Colorado Republican Party Sues Over Unaffiliated Votes in Primaries

The Colorado Republican Party on July 31 filed suit in federal court in hopes of overturning a 2016 ballot initiative that allows independent voters to participate in major political parties’ primary elections. 

The party argues the law burdens the right of free association, free speech and equal protection and its individual parts and cumulative effect have violated the constitutional rights of the political party. 

The lawsuit suggests that since Proposition 108 was passed by voters in 2016, unaffiliated voters have skewed Republican primary elections and kept candidates off the ballot who could have received the majority support from party-affiliated voters. Political parties can opt out of Proposition 108’s requirements if 75% of its central state membership committee agrees to use the assembly or convention nomination process for the next primary election. 

Plans to challenge the law have been in the works for several years, according to the lawsuit, after the Republican State Central Committee at its September 2021 annual meeting unanimously authorized the party, its members or both to bring a lawsuit to challenge Proposition 108. A group of Republican voters who also hoped to block the law filed a similar lawsuit in 2022 that was dismissed by a federal district court that held the party rather than the voters had standing to file the challenge.  

The latest lawsuit names Colorado Secretary of State Jena Griswold as a defendant in her official capacity. It argues Proposition 108 violates the First and 14th Amendments of the U.S. Constitution and asks a Colorado federal court to issue a permanent injunction to block enforcement of the law and declare it unconstitutional. 

According to the lawsuit, while unaffiliated voters can vote on either the Republican or Democrat primary ballot, the conservative party has been increasingly impacted by independent voters since the initiative was passed. The lawsuit presents data that shows in recent years the number of unaffiliated voters participating in the party’s primary election has grown significantly. 

According to the complaint, in 2019, 105,033 unaffiliated voters and 412,766 Republican voters participated in the primary compared to 246,341 independent and 423,189 Republicans in the 2022 primary. The lawsuit further argues the number of independent voters in 2022 was greater than the victory margin on the primary ballot for that year’s Republican candidates for U.S. Senate, the Colorado governor and secretary of state. 

“On information and belief, unaffiliated voters have had an outcome-determinative impact on at least some prior Republican primary elections,” the lawsuit argues. 

While political parties can opt out of Proposition 108’s requirements, the party argues that doing so is an undue burden since it requires a 75% majority of the party’s committee to vote to opt out ahead of every primary election cycle. The lawsuit argues this opt-out mechanism makes open primary elections the default by requiring the party to take additional steps to use an alternative candidate selection system and therefore burdens the exercise of free association under the First Amendment. The measure also limits the party’s freedom of speech, the lawsuit alleges. 

“Proposition 108 entails an intentional series of obstacles whose cumulative effect is to prevent major political parties from selecting their nominees through primary elections in which only party members participate,” the suit argues. 

On top of the First Amendment claims, the party also argues Proposition 108 violates the 14th Amendment’s equal protection rights by diluting the vote of Republican voters and by treating larger political parties differently than smaller ones. 

Proposition 108 only applies to “major political parties,” defined under state law as a political party that at the last governor election had a candidate who received at least 10% of votes. The lawsuit argues Colorado lacks good cause to treat smaller parties differently from larger parties, the law is not narrowly tailored and as a major political party, the party has had diluted votes that smaller parties have not experienced. 

The case is Colorado Republican Party v. Jena Griswold, 23-cv-01948. 

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