Hanks, Bottoms, Willson sue to bar unaffiliated voters from Colorado GOP primary

DENVER — Three Republican primary candidates have asked a Denver District Court judge to stop the state from sending Republican primary ballots to unaffiliated voters and to declare Colorado’s semi-open primary system unconstitutional, in a suit filed last week and set for a preliminary-injunction hearing Thursday afternoon. The plaintiffs, Ron Hanks, Scott Bottoms and David Willson, are running in the June 30 GOP primary for U.S. House District 3, governor and attorney general, respectively; they argue that Colorado’s Proposition 108, approved by voters in 2016, violates the First Amendment’s right of association and the 14th Amendment’s Equal Protection Clause by forcing the party to let non-members help choose its nominees.

The complaint, filed in Denver District Court by Denver attorney Gary Fielder, names Colorado Secretary of State Jena Griswold and Gov. Jared Polis, both Democrats, as defendants. It challenges the constitutionality of C.R.S. § 1-7-201, the statute that implemented the semi-open primary, and asks the court to grant a preliminary injunction barring state election officials from mailing Republican primary ballots to unaffiliated voters, Colorado Politics reported. Denver District Court Judge Jon Jay Olafson set a hearing on the injunction request for 2:00 p.m. Thursday, May 14, only two days before the May 16 statutory deadline for county clerks to send primary ballots to military and overseas voters. Non-military mail ballots begin going out June 8.

What the suit asks

Proposition 108 passed in November 2016 with about 53 percent of the vote and was first implemented in the 2018 primary cycle. Under the law, unaffiliated voters, who make up just over 50 percent of Colorado’s roughly 4 million active registered voters, receive both a Democrat and a Republican primary ballot but may return only one. The plaintiffs argue that arrangement gives unaffiliated voters a structurally larger menu than registered Republicans and Democrats, each of whom receive only their own party’s ballot, and that it has “repeatedly and materially” altered Republican primary outcomes since 2018.

The filing includes a county-level statistical analysis of primaries held in June 2022, March 2024 and June 2024, the candidates contend, that shows unaffiliated voters “reversed what would otherwise have been clear victories for candidates preferred by affiliated voters.” Hanks finished second in the 2022 U.S. Senate Republican primary, behind Joe O’Dea, and second in the 2024 CD-3 Republican primary, behind Rep. Jeff Hurd. Hanks also points to Democrat primaries that he says were similarly affected by the unaffiliated electorate.

“Unaffiliated voters are not members of the Republican Party, and we respect their choice to remain outside either major party,” Hanks said in a statement issued with the filing. “But unaffiliated voters should not then be forcibly allowed inside our party primary, where their ballots dilute the votes of dedicated Republican members who maintain the party and uphold our principles.”

On The Kim Monson Show, Hanks described the requested relief in plain terms. “Our intent, our ask is that the Secretary of State’s office not deliver Republican ballots to unaffiliated,” he said. He added that the law has had measurable downstream effects since taking force: “Since Proposition 108 passed in 2016 and was really implemented in 2018, we have seen significant influences in race outcomes.” All three plaintiffs reached the primary ballot through the Republican state assembly held in Pueblo on April 11.

A separate federal case, and Hurd’s affidavit

The candidate suit is procedurally distinct from a parallel federal lawsuit brought by the Colorado Republican Party itself. In that case, U.S. District Court Judge Philip A. Brimmer on April 28 denied the state party’s emergency injunction, citing a longstanding doctrine that cautions courts against changing election rules “on the eve of an election.” An earlier Brimmer ruling on March 31 found that Proposition 108’s requirement that 75 percent of a major party’s central committee must vote in order to opt out of the state primary was unconstitutional, but left the rest of the law standing. The candidate complaint cites that March 31 decision as support for its own arguments.

Colorado’s four Republican U.S. House members, Reps. Jeff Hurd, Lauren Boebert, Jeff Crank and Gabe Evans, together with the National Republican Congressional Committee, moved on April 24 to intervene in the federal party-level case in opposition to the state party. In a sworn declaration filed with that intervention, Hurd wrote that closing the primary to unaffiliated voters would damage his own campaign. “Preventing unaffiliated voters from participating in the Republican primary election will cause me irreparable harm that cannot be remedied after the election,” Hurd’s affidavit said, according to reporting by KUNC and The Colorado Sun. On air, Hanks called the Hurd filing “galling” and said it inverted the harm at stake: “If we have unaffiliated in the Republican primary, it is causing the party members irreparable harm.”

Reaction

Griswold’s office said it expects the state-court suit to fail as well. “A similar effort from the Republican Party failed in Federal Court just last week,” her office said in an emailed statement. “We expect that this will fail, too. The content of the June Primary Ballot is certified, and Unaffiliated voters should be able to make their voices heard in accordance with Colorado law.”

A spokesman for Polis, Eric Maruyama, called the lawsuit “concerning.” “Our democracy works best when we have more participation, not less, and it’s concerning that these candidates are trying to exclude voters from participating in elections,” Maruyama said.

Republican intra-party reaction has been mixed. State Sen. Barbara Kirkmeyer, who is competing against Bottoms for the GOP gubernatorial nomination on the June 30 ballot, said the question has been settled. “This issue has already been litigated and ruled against in court. Bringing it back now is nothing more than a distraction that wastes taxpayer dollars on a fight that has already been settled,” Kirkmeyer said. “If Republicans want to win Colorado back, we should be focused on growing the party and welcoming unaffiliated voters into the movement, not pushing them away to vote for Democrats.”

District Attorney Michael Allen of the 4th Judicial District, Willson’s opponent in the attorney general primary, said he was “laser-focused on the serious problems we face here in Colorado, problems like out of control crime and a soaring cost of living. Fixing the mess we’re in starts with winning elections.”

What comes next

Olafson’s Thursday hearing will weigh the request for a preliminary injunction against the printing and mailing schedule already in motion at county clerks’ offices statewide. Absentee and overseas ballots are due in the mail by Friday, May 16; the bulk of Colorado ballots begin going out June 8. The plaintiffs have asked the court for expedited review.