With close to a third of lawmakers being appointed to office instead of elected by voters, the Colorado General Assembly likely holds a record that few state legislatures would want. 

A Colorado Politics analysis showed that of 24 out of the 28 current state lawmakers appointed by vacancy committees, fewer than 40 party insiders on average picked the individuals who would represent the people at the state Capitol, instead of the 89,000 residents of a House district or the 165,000 people who live in a Senate’s political boundary. 

The 28 lawmakers who gained their positions — one legislator was picked twice to two different seats for a total of 29 appointments — through a vacancy go back all the way to 2010, when now-Sen. Rhonda Fields of Aurora was chosen by a committee to run in the general election after her predecessor announced she would not vie for the seat again. A vacancy committee selected Fields because the primary had already passed.

House Speaker Julie McCluskie of Dillon said sometimes the job is simply not a good fit.

“When you look at the world of politics, the level of vitriol, conflict and disrespect at the national level — that influences the appetite for anyone to pursue a career in the political world,” she said.

The reasons a lawmaker steps down or leaves a seat empty can vary. In Colorado, three lawmakers died, others resigned to take other jobs, and two Democrats cited the vitriolic environment in the House as a reason for their early exit.

Regardless of lawmakers’ reasons for leaving, a small group of party insiders gets to pick their replacements, as opposed to a larger, more politically diverse population deciding who gets to crafts policy at the state Capitol, leading some to decry the system as “blatantly undemocratic.” Others maintained that while it’s imperfect, the alternatives are no better, and it’s important that a district gets immediate representation at the state Capitol, where policymakers are working on legislation big and small in just 120 days.

Political leaders recognized the issue.  

“I’ve heard concerns from across the state, given the number of appointment, that these seats are filled without wider opportunity for input from the district,” McCluskie said. “There’s also the tension around representation. If someone were to resign today or unable to continue fulfilling the requirements of the job, going months means missing most of the session” with a special election.

“Is there another process that collects more input from the district? How do we do that quickly when we’re in the throes of session?” she asked. 

A decade of vacancies

During the 2022 election and 2023 session — and the months that followed — Colorado saw the greatest number of lawmakers in the state’s history step down from office, putting the vacancy committees to work.

Consider the following:

• Of the 29 appointed seats at the Capitol, eight came from the 2022 election and into the 2023 session. Six seats were vacated in the House and two stepped down in the Senate. 

• Seven of the eight lawmakers who gained their seats through vacancies since the 2022 election have yet to face voters. They will do so in 2024.

• Eighteen of the 29 lawmakers have gained their “elected” seat through vacancy in this decade alone.

Once a seat is vacated, the number of votes it takes to win a House seat through committee is fewer than some may think.

A lot fewer. 

In 2019, when Rep. Bob Rankin of Carbondale was appointed by a vacancy committee to move to the Senate, Republican Perry Will of New Castle only needed four votes from a six-member committee to replace him in the House. 

In 2020, Will was elected to the House District 57 seat, but lost his reelection bid in 2022 to Democratic Rep. Elizabeth Velasco of Glenwood Springs.

Despite the loss, Will was not out of the General Assembly for long. Weeks after the 2022 election, Rankin resigned from the state Senate and Will was appointed, securing 17 votes from the 19-member vacancy committee.

Will has decided not to run for election in 2024, instead vying for a seat on the Garfield County commission.

Indeed, replacements have received fewer than 10 votes in some cases to take over a House seat.

Both Democratic Reps. Mary Young of Greeley and the most recent appointee, Julia Marvin of Adams County, won their vacancy elections through appointment votes from small party-line committees.

The largest vote total for any current lawmaker who won an appointment from a vacancy is 95, which occurred when Sen. Chris Hansen of Denver was appointed to replace Sen. Lois Court in 2020.

The committee to appoint Hansen was comprised of 120 members. Only three other vacancy committees have seen more than 100 people voting. 

The issue of how vacancy committees pick lawmakers has become such a troubling problem that people both inside and outside of the state Capitol are taking notice.

Some are planning to take action.

What about special elections?

Only five states — Colorado, Illinois, Indiana, New Jersey and North Dakota — allow party insiders to pick replacements when a lawmaker steps down.

That task falls on a vacancy committee from the same political party as the lawmaker who is resigning. Along party lines, a vacancy committee is made up of the central committee members in a House or Senate district. Central committee members include precinct committee persons and officers. 

In other parts of the country, the appointments are made by governors (11 states) or the board of county commissioners (eight states), according to the National Conference of State Legislatures. 

Ohio uses a hybrid approach.

The remaining 25 states hold special elections to elect replacements.

Could that be where Colorado is headed?

“Yes,” says Kent Thiry, former CEO of DaVita and the backer of a measure that he hopes will appear on the November ballot to change the state’s vacancy process.

Thiry told Colorado Politics the vacancy system process looked sensible 20 years ago. However, with almost 30% of lawmakers starting with an appointment, the system now creates “tremendous incentives for members to sell their seats,” he said.

It gives a small group of party insiders the keys to pick a successor, who then gets all the advantages, such as free publicity, to run as an incumbent later, he said.

“It’s blatantly undemocratic and gets in the way of allowing people to choose their elected representatives, not the party,” Thiry said.

Thiry said he believes going to a special election, as half the states already do, is important in strengthening democracy.

The ballot measure concept Thiry is backing would give some flexibility in how a vacancy is handled through a special election.

If the lawmaker resigns close to a general election, then a special election is unnecessary, he said. If the resignation comes after the legislative session is over in May, for example, people can save the money and wait until November.

 “There should be some judgment applied in order to forego a special election,” he said.

One option being discussed is holding a special election specifically when a lawmaker resigns either during the session or right before it, Thiry said. Another option could be for the state’s governor to make the call on when a special election is wasteful and inappropriate.

A special election could be held as soon as 60 days after a resignation, Thiry said, noting it would at least give a district representation for up to half of the legislative session.

Changing the state’s policy could actually decrease the trend of lawmakers stepping down before their term expires, Thiry said. 

However, special elections come at a cost.  

Special elections at the congressional level are expensive, are plagued with low voter turnout and can be confusing, according to a Business Insider analysis that looked at 120 special elections that have been held in the last 20 years after federal lawmakers resigned or died in office.

Thiry downplays the argument over cost.

“Elections do cost money,” he said. “But if you’re not careful, you’d eliminate all elections because they cost money. In a democracy, we’ve already decided elections are worth the expense.”

The alternative is to have someone else choose the officials and not the people, he said.

“The fact that there’s a tiny expense per vote or person is a price that democracies decided long ago was worth it, compared to party insiders who pick who govern,” Thiry said. 

Backers of the ballot measure point to a Keating Research poll released in December that shows not only are voters aware of the current vacancy process, they don’t like it.

The survey was comprised of 1,000 likely voters in the November 2024 election, including 650 participants answering questions by phone and 350 online. The worst-case margin of error is plus or minus 3.1 percentage points. 

The poll, which was conducted from October 21-26, 2023, said 61% of respondents supported a constitutional ballot measure that would eliminate the vacancy system and replace it with a special election. An estimated 57% said they would vote for it, just above the 55% required to approve a constitutional amendment.

Thiry said when people see how common the vacancy process has become, it creates anger and frustration. People pick up on the pattern and realize the disproportionate influence held by some in deciding who gets to run, he said. 

“I’m a huge believer in the judgment of the people,” he said.

Celeste Landry of Boulder offered several ideas, including a “special citizens’ election,” which she described as an “antidote” to conducting special elections, as Thiry proposes.

Landry has been on three types of vacancy committees — for a legislator, county commissioner and the state board of education. She was also chosen as a replacement elector in the 2016 presidential race for Colorado, the result of a vacancy of its own, when an elector attempted to vote for someone other than Hillary Clinton, who won Colorado.

Her first idea is for a contingency election, a type of special election for the seat that could become vacant. This would apply to lawmakers who decide to run for other offices outside of the legislature, such as Congress or county commission, for example. But it would be open to candidates for all parties, not just from the lawmaker’s party. 

The second is for a “special citizens’ election,” under which voters would determine who finishes the elected official’s term of office in the next available coordinated election, which could be November or even May, when some city elections take place.

Under this scenario, a vacancy committee would make the appointment but the electorate would either affirm or reject that decision.

“I would love for a legislator to carry a bill on this, but I don’t see that happening,” Landry told Colorado Politics.

The domino effect 

While lawmakers believe the system is imperfect, they believe alternative options are not much better. 

Rep. Kyle Brown, D-Louisville, gained his seat from a vacancy committee just over a year ago. His predecessor, Rep. Tracey Bernett, resigned in a plea deal over falsification of her residency to qualify to run for reelection. 

“Even members who come through vacancy eventually have to stand for the voters,” Brown said, highlighting that most of the 29 seated through vacancy have since been elected.

“I think the vacancy process is an imperfect tool,” Brown said. “It allows us to fill vacancies quickly so that communities are represented quickly because our legislative session is so short. It’s an imperfect system that is at least enabling us to be represented.”

The night before the 2019 legislative session started, Rep. Cathy Kipp, D-Fort Collins, won her vacancy appointment with a tie-breaking vote.

“It was the most terrifying night of my life, she said, half-smiling. “I really wanted this.”

Kipp’s appointment was part of a domino-like effect that frequently follows the vacancy process.

Sen. John Kefalas was elected to the Larimer County commission, creating a vacancy in the Senate. 

Rep. Joann Ginal won the vacancy appointment, creating another vacancy in the House, and that’s where Kipp came in. 

There are at least six other examples of the domino effect among the 28 replacement lawmakers. A state senator resigns, a member of the House steps into the seat and another vacancy is created for another appointment in the House.

And, with each committee appointment, the winner gains the added benefit of being labeled an “incumbent” in the election, even though they were never elected by constituents.

But is it the right process?

It has upsides and downsides, Kipp told Colorado Politics.

On the plus side, it gets someone in quickly to fill that roll and represent the people, she said.

That’s important because of the relatively short duration of the legislative session at 120 days, a limit set in the state constitution.

Special elections would take months, she said, questioning just how interested voters would be in such elections. 

Kipp also wondered if it’s worth it — if the process does not really “broaden the electorate.”

“I was really concerned about [the vacancy process] when I was first elected. Fifty-seven people made that decision,” she said. “It’s a challenge and I don’t know the right answer. I don’t want people not to have someone representing them at the Capitol, and how you walk that line to make sure more people are involved in that process.”

Kipp’s comments referenced another, more systemic problem with the vacancy process — low participation.

Rep. Ron Weinberg, R-Loveland, gained his seat initially through the vacancy process after the unexpected death of House Minority Leader Hugh McKean days before the 2022 election. 

Now, Weinberg is working with Democratic lawmakers, side by side with the local parties, to come up with a solution.

“We can’t just change the system without being well organized on how we do it,” he said. “I disagree with the appointment process.”

He added that the the system is built to work and is effective if everyone is engaged and involved” — from precinct committee people to district captains to area coordinators to the board.

Under that scenario, a functioning group that is truly engaged exists, he said.

That is not what’s happening, he said, adding caucuses are not engaged and there are vacancies within the vacancy committees. 

“When you have those people missing, the representation isn’t there,” especially if the vacancy committee is missing 70% of its membership, he said. 

“When the system works at an 80% to 90% way, then I agree with it. But right now, it’s not,” Weingberg said. “We need engagement in the system for it to be functioning, and when you don’t have a functioning system, you have a small group of people who know how much power they have, they don’t engage anyone else.”

Take House District 6 in Denver, for example.

The Democratic HD 6 committee website shows 83 possible members, but it also shows 29 vacancies, including on the executive board. 

Large vacancies on vacancy committees also could provide incentives for potential candidates to “stack” those panels with supporters in order to gain the seat.

Among those Weinberg is talking to is Democratic Rep. Bob Marshall of Highlands Ranch, who beat Republican Rep. Kurt Huffman by just 405 votes in 2022, the closest General Assembly race that year. Had Huffman won, he would have been another lawmaker to secure his seat initially through the vacancy process.

Huffman was appointed to replace Rep. Kevin Van Winkle, who was appointed by a vacancy committee to serve out the last few months of Parker Republican Sen. Chris Holbert’s term.  

Huffman never cast a vote as a lawmaker. Van Winkle is now running for Douglas County commissioner.

“It’s not ideal at all,” Marshall said. “If you have a democratic form of government, having 30% chosen by a cloistered group of individuals runs counter to that entire idea or ideal.”

He said he has even heard that people give up their seats when they are term-limited and an appointee becomes an incumbent. 

Marshall indicated even allowing the governor to make those appointments would be better, since the governor is elected and held accountable by all the voters. 

“These vacancy committees — and it’s not a knock on the lawmakers who come here and could win on their own merits — the perception of insiders making the decision for the people undermines faith and confidence in the government. That’s dangerous in the long term,” Marshall said.

Marshall told Colorado Politics the gold standard is a special election, but then there are issues of cost, an off-cycle election that doesn’t draw good voter turnout and the time involved.

Marshall is no fond of the current system, and he’s hoping to persuade lawmakers to sign onto a ballot referral that would also shake up the vacancy appointment process.

His idea? Anyone appointed to the General Assembly through vacancy would be ineligible to run for the seat in the next general election in what he calls a true interim appointment.

The referred measure would be a constitutional amendment, with a requirement of 55% voter approval.

The idea is simple and blunt, he said.

He heard arguments against it saying no one would want an interim appointment.

But he dismisses that counterpoint.

“You would find people, even after session, for five months, for the title and a little pay,” he said, adding maybe it’s someone who can handle constituent services. 

He believes lobbyists, former legislative aides or even former lawmakers who’ve been around for a long time could handle a few months. 

“The issue is that people weren’t complaining about vacancy appointments when it was five or six [appointments],” Marshall said. “The problem is the creeping power of incumbency to keep the seat long term. When it gets to 29 or 30 and growing, it’s because of the power of incumbency.”

And both political parties have figured that out, he said. 

Marshall recalled one conversation in which he was told a constituent wanted to be in the legislature but didn’t want to run for election.

“I want a vacancy appointment!” the constituent said.

“People are starting to think it’s the norm,” Marshall said. “It’s not.”