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

by | 5:19 pm, October 8, 2010 | 11 Comments

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.

Category: Colorado Politics, Liberty, PPC
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Comments

  1.   Rip57
      October 8th, 2010 @ 8:38 pm

    So… why couldn’t the vacancy committee select Tancredo? Is there anything that precludes a candidate from representing more than one party? This was fairly common practice in NY when I lived there, where the same candidate would often be on both the GOP and Conservative Party tickets.

  2.   Cindy L.
      October 8th, 2010 @ 8:43 pm

    Do you remember when Tancredo said that God had basically given him permission to run for two more terms after he said he was only going to run for 3? Maes should be afforded the same permission and be allowed to run his race without this constant challenge to his candidacy. He’s won 4 times and two by record numbers. All this attack by Tancredo and his supporters is just smoke screens. And the polling has got to be done in the heart of Tancredo and Hickenlooper’s support base, in my opinion

    You all keep this silly fantasy that Maes the duly elected Republican… who with that alone has a 15% advantage (according to Dick Morris) and if you add that to his 16% that could run Maes at the very least at 31%. If Tancredo were the one to drop out Maes with the Republican advantage would win. You all know that over 80% of Republicans will vote Republican. If a win is what is wanted by Tancredo supporters then let the Republican run solo and vote for Dan Maes for Governor!!!

    It’s just that simple. Don’t gloat ahead of time. The race for governor is not over yet.

  3.   Ben
      October 8th, 2010 @ 8:44 pm

    I don’t see why not. It would seem then that the votes for Maes would count for Tancredo. But this truly is a question for someone more expert than I.

  4.   Ben
      October 8th, 2010 @ 8:56 pm

    Cindy, I have no idea what you mean. Frankly, your denial of the obvious (i.e., the consistent results of four different respected pollsters) undercuts your whole argument. However warmly you feel toward Dan Maes, it is wholly beside the point of who actually has a chance to win the Governor’s race at this point.

  5.   Kevin J Jones
      October 8th, 2010 @ 11:01 pm

    I too thought quickly about the scenario where Tancredo is named the replacement candidate and picks up both Maes voters and ACP voters. It seems an obvious path to defeat Hickenlooper, if that is one’s goal.

    It could also help preserve the GOP as a non-Third Party, couldn’t it?

  6.   Evan
      October 9th, 2010 @ 3:21 am

    Maes is going to stay in the race so this is all just hypothetical speculation really. However, I’ll bite since something needs to be made perfectly clear:

    If Dan Maes stays in the race – Tom Tancredo loses and John Hickenlooper is elected governor.

    If Dan Maes drops out – Tom Tancredo loses and John Hickenlooper is elected governor.

    I can’t stress that point enough. It is shocking to me how many people actually thing Tancredo can win the race with or without Maes being in the race. Tancredo’s high water mark is 35% in polling while Hickenlooper hasn’t been below 43% in any recent polling. This, despite that fact that there has been essentially ZERO negative advertisements run against Tancredo. The second that Hickenlooper, the Colorado Democratic Party, et al. actually believe Tancredo is a threat they will start to pour money and resources into ensuring he is toast.

    Hickenlooper has over $1 million of ad space reserved from now until election day, 8 TIMES the money Tancredo has total. That ad space can very quickly be changed from pro-Hickenlooper to anti-Tancredo. That is just Hickenlooper funds mind you. The DGA would also pour resources into Colorado if necessary to ensure they maintain the lead in one of their few pick-up opportunities.

    Moving quickly back to the point of Maes dropping out not allowing Tancredo to win: Most people would admit that it is silly to assume every single Maes voter would move to Tancredo if Maes dropped out. However, only 1 of the 4 recent polls has the combined Maes/Tancredo numbers above Hickenlooper by a rate outside of the margin of error. Remember, this is before ANY negative advertisements against Tom and before $1 million of pro-Hickenlooper ads. This isn’t even mentioning the fact that Tancredo isn’t a great candidate to begin with.

    The fact of the matter is that, barring a monumental shift (and no, Maes dropping out isn’t that) in the landscape, Hickenlooper will be elected governor. Voters should focus their efforts on more winnable races such as legislative races. There is a legitimate (but by no means easy) shot at flipping the state house and senate and that is something worthy of time and attention.

  7.   Mike B
      October 9th, 2010 @ 9:01 am

    What I think is going to happen, regardless of what Maes does, is that Dan’s supporters will vote for Tancredo once they are in front of their ballot. Sure in the polls they are supporting Dan but they would rather have Tancredo than Hickenlooper. I really don’t think they are going to throw their vote away like that. Sure there are some people that will but a majority are smarter than that. Yeah the American voter is dumb, but they aren’t that dumb. If I didn’t think Tancredo had a shot I wouldn’t vote for him, I probably wouldn’t vote for Governor at all. But I think what I outlined will happen and it will be enough to put Tom on top. I am not a huge Tanc fan but I am voting for him, I want a conservative in office even if I don’t agree with everything he stands for.

  8.   Ben
      October 9th, 2010 @ 12:55 pm

    Evan, I’m entirely sympathetic to the view that conservatives should focus on state legislative races, but that doesn’t preclude working on the governor’s race, too — especially when re-districting is at stake.

    Unfortunately, your argument hasn’t been tested in the polls. A hypothetical two-way matchup between Hick & Maes has the mayor winning by 14 points. If you have seen a hypothetical two-way between Hick & Tancredo, please point me to it.

    Mike B, I’d like to believe you’re right. But the evidence isn’t there either. We shall see.

  9.   Rip57
      October 9th, 2010 @ 6:17 pm

    Those GOP party bigwig smart money guys did us no favors by persuading Josh Penry to exit the race. Think of the position we’d be in if these smart guys hadn’t been too clever by half. The least they could do now is find out exactly what would motivate Dan Maes to get out of the race and FREAKIN’ GIVE IT TO HIM!

    If that means a cushy job, paying off his campaign debts, mortgage, and kids’ college education, praising him as a true statesman and the finest Republican since Abe Lincoln, or groveling at his feet and licking his boots live on 9 News at 10, they need to do it if it will get him out of the race. These self-appointed king makers got us into this mess, and unfortunately, we need them to get us out.

    If Maes gets out AND Tancredo is appointed as the GOP candidate AND the big money guys throw big money into the campaign then we might, we just MIGHT, have a chance.

    Short of these miracles (or an unlikely Hick implosion) we have NO chance at all.

  10.   Elliot
      October 10th, 2010 @ 3:13 am

    Is there a bylaw that requires Republicans to nominate somebody if a nominee steps aside? Can that bylaw be waived? What is the waiver procedure?

  11.   mary myers
      October 11th, 2010 @ 4:10 pm

    most important issues he stands for are the Israelites, Pro-Life, marriage between a man and a woman. These issues are important to keep our country on good moral standing and Israel is our most important ally, as well as being God’s Chosen and we are to honor what God wants. This is a Judeo-Christian Nation.

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