United States District Court, D. Colorado
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