1. Contestor Reed Schrichte brings this election contest pursuant to the provisions of C.R.S. § 31-10-1301 et seq.
2. Contestor is a registered elector of the Town of Erie, Colorado, which Town is situated in both Weld and Boulder counties.
3. Because portions of the Town of Erie, Colorado are situated within Boulder County, this Court has jurisdiction over this election contest pursuant to the provisions of C.R.S. § 31-101-1302(1).
4. Contestor was a duly certified candidate for the office of Mayor of the Town of Erie, Colorado at the general municipal election held within the Town of Erie on Tuesday, April 4, 2000. It is the office of Mayor of the Town of Erie, Colorado, which is contested in this election contest.
5. Contestee Thomas Van Lone was a duly certified candidate for the office of Mayor of the Town of Erie, Colorado, and is a registered elector of the Town.
6. Contestee Town of Erie, Colorado, is a Colorado statutory town which held a general municipal election on Tuesday, April 4, 2000, at which the office of mayor was contested. As the official governmental entity which called, held and sanctioned the election contested herein, the Town is a necessary and proper party to this election contest.
7. Contestee Linda Salas is the duly constituted Town Clerk of the Town of Erie, Colorado, and is the public official responsible for conducting the general municipal election of April 4, 2000 in accordance with all applicable election laws. Contestee Salas is named as a Contestee in this matter in her official capacity as Town Clerk and responsible election official.
8. The general municipal election held in the Town of Erie, Colorado on April 4, 2000, was conducted pursuant to the provisions of the Colorado Municipal Election Code of 1965, C.R.S. § 31-10-101 et seq. The official canvass of votes required pursuant to C.R.S. § 31-10-1201 was completed on April 10, 2000.
9. Contestor contests the results of the April 4, 2000 mayor's election conducted as a part of the general municipal election in the Town of Erie, Colorado because, upon information and belief, errors or mistakes on the part of the judges of the election and/or Contestee Salas in her official capacity as Town Clerk in counting or declaring the result of the election are sufficient to change the result, and malconduct on the part of the judges of election and/or the Contestee City Clerk was sufficient to change the result.
10. At the election of April 4, 2000, the Town of Erie utilized a non-punch electronic voting system, whereby individual electors marked their individual ballot and placed it into the electronic vote-counting machine.
11. When individually marked ballots were placed into the electronic vote-counting machine, the ballots were read by that machine, which machine was designed solely for that purpose.
12. Electronic vote counting is governed by, and is required to be completed in accordance with, the provisions of C.R.S. § 31-10-811.
13. In the electronic vote counting machines used by Contestee Town in the general municipal election on April 4, 2000, all properly marked ballots are immediately accepted by the machine which, upon information and belief, counts the votes as marked on each such individual ballot and retains the ballot inside the machine.
14. Ballots which are not properly marked, or which contain some perceptible imperfection, are not accepted by the vote counting-machines and are physically ejected from the machine without being counted by the machine.
15. Improperly marked ballots are rejected by the vote-counting machines at the time they are placed into the vote-counting machine by the individual elector who has marked and who is casting the ballot in question. Election judges have the contemporaneous ability to offer the individual elector whose ballot is rejected by the machine the immediate opportunity to re-mark the individual's ballot so that the same will be accepted and counted by the vote-counting machine into which the individual elector's ballot is placed for counting, or to offer a properly substituted duplicate ballot.
16. Upon information and belief, no less than twenty three (23) individual ballots were marked by individual electors and placed into, but rejected by, the vote counting-machines utilized by Contestees Town of Erie and Town Clerk Salas in the April 4, 2000 general municipal election.
17. Upon information and belief, no duplicate copies of such insufficiently marked and not accepted ballots were made by judges of the election as is required by C.R.S. § 31-10-811(1).
18. Because no copies of damaged or defective ballots were made as required by C.R.S. § 31-10-811 (1), it is impossible at present to know if duplicate ballots were issued to and/or cast by any of the individual electors who attempted to cast the twenty three (23) defective ballots described in paragraph 16 above.
19. None of the twenty three (23) ballots described in paragraph 16 above were counted by the judges of election, Contestee Town or Contestee Town Clerk Salas at the time of the original vote count on April 4, 2000.
20. On April 4, 2000, the count of ballots properly marked, placed in the vote-counting machines, and accepted and counted by those machines yielded the following results of the election for the office of Mayor of the Town of Erie, Colorado:
Contestor Reed Schrichte 518 votes21. On April 4, 2000, based upon the results stated in paragraph 20 hereof, Contestor was declared the winner of the election for the office of Mayor of the Town of Erie, Colorado.
22. Because the margin of victory for Contestor was less than one percent (1%) of the number of votes cast for Contestor, Contestees Town of Erie and Town Clerk Salas, acting in compliance with the provisions of C.R.S. § 31-10-1207(1) conducted a recount on April 7, 2000.
23. At the recount, properly marked and counted ballots, again excluding the twenty three (23) spoiled or defective ballots identified in paragraph 16 hereof, were recounted, and the result of the recount was identical with that result identified in paragraph 19 hereof.
24. Upon information and belief, individuals who had acted as election judges on April 4, 2000 participated in the recount, which fact, if true, is contrary to and in violation of the provisions of C.R.S. § 31-10-1207(3), and as such constitutes malconduct on the part of Contestee Salas.
25. During the recount above described, Contestee Town Clerk Salas determined to review the twenty three (23) insufficiently marked or spoiled ballots described in paragraph 16 above, notwithstanding the fact that, upon information and belief, the same were not corrected by the individuals marking and attempt to cast the same in the presence of the election judges at the polling places established by the Town, and the fact that the same were known to exist but were not counted on the date of the contested election, April 4, 2000.
26. In the process of reviewing said twenty three (23) insufficiently marked or spoiled ballots, Contestee Salas made certain determinations as to the intent of the voters who had marked their ballots so improperly that the same would not be read or counted by the electronic vote counting machines utilized by the Town.
27. After reviewing all such insufficiently marked or spoiled ballots, Contestee Salas declared the final vote count as follows:
Contestee Van Lone 529and declared Contestee Van Lone the winner of the election for the office of Mayor of the Town of Erie, Colorado, thereby reversing her earlier declaration of Contestor as the winner of the election for said office.
FIRST CLAIM FOR RELIEF28. Contestor hereby incorporates each and every allegation set forth in paragraphs 1 through 27 inclusive above as though the same were set forth in full.
29. Upon information and belief, the twenty three (23) ballots identified in paragraph 16 hereof are defective and should not be counted.
30. The action of Contestee Salas in determining to count the 23 insufficiently marked or spoiled ballots identified in paragraph 16 hereof was arbitrary, capricious, contrary to and in violation of C.R.S. § 31-10-811(1), and caused the results of the election to be changed.
31. The actions of the judges of election and/or Contestee Town Clerk Salas identified in paragraph 30 hereof constitute an action, error or mistake in counting or declaring the result of the election sufficient to change the result of the election, all as identified in C.R.S. § 31-10-1301(1)(c).
32. The actions of the judges of election and/or Contestee Town Clerk Salas identified in paragraph 30 above should be found by this court to be erroneous, improper, unauthorized and contrary to law, and should accordingly be set aside.
SECOND CLAIM FOR RELIEF33. Contestor hereby incorporates each and every allegation set forth in paragraph 1 through 32 inclusive above as though the same were set forth in full.
34. As an alternative claim for relief to be considered only if the court determines that the actions of Contestee Salas were proper in counting the ballots identified in paragraph 16, one or more of the determinations made by Contestee Salas as to which candidate for Mayor the elector intended to vote for was/were incorrect and unsupported by law or the evidence, and the existence and extent of such mistake or mistakes is sufficient to change the result of the election.
35. In at least one (1) ballot of which Contestee has specific knowledge, Contestee Salas counted one (1) of the twenty three (23) ballots identified in paragraph 16 as a vote for Contestee Van Lone, when the markings on the ballot are at least as indicative of the elector's intent to vote for Contestor as for Contestee Van Lone.
36. Counting the ballot identified in paragraph 35 hereof as a vote for Contestor instead of as a vote for Contestee would result in a tie vote for the office of Mayor of the Town of Erie, Colorado, and not the election of Contestee Van Lone.
37. Upon information and belief, and subject to completion of discovery as to the various markings which appear on any of the remaining twenty two (22) ballots identified in paragraph 16 hereof, the judges of election and/or the Contestee Town Clerk Salas made additional errors in judgment by misconstruing the intent of electors who had improperly marked their ballots so as to make the same defective or spoiled, the totality of which errors is sufficient to change the result of the election.
38. The actions identified in paragraphs 35 and 37 hereof constitute error or mistake on the part of the judges of election and/or the Contestee Salas in counting or declaring the result of the election sufficient to change the result of the election, all as identified in C.R.S. § 31-10-1301(1)(c).
39. The action of the judges of election and/or Contestee Salas identified in paragraphs 35 and 37 hereof should be found by this court to be erroneous, improper, unauthorized and contrary to law, and should accordingly be set aside.
THIRD CLAIM FOR RELIEF40. Contestor hereby incorporates each and every allegation set forth in paragraph 1 through 39 inclusive above as though the same were set forth in full.
41. The judges of election at the Contestee Town of Erie's general municipal election of April 4, 2000, were appointed by the Town Council and, at all times relevant to this election contest, acted in fulfilling their election judging duties as agents and appointees of the Contestee Town of Erie.
42. In fulfilling their duties as election judges, the duly appointed and serving election judges were subject to the duties, requirements and provisions of the Colorado Municipal Election Code of 1965 as the same pertain to election judges.
43. The provisions of C.R.S. § 31-10-609 contain specific requirements and duties relating to actions which must be taken by election judges in the event any ballot is spoiled.
44. Contestor asserts, upon information and belief, that the twenty three (23) ballots identified in paragraph 16 hereof are spoiled, since the same cannot be read by, and were not counted by, the electronic vote counting machines utilized by the Contestee Town in the April 4, 2000 general municipal election.
45. The judges of election appointed by and acting as the agents and appointees of the Contestee Town of Erie failed to mark any of the twenty three (23) ballots identified in paragraph 16 hereof as spoiled or to mark the same as cancelled.
46. If the court finds as a matter of law that the twenty three (23) ballots above described were spoiled, the election judges, as agents and appointees of the Contestee Town, failed to comply with their duties as specified in C.R.S. § 31-10-609.
47. In the event the court finds that the judges of election failed to fulfill their duties as set forth in C.R.S. § 31-10-609, the conduct of the judges of election constitutes unintentional malconduct (but specifically not fraud or corruption), the result of which, specifically the counting of any of the twenty three (23) ballots identified in paragraph 16, is sufficient to change the result of the election of April 4, 2000 for the position of Mayor of the Town of Erie, Colorado.
48. In the event the actions of the judges of election as above described are in violation of the provisions of C.R.S. § 31-10-609, the action of the Contestee Town Clerk in counting any of said twenty three (23) ballots identified in paragraph 16 hereof was malconduct (but specifically not fraud or corruption) in that spoiled or cancelled ballots were illegally counted, in contravention to both C.R.S. §§ 31-10-1301(1)(b) and 31-10-1301(1)(d), the counting of which illegal votes was in sufficient number to change the result of the election.
49. The actions of the judges of election and the Contestee Town Clerk identified in paragraphs 45, 46, 47 and 48 hereof should be found by this court to constitute malconduct by any one or more of the judges of election or by the Contestee Town Clerk, the same should be set aside.
WHEREFORE, Contestee respectfully prays that this Court grant the following relief:
1. As to the First Claim for Relief, a Finding that, as a matter of law, the actions of Contestee Salas in counting the twenty three (23) ballots identified in paragraph 16 of the Verified Petition was an error or mistake sufficient to change the result of the Mayoral election of April 4, 2000, and directing that none of the twenty three (23) ballots so identified be counted;
2. As to the Second Claim for Relief, and only in the event the Court does not grant to Contestor the relief sought by Contestor in the First Claim for Relief, a Finding that, as a matter of law, the actions of the Contestee Salas in determining the intent of electors who filled out ballots in a manner which did not allow for reading and counting thereof by the electronic vote counting machines utilized by Contestee Town of Erie at the April 4, 2000 election, was an error or mistake sufficient to change the result of the Mayoral election of April 4, 2000, and directing that none of the twenty three (23) ballots so identified be counted.
3. As to the Third Claim for Relief, a Finding that, as a matter of law, the twenty three (23) ballots identified in paragraph 16 of the Verified Petition be declared spoiled, that the judges of election committed malconduct (but not fraud or corruption) in failing to comply with the provisions of C.R.S. § 31-10-609, and that the Contestee Town Clerk Salas committed malconduct (but not fraud or corruption) when she counted any of the twenty three (23) spoiled ballots, all in violation of C.R.S. §§ 31-10-1301(1)(b) and 31-10-1301(1)(d), and that none of the twenty three (23) ballots so identified be counted.
4. For a Judgment pursuant to C.R.S. § 31-10-1307 declaring Contestor Reed Schrichte the winner of the April 4, 2000 election for Mayor of the Town of Erie, and ordering and directing Contestee Salas to issue her declaration of election of Reed Schrichte, and further ordering and directing Contestee Salas to rescind and revoke her previous declaration of Contestee Thomas Van Lone as Mayor the Town of Erie, Colorado.
5. As an alternative to the relief sought in paragraph 4 immediately above, for an Order declaring the office of Mayor of the Town of Erie, Colorado vacant, and ordering and requiring the Town of Erie, Colorado to schedule and hold a run-off election between Contestor Reed Schrichte and Contestee Thomas Van Lone no later than twenty (20) days after the date of this Court's Order and Judgment.
6. For Contestor's costs, expenses, and to the extent authorized by law his attorney fees, and for such other and further relief may to the Court seem just and proper.
Respectfully submitted this 17th day of April, 2000.