Additional language is proposed to be added to Section 7 of Article VIII that calls for the City to adopt the applicable requirements and procedures of the Municipal Election Code for contests to elected officials and their qualifications. This language is in direct conflict with existing Charter provisions that are not before voters for amendment in Article II.
It is not clear why or how it was determined to add this language to Article VIII. It is not addressed in any of the publicly available information about this proposed language, beyond a line in the ordinance adopting the proposed language stating it "eliminate(s) vague language for challenging nominations and qualifications of candidates (substituting the Municipal Election Code process);"
This change and justification appear to have been made without clarity on several key elements.
There is a clear difference between 1) challenging nominations of candidates and 2) challenging qualifications of candidates/elected officials - but the proposed charter language and the ballot language conflate these two distinct elements.
The ballot language says the changes to Article VIII: "eliminate(s) vague language for challenging nominations and qualifications of candidates" while
The proposed changes to the charter language are "for contests to officers declared duly elected."
The proposed changes to the Charter language ("The City adopts the applicable requirements and procedures outlined in the Colorado Municipal Election Code of 1965, as amended, for contests to officers declared duly elected.") address challenging officers that have been elected - which the Charter already contains a clearly defined process for in Article II. Section 2.(c). Providing for different provisions without addressing this conflicting language is a problem.
It appears the "applicable requirements and procedures" for "contests to officers declared duly elected" is referencing CRS 31-10-1301 in the Municipal Election Code. This is the process that conflicts with Article II of the Charter that is not being changed. In addition, CRS 31-10-305, outlines a process for "objections to nominations." Because neither the existing or proposed Charter language contains any process for "objections to nominations", under the provisions of the Charter itself, the Municipal Election Code already does and will continue to apply to objections to nominations in Fort Collins.
Language of the proposed changed Charter provisions in Article VIII outlining the use of Municipal Election Code for challenging the qualifications of individuals elected to Council:
Article VIII. Section 7. Certification of election results.
(a) No later than the date specified by Council by ordinance and, after verifying the total number of legal votes cast for each candidate and measure voted upon, the Board of Elections must complete a certificate declaring the results of the election. The candidate receiving the highest number of votes for a particular office, as determined pursuant to this Section 7, will be declared elected to that office. In event of a tie, the selection will be made by the Board of Elections by lot after notice to the candidates affected. The City adopts the applicable requirements and procedures outlined in the Colorado Municipal Election Code of 1965, as amended, for contests to officers declared duly elected. In case the candidate elected is disqualified by court order after the date of issuance of the certificate of election, tabulation of results in that contest shall be rerun with the disqualified candidate being eliminated prior to any tabulation and the candidate with the resulting highest vote shall be elected. If there is no other elected successor who qualifies or if the vote tabulation can no longer be rerun, the office will be deemed vacant, and will be filled by appointment by the remaining members of the council, as provided in Article II, Section 18. In the event of a mandatory recount or recount by request in a City administered election, the Board of Elections must complete an amended certificate declaring the results of the election by no later than five (5) business days after the completion of the recount.
Language of current Charter provisions in Article II outlining the process for protesting qualifications of elected Council members:
Article II. Section 2. Qualifications of candidates and members; challenges.
(d) Any registered elector may file with the City Clerk a written protest challenging the qualifications of any member of the Council. Any such protest shall be resolved by the City Clerk as expeditiously as possible but no more than forty-five (45) days from the date of filing of the protest, pursuant to a procedure established by the Council by ordinance. In order to resolve such protests, the City Clerk shall have the power to subpoena witnesses, administer oaths, and require the production of evidence. No protest shall be filed prior to the date of appointment or the date of issuance of the certificate of election of a Councilmember, whichever is applicable, nor shall any such protest, other than a protest based upon the fact of a felony conviction, be filed more than fifteen (15) days after said date.
Language of current Charter provisions in Article VIII outlining the process for protesting qualifications of elected Council members:
Article VIII. Section 7. Certification of election results.
(a) No later than the date specified by Council by ordinance and, after verifying the total number of legal votes cast for each candidate and measure voted upon, the Board of Elections shall complete a certificate declaring the results of the election. The candidate receiving the highest number of votes for a particular office, as determined pursuant to this Section 7, shall be declared elected to that office. In event of a tie, the selection shall be made by the Board of Elections by lot after notice to the candidates affected. In case the candidate elected fails to qualify within sixty (60) days after the date of issuance of the certificate of election, tabulation of results in that contest shall be rerun with the disqualified candidate being eliminated prior to any tabulation and the candidate with the resulting highest vote shall be elected, and the candidate failing to qualify shall forfeit his or her office whether or not such candidate has taken the oath of office. If there is no other elected successor who qualifies, the office shall be deemed vacant, and shall be filled by appointment by the remaining members of the council, as provided in Article II, Section 18. In the event of a mandatory recount or recount by request, the Board of Elections shall complete an amended certificate declaring the results of the election no later than the fifth day after the completion of the recount.