This Matter Is Before the Court on a Motion to Set Emergency Hearing, Filed on the Evening of April 30, 2020

DISTRICT COURT CITY AND COUNTY OF DENVER, COLORADO 1437 BANNOCK STREET, DATE FILED: May 5, 2020 11:11 AM DENVER, CO 80202 CASE NUMBER: 2020CV31482

Petitioner: ERIK UNDERWOOD, Case Number: 2020CV31482 v. Ctrm: 209 Respondents: JENA GRISWOLD in her official capacity as the Secretary of State for the State of Colorado; and MORGAN CARROLL in her official capacity as the Chairwoman of the Colorado Democratic Party.

ORDER RE: PETITION FOR RELIEF UNDER C.R.S. § 1-1-113

This matter is before the Court on a Motion to Set Emergency Hearing, filed on the evening of April 30, 2020. This matter was heard by the Court on May 4, 2020, in an expedited fashion due to the Colorado Secretary of State’s obligation to deliver the June 30, 2020 primary election ballot order and content to county clerks by May 7, 2020, pursuant to C.R.S. § 1-5-203(1).

I. BACKGROUND By way of procedural background, on April 28, 2020, Petitioner Erik Monroe Underwood (“Mr. Underwood”) filed a Petition for Declaratory Relief against Colorado Secretary of State, Jena Griswold (“Secretary Griswold”). An Amended Petition was filed on April 30, 2020, which now also includes Ms. Morgan Carroll (“Ms. Carroll” sued in her representative capacity only), as the Chairperson of the Colorado Democratic Party. Mr. Underwood brings 5 claims for relief: (1) declaratory judgment, (2) violation of the United States and Colorado Constitutions – propriety of elections, (3) violation of the United States and Colorado Constitutions – free speech, (4) violation of the United States and Colorado Constitutions – due process, and (5) violation of C.R.S. § 1-4- 601(2)(a).1 Specifically in this case, Mr. Underwood asks the Court to order that Mr. Underwood’s

1 The Court advised the parties at the conclusion of the May 4, 2020 hearing that under law, claims one – four are properly dismissed without prejudice. Frazier v. Williams, 401 P.3d 541, 544 (Colo. 2017). name be listed on the certificate of designation filed with the Colorado Secretary of State, due to irregularities in the 2020 Colorado Assembly Process. Given the tight deadlines for conducting elections, C.R.S. § 1-1-113 is a summary proceeding designed to quickly resolve challenges brought by electors, candidates, and other designated plaintiffs against state election officials prior to election day. All parties agree that such proceedings generally move at a breakneck pace. Frazier v. Williams, 401 P.3d 541, 544 (Colo. 2017). On May 4, 2020, the Court received the following evidence: testimony from Mr. Underwood, Ms. Carroll, and Ms. Stephany Spaulding. The Court also specifically received Exhibits 10, 11, A, B, C, and D. The parties further stipulated to the admission of all but Exhibits 6 and C. The factual findings set forth in this Order are based upon a review of the exhibits and evaluations of the credibility of witness testimony, which in turn are based upon observations of the witnesses’ means of knowledge, strength of memory, and opportunities for observation; the reasonableness or unreasonableness of their testimony; the consistency or lack of consistency in their testimony, their motives, whether their testimony was contradicted or supported by other evidence; their biases, prejudices or interests, if any; and all other facts and circumstances shown by the evidence which affected their credibility.

II. LEGAL AUTHORITY AND ANALYSIS A. Jurisdiction This action is brought under C.R.S. § 1-1-113. Both Respondents argue that this Court does not have jurisdiction, so the Court addresses this issue at the outset. 1. Colorado Secretary of State Secretary Griswold argues that this Court does not have jurisdiction because there is “no allegation that she has or is about to commit a breach or neglect of any duty or other wrongful act—the sole grounds available for naming an election official in this type of suit.” SOS Hr’g. Br., p. 2. C.R.S. § 1-1-102, known as the Uniform Election Code of 1992 (the Code”) applies to primary elections. The title goes on further to state that “substantial compliance with the provisions or intent of this code shall be all that is required for the proper conduct of an election to which this code applies.” C.R.S. § 1-1-103(3). The Colorado Revised Statutes state that the Colorado Secretary of State is charged with the duty “to supervise the conduct of primary, general, congressional vacancy, and statewide ballot issue elections” and to “enforce the provisions of the code.” C.R.S. § 1-1-107. When, as here, a dispute arises, a verified petition under § 1-1-113 is the vehicle for resolution. A verified petition shall

2 allege how the official has committed or is about to commit a breach or neglect of duty or other wrongful act. The official is entitled to notice, and the parties are afforded an opportunity to be heard. The Court, upon a finding of good cause, shall issue an order requiring substantial compliance with the provisions of the code. The order shall require the person charged to: (1) forthwith perform the duty or (2) desist from the wrongful act or (3) forthwith show cause why the order should not be obeyed. The Court does not agree with Secretary Griswold’s position. The statute is clear and unambiguous that the Colorado Secretary of State is charged with the duty to supervise the conduct of primary ballot issue elections and to enforce the provisions of the Code. Although it is true that she has not yet breached or neglected a duty, Secretary Griswold is also required to enforce the provisions of the Code. As discussed below, it is the provisions of the Code that give this Court jurisdiction as to the Colorado Secretary of State.2 2. Chair of the Colorado Democratic Party Ms. Carroll argues that this Court does not have jurisdiction. Rather, she argues that the jurisdiction over Mr. Underwood’s controversy is held by the Colorado Democratic Party (“CDP”). Carroll Hr’g. Br. p. 2. Specifically, Ms. Carroll asserts that C.R.S. § 1-3-106 is the remedy to Mr. Underwood—the state central committee “shall have full power to decide all controversies …. This shall include controversies concerning the membership and personnel of any committee, or the officers thereof, and any nominations bearing or claiming the name or use of the word ‘Democratic’ in any jurisdiction.” Carroll Hr’g. Br. p. 3 (emphasis supplied). In People ex rel. Lowry v. Dist. Court, 74 P. 896 (Colo 1903), the case dealt with two different groups within the Republican party arguing about who could use the word “Republican.” The Colorado Supreme Court held that the district court was without jurisdiction, rather, the matter was left to the party to resolve internally. The Court finds that while that is an accurate statement of the law, the facts here are not similar enough to Lowry to allow for the CDP to handle this matter under the exclusive jurisdiction afforded under C.R.S. § 1-3-106.3 Accordingly, the Court finds that it has jurisdiction to hear this matter as to Ms. Carroll in her capacity as the Chairwoman of the CDP.

2 The Secretary’s counsel has advised that the “Secretary of State will comply with her statutory obligation …” SOS Hr’g. Br. p. 5.

3 Although argument is made that in Kuhn v. Williams, 418 P.3d 478 (Colo. 2018), the Colorado Secretary of State took part in the C.R.S. § 1-1-113 proceeding and no one argued, nor did the Colorado Supreme Court address, the applicability of C.R.S. § 1-3-106, the Court finds it unnecessary to address this argument.

B. Claim Five4 In Claim Five, Mr. Underwood seeks to have his name listed as a candidate on the Certificate of Designation by Assembly for the Office of United States Senate for the CDP. C.R.S. § 1-4-103 provides that “all candidates for nominations to be made at any primary election shall be placed on the primary election ballot either by certificate of designation by assembly or by petition.” This is true for the nomination for United States Senate. C.R.S. § 1-4-702. As issue here are the events leading up to various county assemblies and the CDP State Assembly, held on April 18, 2020.5 To set the stage, the Court briefly discusses that on March 10, 2020, Colorado Governor Jared Polis verbally declared a state of emergency for the State of Colorado due to the novel Coronavirus, commonly referred to as COVID-19. On March 16, 2020, emergency rules were then enacted through House Bill 20-1359 and Executive Order D 2020 005, which addressed how the 2020 primary election scheduled for June 30, 2020 would be conducted. Executive Order D 2020 005 specifically directed “Major political parties to make any amendments necessary to their bylaws to comply with any [other] emergency order …” p. 2 of 3. In response, the CDP implemented rules for county and state assembly gatherings. In relevant part, on or about March 18, 2020, the CDP limited United States Senate candidates to a 5 minute video to be published at county assemblies and a 5 minute video to be published at the April 18, 2020 state assembly. On or about March 22, 2020, the length of the video was cut to 2.5 minutes. By April 15, 2020, United States Senate Candidate Spaulding had filed a formal complaint with CDP. The Colorado Chair for the State Credential Committee advised that the complaint contained insufficient information for a violation of Federal Election Law. The CDP State Assembly was held, virtually, on April 18, 2020. The number of delegates present and voting was 2736, approximately 80% of the total delegates. The voting was accomplished through 2 methods: Survey Monkey or call-in. Ex. C. Voting started at 9:00 a.m. and was scheduled to end at 12:00 p.m. The Court received testimony that based upon a significant number of people still waiting to cast their votes, the first round of voting was extended to 2:00 p.m. At that time the voting closed, 61 of 64 counties had reporting. After the voting closed, the Survey

4 Should the appellate court disagree with this Court’s analysis that strict compliance applies to this case, the Court also analyzes substantial compliance and equity considerations.

5 The Petition discusses that United States Senate candidate Hickenlooper certified by petition, although for a period of time his name was listed at the county assembly level. The Petition also references other United States Senate candidates who sought designation by assembly – Candidate Spaulding and Candidate Zornio, neither who are petitioners in the instant action. 4

Monkey results were exported into a spreadsheet and were examined line-by-line for errors, such as duplication or an unauthorized voter. The CDP credential committee found 3 duplicate votes and corrected the results accordingly. The final tally of the United States Senate candidates was reported as follows: Harlan Andrew Romonoff 89.7% Stephany R. Spaulding 9.4% Erik M. Underwood .09%

1. Strict Compliance C.R.S. § 1-4-601(2) requires that “[e]very candidate receiving thirty percent or more of the votes of all duly accredited assembly delegates who are present and voting on that office must be certified …” Just days ago the Colorado Supreme Court reiterated that “in our most recent analysis of the Election Code, we noted that there are some aspects of the Code that simply cannot be subject only to substantial compliance.” Griswold v. Warren, 2020 CO 34 ¶18 (citing to Kuhn v. Williams, 418 P.3d 478, 488 n.4 (Colo. 2018)). The court went on to state that such edicts are “the minimum threshold that the legislature has declared ‘must’ be met for a candidate to petition onto the ballot.” Id. at ¶19. Here, it is undisputed that Mr. Underwood did not receive 30% or more of the CDP state assembly votes. Under a strict compliance analysis, Mr. Underwood has not met his burden to be placed on the United States Senate June 30, 2020 primary election ballot. 2. Substantial Compliance On May 4, 2020, the Colorado Supreme Court addressed the factors the district court should consider in evaluating substantial compliance: “(1) the extent of the noncompliance; (2) the purpose of the provision and whether that purpose was substantially achieved in spite of the lack of compliance; and (3) whether there was a good faith effort to comply.” Id. at ¶12; Fabec v. Beck, 922 P.2d 330, 341 (Colo. 1996); Loonan v. Woodley, 882 P.2d 1380, 1384 (Colo. 1994). Applying those factors to the case at issue, the Court finds that: (1) Mr. Underwood’s receipt of .09% of the required 30% or more of delegates’ votes falls quite short of compliance; (2) the purpose of setting a minimum requirement was done by the legislature to ensure party support for the candidate and Mr. Underwood’s percentage of votes does not demonstrate party support; and finally, (3) the Court finds the third factor not applicable in this matter. As our supreme court stated in Warren: [T]he General Assembly, in unambiguous terms, has mandated the collection of 1,500 signatures from each congressional district in order to petition onto the ballot as a candidate for U.S. Senate. As the district court recognized, this language is 5

“clear and unequivocal.” District Court Order, p. 21. It must be complied with strictly. While we recognize that the circumstances that made signature collection more difficult this year are unprecedented, we do not have the authority to rewrite the Election Code in response to the COVID-19 virus. Only the General Assembly can do that. Indeed, the General Assembly passed an emergency election measure to address some of the challenges posed to the election season by the pandemic. On March 14, 2020, the General Assembly passed House Bill 20-1359, titled “An Act Concerning Modifications to Party Candidate Designation Requirements to Accommodate Public Health Concerns.” See H.B. 20-1359, 73rd Gen. Assemb., 1st Reg. Sess. (Colo. 2020). The Governor signed that measure into law on March 16, 2020. […] [S]ignificantly, that law did not alter the minimum signature requirements or suggest that they could be altered by the Secretary or a court. In the absence of legislative change, even when a worldwide pandemic has changed so much, the minimum signature requirements are fixed. Warren, 2020 CO 34 ¶¶ 23, 24. Although Warren involved the collection of signatures for a petition, the same holds true for the assembly process. Had the legislature thought it necessary to pass different measures as to the threshold requirements to petition on to the ballot, it had the opportunity to do so as recently as March 14, 2020. It chose to remain silent on the matter. Accordingly, the Court finds that Petitioner has failed to meet his burden of establishing substantial compliance. 3. Irregularities Finally, Mr. Underwood argues that based upon a series of serious irregularities with the 2020 CDP Assembly process, he is entitled to equitable relief. Pet’r’s. Hr’g. Br. p. 4. Mr. Underwood cites to the following as a non-exhaustive list of irregularities and procedural errors:

 the emergency rules set in place appear to have benefited a single candidate to the exclusion of the others in the Assembly Process;  the usual quorum requirement of 40% was waived for the Assembly Process and conventions;  the Emergency Rules allowed for voting via Survey Monkey, which according to its website one can only vote one time per email address. Moreover, it appears that multiple responses can be allowed from users on a shared device;  candidates were either excluded from county assemblies or their entire video message was not played; specifically, this occurred in Park County, Logan County, Pitkin County, Elbert County, and Broomfield County;

 certain candidates, including Mr. Underwood, were denied the opportunity to speak at the State Assembly addressing that specific audience;  Mr. Underwood was not informed of the change from 5-minute videos to 2.5- minute videos;  3 counties did not report their delegate votes;  Pueblo County had the improper list of candidates for its preference poll; and,  A formal complaint had been filed with the CDP which was not taken to a vote at the April 18, 2020 CDP State Assembly.

To address each of the above listed points, the Court finds as follows from the evidence:  The Court received no evidence that any single candidate benefitted to the exclusion of others;  The quorum decision was made for all candidates and the Court did not receive any evidence that this requirement affected the April 18, 2020 Assembly process in any way, much less how it impacted the votes for Mr. Underwood;  The Court received testimony that the Survey Monkey results were exported into a spreadsheet and then examined line-by-line by the credentials committee where 3 duplications were found and corrected;  As to county assemblies, the Court received uncontroverted testimony that counties do not extend invitations to candidates to attend assembly;  Mr. Underwood was advised of the change in the length of his video (see First Am. Pet. ¶38);  Ms. Carroll confirmed that 2 or 3 counties had not reported their numbers to the CDP State Assembly;  Prior to the April 18, 2020 State Assembly, the State Party prepared a proper preference poll that was used for the incorrect poll previously taken by Pueblo County assembly;  The Court received testimony that the complaint (filed by Ms. Spaulding and not Petitioner) was determined to “not have enough to act on” at the state level. On May 4, 2020, the Court heard consistent testimony from Mr. Underwood and Ms. Carroll that his concerns about the assembly process were discussed starting as early as March 13, 2020. See First Am. Pet. ¶¶ 29, 30, 38, 42. The testimony split only as to the facts that Mr. Underwood’s concerns were “not alleviated” and that he was not given things he requested i.e., a second video to the State Assembly.6

6 Mr. Underwood testified that when he ran for governor of the State of Colorado in 2018, at the CDP State Assembly, he was given the opportunity to speak to the delegates in attendance and he received a couple hundred delegate votes. By contrast, he states he did not speak to the delegates in 2020. This is inconsistent with Ex. C which shows that each candidate was listed alphabetically, and a video link was embedded to 7

When one challenges the process by which one can become a candidate on a ballot, clearly important rights are implicated. The tension is only heightened where, as here, world events affected all those seeking to be candidates for office. Petitioner has set forth general allegations as to county assembly irregularities, and arguments that the emergency rules favored a certain candidate, that legislative action altered the quorum requirement, and that Petitioner was denied the opportunity to speak at the State Assembly. Noticeably absent from the evidence presented to the Court was corroboration that the irregularities Petitioner complains of were not suffered by multiple candidates. Petitioner also did not present evidence as to how the irregularities directly or indirectly impacted him and the voting. In fact, the only corroborating evidence is a complaint filed by United States Senate Candidate Spaulding on April 15, 2020, which was considered to be focused more on county irregularities, pre-dated the April 18, 2020 State Assembly, and did not focus on State Assembly irregularities. In sum, the corroborative evidence illustrates that Mr. Underwood voiced his concerns to the CDP and the CDP responded, perhaps not in the way Mr. Underwood had hoped. This, however, does not allow for the Court to entertain equitable relief in Mr. Underwood’s favor. III. CONCLUSION Mr. Underwood’s Petition for Relief under C.R.S. § 1-1-113 (Claim Five) is DENIED. Claims One through Four are dismissed without prejudice. SO ORDERED this 5th day of May, 2020. BY THE COURT:

______Kandace C. Gerdes District Court Judge

the right of their name. Also, the political office sought in 2018 by Mr. Underwood was different than the office sought by him in 2020. The Court did not receive any evidence as to how the 2020 events impacted the number of votes Mr. Underwood did, or would have, received if allowed a second speech to the State Assembly. 8