Three GOP candidates take aim at Colorado’s open primary law—and bring the math

By Candice Strutzreim | Guest Commentary, Rocky Mountain Voice

Republican candidates Ron Hanks (CD-3), David Willson (attorney general) and Scott Bottoms (governor) have filed a lawsuit to challenge the constitutionality of CRS 1-7-201. Also known as the Open Primary statute, the law was created through Proposition 108 in 2016. The hearing will be held in Denver District Court this Thursday at 1:30 pm, one day before primary ballots are scheduled to be sent to overseas and military voters for the June 30 election.

How is this lawsuit any different than all the other challenges to “Prop 108” that have been previously brought before the courts?

Counsel for the plaintiffs, Gary D. Fielder, intends to prove that Governor Jared Polis and Secretary of State Jena Griswold are promulgating law that violates individual candidates’ freedom of association under the First Amendment and the Equal Protection Clause under the Fourteenth Amendment. 

Those grounds are similar to previous challenges which focused on undue burden the law places on the two major political parties. The law forces unaffiliated voter participation in the primary process which dilutes the party’s choice and alters the outcome of the nominee. The egregious 75 percent vote threshold required for parties to “Opt Out” of the taxpayer-funded system was deemed unconstitutional in late March of this year.

This time, Fielder argues candidates themselves are unprotected by the law and brings the receipts to prove it. A sophisticated empirical analysis submitted with the lawsuit, using “weighted least squares regression,” impartially and mathematically proves the effect of this unaffiliated voter dilution on the outcome of primary races. The analysis uses Colorado SOS data that spans three primary elections, addresses multiple races and involves both major parties. 

Simply stated, the analysis consistently proves some candidates would have won the primary nomination with as much as a 20-point advantage without unaffiliated participation. Likewise, other candidates would have lost without the unaffiliated vote. Some that lost, often the preferred candidate from the party’s assemblies, would have dominated those who eventually won the nomination.

The empirical analysis speaks for itself. It removes the emotion of the individual injustice and proves “this is the way it works,” every time, regardless of personalities involved. It is a predictable pattern that benefits one candidate over the other. It applies to all races, both parties and is consistent over time. It is therefore prejudicial to fairness and equity.

In good faith, the candidate declares his intent to run as a party member. He invests time, sacred treasure, and endures the rigors of the Assembly nominating process. The candidate who survives that obstacle course then jumps headlong into a Primary pool diluted by voters not affiliated with the party and who often do not share the values of the party. Presently, the candidate has no choice but to bear the consequences of that risk alone.

Having first persuaded Denver District Court Judge Jon Jay Olafson to declare CRS 1-7-201 is indeed unconstitutional, the plaintiffs will then ask for an injunction to immediately prohibit the SOS from mailing ballots to unaffiliated voters in the June 30 primary election. Primary ballots are scheduled to be sent to overseas and military voters on Friday of this week.

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.