Primary Election Legal Wiki: Colorado Primary

Colorado Primary

OPEN PRIMARY

In a closed primary election, only voters registered with a political party that has qualified for a primary election may vote. They may only vote on ballots for their registered political party.

Overview

In Colorado, over 37% of registered voters do not identify with one of the major parties.1 Coloradoans recently voted to open their primaries through approval of Proposition 108, which opened all of Colorado's primaries, including presidential, congressional and state races.

Primary System

Previous to November 2016, Colorado conducted caucuses instead of presidential primaries, and their congressional and state elections involved closed primaries. In the November 2016 election, voters approved Proposition 107, which brought presidential primaries back to the state, and Proposition 108, which opened both those new presidential primaries, as well as congressional and statewide races.

Major political parties in Colorado are required to hold primary elections, and minor political parties only have access to the primary election process under certain conditions.4 The only parties which have qualified as major political parties in Colorado are the Republican and Democratic Parties.5

Colorado's primaries are paid for out of the treasury of the county or state.6

Important Statistics 7

Voter Registration 8

Election Turnout 9

Election Competitiveness 10

Legislation

Legislature

House Bill 15-1354 has been proposed which would create an open primary system in Colorado.11  The Bill has been indefinitely postponed.

Voter Initiative/Referendum

In 2014, there was an effort to put an initiative on the ballot which would change Colorado's primary system to a top-four system.12 In a top-four system, all candidates are placed on the same ballot and all voters have access to that ballot. The top-four vote-getters proceed to the second stage of the election. Ultimately, the measure did not make the ballot as proponents withdrew support, deciding to seek the ballot in 2015 instead.

Relevant Law to State

I. Analysis

Colorado’s laws create a system which bars over 37% of its electorate from participation in the primary election process. Based upon election competitiveness statistics, Colorado's primary is often the only election that has a material impact upon who ultimately gets elected. These elections are also paid for by tax dollars. Therefore, the system is questionable under both the U.S. and Colorado Constitutions.

II. State Constitution

• Colo. Const. Art. II § 1
• Colo. Const. Art. II § 5
• Colo. Const. Art. II § 25
• Colo. Const. Art. V § 34
• Colo. Const. Art. VII § 1
• Colo. Const. Art. VII § 11

III. Statutes

• Colo. Revised Statutes § 1-1-103
• Colo. Revised Statutes § 1-1-104
• Colo. Revised Statutes § 1-4-101
• Colo. Revised Statutes § 1-4-1304
• Colo. Revised Statutes § 1-7-201
• Colo. Revised Statutes § 1-8.5-101

IV. Cases

State

• Ams. United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072 (S. Ct. of Colo. 1982)
• Colo. Auto & Truck Wreckers Assoc. v. Dep't of Revenue, 618 P.2d 646 (Colo. 1980)
• In re Interrogatory Propounded by Romer, etc., 814 P.2d 875 (Colo. 1991)
• Jarmel v. Putnam, 499 P.2d 603 (S. Ct. of Colo. 1972)
• Littlejohn v. People, 121 P. 159 (S. Ct. of Colo. 1912)

Federal

• Common Cause of Colorado v. Buescher, 750 F.Supp.2d 1259 (D. Colo. 2010)

See also generally applicable federal law

Colo. Const. Art. II § 1

Relevant Portion: "In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare:

All political power is vested in and derived from the people; all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole."

Full Text: http://tornado.state.co.us/gov_dir/leg_dir/olls/constitution.htm#ARTICLE_II_Section_1

Colo. Const. Art. II § 5

Relevant Portion: "All elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."

Full Text: http://tornado.state.co.us/gov_dir/leg_dir/olls/constitution.htm#ARTICLE_II_Section_5

Colo. Const. Art. II, § 25

Relevant Portion: "No person shall be deprived of life, liberty or property, without due process of law."

Full Text: http://tornado.state.co.us/gov_dir/leg_dir/olls/constitution.htm#ARTICLE_II_Section_25

Colo. Const. Art. V § 34

Relevant Portion: "No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association."

Full Text: http://tornado.state.co.us/gov_dir/leg_dir/olls/constitution.htm#ARTICLE_V_Section_34

Colo. Const. Art. VII § 1

Relevant Portion: "Every citizen of the United States who has attained the age of eighteen years, has resided in this state for such time as may be prescribed by law, and has been duly registered as a voter if required by law shall be qualified to vote at all elections."

Full Text: http://tornado.state.co.us/gov_dir/leg_dir/olls/constitution.htm#ARTICLE_VII_Section_1

Colo. Const. Art. VII § 11

Relevant Portion: "The general assembly shall pass laws to secure the purity of elections, and guard against abuses of the elective franchise."

Full Text: http://tornado.state.co.us/gov_dir/leg_dir/olls/constitution.htm#ARTICLE_VII_Section_11

Colo. Revised Statutes § 1-1-103

Relevant Portion: "(1) This code shall be liberally construed so that all eligible electors may be permitted to vote and those who are not eligible electors may be kept from voting in order to prevent fraud and corruption in elections."

Full Text: http://www.lexisnexis.com/hottopics/colorado/

Colo. Revised Statutes § 1-1-104

Relevant Portion: "(1.2) "Affiliation" means an elector's decision to affiliate with either a political party or a political organization, as defined in subsections (24) and (25) of this section.

(12) "Elector" means a person who is legally qualified to vote in this state.

(16) "Eligible elector" means a person who meets the specific requirements for voting at a specific election or for a specific candidate, ballot question, or ballot issue. If no specific provisions are given, an eligible elector shall be a registered elector

(22) "Major political party" means any political party that at the last preceding gubernatorial election was represented on the official ballot either by political party candidates or by individual nominees and whose candidate at the last preceding gubernatorial election received at least ten percent of the total gubernatorial votes cast.

(23) "Minor political party" means a political party other than a major political party that satisfies one of the conditions set forth in section 1-4-1303 (1) or has submitted a sufficient petition in accordance with section 1-4-1302.

(25) "Political party" means either a major political party or a minor political party.

(49.5) "Unaffiliated" means that a person is registered but not affiliated with a political party"

Full Text: http://www.lexisnexis.com/hottopics/colorado/

Colo. Revised Statutes § 1-4-101

Relevant Portion: "Except as provided by section 1-4-1304 (1.5), only a major political party...is entitled to nominate candidates in a primary election.

All nominations by major political parties for candidates for United States senator, representative in congress, all elective state, district, and county officers, and members of the general assembly shall be made by primary elections.

All expenses incurred in the preparation or conduct of the primary election shall be paid out of the treasury of the county or state, as the case may be, in the same manner as for general elections."

Full Text: http://www.lexisnexis.com/hottopics/colorado/

Colo. Revised Statutes § 1-4-1304

Relevant Portion: "A minor political party may nominate candidates for offices to be filled at a general election by petition.

A minor political party may nominate candidates for offices to be filled at a general election by assembly. An assembly shall be held no later than seventy-three days preceding the primary election.

If an assembly designates more than one candidate for an office, or if an assembly designates one or more candidates and one or more candidates qualifies by petition, the candidate of the minor political party for that office shall be nominated at a primary election held in accordance with this code.

Nothing in this section shall be construed to prevent any eligible elector associated with a political organization that does not qualify as a minor political party in an election from qualifying for the ballot by petition as an unaffiliated candidate."

Full Text: http://www.lexisnexis.com/hottopics/colorado/

Colo. Revised Statutes § 1-7-201

Relevant Portion: "Any registered elector who has declared an affiliation with a political party that is participating in a primary election and who desires to vote for candidates of that party at a primary election shall show identification...write his or her name and address on a form available at the voter service and polling center, and give the form to one of the election judges.

If the name is found on the registration list, the election judge having charge of the list shall likewise repeat the elector's name and present the elector with the party ballot of the political party affiliation last recorded. If unaffiliated, the eligible elector shall openly declare to the election judges the name of the political party with which the elector wishes to affiliate, complete the approved form for voter registration information changes, and initial the registration list in the space provided. Declaration of affiliation with a political party shall be separately dated and signed or dated and initialed by the eligible elector in such manner that the elector clearly acknowledges that the affiliation has been properly recorded. Thereupon, the election judges shall deliver the appropriate party ballot to the eligible elector. Eligible electors who decline to state an affiliation with a political party that is participating in the primary shall not be entitled to vote at the primary election."

Full Text: http://www.lexisnexis.com/hottopics/colorado/

Colo. Revised Statutes § 1-8.5-101

Relevant Portion: "Any unaffiliated elector at a primary election may cast a regular party ballot upon openly declaring to the election judge the name of the political party with which the elector wishes to affiliate"

Full Text: http://www.lexisnexis.com/hottopics/colorado/

Ams. United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072 (S. Ct. of Colo. 1982)

For a public purpose to exist when considering Article V, Section 34 of the Colorado Constitution, the legislation must demonstrate a discrete and particularized public purpose which, preponderates over any individual interests incidentally served by the statutory program.

Full Text: https://scholar.google.com/scholar_sdt=6&as_vis=1&oi=scholarr

Colo. Auto & Truck Wreckers Assoc. v. Dep't of Revenue, 618 P.2d 646 (Colo. 1980)

In the Colorado Constitution, equal protection is included within due process of law.

Full Text: https://casetext.com/case/colo-auto-truck-wreckers-v-dept-of-rev

In re Interrogatory Propounded by Romer, etc., 814 P.2d 875 (Colo. 1991)

Although the language of Colo. Const. Art. V, § 34 seems to suggest that no private entities can ever receive public funds, it is still constitutional for those entities to receive public funds where the apportionment serves a primarily public purpose.

Full Text: https://casetext.com/case/in-re-interrogatory-by-governor-romer

Jarmel v. Putnam, 499 P.2d 603 (S. Ct. of Colo. 1972)

"[T]he right to vote is at the core of [Colorado's] constitutional system and is a fundamental right of every citizen."

Full Text: https://casetext.com/case/jarmel-v-putnam

Littlejohn v. People, 121 P. 159 (S. Ct. of Colo. 1912)

"[Colo. Const. Art. II, § 5] means that every qualified elector shall have an equal right to cast a ballot...and that no act shall be done by any power, civil or military, to prevent it."

Common Cause of Colorado v. Buescher, 750 F.Supp.2d 1259 (D. Colo. 2010)

Colorado's registration system was challenged. Voter registration was cancelled if the notice of registration in the mail was returned as deliverable. The system was upheld as a means of confirming residency requirements for electors.

Full Text: https://casetext.com/case/common-cause-of-colorado-v-buescher