Could Avon’s Sarah Smith Hymes and Tamra Underwood replace each other in the event of recalls?
Last week, both council members filed affidavits of intent to be counted as write-in candidates for each other’s seats
On Tuesday, Avon voters will determine whether Mayor Sarah Smith Hymes and council member Tamra Underwood will be recalled from office. On the ballot, voters are asked to determine not only whether each council member should be recalled, but they are also given the option to write in a replacement should either recall prove successful.
And up until last week, the town had no certified write-in candidates to succeed in the event of their recall. However, last week, both Underwood and Smith Hymes registered with the town clerk as write-in candidates for each other’s seats.
Regina O’Brien, the Eagle County clerk and recorder, said that her office received the affidavits for both Underwood and Smith Hymes from the town of Avon on Wednesday, Oct. 27. She said that they were the only “two write-in candidates that were certified by the town to us for those successor questions.”
Per Avon’s Municipal code 2.28.010, in order to be counted as a write-in candidate, an affidavit of intent must be filed with the town clerk more than five days before the day of the election. The code stipulates that this indicates “that such person desires the office and is qualified to assume the duties of that office if elected.”
Underwood wrote in a text that both she and Smith Hymes decided to file because they heard a “rumor” that some residents were writing in Underwood’s name as Smith Hymes’ successor and vice versa.
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“We are not coordinating that effort, if there is one,” she wrote. “However, because we each heard that rumor before the deadline last week, we did respectively register with the town clerk as legitimate write-in candidates per the town code.”
Underwood further stated that “throughout this whole ordeal,” her and Smith Hymes’ sole focus has been to get residents to vote no on both recalls.
Whether or not this means that Underwood and Smith Hymes could replace each other’s seats in the event of both of their recalls is another question entirely.
“Now, that’s not to say, especially because Avon has a very short time fuse between filing them and Election Day, there may be other things that affect their qualifications, whether that’s constitutional or other statutory requirements, but in order to be counted, they have to file the affidavit of intent,” said Karl Hanlon, the interim Avon town attorney.
Further, Hanlon said, “In the town code, there’s nothing in either the affirmative or the negative on that issue.”
Where the Colorado Constitution and case law are clear, however, is that candidates cannot be up for recall and run for their own seat, he added.
“It is less clear whether you can run for another seat in the same jurisdiction at the same time, if both are up for recall,” Hanlon said.
Come Tuesday, should Underwood and Smith Hymes both be recalled and they both be named each other’s successor, Hanlon would then determine, under current state law, whether “they are qualified to assume the office underneath the circumstances with which they were apparently elected,” he said.
That’s something that hasn’t been done yet because of the short time frame between the filing of the affidavits and the election as well as “the fact that it may be a moot point on Tuesday, depending on how the recall goes,” Hanlon added.
Council members Scott Prince, Amy Phillips and RJ Andrade, when asked whether they had heard of any potential coordinated write-in efforts, said they had not heard anything about such an effort. When asked further about whether or not the council members should be able to be elected to each other’s seats, Prince wrote that he doesn’t support the recall and is “confident they will be retained.”