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Voters drop off their ballots on Tuesday, Nov. 2, 2021, at the Blair-Caldwell African American Research Library in Denver. (Olivia Sun, The Colorado Sun)

Unaffiliated voters will be able to participate in Colorado’s June 28 Democratic and Republican primaries after a federal judge on Friday evening dismissed a lawsuit seeking to block them from casting ballots in the upcoming contests.

Senior U.S. District Judge John Kane rejected the claims in a lawsuit filed by three current and former Republican candidates and two GOP county chairs.

“If plaintiffs did have standing to bring their claims, they have not demonstrated that their claims warrant the extraordinary relief they seek,” Kane wrote.

The lawsuit sought to overturn Proposition 108, a 2016 ballot measure approved by voters allowing unaffiliated voters, who make up the state’s largest voting bloc, to participate in Colorado’s partisan primary elections. The measure was aimed at making the electoral process more inclusive.

Lawyers for the Republican plaintiffs argued that Proposition 108 violates the First Amendment right to associate or not associate with whom you choose.

The plaintiffs were represented by John Eastman, the controversial lawyer who advised former President Donald Trump on how to try to overturn the 2020 election, and Randy Corporon, a Republican National Committee member and conservative talk radio host. 

But Grant Sullivan, Colorado’s assistant solicitor general, argued the plaintiffs — who include state Rep. Ron Hanks, a Republican running for U.S. Senate, and Laurel Imer, a Republican running to represent the 7th Congressional District — didn’t have standing to sue Secretary of State Jena Griswold in the case.

He said only the Colorado Republican Party could bring the suit on its behalf, noting that the party’s central committee voted overwhelmingly against opting out of the primary last fall. 

Sullivan asked Kane to dismiss the case. He also asked the judge to reject the effort for a preliminary injunction preventing Colorado’s roughly 1.7 million unaffiliated voters from participating in the June 28 primary.

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“Changing the process, especially this close to the election, would confuse voters,” Sullivan said.

Corporon argued that unaffiliated voters could still change their affiliation to Republican or Democratic and vote in the primary. ​​“If there is some expense to a county, if there is some expense to the state, that is an acceptable expense to prevent the violations of First Amendment rights,” Corporon said. “Your issuance of a preliminary injunction does not harm in any way the public’s interest.”

Kane ultimately sided with the state’s attorneys.

“Like Don Quixote, plaintiffs are self-appointed heroes,” Kane wrote. “They have overstepped their bounds.”

Unaffiliated voters are far more likely to vote in Democratic primaries than Republican primaries, data from the last two election cycles show. In the June 2020 primary, unaffiliated voters made up 38% of ballots cast in the Democratic primary and only 25% of ballots cast in the Republican primary.

Jesse Paul

The Colorado Sun — Desk: 720-432-2229 Jesse Paul is a political reporter and editor at The Colorado Sun, covering the state legislature, Congress and local politics. He is...

Sandra Fish

Special to The Colorado Sun Twitter: @fishnette