Phillips May Fight Lopez on Residency

Paul Lopez won the race for City Council in District 3 on Tuesday, despite questions about his residency.  Blogger Dear Denver raised these concerns to a new level with a post “The damning voter registration docs“, which Denver Politics trumpeted as a “smoking gun“.  After losing to Lopez on Tuesday, JoAnn Phillips’s campaign manager, Alfonso Suazo, suggested to the Denver Post that this story might not be over.

Having lost the race and having found “a smoking gun” one might assume that the choice for Phillips is clear – file a lawsuit to have the seat vacated and run in the vacancy election.  The reality facing Phillips, however, is somewhat more complicated for three reasons: money, the law, and the calendar.The biggest reason Phillips might think twice about filing a lawsuit to challenge Lopez’s residency is that someone has to pay the lawyers.  The first place the lawyers will look is Phillips.  Having just come off a campaign where her fundraising numbers were far from impressive, Phillips might need to dig into her own pocket to front some or all of that cost. 

Outside money is possible, and Phillips might find someone to take the case pro bono, but neither is a certainty, especially given that Lopez won over 60% of the vote in the district where he was raised and currently lives.

Assuming Phillips is able to find a way to file a case, there may be a question as to whether Phillips waited too long to complain, as Andrew Oh-Willeke notes in his comment to the Denver Politics story.

Further, it is not clear that Lopez fails the residency requirement in the first place.  Yes, he was apparently not registered to vote at an address in the district until September 1, 2006, far later than the May 1, 2006 deadline, but Lopez was a student away at school at the time.  State statute does not necessarily view residence as black and white:

The residence of a person is the principal or primary home or place of abode of a person. A principal or primary home or place of abode is that home or place in which a person’s habitation is fixed and to which that person, whenever absent, has the present intention of returning after a departure or absence, regardless of the duration of the absence.

Lopez can easily claim he had the intent of returning to his home in the district, the one in which he grew up and now lives.  In fact, Lopez’s campaign has previously stated that they can document his move back into that home as early as February 2006.  Whether or not Lopez was tardy in updating his voter registration and other records is not necessarily the definitive issue as to whether he was living in the district by May 1, 2006.

Finally, the calendar is not on Phillips’s side.  Assuming she does file suit, there is no way to guarantee the case would be decided quickly.  The city plans to put a bond on the November ballot.  If the lawsuit of Lopez’s residency is not decided quickly enough, but Phillips does win, the election might have to coincide with that November election.  By that point, Lopez will meet all residency requirements without question.  Given his strong margin of victory in the runoff, Lopez would likely be seen as the front runner in a vacancy election as well, and may very well run away with the seat again.

Of course, things could go Phillips’s way at each step.  She could file quickly, get the resources lined up to afford a lawyer, get the case expedited and decided quickly, get any appeals out of the way immediately, get a vacancy election called between July 16 (the date Lopez would otherwise be sworn in) and September 1 (the date Lopez can easily prove he meets the residency requirements), and then run a campaign and win the race.

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Mark Mehringer

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