Michael Kuhn, Ashlee Springer, Lydia K. Honken, Jeremy Isaac, and Sharon M. Schafer, Petitioners-Appellants
Wayne W. Williams, in his official capacity as the Colorado Secretary of State, Respondent-Appellee and Lamborn for Congress. Intervenor-Appellee
Reversed en banc April 23, 2018
Pursuant to § 1-1-113(3), C.R.S. (2017) District Court,
City and County of Denver, Case No. 18CV31151 Honorable Brian
R. Whitney, Judge
Attorneys for Petitioners-Appellants: Statecraft PLLC Michael
Francisco Colorado Springs, Colorado
Attorneys for Respondent-Appellee: Cynthia H. Coffman,
Attorney General LeeAnn Morrill, First Assistant Attorney
General Matthew D. Grove, Assistant Solicitor General Emily
Buckley, Assistant Attorney General Denver, Colorado
Attorneys for Intervenor-Appellee: Hale Westfall LLP Ryan R.
Call Richard A. Westfall Denver, Colorado
Attorneys for Amici Curiae Colorado Legislators: Lewis Roca
Rothgerber Christie LLP Thomas M. Rogers III Dietrich C.
Hoefner Hermine Kallman Denver, Colorado
Attorneys for Amici Curiae Ted Harvey, Senator Jerry
Sonenberg, Senator John Cook, and Greg Brophy: Klenda Gessler
& Blue Geoffrey N. Blue Scott E. Gessler Denver, Colorado
In this expedited appeal under section 1-1-113(3), C.R.S.
(2017), we address whether the Colorado Secretary of State
("the Secretary") may certify incumbent
Representative Doug Lamborn to the 2018 Republican primary
ballot for Colorado's Fifth Congressional District.
Relying solely on the Colorado Election Code, we conclude he
A major-party candidate in a partisan election may seek
access to the primary ballot either through the party
assembly process or by petition. Lamborn for Congress
(hereinafter the "Lamborn Campaign"), the
authorized federal campaign committee of Representative Doug
Lamborn, chose the latter. Under section 1-4-801(2)(b),
C.R.S. (2017), of the Colorado Election Code, he needed 1000
verified signatures from registered Republicans in the Fifth
Congressional District to qualify for the ballot. His
campaign hired an organization to circulate petitions and
obtain the requisite signatures. The campaign then submitted
the petition and signatures to the Secretary for review and
After completing his review, the Secretary determined that
the Lamborn Campaign had submitted 1269 valid signatures, so
he issued a statement of sufficiency pursuant to section
1-4-908(3), C.R.S. (2017). Shortly thereafter, Petitioners
filed a petition in the district court under sections
1-1-113(1) and 1-4-909(1), C.R.S. (2017), protesting the
Secretary's finding of sufficiency on grounds that
several of the Lamborn Campaign's petition circulators
were not bona fide residents of Colorado, as required by
section 1-4-905(1) of the Election Code.
On April 10, 2018, the district court held a hearing on the
Petitioners' claims. Petitioners asserted, in part, that
it would be a breach or neglect of duty under section
1-4-908(3) for the Secretary to certify Representative
Lamborn's name to the primary election ballot if the
necessary signatures were not collected by Colorado
residents. Petitioners' arguments to the district court
focused principally on two circulators: Jeffrey Carter and
Ryan Tipple. Following a hearing, the district court
concluded that Carter was not a resident, and therefore
invalidated the 58 signatures he collected. No party
challenges that ruling.
This appeal focuses on the 269 signatures gathered by Tipple.
Without those signatures, Representative Lamborn does not
have enough signatures to qualify for the ballot. The
district court concluded that Tipple's stated long-term
intent to become a resident of Colorado satisfied the
circulator residency requirement. Because the signatures
Tipple collected meant that the Lamborn Campaign had
satisfied the statutory threshold, the court denied
Petitioners' request for relief and upheld the
Secretary's finding of sufficiency. Petitioners appealed
to us under section 1-1-113(3), and we exercised our
discretion to review the district court's ruling.
We reverse. Although the Secretary properly relied on the
circulator affidavits and information in the statewide voter
registration system in reviewing the sufficiency of the
petition, section 1-4-909(1) of the Election Code
nevertheless affords a narrow opportunity to challenge the
validity of a candidate's petition before the Secretary
certifies the candidate to the ballot. Petitioners properly
availed themselves of that opportunity and challenged the
residency of some of the petition circulators for the Lamborn
Campaign, including Tipple. We reverse the district
court's ruling that Tipple is a resident of Colorado. The
district court improperly focused on Tipple's stated
future intent to move to Colorado, rather than considering
whether Tipple presently has a primary or principal place of
abode in Colorado to which he intends to return, as confirmed
by objective indicia of such residency.
Facts and Procedural History
We start by identifying the parties. Intervenor Lamborn for
Congress (hereinafter the "Lamborn Campaign") is
the authorized federal campaign committee of Doug Lamborn,
the incumbent representative for Colorado's Fifth
Congressional District ("CD5"). Representative
Lamborn is a Republican, seeking reelection for a seventh
term. Petitioners Michael Kuhn, Ashlee Springer, Lydia K.
Honken, Jeremy Isaac, and Sharon M. Schafer are registered
voters from CD5 (collectively referred to as "the
protesters"). Respondent Wayne Williams is the Colorado
Secretary of State.
In Colorado, major-party candidates can qualify for the
primary ballot through the traditional party caucus and
assembly process, § 1-4-601, C.R.S. (2017), or by
gathering signatures of electors on a petition. §
1-4-801, C.R.S. (2017). The Lamborn Campaign, on behalf of
Representative Lamborn, used the petition process to seek
access to the primary ballot.
Colorado law requires that a major-party candidate in a
partisan election seeking to petition onto the primary ballot
must present to the Secretary at least 1000 signatures (or
30% of the votes cast at the preceding primary election, if
fewer than 1000), from electors registered in their district,
§ 1-4-801(2)(b), who are affiliated with the
candidate's party, § 1-4-904(2)(a), C.R.S. (2017).
Section 1-4-905(1) outlines several requirements of the
people collecting the signatures, known as circulators:
No person shall circulate a petition to nominate a candidate
unless the person is a resident of the state, a
citizen of the United States, at least eighteen years of age,
and, for partisan candidates, registered to vote and
affiliated with the political party mentioned in the petition
at the time the petition is circulated, as shown in the
statewide voter registration system.
added.) Additionally, for each petition section, a circulator
must attach a signed, notarized, and dated affidavit that
includes, among other information, "a statement that
the affiant was a resident of the state, a citizen of
the United States, and at least eighteen years of age at the
time the section of the petition was circulated and signed by
the listed electors." § 1-4-905(2), C.R.S. (2017)
(emphasis added). Finally, the designated election official
"shall not accept for filing any section of a petition
which does not have attached to it the notarized affidavit
required by this section." § 1-4-905(3), C.R.S.
On March 6, 2018, the Lamborn Campaign submitted 1783
signatures to the Secretary.
On March 29, 2018, the Secretary issued a statement of
sufficiency, finding 1269 of the signatures were from
eligible and registered CD5 Republican voters. Under section
1-4-909(1), if a petition that appears to be sufficient is
not challenged within five days of the statement of
sufficiency being issued, it is deemed valid.
After noticing that six of the circulators with different
last names all listed the same address in Thornton as their
permanent residence, the protesters investigated the veracity
of the circulators' representations regarding their ties
On April 3, 2018, the protesters filed a verified petition in
Denver District Court under sections 1-1-113(1) and
1-4-909(1), alleging seven of the Lamborn Campaign's
circulators did not meet the statutory residency requirements
under section 1-4-905.As a result, the protesters claim, it would
be a breach or neglect of duty under section 1-4-908(3) for
the Secretary to certify Representative Lamborn's name to
the primary election ballot.
On April 10, 2018, the district court held a hearing on the
protesters' claims. The day before the hearing, the
Lamborn Campaign filed a motion to intervene, which the
district court granted. At the hearing, the protesters
presented evidence regarding the residency of seven of the
circulators at the time they circulated petitions for the
Tipple testified by phone (because he was closing on a house
that day in California). Under oath, he shared the following
• In 2008, he and his wife and their daughter moved to
Colorado, where his wife had grown up, and they
"realized that's where [they] would like to
stay." Tipple's in-laws live in Colorado Springs.
While living in Colorado, Tipple and his wife had a boy they
named "Breck, " after the town of Breckenridge,
• In 2008 and 2009, the economic slowdown caused
Tipple's employer to reassign him to a project in Texas.
His company subsequently moved him around the country for
various projects, during which time Tipple made occasional
trips to Colorado, at least once for work.
• Around 2016, Tipple was laid off.
• Since at least 2016, Tipple has lived in Ventura,
California with his wife and four children. Most of
Tipple's personal property is located in the Ventura
• Since 2016, Tipple has worked as a house flipper in
California. He also drives for Lyft and Uber in California.
• In 2017, Tipple paid taxes as a resident in
California. Tipple acknowledged that last year he spent the
"overwhelming majority" of his time ...