COLORADO OPEN PRIMARY - CONSTITUTIONAL VIOLATION
Research and Case Law Summary
May 2026
THE ISSUE
Colorado's semi-open primary system, created by voter-approved Proposition 108 in 2016, allows unaffiliated voters to participate in Republican and Democratic primary elections. More than half of Colorado's registered voters are unaffiliated.
The Colorado State Republican Party Delegates (the ultimate authority) voted overwhelmingly to close the open primary. The State Central Committee also voted earlier to opt out of the open primary system.
Despite this, the system remains open due to legal challenges that have so far failed to produce emergency relief (due to biased judges) before the June 30, 2026 primary.
SUPREME COURT PRECEDENT
California Democratic Party v. Jones, 530 U.S. 567 (2000)
Decided: June 26, 2000
Vote: 7-2 in favor of the political parties
Author: Justice Antonin Scalia
Joined by: Rehnquist, O'Connor, Kennedy, Souter, Thomas, Breyer
Dissent: Stevens, joined by Ginsburg
The Supreme Court struck down California's blanket (open) primary (Proposition 198) as unconstitutional, ruling that it violates a political party's First Amendment freedom of association.
The Court held that political parties cannot be compelled to open their primaries to members of other parties or unaffiliated voters. The processes by which political parties select their nominees are not wholly public affairs that states may regulate freely. States must act within limits imposed by the Constitution when regulating parties' internal processes.
Key language from the ruling:
"In no area is the political association's right to exclude more important than in its candidate-selection process. That process often determines the party's positions on significant public policy issues, and the nominee is the party's ambassador charged with winning the general electorate over to its views."
"Proposition 198 forces parties to adulterate their candidate-selection process -- a political party's basic function -- by opening it up to persons wholly unaffiliated with the party, who may have different views from the party."
Justice Kennedy's concurrence established that blanket primaries give the state more control over political parties, and affirmed a negative right of association -- the right NOT to associate.
APPLICATION TO COLORADO
Colorado's Proposition 108 does exactly what California's Proposition 198 did -- it forces unaffiliated voters into party primaries. The Supreme Court already ruled in 2000 that this violates the First Amendment.
The federal judge in the Colorado case (Democrat appointed U.S. District Judge Philip A. Brimmer) actually agreed that the 75% threshold requirement in Colorado law for opting out constitutes an unconstitutional burden on the party's associational rights. However, the court refused to grant emergency relief, citing timing concerns with the upcoming election.
Grassroots LEGAL CHALLENGES
Two lawsuits have been filed:
1. The Colorado Republican Party filed suit in U.S. District Court challenging the semi-open primary system under the First Amendment. The court found the 75% opt-out threshold unconstitutional but denied emergency relief to block unaffiliated ballots for the 2026 cycle.
2. Three Colorado Grassroots candidates -- Scott Bottoms (Governor), Ron Hanks (CD3), and David Willson (Attorney General) -- filed a separate lawsuit in Denver District Court arguing the semi-open primary violates the 1st and 14th Amendments to the U.S. Constitution and the Colorado Constitution. This lawsuit was also denied.
THE FOUR REPUBLICAN CONGRESSMEN WHO OPPOSED CLOSING
Four sitting establishment Republican members of Congress from Colorado filed a motion to intervene in the case AGAINST their own state party's effort to close the primary. They sided with the Democrat US Senators and Congressmen, Democrat Secretary of State Jena Griswold and Democrat Governor Jared Polis.
The four:
- Jeff Hurd (CD3, Grand Junction)
- Lauren Boebert (CD4, Windsor)
- Jeff Crank (CD5, Colorado Springs)
- Gabe Evans (CD8, Fort Lupton)
These four congressmen argued that preventing unaffiliated voters from casting ballots in Republican primaries "could cause chaos."
Note: Jeff Crank is the same candidate who had approximately $2.7 million in dark money spent on his behalf to defeat Grassroots candidate Dave Williams in the 2024 CD5 primary (see 2024 Voter Guide).
THE CONSTITUTIONAL ARGUMENT
First Amendment -- Freedom of Association:
A political party (like a church) is a private association. The First Amendment protects the right of private associations to determine their own membership and internal processes, including who participates in selecting nominees. Forcing a party to allow non-members to choose its candidates violates this right. The Supreme Court confirmed this in California Democratic Party v. Jones (2000).
Fourteenth Amendment -- Equal Protection:
Allowing unaffiliated voters to participate in a party primary dilutes the voting strength of affiliated party members who maintain the party and uphold its principles.
Ron Hanks stated: "Unaffiliated voters are not members of the Republican Party, and we respect their choice to remain outside either major party. 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."
THE Grassroots POSITION
The Delegates at the Colorado State Assembly in Pueblo (April 11, 2026) voted overwhelmingly to close the primary by overriding the chair and casting an almost unanimous vote. The Delegates also voted to censured 15 RINOs (including Chair Britta Horn) on the State Executive Committee for their vote to keep the primary open. The State Central Committee had previously voted almost 80% no confidence in Chair Britta Horn.
The Grassroots candidates fighting to close the primary -- Bottoms, Hanks, and Willson -- are all endorsed by the Grassroots people.
The four congressmen who opposed closing the primary are aligned with the establishment and, by siding with Griswold, are working against the expressed will of their own party's Delegates.
KEY DATES
2016 -- Proposition 108 approved by Colorado voters
2000 -- Supreme Court rules blanket primaries unconstitutional (Jones)
Oct 1, 2025 -- Deadline for party to opt out of 2026 primary
March 31, 2026 -- Judge Brimmer rules 75% threshold unconstitutional
April 11, 2026 -- State Assembly in Pueblo, Delegates vote to close primary
April 20, 2026 -- CO GOP files emergency motion to block unaffiliated ballots
April 30, 2026 -- Judge denies emergency motion, four GOP congressmen oppose
May 8, 2026 -- Bottoms, Hanks, Willson file separate lawsuit
May 14, 2026 -- Hearing on candidates' lawsuit
June 30, 2026 -- Colorado primary election
RESOURCES
- VoteGrassroots.com -- Voter guide and candidate vetting
- RINOWatchCO.com -- RINO accountability and Grassroots news
- LibertyScoreCardCO.us -- Colorado legislator voting records
- California Democratic Party v. Jones -- 530 U.S. 567 (2000)
Full text: law.cornell.edu/supremecourt/text/99-401
Summary: ballotpedia.org/California_Democratic_Party_v._Jones
- Interviews, news and case law sources (cited below).
NEWS SOURCES AND CASE LAW REFERENCES
COLORADO NEWS COVERAGE
Colorado Politics
Most thorough coverage of both the federal and state lawsuits, the emergency motion, and all judicial rulings. Multiple articles spanning April-May 2026.
coloradopolitics.com
Key articles:
- CO GOP asks judge to bar state from sending Republican primary ballots to unaffiliated voters (April 22, 2026)
- CO GOP request denied by judge (April 28, 2026)
- Ron Hanks, Scott Bottoms and David Willson sue to stop unaffiliated voters from participating in June primary (May 9, 2026)
- Judge (democrat appointed) rules Colorado law makes it too hard for parties to bar unaffiliated voters (April 2, 2026)
Colorado Sun
Covered the federal judge's rejection and reported that Judge Brimmer found the 75% opt-out threshold constitutes a severe burden on the parties' right to association and is therefore unconstitutional.
coloradosun.com
Key articles:
- Federal judge rejects CO GOP's effort to block unaffiliated voters (April 28, 2026)
- CO GOP asks judge for emergency order (April 20, 2026)
CPR News (Colorado Public Radio)
Carried the Colorado Sun reporting on the federal judge's rejection. Also reported that the four Republican congressmen (Hurd, Boebert, Crank, Evans) joined the NRCC in opposing their own party's effort.
cpr.org
Colorado Newsline
Covered the candidates' lawsuit (Bottoms, Hanks, Willson) and the judge shutting down their attempt to block unaffiliated voters.
coloradonewsline.com
Key articles:
- Republican candidates sue to block unaffiliated voters (May 12, 2026)
- Judge shuts down Republican candidates' attempt (May 14, 2026)
Colorado Springs Gazette
Covered the emergency injunction request filed by the CO GOP.
gazette.com
Denver Gazette
Carried same coverage as the Colorado Springs Gazette on the emergency injunction.
denvergazette.com
Sentinel Colorado
Covered the candidates' lawsuit with Ron Hanks' full statement about unaffiliated voters diluting Republican votes.
sentinelcolorado.com
Westword
Covered the candidates' lawsuit. Noted that more than half of Colorado's registered voters are unaffiliated. Included Hanks' statement and Griswold's response.
westword.com
KKTV (CBS Colorado Springs)
Covered the candidates' lawsuit with responses from both Griswold's office and Governor Polis's office.
kktv.com
NOTE ON MEDIA FRAMING
Almost every Colorado outlet frames the Grassroots effort as "blocking" or "excluding" unaffiliated voters. Almost none frame it as a political party exercising its constitutionally protected First Amendment right of association -- a right the Supreme Court affirmed in 2000.
"Blocking voters" sounds anti-democratic. "Exercising First Amendment rights" sounds constitutional. Almost every outlet chose the first biased framing.
SUPREME COURT CASE LAW SOURCES
California Democratic Party v. Jones
530 U.S. 567 (2000)
Decided June 26, 2000 -- Vote: 7-2
Full text of the ruling:
Cornell Law Institute
law.cornell.edu/supremecourt/text/99-401
FindLaw
caselaw.findlaw.com/court/us-supreme-court/530/567.html
Justia
supreme.justia.com/cases/federal/us/530/567
Case summaries and analysis:
Ballotpedia -- Clean summary of case and ruling
ballotpedia.org/California_Democratic_Party_v._Jones
First Amendment Encyclopedia (MTSU) -- Academic analysis
firstamendment.mtsu.edu/article/california-democratic-party-v-jones/
Casebriefs -- Law student summary including Kennedy's concurrence on the negative right of association
casebriefs.com/blog/law/constitutional-law/california-democratic-party-v-jones/
Quimbee -- Case brief summary
quimbee.com/cases/california-democratic-party-v-jones
RELATED CASE LAW
Eu v. San Francisco County Democratic Central Committee
489 U.S. 214 (1989)
Supreme Court ruled that states cannot dictate the internal governance of political parties. Cited in Jones as establishing that the First Amendment reserves a special place for the party nominee selection process.
Democratic Party of United States v. Wisconsin
450 U.S. 107 (1981)
Supreme Court ruled that a national party's rules on delegate selection override state law. Reinforces that party associational rights under the First Amendment take precedence over state election regulations.
COLORADO CASE INFORMATION
Federal case (CO GOP v. Griswold):
U.S. District Court for the District of Colorado
Judge Philip A. Brimmer
Attorneys for CO GOP: Randy Corporon, Alexander Haberbush
Constitutional consultant: John Eastman
Defendants: Governor Jared Polis, Secretary of State Jena Griswold
State case (Hanks, Bottoms, Willson v. Polis):
Denver District Court
Attorney for plaintiffs: Gary Fielder
Plaintiffs: Candidates Ron Hanks (CD3), Scott Bottoms (Governor) and David Willson (AG)
Defendants: Governor Jared Polis, Secretary of State Jena Griswold