Tom Tancredo will take the stand in Denver court Monday to fight for his right to appear on the November ballot as the American Constitution Party's candidate for governor.
Two Republican activists, Marian Olsen and Joseph Harrington, filed a lawsuit Tuesday saying longtime Republican Tancredo's July 27 certification as a third-party candidate for governor violated state law and the American Constitution Party's bylaws and rules.
Read the lawsuit challenging Tancredo's candidacy
"Tancredo's 11th-hour candidacy for governor was initiated for the express purpose of disrupting the process of selecting the Republican nominee for governor by primary election," the lawsuit claims.
Evergreen business Dan Maes won the Republican primary to become the party's gubernatorial candidate.
Olsen and Harrington want Denver District Court Judge William Hood to erase the names of Tancredo and his running mate, Patricia Miller, from the Nov. 2 general election ballot.
"Here you have the situation where a minor party vacancy committee of five or less people are being allowed to ignore clear state law and their party's own rules to insert Tancredo at the very last minute," Harrington, a Highlands Ranch resident, said in a statement.
"Tancredo himself had the opportunity to participate in the Republican State Assembly, and over 400,000 voters voted in the Republican primary. A minor party vacancy committee of five or less should not be allowed to disrupt and interfere with that process," Harrington added.
The lawsuit states that Colorado law bars a minor political party nominee from being a registered member of a major political party after the first business day of January preceding the general election, unless the minor party's rules allow it.
Yet, Tancredo, a former Republican Colorado congressman and 2008 GOP presidential candidate, was a registered Republican until the day before he declared himself the candidate for the American Constitution Party, the lawsuit said.
Tancredo's attorney, Richard Kaufman, argues that the American Constitution Party's five-member executive committee waived a bylaws' requirement that Tancredo had to be a party member for six months prior to being nominated its candidate.
The committee also waived the requirement that Tancredo not be registered with another party, he said.
"I have spoken directly with Mr. Tancredo and he will make himself available 9 o'clock Monday morning" for the hearing on whether his candidacy should be invalidated, Kaufman told the judge during a Tuesday afternoon hearing.
Tancredo's campaign manager, Bay Buchanan, issued a statement saying the Secretary of State certified Tancredo as a candidate for governor on the ballot Friday.
"Our attorneys have reviewed the recent complaint by the disgruntled Maes voters related to this certification and are confident that the courts will find no grounds on which to overturn the decision by the one individual with authority to make such decisions," Buchanan said.
Yet, the Republican activists' attorney, Richard Westfall, said his clients believe "the rules need to be followed for minor parties trying to get on the ballot. Otherwise the process is just completely crazy jump-ball."
"You can't allow a member of any political party to be affiliated with a majority political party and then at the eleventh hour switch over and say, 'Oh, by the way, I'm now a candidate for governor for another party,' " Westfall said.
During the Tuesday hearing before Wood, Assistant Colorado Attorney General Maurice Knaizer said: "As a practical matter the train has already left the station" on revamping the ballot.
Not only has the Secretary of State certified the ballot, but many large counties are printing their ballots this week, said Knaizer, who represents the state election agency.
A Sept. 18 deadline looms for mailing ballots to overseas and military voters, Knaizer said. And the federal Department of Justice has threatened to sue Colorado if it fails to meet the deadline.
Judge Hood agreed with Knaizer and Kaufman that there may not time to reprint ballots and the solution might be -- if Tancredo loses the legal battle -- to leave his name on the ballot and rely on news coverage to publicize the fact that any votes cast for him would not be counted.
Of course, Hood said, if people still cast pointless votes for Mr. Tancredo, "that ultimately may work in detriment to other candidates."
For example, invalid votes for Tancredo, are still votes that Republican candidate Maes would miss out on.
Westfall urged the judge and state election officials to "keep an open mind" about whether sufficient time remains to reprint the ballot without Tancredo's name -- if he loses the judge's court ruling Monday.
"If there's a snowball's chance in heck that we can actually keep Mr. Tancredo's name off the ballot, that's not something we're willing to give up on," Westfall said.
He stressed that removing Tancredo's name would only require a one-line revision on ballots.
There's been speculation about whether Colorado Republican Party leaders are behind the Olsen and Harrington challenge to Tancredo's candidacy, because a partner in Westfall's law firm represents the Republican party.
Dick Wadhams, head of the states Republican Party, has said Tancredo's third-party run would split the Republican vote in the general election, ensuring victory for the Democratic gubernatorial candidate, Denver Mayor John Hickenlooper.
But Wadhams told 7NEWS Tuesday the Republican party has no involvement in the lawsuit and the GOP believes Tancredo is a legitimate candidate.
A statement by Olsen and Harrington "emphasized that they were filing this action to challenge the ballot certification in their individual capacity only, and not on behalf of any candidate, political party, or other organization."