Opinion: Colorado Republicans should abandon the open primary through vote or court

Hyoung Chang, The Denver Post

 The crowd at the Colorado Republican State Assembly at the Coors Event Center on April 14, 2018.

By RANDY B. CORPORON | Guest Commentary

September 8, 2021 at 11:00 a.m.

My good friend George Brauchler has offered a defense of Colorado’s present open primary system and warned of dire consequences if the Republican Party’s State Central Committee votes to abandon it at the upcoming September 18 meeting. Our disagreement illustrates how divisive the new open primary system has become: there are good people and loyal Republicans on both sides.

First, let’s address the suggestion that in April of 2016, presidential candidate Donald Trump called for Colorado to move to an open primary. He did not. In his April 15, 2016, Wall Street Journal column, presidential candidate Trump was calling for a presidential primary to replace the state assembly nomination process used in Colorado for decades. The question of an open primary for all state and local offices was and is a totally separate issue from a presidential primary.

In 2016 many Republicans did support the reestablishment of a Colorado presidential primary, but very few had in mind a presidential primary open to non-Republicans. A bill introduced late in the 2016 legislative session, House Bill 1454, proposed to establish a presidential primary in Colorado wherein unaffiliated voters would be invited to join the party of their choice for the sole purpose of voting in the Republican or Democrat presidential primary.  That bill was killed by the Republican majority in the state Senate on May 10, 2016.

The root of the present controversy is that the current state primary election law established by Proposition 108 requires each major party to vote every two years to accept the open primary or “opt-out.”  But, it allows the opt-out only through a 75% supermajority vote of all Central Committee members, whether those members are present by proxy or in-person to vote or not present and voting at all. No other agency of state government, regulatory body, school board, county commission or other political entity is forced to make decisions by that absurd 75% rule. And as a final nail in the coffin, it provides that if Republicans do vote to opt-out, they have only two narrow options as alternatives — choose party nominees by assembly or by state convention.

The current debate in the Republican Party over “opting out” of the open primary is skewed by near-demagogic scaremongering about closing down “our primary” in 2022. How is it any longer “our primary” if (1) Republicans cannot change it except by permission of the Democrat majority in the legislature, (2) more non-Republicans than Republicans will receive Republican ballots and be invited to select Republican nominees for the general election, and (3) we cannot reject it except by the unconstitutional, insurmountable-by-design 75% supermajority vote.Top of Form

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Republicans need not accept as permanent the Hobson’s choice created in current law, and we need not beg Democrats to help us change it. Based on two U.S. Supreme Court decisions in 2000 and 2007, that 75% barrier and other severely constrictive provisions encased in a statute are unconstitutional infringements on Colorado Republicans’ First Amendment rights. They will not stand up to scrutiny if taken to federal court.

At the 2017 meeting of the Republican State Central Committee, in answer to a question from the floor, the Republican Party’s own attorney acknowledged that a lawsuit challenging the constitutionality of Proposition 108 would be a winnable case. The debate over litigation has turned on cost, not merit.

It is pointless for the Republican State Central Committee to continue year after year debating the severely restrictive and clearly unconstitutional straightjacket created by current law. We should take the issue straight to federal court, and appeal the case all the way to the U.S. Supreme Court if necessary.

What is the “acceptable cost” for recovering our First Amendment rights under the Constitution? The real question Republicans should ask is, expensive compared to what? What is the estimated cost to all Coloradans of continuing on the present course with the state government under the control of a coalition of radical Democrats, with Republican candidates increasingly chosen by non-Republicans voting in Republican primaries?

Litigation in federal court will not be prohibitively expensive and will not draw funding away from the financial support of Republican candidates. That threat is a bogeyman with a solution in sight.

Time is short and America is in peril like no other time in living memory. Only a reinvigorated Republican Party able to nominate courageous, principled Republican candidates can lead Colorado out of the maze of false promises created by Proposition 108.

Randy B Corporon is a Republican National committeeman, chairman of the Arapahoe Tea Party and radio host on 710KNUS.