ACLU Attorney Agrees With GOP Activists: Strict Rules for Opting Out of Open Primaries Could Be Struck Down

(Promoted by Colorado Pols)

Citing “interference with the political rights of association” of the Colorado Republican Party, an American Civil Liberties Union of Colorado (ACLU) attorney says Colorado Republican activists advocating to opt out of open primaries might have a viable legal case in challenging a state law requiring a supermajority of 75% of the party’s governing body to opt out of open primaries.

Despite their claims that the supermajority requirement is unfair and likely unconstitutional, the opt-out advocates aim to convince 75% of the 518-member GOP Central Committee to vote Sept. 18 to ditch open primaries, and thereby ensure a Republican-only process is in place for the 2022 election cycle.

“The party members who want to challenge that 75% requirement might very well have a point,” Mark Silverstein, Legal Director of the ACLU of Colorado, told the Colorado Times Recorder. “Here, the state of Colorado in Proposition 108 says that a decision by the political party can be made to opt out, but the state won’t consider that decision valid unless there’s this supermajority.

“How does the state have the right to dictate to the Republican Party what percentage of its membership — or what percentage of its central committee — must vote to make a decision for the party? You know, what if the state said [that] before the Republicans can take a position on abortion, it must be approved by 90% of its members? It is certainly interference with the political rights of association of the Party. Nobody would think that the state could do that.”

In a radio interview last month, Randy Corporon and Chuck Bonniwell, both attorneys and members of the GOP executive and state central committees, discussed why the authors of Proposition 108 might have included the 75% requirement for opting out.

They cited as precedent cases in which the courts have ruled that, under First Amendment protections for the freedom of association, private entities such as political parties cannot be forced to accept nominees chosen by electors who include nonmembers of the party.

Bonniwell asserts that the opt out clause releases Proposition 108 from “forcing” the parties to participate in the open primary against their wills.

The supermajority requirement, however — while protecting the intention of Colorado voters who prevailed in passing Proposition 108 — could possibly be ruled as creating an overly burdensome barrier for parties exercising their option to opt out of open primaries, they said.

Bonniwell also points out the added difficulty imposed by requiring approbation by 75% of all of the committee members, and not just 75% of the members present and voting on the issue.

BONNIWELL: “[They] tried to mandate the Republican Party and Democratic Party to take unaffiliated voters in Utah and California. [The] Supreme Court ruled against it. The district court in Utah ruled against it. So, they said, ‘Oh, we’ll be really tricky and … we’ll make it almost impossible. We’ll have [the requirement that] you have to have 75% of all the [GOP Central Committee] membership [in order to opt out.]’ So, if you don’t show up or don’t vote, that constitutes a ‘no.’ So, we’ve got to get 75% to say ‘yes’ at the September 18 meeting.”  CORPORON: “There is some conversation also about challenging the constitutionality of Prop 108 and the 75% threshold requirement for the Republican Central Committee to if they want to opt out of the primary.” BONNIWELL: “It’s in all likelihood unconstitutional. You can’t go, ‘We’ll make it almost impossible for you.’ It’s unconstitutional to make it impossible. So, is it okay to make it almost impossible?”

Another central committee member advocating for the opt out, Ben Nicholas, expressed a similar opinion during a podcast interview last November, claiming that a “state party” Republican attorney also believed the 75% requirement wouldn’t hold up in court:

“It takes 75% of the state’s central committee members to vote and opt out, which is unconstitutionally high, in my opinion. And even our state party attorney had to agree that it is a winnable case if we ever brought the damned thing to court.”

Other Republican leaders have offered opinions on the issue, including many who argue against opting out of the primaries, making the 75% threshold a moot point. In radio appearances, dueling op-eds, internet posts, surveys, and statewide meetings with county GOP leaders, Republicans have been debating the fairness and political implications of opting out of open primaries and choosing their nominees through caucus, assembly, or convention.

Some Favor Challenging Entire Prop. 108 Law

Former longtime Republican legislator and current director of Republican Study Committee of Colorado, Kevin Lundberg, supports the effort to extricate the Republican Party from the open primary system.

In an article published on his website and cross-posted on others, Lundberg encourages leaders on the central committee to skip the vote on opting out, so as not to legitimize it, and instead vote by simple majority to file a lawsuit to challenge the constitutionality of Proposition 108 in its entirety.

In a phone interview with the Colorado Times Recorder, Lundberg pointed out that simply opting out of state open primaries prevents Republicans from having a Republican-only primary and petitioning onto the ballot, a situation he sees as unacceptable.

“And then the option they have is not to go back to a Republican primary, but the option they have is no primary at all, and to do it through the assembly process which … makes it impossible for somebody to petition onto the ballot,” Lundberg explained. “And so it’s just completely dysfunctional, … it does not give a reasonable option. My contention is that the party should not, therefore, try to follow the the requirements of this provision because it really doesn’t work. … I’m saying, no, we need to go to the courts and say Prop 108 is not functional and shouldn’t be adhered to.”

Lundberg references the Supreme Court ruling that struck down California’s blanket primary system, which he believes is a precedent for courts to consider in a potential ruling on Colorado’s Proposition 108.

George Athanasopoulos, a GOP operative and former candidate for chairman of the party and for Congress, made a similar plea back in 2017, calling to delay the implementation of Proposition 108, or to challenge the statute in federal courts.

“If a bill delaying the implementation of Proposition 108 is not passed,” wrote Athanasopoulos, “the Colorado Republican Party will seek injunctive relief through the courts. We will be successful because the constitutional precedent is clear and the urgency of our cause readily apparent. As Justice Antonin Scalia stated in the Supreme Court’s California Democratic Party v. Jones 7-2 opinion, ‘A single election in which the party nominee is selected by nonparty members could be enough to destroy the party.”

RELATED: Lundberg Joins Tancredo, Williams, and Hanks in Opposing Open Primaries for Colorado Republicans

When asked why these issues of constitutionality were not raised during the campaign for Proposition 108 in 2016, Lundberg said that people were distracted by its companion referred measure, Proposition 107, which replaced presidential caucuses with presidential primary elections and was more widely embraced by Colorado voters.

But in 2017, facing the first open primary election under Proposition 108, the prospect of challenging the statute in the courts was in fact raised with the GOP state central committee, of which Lundberg was still a member at the time. The committee voted on opting out of open primaries but failed to reach the required 75% threshold, according to Lundberg.

Lundberg said a proposal to challenge Proposition 108 in court was discussed in 2017 and rejected as too costly.

“Back then, the vote … [was] to try to opt out and just go with an assembly process. And when I looked at all this, I said, ‘Well, that’s not the vote you need to take.’ … The only logical way is to take it to the courts. Now, I understand that there was a follow-up motion back in 2017 that said just that. But but then somebody got up and said, ‘Well, it’s going to cost too much money.’ And that pretty much scared everybody away from it. The point is the committee –by a simple majority– needs to simply say have a vote up or down. If the committee by a majority opinion says, ‘no, we don’t want to pursue this,’ then that’s their choice.”

If a legal challenge to Proposition 108 prevailed in federal courts, Lundberg would prefer the party return to a closed primary system, which would allow only registered Republicans to participate.

“Then the court has to determine what the remedy would be,” Lundberg elaborated. “And I should hope that the remedy they would choose would be to simply invalidate 108 and go back to the system that existed prior to that, which was the primary vote in the Republican primaries. So that that’s what I’m calling for. … And I also recognize, that if the courts were to drag this on, it may not apply for the 2022 primaries. You know, we may be stuck with the same reality next year. But I’m hopeful that we can square this up. … But I believe that the two party system has served our country well and I don’t want to diminish it, I want to strengthen it.

Last Saturday, on his conservative talk radio show on KNUS, GOP National Committeeman Randy Corporon echoed Lundberg’s sentiments, arguing that opting out of primaries and selecting nominees by caucus or assembly is not the end game.

“The idea that we’re saying not to hold a primary, that’s absolutely not true,” said Lundberg on air. “We get through this first step in September. Our next step is going to be to have the whole dang thing declared unconstitutional. Or I would have to take a deep, hard look at that, because it’s been been proven so in California and elsewhere.”

Corporon shed light on the division among Republicans who support or oppose open primaries. Historically, the far-right, grassroots activists in the Republican Party are pushing the legal challenges to strike Proposition 108 in part or in its entirety.

“People should remember that Kent Thiry spearheaded this thing,” said Corporon. “Now he’s been indicted, and I don’t know anything that’s going on there. But he was running for governor. He didn’t catch fire in the Republican Party, of course, because he was a very middle-of-the-road … sort of Republican. But you just have to look at the people that put this thing together and then are fighting to keep it. And then I get so frustrated when I hear commentators talking about how this will be a group of elites deciding our candidates and our future Republican. It’s the elites that implemented this process and use their money to decide the squishy, non-platform-supporting Republicans that win our primaries. And we’re going to do everything we can to stop it. 

Asked to comment on the Republican divide surrounding the open primary issue, Lundberg — who is Corporon’s ally in this fight — said, “I’m not trying to make it a Waterloo for anybody or such a big issue that it tears things apart. I just think we ought to look at it. And as I say, all I’m asking for is, let’s have an honest vote within the ruling body of the party in Colorado. And that’s called the Central Committee.”

RELATED: Bid to Opt Out of Open Republican Primaries in CO Is Close to Success, Now With Help From Tancredo, Say Organizers

Many Republican activists and operatives have argued that allowing unaffiliated voters to participate in primaries for Democratic and Republican nominees — as mandated by voter-approved Proposition 108 — has resulted in a losing streak for GOP candidates, attributed to moderate Republicans and Democratic donors supporting “weak” GOP candidates who compromise the party’s principles and platform.

On their campaign website, the opt-out activists depict the problem they face this way:

10 Community Comments, Facebook Comments

  1. davebarnes says:

    I am getting confused.

    Are the GOPers trying to go back to closed primaries; i.e., party members only?

    Or, are they attempting to do away with primaries period?

    • drdrbcat says:

      I'm confused as well. I hate to say THEY are also confused but I'm wondering.

    • Michael Lund says:

      some whom I've talked to would seem to prefer a closed primary.  But the statute of Proposition 108 dictates that the only primaries in Colorado will be open primaries, funded by the state.  So, a closed primary is not an option. 

      If the party wants to opt out of open primaries, they may with a 75% vote of approval among the entire state central committee.  However, if they opt out, they will choose their nominees by caucus, assembly, or convention.  

      https://www.sos.state.co.us/pubs/elections/Initiatives/titleBoard/filings/2015-2016/98Final.pdf

      Some activists have talked about designing their own style of assembly or convention which would broaden access and participation by as many Rs as possible.  Without customizing their assembly process, the current caucus would involve about 4,000 Colorado Republicans. 

  2. Conserv. Head Banger says:

    @barnes: everything is confusing. I attended my Republican precinct caucus a couple times before 107 and 108 were passed. We weren't allowed to take any votes on anything since the "decisions" had already been made by "party elders."

    I stopped going. One of my cul-de-sac neighbors; now deceased; felt the same way and he stopped attending.

  3. RepealAndReplace says:

    Political parties, under the free association clause in the First Amendment and subject to certain limited exceptions not relevant here, can make rules as to how they candidates are selected and state law cannot dictate otherwise.

    And as far as I’m concerned, they can abolish their primary altogether and just let the Trump family vet their candidates.

    It’s his party, he can do what he wants…..

  4. JohnInDenver says:

    I'm wondering about the state's right to offer:the Republican party their choice:

     * If you want the state to pay for a primary, the rule is allow unaffiliated voters to vote their opinions.

     * If you want to coordinate a "party only" primary with the state's, you have to meet our dates and pay a proportion of costs equal to the party's portion of registered voters.

     * If you don't want to play by our rules or help pay for the election, select your nominees however you want and let us know who they are by 90 days in advance of the general election.

  5. MattC says:

    I do not understand and I hope as many Republicans as choose get to opt out and have their own closed primary and other events.

    Who decides who gets to use the name "republican?"

    Could the opt out republicans just call themselves the Republicans – CP

    (closed primary) ?

  6. ElliotFladen says:

    The freedom of association argument for political parties always seemed to be an odd one for me for a crucial reason: political parties don’t control their membership. The Secretary of State does. As far as I know political parties get NO say in whether a person wishes to join it.

    You know how some nativists repeat the canard that a country without borders is not a country? While this canard always has a fundamental problem (decision not to enforce a right in a specific fashion does not mean right doesn’t exist), a country that had no RIGHT to control its borders – regardless of decision to exercise it, does seem to be less of a country.

    Well, if that is the case, how is a group that has no ability to control its a membership (borders) a group with a right to freedom of association?  And how the hell are Athanasopoulos, Bonniwell, and Corporon – all of whom (if I recall correctly) the ones who get most agitated about drummed up purported dangers of countries not being countries for failing to control their borders – the ones crying foul here?

    It seems quite inconsistent 

  7. MichaelBowman says:

    As a member of the central committee, is that a hard NO, Mark? 

    Democrats will celebrate – and win – if Colorado GOP snubs unaffiliated voters

    In the last two elections, Republicans running statewide have started with a turnout deficit, so they needed to persuade more unaffiliated voters than did their Democrat opponents.  But instead of improving their strategy to win the hearts and minds of unaffiliated votes (UAVs), Republicans have been falling further behind.  Barack Obama won 60% of UAVs in 2012; Hillary Clinton won 62% in 2016; Jared Polis won 65% of UAVs in 2018; and Joe Biden won 65% of UAVs in 2020.

    If Republicans continue to produce a smaller share of general election voters and lose UAVs by 2-to-1, GOP statewide candidates will be irrelevant.  But it doesn’t have to be this way.  In 2014, while Democrat John Hickenlooper won 67% of UAVs, Republican Attorney General candidate Cynthia Coffman won 58% of UAVs.

    That’s why the current effort by some Republicans to eliminate our primary election to stop UAVs from influencing the outcome is courting disaster.

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