What does it mean to opt out?

By Todd Watkins, Colorado GOP Bylaws Committee Chair | Guest Commentary, Rocky Mountain Voice

Editor’s note: On September 27, the Colorado Republican Party’s State Central Committee will vote on whether to opt out of the state-run primary election system established under Proposition 108. Rocky Mountain Voice is featuring perspectives from two prominent Republicans on opposite sides of the issue.

Proposition 108, passed in 2016, created a semi-open primary election for nearly all races in Colorado. It is called semi-closed because it allows unaffiliated voters to cast a ballot in one or the other major party primary election. Only major parties (Republican and Democrat) hold primary elections in Colorado. A truly open primary election would permit any voter, regardless of affiliation, to cast a ballot in any party’s primary election.

As it stands now, unaffiliated voters can choose between either the Republican or Democrat party primary ballot, but they can only choose one or the other in each cycle. No voter may cast more than one ballot.

Proposition 108 is codified in CRS 1-4-702:

“Nominations of candidates for general election by convention. (1) Notwithstanding any other provision of law, a political party may choose to change from the nomination of candidates by primary election to the nomination of candidates by assembly or convention for all offices including, but not limited to, United States senator, representative in Congress, all elective state, district, and county officers, and members of the general assembly if at least three-fourths of the total membership of the party’s state central committee votes to use the assembly or convention nomination process; except that nominations by major political parties for candidates for lieutenant governor shall be made by the party’s candidate for governor pursuant to section 1-4-502 (3). Such vote of the party central committee shall occur no later than October 1 of the year preceding the year in which an assembly or convention nominating process is to be used.

(2) A political party nominating candidates by party assembly or convention shall nominate the candidates of the party and make such nominations public not later than seventy-five days before the general election.

(3) Whichever method of candidate selection is chosen by a major political party as between primary election, assembly, or convention, all of the candidates for that party at any level of office in that election year must be selected by such method, except that the requirements of this provision shall not apply to a primary for president of the United States if such an election is held.”

The short version: a major party may choose to not participate in a primary election if 75% of the entire membership of the central committee (present or not) votes to do so. If the party opts out of the primary, it must select its candidates by assembly or convention (for presidential years). This means the party will not have any candidates on the primary ballot. It also changes the assembly or convention from a designating event to a nominating event.

Currently, our assemblies and conventions are held to designate candidates to the primary ballot. Opting out would instead allow the assembly or convention to choose candidates for the general election ballot. Each assembly, for each district or constituency, could only produce one candidate for each office or race. Under the current designating process, assemblies and conventions may produce up to three candidates for a primary race, based on the 30% threshold for designation. The primary election is the current nominating process used to eliminate all but one candidate.

Opting out is not the same thing as closing the primaries. CRS 1-4-702 allows a major party to withdraw from Colorado’s primary elections, but only for that party. It does not prevent another major party from participating in the primaries, and it does not prevent unaffiliated voters from casting ballots in that party’s races. Opting out is effectively canceling a party’s primary elections. The party that opts out may only select candidates for the general election through its assembly or convention.

While opting out is a decision a party’s central committee can make under CRS 1-4-702, closing the primaries — meaning only registered party voters may participate — requires overturning Proposition 108. That would have to happen through a ballot measure or a court decision. There is a lawsuit in federal court attempting to do this, but no resolution is in sight.

Opting out only applies to one election cycle. A party’s central committee must vote by October 1 of the odd-numbered year preceding the primary election to cancel its participation. That vote only applies to the following cycle; the party must vote again each odd-numbered year to continue opting out.

Finally, opting out provides only one pathway to the ballot. Currently, candidates may reach the primary ballot through assembly/convention or petition. If there is no primary, the petition pathway disappears. Since there can be only one candidate per party per race on the general election ballot, candidates must participate in the assembly or convention process.

See the opposing perspective on the opt-out debate here.

Todd Watkins is the chair of the Colorado Republican Party Bylaws Committee and a longtime GOP organizer in El Paso County. He is a retired U.S. Border Patrol official with roughly 24 years of service.

Editor’s note: Opinions expressed in commentary pieces are those of the author and do not necessarily reflect the opinions of the management of the Rocky Mountain Voice, but even so we support the constitutional right of the author to express those opinions.