Appearing on conservative talk radio station KLZ 56O-AM on Friday with host Kim Monson, former Trump attorney John Eastman said that the lawsuit he expects to file for the Colorado Republican Party against the state of Colorado to challenge the state’s open primary law will not impact this year’s primary elections, so unaffiliated voters can join Republicans in selecting the GOP nominees for November’s general election.
Colorado’s open primary law was passed by voters in 2016 by referendum Proposition 108, and ever since, Republican activists have been vexed in how to exclude unaffiliated voters from voting in GOP primaries. In September, a vote by party leadership to opt-out of open primaries and select Republican nominees by caucus and assembly failed.
However, by unanimous vote, the GOP state central committee directed the Colorado Republican Party to fund and pursue a lawsuit against the state, challenging the constitutionality of Colorado’s open primary law.
Monson and Eastman, who’s a former visiting scholar at the University of Colorado’s Benson Center for the Study of Western Conservative Thought, discussed how “a very influential Republican operative” and establishment interests from both parties have undermined the electoral chances of conservative Republicans, favored by the Trump-supporting wing of the Colorado GOP.
The GOP lawsuit will assert that only registered Republicans should be able to choose the party’s nominees.
In Colorado, unaffiliated “swing” voters comprise the largest sector of the electorate, while Republicans comprise the smallest.
While Trump lost Colorado in the 2020 presidential election by 13 percentage points, Boebert prevailed in her district after beating the Republican incumbent, Scott Tipton, in the open primary.
This year’s primary presents an apposite case which Eastman believes affirms the worries of Republican activists.
Eastman told Monson that there’s evidence that opponents to U.S. Rep. Lauren Boebert (R-CO) is being targeted by Democrats and more moderate conservatives.
“There’s a wonderful article that appeared last weekend — as I was drafting the complaint [to end open primaries] — down in the Aspen Daily News,” Eastman said. “It was a letter to the editor. It said, ‘All you unaffiliateds need to come out and vote so we can stop the Republican candidate we don’t like.’ I mean, it just proves the point. It’s an infringement on the Republican Party’s freedom of association, and that unconstitutionality is, I think, going to be challenged in court. And, you know, maybe go all the way to Supreme Court. But the law is so clear that hopefully we could get this resolved in fairly short order at the District Court.”
Boebert faces two GOP challengers in her primary, in a district that heavily skews Republican. Marina Zimmerman and Don Coram have both formally announced their campaigns, generally promising more moderate, civil, and effective representation to constituents.
Monson expressed her hope that the lawsuit could bring a favorable resolution before this year’s primary election slated for late June. She also said she has worried about delays that would allow open primaries to remain in effect in this year’s election cycle.
Eastman said he expects his lawsuit, if successful, to have an impact in 2024 not this year because “we’re too close to the 2022 election.”
“When that vote was taken back in September,” Eastman responded, “I’d anticipated that we would be bringing the suit last fall. But for whatever reason and delays, that didn’t happen. And then we’re now too close to the 2022 election to be able to reasonably expect to get an injunction against the rules that are in place starting this week so that for 2024 is what we’re looking forward to fix. … There’s a doctrine in constitutional law and elections called the Purcell Doctrine that says you don’t get the opportunity to change the rules through court action on the eve of the election. And so we’re looking at 2024, but we will have the new evidence of the impact of this as a result of 2022.”
The grassroots wing of the state GOP has argued for years that allowing unaffiliated voters to vote in their primaries dilutes the vote of party members and results in nominating more moderate candidates that compromise on positions that the activists view as fundamental to the party’s brand and platform.
They also contend that open primaries invite progressive dark money political action committees and Democratic operatives to meddle in campaigns tilt the scales of general election match-ups in their favor.
“An open primary is designed to keep the people from exercising their sovereign authority. And, — but there’s constitutional rights involved. The First Amendment guarantees the freedom of speech. That, the Supreme Court has said, includes the right to associate with others of like views to magnify your speech. In elections, we do that through our political parties, and the political party gets to decide who their nominee is. It’s one of the core aspects of that freedom of political association. And when I let people that deliberately choose not to affiliate with the party influence the outcome of who my nominee for that party is, and then put that party’s name against that nominee in the general election ballot, it violates freedom of association and freedom of speech of the political party. And so, we’re bringing a lawsuit to challenge it. This was raised at the Republican Party convention back in September. And unanimously, on the floor, they voted to authorize us with this lawsuit. … Overwhelmingly, the rank and file of the party authorized this lawsuit as an infringement on their constitutional rights to freedom of association. Now, some people have said, ‘Well, wait a minute! Don’t you want unaffiliated voters to get out and support your candidate?’ And the answer to that is, ‘Absolutely, yes! But not by refusing to join us in our political party.’ What I’ve proposed is that, send a letter to every unaffiliated voters in the state welcoming their participation in our primary. All they need to do is sign up to be a Republican. But if they are so hostile to Republicans that they don’t even want to have their name associated with being a Republican, then why should we let them determine who the Republican nominee is?”
Previous discussions within the party proposing a challenge to the law through the courts were scuttled due to considerations of the high cost, which would divert funds from other priorities of the party.
Republican National Committeeman, Arapahoe County Tea Party Chairman, and conservative radio host Randy Corporon will join Eastman in representing the party in the lawsuit, and both have suggested that they would offer their services at a reduced rate in order to facilitate the party’s challenge.
Previously, Corporon said he had expected the lawsuit to be filed last Friday, before a Saturday fundraiser. Now, it is expected to be filed sometime this week.
Listen to Monson’s entire interview with Eastman using the player below.
