Ken Waters, Libertarian nominee for Arapahoe County, Colorado, sheriff, will file a ballot access lawsuit in state court on August 17. He is being kept off the ballot because he has not been a registered Libertarian for an entire year since filing. However, in 1988, a Colorado state court ruled that political parties have a Freedom of Association right to accept candidates who have not been members of their own party for an entire year. The Libertarian Party of Colorado has a bylaw, setting the prior affiliation period at only 3 months, a requirement that Waters meets.
The Colorado election code gives qualified major parties the right to set a shorter affiliation period. But due to a flaw in drafting the qualified minor party law in 1998, that protection was not extended to qualified minor parties. The lawsuit will argue that the same protection won by the Democratic Party in 1988 should be extended to qualified minor parties as well.
The Demand Letter explaining the grounds for the lawsuit, already filed with the county clerk and recorder who kept him off the ballot, is linked from his campaign website at waters4sheriff.org
The Libertarian Pary of Colorado Bylaws provision says:
“Article IX – ELIGIBILITY
Section 1: All candidates for public office must be registered members of the party for 60 days prior to the last date on which the party can file its certificate of designation with the appropriate election official.”
I was unaware of all of the circumstances around the drafting of the qualified minor party law, but LP-Colorado and our activists have been quite involved in improvements in ballot access over the years and in turning back recent attempts to restrict ballot access. A new provision requiring primaries for minor parties (at taxpayer expense) was utilized in Boulder County for the first time in 2004.
Colorado state law also provides for utilization of a nickname by candidates of major parties but does not explicitly extend that provision to minor party candidates. My candidate designation form said I could use a nickname, so I did, relying on the precedent set by Douglas “Dayhorse” Campbell of the American Constitution Party of Colorado in his previous run against former incumbent Senator Ben Nighthorse Campbell (Doug is now running against me for the CU Regent At Large seat), and the unofficial ballot from the Secretary of State’s Elections Office for the general election lists both of our nicknames. Colorado does not have the restrictions on nicknames that Texas has, for instance.
More background on the legal situation is in the last third of Peter Blake’s Saturday, August 19, 2006 political opinion column in the Rocky Mountain News:
“A double standard: A Libertarian candidate for Arapahoe County sheriff is suing to get back on the Nov. 7 ballot after having been kicked off by County Clerk Nancy Doty.
Because the Democrats have no candidate, Libertarian Ken Waters would be the only challenger to Republican incumbent Grayson Robinson. Doty removed him because he hadn’t been affiliated with the Libertarian Party for at least 12 months prior to his nomination last spring, as state law requires.
The law also requires Democrats and Republicans to be affiliated for 12 months, but specifies that the affiliation can be shorter if party rules permit it. And in the past, they have.
In other words, major parties have privileges that minor parties don’t under Colorado law.
Libertarian Party rules require affiliation for only 60 days prior to candidacy. Waters, who had been a Republican, re-registered as a Libertarian last Dec. 27, in plenty of time for nomination by the Libertarian convention in the spring.
Attorney Rick Daily, an expert in elections law, is representing Waters. He said his suit has “eerie echoes” of the Martha Ezzard case 18 years ago.
Ezzard was a GOP state senator who resigned her seat and switched parties in 1988. The Democrats were eager to have her challenge U.S. Rep. Dan Schaefer, R-Colo., in the 6th District that fall, but of course she hadn’t been a Democrat one year. So the party changed its rules, at least temporarily, to permit candidacy after 60 days.
Republican Secretary of State Natalie Meyer declared her ineligible but the Democrats sued in District Court. And they won, citing a 1986 U.S. Supreme Court decision which held that political party rules supersede state law unless the state can demonstrate a compelling interest in regulating the internal affairs of the party.
Ezzard lost to Schaefer, but the legislature adjusted state law to account for the high court decision – at least as it applied to major parties. Waters and Daily will try to extend the same principle to Libertarians and other minor parties.”
Thank you to Severin at the LP Colorado blog.