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Voters should look before leaping for primary election

Sen. Ray Scott
Staff Photo |

In November, Colorado voters may be asked to decide if Colorado should re-establish a presidential primary system by the year 2020. However, the proposed Initiative 140 contains several controversial mandates that go beyond merely establishing a presidential primary. And it will be very expensive.

First, Initiative 140 opens both Democrat and Republican presidential primaries to voters who are neither Democrats nor Republicans. That’s a radical change from Colorado’s previous presidential primary, and it’s also a likely violation of each party’s First Amendment right of freedom of association, which is a twin brother to freedom of speech.

The U.S. Supreme Court ruled in 2000 in California Democratic Party v. Jones that absent a compelling and overriding state interest, states cannot require political parties to allow nonmembers to help choose a party’s nominee for public office. By a 7-2 majority vote, with Justice Scalia writing the opinion, the Supreme Court said such a law in most cases is unconstitutional:



“These persons are disenfranchised, according to respondents, because under a closed primary they are unable to participate in … the majority party’s primary… We have said, however, 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.’”

In short, the court held that while the state may have a legitimate interest in promoting wider participation in elections, that interest does not outweigh the constitutional rights of each political party to determine its own nominees and party platform.



But there are issues that go beyond the legal questions, such as the question of fundamental fairness. Do Los Angeles Dodger fans get to choose the Rockies’ pitching rotation? Libertarian Party members don’t expect to vote in selecting Green Party candidates, or vice versa. Why should people who have voluntarily chosen not to belong to any political party be invited by the government to participate in a party’s selection of its own candidates?

Even if you like the idea of a presidential primary, consider the time bombs hidden in the ballot measure. For example, No. 140 requires each political party to allocate its national convention delegates on a winner-take-all basis. Why is the government dictating that choice? Currently, both the Colorado Democratic Party and Colorado Republican Party allocate delegates on a proportional basis, but they won’t be allowed to do that if Initiative 140 passes.

Also buried in the ballot language of Initiative 140 is the radical and unprecedented mandate on the “binding” of delegates. A candidate who wins only 39 percent of the votes in a three-way race will not only win 100 percent of the delegates; those delegates will be legally forced to vote for him or her forever. That provision will make Colorado’s delegates little more than robots, unable to exercise their own judgment if a first ballot fails to produce a party nominee. You don’t build a stronger democracy by creating weaker, rudderless parties.

Then there is the small matter of the taxpayer cost of running another statewide election — over $5 million according to official estimates. A March presidential primary will stand alone, not coordinated with any other election. With state budget dollars for schools and roads and health care already being squeezed, is this the best use of 5 million bucks?

The Legislature saw two bills in the last session aimed at establishing a presidential primary in 2020, but both were introduced in the last two weeks of the session. The Legislature will have three full years to get it right before March of 2020 if we really need to move in that direction.

The Colorado Elections Study Group is holding a series of four public forums across the state to solicit citizens’ views and encourage wider public debate on these questions. The meeting for Western Slope citizens will be this coming Saturday afternoon, July 30, from 1-3:30 at the Grand Junction City Hall.

In considering ballot initiatives, voters need to not only read the entire proposal carefully but also to consider the costs and consequences of pretty packages that can’t deliver on all their promises.

Ray Scott, who represents Senate District 7, will host Saturday’s free and open-to-the public meeting of the Colorado Elections Study Group, from 1-3:30 p.m. at Grand Junction City Hall.

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