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Baca v. Hickenlooper

United States District Court, D. Colorado

December 21, 2016

POLLY BACA and ROBERT NEMANICH, Plaintiffs,
v.
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.

          ORDER

          WILEY Y. DANIEL SENIOR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         THIS 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.

         Plaintiffs 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.).

         Defendants 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 laches. (Id.).

         The 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.

         II. ANALYSIS

         I first 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.

         Because 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).

         Where 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).

         In this 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.

         This 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 provides:

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 ...

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