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Boatright's Dissent
Boatright's Dissent
¶258 I agree with the majority that an action brought under section 1-1-113, C.R.S.
candidate is qualified for office under the U.S. Constitution. But section 1-1-113
has a limited scope. Kuhn v. Williams, 2018 CO 30M, ¶ 1 n.1, 418 P.3d 478, 480 n.1
(per curiam, unanimous) (emphasizing “the narrow nature of our review under
section 1-1-113”). In my view, the claim at issue in this case exceeds that scope.
The voters’ (the “Electors”) action to disqualify former President Donald J. Trump
procedures. Simply put, section 1-1-113 was not enacted to decide whether a
¶259 Section 1-1-113 provides for the resolution of potential election code
qualifications. Carson v. Reiner, 2016 CO 38, ¶ 17, 370 P.3d 1137, 1141
voters a “narrow opportunity,” Kuhn, ¶ 28, 418 P.3d at 484, that opportunity has
proven effective as voters have compelled the Secretary to omit from the ballot
unqualified candidates whom they would have otherwise listed. E.g., id. at ¶ 57,
418 P.3d at 489 (barring a candidate from the ballot because his petition circulator
this court has also vindicated voters’ rights by preventing a decision that would
Griswold v. Ferrigno Warren, 2020 CO 34, ¶ 26, 462 P.3d 1081, 1087 (barring a
candidate from the ballot because she failed to gather sufficient signatures).
¶260 Further, our election code suggests that a petitioner may base a challenge to
federal law. Compare § 1-4-1203(2)(a), C.R.S. (2023) (stating that a candidate must
be “qualified”), with §1-4-1201, C.R.S. (2023) (declaring that the code conforms to
federal law); see also Coats v. Dish Network, LLC, 2015 CO 44, ¶ 20, 350 P.3d 849, 853
have previously held, however, that some federal law claims cannot be
adjudicated under section 1-1-113. E.g., Frazier v. Williams, 2017 CO 85, ¶ 19,
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401 P.3d 541, 545 (concluding that a 42 U.S.C. § 1983 claim cannot be the basis of,
¶261 But not all federal questions exceed the scope of section 1-1-113. A
candidate is not thirty-five years old may be easier to resolve than a claim that a
president, and place of birth all parallel core qualification issues under Colorado’s
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¶262 Far from presenting a straightforward biographical question, Section Three
holding office. U.S. Const. amend. XIV, § 3. Unlike qualifications such as age and
terms, determine legislative intent from over 150 years ago, and make factual
findings foreign to our election code. The Electors contend that there is nothing
issues.” However, the framework that section 1-1-113 offers for identifying
Constitution. See Dis. op. ¶ 352 (Berkenkotter, J., dissenting) (noting that “the
of section 1-1-113 is not novel. See Kuhn, ¶ 1 n.1, 418 P.3d at 480 n.1 (emphasizing
“the narrow nature of our review under section 1-1-113” and declining to address
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circulators “because such claims exceed this court’s jurisdiction in a section 1-1-113
action”).
¶263 Dismissal is particularly appropriate here because the Electors brought their
due process. Instead, the Electors relied on section 1-1-113 and its “breakneck
adjudication. Section 1-1-113 actions for presidential primary ballots fulfill a need
for speed by requiring the district court to hold a hearing within five days and issue
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§ 1-4-1204, C.R.S. (2023). This speed comes with consequences, namely, the
absence of procedures that courts, litigants, and the public would expect for
not contest, section 1-1-113’s procedures do not provide common tools for
witnesses and exhibits. This same concern was raised in Frazier; the then-Secretary
argued that “it is impossible to fully litigate a complex constitutional issue within
545 n.3. While we avoided deciding if a claim could be too complex for a section
that we reconcile the complexity of this issue with the breakneck pace of a
¶265 This case’s procedural history proves my point. Despite clear requirements,
the district court did not follow section 1-4-1204’s statutory timeline for
section 1-1-113 claims. The proceeding below involved two delays that,
respectively, violated (1) the requirement that the merits hearing be held within
five days of the challenge being lodged, and (2) the requirement that the district
court issue its order within forty-eight hours of the merits hearing.
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¶266 The Electors filed their challenge on September 6, 2023. Although the
question of whether this action should be removed to federal court was resolved
by September 14, the district court did not hold an evidentiary hearing until
September 18 fulfills the statutory requirement that the hearing be held within five
days of the Electors’ challenge. Maj. op. ¶ 83. However, a status conference
plainly does not satisfy the requirement: “No later than five days after the
challenge is filed, a hearing must be held at which time the district court shall hear the
challenge and assess the validity of all alleged improprieties.” § 1-4-1204 (emphasis
added); see Carson, ¶ 21, 370 P.3d at 1142 (ruling that section 1-1-113 “does not
solely on the basis of the certified candidate’s qualification, once the period . . . for
mystery why the statutory timeline could not be enforced: This claim was too
complex.4 The fact it took a week shy of two months to hold a hearing that “must”
take place within five days proves that section 1-1-113 is an incompatible vehicle
4 The intervals between the challenge and the hearing, and the hearing and the
order, should not cast aspersions on the district court, which made valiant efforts
to add some process above and beyond what the election code provides.
However, the Colorado General Assembly, not the district court, decides when
and how to change statutory requirements.
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for this claim. The majority recognizes the five-day requirement, Maj. op. ¶ 38,
but it does not acknowledge the violation of section 1-4-1204’s timeline or give
¶267 Nonetheless, the majority touts the fact that a hearing was held and lauds
the district court’s timely issuance of its decision as evidence that this matter was
not too complex for a section 1-1-113 proceeding. Maj. op. ¶¶ 84–85. But was the
order timely issued? Substantially, I think not. Compare Maj. op. ¶ 22 (“The trial
five days [through Friday, November 3], with closing arguments almost two
weeks later, on November 15. . . . The court issued its written final order on
November 17 . . . .”), with § 1-4-1204 (“The district court shall issue findings of fact
and conclusions of law no later than forty-eight hours after the hearing.”).
Section 1-4-1204 only mandates two deadlines, and neither were honored. After
all the evidence had been presented at a week-long hearing, the court suspended
proceedings for two weeks. I find nothing in the record offering a reason
grounded in the election code for the interval between the five consecutive days
of the hearing and the solitary closing arguments. However, I understand the
necessity to postpone the closing arguments for one reason: The complexity of the
case required more time than “no later than forty-eight hours after the hearing”
for the court to draft its 102-page order. Thus, while the district court formally
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issued its order within forty-eight hours of the closing arguments, the interval
between the evidentiary hearings and the closing arguments was not in
¶268 The majority condoned the district court’s failure to observe the statutory
timeline by concluding that it “substantially compl[ied].” See Maj. op. ¶ 85. This
Contra Ferrigno Warren, ¶ 20, 462 P.3d at 1085 (holding that, under Colorado’s
election code, a “specific statutory command could not be ignored in the name of
2017 CO 73, ¶ 25, 398 P.3d 599, 608 (“Where the language is clear, we must apply
timeline to process a claim, then that claim is not proper for the special proceeding.
¶269 From my perspective, just because a hearing was held and Intervenors
participated, it doesn’t mean that due process was observed. Nor should it be
inferred that section 1-1-113’s statutory procedures, which were not followed,
were up to the task. I cannot agree with the majority that the district court’s
Electors’ claim was fit for adjudication under sections 1-4-1204(4) and 1-1-113.
Contra, Maj. op. ¶ 81 (“In short, the district court admirably—and swiftly—
discharged its duty to adjudicate this complex section 1-1-113 action.”). Dragging
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someone through a “makeshift proceeding” is not an indication that it was an
appropriate process. See Dis. op. ¶ 274 (Samour, J., dissenting). Importantly, the
Electors were not rushed into the process; they didn’t have to file their challenge
until they were prepared. Only Intervenors arguably had inadequate time to
prepare.
¶270 Finally, only a two-thirds majority of both houses of Congress can overturn
extraordinary and speaks volumes about the gravity of the disqualification. Such
a high bar indicates that an expedited hearing absent any discovery procedures
and with a preponderance of the evidence standard is not the appropriate means
for adjudicating a matter of this magnitude.5 See Frazier, ¶¶ 17–18, 401 P.3d at 545
claim under 42 U.S.C. § 1983 “reinforce” the conclusion that not all federal law
5 Although the district court made its findings using the clear and convincing
standard, the election code calls for a preponderance standard. § 1-4-1204 (“The
party filing the challenge has the burden to sustain the challenge by a
preponderance of the evidence.”).
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III. Conclusion
¶271 My opinion that this is an inadequate cause of action is dictated by the facts
related offense.
¶272 The questions presented here simply reach a magnitude of complexity not
contemplated by the Colorado General Assembly for its election code enforcement
statute. The proceedings below ran counter to the letter and spirit of the statutory
timeframe because the Electors’ claim overwhelmed the process. In the absence of
candidate under Section Three of the Fourteenth Amendment is not a proper cause
of action under Colorado’s election code. Therefore, I would dismiss the claim at
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