John Eastman, who played a key role in Donald Trump’s attempts to illegitimately capture a second term, and Ron Hanks, who relentlessly conspiracy mongers about the election, are two of the most reckless people in Colorado politics. But when they’re right, they’re right, as much as it pains me to say.
Eastman, along with Colorado attorney Randy Corporon, filed a lawsuit February 24 on behalf of Hanks and several others arguing that the 2016 ballot measure establishing open primaries, Proposition 108, violates the free association rights of members of political parties. If members of a party wish to restrict the selection of their party’s candidates to members of that party, they have that right.
If you counter that it’s unfair that parties with minority support among Coloradans get to choose the only viable candidates, I agree. But the proper solution is not to force parties to hold primaries open to unaffiliated voters. It is to quit giving political parties special treatment, enact fair ballot access laws with the same rules for all comers, end government control and financing of party primaries, end government tracking of people by party affiliation, and implement approval voting (vote for as many candidates as you like) or ranked voting (list your candidates by preference) to eliminate the “stolen vote” problem. Laws requiring open primaries only further entrench today’s two major parties and turn them into de facto government entities rather than private organizations.
End state support for parties
The latest Colorado voter registration numbers reveal part of the problem. Of 3.74 million total active voters, 1.65 million (44%) are unaffiliated. Meanwhile, only 1.07 million (29%) are Democrat while 955 thousand (26%) are Republican. Obviously it is ridiculous to give two parties, each supported by fewer than a third of Coloradans, power to select the only candidates who have a shot at victory.
And yet I am aware of no serious effort either by Democrats or Republicans—who are, after all, supposed to support democracy and republicanism, respectively—to reform the electoral system by removing state support for parties. If I didn’t know better, I’d be tempted to say that most party activists care more about their own power than about creating a fair and sustainable system of government. And so we get one side yammering on about the alleged need for (government supported!) open primaries, and the other side clamoring for party control (of their government-favored ballot access), and hardly anyone advocating the sort of election reforms that would actually make a big difference.
There are some exceptions. Former Democratic legislator Terrance Carroll has promoted ranked voting, while libertarian activist Frank Atwood has campaigned tirelessly for approval voting. A few others have joined them. But there is not, to my knowledge, any broader campaign to strip parties of their government-granted privileges. The amount of energy spent fighting over open (government-managed) primaries is orders of magnitude greater than that spent trying to get government out of party pockets.
True, within the current context of government-controlled primaries and government-backed political parties, open primaries do make some difference as to which party candidates end up on the ballot. Conservative hardliners such as Hanks and Corporon want closed primaries because they want the sort of candidates selected by the relatively small group of party activists who attend party caucuses and assemblies. Moderates want open primaries more likely to yield candidates more amenable to the typical unaffiliated voter.
When it comes to campaigning, people must work within the given rules. So, from that angle, I am hopeful that open primaries, assuming they continue, will encourage more non-insane, reality-oriented Republicans to run for office. I’m talking about the sort of Republicans who can forthrightly state such obvious truths as “Joe Biden fairly won the presidential election,” “Covid-19 is an often-horrid disease against which vaccines prove remarkably effective,” and “Vladimir Putin is an authoritarian mass-murderer with no justification for attacking Ukraine.”
The wrong of mandating open primaries
But there is a difference between the advice I would give a candidate, given the rules, and my perspective on the rules themselves. And the wrong of government-privileged political parties does not somehow make right the wrong of mandated open primaries. Which brings us back to Eastman’s lawsuit.
We should note that Prop. 108 is not absolute. It does allow an escape clause for parties to avoid open primaries, although only by a supermajority (a fact that Eastman cites). Last year Republicans declined to take that escape, although they did express support for legal action challenging open primaries.
Eastman’s main argument is exactly right: “The rights of free speech and association protected by the First Amendment to the United States Constitution includes the right of political parties to choose their nominees for office without interference by those who are not members of the party and have chosen not to affiliate with the party.”
True, various prominent Republicans, including former governor Bill Owens, former senator Hank Brown, and Colorado Springs mayor (and former Attorney General) John Suthers, joined a March 16 brief in support of open primaries. But, although I respect those Republicans a great deal, in this case they are wrong.
The brief claims, “The passage of Proposition 108 was a victory for democracy in Colorado.” On one hand, the claim is bullshit. Again, those who actually care about democracy will work to end the system of government-privileged parties. Given that system, open primaries offer the mirage of more democracy without the substance—they merely further entrench the dominance of today’s major parties. On the other hand, the claim is irrelevant. The entire point of the First Amendment is to clarify that individual rights to freedom of speech and of association cannot be violated by politicians or by the tyranny of the majority.
The brief denies that Prop. 108 “severely burdens First Amendment associational rights.” When we’re talking about how severely government violates people’s rights, we’re already on the entirely wrong track. There is no qualifying clause to the First Amendment to the effect of, “unless politicians or voters really want to.”
The brief cites “Colorado’s interests” and an alleged “important state interest”—as if the state could have “interests” above and beyond the interests of the individuals who live here. The brief promotes a sort of collectivism.
A proper electoral system would respect people’s rights, offer fair ballot access rules, and encourage voter participation. The current system accomplishes none of those goals, at least not very well. In this case, Eastman is right: Prop. 108 violates people’s rights and should be overturned. The broader issue, though, is that government should get out of the party primary business altogether and stop privileging the major parties. And anyone worthy of the title Democrat or Republican will start saying so, loudly.
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