By Andrew Botolino
Boston University News Service
In a precedent-setting decision, Chief Judge Philip A. Brimmer of the U.S. District Court of Colorado denied the Colorado Republican Party’s attempt to exclude registered independents from voting in its primary elections. Brimmer ordered the ruling Friday after hearing a motion for preliminary injunction the week prior.
The Colorado Republican Party, led by John C. Eastman, one of the attorneys indicted in former president Donald Trump’s efforts to overturn his 2020 election loss in Georgia, claimed its party members are “deprived of their constitutional rights to free association and speech” when independents vote in its semi-open primaries.
Brimmer rejected both of these claims. “A political party does not have a constitutional right to nominate its candidates by a certain method,” he wrote, adding that, “increasing voter participation justifies the minimal burden imposed on the Party’s free speech rights.”
In 2000, the U.S. Supreme Court ruled that the blanket primary system, in which voters, regardless of party affiliation, receive one ballot with every candidate’s name, was unconstitutional on First Amendment grounds. The Colorado Republican Party based much of its argument on that ruling, despite the Supreme Court noting that the 2000 case “does not require us to determine the constitutionality of open primaries.”
A slim majority of Colorado’s electorate voted Proposition 108, a measure that opened primaries up to independents for the first time, into law in 2018. Proposition 108 included the option for the Democratic and Republican parties to exclude independent voters from its respective primaries with a three-fourths majority vote, a mark that the Colorado Republican Party has attempted but failed to reach.
Minor parties, such as the Libertarian or Green Party, do not have the same opt-out requirement. The Colorado Republican Party claimed this distinction violated the equal protection clause of the 14th Amendment.
But Brimmer ruled the distinction between major and minor parties was in “the legitimate state interest of ensuring administrative efficiency,” adding that “political parties are not ‘an inherently suspect class’ under the Equal Protection Clause.”
The Colorado Republican Party also worried that the 46% of Colorado voters who are registered as independents could elect a candidate “opposed to the party platform,” Trent England, a fellow at the Oklahoma Council of Public Affairs, testified. “There is a potential that you could have an organized effort of [independent voters] who could hijack the Republican primary.”
“That fear is mostly unfounded, at least in the research to date,” John Sides, a Political Science Professor at Vanderbilt University who also testified in the preliminary injunction hearing, wrote in an email.
“Most of the time, parties are seeking a balance between a candidate whose beliefs are acceptable to multiple factions in the party and a candidate who can win the general election,” wrote Sides. In the trial, some Republicans testified that including independent voters in their primaries helped achieve that, Sides wrote, adding that “registering as unaffiliated doesn’t mean you lack any loyalty to a party.”
In New Hampshire, which held its Republican presidential primary on January 23, 40% of the electorate registered as independent.
Former U.N. Ambassador Nikki Haley won New Hampshire independents by 22% points. Trump took the republican vote by 49 points, creating the starkest difference between the Republican and independent vote in the New Hampshire Republican primary’s history, 31 points greater than the previous high.
“For unaffiliated voters to decide a primary outcome, you need two conditions,” wrote Sides. “Their preferences have to be substantially different from partisans…and they have to be numerous enough compared to the number of partisans.”
Even with those conditions met in New Hampshire, Haley lost the state’s primary by eleven points.
Massachusetts votes on March 5, along with 14 other states and one territory. It holds a semi-open primary.
