DENVER (CN) — The Colorado Republican Party on Tuesday asked a federal judge to block unaffiliated voters from participating in the party’s primary election, a move that would overturn a semi-open primary system enacted in the state eight years ago.
Passed by voters in 2016, Proposition 108 allows Colorado to hold semi-open primary elections with unaffiliated voters allowed to vote on one party’s ticket.
Unaffiliated voters dominate the political landscape in Colorado. There are 1.8 million unaffiliated voters in the state, 1 million registered Democrats and 903,000 registered Republicans.
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.
State attorneys counter that the law benefits voters, and that an injunction granted to the Republican Party would disrupt the state’s ability to carry out the 2024 election, particularly as unaffiliated voters are currently anticipating being mailed two ballots in the coming weeks.
“The evidence will show that the party is offered a real choice under Colorado law between the primary or its own closed procedure,” state attorney Talia Kraemer argued Tuesday.
Under state law, political parties can opt out of the open primary if 75% of members agree to hold a private party-funded election.
In September 2021, the state Republican Party altered its bylaws to increase the chances of reaching the required threshold to opt out of the state’s primary system. Even after only counting in-person votes and defaulting abstained votes to the majority, only 64% of the party’s state central committee chose to opt out. On the witness stand, Colorado Republican Party chairman David Williams defended that altered process as furthering his goal of strengthening the party against dark money interests.
During his 2022 congressional campaign, Williams unsuccessfully sued the state in attempt to get “Let’s Go Brandon” printed on the ballot as his nickname. Williams explained that he embraced the phrase which riffs on a reporter’s failed attempt to spin a pejorative of Joe Biden.
“Our concern is dark money groups have weighed in historically since there’s been open primaries and we think that undermines the party beliefs, when their stated nature is to diminish partisanship, which is our purpose as a political party,” Williams said.
Williams worries dark money groups either back weak candidates angling to throw the general election, or back centrist candidates that do not represent the true party platform.
On the stand, state party treasurer Tom Bjorklund said carrying out a party-funded closed primary was such a tall order he didn’t even prepare a formal budget for it, although he admitted that the party could dovetail a caucus into its April convention at little additional cost.
Bjorklund runs Tactical Data Solutions, a data firm that’s provided dozens of state Republican candidates with voter information for nearly 20 years. Since 2016, when unaffiliated voters began participating in the Republican primary, Bjorklund said candidate marketing has become less predictable.
As an example, Bjorklund pointed to the 2022 state Republican U.S. Senate primary, where primary voters chose Joe O’Dea, a party moderate, over Ron Hanks, who had largely campaigned on baseless claims of 2020 election fraud. Bjorklund attributes that outcome to unaffiliated voters.
“In nearly every race in Colorado in 2022, the number of unaffiliated voters far exceeded the margin of victory — in the governor’s race that was by factors of six,” Bjorklund observed.
In the past, more Democratic ballots have come back during primary elections than Republican ballots, reflecting not just party preference as the purple state tints blue, but also where the competitive races are. But during the 2022 primary, when Colorado’s incumbent Democratic governor, secretary of state, attorney general and treasurer all ran in uncontested races, roughly 60% of unaffiliated voters opted instead to participate in the Republican primary.
As a policy expert, the GOP called Trent England, executive director of Save Our States, a nonprofit that aims to preserve the electoral college against a movement to adopt the national popular vote in presidential elections. England has previously worked with conservative think-tanks the Freedom Foundation and the Heritage Foundation.
England opined that unaffiliated voters diminish party members’ voice. If, for example, unaffiliated voters share a pro-stance on drug use, England postulated, they could choose candidates for the general election that share that view, depriving party-members of their ability to choose a strong anti-drug candidate.
“Prop 108 has the ability to decrease voter choice in elections, rather than increase it,” argued England, who supports having strong member-driven party identities.
“If people want a say in the Colorado Republican Party, they should join the party,” England said. “Instead, you can say ‘I hate the Republican Party and I’m going to decide on their candidates.’”
The Colorado Republican Party is represented by local attorney Randy Corporon as well as John Eastman, former attorney for Donald Trump, who heads the Constitutional Counsel Group.
Griswold did not make an appearance in court but in an email called the litigation concerning and pledged to defend Colorado’s primary system.
“The Colorado Republican Party — represented in court by one of the architects of the January 6 Insurrection — is trying to bar unaffiliated voters from participating in state primary elections,” Griswold wrote.
U.S. District of Colorado Chief Judge Philip Brimmer, appointed by George W. Bush, is presiding over the two-day preliminary injunction hearing which will continue on Wednesday.
Colorado holds its presidential primary on March 5 and a state primary in June.
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