What Happens if Dan Maes Drops Out of the Governor’s Race?: Colorado Law

A little over a month ago, just before the ballots were to be printed, a lot of politically-attuned Coloradans were discussing and debating whether Republican gubernatorial nominee Dan Maes should drop out of the race. With the revelation of a not-so-secret meeting this week between Maes and third-party conservative candidate Tom Tancredo, the discussion has regained some momentum — though Maes insists he’s not going anywhere. (I am pretty sure he wasn’t referring to his campaign’s fundraising and polling trend, but he could have been).

Mount Virtus does not employ an election lawyer, but today I play one on my blog. Questions have arisen about the legality of it all: What happens if Maes drops out? Will he be replaced? Will his votes count for someone else? What’s the deadline to take action? Let’s look at a couple excerpts from Colorado Revised Statutes 1-4-1002:

(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….

(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. [emphases added]

FYI, 18 days before the election is next Friday, October 15. Summing up the statutory language, there are a few things to note:

1. If Dan Maes were to drop out of the race between now and next Friday, the Republican Party could convene a vacancy committee to select a replacement but wouldn’t have to do so. Given so many Republicans have endorsed Tancredo, the GOP is highly unlikely to pursue this course.
2. If Dan Maes were to drop out of the race after next Friday, then even the remote chance of a GOP vacancy committee convening would disappear — unless faced with the even more remote possibility of Maes still winning the most votes — in which case a vacancy committee after the election would choose a Republican to be the governor-elect.
3. If Dan Maes drops out and there’s no committee-appointed replacement, all the votes for him are thrown away. If there is a committee-appointed replacement, that person would receive all the votes designated for Maes.

That’s how it all works, as best as this amateur can tell. But now that the ballots are printed, that October 15 deadline is essentially meaningless since the GOP won’t call a vacancy committee with Tom Tancredo in the race. A more meaningful date is October 12, when the first mail-in ballots go out and people start casting their ballots. Each day after this coming Tuesday means votes potentially thrown away that otherwise could be persuaded to choose the sole viable conservative candidate left in the race.

The ball is in Dan Maes’ court. While he cannot win, in the succeeding several days he holds a lot of leverage over who our next governor will be: John Hickenlooper or Tom Tancredo.