On August 31, the 10th circuit upheld Colorado’s unique law, barring independent candidates (for office other than President) if they have been registered members of a qualified party in the 17 months before the general election. As a result, Kathleen Curry, Colorado’s only independent legislator, must be a write-in candidate this year as she tries to be re-elected. The 21-page decision is here. It is by Judge Michael Murphy, a Clinton appointee, and is co-signed by Judges Wade Brorby and Deanell Tacha, both Reagan appointees.
The decision was issued without oral argument, and will not be reported.
If any ballot access decision ever can be said to have lack common sense, this one qualifies. The Colorado legislature this year repealed the requirement. Unfortunately for the plaintiff-candidate, the new relaxed law does not take effect until 2011. One wonders, if the legislature doesn’t feel the old law is needed, how can there possibly be a state interest in such a law? Furthermore, the rationale of the decision, that the law is needed to preserve “stability”, is absurd. No other state has such a restrictive prior disaffiliation law for independent candidates, yet one doesn’t observe “instability” in the other 49 states.
The decision also lacks common sense because Colorado permits political parties to nominate someone who is newly-affiliated with that party. Therefore, independent voters who support an independent candidate have fewer rights than political parties. The decision’s equal protection argument pays no attention at all to the interests of independent voters.