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Semple v. Williams

United States District Court, D. Colorado

February 14, 2018

WILLIAM SEMPLE, individually; THE COALITION FOR COLORADO UNIVERSAL HEALTH CARE, a/k/a COOPERATE COLORADO, a not-for-profit corporation; COLORADOCAREYES, a Colorado not-for-profit corporation; and DANIEL HAYES, individually, Plaintiffs,
WAYNE W. WILLIAMS, in his official capacity as Secretary of State of Colorado, Defendant.


          William J. Martinez, United States District Judge

         William Semple, the Coalition for Colorado Universal Health Care, ColoradoCareYes, and Daniel Hayes (together, “Plaintiffs”) bring this action for declaratory and injunctive relief against Wayne W. Williams in his official capacity as Colorado's secretary of state. The Court will refer to Defendant simply as “Colorado” or “the state.” Plaintiffs claim that recent changes to the process by which the Colorado Constitution may be amended violate the First and Fourteenth Amendments to the U.S. Constitution. Currently before the Court is Colorado's Motion to Dismiss Under Fed. R. Civ. P 12(b)(6). (ECF No. 13.) Although, procedurally speaking, the specific question presented by this motion is whether Plaintiffs have pleaded enough facts to state a viable claim for relief, the parties have framed their briefs as if the outcome of the motion will decide the case. That appears to be true-there seems to be no dispute over the relevant facts, and the question is how the law applies to those facts.

         Having carefully considered the matter, the Court concludes that Plaintiffs' have demonstrated a Fourteenth Amendment violation to the extent that Colorado's new amendment process requires ballot initiative proponents to gather signatures from districts with widely varying registered voter populations. Thus, part of the new amendment process is constitutionally infirm-it is, however, severable from the remainder of the new requirements.

         Because there is no pending cross-motion from Plaintiffs (e.g., for summary judgment), the Court will order Colorado to show cause why final judgment and a permanent injunction should not enter.

         I. BACKGROUND

         The Colorado Constitution grants Colorado citizens the power to enact legislation and amend the Constitution by initiative. See Colo. Const. art. V, § 1(2) (“The first power hereby reserved by the people is the initiative . . . .”). In November 2016, Colorado voters approved “Amendment 71, ” which altered the initiative process with respect to constitutional amendments (although not with respect to legislation).

         Before Amendment 71, one could place a constitutional amendment initiative on the ballot by gathering supporting “signatures by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of secretary of state at the previous general election.” Id. Amendment 71 did not change this requirement, but instead added another layer:

In order to make it more difficult to amend this constitution, a petition for an initiated constitutional amendment shall be signed by registered electors who reside in each state senate district in Colorado in an amount equal to at least two percent of the total registered electors in the senate district provided that the total number of signatures of registered electors on the petition shall at least equal the number of signatures required by subsection (2) of this section [referring to the pre-existing 5% requirement].

Id. § 1(2.5) (“subsection 2.5”). In other words, any person or group wishing to place a constitutional amendment on the ballot must gather signatures from at least 2% of registered voters in each state senate district and signatures from registered voters in an amount equal to at least 5% of the votes cast for secretary of state in the previous general election.

         Amendment 71 also added a supermajority requirement for ultimate approval of the proposed amendment:

In order to make it more difficult to amend this constitution, an initiated constitutional amendment shall not become part of this constitution unless the amendment is approved by at least fifty-five percent of the votes cast thereon; except that this paragraph (b) shall not apply to an initiated constitutional amendment that is limited to repealing, in whole or in part, any provision of this constitution.

Id. § 1(4)(b); see also id., art. XIX, § 2(1)(b) (adding the same requirement to amendments originating in the state legislature).

         II. FACTS

         The Court presumes the following facts to be true for purposes of this motion. See Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

         A. Plaintiffs' Interests

         Plaintiff Daniel Hayes is a “designated representative” for an initiative proposing an amendment to the Colorado Constitution. (ECF No. 1 ¶ 12.) He does not describe the purpose or subject matter of his proposed amendment. However, his proposal is working its way through Colorado's process for setting the approved title and description. (Id.) Once that process is complete, Hayes intends to begin collecting signatures. (Id. ¶ 13.) Hayes understands that subsection 2.5 “greatly increases the cost and difficulty of collecting sufficient signatures.” (Id. ¶ 14.)

         Plaintiff William Semple was the “designated representative” for an unsuccessful initiative on the 2016 Colorado ballot known as “Amendment 69.” (Id. ¶ 4.) Plaintiffs Coalition for Colorado Universal Health Care and ColoradoCareYes were entities created to promote Amendment 69. (Id. ¶¶ 5-7.) Amendment 69, had it succeeded, would have created a statewide universal single-payer healthcare program known as “ColoradoCare.” (Id. ¶ 5.) These plaintiffs intend to place a similar proposal on the Colorado ballot either in 2018 or 2020. (Id. ¶ 8.) They understand that subsection 2.5 will make it much more difficult and costly to gather the required signatures, as compared to their previous efforts. (Id. ¶ 10.)

         B. Colorado's Senate Districts

         Colorado's thirty-five senate districts are roughly equal in total population. However,

[t]here is a huge variation in the population of registered voters in the various state senate districts. For example, as of January 1, 2017, district 11 had 86, 181 voters, district 25 had 85, 051 voters, district 21 had 80, 499 voters, and five other districts (1, 12, 13, 29 and 35) had between 91, 728 and 96, 463 voters. By way of comparison, district 4 had 121, 093 voters, district 16 had 119, 920 voters, district 18 had 120, 222 voters, district 20 had 126, 844 voters, and district 23 had 132, 222 voters. Thus, district 23 has 51, 723 more voters than district 21, and that variance is slightly more than 60%.

(Id. ¶ 40.)


         Plaintiffs claim that subsection 2.5 violates both their First Amendment rights of political association and the “one person, one vote” principle safeguarded by the Equal Protection Clause of the Fourteenth Amendment. The Court finds Plaintiffs' Equal Protection arguments dispositive, and therefore does not reach the First Amendment arguments. Nonetheless, to understand the relevant case law, the discussion below necessarily includes some description of potential First Amendment bases for challenging ballot-access restrictions.

         A. Supreme Court Guideposts

         The Court begins by summarizing relevant Supreme Court authority on Equal Protection as it relates to the right to vote.

         1. Reynolds v. Sims (1964): “One Person, One Vote”

         The first relevant decision is Reynolds v. Sims, 377 U.S. 533 (1964), where the Supreme Court held that the Equal Protection Clause requires apportionment of representatives in state legislatures by population, and does not permit apportionment by geography (e.g., one state senator per county). Id. at 568.[1] This is so because drawing legislative districts without accounting for population can have dilutive effects from multiple perspectives. If one district has, say, 100, 000 voters and the other has only 10, 000 voters, each vote in the larger district has less overall impact on the outcome of a legislative election, even though both districts will be sending a single representative to the legislature. Moreover, if one district has 100, 000 total inhabitants (as opposed to voters-a distinction that will become important below) and the other has 10, 000 total inhabitants, the smaller district has, in effect, ten times the representation in the legislature, because each representative's vote in the legislature is equal to all other representative's votes. As the Supreme Court put it,

Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. Two, five, or 10 of them must vote before the effect of their voting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable.
* * *
. . . Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature. Modern and viable state government needs, and the Constitution demands, no less.
* * *
. . . Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status.

Id. at 563, 565, 566 (citations omitted).[2]

         The Supreme Court's formal holding in Reynolds was as follows:

We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.

Id. at 568. Reynolds thus embodies the ideal of equal voting power that is often referred to by the phrase “one person, one vote”-although that phrase does not actually appear in Reynolds. Cf. Gray v. Sanders, 372 U.S. 368, 381 (1963) (“The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one vote.”).

         2. Williams v. Rhodes (1968): Introduction of First Amendment Considerations

         The Supreme Court began extending “one person, one vote” to ballot-access restrictions in Williams v. Rhodes, 393 U.S. 23 (1968), which struck down Ohio statutes that made it “virtually impossible” for third parties “to be placed on the state ballot to choose electors pledged to particular candidates for the Presidency and Vice Presidency of the United States.” Id. at 24. Notably, the Court found in that case a blend of First Amendment and Equal Protection concerns: “In the present situation the state laws place burdens on two different, although overlapping, kinds of rights-the [First Amendment] right of individuals to associate for the ...

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