Tuesday, June 4, 2013

Colorado: Morse and Colorado's unique resignation angle

As mentioned earlier, the Colorado state Senate President John Morse recall runs into a unique provision (at least for recall states) that could allow the Democrats to keep the Morse seat without a recall. However, the provision requires some explanation: The trick would only works if Morse resigns before the recall is certified to go to the ballot, and a stray sentence might limit it even further.

Here's how it appears to work. Colorado's Constitution (Article V section 2)  requires that any state legislative vacancy be filled by a "member of the same political party..." Colorado fills its vacant state legislate seats by appointment by the county committee, not by special election. Therefore, if there is a resignation, a Democrat must be selected to fill the seat. But timing the resignation is critical.

The recall provision has a separate provision that allows an official to resign within five days after the recall has been certified (the legal term is: sufficiency of the recall petition shall have been sustained). This is a standard provision in recalls throughout the country. It is designed to allow the candidate to get out of the race. We see resignations happen occasionally, though most recall resignations occur before they get to the submission stage. If the official resigns after five days from the sufficiency finding, the recall goes forward and the vacancy spot-filler is ousted. For Morse, that means he likely has over a month to decide to resign (15 days for certification, 15 days to protest five days after certification).

However, there is also a strange provision (Article XXI , Section 3) that says:  "If such officer shall offer his resignation, it shall be accepted, and the vacancy caused by such resignation, or from any other cause, shall be filled as provided by law; but the person appointed to fill such vacancy shall hold his office only until the person elected at the recall election shall qualify.". I would imagine that it is referring to a post-five-day period resignations, but I'm not sure if that's clear, and it certainly could be the subject of lawsuits. 

What is clear is that a resignation would have to happen soon. All reports suggest that Morse will not resign. The benefit of such a resignation would be very limited. Currently, the Democrats hold a 20-15 advantage in the Senate, so a Morse loss would not deprive them of a majority (even if the Angela Giron recall would get on the ballot and succeed, the Democrats would still have a majority).Politically, the benefit would also be limited in 2014. The party's candidate in the seat (especially if it's the same person who would replace Morse) could face a backlash for gaining the office through what could be presented as an underhanded means. From what reporters have told me, Morse does not look like a cut-and-run guy, especially in a district that he has won twice. Also, as we've discussed before, a recall could actually boost his career.

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