When Colorado’s state legislature reconvenes in January, nearly a quarter of its 100 members will be lawmakers who owe part of their political rise to an appointment by a small vacancy committee.
The insular process is one that legislators and political observers alike say is opaque and anti-democratic. Called when sitting representatives or senators leave office, vacancy committees are made up of partisan voters — typically a few dozen strong — who select the replacements to represent districts of up to 169,000 people until the next regular election.
The two major parties have made seven vacancy appointments in the past 12 months alone, with an eighth scheduled for Monday.
“I’m against them, after going through it and seeing it play out,” said Rep. Ron Weinberg, a Loveland Republican appointed to the state House by a vacancy committee last year. “I think it hurts the community.”
The committees are a tool born of efficiency, frugality and speed in a state with term limits that help make vacancies common. Public funding for more elections, meanwhile, is not. Through the committees, departed legislators are replaced within a month, without a special election or public campaigns, and under state law, the governor can step in and appoint a replacement if a committee doesn’t act in time.
Outside Colorado, states most often require legislative vacancies to be filled by calling special elections — which is also what the U.S. Constitution requires when a U.S. House seat is vacated.
While fast and cheap, the vacancy committee model is often poorly understood by the general public. It often rewards insiders and those willing to show up to party events — a particular problem when participation is low. Only four other states use a similar system. The state constitution and laws guide the process, but the party of the departing legislator controls the vacancy committee itself.
As a result, the growing number of unaffiliated voters in Colorado are largely shut out.
In a northwest Denver area district home to more than 87,000 people, 39 yes votes were enough to send Rep. Tim Hernández to the Colorado House of Representatives. Weinberg needed only 23 to win his seat. For Rep. Lorena Garcia of Adams County, a couple dozen voters secured her spot in the Capitol.
“I often talk about how my former representative, Adrienne Benavidez, was elected with 15,000 votes, and I was elected with 24,” Garcia said. “How is it that 40 people in a district with 80,000 people in it — how is that at all a democratic process?”
“I don’t like the process, either”
The voters on the vacancy committees are usually active members of whichever party controls the legislative seat. Low participation in internal party processes often consolidates power into fewer hands, officials said.
Both Hernández and his chief opponent, Cecelia Espenoza, were officers in the Democratic Party in northwest Denver. The vacancy committee that selected Hernández in August largely was made up of voters whom he and Espenoza had selected in the months prior.
Both had known that a vacancy committee was likely: The legislator holding the seat, then-Rep. Serena Gonzales-Gutierrez, ran for Denver City Council and won her race in April.
Several voters on the 69-person committee, according to Hernández and Espenoza, had to register as Democrats so they could participate. Both said the other tried to influence the committee’s makeup for their own benefit, and Hernández said he won because he engaged more people.
“The entire process is undemocratic,” said Hernández, who advocates for special elections as a replacement. “ … I don’t like the process, either.”
Of the 23 sitting legislators who at one time received a vacancy appointment, some had previously won a general election to the Capitol before. Several have won reelection since. Still, the sheer number of appointments was striking to Colorado State University political science professor Robert Duffy, who heads the legislative internship program at the Straayer Center for Public Service Leadership.
“Nearly a quarter of the legislature is a fairly substantial number, right? Especially for a body that’s supposed to be a representative body,” Duffy said.
Offsetting the committee system’s speed, critics say, are the costs of reduced transparency, limited public vetting and narrow voter inclusion. There also are questions, sometimes, about appointed lawmakers’ ability to represent their new constituents.
“We have every confidence that lawmakers who enter the legislature this way are able to earn the trust of their district and represent the interests of the voters in their district,” said Aly Belknap, the executive director of Colorado Common Cause, an election-advocacy group.
“Even so,” she added, “we know that this process doesn’t meet the standards of an inclusive and representative democracy because vacancy committees entrust this (decision) to a fraction of district voters.”
Concerns about voter representation
Duffy said the appointment process opens itself up to concerns about representation: Who are the committee members, a voter might ask, and why did they vote the way that they did? Was it some kind of backroom deal or cronyism that secured one of the 100 seats under the Gold Dome for an appointed legislator?
“The people on the vacancy committees are party activists, who necessarily aren’t representative of the public as a whole,” Duffy said.
Ideally, he said, committee members would look for someone who can represent the district well and keep the seat in the next election. That always-looming next election should serve as a guardrail against committees leaning too far toward ideological purity, he said, lest the party risk losing the seat — though the power of incumbency may reduce that risk, especially in districts with strong partisan tilts.
Shad Murib, chair of the Colorado Democrats, praised his party’s vacancy committees, even as he took the position that they were too undemocratic for how widespread they are. Colorado GOP Chairman Dave Williams did not respond to requests for comment on the practice.
“You’d expect this system to breed the furthest of the extremes. You’d expect people most involved in party activity are the furthest left or the furthest right,” Murib said. “We’ve gone to pains to make sure people on our vacancy committee are thoughtful of that.”
He also said he tries to set a pro-transparency tone by advertising the committee openings early and making sure interested candidates get lists of the decision-makers.
“I think the very best way for a public official to assume office is to be elected by the public,” Murib said. “That said, the vacancy committee process is really as public and transparent as the party wants it to be.”
He and others raised the issue of unaffiliated voters’ participation, since they make up more than four in 10 voters in Colorado and are the largest voting bloc in the vast majority of House and Senate districts. They can seek a spot on a vacancy committee only if they decide to affiliate with the party.
On the pro side, vacancy appointments help keep communities represented. The 2023 session was about to begin when then-Rep. Tracey Burnett, a Boulder Democrat, resigned in early January. Within a month, her replacement had been appointed and sworn in.
Half of states use special elections for vacancies
Twenty-five states fill vacancies with a special election, according to an analysis by the National Conference of State Legislatures. Eight others allow county commissioners to pick replacements — giving the power to fewer people than typically sit on vacancy committees, though commissioners have the backing of public elections.
In 11 states, the governor selects interim legislators, while remaining states use vacancy committees or other processes.
Duffy, the political science professor, says vacancy committees aren’t ideal. But in his view, they may be better than the alternatives.
Reps. Garcia and Weinberg, the two recently appointed House members, said they wanted to improve the current system but not upend it. They pointed to the cost of special elections and the efficiency of vacancy committees.
Garcia said she wanted more transparency around who serves on the committees, so that rank-and-file voters in the district know who’s representing them and can weigh in more easily. Weinberg agreed and said there needs to be enough active voters participating in the parties’ events and caucuses.
Rep. Bob Marshall, a Highlands Ranch Democrat who beat an appointed Republican in November, expressed concern that vacancy appointments give legislators an easy path into office — and often they can parlay that into a political career.
He’s weighing a bill that would require anyone appointed to a seat to sit out the next general election, serving as a true interim representative or senator. They could run again later, he said, but not as an incumbent.
He acknowledged his idea might blunt the number of people interested in what would be a short-term, lame-duck legislative tenure.
The high number of once-appointed legislators in Colorado has a likely nexus with term limits, Duffy suggested, as lawmakers look for their next opportunity as they approach the maximum — at base, two four-year terms in the Senate and four two-year terms in the House.
Former Senate Majority Leader Dominick Moreno had a year of service remaining when he resigned to join Denver Mayor Mike Johnston’s administration in August. Former Senate President Leroy Garcia left during the 2022 legislative session — his last, due to term limits — to join the federal Department of Defense.
Lorena Garcia cited the economic demands of serving — at best, legislators are paid less than $44,000 a year — as another factor. It’s technically a part-time job, but the legislative session in the winter and spring demands full-time attention.
“Until we figure out a way to make serving easier for folks to commit to their full terms,” she said, “we’re kind of setting ourselves up for this.”
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