A federal judge on Wednesday rejected a Republican candidate’s request to spend freely in the final days of the election, after he had inadvertently signed up for voluntary spending limits when he registered his candidacy.

U.S. District Court Judge Nina Y. Wang refused to grant a preliminary injunction to Paul Archer of Centennial, who is running to represent House District 37 in the General Assembly. Although Archer registered to run in February and realized in June that he had opted in to a campaign financing mechanism that requires him to limit his overall spending, Archer only sought a judge’s order to block the spending limits two days after county clerks began mailing ballots.

Wang faulted Archer and his campaign committee for the unreasonable delay.

“The evidence demonstrates that as early as February 22, 2022, Plaintiffs could have confirmed Mr. Archer’s VSL (voluntary spending limit) designation by downloading the candidate affidavit or checking the TRACER system,” she wrote, referring to the state’s online campaign finance system. “The record as it currently stands before the Court reflects no attempt by Mr. Archer or the Archer Campaign Committee to confirm his VSL status.”

Neither Archer’s attorneys nor the secretary of state’s office immediately responded to a request for comment.

Although the lawsuit implicated Colorado’s longstanding system of funding campaigns, the particular circumstances of Archer’s candidacy were unusual.

Under the Colorado constitution, state House candidates can raise $200 per donor for the primary and general elections – or $400 total. There is no limit on what they can spend. Alternatively, they may opt to voluntarily limit their spending in exchange for being able to raise twice that amount per person. This year, the voluntary spending limit is $88,225.

Archer maintained he never opted himself in to the spending limits when he registered his candidacy in February. However, Archer’s candidate affidavit, generated after his registration, contained the statement: “I also acknowledge that I am accepting Voluntary Campaign Spending Limits.” His candidate page on TRACER also advertised he was voluntarily limiting his campaign spending.

It was not until a video call on June 29 with an employee in the Colorado Secretary of State’s Office that Archer realized the limitation was in place for him. Under the constitution, the decision to accept voluntary spending limits is largely irrevocable, and the secretary of state’s office informed Archer in mid-August he needed to abide by his choice.

On Sept. 7, Archer filed a lawsuit alleging Secretary of State Jena Griswold could not apply the spending limits to him because he had not knowingly and voluntarily opted in to the system. He also claimed the use of an online affidavit form violated the Colorado constitution.

However, it took Archer an additional six weeks to file a request for a preliminary injunction, when ballots were already arriving at voters’ mailboxes. Curiously, the secretary of state’s office also received a registration from a fictitious candidate who purportedly entered the race, which is the one circumstance that would have enabled Archer to withdraw his acceptance of spending limits. Archer disavowed creating the phantom candidate himself.

Last week, Wang held a seven-hour hearing about whether to block the secretary of state from enforcing the spending limits against Archer alone. She heard testimony that roughly 30% of candidates check the voluntary spending limits box each election cycle, and that government officials had never before heard of TRACER unilaterally opting a candidate in without their knowledge, which Archer suggested had taken place.

“Candidly that explanation lacks credibility, your honor,” said Assistant Solicitor General Grant T. Sullivan. “It’s common sense that online forms, even rudimentary online forms, do not automatically click unchecked boxes and they do not transmit information unless the user clicks submit.”

Archer’s attorney countered that Archer had consistently acted since February as if he were not subject to voluntary spending limits, and the secretary of state’s office itself had delayed informing Archer that he could not revoke his inadvertent decision to opt in. 

“I would submit that candidates outside of the race for House District 37 probably couldn’t care less and are not affected by this court’s decision to lift the voluntary spending limits for Mr. Archer because they are in different races,” said Scott Gessler, a Republican former secretary of state.

Wang, however, disagreed. She rooted her decision in a pair of legal doctrines, one that frowns upon a plaintiff’s “lack of diligence” and the other that cautions against court-ordered changes to election procedures too close to the voting period. The latter, known as the “Purcell principle,” is intended to guard against voter confusion.

Wang determined that allowing Archer to revoke his acceptance of voluntary spending limits eight months after the public could first see he opted in to them through his candidate registration would result in such confusion.

“To ask the Secretary to revisit the candidate affidavit process or adjust information provided to voters after ballots have issued and voting has begun is an extraordinary remedy not justified by the evidence tendered by Plaintiffs,” she wrote.

The judge added that an order to exempt Archer from spending limits could lead to lawsuits from other candidates who also wish to change their status.

As of Nov. 2, the secretary of state’s office reported 862,637 voters have returned their ballots. Archer is running against Democrat Ruby Dickson to represent a competitive district in Arapahoe County. Dickson has not accepted the voluntary spending limits.

The case is Archer et al. v. Griswold.