1-4-1002. Vacancies in major party designation up to the sixty-eighth day before primary election day
Overview of Statute
A designated party assembly vacancy committee will fill vacancies in party designations caused by death, disqualification, declination or other means. For vacancies that occur more than sixty-eight days prior to a primary, the committee must fill the vacancy with a candidate eligible at the time of the original designation. The committee must fill vacancies that occur within sixty-seven days of a primary election with a candidate who will be eligible at the time of the primary election.
Should a vacancy occur after the primary but more than 18 days before the general election, it can be filled by the same party committee in accordance with the provisions of subsection (9) of this section. Should the vacancy occur in a nomination for lieutenant governor, the gubernatorial candidate shall fill the vacancy. To fill a vacancy, a candidate must have met the requirements of candidacy at the time of the primary.
If a vacancy occurs before the designated election official has certified the ballot, the designated election official must certify the name of the replacement candidate on the ballot. If it is filled after the ballot certification, the designated official will, to the best of his ability, cause the name of the replacement candidate to appear on the official ballot, or cause to be printed or placed on the sample ballot delivered to the election judges and posted[1] a sticker of a different color than the sample ballot indicating the name of the replacement candidate. The designated election official is not required to reprint the ballots to reflect the name of the replacement candidate. Should the final ballot contain the name of the original candidate rather than the replacement ballot, all votes cast for the original candidate will be deemed cast for the replacement candidate.
If the vacancy occurs less than 18 days before the general election, the vacancy will not be filled before the election. Should the original, but now withdrawn, candidate receive a plurality of the votes at the election, the vacancy shall be filled by the respective party vacancy committee of the district, county, or state, as appropriate, depending upon the office for which the vacancy in nomination has occurred and in the manner provided for in part 2 of article 12 of this title for filling vacancies in office.
Vacancies in nomination occurring after the convention or assembly at which the nomination was made and no later than seventy days before the congressional election can be filled in the same manner required for the original nomination. Vacancies for unaffiliated candidates no later than seventy days before the general or congressional vacancy election can be filled by the person or persons designated on the petition or statement of intent to fill vacancies. Vacancies in nomination for a minor political party candidate after the filing of the certificate of designation and no later than seventy days before the general or congressional vacancy election may be filled by the person or persons designated in the constitution or bylaws of the minor political party to fill vacancies.
Vacancies in the office of lieutenant governor shall be filled by the appointment by the governor of a lieutenant governor of the same political party as the governor to fill the vacancy. The senate shall have no power to confirm or deny such appointment. See C.R.S. § 1-5-413: Guidelines for posting a sample ballot.
Statute
(1) For the purposes of this section, a vacancy is caused by:
(a) The declination, death, disqualification, or withdrawal of the person designated by a party assembly as a candidate for nomination;
(b) The failure of a party assembly to make designation of any candidate for nomination; or
(c)(I) The inability of a political party to conduct an assembly because a competent governmental authority prohibits gatherings over a certain size or restricts the use of public facilities due to a public health concern, if efforts to conduct an assembly pursuant to sections 1-4-601, 1-4-602, or 1-4-604, as amended by House Bill 20-1359, enacted in 2020, have been unavailing.
(II) This subsection (1)(c) is repealed, effective December 31, 2020.
(2) Any vacancy in a party designation occurring after the party assembly at which the designation was made and no later than sixty-eight days before the primary election may be filled by the party assembly vacancy committee of the district, county, or state, depending upon the office for which the vacancy in designation has occurred. The party assembly vacancy committee must be appointed by the party in accordance with party rules.
(3)(a) No vacancy committee called to fill a vacancy pursuant to this section may select a person to fill the vacancy at a meeting held for that purpose unless a written notice announcing the time and location of the vacancy committee meeting was mailed to each of the committee members within five calendar days of the chairperson of the central committee receiving notice of the vacancy. Mailing of the notice is effective when the notice is properly addressed and deposited in the United States mail, with first-class postage prepaid. In addition to this mailing, the chairperson of the central committee may also contact the committee members by electronic mail.
(b)(I) No vacancy committee meeting shall be held until a quorum is present consisting of not less than one-half of the voting membership of the vacancy committee.
(II) The vacancy committee, by a majority vote of its members present and voting at a meeting called for that purpose, shall select a person who meets all of the requirements of candidacy as of the date of the appointment and who is affiliated with the same political party:
(A) As shown in the statewide voter registration system as the candidate whose declination, death, disqualification, or withdrawal caused the vacancy; or
(B) As the party assembly that failed to designate a candidate, as applicable.
(III) No member of the vacancy committee may vote by proxy.
(IV) If the vacancy committee fails to timely certify a selection, the state chair of the party of the candidate whose declination, death, disqualification, or withdrawal caused the vacancy, within seven days, shall fill the vacancy by appointing a person who meets all of the requirements of candidacy as of the date of the appointment and who is affiliated with the same political party shown in the statewide voter registration system as the candidate whose declination, death, disqualification, or withdrawal caused the vacancy. The name of the person appointed by the state chair must be certified to the secretary of state.
(c)(I) The designation and acceptance of the person selected to fill the vacancy must be submitted to the designated election official no later than three days from either the date of the vacancy committee meeting or from the date of appointment by the state chair pursuant to subsection (3)(b)(IV) of this section, as applicable; except that such certification must in all cases be submitted no later than the sixty-fourth day before the date of the primary election.
(II) For purposes of this section, a vacancy is filled when the designated election official receives the certificate of nomination and the written acceptance of the replacement candidate.
(d) If a person designated to fill a vacancy pursuant to this section decides not to fill a vacancy, he or she shall in like manner file a certificate setting forth the occurrence of the vacancy, stating that he or she does not intend to fill the vacancy.
(4) When a vacancy occurs and is filled pursuant to this section, the designated election official shall certify the name of the replacement candidate to the ballot.
(5) Notwithstanding any provisions to the contrary, if a political party has established a rule regarding the length of affiliation required for a candidate, and a vacancy in that office occurs, then the party rule applies.
(6)(a) Notwithstanding any provision of this section to the contrary, due to public health concerns, for any vacancy occurring in 2020:
(I) A member of a vacancy committee may participate in a vacancy committee meeting remotely, including casting his or her vote by e-mail, mail, telephone, or through an internet-based application if allowed by the party;
(II) A party may determine whether to allow a person who is physically present to carry proxies at a vacancy committee meeting;
(III) The state chair of a party may fill a vacancy in accordance with subsection (3)(b)(IV) of this section if the vacancy occurs because the designation was not made by the assembly, the political party was unable to conduct an assembly because a competent governmental authority prohibits gatherings over a certain size or restricts the use of public facilities due to a public health concern, or the vacancy was not filled by the vacancy committee; and
(IV) The designation and acceptance of the person selected to fill a vacancy must be submitted to the designated election official no later than ten days from either the date of the vacancy committee meeting or from the date of appointment by the state chair pursuant to subsection (6)(a)(III) of this section, as applicable; except that such certification must in all cases be submitted no later than the sixtieth day before the date of the primary election.
(b) This subsection (6) is repealed, effective December 31, 2020.
Source: L. 2017: Entire part amended with relocated provisions, (SB 17-209), ch. 234, p. 948, § 5, effective August 9; L. 2020, (1)(c) and (6)(a) added, (HB 20-1359), ch. 23, § 7, effective March 16.
Editor’s note: Former subsection (2.3)(a) was amended by Proposition 108 in 2016. Those amendments were superseded by the amendment of this part 10 in SB 17-209, effective August 9, 2017. For the amendments to subsection (2.3)(a) in Proposition 108 in effect from December 27, 2016, to August 9, 2017, see section 6 on p. 2824, Session Laws of Colorado 2017.
Editor’s note: (1) This section is similar to former § 1-4-903 as it existed prior to 1992. (2) Amendments to subsection (7) by sections 42 and 118 of House Bill 95-1241 were harmonized.
Cross references: For filing a petition or certificate of designation, see § 1-4-604; for convention nominations, see § 1-4-701.
ANNOTATION
Annotator’s note. The following annotations include a case decided under former provisions similar to this section.
Holding that the “vacancy” section must be construed in the light of the two-pronged framework for the designation and nomination of candidates either by the party assembly or by petition. Anderson v. Mullaney, 166 Colo. 533, 444 P.2d 878 (1968).
Holding that a vacancy comes into being when a party assembly fails to designate any candidate for nomination to a particular office. Anderson v. Mullaney, 166 Colo. 533, 444 P.2d 878 (1968).
And such “vacancy” continues to exist until it is filled by the party central committee or the time for filing it expires by the term of the statute. Anderson v. Mullaney, 166 Colo. 533, 444 P.2d 878 (1968).
Holding that the “vacancy” created by the party assembly’s failure to designate a candidate for nomination may be filled by the subsequent action of the appropriate party central committee. Anderson v. Mullaney, 166 Colo. 533, 444 P.2d 878 (1968).
Holding that this is true even though a candidate for party nomination has in the interim between the assembly and the action of the central committee been placed on the primary ballot by petition. Anderson v. Mullaney, 166 Colo. 533, 444 P.2d 878 (1968).
8 Colo. Code Regs. 1505-1, § 10.7.5, of the secretary of state’s rules regarding the treatment of votes cast for ineligible candidates conflicts with this section and is therefore void. Subsection (2.5)(a) of this section provides that, where a vacancy occurs less than eighteen days before an election due to a partisan candidate’s disqualification, votes cast in that election for that disqualified candidate are to be counted and recorded. The rule contravenes subsection (2.5)(a) by directing that, where a designated election official has determined that a person appearing on the ballot is not qualified for office, any votes cast for that person are invalid and must not be counted. Because the rule conflicts with statute, it is therefore void. Hanlen v. Gessler, 2014 CO 24, 333 P.3d 41.
Cross References:
Coroners, qualifications and fingerprints, see § 30-10-601.5.
County sheriffs, qualifications, fingerprints, see § 30-10-501.5.
Vacancies in general assembly, certification of replacements, see § 1-12-203.
Withdrawn or deceased candidates, names not to be printed on ballots, see § 1-5-412.
- Cross-References:
- Ballot Access
- Candidate Methods of Nomination
See Olson et al v. Tancredo et al, Case No 2010CV7060, District Court City and County of Denver (Sept. 14 2010). Tom Tancredo met the qualifications for office to fill a vacancy of the American Constitution Party even though he did not meet the affiliation requirements to be nominated by assembly.
In Olsen v. Tancredo 2010CV7060, the Denver District Court determined that “by party rule” allows parties broad authority to decide if a candidate is eligible after the convention.
1. Definition for United States
Used in the territorial sense, means the several states, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.
2. Definition for Political party
Any group of registered electors who, by petition or assembly, nominate candidates for the official general election ballot. “Political party” includes affiliated party organizations at the state, county, and election district levels, and all such affiliates are considered to be a single entity for the purposes of this article, except as otherwise provided in section 7. Section 2(13) of article XXVIII of the state constitution.
3. Definition for Designated election official
The secretary of state, a county clerk and recorder, or other election official as provided by article XXI of the state constitution. C.R.S. § 1-12-100.5.
4. Definition for State
A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.
5. Definition for Ballot
(a) A federal write-in absentee ballot;
(b) A ballot specifically prepared or distributed for use by a covered voter in accordance with this article; or
(c) A ballot cast by a covered voter in accordance with this article.
(2) “Covered voter” means:
(a) A uniformed-service voter defined in paragraph (a) of subsection (9) of this section who is a resident of this state but who is absent from this state by reason of active duty and who otherwise satisfies this state’s voter eligibility requirements;
(b) An overseas voter who, before leaving the United States, was last eligible to vote in this state and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements;
(c) An overseas voter who, before leaving the United States, would have been last eligible to vote in this state had the voter then been of voting age and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements; or
(d) An overseas voter who was born outside the United States, is not described in paragraph (b) or (c) of this subsection (2), and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements if the last place where a parent, legal guardian, spouse, or civil union partner of the voter was, or under this article would have been, eligible to vote before leaving the United States is within this state.
C.R.S. § 1-8.3-102.
6. Definition for Person
Any natural person, partnership, committee, association, corporation, labor organization, political party, or other organization or group of persons. Section 2(11) of article XXVIII of the state constitution.
7. Definition for Section
A bound compilation of initiative forms approved by the secretary of state, which shall include pages that contain the warning required by section 1-40-110 (1), the ballot title, the abstract required by section 1-40-110 (3), and a copy of the proposed measure; succeeding pages that contain the warning, the ballot title, and ruled lines numbered consecutively for registered electors’ signatures; and a final page that contains the affidavit required by section 1-40-111 (2). Each section shall be consecutively prenumbered by the petitioner prior to circulation.
8. Definition for Election
Any election under the “Uniform Election Code of 1992” or the “Colorado Municipal Election Code of 1965”, article 10 of title 31, C.R.S. C.R.S. § 1-7.5-103.
9. Definition for Secretary
The Colorado secretary of state. C.R.S. § 1-1.5-102.
10. Definition for Committee
The committee of signers described in section 1-12-108(2). C.R.S. § 1-12-100.5.
11. Definition for Candidate
Any person who seeks nomination or election to any state or local public office that is to be voted on in this state at any primary election, general election, school district election, special district election, or municipal election. “Candidate” also includes a judge or justice of any court of record who seeks to be retained in office pursuant to the provisions of section 25 of article VI. A person is a candidate for election if the person has publicly announced an intention to seek election to public office or retention of a judicial office and thereafter has received a contribution or made an expenditure in support of the candidacy. A person remains a candidate for purposes of this article so long as the candidate maintains a registered candidate committee. A person who maintains a candidate committee after an election cycle, but who has not publicly announced an intention to seek election to public office in the next or any subsequent election cycle, is a candidate for purposes of this article. Section 2(2) of article XXVIII of the state constitution.
Cases
Colorado Cases
Case Name: Anderson v. Mullaney
Citation: 444 P.2d 878 (Colo. 1968)
Year: 1968
Case URL: https://www.ravellaw.com/opinions/8b66c712c877153ebfb30a600f65546f
Case Summary: Holding that petitioner, who had been designated by a vacancy committee of the party county central committee as a candidate of county assembly, was entitled to have his name placed on ballot as the assembly candidate even though another party successfully challenged petitioner’s right to have his name appear on the primary ballot.
Case Name: Hanlen v. Gessler
Citation: 333 P.3d 41 (Colo. 2014)
Year: 2014
Case URL: https://www.ravellaw.com/opinions/981336a95d3689adc8b42406ab7bafa6
Case Summary: Holding that Secretary of State acted in excess of his rulemaking authority in making rule that permitted designated election official to determine, after ballots had been printed, that an individual appearing on the ballot was not qualified for office, and directed that votes cast for that individual were invalid.