Lawsuit Against Colorado Could Allow GOP To Dump Open Primaries Before Next Election, Says GOP Lawyer

At Saturday’s Colorado GOP state central committee assembly in Pueblo, party leadership voted against the long-debated proposal that Republicans opt out of primary elections, which allow unaffiliated voters to participate in the selection of party nominees

But the state’s Republican governing body overwhelmingly agreed to file a lawsuit against the state challenging the legality of Proposition 108, the 2016 referendum approved by voters which established open primaries in Colorado.

The much-anticipated vote for opting out of primaries required an almost-insurmountable threshold of 75% approval of the entire central committee membership, not just those present at the meeting.

Activists in favor of opting out traveled the state over the past six months, lobbying committee members. Dueling op-eds appeared in publications and endorsements for and against the measure were tallied in anticipation of Saturday’s vote.

In the end, the opt-out proposal failed with only 33% approving (172 votes of the total membership of approximately 525) and 45% opposing the measure (241 votes).

Proponents of opting out of the state’s open primaries believe that the process favors meddling by dark money groups and Democrats, while nominating candidates who compromise on the GOP platform and principles.

Opponents believe that opting out of the primaries would disenfranchise Republican voters and turn moderates and unaffiliated voters — the largest group of Colorado voters, at 40% of the electorate — away from the party.

Vote to Fund Lawsuit Nearly Unanimous

The committee then considered a resolution to sue the state of Colorado in order to challenge Proposition 108.

Such a court challenge might take two forms. One would be to challenge a clause that opponents claim is unduly and unconstitutionally burdensome, requiring 75% approval of the entire state central committee.

Another option might be to challenge the statute in its entirety, based on a precedent Supreme Court ruling in a California case from 2000 which states that political parties, as private organizations, have First Amendment protections of freedom of association, and can exclude the participation of outsiders to that organization.

A companion motion was also considered by the GOP central committee for funding the legal challenge against the state. In previous years, similar motions have failed due to concern among committee members about the cost of the challenge.

On Saturday, however, both the motion to sue the state and the resolution to fund the legal challenge passed with near unanimity.

When contacted for comment, GOP executive committee member and national committeeman for Colorado, Randy Corporon, said that he was encouraged by the broad support for challenging Proposition 108 in court, and presented alternative legal strategies — as well as his own preference — for challenging the statute.

“What I would be interested in seeing the Republican Party do is to try to overturn the whole law based on the (75%) threshold, so that we could start fresh,” explained Corporon. “…There’s never any harm in filing a complaint that asks for alternative forms of relief. So, you can ask for one or both and not really incur a negative consequence. For instance, overturning the entire proposition based on the freedom of association argument, you could still challenge the impossible threshold and you wouldn’t lose anything by doing both. … I would love to see, if they do pursue litigation, that they go after the whole thing.”

But Corpron said, that despite the strong support from the governing body to initiate a lawsuit, it is not a sure thing.

“There are no decisions that have been made,” Corporon said. “The biggest limitation on the party taking action in the past to try and overturn Proposition 108 has been the cost.”

Corporon has offered to represent the GOP in its case against the state at a reduced rate, as has John Eastman and the Claremont Institute, a conservative think tank with which Eastman is affiliated.

Eastman, former President Trump’s lawyer and a constitutional attorney and professor, has announced his intention to sue the University of Colorado at Boulder for defamation and other claims, after CU’s response to Eastman’s involvement in trying to overturn the 2020 presidential election results and his appearance at the Jan. 6 Washington D.C. rally which inspired the attack on the U.S. Capitol. Corporon is representing Eastman in his effort to sue CU.

“And so I have certainly said that I would do whatever I — you know, the party has a tremendous lawyer in Chris Murray — but I would do whatever I can, including utilize resources from my law firm at a reduced rate,” said Corporon. “John Eastman and the Claremont Institute have expressed a willingness to look at ways that this could be legally funded. … So, that that all has to be sorted out, but there are good lawyers who specialize in that area that I’m sure could make that happen. Because what we don’t want to do — and what no one wants to do — is to drain the resources of the party from its primary purpose of electing Republicans to focus on this issue. So I’ve certainly made it clear that I’d be willing to try and help, if that is asked.”

Corporon also said that he’s confident, given the timeline of upcoming primaries scheduled for next June, that judicial intervention could provide timely relief for the GOP’s complaint and allow a more desirable process for Republicans to choose their nominees.

“If the winning argument is that the government has no business telling a private organization who they can affiliate and who they want making decisions about their business, then a judge wouldn’t have to craft a remedy for the Republican Party,” explained Corporon. “Absolutely, it’s the kind of lawsuit that could be filed within a couple of weeks and that a court would very likely pay very quick and close attention to for that very reason. It’s a constitutional issue. It can have tremendous impact on the midterm election. … Every judge establishes his on his or her own criteria. But you’ve seen before … when a challenge gets filed on a statute or an election outcome or even something that’s been passed by voters, courts jump on it. You usually get quick hearings and quick rulings. And I can’t imagine that the same thing wouldn’t happen here.”

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