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1-4-1002. Vacancies in designation or nomination

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 Should the original, but now withdrawn, candidate receive a plurality of the votes at the election, the vacancy shall be filled by the respective party vacancy committee of the district, county, or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.

[1] C.R.S. § 1-5-413: Guidelines for posting a sample ballot

Statute

(1) 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. A vacancy may be caused by the declination, death, disqualification, or withdrawal of any person designated by the assembly as a candidate for nomination, or by failure of the assembly to make designation of any candidate for nomination, or by death or resignation of any elective officer after an assembly at which a candidate could have been designated for nomination for the office at a primary election had the vacancy then existed. No person is eligible for appointment to fill a vacancy in a party designation unless that person meets all requirements of candidacy as of the date of the assembly that made the original designation.

(2) A vacancy in a party designation occurring during the sixty-seven days before the primary election or on the day of the primary election may be filled by the respective party assembly vacancy committee of the district, county, or state, depending upon the office for which the vacancy in designation or nomination has occurred. A vacancy may be caused by the declination, death, disqualification, resignation, or withdrawal of the person previously designated or of the person nominated at the primary election or by declination, death, disqualification, or withdrawal of an elective officer after a primary election at which a nomination could have been made for the office had the vacancy then existed. No person is eligible for appointment to fill a vacancy in the party designation or nomination unless the person meets all of the requirements of candidacy as of the date of the primary election.

(2.3) (a) A vacancy in a party nomination, other than a vacancy for a party nomination for lieutenant governor for a general election occurring after January 1, 2001, that occurs after the day of the primary election and more than eighteen days before the general election may be filled by the respective party assembly vacancy committee of the district, county, or state, as appropriate, depending upon the office for which the vacancy in nomination has occurred in accordance with the provisions of subsection (9) of this section. A vacancy in a party nomination for lieutenant governor for a general election occurring after January 1, 2001, shall be filled by a replacement candidate for lieutenant governor nominated by the party’s candidate for governor. A vacancy may be caused by the declination, death, disqualification, resignation, or withdrawal of the person nominated at the primary election or by the declination, death, disqualification, resignation, or withdrawal of an elective officer after a primary election at which a nomination could have been made for the office had the vacancy then existed. No person is eligible for appointment to fill a vacancy in the party nomination unless the person meets all of the requirements of candidacy as of the date of the primary election. When a vacancy is filled pursuant to this paragraph (a), the designated election official shall provide notice by publication of the replacement nomination in the same manner as the notice required by section 1-5-205.

(a.5) When a vacancy in a party nomination is filled pursuant to paragraph (a) of this subsection (2.3) before the designated election official has certified the ballot in accordance with section 1-5-203 (3) (a), the designated election official shall certify the name of the replacement candidate for the ballot.

(b) When a vacancy in a party nomination is filled pursuant to paragraph (a) of this subsection (2.3) after the designated election official has certified the ballot in accordance with section 1-5-203 (3) (a), the designated election official shall, to the extent reasonably practical under the circumstances:

(I) Cause the name of the replacement candidate to appear on the official ballot; or

(II) Cause to be printed and placed on the sample ballot delivered to the election judges and posted pursuant to section 1-5-413 a sticker of a different color than the sample ballot indicating the name of the replacement candidate.

(c) Notwithstanding subparagraph (I) of paragraph (b) of this subsection (2.3), a designated election official shall not be required to print replacement ballots containing the name of a replacement candidate if the official ballots containing the name of the candidate who vacated the nomination have already been printed.

(d) 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 pursuant to paragraph (a) of subsection (5) of this section.

(e) If the name of a replacement candidate designated to fill a vacancy pursuant to this subsection (2.3) does not appear on the official ballot and ballots containing the name of the candidate who vacated the nomination are used in a general election, the votes cast for the candidate who vacated the nomination shall be counted as votes for the replacement candidate.

(2.5) (a) Any vacancy in a party nomination occurring less than eighteen days before the general election that is caused by the declination, death, disqualification, or withdrawal of any person nominated at the primary election or by the declination, death, disqualification, or withdrawal of any elective officer after a primary election at which a nomination could have been made for the office had the vacancy then existed shall not be filled before the general election. In such case, the votes cast for the candidate whose declination, death, disqualification, or withdrawal caused the vacancy are to be counted and recorded, and, if the candidate receives a plurality of the votes cast, such vacancy shall be filled after the general election 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.

(b) Any vacancy in a party nomination for lieutenant governor for a general election occurring after January 1, 2001, that occurs less than eighteen days before the general election that is caused by the declination, death, disqualification, or withdrawal of the nominated candidate shall not be filled before the general election. In such case, the votes cast for the candidate for governor who was a joint candidate with the candidate whose declination, death, disqualification, or withdrawal caused the vacancy shall be counted and recorded, and, if such candidate is elected, he or she shall fill the vacancy after the general election by selecting a lieutenant governor who is a member of the same political party. The senate shall have no power to confirm or deny such appointment.

(3) Any vacancy in a party nomination occurring after the convention or assembly at which the nomination was made and no later than seventy days before the congressional vacancy election, caused by the declination, death, disqualification, or withdrawal of any person nominated at the convention, may be filled in the same manner required for the original nomination. If the original nomination was made by a party convention or assembly that had delegated to a committee the power to fill vacancies, the committee may proceed to fill the same vacancy when it occurs. No person is eligible for appointment to fill a vacancy in the party nomination unless that person meets all of the requirements of candidacy as of the date of the convention or assembly at which the original nomination was made.

(4) Any vacancy in a nomination for an unaffiliated candidate caused by the declination, death, or withdrawal of any person nominated by petition or statement of intent occurring after the filing of the petition for nomination or the submittal of a statement of intent under section 1-4-303 and no later than seventy days before the general or congressional vacancy election may be filled by the person or persons designated on the petition or statement of intent to fill vacancies.

(4.5) Any vacancy in a nomination for a minor political party candidate occurring after the filing of the certificate of designation pursuant to section 1-4-1304 (3) and no later than seventy days before the general or congressional vacancy election, which is caused by the declination, death, or withdrawal of any person nominated by the minor political party, may be filled by the person or persons designated in the constitution or bylaws of the minor political party to fill vacancies.

(5) (a) The persons designated to fill any of the vacancies in subsections (1) to (4.5) of this section shall file with the designated election official with whom the original certificate or petition was filed any certificate of designation or nomination to fill the vacancy and a written acceptance signed by the person designated or nominated no later than the close of business on the sixty-seventh day before the primary election or the sixty-ninth day before the general election, depending on when the vacancy occurred; except that, in the case of a vacancy filled pursuant to subsection (2), (2.3) (a), or (7) (c) of this section, the filing shall be done no later than the seventh day before the election affected by the vacancy.

(b) If the persons designated to fill any of the vacancies in subsections (1) to (4.5) of this section decide not to fill a vacancy, they shall in like manner file a certificate setting forth the occurrence of the vacancy, stating they do not intend to fill the vacancy.

(6) When the secretary of state or the county clerk and recorder receives a certificate of nomination to fill a vacancy, that official, in certifying the list of designees or nominees, shall replace the name of the original candidate with that of the replacement candidate. In the event the secretary of state has already certified the list, the secretary of state shall forthwith certify to the county clerk and recorders of the affected counties the name of the new nominee, the office for which the nomination is made, and the name of the person for whom the nominee is substituted. The secretary of state and the county clerk and recorders shall not accept any certificates of nomination to fill vacancies after the sixty-seventh day before election day; except that, in the case of a vacancy filled pursuant to the provisions of subsection (2.3) of this section, the secretary of state and the county clerk and recorder shall not accept any certificates of nomination to fill vacancies after the seventh day before election day.

(7) Except as otherwise provided in subsection (7.3) of this section, any vacancy in a statewide or county office, in the office of district attorney, or in the office of a state senator occurring during a term of office shall be filled at the next general election with nomination or designation by the political party as follows:

(a) If the vacancy occurs prior to the political party assembly, the designated election official shall notify the chairperson of each major political party that the office will be on the ballot for the next primary election, and candidates for the office shall be designated as provided in section 1-4-601 or 1-4-603.

(b) If the vacancy occurs after the political party assembly and no later than sixty-eight days before the primary election, the designated election official shall add the office to the notice of election and notify the chairperson of each major political party that the office will be on the ballot for the next primary election. Candidates for the office shall be designated as provided in section 1-4-603 or by the respective party central committee vacancy committee for the state, county, judicial district, or state senate district.

(c) If the vacancy occurs during the sixty-seven days before the primary election or after the primary election and no later than sixty-eight days before the general election, the designated election official shall add the office to the notice of election for the general election. Nominations for the office shall be made by the respective party central committee vacancy committee for the state, county, judicial district, or state senate district or as provided in section 1-4-802 for the nomination of unaffiliated candidates.

(7.3) Any vacancy 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.

(7.5) Any vacancy in a statewide or county office, in the office of district attorney, or in the office of a state senator occurring during a term of office shall be filled at the next general election with nomination or designation by a minor political party pursuant to the constitution or bylaws of the minor political party.

(8) Notwithstanding any provisions to the contrary, if a political party has established a rule regarding the length of affiliation required for a candidate for the office of United States senator or representative in congress, and a vacancy in that office occurs, then the party rule applies.

(9) (a) No vacancy committee called to fill a vacancy pursuant to the provisions of subsection (2.3) of this section may select a person to fill a 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 at least five days prior to such meeting by the chairperson of the central committee which selected the members. Mailing of the notice is effective when the notice is properly addressed and deposited in the United States mail, with first-class postage prepaid.

(b) 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 primary election and who is affiliated with the same political party or minor political party, if any, shown on the registration books of the county clerk and recorder as the candidate whose declination, death, disqualification, resignation, or withdrawal caused the vacancy. No meeting shall be held until a quorum is present consisting of not less than one-half of the voting membership of the vacancy committee. No member of the vacancy committee may vote by proxy. The committee shall certify the selection to the secretary of state within seven days from the date the vacancy occurs. If the vacancy committee fails to certify a selection within seven days, the state chair of the same political party or minor political party as the candidate whose declination, death, disqualification, resignation, or withdrawal caused the vacancy, within seven days, shall fill the vacancy by appointing a person having the qualifications set forth in this subsection (9). The name of the person selected or appointed by the state chair shall be certified to the secretary of state. The vacancy shall be filled until the next general election after the vacancy occurs, when the vacancy shall be filled by election.

 

Source: L. 92: Entire part R&RE, p. 692, § 7, effective January 1, 1993.L. 95: (2), (4), (7), and (7)(c) amended, pp. 834, 861, § § 41, 118, 42, effective July 1.L. 96: (4) amended, p. 1741, § 26, effective July 1.L. 98: (4.5) and (7.5) added and (5) amended, p. 257, § 9, effective April 13.L. 99: (1), (2), (3), (4), (4.5), (5)(a), (6), (7)(b), and (7)(c) amended, p. 766, § 30, effective May 20; (2), (3), (4), (4.5), (5)(a), (6), (7)(b), and (7)(c) amended and (2.3), (2.5), and (9) added, p. 930, § 2, effective August 4; (8) amended, p. 161, § 10, effective August 4.L. 2000: (2.3)(a), (2.5), and IP(7) amended and (7.3) added, p. 2029, § 6, effective August 2.L. 2005: (1), (2), (2.3)(a), (3), (4), (4.5), (5)(a), (6), (7)(b), and (7)(c) amended, p. 1400, § 19, effective June 6; (1), (2), (2.3)(a), (3), (4), (4.5), (5)(a), (6), (7)(b), and (7)(c) amended, p. 1435, § 19, effective June 6.L. 2007: (2) and (2.3) amended, p. 1972, § 11, effective August 3.L. 2010: (7.3) amended, (HB 10-1116), ch. 194, p. 832, § 10, effective May 5.L. 2012: (5)(a) amended, (HB 12-1292), ch. 181, p. 681, § 17, effective May 17.

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.

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).

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).

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).

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.

Annotation: April 22, 2016 7:46 pm

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.

Annotation: 7:38 pm

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.

Definition [Election day]

The date either established by law or determined by the governing body of the political subdivision conducting the election, to be the final day on which all ballots are determined to be due, and the date from which all other dates in this article are set.C.R.S. § 1-7.5-103.

Definition [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.

Definition [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.

Definition [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.

Definition [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.

Definition [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.

Definition [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.

Definition [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.

Definition [Secretary]

The Colorado secretary of state. C.R.S. § 1-1.5-102.

Definition [Committee]

The committee of signers described in section 1-12-108(2). C.R.S. § 1-12-100.5.

Definition [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.

Out-of-State Cases

Federal Cases