Whether Secretary of State of Election in 2000 is Previous General Election

Ken Salazar Attorney General Christine M. Arquello Chief Deputy Attorney General Alan J. Gilbert Solicitor General STATE OF COLORADO D E PA R T M E N T O F LA W Office of the attorney General State Services Building 1525 Sherman Street - 5th Floor Denver, Colorado 80203 Phone (303) 866-4500 FAX (303)866-5691 FORMAL ) OPINION ) ) O f ) ) KEN SALAZAR ) Attorney General ) No. 00-8 Whether Secretary o f State Election in 2000 is “Previous General Election” Referred to in Colo. Const. Art. V, § § 1 (2 ) and 1(3) Alpha No. ST EL AG BAK December 5 ,2 0 0 0 This opinion is issued at the request o f Donetta Davidson, the Secretary o f State o f the State o f Colorado. Secretary Davidson asks whether the election in the year 2000 to fill the vacancy in the office o f Secretary o f State is “the previous general election” referred to in Colo. Const. Art. V, § § 1(2) and 1(3). Q U E ST IO N PR E SE N T E D FO R R E V IE W A N D C O N C L U SIO N Q uestion: D oes the phrase “at the previous general election” in Colo. Const. Art. V, § § 1(2) and 1(3) mean the last general election for that office? A nsw er: Yes. The phrase “at the previous general election” in Colo. Const. Art. V , § § 1(2) and 1(3) refers to the last general election at which the office o f Secretary o f State is on the ballot, even if that election is one to fill a vacancy. Proponents must obtain five percent o f the total votes cast for the office o f Secretary o f State at the 2000 general election to qualify a measure for the ballot in 2001 and 2002. D ISC U SSIO N The Secretary o f State is a state officer who is elected at a general election for a term o f four years. The general election is held on the day prescribed by law. Colo. Const. Art. VII, § 7. The General A ssem bly has determined that the general election shall be “held on the Tuesday succeeding the first M onday o f Novem ber in each even-number year.” Sections 1-1-104(17) and -2 0 1 , C.R.S. (2000). The election for Secretary o f State is held at the general election that is tw o years prior to the general election for President. Sections 1-4­ 204 and -3 0 1 , C.R.S. (2000). Generally, vacancies for state offices are “filled by appointment by the governor until the next general election after the vacancy occurs, when the vacancy shall be filled by election.” Section 1-12-204, C.R.S. (2000). Thus, general elections include both regular and vacancy elections. The election for the office o f Secretary o f State also impacts the initiative and referendum process. Pursuant to Colo. Const. Art. V, § § 1(2) and 1(3), citizen-initiated and citizen-referred petitions must be signed “by registered electors in an amount equal to at least five percent o f the total number o f votes cast for all candidates for the office o f secretary o f state at the previous general election.” (Emphasis added.) Sections 1(2) and 1(3) do not distinguish between regular elections and vacancy elections for the office o f Secretary o f State. The question presented is whether the term “at the previous general election” includes a vacancy election for Secretary o f State that occurs between regular elections for that office. The language o f a constitutional provision should be ascertained in light o f the objective sought to be achieved. Zaner v. City o f Brighton. 917 P.2d 280 (Colo. 1996). The words should be given their com m on meaning. In re Submission o f Interrogatories on H ouse B ill 99-1325. 979 P.2d 549 (Colo. 1999). The word “the” is a definite article that particularizes the subject that it precedes. Brooks v. Zabka. 168 Colo. 265, 269, 450 P.2d 653, 655 (1969). The word “previous,” in this context, means “preceding in spatial order.” W ebster's Third N ew International. Dictionary. 1789 (1999). G iving these words their common and ordinary meanings, the phrase, “at the previous general election” means the general election im m ediately preceding the com m encem ent o f the process o f petition circulation. This interpretation is supported by the purpose o f the signature requirement. The Colorado Constitution requires proponents o f a measure to show that their measure has sufficient public support to warrant a place on the ballot. Fabec v. Beck. 922 P.2d 330, 335 (Colo. 1996). In order to accom plish this goal, it is necessary to establish an accurate benchmark. The Colorado Constitution provides that proponents must show that their measure is supported by five percent o f the people most likely to vote at the next general election. The people most likely to vote are those who voted for the office o f Secretary o f State. The m ost recent general election provides the most accurate snapshot o f the number o f likely voters. The last regular election for Secretary o f State was held in 1998. The next regular election for that office w ill be held in 2002. In 1998 Victoria Buckley was elected to a second term as Secretary o f State. Secretary Buckley died in 1999, and Governor Owens appointed Donetta D avidson to that office. A s required by law, an election to fill that vacancy w as held on Novem ber 7, 2000. The number o f votes cast for the office o f Secretary o f State at the election held on Novem ber 7, 2000 is the benchmark that must be used to determine if a citizen-initiated or citizen-referred measure may be placed on the ballot in 2001 and 2002. - 2 - Issued this 5th day o f Decem ber, 2000. M AURICE G. KNAIZER Deputy Attorney General State Services Section 1525 Sherman Street, 5th Floor Denver, Colorado 80203 - 3 -