On February 2, U.S. District Court Judge Philip A. Brimmer issued an order in Colorado Republican Party v Griswold, 1:23cv-1948. He denied the Republican Party’s request for an injunction against the semi-closed primary as it pertains to the Republican Party. Colorado law says independents may vote in a party primary unless that party’s state central committee, by a 75% or more vote, does not want independents to vote in its primary.

Although the Colorado Republican Party doesn’t want independents to vote in its primary, there isn’t 75% support for exclusion in the party committee. The judge might have ruled differently if the law allowed no means for the party to bar independents from its primary. The judge also noted that there is little evidence that allowing independents to vote in the Republican Party actually changes the outcome of the contests. Here is the Order.

On February 5, the amicus curiae group of 3,200 voters that advocates that the Ninth Amendment protects the right of voters to vote freely for the candidate of their choice asked for five minutes of oral argument, in Trump v Anderson, the Colorado ballot access case.

Here is the filing. The Ninth Amendment says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” When the Ninth Amendment was written, voters were free to vote for anyone they wished. If the Ninth Amendment means anything, surely it includes rights enjoyed by citizens of the United States when the Ninth Amendment was passed, and which are truly fundamental rights. The right to vote for the candidate of one’s choice meets those criteria.

Many voting rights scholars have wished that there were a constitutional protection explicitly protecting the right to vote. But maybe the Ninth Amendment is that protection. The Ninth Amendment was used to strike down Connecticut’s ban on contraception in 1965, in Griswold v Connecticut.

A U.S. Supreme Court decision finding that the Ninth Amendment protects voting rights would keep both sides somewhat happy. Republicans for the most part want Trump to remain on the ballot, and Democrats want judicial protection for voting rights, or at least certain kinds of voting rights.