Shennanigans in House district 51 – McNaught May Naught Be Eligible

(Note: We rewrote the headline so it would fit in one line – promoted by Colorado Pols)

The race to replace Rep. Don Marostica took an illegal turn today. Kevin Mcnaught who announced he is seeking the HD 51 seat has run into a constitutional problem.

Article 5, Section 4 of the Colorado Constitution provides the “qualifications of members” for the Colorado state house and senate. That section states:

“No person shall be a representative or senator who shall not have attained the age of twenty-five years, who shall not be a citizen of the United States, and who shall not for at least twelve months next preceding his election, have resided within the territory included in the limits of the district in which he shall be chosen.”

Unfortunately for Mr. McNaught, he “resides” in Berthoud, Colorado outside “the territory included in the limits of the district.” He owns a rental property within the district which at one time he lived in and apparently has kept his voter registration address at the address for the rental property but he does not reside there.

Therefore, he does not reside within the geographic limits of the district and he has not resided within the district for the previous twelve months.

Instead of asking the Secretary of State for a ruling, Mr. McNaught contacted the Clerk of the Colorado House of Representatives to obtain her opinion while specifically contending the above constitutional provision only applies to regular primary and general elections but not to vacancy elections. Under his interpretation, the vacancy committee in HD 51 can select someone from Cortez to represent Loveland in the General Assembly.

Needless to say, the Clerk of the House does not have any jurisdiction over the vacancy election. It is the Secretary of State who must certify all elections to the respective houses of the Colorado General Assembly.

Even more importantly, the Colorado Constitution does not carve out an exception for vacancy elections.  The mandatory qualificaitons provision applies to all elections, including vacancy elections.

Mr. McNaught isn’t qualified constitutionally to represent HD 51.  

14 Community Comments, Facebook Comments

  1. Republican 36 says:

    Colorado Revised Statutes Section 1-12-203 – Vacancies in general assembly states in subsection 3(a):

    “The vacancy committee, by a majority of its members present and voting at a meeting called for that purpose and open to the public, shall select a person who possesses the constitutional qualifications for a member of the general assembly . . .”

  2. This would probably disqualify him – and may open him up to other issues if he’s been voting from somewhere he’s not supposed to.  I’d expect at least a review by the clerk reviewing his registration.

    • Republican 36 says:

      When Rep. Welker was forced to resign, Mr. McNaught wa shis hand picked replacement but Don Marostica defeated him.

    • Middle of the Road says:

      back in 2006 when Welker “retired”. Welker personally tried to shove him through the nominating process but just being associated with Welker kind of hurt McNaught in the process.

      He lost to Marostica but the right wing faction of the Larimer County GOP loves the guy and he had the backing of quite of few old timers in the county party that also were big Musgrave supporters.

    • twas brillig says:

      Looks like McNaught got the ‘residence/mailing address’ formula backwards.

      I’m curious what a lawyer would make of this, but I think Kevan is breaking the law, and the county clerk is legally required to kick him off the rolls:

      Colorado State Code, Title 1:

      1-2-204.  Questions answered by elector. (1)  The county clerk and recorder shall ask each eligible

      elector making application for registration, and the elector shall answer, the following:  

      (a)  Whether the elector intends to claim the elector’s present address as the elector’s sole legal place

      of residence and, in so doing, to abandon claim to any other legal residence

      (d)  Whether the elector is aware that a violation of the self-affirmation the elector is about to make is

      a criminal act under the laws of this state and will subject the elector to the penalties provided by law.  

      (3) (a)  If the county clerk and recorder has reasonable cause to believe that an applicant has falsified

      any answers to the questions set forth in this section, the county clerk and recorder shall certify the same

      to the district attorney for investigation and appropriate action.  

      (b)  If the elector states that the elector’s present address is the elector’s sole legal residence and that

      the elector claims no other place as the elector’s legal residence and if the elector meets the qualifications

      of section 1-2-101, the county clerk and recorder shall proceed to register the elector.  

      (c)  If the elector does not comply with the requirements of subsections (1) and (2) of this section, the

      county clerk and recorder shall not register the elector.  

      • skytravlerdon says:

        I don’t understand how  McNaught  can be allowed by the Republican party to attend the meeting last week and receive votes in the first round.  He bowed out after only receiving 8 votes, but after everything I read here on how he broke the law by throwing his hat in the ring when he wasn’t living in district 51. How can we as voting Republicans allow someone to do this to our party. It makes us  all look like fools.  I agree that someone needs to look into this and let everyone know the results.

      • skytravlerdon says:

        It would be nice to see this followed up on.  If you don’t comply with the requirements and run anyway. I agree if he broke the law by running the DA should investigate this.  I would be interested to see if anyone does a follow up story.  The Republican party has enough trouble without this kind of thing happening.

  3. abraham says:

    Don’t I remember some sort of residency issue with Gil Romero when he was in the House?  Something to do with different residences in different districts, but it seemed it got resolved in his favor.

    • I don’t know about Romero, but you can legitimately maintain the qualifications for residence in multiple locations…  This makes things confusing, and opponents can tag you for living “out of district”, but it’s all legit.

      It seems McNaught may have failed to meet the residency requirements altogether.  He can’t really claim to live in the rental property if he’s not actually living in it…  IMHO, this is less likely to resolve in McNaught’s favor.

  4. Jambalaya says:

    and do the statutes define “resides”?

    • Each state sets residency requirements.  They’re usually loose enough that you can “reside” in multiple locations – say, Vail for the winter and Seattle for the summer.  You need to declare one location a primary residence – on which you pay primary residence taxes and where the IRS comes to find you – and depending on state voting regulations, you may or may not be able to designate a secondary residence as your choice for voting residency…

      If I read the statute correctly, any valid residence will do to qualify a person for office in Colorado.

  5. Taxosaurus says:

    Three of the six legislators serving in Larimer County soon will have been appointed, not elected. Kevin Lundberg was appointed to the 15th SD, BJ Nikkel was appointed to the 49th HD, and now we have the new HD51 rep, who may well be Tom Buchanan if Kevan McNaught’s run is all for naught. That’s an interesting happenstance since we have such frequent elections. Since 2010 may be a “comeback” year for Republicans in Colorado, might that mean primaries to find the strongest candidates in the 49th HD and the 51st HD in spite of the appointments? I think Harvey Mandel is looking for a gig. How about “Who Wants to be a Larimer County Legislator”? They could hold auditions at The Ranch.

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