Colorado Election Law Update, 0917 COBJ, Vol. 46, No. 8 Pg. 52


46 Colo.Law. 52

Colorado Election Law Update

Vol. 46, No. 8 [Page 52]

The Colorado Lawyer

September, 2017

August, 2017



Over the last year, Colorado approved three ballot measures and passed four statutes modifying the state’s election laws. This article reviews these new authorities and discusses their impact on future elections.

In 2016, Coloradans approved three ballot measures—one constitutional amendment and two statutory propositions—relating to the state’s elections. A few months later, the General Assembly passed four bills amending Colorado’s election and campaign finance laws. In all, the state tackled open primaries, initiatives, ballot selfies, dark money, and a number of other topics. This article summarizes these recent changes and analyzes their effects on the 2018 election and beyond.

Open Primaries: Propositions 107 and 108

Propositions 107 and 1081 adopted “open” primaries in Colorado. The two measures were approved in the 2016 election—Number 107 with 64% of the vote, and Number 108 with 53% of the vote.2

Proposition 107

Proposition 107 concerns presidential primaries. Since 2000, Colorado has selected its delegates to the Democratic and Republican National Conventions through the caucus system.[3] Politically minded readers may recall that in 2016, the state GOP cancelled the presidential vote for its caucus, which meant that the state’s Republican delegates were not bound to any candidate at the party’s national convention.4 Tat same year, the Democratic caucuses saw record turnout, which caused logistical problems in the form of long lines and delays.5

Motivated in large part by their experiences at the 2016 caucuses, proponents of Proposition 107 set out to “restore a presidential primary in Colorado beginning in 2020.”6 Because “Colorado voters experienced disenfranchisement and profound disappointment with the state’s system for participation in the presidential nomination process in 2016,”[7] Proposition 107 throws out the caucus system and replaces it with a primary election, which must be held “not later than the third Tuesday in March” in a presidential election year.8

Proposition 107 also makes the presidential primary open, meaning that voters unaffiliated with any political party may participate in a primary.9 Originally the measure contemplated “a single combined ballot to be used by unaffiliated electors” that contained the names of all candidates, broken down into political parties.10 But in the 2016 legislative session, lawmakers changed that provision; instead, unaffiliated voters who have not provided a ballot preference will receive “a ballot packet that contains the ballots of all the major political parties.”11 Unaffiliated voters “may cast the ballot of only one major political party.”12 “If an elector casts and returns to the clerk the ballot of more than one major political party, all such ballots returned will be rejected and will not be counted.”13 Once the votes are in, the secretary of state will tabulate them, and each political party must “allocate all national delegate votes to the presidential primary candidate receiving the highest number of votes and to bind members of the state’s delegation to vote for that candidate at the party’s national convention.”14 It is, in other words, an all-or-nothing proposition for presidential candidates: the winner in Colorado is awarded all of the state’s delegates, who are bound to that candidate.

Proposition 108

Similar to Proposition 107, Proposition 108 opens all primary elections in Colorado to unaffiliated voters. “Because primary elections are paid for by taxpayers,” the measure begins, “all eligible voters who want their voices to be heard should be able to vote in those elections.”15 Proposition 108’s stated goal is to increase primary election turnout, involve more voters, and “encourage candidates who are responsive to the viewpoints of more Coloradans.”16

Under the new law, clerks and recorders send unaffiliated voters “a mailing that contains the ballots of all the major political parties.”17 As with the presidential primary, unaffiliated voters may only participate in one party’s primary; if an unaffiliated voter attempts to cast a ballot in more than one primary, her vote will not be counted.18

The law includes a couple important exceptions. Political parties can opt out of the primary process entirely, and instead nominate their candidate by an assembly or convention. To do that, “at least three-fourths of the total membership of the party’s state central committee votes to use the assembly or convention nomination process . . . .”19 In a similar vein, minority parties also get an exception: they can outright prohibit unaffiliated voters from participating “so long as the prohibition is in accordance with the party’s constitution, bylaws, or other applicable rules.”20 Why these caveats? They’re likely intended to stave off a First Amendment challenge to the new law. In California Democratic Party v. Jones, the U.S. Supreme Court held that political parties’ free-association rights include the right to choose their own leaders. In Jones, the Court struck down California’s “blanket primary” law, holding that it “forces political parties to associate with—to have their nominees, and hence their positions, determined by—those who, at best, have refused to affiliate with the party . . . .”21 At the same time, laws requiring open primaries have generally withstood constitutional scrutiny so long as parties are given the option to pick another nomination method.[22] Proposition 108 seems to ft squarely in that framework.

The Propositions’ Impacts

What effects will Propositions 107 and 108 have on Colorado’s elections? To begin with, the state will almost certainly see more spoiled ballots. If an unaffiliated voter misses the notice stating that she may only vote in one party’s primary and selects candidates from two different parties, the whole ballot will be voided. Thus, at least some unaffiliated voters’ ballots will not be counted.

Substantively, the new laws will probably increase voter turnout. About one-third of Colorado voters aren’t affiliated with any political party.23 Thus, Propositions 107 and 108 open the state’s primaries to about another 1.2 million voters.24 While unaffiliated voters have a lower turnout rate,25 it’s safe to say more votes will be cast in the next primary election, and particularly in 2020 when the next presidential primary is held. The caucus system that the presidential primary replaces was criticized on a number of grounds:

■ The process is “confusing and inaccessible,” and run by “inexperienced volunteers.”

■ Caucuses don’t “protect[] voter confidentiality” because participants must “publicly declare their candidate preference.”

■ It is difficult for voters to attend the caucuses because they’re held on a weekday evening and can last for several hours.26

Thus, with the primary system improving the process, there will almost certainly be a substantially higher turnout in the next presidential race.

Finally, it’s an open question whether the new laws will affect the primary elections themselves. Both Propositions 107 and 108 explicitly state that they would “encourage candidates who are responsive to the viewpoints of more Coloradans.”27 The theory is that primaries tend to attract the most ardent party loyalists, those who are farthest to the right or left, depending on the party.28 As a result, moderate candidates tend to lose.29 Or. as the Blue Book put it in slightly more clinical terms, “[i]n a closed primary, voter participation is typically low and the candidates selected often appeal to a small number of their party’s more active members.”[30] But unaffiliated voters have lower turnout rates, and at least some empirical evidence suggests that primary voters have less knowledge about the candidates and therefore cannot discern the ideological differences between them.31 Thus, there’s some question about whether opening a primary will actually help moderate candidates.

At the same time, there are hints that Propositions 107 and 108 have already had some effect. Kent Thiry, the chairman and CEO of healthcare company DaVita, was the propositions’ primary backer, giving more than $1 million for the effort;32 he’s now mulling a run for governor in 2018.33 Similarly, state Senator Owen Hill recently announced that he’ll challenge Congressman—and fellow Republican—Doug Lamborn in Colorado’s 5th Congressional District primary.34

Raising the Bar: Amendment 71

Another major legal development is the passage of Amendment 71, the “Raise the Bar” measure...

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