Rep. Doug Lamborn. Photo by Petty Officer 1st Class Gilbert Bolibol.
The judicial wing of the anti-Trump “resistance” has once again shown itself, this time in a bid to knock an incumbent Republican congressman from Colorado out of the upcoming GOP primary – based on a law that has already been ruled unconstitutional in that state.
If nature were to take its normal political course, Rep. Doug Lamborn would be a heavy favorite in both the primary and the general election, even in a year where Democrats have high hopes of riding a national wave. Lamborn’s district, Colorado’s Fifth, is pretty safe for Republicans; Donald Trump got 57 percent of the vote there in 2016, and Lamborn outperformed him by 5 percentage points that year to retain a seat he has held since 2006.
Lamborn’s campaign used paid solicitors to gather the 1,000 signatures from registered voters residing within the district that are required by state law to get onto the ballot. After several rounds of challenges, the secretary of state and the courts agreed that the signatures were fine, but the gatherers were not. Several of the gatherers were not Colorado residents, and that fact invalidated the petitions they circulated on Lamborn’s behalf.
The case ultimately turned on one gatherer in particular, a former Coloradan named Ryan Tipple. Tipple was living in California when the petitions were circulated, but he asserted that he still considered himself a Colorado resident and that he would return to the state as soon as he could find suitable work there. The secretary of state and the lower court accepted this as his domicile, but the state Supreme Court reversed. Tipple may have once been a Colorado resident and he might again be one in the future, but the court’s recitation of the facts made it pretty clear that he was not a resident when it counted for Lamborn’s purposes.
The trouble is, such residency requirements for political signature-gathering have already been found unconstitutional in several federal circuits, including the 10th Circuit, which covers Colorado. The appeals court determined a decade ago that such restrictions on signature gatherers violate both the First and Fourteenth amendments to the U.S. Constitution in Yes on Term Limits v. Savage.
Lamborn’s lawyers did not overlook this point, but the Colorado justices refused to consider it. In an unsigned opinion, the state’s highest court said it was precluded from considering constitutional questions under the particular statute through which Lamborn’s opponents brought the expedited ballot challenge. The court’s only scope for review was whether an election official had breached a duty under the state’s election law, the high court said, citing a precedent from last year.
But that precedent, Frazier v. Williams, was resolved with a finding that the candidate had enough valid signatures to get on the ballot without reaching the question of whether Colorado’s residency requirement for petition-gatherers violated either the candidate’s rights or those of his would-be voters. And it would seem pretty clear that the enforcement of an unconstitutional statute’s requirements is itself a breach of duty in implementing the state’s overall election scheme. The court sidestepped the constitutional challenge because it found it convenient to do so.
Are politics in play? Decide for yourself. Unlike Pennsylvania’s Supreme Court, where justices are elected on party tickets, Colorado judicial elections are officially nonpartisan. Justices, however, are initially nominated for the court by the state’s governor from a list of three finalists selected by a Supreme Court nominating commission established by the state constitution. They serve two years before facing a retention election in front of the state’s voters. Six of the court’s seven current justices were nominated by Democratic governors; two of them – both Democratic appointees – have not yet faced statewide voters to retain their office.
The bottom line is that Pennsylvania’s partisan court intervened directly and heavily to try to remake the state’s congressional delegation in favor of the majority’s party. The Colorado justices were more subtle, knocking an entrenched GOP incumbent off a ballot based on a highly suspect law, and thus potentially putting another House district in play in a year when Democrats have a better than normal chance of flipping it.
Lamborn’s best hope of keeping his seat lies in getting the federal courts to override the state court, which is actually not something any state Supreme Court justice should ever wish to see when it comes to supervising their own state’s elections. An attorney for Lamborn’s campaign told Politico that the congressman intends to pursue this option. Colorado’s Republican primary will be held June 26, which means the case will need to move quickly to do Lamborn any good this year.
Republicans are the aggrieved party this time around, but the original sin in this mess remains Bush v. Gore. Nearly two decades after that ill-advised piece of federal judicial activism, judges at all levels are charging through the gate it opened to intervene with increasing brazenness in our politics.