Nearly a quarter of the 100 state lawmakers serving in the Colorado General Assembly this year will have at some point been appointed to a legislative seat by a vacancy committee, a side door into the Capitol that bypasses the normal election process and grants enormous power to partisan panels that can be as small as a few dozen people.
There will be 24 lawmakers serving in the legislature in 2023 – 14 House members and 10 senators – who secured a statehouse seat through a vacancy appointment, including at least nine legislators who will have been appointed in a 12-month period.
The next vacancy appointment is slated to happen Saturday, when a panel of Boulder County Democrats will meet to select a replacement for former House District 12 Rep. Tracey Bernett, who resigned on the first day of the 2023 legislative session. She faces felony charges accusing her of lying about her residence to run for reelection last year in a more politically favorable district.
When a Colorado lawmaker resigns from the General Assembly in the middle of their term or drops out after making the primary or general ballots but before the election takes place, their replacement to represent tens of thousands of Coloradans at the Capitol is filled by a legislative vacancy committee made up of a small group of party insiders. By comparison, each Colorado House district has about 90,000 residents, while each Senate district has about 165,000 residents.
In recent years, vacancy appointments have played a major role in the makeup of the legislature. Lawmakers appointed by a vacancy committee often go on to use their incumbency advantage to be reelected. Some vacancy-appointed lawmakers have been serving at the Capitol for more than a decade.
One of the longest serving lawmakers at the Capitol who originally entered the legislature through a vacancy appointment is state Sen. Rhonda Fields, an Aurora Democrat.
She was appointed by a vacancy committee in 2010 to fill an opening created when an incumbent abandoned her reelection campaign. Fields has served three, two-year terms in the House and is in her second four-year term in the Senate. This year marks her 13th legislative session. Fields’ term ends in January 2025.
The latest person to secure a statehouse seat through a vacancy appointment is Perry Will, a New Castle Republican and former state representative, who on Jan. 8 was selected by a 19-person vacancy committee to serve the two years left in Sen. Bob Rankin’s Senate District 5 term.
Rankin, a Carbondale Republican, resigned Jan. 10, the day after the 2023 legislative session began, saying he and his wife wanted to start a new chapter in their lives.
The 19 people on the vacancy committee that appointed Will represent 0.01% of the 163,126 people who live in Senate District 5.
In House District 12, the Democratic vacancy committee that meets Saturday has 53 people on it, according to CBS4. Two of the members are themselves candidates for the vacancy.
The Legislature passed a law last year hoping to expand the number of people who sit on vacancy committees. It requires each Democratic and Republican vacancy committee to include, at a minimum, a legislative district’s entire central committee, the size of which varies from district to district.
The central committees, which have the discretion to determine who sits on vacancy committees, are made up of precinct captains who are selected at precinct caucuses, every-other-year gatherings where party insiders convene at a set time and place, which can severely limit participation.
Before the law change, there was no set minimum for how many people had to serve on a vacancy committee, and the panels were frequently made up of fewer than 10 people.
Will, for instance, was appointed to his House seat in 2019 by a vacancy committee that had just six members. Will was selected that year to replace Rankin, who was appointed by a vacancy committee to the Senate to replace Republican Sen. Randy Baumgardner, who resigned from his seat.
Will lost his House reelection bid in November but is back in the legislature thanks to his Jan. 7 vacancy appointment.
“I think it’s a fair process,” Will said. “I think I do good work down here and my intentions are good. I’m just here to do stuff for the people.”
Will said he has always strove to represent everyone in his district, whether he was sent to the Capitol by 19 people or 160,000.
“Once you’re elected, you represent everyone in your district,” he said. You don’t just represent the Democrats. You just don’t represent the Republicans. You represent everyone.”
Will told The Sun he plans to run for reelection to his Senate seat in 2024.
Lawmakers appointed to their seats through the vacancy process can serve up to two years in the legislature before voters get a chance to weigh in. That gives them the potent power of incumbency, and they are almost always reelected to their positions.
Take Sen. Nick Hinrichsen, D-Pueblo, as an example. He was appointed to his seat in February 2022, replacing Senate President Leroy Garcia, D-Pueblo, who resigned to take a job in the Department of Defense. Hinrichsen then won a close election in a swing district Nov. 8.
There have been only a few examples of vacancy-appointed lawmakers not winning reelection.
State Rep. Judy Reyher, a southeast Colorado Republican, was appointed to a House seat in 2017 and then lost in the 2018 election. Republican Kurt Huffman was appointed last year to represent House District 43 after the end of the 2022 lawmaking term. He never actually served in the legislature before he lost by 400 votes in the Nov. 8 election to Rep. Bob Marshall, a Democrat from Highlands Ranch.
Democratic Sen. Rachel Zenzinger of Arvada was appointed to her seat by a vacancy committee in 2013, but after serving a year in the legislature lost her reelection bid in 2014. She ran again for the seat in 2016 and won and was reelected in 2020. Zenzinger is now chair of the Joint Budget Committee, the powerful panel that drafts the state budget.
State Rep. Lorena Garcia, an Adams County Democrat, was appointed to her seat Jan. 4 following the resignation of former state Rep. Adrienne Benavidez just before the start of the 2023 legislative session. Benavidez was reelected in November before deciding to resign, which means Garcia will serve a full two-year term before the voters in House District 35 get a chance to decide whether they want her to represent them.
“The vacancy process is terrible,” said Garcia, a community activist who leads the Statewide Parent Coalition. “It’s just absurd. I felt like I was going through a coronation process.”
Garcia said there were 40 people on the vacancy committee that voted her into office. That represents 0.04% of the 89,889 people living in her district.
“It wasn’t an inclusive process,” Garcia said, explaining that most people don’t know who their precinct organizers are, let alone how to contact them if they want to have input on the vacancy process.
Only five states use a vacancy appointment process similar to Colorado’s. In the rest of the country, legislative vacancies are filled through special elections or by appointments made by county commissioners or the governor.
Ohio is an exception. In that state, the legislature fills its own vacancies.
“It’s flawed, but it’s the best flawed process we’ve got.” Morgan Carroll, the outgoing chairwoman of the Colorado Democratic Party, said of Colorado’s legislative vacancy appointments.
Carroll said gubernatorial appointments leave the decision up to just one person, as opposed to a group. She also said special elections are problematic because they are costly and favor wealthy candidates.
Additionally, Colorado’s lawmaking term each year lasts just 120 days. It would be difficult, if not impossible, to facilitate a special election in that time frame.