dissenting.
I respectfully dissent. Brinker was ineligible to run for District 3 County Commissioner and for that reason, the four ballots should not have been rejected. Section 1-4-1001, IB C.R.S. (1980 & 1988 Supp.), provides that no write-in vote “shall be counted unless an affidavit of intent has been filed indicating that the person desires the office and is qualified to assume the duties of that office if elected.” Section 1-6-402(7), IB C.R.S. (1980), permits the voter to write in the name of any “eligible person not printed on the ballot who has filed an affidavit of intent of write-in candidate for whom he desires to vote as a candidate for such office.” (Emphasis added.) Write-in votes are therefore void unless the write-in candidate has previously filed an affidavit of intent.
It is undisputed that Brinker filed an affidavit stating that he intended to run for *1184District 2 County Commissioner. He did not file an affidavit indicating his intentions to run for District 3 County Commissioner and accordingly, was never a qualified candidate for District 3. The write-in votes reflected on the four contested ballots for Brinker as District 3 County Commissioner are precluded from being counted in that district and should be excluded from each ballot. In my view, the four ballots should not be invalidated because of the write-in votes for Brinker. The write-in votes do not abrogate the voter’s intent to elect G. Lowell Moran. If the four Brinker votes are excluded from the contested ballots, each of the four ballots carries one valid vote for Moran as District 3 County Commissioner.
The four contested ballots are not “defective ballots,” as defined in section 1-7-309, IB C.R.S. (1980), and I would conclude that they may be counted which would cause Moran to be elected as county commissioner. Accordingly, I dissent.