DENVER (CN) — Colorado asked a federal judge on Wednesday to reject the state Republican Party’s request for an injunction and instead maintain the semi-open primary system that allows unaffiliated voters to participate in the party primary election of their choice.
“Forty-eight percent of Colorado voters are unaffiliated, which heightens the state’s interest in giving these voters the opportunity to participate,” state attorney Kyle Holter said in closing.
Passed by voters in 2016, Proposition 108 allows Colorado to hold primary elections in which unaffiliated voters can vote on one party’s ticket.
The state GOP sued Colorado Secretary of State Jena Griswold, a Democrat, on July 31, 2023, claiming the law violates the party’s Constitutional rights, including the First Amendment right to freedom of association. The party filed for preliminary injunction in December.
“The right to freedom of association necessarily includes the right of whom not to associate with,” argued attorney John Eastman, on behalf of the Colorado Republican Party. “The point of Prop 108 was to force parties to cater to unaffiliated voters, which the majority of Republicans think is not a good thing.”
U.S. District of Colorado Chief Judge Philip Brimmer, appointed by George W. Bush, asked about the state's interest in encouraging greater voter participation.
“The state may want to encourage more voter participation but that’s exactly the interest that the Supreme Court in Jones foreclosed, that undermines their right of freedom of association,” countered Eastman said referring to the 2000 U.S. Supreme Court case California Democratic Party v. Jones, which overturned the state's blanket primary.
“This interferes with the party’s ability to choose its candidates at a critical time,” added Eastman, who heads the Constitutional Counsel Group and formerly represented Donald Trump.
The Republican Party argued in court that the semi-open primary introduces non-members with interests that differ from party interests into the voting pool.
But among the people who make the party, the issue remains controversial.
On the stand, former-Colorado Republican Party chair and longtime strategist Richard Wadhams recalled his own initial skepticism of the semi-open primary. Wadhams said he has since come to see the system as a means for the party to appeal to the state’s changing voters.
Colorado was once hailed as the perfect purple state, with unaffiliated, Democrat and Republican voters split into even thirds. Over the last decade, 800,000 people have moved to the state, shifting the electorate to one dominated by unaffiliated voters.
Today there are 1.8 million unaffiliated voters in the state, 1 million registered Democrats and 903,000 registered Republicans.
“The electorate has changed,” Wadhams said. “To win an election in Colorado, you have to be able to appeal to unaffiliated voters.”
Wadhams believes an open primary gives the party an opportunity to makes its case to unaffiliated voters early on, then keep them through the general election. As an example, Wadhams pointed to Colorado’s last Republican governor, Bill Owens, who held office from 1999 to 2007.
“As campaign manager, everything we said and did was to craft a conservative Republican agenda and message while appealing to unaffiliated voters," Wadhams said. "Bill Owens did not just want to be the Republican-nominee for governor, he wanted to be governor."
The state’s final witness, Vanderbilt University political science professor John Sides presented research indicating open primaries drive greater voter participation and provide opportunities for cross-party-voting.
Sides sought to debunk the idea that rival parties use open primaries to push candidates that will sabotage their opponent’s chances of winning in the general election.
Case in point, Sides recalled Rush Limbaugh’s 2008 “Operation Chaos” call for conservative voters to support Hillary Clinton in the Democratic primary and upset Barack Obama’s chances of winning. The plan flatout failed.
Moreover, Sides said most voters aren’t sophisticated political strategists able to carry coordinate such an attack.
“There’s an informational burden to understanding what candidate you’re supposed to vote for in order to accomplish the party’s plan,” Sides said.
Most unaffiliated voters, Sides said, actually vote along party lines even if they’re not registered with a party. People might cross party lines to vote for someone they think to be the best candidate.
“When people are crossover voting, it’s not because they are trying to sabotage the other party, it’s because they are sincerely drawn to the given candidate,” Sides said.
On behalf of the Republican Party, attorney Randy Corporon questioned whether this trend necessarily benefited political parties as an institution.
“Crossover voters are trying to influence the outcome of the general election, aren’t they,” Corporon asked. “If they’re outsiders whose values do not align with the party they are voting in, aren’t they changing it?”
Under state law, political parties can opt out of the open primary if 75% of members agree to hold a private party-funded primary election or caucus. The state Republican Party central committee has yet to meet this threshold.
Brimmer took the case under advisement but did not specify when or how he will reach a decision.
Voters created a presidential primary system using a different ballot measure — Prop 107 in 2016. Therefore Brimmer’s decision would impact unaffiliated voters’ ability to participate in the June state primary, but will not alter the semi-open nature of the March 5 presidential primary.
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