Colorado Republicans’ first attempt to overturn the state’s voter-approved open primary process in court ended with a judge’s dismissal last April, but it appears another legal challenge, this time backed by the party’s leaders, is inevitable.

On his radio show last week, talk show host Randy Corporon, one of the two attorneys who represented the opt-out proponents last year, discussed the prospect of another try with the other lawyer, insurrectionist John Eastman.

“So as you know the current [Colorado GOP] chair finally set up a bank account to raise money to challenge the open primary, the unconstitutional open primary law in Colorado”, said Corporon. “And I think everybody that I know of who’s been running for chair –and there’s only a couple that haven’t reached out to me and talked to me– is fully supportive of bringing that lawsuit forward…

Last time we had central committee members, we had candidates who were being affected, and [Kristi Burton-Brown was just afraid to put the party’s name on there, apparently, she says because of the potential of election finance complaints and that sort of thing. So bottom line is, I think the party will be with us. I don’t know whether it will be a part of it. Again, we’ve already got the lawsuit ready to go.”

– Randy Corporon to John Eastman, 710 KNUS, Feb. 18, 2023

Since voters’ approval of Proposition 108 in 2016, many Republicans, particularly those on the far-right, have been angry that unaffiliated voters can now choose to vote in either of the major party primary elections. That faction has already tried two different ways to opt the state GOP out of the law, both of which failed.

The first method requires an overwhelming vote (75%!) of GOP Central Committee members. Proponents tried and failed two years ago, garnering only 33%.

As previously noted, their next move was a lawsuit filed by Eastman and Corporon, which also failed.

So what has changed?

Corporon is referring to an email Kristi Burton Brown sent to state GOP Central Committee members on Feb. 14 in which she announced that she has created a bank account for the purposes of funding another legal challenge to Proposition 108, which created Colorado open primary system.

Burton Brown also explained the background behind the timing of her action, given that the authorization to fund such an effort had passed almost a year and a half ago. She noted that she initially held off in order to ask the Federal Election Commission for permission to procede.

In September of 2021, at our State Central Committee (SCC) meeting in Pueblo, the SCC passed a resolution authorizing that a lawsuit could be filed by the “Colorado Republican Party, its members, or both” and that the Party is:

“authorized to provide limited financial support to the litigation through and within the organization’s annual budget-making process, with the expectation that adequate additional funding in support of the total expenses of litigation will be forthcoming by way of both pro bono contributions and lawful voluntary donations from interested citizens and organizations acting within applicable state and federal law.” 

Due to the specific wording of this resolution and the multitude of campaign finance questions surrounding this type of offensive lawsuit and bank account, I immediately requested from the Federal Election Commission (FEC) an opinion from them that would state whether the CRC was allowed to 1) open this type of bank account 2) use the funds raised on an offensive lawsuit challenging Proposition 108. The FEC told me that we would receive an opinion from them by November of 2022. Unfortunately, that timeline has not been followed.

Despite multiple follow-ups, calls, and emails from me, my staff, and our CRC attorney, we still have not received that opinion. I’m tired of waiting for it. The SCC was clear in the desire that this bank account be opened and I am choosing to move forward and open this account now. To be clear: there will be no funds disbursed from this account on a lawsuit until 1) it is clear from the FEC that the CRC is not breaking campaign finance laws 2) there is enough money in the account to fund such a lawsuit.

However, I believe that we must move forward and not continue to wait indefinitely for the FEC to render an opinion.

This week, I did open this account and donations can now be made to this fund to support the SCC approved challenge of Proposition 108. If you or someone you know wants to donate to this specific account, please make a check out to the Colorado Republican Committee and on the memo line put: Prop 108 Legal Fund.

Corporon did not immediately answer an email asking if

She clearly wasn’t the only one who didn’t like waiting. Eastman and Corporon filed last year’s lawsuit on behalf of several plaintiffs, including Ron Hanks and Laurel Imer, as well as Casper Stockham, one of the six candidates currently running to lead the Colorado Republican Party. The lawsuit was dismissed on standing, with the judge accepting the state’s argument that a handful of far-right (then-current and former) candidates could neither sue on behalf of the state party nor prevent hundreds of thousands of Colorado’s independent voters from participating in the primary of their choosing.

The difference this time is that Stockham and the other five current state GOP Chair candidates all support opting out of Colorado’s open primary, which would limit participants in the GOP candidate selection process to registered Republicans.

As the field stands now, it shouldn’t matter who wins, the new chair will presumably authorize another lawsuit, this time with the full backing of the party itself.

Another hopeful, former state Sen. Kevin Lundberg touted the lawsuit as his second priority in his state chair candidacy announcement: “We must challenge the unconstitutional open primary in federal court as soon as possible.”

Lundberg, along with fellow chair candidates Tina Peters and Aaron Wood, is part of the far-right Save Colorado Project, which has closing the primary as a top priority.

Former state Rep. Dave Williams posted an opt-out video to his Faceboook page, part of an entire website opposing the open primary he created in advance of the failed state Central Committe vote.

Former Congressional candidate Erik Aadland is also campaigning for state chair on his arguments for closing the primary.

“Closing our primary will prevent Democrats from influencing Republican primary election outcomes using advertising targeting unaffiliated voters,” wrote Aadland in a recent email. “Closing our primary will prevent Democrats from registering as unaffiliated voters to influence our primaries.”

Furthermore it’s not just the contenders for Chair who want to close the primaries. Current Vice Chair Priscilla Rahn, who is running for a second term, is already on record in support of opting out. Her only challenger so far, newly elected El Paso GOP Vice Chair Todd Watkins, lists “closed primaries” as his top priority.

Whomever becomes the new party chair will face long odds achieving this goal, whether they try another vote of the full Central Committee or hire Eastman and Corporon for another legal challenge. A successful committee vote would require more than double the number of “Yeas” from last time, while convincing a judge to overturn to a voter-approved ballot initiative is always a tall order.

In dismissing last year’s lawsuit, U.S. District Judge John Kane alluded to the odds when he wrote,

“Like Don Quixote, Plaintiffs are self-appointed heroes, defending the rights of their party by going to battle against the allegedly insurmountable obstacle of a three-fourths majority that compels a form of diluted political speech. They have overstepped their bounds…”

With the full weight of party leadership behind them, perhaps 2023 is the year the opt-outers will be able to muster a more fearsome charge at the Prop. 108 windmill.