the time of the hearing to testify by telephone or by any other means permitted under the Colorado rules of civil procedure.(3) (Deleted by amendment, L. 95, p. 435, § 13, effective May 8, 1995.)(4) The secretary of state shall furnish a requesting protestor with a computer tape or microfiche listing of the names of all registered electors in the state and shall charge a fee which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., to cover the cost of furnishing the listing.(5) Written entries that are made by petition signers, circulators, and notaries public on a petition section that substantially comply with the requirements of this article 40 shall be deemed valid by the secretary of state or any court, unless: (a) Fraud, as specified in section 1-40-135 (2)(c), is established by a preponderance of the evidence;(b) A violation of any provision of this article or any other provision of law that, in either case, prevents fraud, abuse, or mistake in the petition process, is established by a preponderance of the evidence;(c) A circulator used a petition form that does not comply with the provisions of this article or has not been approved by the secretary of state.Amended by 2021 Ch. 282, § 74, eff. 6/21/2021.Amended by 2018 Ch. 113, § 4, eff. 8/8/2018.L. 93: Entire article amended with relocations, p. 688, § 1, effective May 4. L. 95: (1) to (3) amended, p. 435, § 13, effective May 8. L. 2009: (1) and (2) amended and (2.5) and (5) added, (HB 09-1326), ch. 1176, p. 1176, § 14, effective May 15. L. 2018: IP(5) and (5)(a) amended, (HB 18-1145), ch. 808, p. 808, § 4, effective August 8. (1) This section is similar to former § 1-40-109 as it existed prior to 1993, and provisions of the former § 1-40-118 were relocated to § 1-40-130 .
(2) Section 85 of chapter 282 (SB 21-250), Session Laws of Colorado 2021, provides that the act changing this section applies to elections conducted on or after June 21, 2021.
For the legislative declaration in HB 18-1145, see section 1 of chapter 113, Session Laws of Colorado 2018.