Colorado Republican Party v. Griswold

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 23-cv-01948-PAB-KAS
COLORADO REPUBLICAN PARTY, an unincorporated nonprofit association, on behalf
of itself and its members,
Plaintiff,
v.
JENA GRISWOLD, in her official capacity as Colorado Secretary of State,
Defendant.
ORDER
This matter comes before the Court on defendant Jena Griswold’s Motion for
Summary Judgment [Docket No. 102] and plaintiff Colorado Republican Party’s Motion
for Partial Summary Judgment [Docket No. 105]. Defendant Jena Griswold (the
“Secretary”) and plaintiff Colorado Republican Party (the “Party”) filed responses.
Docket Nos. 107, 108. The Secretary and the Party filed replies in support of their
respective motions for summary judgment. Docket Nos. 113, 114. The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
I. 	PROCEDURAL BACKGROUND
On July 31, 2023, the Party filed this case, challenging the constitutionality of
Colorado’s semi-open primary system. Docket No. 1. On December 22, 2023, the
Party filed a motion for a preliminary injunction, asking that the Court enjoin the
Secretary from enforcing the semi-open primary system. Docket No. 39 at 15. The
Court held a two-day evidentiary hearing on the preliminary injunction motion on
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January 23-24, 2024. Docket Nos. 67-68. The Court denied the preliminary injunction
motion on February 2, 2024. Docket No. 69. The Secretary filed her motion for
summary judgment on April 4, 2025, and the Party filed its motion for partial summary
judgment on April 8, 2025. Docket Nos. 102, 105.
II. 	FACTS 1
In 2016, Colorado voters approved Proposition 108, a ballot initiative allowing for
a semi-open primary system, which permits voters not affiliated with a political party to
vote in major parties’ nonpresidential primary elections. 2 Docket No. 102 at 2, ¶ 1.
Unaffiliated voters receive a mailing containing the primary ballots of all major political
parties, but the voter “may cast the ballot of only one major political party.” Id., ¶ 4
(quoting Colo. Rev. Stat. § 1-4-101(2)(b)). Voters affiliated with a political party may
only vote in their party’s primary. Id., ¶ 5. The State of Colorado and the counties pay
for all expenses incurred in administering semi-open primary elections. Id., ¶ 3.
Proposition 108 requires major political parties to nominate candidates for the
general election through a semi-open primary system, unless they opt out pursuant to
statute. Id., ¶ 2. The Colorado Republican Party and Colorado Democratic Party are
major political parties as defined by Colorado law. Id. at 3, ¶ 13. Major political parties
may opt out of the semi-open primary system and elect to use an assembly or
convention nominating process if “three-fourths of the total membership of the party’s
1 The following facts are undisputed unless otherwise noted.
2 A “major political party” is defined as “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.”
Colo. Rev. Stat. § 1-1-104(22).
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state central committee” votes to “use the assembly or convention nomination process.”
Id., ¶ 6 (quoting Colo. Rev. Stat. § 1-4-702(1)).
Minor political parties 3 may “prohibit unaffiliated electors from voting in the party’s
primary election so long as the prohibition is in accordance with the party’s constitution,
bylaws, or other applicable rules.” Id., ¶ 7 (quoting Colo. Rev. Stat. § 1-4-1304(1.5)(c)).
Since the passage of Proposition 108, only one minor political party has held a primary
election, in one election cycle. Id., ¶ 8. Minor parties typically use the assembly
nomination process. Id., ¶ 9. Minor parties often do not field candidates for every open
seat in a given election. Id., ¶ 10. Minor party candidates rarely win seats in the
general election. Id., ¶ 11. In circumstances where unaffiliated voters would be
permitted to vote in minor party primaries, the costs involved would include the
following: the costs of making minor party ballots available to unaffiliated voters; the
administrative effort required to train county clerks and educate the electorate about
minor party primaries; and increased risk of voter confusion. Id., ¶ 12.
The 2016 State Ballot Information Booklet released by the Legislative Council of
the Colorado General Assembly, in a section entitled “Arguments For” Proposition 108,
stated that “Allowing unaffiliated voters to participate in primary elections may result in
candidates who better represent all Coloradans,” and “Opening the primary election
may result in candidates who are more responsive to a broader range of interests.”
Docket No. 105 at 2, ¶ 15.
3 A “minor political party” is defined as “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.” Colo. Rev. Stat.
§ 1-1-104(23).
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Since the passage of Proposition 108, no major political party has opted out of
the semi-open primary system. Id. at 4, ¶ 14. On September 21, 2019, the Party’s state
central committee (the “Committee”) voted on a motion to opt out of Colorado’s 2020
semi-open primary. Id., ¶ 15. The motion failed to achieve the three-fourths opt-out
threshold. Id. On September 18, 2021, the Committee voted on a motion to opt out of
Colorado’s 2022 semi-open primary, and that motion failed. Id., ¶ 16. There were
171.6 votes, or 32.9% of the Committee’s total membership, in favor of the motion and
241.3 votes, or 46.3% of the total membership, against the motion. Id. On September
30, 2023, the Committee voted on whether to opt out of the 2024 semi-open primary,
which again failed to achieve the three-fourths opt-out threshold. Id., ¶ 17. There were
259 votes in favor of the motion and 143.5 votes against. Id. The Party estimates that,
as of September 30, 2023, the Committee’s total membership was approximately 420,
meaning that less than two-thirds of the Committee’s total membership voted in favor of
opting out of the semi-open primary. Id., ¶ 18. The Committee has successfully voted
on other issues with more than three-fourths of the Committee’s members voting in
favor, with some votes being unanimous. Id., ¶ 19. The Committee’s members have
expressed a range of views about Proposition 108, with some members of the
Committee objecting to opting out. Id. at 5, ¶ 22. Members of the Committee who are
opposed to opting out believe, among others reasons, that adopting a convention or
assembly nomination method would result in too few voters participating in the
nomination process, opting out would make the Party an “insider party,” opting out
would run contrary to Republican values, and opting out would reduce Republicans’
chances of success in the general elections and in swing districts. Id., ¶ 23. Members
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of the Party have described the three-fourths requirement as being “nearly impossible to
achieve” or “very difficult.” Docket No. 107 at 2, ¶ 1.
“Party raiding,” where a voter participates in a party’s primary with malicious
intent, is rare. Docket No. 102 at 5, ¶ 24. Since the passage of Proposition 108,
plaintiff’s expert Trent England is not aware of any evidence of successful party raiding.
Id. at 6, ¶ 25. The Party cannot identify any nonpresidential primary election in
Colorado where the outcome was changed by the participation of unaffiliated voters.
Id., ¶ 26. The Party also cannot identify any nonpresidential primary election in
Colorado where the candidate favored by the plurality or majority of unaffiliated voters
differed from the candidate favored by the plurality or majority of registered Party voters.
Id., ¶ 27. Mr. England is unaware of any empirical research showing that, since the
passage of Proposition 108, more moderate or different kinds of candidates have won
their respective party’s nomination. Id., ¶ 28. There is no conclusive evidence
demonstrating that open primary formats result in winning candidates with more
moderate ideologies. Id., ¶ 30. The witnesses at the preliminary injunction hearing who
had been Republican Party candidates conceded that they did not moderate or alter
their policy positions to appeal to unaffiliated voters. Id. at 6-7, ¶ 31. The fact that the
number of unaffiliated voters participating in an election was greater than the margin of
victory in a given election does not show that the unaffiliated voters’ participation
resulted in the selection of a different candidate than would have been selected in a
closed primary. Id. at 7, ¶ 32. The largest study concerning primary rules and
candidates’ platforms found that changing the openness of primary rules did not result
in systematic changes in platforms. Id., ¶ 33. Political science literature does not
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provide systematic evidence that changes in primary rules have produced different
candidate messages or messages that are less traditionally associated with candidates’
political party. Id.
Voter turnout is higher in open primary systems. Id., ¶ 34. Before the passage of
Proposition 108, primary turnout in Colorado was only a few percentage points above
the national average. Id., ¶ 35. After Proposition 108, turnout increased to eight points
above the national average. Id. In Colorado’s 2020 primaries, turnout exceeded the
turnout in Colorado’s 2016 primaries by 24%. Id., ¶ 36.
As of November 1, 2023, there were 929,561 active Republican voters,
1,053,385 active Democratic voters, and 1,871,868 active unaffiliated voters in the State
of Colorado. Id., ¶ 37. As of April 1, 2025, there were 942,120 active Republican
voters, 1,041,589 active Democratic voters, and 1,990,552 active unaffiliated voters.
Id., ¶ 38. Since Proposition 108 took effect in 2018, the percentage of unaffiliated
voters participating in Republican primary elections has increased. Docket No. 107 at
3, ¶ 3. In 2018, approximately 100,000 unaffiliated voters participated in Republican
primary elections, 130,000 unaffiliated voters participated in 2020, and more than
231,000 unaffiliated voters participated in 2022. Docket No. 105 at 2, ¶ 14. In 2018,
unaffiliated voters cast 20.1% of the total votes cast in Republican primaries statewide.
Docket No. 107 at 3, ¶ 3. In 2020, that percentage increased to 23.3%, and in 2022,
the percentage increased to 37.1% statewide. Id. In some counties, in 2022 and 2024,
the number of unaffiliated voters came close to or in some cases exceeded the number
of Republican voters voting in Republican primaries. Docket No. 105 at 12; Docket No.
102-12 at 12, ¶ 29. In Denver County, for example, 27,977 unaffiliated voters cast
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ballots in the 2024 Republican presidential primary, compared to 18,350 Republicans.
Docket No. 105 at 12; Docket No. 102-12 at 12, ¶ 29. 4
The Party’s expert, George Khalaf, conducted a survey after the preliminary
injunction hearing that shows large differences in how Republican and unaffiliated
voters view themselves ideologically. Docket No. 105 at 2-3, ¶ 18; Docket No. 105-3 at
11, ¶ 28. 5 The survey shows that “these two groups of voters do not share a common
identity or set of political values or ideologies.” Docket No. 105-3 at 11, ¶ 28.
The Party also remains free to limit and expand the Republican Party’s state
central committee’s total membership after satisfying the statutory minimums for
committee memberships required by Colorado law. Docket No. 102 at 8, ¶ 39. The
Party also remains free to control when, where, and how central committee meetings
are held, how members are notified of meetings, the quorum required to call meetings
to order, and the method of committee votes. Id., ¶ 41. The Party remains free to
endorse any candidate platform, to criticize or support candidates’ positions, and to
encourage voters to support particular candidates. Id., ¶ 42.
III. 	LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
4 The Secretary does not contest that, in some counties, like Boulder County,
Jefferson County, and Denver County, the number of unaffiliated voters voting in
Republican primaries exceeded the number of Republicans. See Docket No. 105 at 12.
5 The Secretary argues that Mr. Khalaf’s survey data is “too unreliable to provide
insight into differences in behavior between registered Party members and unaffiliated
voters.” Docket No. 108 at 3-4, ¶ 18. While the Secretary challenges Mr. Khalaf’s
findings regarding unaffiliated voting behaviors, she does not challenge Mr. Khalaf’s
finding that Republican voters and unaffiliated voters have different ideologies.
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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). A
movant who bears the burden at trial must submit evidence to establish the essential
elements of its claim. Harper v. Mancos Sch. Dist. RE-6, 837 F. Supp. 2d 1211, 1217
(D. Colo. 2011).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115.
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When reviewing a motion for summary judgment, a court must view the evidence
in the light most favorable to the non-moving party. Id. Cross-motions for summary
judgment must be viewed separately, and the denial of one does not necessitate the
granting of the other. United States v. Supreme Court of N.M., 839 F.3d 888, 906-07
(10th Cir. 2016) (citations omitted).
IV. 	ANALYSIS
The Party asserts two claims: (1) Proposition 108 violates the Party’s right to
freedom of association under the First Amendment; and (2) Proposition 108’s opt-out
provision violates the Party’s right to freedom of association under the First
Amendment. See Docket No. 1 at 10-15. The Secretary moves for summary judgment
on both of the Party’s claims, and the Party moves for partial summary judgment on its
as-applied challenges to Proposition 108 as to Counts 1 and 2. 6 Docket No. 102 at 1;
Docket No. 105 at 3.
A. The Party’s Motion for Partial Summary
The Party seeks summary judgment on its as-applied challenge under Counts
One and Two. See Docket No. 105 at 3. An as-applied challenge “tests the application
of that restriction to the facts of a plaintiff’s concrete case.” Harmon v. City of Norman,
Okla, 61 F.4th 779, 789 (10th Cir. 2023) (citation omitted). To succeed on an as-
6 The complaint also includes a First Amendment freedom of speech claim, a
Fourteenth Amendment vote dilution claim, and a Fourteenth Amendment equal
protection claim. Docket No. 1 at 15-20. After filing its motion for partial summary
judgment, the Party represented that it will dismiss Counts Three, Four, and Five. See
Docket No. 107 at 19, 20-21. Accordingly, the Court will dismiss these claims and only
address Counts One and Two.
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applied challenge, the plaintiff must provide “a developed factual record and the
application of a statute to a specific [plaintiff].” Id. (citation omitted).
“The First Amendment protects the right of citizens to associate and to form
political parties for the advancement of common political goals and ideas.” Timmons v.
Twin Cities Area New Party, 520 U.S. 351, 357 (1997). The Supreme Court has
recognized that “the freedom to join together in furtherance of common political beliefs
. . . necessarily presupposes the freedom to identify the people who constitute the
association, and to limit the association to those people only. That is to say, a corollary
of the right to associate is the right not to associate.” Cal. Democratic Party v. Jones,
530 U.S. 567, 574 (2000) (citations and quotations omitted). “In no area is the political
association’s right to exclude more important than in the process of selecting its
nominee. That process often determines the party’s positions on the most significant
public policy issues of the day, and even when those positions are predetermined it is
the nominee who becomes the party’s ambassador to the general electorate in winning
it over to the party’s views.” Id. at 575. Accordingly, Supreme Court cases “vigorously
affirm the special place the First Amendment reserves for, and the special protection it
accords, the process by which a political party ‘select[s] a standard bearer who best
represents the party’s ideologies and preferences.’” Id. (quoting Eu v. San Francisco
Cnty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989)). 7
7 A political party also has a First Amendment right to include who it wants to
participate in its primaries. See Tashjian v. Republican Party of Conn., 479 U.S. 208,
214 (1986) (invalidating state law that prohibited unaffiliated voters from participating in
primary elections where the Republican Party wanted such voters to participate).
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“On the other hand, it is also clear that States may, and inevitably must, enact
reasonable regulations of parties, elections, and ballots to reduce election- and
campaign-related disorder.” Timmons, 520 U.S. at 358. “The Constitution grants states
the right to prescribe ‘[t]he Times, Places and Manner of Holding Elections for Senators
and Representatives,’ Art I, § 4, cl. 1, and the Supreme Court has held that states enjoy
similar authority to regulate their own elections.” Utah Republican Party v. Cox, 892
F.3d 1066, 1076 (10th Cir. 2018) (citing Tashjian, 479 U.S. at 217). “States have a
major role to play in structuring and monitoring the election process, including
primaries.” Jones, 530 U.S. at 572. These regulations “will invariably impose some
burden upon individual voters and political parties.” Utah Republican Party, 892 F.3d at
1077.
Amidst this “confluence of interests,” courts analyze electoral regulations using
the Anderson–Burdick balancing test. Id. Under Anderson–Burdick,
a court considering a challenge to a state election law must weigh ‘the character
and magnitude of the asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate’ against the ‘precise
interests put forward by the State as justifications for the burden imposed by its
rule,’ taking into consideration ‘the extent to which those interests make it
necessary to burden the plaintiff’s rights.’
Id. (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). Election regulations that
impose “severe burdens” on a party’s associational or free speech rights are subject to
strict scrutiny, and a court will only uphold the regulation if it is “narrowly tailored to
serve a compelling state interest.” Id. (quoting Clingman v. Beaver, 544 U.S. 581, 586
(2005)); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
451 (2008); Timmons, 520 U.S. at 358.
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“[T]he severity of the burden that a primary system imposes on associational
rights is a factual, not a legal, question,” on “which the Party bears the burden of proof.”
Democratic Party of Hawaii v. Nago, 833 F.3d 1119, 1123, 1125 (9th Cir. 2016). The
Supreme Court has previously addressed the constitutionality of: (i) a closed primary
system, which restricted primary participation to registered voters of each party,
Tashjian, 479 U.S. 208; (ii) a blanket primary system, where the primary ballot listed
every candidate regardless of party affiliation and allowed the voters to choose freely
among the candidates, Jones, 530 U.S. 567; (iii) a non-partisan, blanket primary
system, where the top two winners advanced to the general election, Wash. State
Grange, 552 U.S. 442; and (iv) a semi-closed primary system, which allowed a political
party to open its primary to unaffiliated voters, but not registered voters of other parties.
Clingman, 544 U.S. 581.
1. 	Whether Proposition 108 Imposes a Severe Burden on the
Party’s Associational Rights
The undisputed facts regarding primary elections in Colorado since the
implementation of Proposition 108 show no harmful effects to the Party. The Party
cannot identify any nonpresidential primary election in Colorado where the outcome was
changed by the participation of unaffiliated voters or where the candidate favored by the
plurality or the majority of unaffiliated voters differed from the candidate favored by the
plurality or the majority of Party voters. The Party’s expert, Trent England, is unaware
of any empirical research showing that, since the passage of Proposition 108, more
moderate or different kinds of candidates have won their respective party’s nomination.
In light of this evidence, the Secretary claims that the Party fails to show that
Proposition 108 imposes a severe burden on the Party’s association rights.
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The Party argues that it does not need to provide proof that unaffiliated voters
have affected the outcome of Republican primaries. Docket No. 105 at 9. Rather, the
Party contends that it must show the danger of unaffiliated voters doing so in order to
demonstrate a severe burden to its First Amendment rights of association. Id. at 9-14.
The Secretary disagrees, arguing that the Party must adduce empirical evidence
showing that unaffiliated voters have affected the outcome of Republican primaries to
demonstrate a severe burden. See Docket No. 108 at 9. The Secretary contends that
the Party’s failure to do so means that it cannot prevail on its as-applied challenge
under Counts One and Two. See id.
In holding that California’s blanket primary system was unconstitutional, Jones
relied on a survey showing that 37 percent of California Republicans planned to vote in
the Democratic gubernatorial primary, while 20 percent of California Democrats planned
to vote in the Republican senate primary. Jones, 530 U.S. at 578. Jones also relied on
a survey of California voters that “revealed significantly different policy preferences
between party members and primary voters who ‘crossed over’ from another party.” Id.
In response to the lower court’s reliance on testimony that the prospect of party raiding
was slight and would be determinative in “only a small number of races,” Jones
responded that “a single election in which the party nominee is selected by nonparty
members could be enough to destroy the party.” Id. at 579. Jones held that California’s
blanket primary system not only had the effect of altering the identity of the nominee,
but that, “[e]ven when the person favored by a majority of the party members prevails,
he will have prevailed by taking somewhat different positions – and, should he be
elected, will continue to take somewhat different positions in order to be renominated.”
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Id. at 579–80. Jones held that it is an “obvious proposition that these substantial
numbers of voters who help select the nominees of parties they have chosen not to join
often have policy views that diverge from those of the party faithful.” Id. at 578. Thus,
Jones held that the evidence of crossover voting demonstrated a severe burden on
plaintiff’s First Amendment rights of association because there was “a clear and present
danger” that the party’s nominee would be “determined by adherents of an opposing
party.” Id.
Since the preliminary injunction hearing, the Party has submitted undisputed
evidence analogous to that relied upon in Jones, namely, the degree to which non-party
members vote in Republican primaries and differences in policy views between Party
members and unaffiliated voters. Moreover, such evidence, while not showing any
adverse effects on elections that have taken place since 2018, nevertheless shows a
clear and present danger of party nominees being determined by non-party members.
This danger is greatly increased by the large numbers of unaffiliated voters in Colorado.
In 2025, over half of the active voters in Colorado were unaffiliated voters. The
Republican Party and the Democratic Party each have approximately 25% of the active
voters. As a result, if the primaries of the major parties are open to unaffiliated voters,
there is the possibility of large numbers of unaffiliated voters participating. And, not only
has that been the case, but the degree of participation has been growing dramatically.
In 2018, 100,000 unaffiliated voters participated in Republican primaries; in 2020,
130,000 unaffiliated voters; and in 2022, 231,000 unaffiliated voters. Given the large
numbers of unaffiliated voters, the effects in some counties’ primaries have far
exceeded what Jones considered. In some counties, more unaffiliated voters have
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voted than Republicans voters in the Republican primaries. For instance, in the Denver
County primary in 2024, 18,350 Republicans voted as compared to 27,977 unaffiliated
voters. Docket No. 105-3 at 12, ¶ 29. Jones held that “[i]n no area is the political
association’s right to exclude more important than in the process of selecting its
nominee.” Jones, 520 U.S. at 575. When more non-party members vote in a primary
election than party members, that right has been severely compromised.
The Secretary asserts that there is no evidence that unaffiliated voters have
changed the outcome of Republican primaries, either by selecting different candidates
than those preferred by the majority of the Party or by nominating more moderate
candidates. See Docket No. 102 at 6-7, ¶¶ 26-33. However, the Party has produced
evidence that unaffiliated voters have different policy views than those of Republican
voters. A survey done by Mr. Khalaf shows that “these two groups of voters do not
share a common identity or set of political values or ideologies.” Docket No. 105 at 11;
Docket No. 105-3 at 11, ¶ 28. This is the kind of evidence – which “reveal[s]
significantly different policy preferences between party members and primary voters
who ‘crossed over’ from another party” – that Jones relied upon. See Jones, 530 U.S.
at 578. Moreover, even without the survey data, the Party has shown a severe burden
on its First Amendment association right. By allowing unaffiliated voters to participate in
major party primaries, Proposition 108 “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.” Id. at 577. The fact that the votes of
Republican voters and unaffiliated voters have not yet demonstrably diverged does not
mean the absence of a clear danger of them doing so in the future and does not mean
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that in counties where more unaffiliated voters than Republican voters participate in
primaries that the outcome of the elections are not controlled by non-party members.
Thus, despite the undisputed evidence of no known electoral harm in previous
primaries, the Party has shown that Proposition 108’s requirement that primaries be
open to unaffiliated voters constitutes a severe burden.
The Court turns to the Party’s argument that the three-fourths opt-out provision is
“constitutionally problematic in its own right.” Docket No. 105 at 20. The Party argues
that this “threshold is extraordinary, rarely if ever applied to other parliamentary contexts
because it is nearly impossible to meet for any contested question.” Id. Major political
parties may opt out of the semi-open primary system and instead conduct an assembly
or convention to nominate candidates if “three-fourths of the total membership of the
party’s state central committee” votes to opt out. Colo. Rev. Stat. § 1-4-702(1). Since
the passage of Proposition 108, no major political party has opted out of the semi-open
primary system. The Republican central committee on several occasions entertained
motions to opt out, but each time the motion failed to achieve a three-quarter vote. In
fact, the votes in favor of opting out have never exceeded two-thirds. While members of
the central committee have a diversity of views regarding whether it is in the interests of
the Party to opt out, some members of the Party have described the three-fourths
requirement as “very difficult” or “nearly impossible” to achieve. Docket No. 107 at 17.
The background and origin of the three-fourths opt-out provision is unclear.
What is clear is that it constitutes an unusual and difficult barrier for the central
committee to overcome, more akin to a hurdle to amend a foundational governing
document, such as the United States Constitution, than a traditional means of regulating
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political parties. It is true that the central committee here has approved motions by a
three-fourths or even unanimous vote. But there is no evidence that such motions have
involved issues of any substance. As a result, the theoretical possibility cannot
overcome the obvious – the three-fourths opt-out provision erects an extraordinary
barrier for a decision of this nature, namely, a political party choosing not to affiliate with
non-party voters. 8 Thus, the Court finds that, rather than the opt-out provision saving
the constitutionality of Proposition 108 by giving the Party the right to avoid a semi-open
primary, the opt-out provision creates a severe burden on the Party’s association right
by making it highly unlikely that an opt out motion will succeed. 9
2. 	State’s Interests
As discussed above, under Anderson–Burdick,
a court considering a challenge to a state election law must weigh ‘the character
and magnitude of the asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate’ against the ‘precise
interests put forward by the State as justifications for the burden imposed by its
rule,’ taking into consideration ‘the extent to which those interests make it
necessary to burden the plaintiff’s rights.’
8 The court in Greenville Cnty. Republican Party Exec. Comm. v. South Carolina,
824 F. Supp. 2d 655, 668 (D.S.C. 2011), upheld a similar three-fourths opt-out
provision, but did so on the grounds that it was analogous to a state requiring a
candidate to obtain a certain percentage of signatures to gain access to the general
election ballot. That is not the ground on which the Secretary defends the provision
and, in any event, the Court does not agree with the analogy.
9 In the Court’s order denying the Party’s motion for a preliminary injunction, the
Court cited Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006), as
authority for the validity of the three-fourths opt-out provision. See Docket No. 60-9 at
18-19. In Walker, the Tenth Circuit denied a facial challenge to Utah’s constitutional
provision imposing a two-third supermajority requirement for citizen ballot initiatives
related to wildlife management. See Walker, 450 F.3d at 1085, 1105. Walker held that
“a constitutional provision imposing a supermajority requirement for enactment of
initiatives on specific topics does not implicate the freedom of speech.” Id. at 1085.
Here, however, the three-fourths opt-put provision does not implicate the freedom of
speech, but rather stands as a barrier to whether the Party has the ability to opt out of a
semi-open primary. Thus, Walker is distinguishable.
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Utah Republican Party, 892 F.3d at 1077 (quoting Burdick, 504 U.S. at 434). Given that
the Party has shown Proposition 108 imposes a severe burden on its First Amendment
right of association – by allowing unaffiliated voters to participate in the semi-open
primary and by failing to provide a realistic mechanism for opting out – the Secretary
must provide a compelling reason for both the semi-open primary and the opt-out
provision. The Secretary argues that the State has two compelling interests served by
Proposition 108: increasing voter participation and promoting the stability of elections.
See Docket No. 108 at 13-17.
First, the Secretary argues that Proposition 108 offers unaffiliated voters access
to the state’s major party primaries and thereby allows them to participate in selecting
the candidates who will run for the state’s public offices in the general election. Docket
No. 102 at 17-18. The Secretary points out that, since the implementation of
Proposition 108, the turnout for primary elections has increased significantly. The
Supreme Court in Jones considered the state’s argument that a blanket primary would
ensure that an otherwise disenfranchised person had the right to an effective vote.
Jones, 530 U.S. at 583. The Court rejected the interest, noting that the Court had held
in other cases that a “nonmember’s desire to participate in the party’s affairs is
overborne by the countervailing and legitimate right of the party to determine its own
membership qualifications,” id. (citing Tashjian, 479 U.S. at 215-216 n.6), and noting
that such voters, in order to participate in the primary, have the option of registering with
the party. Id. at 583-84. 	As the Fourth Circuit held in Miller v. Brown, 503 F.3d 360,
371 (2007), “[w]hile allowing the broadest possible group of voters to participate in a
primary may be desirable, this interest cannot overcome the severe burden placed upon
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a political party when it is forced to associate with those who may not share its views.”
Thus, the Court finds that the state’s interest in increasing voter participation cannot
serve as a compelling interest.
In terms of the state’s interest in stability, the Secretary focuses on the three-
fourths opt-out requirement. She claims that the three-fourths requirement “favors
semi-open primaries as the default for major parties’ nominating contests,” thus
“creating stability.” Docket No. 108 at 16. It is true that “a stable political system is,
unquestionably, a compelling state interest.” See Eu, 489 U.S. at 226. However, the
stability that the Secretary claims as a compelling interest is not the type of stability that
Eu discussed, such as bringing “some sort of order, rather than chaos” to the candidate
selection system. Id. at 227 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
Rather, the Secretary’s argument suggests that the three-fourths requirement achieves
stability by virtue of it being so difficult to overcome. The Court does not find this
interest to be compelling. The State has offered no defense or explanation as to why
Proposition 108 uses a three-fourths vote of the state committee as opposed to a
majority vote, much less an explanation of why it requires a vote of all members, not just
those present. Thus, the Secretary fails to justify “the extent to which those interests
make it necessary to burden the plaintiff’s rights.” Burdick, 504 U.S. at 434 (citation
omitted). Although the Secretary argues that the Party is free to limit or expand the
central committee’s membership and to control where and when committee meetings
are held, Docket No. 102 at 11, the Secretary does not explain how these things, if
adopted, would appreciably lessen the burden imposed by the three-fourths provision.
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The state cannot create a compelling stability interest out of a severe burden simply
because the severe burden cannot be overcome by the Party.
3. 	Remedy
The Party says its motion for partial summary judgment is limited to its as-applied
challenge. See Docket No. 105 at 3. However, “the distinction between facial and as-
applied challenges is not so well defined that it has some automatic effect or that it must
always control the pleadings and disposition in every case involving a constitutional
challenge.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010). As
discussed above, the Court found that the three-fourths opt-out provision is a severe
burden on the Party. If the Court were to find that the three-fourths provision is only
unconstitutional as applied to the Party, it would be ignoring the fact that the three-
fourths provision, on its face, constitutes a severe burden regardless of the party. Thus,
the Court finds that providing relief on the basis of a facial challenge is proper in this
case.
The Court finds that Colo. Rev. Stat. § 1-4-702(1), which requires “at least three-
fourths of the total membership of the party’s state central committee votes to use the
assembly or convention nomination process” in order to opt-out of the semi-open
primary, constitutes a severe burden on the major parties’ right to association and is
therefore unconstitutional.
However, the Court finds that, if a major party has a reasonable ability to opt out
of the semi-open primary, the associational burden of Proposition 108 would not exist.
As the Fourth Circuit noted in Miller, “Virginia allows political parties to nominate
candidates not only by state-run primary but also by other methods controlled and
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funded by the party. And, by merely choosing any of these other options, a party is free
to limit its candidate selection process to voters who share its political views. Thus, the
‘forced association’ that the Supreme Court has condemned, Jones, 530 U.S. at 581,
simply is not present here.” Miller, 503 F.3d at 367. The Court finds that the Party is
entitled to summary judgment, but only to the extent of the Court declaring the three-
fourths opt-out provision unconstitutional.
B. The Secretary’s Motion for Summary Judgment
The Secretary moves for summary judgment on both of the Party’s claims. See
Docket No. 102 at 25. The Secretary’s motion is premised on the argument that
Proposition 108 is facially constitutional due to the three-fourths opt-out provision. See
id. at 9-12. For the reasons discussed above, the Court finds that the three-fourths
provision not only fails to render Proposition 108 constitutional, but itself imposes a
severe burden that infringes on major political parties’ First Amendment rights of
association. Accordingly, the Court will deny the Secretary’s motion for summary
judgment.
V. 	CONCLUSION
Therefore, it is
ORDERED that defendant Jena Griswold’s Motion for Summary Judgment
[Docket No. 102] is DENIED. It is further
ORDERED that plaintiff Colorado Republican Party’s Motion for Partial Summary
Judgment [Docket No. 105] is GRANTED in part. It is further
ORDERED that Colo. Rev. Stat. § 1-4-702(1), requiring that “at least three-
fourths of the total membership of the party’s state central committee votes to use the
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assembly or convention nomination process” before a major party can opt for an
assembly or convention nomination process is unconstitutional.
DATED March 31, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
United States District Judge
___________________________
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