Joelle Riddle, a La Plata County, Colorado, Commissioner, will file a lawsuit in a few days to overturn the Colorado law that says no one may be an independent candidate (for office other than President and Vice-President), if that person was a registered member of a qualified party at any time within the entire year before filing. She switched her registration from “Democrat” to “independent” in August 2009, intending to run for re-election in 2010 as an independent. But Colorado law won’t let anyone be an independent candidate if they had been a member of a qualified party later than June 2009. See this story.

On the surface, it might appear that her lawsuit has little chance of success. In 1974 the U.S. Supreme Court upheld an almost identical California law, in a case called Storer v Brown. The vote was 6-3. However, there are some differences between California law back then and current Colorado law. Back in 1974, California had equally restrictive rules for candidates seeking to place themselves on partisan primary ballots. No one could get on a partisan primary ballot who had been registered in another party for an entire year before filing. California still has this restriction on getting on a primary ballot.

But, Colorado’s law on prior registration restrictions for candidates in a partisan primary were declared unconstitutional in state court in 1988. As things stand now in Colorado, any qualified party, major or minor, is free to write its own rules on prior affiliations. A party in Colorado is free to have a bylaw saying it doesn’t care about a candidate’s past registration. The basis for the 1988 Colorado court victory for parties was that in 1986, the U.S. Supreme Court had said in Tashjian v Republican Party of Connecticut that states have no authority to tell parties they can’t nominate a non-member, if they want to.

Ironically, this means that Riddle is still free to create a new ballot-qualified party, and then have that party pass a bylaw saying anyone can be nominated by that party, regardless of how that candidate was registered in the past. In theory, she could create the “Joelle Riddle Party” if she could get 10,000 signatures on a petition to establish that party, and then it could nominate her and she could appear on the 2010 November ballot that way. The very fact that Colorado lets new parties nominate whomever they wish makes it possible for her to argue that Colorado doesn’t really have a strong interest in barring independent candidates because of the way they were registered in the past. The Colorado legislature waited until 2007 to amend the election law give qualified minor parties the freedom to write their own rules about whom they can nominate; the bill was SB 83. The Libertarian Party of Colorado successfully lobbied for it. Until it passed in 2007, only the two major parties had that freedom. Thanks to Nancy Hanks for the link.