Brownstein 

Brownstein Hyatt Farber Schreck, LLP 

303.223.1100 main 

410 Seventeenth Street, Suite 2200 

Denver, Colorado 80202 

March 20, 2023 Christopher O. Murray 

Attorney at Law 

303.223.1183 direct 

CMurray@BHFS.com 

VIA EMAIL ONLY (lbird@FEC.GOV} 

Lisa J. Stevenson, c/o Lindsay Bird 

Office of General Counsel 

Federal Election Commission 

1050 First Street, NE 

Washington, DC 20463 

Re: Advisory Opinion Request 

Dear Ms. Stevenson: 

We are writing on behalf of the Colorado Republican State Central Committee (the "Colorado 

Republican Committee" or "Committee") and its Chairman, David Williams, to seek an advisory opinion 

under 52 U.S.C. § 30108 and 11 C.F.R. § 112.1. Specifically, we ask whether the Federal Election 

Campaign Act of 1971 (the "Act"), as amended, 52 U.S.C. §§ 30101 to 30146, and the Commission's 

regulations, permit the Committee, to establish a legal fund to challenge the constitutionality of a 

Colorado law that forces the Committee to participate in an "open" primary election system-that is, a 

primary election system that permits voters not affiliated with the Colorado Republican Committee to 

vote in a primary election that will determine the Committee's nominees in the general electionunless the Committee secures a vote of 75% of its membership, in which case the Committee may 

nominate candidates by means of a closed party convention. 

The Colorado Republican Committee is an unincorporated non-profit association and a major political 

party in Colorado. The primary purpose of the Committee is to elect duly nominated or designated 

Republican candidates to office, to promote the principles and achieve the objectives of the Republican 

Party at national and state levels, and to perform the functions required of it under the laws of the 

State of Colorado. To accomplish this purpose, the Committee solicits and receives funds, which are 

directed into one of five separate segregated funds: 

• The Colorado Republican Committee Federal Political Party Account (the "Committee's Federal 

Account"). This separate segregated fund raises contributions for federal election and related 

activity under the Act. 

• The Colorado Republican Committee State Political Party Account (the "Committee's State 

Account"). This separate segregated fund raises and spends contributions for state election and 

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related activity under Colo. Const. art. XXVII, §§ 2(13) and 3(13). The Committee's State 

Account raises and spends contributions of up to $3,875.00 annually.

1 

• The Colorado Republican Committee Political Committee (the "Committee's PAC"). This 

separate segregated fund is the Committee's political committee organized under Colo. Const. 

art. XXVIII, § 2(12)(a). The Committee's PAC raises and spends contributions of up to $725.00 

per State House of Representatives election cycle. 

• The Colorado Republican Committee Small Donor Committee (the "Committee's SOC"). This 

separate segregated fund is the Committee's small donor committee organized under Colo. 

Const. art. XXVIII, § 2(14). The Committee's SOC raises and spends contributions of up to 

$50.00 annually. 

• The Colorado Republican Committee Independent Expenditure Committee (the "Committee's 

IEC" or "IEC"). The Committee's IEC is a standing committee and is a separate segregated fund 

organized under Colo. Rev. Stat.§ 1-45-103(11.5). lt is governed by a Management Committee 

whose members are appointed to fixed terms by the Chairman of the Colorado Republican 

Committee. The Committee's IEC may raise and spend unlimited funds, including from 

individuals, corporations, and labor organizations. 

The Committee's Federal Account is registered with the Commission and is operated in compliance 

with the Act and the Commission's regulations. The Committee's remaining fund accounts-the State 

Account, PAC, SOC, and IEC (collectively, the "Non-Federal Accounts")-are registered with and 

regulated by the Colorado Secretary of State. The Committee makes contributions and expenditures 

from the Non-Federal Accounts to support state and local Republican candidates in Colorado 

elections.

2 

ln 2016, Colorado adopted Proposition 108. Proposition 108 created an "open" primary system in 

Colorado by permitting voters unaffiliated the major political parties

3 in the state to vote in either 

1 Under Colorado law, a person may contribute up to $4,675.00 to a political party; however, only 

$3,875.00 of this amount may be given to the "state level" of a political party. 

2 The Committee's bylaws provide that the Chairman generally has final control over disbursements 

from all separate segregated funds of the Committee except for the IEC. Disbursements from the IEC 

are controlled by the IEC's Management Committee. 

3 Currently, Colorado has two major political parties-the Democratic Party and the Republican Party. 

See Colo. Rev. Stat. § 1-1-104(22). 

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party's primary election. Thus, unaffiliated voters may choose the ballot of the party they prefer and 

vote in that party's primary election. The winner of the primary election is the nominee of the party. If 

a major political party does not wish to participate in an open primary, it has only one option under 

Proposition 108: it must secure the vote of 75% of the members of its state central committee. ln the 

event the state central committee votes to "opt out" of the open primary, this choice is effective in 

one two-year election cycle only and is binding on state and local levels of the party in Colorado. 

The Colorado Republican Committee wishes to explore a lawsuit against the State of Colorado, which 

would challenge the constitutionality of Proposition 108. The Committee proposes that a separate 

legal fund (the Fund) be established to defray the Committee's legal costs in bringing such an action. 

The Fund would be independent from the Committee and would not be administered or controlled by 

the Committee. The Committee would not be involved in soliciting donations to the Fund. Instead, the 

Committee's Chairman would establish the fund and immediately appoint a governing board which 

would operate the Fund, including making all solicitations on behalf of the Fund. This governing board 

would have final authority over disbursements from the legal fund. The individuals serving on this 

governing board and otherwise involved in administering or operating the Fund would not be federal 

candidates or federal officeholders. Solicitations for the Fund, either in person or in writing, would be 

accompanied by a letter stating the purpose of the Fund and noting that no amounts given to the Fund 

would be used for the purpose of influencing any federal election. Solicitations for the Fund would be 

conducted separately from any solicitations for the Committee or any other federal political 

committee. The Fund plans to accept unlimited amounts from individuals, political committees, 

corporations, and labor organizations. The Fund would terminate once all legal costs were paid, and 

any excess funds would be refunded or donated to charity. No monies received by the Fund would be 

used for activities included in the definition of federal election activity under 52 U.S.C. § 30101(20). 

Indeed, no monies received by the Fund would be used for anything other than the lawsuit challenging 

Proposition 108. 

To be clear, the Committee has not yet initiated any legal action challenging Proposition 108. Indeed in 

the Spring of 2022 a lawsuit was filed by individual Colorado Republicans (including some candidates 

for office) challenging Proposition. This lawsuit was dismissed for want of standing. PARABLE, et al. v. 

Griswold, No. 22-cv-00477(JLK) (D. Colo. April 8, 2022). ln an order dismissing the case, Judge John L. 

Kane of the Federal District Court for the District of Colorado held that only the Colorado Republican 

Committee has standing to bring a challenge to Proposition 108. A copy of the court's order is enclosed 

with this letter. 

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Accordingly, the Colorado Republican Committee seeks an advisory opinion on the following: 

(1) The Federal Election and Campaign Act (the "Act") and Federal Election Commission 

("Commission") regulations define the term "contribution" as any gift, subscription, loan, 

advance, or deposit of money or anything of value made by any person for the purpose of 

influencing any election for federal office. 52 U.S.C. § 30101(8)(A); 11 C.F.R. § 100.52(a). Does a 

contribution to a legal fund to be used for the sole purpose of challenging the constitutionality 

of a state statute that forces the Colorado Republican Committee to either submit to 

unaffiliated participation in the nomination of its candidates or to achieve a super-majority vote 

of its state central committee to nominate candidates by party convention constitute a 

"contribution" to the Colorado Republican Committee under the Act? 

(2) The Act and the Commission regulations define the term "expenditure" as any purchase, 

payment, distribution, loan, advance, deposit, or gift of money or anything of value made by 

any person for the purpose of influencing any election for federal office. 52 U.S.C. § 

30101(9)(A); 11 C.F.R. § 100.lll(a). Does the payment of legal fees from a legal fund 

established for the sole purpose of challenging the constitutionality of a state statute that 

forces the Colorado Republican Committee to either submit to unaffiliated participation in the 

nomination of its candidates or to achieve a super-majority vote of its state central committee 

to nominate candidates by party convention constitute an "expenditure" by the Colorado 

Republican Committee under the Act? 

(3) Alternatively, would the Commission's answer to either Question No. 1 or Question No. 2 

change if the Colorado Republican Committee initiated legal proceedings challenging the 

constitutionality of a state statute that forces the Colorado Republican Committee to either 

submit to unaffiliated participation in the nomination of its candidates or to achieve a supermajority vote of its state central committee to nominate candidates by party convention after 

Colorado's 2024 Primary Election (to be held on June 25, 2024)? 

(4) The Act and Commission regulations provide that any amount that expended or disbursed for 

Federal election activity by a State, district, or local committee of a political party (including an 

entity that is directly or indirectly established, financed, maintained, or controlled by a State, 

district, or local committee of a political party and an officer or agent acting on behalf of such 

committee or entity), or by an association or similar group of candidates for State or local office 

or of individuals holding State or local office, shall be made from funds subject to the 

limitations, prohibitions, and reporting requirements of this Act. 52 U.S.C. 30125(b)(l). Would 

disbursements from a legal fund to be used for the sole purpose of challenging the 

constitutionality of a state statute that forces the Colorado Republican Committee to either 

submit to unaffiliated participation in the nomination of its candidates or to achieve a super25331768.2 

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majority vote of its state central committee to nominate candidates by party convention 

constitute disbursements or expenditures made for Federal election activity or otherwise made 

"in connection with a federal election" under the Act? 

Thank you for your consideration of and attention to this request. 

Sincerely, 

Christopher O. Murray 

Julian R. Ellis, Jr. 

Encl. 

cc. Amy Rothstein (arothstein@fec.gov) 

Joseph Wenzinger (jwenzinger@fec.gov) 

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IN THE UI\ITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 22-cv-00477-JLK 

PARABLE, 

RON HANKS, 

LAUREL !MER, 

DA VE PETERS, 

CHARLES W. "CASPER' STOCKHAM, 

JOANN WINDHOLZ, 

Plaintiffs, 

v. 

JENA GRISWOLD, in her official capacity as Colorado Secretary of State, 

Defendant. 

MEMORANDUM OPINION & ORDER ON 

MOTION TO DISMISS 

Kane, J. 

Plaintiffs in this case arc five members of the Colorado Republican Party State Central 

Committee and an unincorporated association of Coloradans named People for Association 

Rights and Bi-Partisan Limited Elections, or "PARABLE." They contend Colorado's optional 

semi-open primary system, enacted after Colorado voters adopted Proposition I 08 in 2016 by 

pubi ic referendum, infringes their rights of free speech, association, and equal protection of the 

laws, protected by the First and Fourteenth Amendments to the United States Constitution. They 

move the court to grant a preliminary injunction preventing Defendant Jena Griswold, the 

Colorado Secretary of State (the "Secretary"), from enforcing Proposition I 08 in the June 2022 

primary elections. The Secretary has responded by seeking dismissal pursuant to Federal Rules 

of Civil Procedure l 2(b )(I) and l 2(b )( 6), asserting lack of standing and failure to state a claim 

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upon which relief can be granted (ECF No. 27). She also opposes Plaintiffs' Motion for 

Preliminary Injunction (ECF No. 2) on the grounds that the facts and allegations do not meet the 

criteria for obtaining such equitable relief. 

I have considered the Secretary's Response to the Motion for Preliminary Injunction 

(ECF No. 14), Plaintiffs' Response to the Secretary's Motion to Dismiss and Reply to the 

Motion for a Preliminary Injunction (ECF No. 43), the Secretary's Reply (ECF No. 50), four 

briefs submitted by amici curiae, the parties' responses to the amicus briefs, a reply from amici 

curiae, and a surreply from Plaintiffs as well as the arguments of counsel and the testimony of 

witnesses and exhibits admitted into evidence at a comprehensive hearing held over two days. 

For the reasons set out in this Order, I find Plaintiffs lack standing to bring this lawsuit on all but 

a portion of their fifth claim. On that claim, I find dismissal appropriate under Rule l 2(b )( 6). 

Because the issues presented by the parties' motions are intertwined, I nevertheless consider 

Plaintiffs' Motion for a Preliminary Injunction and conclude Plaintiffs have not shown that they 

arc entitled to the disfavored injunctive relief they seek. 

1 

l. JURISDICTION 

United States courts are courts of limited jurisdiction. In this case, the parties agree 

federal jurisdiction is based upon 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343. Other than 

1 In court, Plaintiffs stated their firm intention to move to amend their Complaint to add a 

derivative claim pursuant to Federal Rule of Civil Procedure 23.1. According to Plaintiffs, a 

derivative action would make dismissal on standing grounds inappropriate. While no such 

motion has been filed as of the issuance of this Order and while I doubt the propriety of a 

derivative action in this case, cf Beck v. Ysursa, No. 07-cv-299-MHW, 2007 WL 4224051. at *5 

(D. Idaho Nov. 27, 2007) (presuming Committee's decision not to bring the suit was made in 

good faith on behalf of the Party in the absence of evidence to the contrary). I find it expedient to 

fully expound on the issues presented in light of Plaintiffs' stated intentions. 

2 

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the challenge raised by the Secretary in her Motion to Dismiss, there is no dispute that this court 

has jurisdiction over the parties and the subject matter asserted in the complaint. 

II. BACKGROUND 

Colorado's Printary Election System 

In Colorado, the Secretary of State is responsible for administering and enforcing the 

State election code. Colo. Rev. Stat. § 1-1-107( I). Primary elections are held on the last Tuesday 

in June in even-numbered years for the purpose of nominating candidates of political parties to 

be voted on in the general election. Id.§ 1-4-101(1). 

Proposition 108, a ballot initiative adopted by Colorado voters in 2016, requires major 

political parties to nominate candidates for the general election either through a semi-open 

primary or, alternatively. through a closed assembly or convention process. 

2 See Colo. Rev. Stat. 

§§ 1-2-218.5(2). J-4-101(2)(b), 1-4-104. 1-4-702(1). & 1-7-201(2.3) (collectively "Proposition 

l 08o'). Colorado law defines a "major political party" 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 ... received at least ten percent of the 

total gubernatorial votes cast." Id§ 1-1-104(22).

3 

2 An "assembly" is "a meeting of delegates of a political party, organized in accordance with the 

rules and regulations of the political party, held for the purpose of designating candidates for 

nominations." Id. § 1-1-104( 1.3 ). A "convention" is a similar meeting of delegates, "held for the 

purpose of selecting delegates to other political conventions ... , making nominations for 

presidential electors, or nominating candidates to fill vacancies in unexpired terms of 

representatives in congress or held for other political functions not otherwise covered in this 

code." Id§ 1-1-104(6). Together, and along with precinct caucus meetings, see id. §§ 1-1- 

104(30), (31 ), they compose Colorado's caucus system. 

3 Minor political parties are permitted to exclude unaffiliated voters from their primary elections 

"so long as the prohibition is in accordance with the party's constitution, bylaws, or other 

applicable rules." Id. § 1-4-1304( 1 .5)( e). If a minor party wishes to prohibit unaffiliated voters 

3 

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To opt out of the semi-open primary in favor of an assembly or convention (i.e., through 

a caucus system). at least three-quarters of the total voting membership of a major party's state 

central committee must vote in favor of the assembly or convention nomination process. Id § I4- 702( 1 ). This vote must occur no later than October 1 of the year preceding the year in which 

the assembly or convention is to occur. Id. If a primary election is preferred, major political 

parties must permit unaffiliated voters to participate. Id.§ 1-7-201(2.3). Unaffiliated voters-of 

whom there are approximately 1.6 million in Colorado, see Compi. at 5, ECF No. 1-may vote 

in any major party's primary election although they may only cast a ballot in one party's 

primary. Id.§§ 1-2-218.5(2), 1-7-201(2.3). This system is known as a "semi-open" primary 

because it remains closed to electors who are affiliated with a different political party and uses a 

party-specific ballot. 

Republican State Central Committee 

Colorado law recognizes that a political party's "state central committee has the power to 

make all rules for party government." Id.§ 1-3-105(1). The State Central Committee of the 

Colorado Republican Party (the "CRP"), also known as the Colorado Republican Committee (the 

"Committee"), lists its primary purposes as "electling] duly nominated or designated Republican 

candidates to office, [promoting] the principles and achiev[ing] the objectives of the Republican 

Party at national and state levels, and [performing] the functions set forth in the election laws of 

the State of Colorado." CRP Committee Bylaws (the "Bylaws"), Art. II, ECF No. 14-1. The 

Bylaws permit voting members to vote by proxy. Id. Art. Vlll, § D. 

from casting a primary ballot, it must notify the Secretary no later than seventy-five days before 

the election. Id. The rights and obligations of minor political parties are not at issue in this case. 

The only concern here is with major parties. 

4 

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On September 18, 2021, the Committee convened to vote on how the CRP would 

nominate candidates for the 2022 election. At that time, there were 521 voting members in the 

Committee. Stip. of Facts ~I 3, ECF No. 26. So, in order for the Party to select a nomination 

procedure other than the semi-open primary, 391 members would have had to vote in favor of 

the alternative (521 members x 3/4 = 390. 75 members). Four hundred and forty-one voting 

members attended the 2021 Committee meeting for selecting the nomination method. Id. ,i 3. Of 

those only 38.9% voted in favor of an assembly or convention process. Id. ,i 2.

4 

Although the Committee did not vote to use a nomination method other than the semiopen primary at its 2021 meeting, it declared by resolution that "a majority of the [CRP's] State 

Central Committee supports choosing Republican Party nominees by a primary election at which 

only registered voters who are members of the Republican party are eligible to participate." 

9/18/2021 Committee Resolution (the "Resolution"), ECF No. 1-2. For that reason. and because 

the approving members believed "Proposition 108 is clearly a violation of Republican Party 

members' constitutional rights under the First Amendment," the Committee authorized a lawsuit 

"to be initiated in federal district court by the [CRP], its members, or both ... to challenge the 

constitutionality of Proposition 108." Id. Charles Heatherly, the author of the Resolution and a 

Committee member, testified that the Committee's vote on the Resolution was a standing vote. 

also known as a voice vote. As no Committee Member stood after the opposition vote was 

called, the vote was declared unanimous in favor of the Resolution. Members cannot vote by 

proxy during a standing vote, as only physical bodies are counted, and the Committee made no 

record of the number of members present for the vote in favor of the Resolution. 

4 In 2019, less than 3/4ths of the total voting membership of the Committee were in attendance, 

so the Party could not have selected a nomination method other than the semi-open primary at 

that meeting, unless a sufficient number of proxy votes had been included. 

5 

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Plaintifs' Claims in This Case 

Confident they enjoyed the support of their political party, Plaintiffs initiated this case on 

February 24, 2022. In their Complaint, Plaintiffs allege Proposition I 08 violates the following 

constitutional rights: the First Amendment freedom of association (Claims 1 & 2); the First 

Amendment freedom of speech (Claim 3); and the Fourteenth Amendment right to equal 

protection under the law, with a claim relating to vote dilution (Claim 4) and a claim relating to 

discriminatory treatment of major political parties and their members (Claim 5). Each of these 

challenges asserts Proposition 108 is unconstitutional both facially and as applied to Plaintiffs 

and to the Colorado Republican Party. 

III. THE SECRETARY'S MOTION TO DISMISS 

The Secretary's Motion to Dismiss asserts that Plaintiffs' claims should be dismissed 

under Federal Ruic of Civil Procedure 12(b)(l) for a lack of standing and under Rule 12(b)(6) for 

failure to state a claim upon which relief can granted. I find Plaintiffs have failed to establish 

standing on their first four claims and a portion of their fifth. For the remaining portion of their 

fifth claim, I consider its viability under Rule 12(b)(6) and determine that dismissal of that claim 

is also warranted because they have failed to state a claim for which relief can be granted. 

A. Standing 

Article III of the United States Constitution limits federal courts to adjudicating cases and 

controversies. U.S. Const. art. 111, § 2. The fundamental principles of separation of powers are 

violated by judicial declarations outside the context of an established case or controversy. One 

necessary component of a case or controversy is the plaintiffs standing to sue. See S. Furniture 

6 

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Leasing. inc. v. YRC. Inc., 989 F.3d 1141, l 145 (10th Cir. 2021). Thus, federal courts lack 

jurisdiction to decide the merits of a claim when a plaintiff cannot meet his burden to establish 

standing. Lujan v. Defs. of Wild/i/è, 504 U.S. 555. 559-561 (1992). 

There arc three clements to constitutional standing. First, the plaintiff must have suffered 

an "injury in fact," defined as the invasion of a legally protected interest that is concrete and 

particularized. id. at 560. An injury "must affect the plaintiff in a personal and individual way." 

id. at 560 n.1, and it must be "actual or imminent. not conjectural or hypothetical," id at 560 

(citation and quotation marks omitted). Second. there must be a causal connection between the 

injury and the challenged conduct-the injury cannot be "the result of the independent action of 

some third party not before the court" Id. (citation and alterations omitted). Third, there must be 

a likelihood that the injury will be redressed by a favorable decision on the merits. Id. at 561. 

"These requirements ensure that the plaintiff has alleged such a personal stake in the outcome of 

the controversy as to warrant his invocation of federal-court jurisdiction." Laufer v. Looper. 22 

F.4th 871,876 (10th Cir. 2022) (quotation marks omitted) (quoting Summers v. Earth island 

Inst., 555 U.S. 488. 493 (2009)). When any of these necessary elements are missing, a party may 

move to dismiss a suit for lack of subject matter jurisdiction under Federal Rule of Civil 

Procedure l 2(b )( 1 ). 

Constitutional Standing Cannot Be Transferred 

The Colorado Republican Party did not bring this lawsuit. 5 Neither did it authorize the 

individually named plaintiffs to act as its representatives pursuant to the Committee's Bylaws. 

5 A declaration from former Secretary of State Scott Gessler posits several reasons why the CRP 

may have decided not to initiate or formally authorize this suit: (1) the CRP faces severe funding 

constraints due to campaign finance laws; (2) few attorneys are willing to "finance a lawsuit of 

7 

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See CRP Committee Bylaws, Art. Ill, § D ("No person or entity ... has authority to bind in any 

manner the [Committee without] prior written authorization from the Chairjperson]."). 

In a confusing amalgamation of concepts, the named Plaintiffs claim standing on their 

own behalf, because the CRP "expressly authorized this challenge" by the "Party. its members. 

or both,'. Resp. to Mot. to Dismiss at 2, yet they say that "[elven if the [CRP] alone has 

constitutionally[]protected association rights ... the Party. acting through its governing body. the 

State Central Committee, has authorized this litigation challenging the constitutionality of 

Proposition I 08 by Party 'rnernbers.:" Arn. Resp. to Amicus Briefs at 3, ECF No. 46-1. 

Plaintiffs argue§ o·s requirement of written authorization from the Chairperson does not 

apply to the Committee, and the Committee can bind itself through a standing vote on a 

resolution, such as the one at issue in this case. Plaintiffs do not say what provision of the 

Bylaws grants the Committee authority to bind the Party to litigation, or dictates the procedure 

for such binding. We arc left to wonder. did the standing vote need to be unanimous? If not, what 

percentage of votes was required? Since a standing vote docs not include Committee members 

voting by proxy, must the proponent of a resolution provide some minimum amount of notice to 

this magnitude" as it is unlikely to be lucrative; and (3) there is legal uncertainty around 

exceptions to campaign finance limits for the current litigation and while the Federal Election 

Commission may issue an advisory opinion to guide the party, the Commission's opinions are 

not issued on Plaintiffs' expedited tirneline. See Gessler Dccl. ~il 32-36. ECF No. 43-1. These 

obstacles are not insignificant. However, resolving to permit any of its members to defend its 

constitutional rights is not the solution. Campaign finance law and regulations that may restrict 

the CRP would necessarily apply to litigants on which the Party confers its rights, as Plaintiffs 

say has occurred here. Also, Mr. Gessler-who is not a party in this case-acknowledges that 

exceptions to campaign finance law exist specifically for the financing of lawsuits by political 

parties. The CRP may be unwilling to move forward with a case before the Federal Election 

Commission issues an advisory opinion, but that delay falls squarely on the shoulders of the 

CRP, which has had more than five years and more than two full election cycles to seek such an 

opinion. In any case, these practical considerations are immaterial because Plaintiffs may not sue 

to exercise the constitutional rights of a third party. 

8 

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members? More troublesome is Plaintiffs' characterization of the Resolution as one "instructing 

the [CRP] to initiate a lawsuit." That interpretation of the Resolution is beyond the pale. On the 

record before me. the only affirmative step taken by the CRP after passage of the Resolution was 

the formal request for an advisory opinion from the Federal Election Commission, made by the 

Committee and its Chairperson in November 2021. As the Secretary pointed out at the hearing 

on these motions, there is no affidavit or statement or amicus brief from the Committee 

Chairperson or the Party stating a position in the lawsuit. 

Standing is an independent legal concept that cannot be granted, authorized, or conferred 

upon a litigant through the resolution of a third party. See A/1e11 v. Wright. 468 U.S. 737, 750-51 

( 1984), abrogated on other grounds by Lexmark Int 'l, Inc. v. Static Control Components, Inc., 

572 U.S. I 18 (2014) (stating Article III requires the litigant to have standing which depends, in 

part. on an injury that is personal to the litigant). Likewise. constitutional rights are not 

assignable or transferrable. 

In filing this suit, Plaintiffs shine a spotlight upon an unavoidable political rub: the 

constitutional rights of political parties and the responsibility of the states to regulate elections 

within constitutional bounds. As it was in Utah Republican Party v. Cox, "[t]he distinction 

between wholly internal aspects of party administration on one hand and participation in staterun, state-financed elections on the other is at the heart of this case." 892 F.3d 1066, 1078 (10th 

Cir. 2018). Only the CRP has standing to defend its rights in the midst of that distinction. Thus, 

if these Plaintiffs have standing to sue, they have it only as individual members of the CRP. To 

the extent Plaintiffs properly assert their individual rights, their claims hit upon another tension 

inherent in a democratic election process: the friction between individual party members' right 

to participate in their party's electoral process and the right of the parties to speak on behalf of 

9 

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their members as a collective whole. While Plaintiffs may be plagued by that friction, this court 

is not the appropriate venue for them to voice their frustration. 

No !11ju111 Personal to Plaintiffs in Claims I & 2 (Forced Association Claims) 

The United States Constitution confers on states the power to prescribe the times, places, 

and manner of holding federal elections U.S. Const. art. I. § 4, cl. I. The Supreme Court has 

confirmed that states enjoy a similar authority to regulate their own elections. See Tashjian v. 

Republican Party ofConnecticut. 479 U.S. 208. 217 ( 1986). As relevant here, "the Supreme 

Court has recognized that when political parties become involved in a state-administered primary 

election, the state acquires a legitimate interest in regulating the manner in which that election 

unfolds .... " Cox, 892 F.3d at 1077-78. 

State regulations may not, of course. infringe upon the constitutional rights of political 

parties. The First Amendment protects the right of association of political parties, including the 

right to "define [their] associational boundaries ... and engage in effective political association." 

Tashjian, 479 U.S. at 213 (citation omitted) "The ability of the members of the Republican Party 

to select their own candidate ... unquestionably implicates an associational freedom." California 

Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Tashjian. 479 U.S. at 235-36 

(Scalia, J., dissenting)). 

In their first claim, Plaintiffs raise both a facial and as-applied challenge to the 

constitutionality of Proposition 108, arguing that it violates their freedom, protected by the First 

Amendment, not to associate with unaffiliated voters in the process of selecting nominees for the 

general election ballot. ln seeking a preliminary injunction, they ask the court to grant 

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Colorado's major political parties the option of conducting primary elections that are open only 

to registered party members, otherwise known as a "closed primary." 

Facially, Plaintiffs take issue with the alternatives, stating that neither a semi-open 

primary nor a convention or assembly "allow]s] all of its active registered voters [to participate] 

in the choosing of the Party's nominee." Comp l. at 13. They fail to explain how these restrictions 

impact the personal associational rights of individual voters. They certainly do not suggest that 

Proposition 108 prohibits party members from participating in a Republican caucus, or from 

casting a Republican ballot in a semi-open primary, or from meeting with other CRP or 

Committee members. No law prohibits individuals from forming their own private association to 

advocate for their preferred nominees that is limited to "Republicans Only." See Tern· v. Adams, 

345 U .S. 461, 468-69 ( 1953) (addressing the public nature of state-sponsored elections). 

As-applied. Plaintiffs characterize Proposition I 08 as a Hobson 's choice that "effectively 

forces the party to allow unaffiliated voters to help determine its nominees," Am. Resp. to 

Amicus Briefs at 3. because the three-fourths threshold to opt out of the semi-open primary is 

"nearly impossible" to meet, Resp. to the Mot. to Dismiss at 5. Plaintiffs' second claim 

reorganizes its arguments, but the import is the same. 

To determine whether Plaintiffs have a sufficiently personal injury to confer standing. I 

must address the question of whether a primary election scheme that purportedly provides only 

one meaningful choice for the selection of major political party nominees-that of a semi-open 

primary-infringes upon the right of individual major political party members to associate for 

the "common advancement of political beliefs and ideas." Kusper v. Pontikes, 414 U.S. 51, 56 

(1973). I find below that the choice is meaningful. However. even if it were not and the semiopen primary were the only true option for political parties, the statutory choice provided by 

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Proposition I 08 is one to be made exclusively by Colorado ·s political parties. Any constitutional 

harm that accompanies the limits inherent in that choice inures to the parties, and not to their 

individual members. 

In their first two claims. Plaintiffs conflate the CRP members' "freedom of intimate 

association" with their Party's "freedom of expressive association." Roberts v. US Jaycees. 468 

U.S. 609. 618 (] 984). The Supreme Court has long recognized that "the Constitution protects 

against unjustified government interference with an individual's choice to enter into and 

maintain certain intimate or private relationships," Bd. of Directors of Rotan- Int '1 v. Rotary Club 

ofDuarte, 481 U. S. 53 7, 544 ( 1987), but this case does not imp! i cate such relationships. 

Plaintiffs are members of the CRP"s State Central Committee, composed of 521 voting 

members from across the State. Stip. of Facts i· 3. The Committee represents Colorado· s 

Republican voters, who number close to one million. Compi. at 5. Their membership is not the 

sort of intimate relationship that merits constitutional protection of Plaintiffs" individual 

associational rights. See Rotary Club of Duarte, 481 U.S. at 546-47 (finding no constitutional 

interference with rights of individual Rotary Club members due. in part, to Club's large size and 

its "central activities [that] are carried on in the presence of strangers"). Instead, Plaintiffs' 

forced association claims involve "a right to associate for the purpose of engaging in those 

activities protected by the First Amendment," such as collective speech and assembly-a right 

unique to the Party. Roberts, 468 U.S. at 618. Although interference with the CRP's 

associational rights may burden the individual party members to some extent, that secondary 

impact does not permit them to assert the party's rights as their own. Plaintiffs "are in no position 

to rely on the right that the First Amendment confers on political parties to ... select the 

candidate of the party's choosing." New York State Bd. of Elections v. Lopez Torres, 552 U.S. 

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196, 203 (2008). 

"At bottom. the gist of the question of standing is whether petitioners have such a 

personal stake in the outcome of the controversy as to assure that concrete adverseness which 

sharpens the presentation of issues upon which the court so largely depends for illumination." 

Awad v. Ziriax, 670 F.3d 111 L 1120 (2012) (quoting Massachusetts v. £.P.A., 549 U.S.497.517 

(2007)). Because Proposition 108's choice is given to political parties and not to their individual 

members, it is the CRP alone that must sharpen the presentation of the issues raised by Plaintiffs' 

first two claims. Plaintiffs have not demonstrated a sufficiently personal stake or corresponding 

injury to confer standing to bring their forced association claims, either facially or as applied. 

No Injurv in Clai111 3 Where Political Speech is Collective (Compelled Speech Claim) 

ln their third claim, Plaintiffs assert a constitutional injury because, under Proposition 

108, they do not enjoy the option of their preferred candidate nomination method. They insist 

Proposition 108's statutory scheme lacks a meaningful choice, which burdens their free speech 

right by ostensibly requiring the CRP to endorse as its nominee whatever candidate receives a 

plurality of votes in a semi-open primary election. even if that candidate did not receive a 

plurality of votes placed by party members. There are three problems with this argument: First. 

Plaintiffs have no constitutional right to a closed primary election. Second, the speech that is 

allegedly compelled belongs to the CRP and not its members. And third, as I explain below, 

Proposition 108 provides a meaningful choice. 

A member of a political party suffers no constitutional injury when denied the preferred 

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method for selecting his party's nomination of a candidate for office. 

6 One member may wish to 

participate in a caucus that elects delegates to a convention but only so long as those delegates 

arc required to vote according to the plurality vote at the caucus. Another may desire a closed 

primary in which party members arc required to declare their party affiliation at least two months 

in advance of the election. Still another may want to allow members of a particular minority 

party to vote in a major party's primary election. Given the large size of the CRP, there is no 

method that would appease each individual member. Even so, individual party members may see 

their preferred candidate selected through a disfavored nomination selection method, just as they 

might see their preferred candidate selected in a semi-open primary when that candidate did not 

receive a plurality of party member votes. 

The Secretary emphasizes this point through the submission of a news article published 

on the heels of the CRP' s decision not to opt out of the semi-open primary in September 2021. 

According to the article, "[a] chorus of big-name Colorado Republicans, including former 

District Attorney George Brauch Ier and former GOP Chair Dick Wadhams, publicly campaigned 

6 ln the United States, political parties have a constitutional right to exclude non-party members 

from their nominee selection process if they wish to do so, see Jones, 530 U.S. at 581-82, and a 

similar constitutional right to include non-members through an open nominee selection process, 

see Tashjian, 4 79 U.S. at 225. While the CRP is not a party to this suit, it bears mentioning that 

aside from the ability to include or exclude unaffiliated voters by some means, the Party enjoys 

no right to its preferred candidate selection process. even if it unanimously supports a particular 

method. When a state gives political "parties the right to have their candidates appear with party 

endorsement on the general-election ballot," that state "acquires a legitimate governmental 

interest in ensuring the fairness of the party's nominating process, enabling it to prescribe what 

that process must be." Lopez Torres, 552 U.S. at 798. While there are limits to the state's 

authority to control the process, the Supreme Court has considered it "too plain for argument" 

that Colorado "may insist that intraparty competition be settled before the general election by 

primary election or by party convention." American Party of Texas v. White, 415 U.S. 767, 781 

(1974) (citing Brown, 415 U.S. 724, 733-36 (1974)); see also Lopez Torres, 552 U.S. at 799 

("Selection by convention has never been thought unconstitutional, even when the delegates 

were not selected by primary but by party caucuses."). 

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against the [ opt-out] proposal leading up to the vote." Alex Burness, Millions Will Keep Primary 

Voting Access as Colorado GOP Rejects Controversial Opt-out Plan, The Denver Post, Sept. 18, 

2021, ECF No. 14-2. Clearly, the Party itself is not beholden to every member's preference, so 

the State can hardly be charged with a constitutional violation when the party makes a choice 

that leaves some members dissatisfied. 

Bearing in mind that Plaintiffs have an individual right to free speech but not to their 

preferred candidate nomination selection process, l next consider the speech being challenged 

here. Once again, the right Plaintiffs assert is a collective right that belongs to a political party 

and not its members. See Clingman v. Beaver, 544 U.S. 581, 586 (2005) ("We have held that the 

First Amendment, among other things, protects the rights of citizens 'to band together in 

promoting among the electorate candidates who espouse their political views .. ,, (quoting Jones, 

530 U.S. at 574)). If a primary election statutory scheme impacts a party's right to free speech, 

and therefore its members' right, then it is the party that must speak up on behalf of its collective 

members. The injury is personal to the collective-the party-and not to the individual 

members. 

Like Don Quixote, Plaintiffs are self-appointed heroes, defending the rights of their party 

by going to battle against the allegedly insurmountable obstacle of a three-fourths majority that 

compels a form of diluted political speech. They have overstepped their bounds. By selecting its 

preferred candidate for the general election-the standard bearer-it is the party that is speaking 

as a single entity and not the cacophonous declarations of each of its registered members, 

simultaneously expressing their individual preferences. Timmons v. Twin Cities Area New Party, 

520 U.S. 351, 359 (I 997) (The "Party, and not someone else, has the right to select the[] Party's 

standard bearer." (quotation marks omitted)). 

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Plaintiffs rely on the Supreme Court's declaration that "[a]ny interference with the 

freedom of a party is simultaneously an interference with the freedom of its adherents," but that 

statement was made in the context of a constitutional challenge of a state primary election law 

brought by a political party. Democratic Partv of U.S. v. Wisconsin ex rel. la Follette, 450 U.S. 

107, 122 (1981); see also Jones, 530 U.S. 567 (California Democratic Part, California 

Republican Party, Libertarian Party of California, and Peace and Freedom Party): Tashjian, 479 

U.S. 208 (Republican Party of Connecticut); Cox, 892 F.3d 1966 (Utah Republican Party and 

Utah Democratic Party). Plaintiffs have pointed to no case that confers standing on individual 

party members to challenge a law that allegedly injures a political party's First Amendment 

rights. If Proposition 108's denial of political speech that is the product of a closed primary does 

result in some constitutional injury, it is an injury unique to the Party and not to its individual 

members. 

In short, the Plaintiffs have not alleged any personal injury and do not possess standing to 

defend the rights of a third party, even if that party is an association of which they arc fervent 

and vocal members. The CRP cannot litigate this case by proxy. 

No Injury, Causation, or Redressabilitv in Claim 4 (Vote Dilution Claim) 

Plaintiffs' fourth claim relates to their Fourteenth Amendment right to equal protection 

under the law. They assert violations of their individual right to cast an undiluted vote. likening 

Proposition 108's statutory scheme to legalized ballot-box stuffing. Plaintiffs ground their fourth 

claim in "the fundamental right to vote," but there is no right to an election in which an 

individual can cast a vote in every political contest. Mcm. to Mot. for Prelim. Inj. at 12, ECF No. 

2-1. If there were, the caucus and convention systems-at one point the primary means of 

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nominating candidates and to this day the final method of electing presidential nominees-would 

be unconstitutional. Plaintiffs might also be alluding to "[tjhe right to vote freely for the 

candidate of one· s choice," in a publicly funded election, with the knowledge that "the right of 

suffrage can be denied by a debasement or dilution of the weight of a citizen· s vote just as 

effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 

U .S. 533, 555 ( 1964). "It does not follow, however. that the right to vote in any manner and the 

right to associate for political purposes through the ballot are absolute." Cox, 892 F.3d at l 076 

(quoting Burdick v. Takushi, 504 U.S. 428,433 (1992)). The U.S. Constitution confers no 

individual right to political party members to vote in a closed primary election. 

The lack ofa constitutional injury is not Plaintiffs' only bar to standing. They have failed 

to demonstrate that Proposition I 08 is the cause of the alleged injury or that a favorable decision 

on the merits of this case would redress that injury. 

For standing purposes. an injury must be "fairly traceable" to the challenged conduct. 

Wright, 468 U.S. at 751. lt is Plaintiffs' burden to show "a substantial likelihood that the 

defendant's conduct caused plaintiffs injury in fact." Nova Health Sn·. ,,_ Gandv, 416 F.3d 1149, 

1156 ( I 0th Cir. 2005). "As part of this showing, a plaintiff must establish that its injury was not 

the result of the independent action of some third party not before the court." Santa Fe All. for 

Pub. Health & Safety v. City of Santa Fe, New Mexico, 993 F.3d 802, 814 ( l 0th Cir. 2021) 

(quotation marks omitted) (quoting Nova Health, 416 F.3d at 1156). 

The linchpin of Plaintiffs· vote dilution claim is the assertion that major political parties 

are forced into semi-open primaries as their only meaningful option because it is "nearly 

impossible" to garner the requisite three-fourths Committee support necessary to select a 

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nomination process that is closed to non-party members. Plaintiffs' argument that Proposition 

108 does not offer a meaningful choice is so thin as to dissolve upon inspection. 

Plaintiffs assen the three-fourths threshold is unconstitutional as-applied because the 75% 

threshold cannot practically be met, but they offer no factual basis to support their assertions. 

Plaintiffs cite many figures regarding low participation and attendance at Committe~ meetings as 

well as past caucus assemblies and conventions. but those figures have no relevance to the law's 

constitutionality. Rather than explain why Committee members ca111101 all participate in the 

meeting for selecting the nomination method. they flatly state that enough members do not 

attend. That strikes me as a matter squarely within the province and concern of the Committee 

itself, and an entirely inappropriate cause for judicial interference. As the Secretary aptly points 

out. Plaintiffs "complain that it is difficult for the Committee to assemble a quorum of voting 

members," but it is not the Secretary's place to address that problem. Mot. to Dismiss at 10. "If 

assembling a quorum were important, the Committee could make attendance mandatory or 

change the place or date of its meeting." Id. Further. former Colorado Secretary of State Scott 

Gessler provided expert testimony that, to his knowledge, no Colorado law prohibits the 

Committee from allowing voting members to attend meetings virtually. I have found none. On 

the contrary. Colorado law permits remote participation of delegates at assemblies to nominate 

candidates for the primary election ballot, if party rules permit. 

Proposition I 08 requires major parties to permit non-members to vote in as/a/esponsored, tax supported election, and it provides an alternative nomination method that is 

closed to non-members. The CRP could eliminate any injury to Plaintiffs by selecting the closed 

alternative because Plaintiffs would suffer no vote dilution and it would enjoy a nomination 

process closed to outsiders. And, as the Secretary acknowledged during the hearing on these 

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motions, nothing in Colorado election law specifically precludes a party from self-funding a 

primary election limited to party members, and then certifying the results of that closed primary 

to a party convention. If then, in the exercise of its statutory choice, Plaintiffs' party chooses to 

hold a semi-open primary instead of a closed convention or caucus assembly, it is that choice 

that causes any dilution in Plaintiffs' individual votes or restricts their access to a closed 

nomination process. 

The vote dilution of which Plaintiffs complain cannot be attributed to the Secretary's 

conduct, but rather to the CRP's exercise of its statutory choice-the independent action of a 

third party not before the court-and consequently, any judicial relief will not redress Plaintiffs' 

claimed injury. 

No Causation or Redressability on Claims 1, 2 & 3 

Causation is also problematic for Plaintiffs' speech and association claims. If not for the 

CRP's selection of the semi-open primary process, Plaintiffs would not be forced to associate 

with unaffiliated voters in the nominee selection process and their political speech in the form of 

cast primary ballots would be unaffected by a party endorsement that accounts for the votes of 

non-party members. Put another way, if Plaintiffs are forced to associate with non-party 

members and if their speech is compelled in any way, their complaints should be lodged with the 

CRP and not the court. 

Lack of Personal Injury Requires Partial Dismissal of Claim 5 (Discriminotory Treatment 

Claim) 

In their fifth claim, Plaintiffs contend major political parties and their members are 

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discriminated against because Proposition I 08 offers minor political parties and their members 

the option to hold a closed primary election, but it does not afford major political parties the 

same option. As outlined above, the portion of the fifth claim that relates to discrimination 

against major political parties cannot be raised by Plaintiffs because it docs not affect them "in a 

personal and individual way." Lujan, 504 U.S. at 560 n.1. However, the portion of the claim 

relating to Plaintiffs' equal protection rights as individual members of a major political party 

requires additional analysis. Plaintiffs have sufficiently alleged a constitutional injury in the form 

of Proposition I 08's discriminatory treatment of major political party members, whose party has 

no statutory option of a publicly financed closed primary election. I consider the differential 

treatment of members of major and minor parties next, and determine the claim is subject to 

dismissal under Rule 12(b)(6). 

B. Failure to State a Claim 

Under Federal Rule of Civil Procedure 12(b)(6). a party may also seek dismissal by 

asserting that the plaintiff has failed "to state a claim upon which relief can be granted." "To 

survive a motion to dismiss, a complaint must contain sufficient factual matter. accepted as true, 

to 'state a claim to relief that is plausible on its face.:" Ashcroft v. Iqbal, 556 U.S. 662,678 

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When "the plaintiffs 

[] have not nudged their claims across the line from conceivable to plausible. their complaint 

must be dismissed." Twombly, 550 U.S. at 570. In reviewing a Rule 12(b)(6) motion, "all wellpleaded factual allegations in the ... complaint are accepted as true and viewed in the light most 

favorable to the nonmoving party." Sutton v. Utah State Sch. for Deaf & Blind, 1 73 F.3d 1226, 

1236 (10th Cir. I 999). 

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Plaintiffs' equal protection claim regarding differential treatment of major and minor 

party members fails under this standard. It is Plaintiffs' burden at this early stage of litigation to 

push their claims "across the line from conceivable to plausible." Twombly, 550 U.S.at 570. This 

burden is not met by their assertions of discrimination based on the fact that, under Proposition 

108, "voters affiliated with major political parties are not permitted to participate in a primary 

election to choose their party's nominees without their votes being diluted by unaffiliated voters" 

when voters affiliated with minor political parties are permitted to do so, if their party so 

chooses. Mem. to Mot. for Prelim. Inj. at 12. 

"Statutes create many classifications which do not deny equal protection; it is only 

'invidious discrimination' which offends the Constitution." Ferguson v. Skrupa, 372 U.S. 726, 

732 ( 1963 ). Plaintiffs are not in a suspect class, and I am unpersuaded that Colorado election law 

incorporates anything remotely akin to the type of invidious discrimination that the Supreme 

Court has found to require strict scrutiny. See Harper v. Virginia State Bd. o/Elections, 383 U.S. 

663, 668 (1966) (requirement of fee as a condition to obtain ballot); Cox v. State o/Louisiana. 

379 U.S 536, 557 ( 1965) (selective enforcement of broad prohibitory statute); Brown ,·. Board of 

Education, 347 U.S. 483 (1954) (segregation by race in public schools). Thus, a rational basis 

review applies and the validity of Proposition 108's distinction between major and minor 

political parties, and therefore their members, depends on whether "there is a rational 

relationship between the disparity of treatment and some legitimate governmental purpose." 

Armour v. City ofIndianapolis, Ind., 566 U.S. 673,680 (2012) (citation omitted). 

The Secretary lists several State interests: "protecting and preserving the integrity of the 

nominating process, promoting fairness, allowing parties to increase voter participation, and 

ensuring administrative efficiency support its semi-open primary system." Resp. to Mot. for 

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Prelim. lnj. at 12. The Secretary has a legitimate interest in allowing and encouraging its largest 

political parties to increase voter participation in primary elections and to ensure administrative 

efficiency in the process. Proposition 108 is a reasonable way to accomplish the Secretary's 

goals. 

The Supreme Court has long recognized "the state's vital regulatory role in primary 

elections." Cox, 892 F.3d at 1078. State regulations must be "substantial" if elections "are to be 

fair and honest and if some sort of order. rather than chaos. is to accompany the democratic 

processes." Storer v. Brown, 415 U.S. 724, 730 (1974). The interests offered by the Secretary are 

precisely the sort of legitimate interests thai will ensure that fairness and order accompany 

Colorado's democratic process in the selection of nominees for the general election ballot, and 

they justify the limitations Proposition 108 imposes on Colorado ·s major political parties. 

Plaintiffs have not stated a plausible claim to the contrary. Consequently, I find the portion of 

Plaintiffs' discriminatory treatment claim related to Plaintiffs' individual membership in a major 

political party fails to state a claim under Ruic 12(b)(6). 

IV. PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION 

Although I have determined dismissal is appropriate for all of Plaintiffs' claims, 1 go on 

to consider their Motion for a Preliminary Injunction because the issues presented are 

interwoven, both in the parties' filings and in the testimony presented in court. For the reasons 

stated below, I would deny Plaintiffs' request for a preliminary injunction even if their lack of 

standing did not present a jurisdictional bar to their claims. 

7 

7 I do not analyze the portion of Plaintiffs' fifth claim pertaining to their individual equal 

protection rights, however, as I have found it appropriate to dismiss that claim with prejudice 

pursuant to Federal Rule of Civil Procedure l 2(b)(6). 

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A. Disfavored Preliminary Injunctions 

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter 

v. Nat. Res. Def Counsel, Inc., 555 U.S. 7. 24 (2008). When presented with a motion for a 

preliminary injunction, courts in the Tenth Circuit consider whether: (I) the movant is 

substantially likely to succeed on the merits. (2) the movant will suffer irreparable injury if the 

injunction is denied; (3) the threatened injury to the movant outweighs the injury facing the 

opposing party under the injunction; and ( 4) the injunction is adverse to the public interest. 

Beltron ics USA, Inc. v. Midwest Inventory Dist rib., LLC, 562 F.3d 1067, l 070 (10th Cir. 2009). 

When the Government opposes the motion, the third and fourth factors merge. See Nken v. 

Holder, 556 U.S. 418,435 (2009). It is the movant's burden to establish by a preponderance of 

the evidence that these factors weigh in favor of an injunction. Citizens Concernedfor 

Separation o/Church & State v. City of Denver, 628 F.2d 1289, 1299 (10th Cir. 1980). 

Typically, a preliminary injunction serves the limited purpose of preserving the status 

quo ante in order to prevent irreparable harm until a court can make a final decision on the 

merits. Univ. of Texas v. Camenisch, 451 U.S. 390,395 (1981). Three forms of specifically 

disfavored preliminary injunctions go farther: ( l) those that alter the status quo; (2) mandatory 

preliminary injunctions; and (3) preliminary injunctions that afford the movants all the relief they 

could recover at the conclusion of a full trial on the merits. O Centro Espirita Beneficiente Uniao 

Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004). Plaintiffs who request a disfavored 

injunction must make a "strong showing" with regard to both the likelihood of success on the 

merits and the balance of harms. Id. at 976. 

An injunction is characterized as mandatory in the Tenth Circuit "if the requested relief 

affirmatively requires the nonmovant to act in a particular way, and as a result places the issuing 

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court in a position where it may have to provide ongoing supervision to assure the nonmovant is 

abiding by the injunction." Schrier v. Univ. Of Co .. 427 F.3d 1253, 1261 (10th Cir. 2005) 

(cleaned up) (citation omitted). Plaintiffs move to enjoin Proposition 108, which permits 

unaffiliated voters to participate in major party primary elections if the party docs not choose the 

assembly or convention method by a three-fourths majority vote of its state central committee. 

They recognize, however, that a return to the primary election law that predated Proposition 108 

would be unconstitutional if challenged. Rather than seeking a return to the status quo ante, they 

ask the court to grant major parties "the same right that is available to minor political parties 

under [Colo. Rev. Stat.]§ l-4-1304(1.5)(c) to notify the Secretary of State by April 14, 2022, 

that they wish to prohibit unaffiliated electors from voting in their primary elections." Mem. to 

Mot. for Prelìm. lnj. at 16. 

The Secretary provided ample credible evidence that the injunction sought by Plaintiffs 

would place an unprecedented and onerous burden on the Colorado Department of State. 

According to Hilary Rudy, the Department's Deputy Elections Director since 2014, the State 

faces a suite of inflexible deadlines imposed by state and federal law in the weeks leading up to 

Colorado's primary elections. 

8 Rudy Deel. ,, 9, I O, ECF No. 14-1. Because Plaintiffs seek the 

option of selecting a closed primary election, a choice would need to be made by both major 

parties' state central committees. Meanwhile, the ballot certification deadline of April 29, 2022, 

looms. If one or both parties notify the Secretary that it has selected a closed primary, Colorado's 

statewide voter registration system ("SCORE") would need to be updated to accommodate that 

decision, requiring significant changes to SCORE. id il 14. Colorado's counties would have to 

8 Failure to comply with the Uniformed and Overseas Citizens Absentee Voting Act can subject 

the State to "significant federal penalties." Rudy Deel.,, 9, 1 O. 

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"reprint voter instructions and implement last[-]minute changes with ballot printing vendors," at 

a time when global supply chain issues are common. Id. ~l~I 13, 14. Notwithstanding the parties' 

actual selections, "the State would need to launch a substantial effort to educate voters about the 

change ahead of the June 6, 2022 party affiliation deadline" on account of the last-minute 

alteration of the current statutory options. Id 1 13. Voter confusion would be unavoidable. 

Former Secretary of State Scott Gessler downplayed the impact of a potential injunction 

at the state and county level, noting that the Democratic Party "has been very firm in their view 

that they are not going to opt out of the semi-open primary regardless of the outcome of this 

lawsuit." and that there are ''a number" ofCRP leaders who would not want to opt out of the 

semi-open primary. See also Gessler Decl.r[ 23. He testified that any changes to SCORE would 

be "minor." He admitted, however, that he has never logged into the SCORE system, which is 

used to track voter eligibility and returned ballots. Moreover, because he left office before 

Proposition I 08's enactment, he is unfamiliar with SCORE's current capabilities. 

I find the evidence squarely demonstrates that the requested injunction would require 

significant affirmative actions at almost every level of state government. As such, it would also 

require the court to provide ongoing supervision during the rapidly progressing stages of the 

primary election process. It follows that the injunction sought is a mandatory injunction. 

Mandatory injunctions generally alter the status quo ante. Schrier, 427 F.3d at 1260, and such is 

the case here. Because the injunction Plaintiffs seek is specifically disfavored. they must make a 

strong showing with regard to both the likelihood of success on the merits and the balance of 

harms. O Centro, 389 F.3d at 976. They have failed to do either. 

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B. Likelihood of Success on the Merits 

I have determined Plaintiffs do not have authorization to represent the rights and interests 

of the CRP. Plaintiffs are adamant that they do, and have informed the court that they will seek 

to amend the Complaint if necessary to ensure that the CRP's interests are adequately 

represented. See note l, supra. For that reason, I assume Plaintiffs do represent the interests of 

the Party for the sake of their Motion for a Preliminary Injunction. 

First Amendment Claims 

"When deciding whether a state election law violates First and Fourteenth Amendment 

associational rights," I must "weigh the character and magnitude of the burden the State's rule 

imposes on those rights against the interests the State contends justify that burden, and consider 

the extent to which the State's concerns make the burden necessary." Timmons. 520 U.S. at 358 

(citation and quotation marks omitted). To prevail on the merits of their First Amendment 

claims. Plaintiffs must show that the balance between their rights of free speech and association 

and the Secretary's interest in managing elections tips in their favor. 

Regulations that impose a severe burden on First Amendment rights must be narrowly 

tailored to advance a compelling state interest. Burdick, 504 U.S. at 434. The Supreme Court 

has unequivocally held that it is a severe burden on a political party when the party is forced to 

allow unaffiliated voters to participate in its primary election. Wisconsin, 450 U.S. at 126 

(describing the "substantial intrusion into the associational freedom of' party members when 

state law required the National Democratic Party to honor the binding results of an open 

primary election). However, Proposition I 08, on its face. does not "impose]'] insurmountable 

obstacles to ... generate support" for a closed assembly or convention. White, 415 U.S. at 784. 

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And as I detailed above, Plaintiffs' as-applied challenge cannot succeed because they have not 

shown that the CRP has been forced to associate with unaffiliated voters. Plaintiffs have 

presented absolutely no evidence that the three-fourths threshold is impossible to meet. 

When "reasonable, nondiscriminatory restrictions" do not severely burden a party's 

rights, the state's "important regulatory interests arc generally sufficient to justify" the 

restrictions. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). On its face, Proposition l 08 

restricts Colorado's major political parties by offering a choice: they can allow unaffiliated 

voters to participate in their primary elections or they· can limit participation in their nomination 

process through a closed convention or assembly caucus. That choice constitutes a reasonable, 

nondiscriminatory restriction that is justified by the State's important regulatory interests: 

"protecting and preserving the integrity of the nominating process, promoting fairness, allowing 

parties to increase voter participation, and ensuring administrative efficiency support its semiopen primary system." Resp. to Mot. for Prclim. lnj. at 12. 

The statutes at issue here provide a default that allows Colorado's largest political parties 

to increase voter participation through the inclusion of unaffiliated voters. By requiring a parry 

to opt out of the default nominee selection method. Colorado's major political parties are 

encouraged to voluntarily enfranchise Colorado's 1.637,864 active unaffiliated voters. See 

Compi. at 5. And by requiring a super-majority vote of a party's state central committee, the 

restrictions encourage administrative efficiency and reduce the voter confusion that could result 

if major political parties were more easily able to change their preferred nominee selection 

method every two years. 

ln addressing the interests of unaffiliated voters who wish to participate in the selection 

of candidates who will appear on the general ballot, Plaintiffs emphasize the ease with which an 

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unaffiliated voter can register before a primary election and de-register after. By focusing on 

the lack of practical barriers to registration, Plaintiffs ignore the associational interests of 

unaffiliated voters who do not want to affiliate with a party but still hope to influence the 

choices that will be presented to them in the general election. Though it is true that "a basic 

function of a political party is to select the candidates for public office to be offered to the 

voters at general elections," Kusper. 414 U.S. at 58, an unaffiliated voter is not disinterested in 

that process; he may, instead, be exercising an individual right not to associate. Cf Jones, 530 

U.S. at 574 ("A corollary of [an association's] right to associate is the right not to associate .. '). 

There can be no doubt the Secretary has an interest in considering the position of Colorado's 

significant number of unaffiliated voters. 

Plaintiffs have failed to show that the balance between the Secretary's interests and their 

First Amendment rights tip in their favor. Consequently, they arc unlikely to succeed on the 

merits of their first three claims. 

Equal Protection Claims 

"[T[he Equal Protection Clause does not make every minor difference in the application 

of laws to different groups a violation of our Constitution." Williams v. Rhodes, 393 U.S. 23, 30 

(l 968); see also Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 54 ( l Oth Cir. 2013) ("The 

Equal Protection Clause does not forbid classifications. It simply keeps governmental 

decisionmakers from treating differently persons who are in all relevant respects alike." (quoting 

Nordlinger v. Halm, SOS U .S. 1, I O ( 1992))). While similarly situated voters are protected from 

discrimination by the Fourteenth Amendment's Equal Protection Clause, Plaintiffs must 

"demonstrate in the first instance a discrimination against them of some substance." White, 415 

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U.S. at 781. The discrimination of which Plaintiffs complain is that minor parties are able to 

select Plaintiffs' preferred nomination process, and major parties are not. That is not a 

discrimination of substance. 

To be sure, "[a] political party has a First Amendment right ... to choose a candidateselection process that will in its view produce the nominee who best represents its political 

platform." Lopez Torres. 552 U.S. at 797. A party does not have a right to choose whatever 

candidate-selection process it desires. When distilled, Supreme Court precedent establishes that 

political parties have a constitutional right to include or exclude non-party members from the 

nominee selection process, but they do not have a right to dictate how the inclusion or exclusion 

will occur. 

Plaintiffs have not made a strong showing that Proposition I 08 forces an open candidateselection process upon them. In fact, they have made virtually no showing that the option for a 

closed assembly or convention process is unavailable. They have established that the Committee 

would prefer to have the option of a closed primary election and they have proven that a semiopen primary is more favorable to the Committee than a closed assembly or convention, but that 

is not enough. Without showing that some version of vote dilution is forced on them, Plaintiffs 

cannot establish even a remote likelihood of success on the merits of their fourth claim. 

Regarding their fifth claim, I have already determined that it is subject to dismissal for 

failure to state a claim as it relates to individual party members. My analysis does not change 

when I consider the rights of parties. 

Plaintiffs do not argue the Secretary is constitutionally obligated to treat major and minor 

political parties equally, nor could they. See Jenness v. Fortson, 403 U.S. 43 I, 441 ( 1971) ("The 

fact is that there are obvious differences in kind between the needs and potentials of a political 

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party with historically established broad support, on the one hand. and a new or small political 

organization on the other."). Plaintiffs claim major political parties are unfairly disadvantaged by 

their inability to nominate candidates through a publicly funded closed primary election, an 

advantage given to minor parties in Colorado. Of course, if Proposition I 08 did not give major 

political parties a meaningful choice between an open nominee selection method and a closed 

one, this claim would hold more water, but I have already dispensed with Plaintiffs' assertion 

that the CRP has been forced into an open nomination process. 

In American Party of Texas v. White. several minor political parties made a similar claim 

by alleging that a state law discriminated against them by requiring the parties to nominate 

candidates for general election by convention rather than by primary election, the process used 

by larger parties. 415 U.S. 767, 771-74 (1974). The Supreme Court found the plaintiffs failed "to 

demonstrate in the first instance a discrimination against them of some substance." íd. at 781. 

The same is truc here. And for the reasons provided in my discussion of the Secretary's Rule 

12(b)(6) motion, I find there is "a rational relationship between the disparity of treatment and 

some legitimate governmental purpose." Armour, 566 U.S. at 680 (citation omitted). Plaintiffs 

have failed to show that they are likely to succeed on either equal protection claim. Thus, since I 

have found Plaintiffs are unlikely to succeed on any of their claims, the related factor weighs 

heaving against granting a preliminary injunction. 

C. Irreparable Injury 

Plaintiffs argue that any violation of their constitutional rights constitutes an irreparable 

injury. Because I have found they are unlikely to succeed on the merits of any of their 

constitutional claims, they have demonstrated no injury whatsoever. This second factor also 

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weighs against issuance of the requested injunction. 

D. Balance of Harms 

When the government opposes a motion for a preliminary injunction, the harms to be 

balanced are the threatened injury to the movant versus any injury to the public interest. See 

Nken, 556 U.S. at 435. I struggle to find any harm to the Plaintiffs or the CRP. Plaintiffs are 

unrestricted in their ability to associate, to lobby the Committee to select a closed nomination 

process, and to either caucus or vote for their preferred party nominee. These fundamental 

personal liberties are unhindered by Proposition I 08. The CRP is free to select a closed 

nomination process, and it is free to amend its Bylaws to encourage or require greater 

participation in its meeting for selecting the nomination method. Of course, such changes may 

have no practical impact because, as Mr. Gessler testified and as the Secretary has demonstrated, 

some portion of the CRP leadership docs not want to opt out of the semi-open primary. 

The public interests involved, on the other hand, are weighty. Proposition I 08 was passed 

by constitutional referendum more than five years ago. Since that time, Colorado has expended 

significant resources to accommodate semi-open primaries for the State's major political parties 

and to educate voters about the statutory scheme. Many of Colorado's unaffiliated voters "have 

relied on Proposition 108 since its passage in 2016 to vote in Colorado's semi-open primaries," 

and "[t]heir right to vote in the 2022 Republican Primary was confirmed when the [CRP] voted 

to hold a primary" last year. Freeburn Amicus Brief at 6, ECF No. 42. As with the first two 

factors, this last factor weighs against the issuance of a preliminary injunction, particularly one 

that is specifically disfavored. Accordingly. if Plaintiffs did have standing to bring their claims, 

they have not demonstrated that their claims warrant the extraordinary relief they seek. 

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V. CONCLUSION 

For the reasons provided in this Order. Defendant's Motion to Dismiss (ECF No. 27) is 

GRANTED. Plaintiffs' first four claims and part of their fifth arc DISMISSED WITHOUT 

PREJUDICE. Their fifth claim. insomuch as it relates to the individual Plaintiffs. is DISMISSED 

WITH PREJUDICE. Plaintiffs' Motion for a Preliminary Injunction (ECF No.2) is DENlED AS 

MOOT. 

DA TED this 8th day of April. 2022. 

JO L. KANE 

SE R U.S. DISTRICT JUDGE 

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