DENVER (CN) — Unaffiliated voters in Colorado may continue to vote for Republican candidates in the state's primary after a federal judge denied the party’s request for an injunction on Friday.
"In short, because the party has presented no evidence that Colorado’s semi-open primary system causes candidates to change their policy positions or that unaffiliated voters might have an outcome determinative effect on the party’s nominees, the party has failed to show that Proposition 108 imposes a severe burden on its associational rights,” wrote U.S. District Judge Philip Brimmer in a 33-page opinion.
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's voter participation increased 9 points following the proposition's enactment.
Under state law, political parties can opt out of the semi-open primary if 75% of members agree to hold a private party-funded election or to nominate candidates by a caucus system.
Because the party has yet been able to meet the threshold, GOP members called it unattainable.
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, prompting Brimmer, an appointee of George W. Bush, to hold a two-day hearing in January 2024.
While higher courts have issued guidance on a number of primary systems, including blanket and closed primaries, Brimmer noted that neither the 10th Circuit nor the U.S. Supreme Court have analyzed the Colorado-style semi-open system.
Colorado Republican Party Chairman Dave Williams expressed disappointment in the ruling.
“It’s a shame this judge relied on the false testimony of RINOs like Dick Wadhams but a victory that the court reaffirmed our party’s legal right to decide our internal processes for opting out,” Williams said via email.
Former Colorado Republican Party chair and longtime strategist Richard "Dick" Wadhams testified during the hearing in favor of the semi-open primary because he thinks it helps ensure the party selects candidates that appeal to the general electorate. Wadhams openly criticized the party under Williams’ leadership, particularly rule changes enacted to increase the party’s chances of reaching the opt out vote.
Brimmer additionally rejected the Republican Party’s claims that the primary process violated the party's freedom of association, was akin to ballot stuffing and unfairly allowed minor parties to play by different rules.
State attorneys countered 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.
“We are glad that the court today decided that unaffiliated voters, who make up nearly 48% of all Colorado voters, can continue to make their voices heard in state primaries,” said Griswold via email. “As secretary of state, I will always work to ensure that all voters — unaffiliated, Republican and Democrat, alike — have their voice heard in our elections.”
A group of activists filed a similar lawsuit on February 24, 2022, which Senior U.S. District Judge John Kane threw out for lack of standing.
Colorado will holds its presidential primary election on March 5, Super Tuesday, and the state primary on June 25.
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