On January 23, the Tenth Circuit overturned a Colorado campaign finance law that lets contributors give $400 to a candidate for the legislature who is nominated in a primary, but only $200 to a candidate who is nominated in a minor party convention, or with the independent candidate petition procedure, or who is a write-in candidate. The decision is Riddle v Hickenlooper, 13-1108, and is written by Judge Robert Bacharach, an Obama appointee, and co-signed by Judge Neil Gorsuch, a Bush Jr. appointee, and Bobby Baldock, a Reagan appointee. UPDATE: here is a newspaper story about the decision.

The decision overturns the U.S. District Court decision, which had upheld the law. Although all three Tenth Circuit judges agree, Judge Gorsuch wrote separately to discuss the appropriate level of scrutiny. The basis for the decision is equal protection. It is very rare for minor parties, independent candidates, and their supporters, to win a constitutional election law case on equal protection grounds; most laws striking down ballot access restrictions and other laws that injure minor parties and independents are won on First Amendment grounds.

The decision equivocates on whether the law is subject to strict scrutiny, or intermediate scrutiny, but concludes that the law is unconstitutional under either standard. The panel’s decision says, “Here the state of Colorado has created different contribution limits for candidates running against each other, and these differences have little to do with fighting corruption.” The concurrence says, “The only reason I can imagine for Colorado’s challenged contributory scheme is a bald desire to help major party candidates at the expense of minor party candidates…A state cannot adopt contribution limits that so clearly discriminate against minority voices in the political process without some ‘compelling’ or ‘closely drawn’ purpose – and Colorado has articulated none.”

Lowell Weicker, a former Republican U.S. Senator from Connecticut, and a former Governor elected on the “A Connecticut Party” line, has urged the Republican Party to again let independents vote in its primaries.

The Connecticut Republican Party won a lawsuit in the U.S. Supreme Court in 1986, to force the state to let independents vote in the Republican Party’s primary. That decision, Tashjian v Republican Party of Connecticut, was a landmark victory for First Amendment rights for political parties. Ironically, a few years after winning the lawsuit, the Republican Party went back to excluding independents from voting in its primaries. See this story about Weicker’s recent remarks.

Connecticut Democrats have never allowed independents to vote in their primaries. The state didn’t even have primaries until the 1950’s; previously party meetings chose all party nominees.