United States District Court, D. Colorado
December 21, 2016
POLLY BACA and ROBERT NEMANICH, Plaintiffs,
JOHN W. HICKENLOOPER JR., in his official capacity as Governor of Colorado; CYNTHIA H. COFFMAN, in her official capacity as Attorney General of Colorado; and WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State, Defendants.
Y. DANIEL SENIOR UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Motion by Plaintiffs for
Temporary Restraining Order and Preliminary Injunction (ECF
No. 2), filed December 6, 2016. A hearing was held on
December 12, 2016, at the end of which I orally denied
Plaintiffs' motion. Plaintiffs filed an emergency motion
with the Tenth Circuit Court of Appeals, filed December 13,
2016, seeking an injunction pending appeal. For the reasons
noted in its December 16, 2016, Order, the Tenth Circuit
denied Plaintiffs' emergency motion for injunction
pending appeal. Therefore, the sole purpose of this Order is
to state in a written order why Plaintiffs' request for
injunctive relief was denied.
are two of the nine appointed presidential electors, selected
to vote for the candidates that received the majority of
Colorado's electorate vote. (See Compl., ECF No.
1). On Tuesday, November 8, 2016, Hillary Clinton and Timothy
Kaine won the majority of Colorado's votes, and as such,
the Democrat Party's presidential electors are tasked
with the duty to cast their votes for them when the Electoral
College meets on Monday, December 19, 2016. Plaintiffs argue
that Colorado's binding presidential elector statute,
Colo. Rev. Stat. § 1-4-304(5), violates Article II of
the U.S. Constitution, the Twelfth Amendment, the First
Amendment, and the Fourteenth Amendment's Equal
Protection Clause because they are “forced” to
vote for the Clinton-Kaine ticket and will be removed from
their position if they do not. (Id.).
filed a Response to Plaintiffs Motion for Preliminary
Injunction (ECF No. 13), on December 9, 2016, arguing that
Colorado's statute-which is similar to that of 28 other
states and the District of Columbia-is constitutional.
Defendants cite a bevy of case law and historical support for
their position. In addition to contesting Plaintiffs'
First and Fourteenth Amendment arguments, Defendants argue
Plaintiffs' claims fail due to their lack of standing and
Colorado Republican Committee filed a Motion to Intervene
(ECF No. 11), on December 9, 2016, along with a Memorandum in
Opposition to Plaintiffs' Motion for Temporary
Restraining Order and Preliminary Injunction (ECF No. 11-1).
President Elect Donald J. Trump and Donald J. Trump for
President, Inc., filed a Motion to Intervene (ECF No. 16), on
December 12, 2016, the day of the preliminary injunction
hearing, which motion was granted. I now turn to the merits
of Plaintiffs' motion.
note that “[a]s a preliminary injunction is an
extraordinary remedy, the right to relief must be clear and
unequivocal.” Schrier v. Univ. Of Colo., 427
F.3d 1253, 1258 (10th Cir. 2005) (quoting SCFC ILC, Inc.
v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991)
(citation omitted)); United States ex rel. Citizen Band
Potawatomi Indian Tribe of Okla. v. Enter. Mgmt.
Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989)
(“Because it constitutes drastic relief to be provided
with caution, a preliminary injunction should be granted only
in cases where the necessity for it is clearly
established.”). In order to be entitled to entry of a
preliminary injunction pursuant to Fed.R.Civ.P. 65, the
moving party must establish that:
(1) [he or she] will suffer irreparable injury unless the
injunction issues; (2) the threatened injury ... outweighs
whatever damage the proposed injunction may cause the
opposing party; (3) the injunction, if issued, would not be
adverse to the public interest; and (4) there is a
substantial likelihood [of success] on the merits.
Schrier, 427 F.3d at 1258.
the limited purpose of a preliminary injunction “is
merely to preserve the relative positions of the parties
until a trial on the merits can be held, ” we have
“identified the following three types of specifically
disfavored preliminary injunctions…: (1) preliminary
injunctions that alter the status quo; (2) mandatory
preliminary injunctions; and (3) preliminary injunctions that
afford the movant all the relief that it could recover at the
conclusion of a full trial on the merits.”
Schrier, 427 F.3d at 1258-59 (citations omitted).
Such disfavored injunctions “must be more closely
scrutinized to assure that the exigencies of the case support
the granting of a remedy that is extraordinary even in the
normal course.” Id. (citations omitted).
the opposing party has notice, the procedure and standards
for issuance of a temporary restraining order mirror those
for a preliminary injunction. Stine v. Lappin, No.
08-cv-00164-WYD-KLM, 2009 WL 482630, *2 (D. Colo. Feb. 25,
2009) (citation omitted).
case, I find that the injunction that Plaintiffs request
seeks to alter the status quo and, because it would otherwise
be a mandatory injunction, it is disfavored under Tenth
Circuit law. As such, Plaintiffs' motion must be more
closely scrutinized under the standard prescribed above.
case is extraordinary because the two plaintiffs were
selected as Democratic electors and they signed a pledge
pursuant to Colorado statute, Colo. Rev. Stat. §
1-4-304, which provides that they would vote consistent with
the popular vote of the presidential election, which took
place on November 8, 2016. See Colo. Rev. Stat.
§ 1-4-304(5). Hillary Clinton and Tim Kaine won the vote
in Colorado, and because of that, the electors are bound to
vote for the Clinton/Kaine ticket when the electors meet at
high noon at the Colorado State Capitol, Monday, December 19,
2016. See Colo. Rev. Stat. § 1-4-304(1).
Plaintiffs ask the Court to enjoin Defendants from enforcing
Colorado's binding presidential elector statute, which
Each presidential elector shall vote for the presidential
candidate and, by separate ballot, vice-presidential
candidate who received the highest number of votes at the
preceding general election in this state.
Colo. Rev. Stat. § 1-4-304(5).
only consequences to the Plaintiffs' failure to comply
with the statute raised by their filings with the Court is
that the Secretary of State would replace them as electors
and someone else would be chosen. At oral argument,
Plaintiffs raised, for the first time, that the Secretary of
State's office would pursue misdemeanor charges or
misdemeanor allegations against these plaintiffs, and
Plaintiffs' counsel referenced 18 U.S.C. § 594.
Because neither of these two issues was properly raised in
Plaintiffs' pleadings, and neither would change the
outcome of my ruling, I will decide this matter based on
whether or not there is a substantial likelihood of the
plaintiffs prevailing on the merits, and whether or not there
has been compliance with the other requirements for the
issuance of an injunction, given the fact that the type of
injunction sought here is disfavored and is an extraordinary
Substantial Likelihood of Prevailing on the Merits
argue that somehow requiring them to honor their obligations
pursuant to the pledge they signed, and as required by state
statute, violates Article II of the Constitution, the Twelfth
Amendment, the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment. Based on the reasons
below, I find that Plaintiffs do not have a substantial
likelihood of prevailing on the merits of their
Colorado's Binding Statute
selection of presidential electors is provided in Art. II,
§ 1, of the Constitution. States may appoint electors
“in such Manner as the Legislature thereof may
direct.” U.S. Const. Art. II. § 1, cl. 2.
Presidential electors act by authority of the State, which
receives its authority from the federal constitution. Ray
v. Blair, 343 U.S. 214, 224 (1952). The state
legislature's power to select the manner for appointing
electors is plenary; they may establish the manner in which
electors are appointed and take back such power. Bush v.
Gore, 531 U.S. 98, 104 (2000). States have “broad
powers to regulate voting, which may include laws relating to
the qualification and functions of electors.”
Williams v. Rhodes, 393 U.S. 23, 34 (1968).
law supports the notion that the State's requirement that
presidential electors pledge to vote for a particular
candidate, in conformity with State law, is constitutional.
See Blair, 343 U.S. at 224 (“[n]either the
language of Art. II, § 1, nor that of the Twelfth
Amendment forbids a party to require from candidates in its
primary a pledge of political conformity with the aims of the
party.”). Blair suggests that the state may
also set requirements for presidential electors, and in the
event they fail to conform to the state's statutory
mandate, the state is permitted to take some remedial action,
such as removal of the electors. See id. at 228-231.
draw support from other state statutory provisions that allow
states to remove electors who refuse to comply with state
law. See, e.g., Mich. Comp. Laws Ann.
§ 168.47 (2016) (stating that refusal or failure to vote
for the presidential and vice-presidential candidates
appearing on the ballot of the political party that nominated
the elector constitutes “a resignation from the office
of the elector”); N.C. Gen. Stat. § 163-212 (2016)
(same); Utah Code Ann. § 20A-13-304(3) (2016) (same).
Defendants also point to 28 other states and the District of
Columbia's choice to exercise the power to bind its
presidential electors to the candidates who won the
State's popular vote. (ECF No. 13, at 7). Plaintiffs cite
no case or statute striking down that choice as
unconstitutional. Furthermore, Plaintiffs' argument that
Colorado's statute makes the Electoral College
superfluous is unfounded. There is a strong presumption
favoring the constitutionality of Colorado's elector
statute, which they have failed to overcome. See Gilmor
v. Thomas, 490 F.3d 791, 798 (10th Cir. 2007).
from other state courts and federal district courts support
Defendants' argument that Colorado's elector statute
is constitutional. The plaintiffs in Gelineau
brought an analogous action seeking an injunction to prevent
the state from taking action against them for failing to vote
consistent with their pledges. Gelineau v. Johnson,
904 F.Supp.2d 742 (W.D. Mich. 2012). The court held that
although the court in Blair did not answer whether a
pledge was ultimately enforceable, “the opinion's
reasoning strongly suggested that it would be.”
Id. at 748. The court declined to grant the
injunction because the plaintiffs would either lose on the
likelihood of success on the merits or on a theory of laches.
Id. at 750.
Supreme Court of New York held that the “services
performed by the presidential electors today are purely
ministerial.” Thomas v. Cohen, 262 N.Y.S.
320, 326 (Sup. Ct. 1933) (emphasis added). An elector who
attempted to disregard their promise to vote for the
candidate that won the majority could, in the court's
opinion, “be required by mandamus to carry out the
mandate of the voters of his state.” Id. The
court reasoned that presidential electors do not have a right
to “defy the will of the people and to ‘vote as
they please, even for a candidate whose electors were
rejected at the polls.'” Id. at 331. The
electors' choosing is “merely a formality;”
they must vote in accordance with the vote of the people.
Nebraska Supreme Court held that presidential electors'
only duty is to vote for the candidates nominated by the
party by whose votes they were themselves nominated.
State ex rel. Neb. Republican State Cent. Comm. v.
Wait, 138 N.W. 159, 163 (Neb. 1912). If the electors
openly declare that they will not perform that duty, then
performance of their duty is impossible. Id. As
such, the electors, by their own acts, vacated their places
as presidential electors, creating vacancies for the state to
fill. Id. The court ultimately concluded that
allowing presidential electors to vote for the candidate of
their choice would deprive the citizens of their right to
vote, in “violation of both the letter and spirit of
our laws.” Id. at 165.
cases cited above have confirmed the notion that electors
perform ministerial duties, which are merely formal in
nature. See Thomas, 262 N.Y.S. at 326; Spreckels
v. Graham, 228 P. 1040, 1045 (Cal. 1924) (electors
“are in effect no more than messengers). As such,
presidential electors are not afforded First Amendment
protection because their conduct constitutes carrying out the
will of the people, who deserve First Amendment protection.
Requiring presidential electors to pledge a vote of his
ballot is simply “an exercise of the state's right
to appoint electors in such manner… as it may
choose.” Blair, at 227-28. Furthermore, their
conduct would be illegal under Colorado's elector
statute, and conduct made illegal by a state is not
unconstitutional simply because the activity purportedly
involves elements of speech. Giboney v. Empire Storage
& Ice Co., 336 U.S. 490, 502 (1949).
with Defendants' contention that the presidential
electors waived their First Amendment rights when they
accepted the nomination to be presidential electors. They
knew or should have known the obligations that accompanied
their acceptance. Thus, I find that Plaintiffs cannot show a
likelihood of success on the merits of their claim.
determining whether or not a state law violates the Equal
Protection Clause, the Court must consider the facts and
circumstances behind the law, the interests which the State
claims to be protecting, and the interests of those who are
disadvantaged by the classification. Rhodes, 393
U.S. at 30.
Court in Rhodes held that “the State does have
an interest in attempting to see that the election winner be
the choice of a majority of its voters.” Id.
at 32. “The individual citizen has no federal
constitutional right to vote for electors for the President
of the United States unless and until the state legislature
chooses a statewide election as the means to implement its
power to appoint members of the electoral college.”
Bush, 531 U.S. at 104.
cannot show a likelihood of success on the merits of their
claim because the relief they seek would essentially violate
the Equal Protection clause, because granting an injunction
allowing the plaintiffs to vote as they please would
effectively dilute each citizen's vote. Plaintiffs, in
effect, ask the Court to value their vote over that of the
citizens of Colorado. I agree with
Defendants' response that allowing the presidential
electors to vote as they wish would deprive Coloradoans of
their fundamental right to vote for the President and
Vice-President. (See ECF No. 13, at 11).
Additionally, Gelineau upheld Michigan's
winner-take-all method of appointing presidential electors,
which is analogous to Colorado.
on the record submitted before me, I find that Plaintiffs
have not shown that they have a substantial likelihood of
prevailing on the merits of their claim that Colorado's
presidential elector statute violates the Fourteenth
Amendment's Equal Protection Clause.
establish irreparable injury “the plaintiff must show
that [he] will suffer irreparable injury and that the
irreparable injury is of such imminence that there is a clear
and present need for equitable relief to prevent the
harm.” Stender v. ERP Operating Ltd.
Partnership, No. 13-cv-00496-REB-MEH, 2013 WL 788186, *3
(D. Colo. March 1, 2013 (citing Heideman v. S. Salt Lake
City, 348 F.3d 1182, 1189 (10th Cir.2003)).
“Generally, an injury is considered to be irreparable
when it is incapable of being fully compensated for in
damages or where the measure of damages is so speculative
that it would be difficult if not impossible to correctly
arrive at the amount of the damages.” Id.
Thus, irreparable injury is established “when the court
would be unable to grant an effective monetary remedy after a
full trial because such damages would be inadequate or
difficult to ascertain.” Dominion Video, 269
F.3d at 1156. “‘To constitute irreparable harm,
an injury must be certain, great, actual and not
theoretical.'” Stender, 2013 WL 788186, at
*3 (quoting Heideman, 348 F.3d at 1189).
contend they would suffer irreparable harm if a preliminary
injunction is not granted because they, in effect, will be
removed as electors. I do not find that Plaintiffs will
suffer irreparable injury within the context of the law. What
I do find, however, is that the citizens of Colorado would be
irreparably harmed if an injunction is granted because they
expect electors to vote for the candidate who won the
majority of the state's votes.
that granting an injunction would irreparably harm the status
quo and the public's general expectations. The public has
some expectation, and it is a permissible expectation, that
presidential electors are bound by the promises they
voluntarily made when they accepted their nominations. Thus,
Plaintiffs fail to meet their requirement to show that they
will suffer irreparable harm.
Balance of Hardships
assert no hardship will occur to Defendants or the State if
the injunction is granted. Plaintiffs further contend that
great hardship will occur to them if they are barred from
fulfilling their role as electors and voting for the most fit
and qualified candidates. Defendants argue that the hardships
tip in favor of the State because Plaintiffs'
eleventh-hour claim is barred by laches and nullifying
the results of Colorado's general election disserves the
believe there is some merit to Defendants' laches
argument, but I do not find it, in and of itself, bars the
claim. Instead, I agree with Defense counsel's argument
that laches tips the scales in favor of Defendants on the
balance of hardships. Defendants argue that the last-minute
nature of this action, coupled with the potentially stifling
effects it may have on the presidential election in our
country, supports a finding of significant prejudice that
Defendants would suffer if Plaintiffs were to prevail. Thus,
Plaintiffs have also failed to meet their burden on this
briefly mentioned the public interest above, and I consider
this element with as much solemnity and importance as my
words can express. Our country was founded a long time ago,
and when it was founded, the electoral system was
incorporated in Article II of the U.S. Constitution. Then, in
the 19th Century, the Twelfth Amendment was
enacted as part of the Constitution, which clarified the role
of electors as it relates to the selection of the President
and Vice President. The Colorado statute at issue, Colo. Rev.
Stat. § 1-4-304, has been in existence since 1959. The
statute compels presidential electors, who voluntarily assume
the responsibility, to do what the statute requires. For
reasons that do not make a lot of sense to me, Plaintiffs do
not want to do what they pledged to do. I find that their
obligations are legally enforceable. The public interest
tilts substantially in favor of the public expecting and
requiring the electors to do what they agreed to do.
ruling goes to the whole premise of the public having an
interest in fair and effective elections, political
stability, legitimacy of the eventual winner, and the
expectations of the American people. The public would be
adversely affected if I granted this injunction and allowed
Plaintiffs, the presidential electors, to vote as they
please, contrary to the agreement they made when they
accepted their nominations. In the context of the public
interest, if I granted this injunction, it would undermine
the electoral process and unduly prejudice the American
people by prohibiting a successful transition of power. If
Plaintiffs have concerns with Colorado's statute and the
electoral process, they need to address those with the
Colorado General Assembly.
conclusion, for the reasons set forth herein, Plaintiffs have
failed to meet the requirements to grant a temporary
restraining order and preliminary injunction in this matter.
Accordingly, it is
that the Motion by Plaintiffs for Temporary Restraining Order
and Preliminary Injunction (ECF No. 2) is
 I want to point out that the Supreme
Court expressly rejected the application of strict scrutiny
to a challenge of state election laws, which is really what
this case is, in favor of a more flexible standard. See
Burdick v. Takushi, 504 U.S. 428, 432 (1992) (strict
scrutiny would unreasonably tie the hands of States seeking
to assure that elections are operated equitably and
 Laches consists of two elements: (1)
inexcusable delay in instituting suit; and (2) resulting in
prejudice to defendant from such delay. Brunswick Corp.
v. Spinit Reel Co., 832 F.2d 513, 523 (10th Cir. 1987)