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Semple v. Williams

United States District Court, D. Colorado

March 27, 2018

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

          ORDER MAKING ABSOLUTE ORDER TO SHOW

          William J. Martinez United States District Judge

          In November 2016, Colorado voters approved “Amendment 71, ” which altered the state's citizen 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.” Colo. Const. art. V, § 1(2). Amendment 71 added a new subsection 2.5 to that same section of the Colorado Constitution, requiring supporters to gather-in addition to the five-percent requirement-signatures from “registered electors [i.e., registered voters] 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” (emphasis added).

         William Semple, the Coalition for Colorado Universal Health Care, ColoradoCareYes, and Daniel Hayes (together, “Plaintiffs”) brought this action challenging subsection 2.5, naming as the sole defendant Wayne W. Williams in his official capacity as Colorado's secretary of state-to whom the Court will refer simply as “Colorado” or “the state.” Plaintiffs argued that subsection 2.5 violates Colorado citizens' right to equal protection under the Fourteenth Amendment of the U.S. Constitution, and also violates certain First Amendment rights under the U.S. Constitution.

         Colorado filed a motion to dismiss, arguing that requirements such as subsection 2.5 are constitutionally permissible. (ECF No. 13.) This Court recently denied that motion and held that subsection 2.5 violates the “one person, one vote” principle inherent in the Equal Protection Clause because voter population varies widely between state senate districts. See Semple v. Williams, __ F.Supp.3d__, 2018 WL 858292, at *7-15 (D. Colo. Feb. 14, 2018) (ECF No. 18 at 13-29). Given this ruling, the Court declined to rule on Plaintiffs' First Amendment arguments and on Plaintiffs' argument that requiring statewide support would not be a legitimate interest even if state senate districts had roughly equal voter population. Id. at *2, *15 n.18 (ECF No. 18 at 5, 29 n.8).

         “Because there [was] no pending cross-motion from Plaintiffs (e.g., for summary judgment), ” the Court ordered Colorado to show cause “why final judgment and a permanent injunction should not enter.” Id. at *1 (ECF No. 18 at 2). The Court specifically stated that “if Colorado has a good faith basis for believing it can develop empirical data showing that vote dilution is not actually occurring as between the various state senate districts, the Court will not foreclose that opportunity.” Id. at *15 (ECF No. 18 at 30). Thus, Colorado's response to the order to show cause was its “opportunity to request such discovery, or to state any other reason why it would be premature to enter a permanent injunction and final judgment.” Id. (ECF No. 18 at 30- 31).

         Currently before the Court is Colorado's response (ECF No. 20) and Plaintiffs' reply (ECF No. 22). Colorado first argues that the Court's order impermissibly shifts the burden of proof, requiring Colorado to demonstrate that subsection 2.5 is constitutional rather than requiring Plaintiffs to demonstrate the opposite. (ECF No. 20 at 3-4.) This is a purely technical objection in the present circumstances.

         Plaintiffs, through their complaint, explained their challenge to subsection 2.5. (ECF No. 1.) Colorado moved to dismiss, arguing that all of Plaintiffs' asserted challenges to subsection 2.5 fail as a matter of law. (ECF No. 13.) Of particular importance here, Colorado argued that the Supreme Court's recent decision in Evenwel v. Abbott, 136 S.Ct. 1120 (2016), upheld state legislative districts based on total population as opposed to voter population. (Id. at 6.) Plaintiffs responded that Evenwel was specifically about representational equality and does not apply in the context of citizen initiatives. (ECF No. 16 at 13-14.) Colorado then filed a reply, re-urging its view of Evenwel. (ECF No. 17 at 2-3.)

         This Court ultimately agreed with Plaintiffs that Evenwel was not relevant because this case was not about representational equality: “with no ‘representation' in the ballot petition form of direct democratic rule, there is no representative equality component of the equation to balance against the integrity of the vote. In other words, there is no representation; there is only voting.” Semple, 2018 WL 858292, at *10 (ECF No. 18 at 19). Moreover, as to lower-court cases cited by Colorado that upheld geography-based signature-gathering requirements similar to subsection 2.5, the Court found that they did not directly address the argument Plaintiffs made here about the disparity between voting population and total population. Id. at *7, *11-13 (ECF No. 18 at 12-13, 22-25). The Court concluded, therefore, that “subsection 2.5 creates a classic vote-dilution problem, demanding strict scrutiny under the Equal Protection Clause.” Id. at *14 (ECF No. 18 at 27). The Court then subjected subsection 2.5 to the test articulated by Anderson v. Celebrezze, 460 U.S. 780 (1983), and found that subsection 2.5 did not withstand such scrutiny. Id. at *5-6, *14 (ECF No. 18 at 9-11, 27-29).

         In short, Colorado had a full opportunity to explain why, in its view, subsection 2.5 is constitutional. The Court has determined that Colorado's arguments are not persuasive. It is not clear what is left to decide, regardless of who bears the burden. The Court therefore rejects this argument.

         Colorado next objects that entering a final judgment and permanent injunction at such an early stage would deprive it of “standard procedural rights granted by the Federal Rules of Civil Procedure, such as the ability to answer the complaint, a meaningful opportunity to develop defenses through fact and expert discovery, and the right to present evidence in support of those defenses at either the dispositive motion or trial stages.” (ECF No. 20 at 4.) This is precisely why the Court asked Colorado to inform it of any “good faith basis for believing it can develop empirical data showing that vote dilution is not actually occurring as between the various state senate districts, ” and of “any other reason why it would be premature to enter a permanent injunction and final judgment.” Semple, 2018 WL 858292, at *15 (ECF No. 18 at 30-31).

         Colorado, however, does not state any means by which it can demonstrate that vote dilution is not occurring. In particular, Colorado does not deny Plaintiffs' claim (which is likely judicially noticeable in any event) that the registered voter population varies by as much as 60% among Colorado's state senate districts. (See ECF No. 1 ¶ 40.) Colorado instead seeks an opportunity to develop other forms of discovery, such as discovery establishing Colorado's “compelling state interest in ensuring that initiated constitutional amendments have some level of support from citizens across the State before they appear on the statewide ballot.” (ECF No. 20 at 7; see also id. at 7-10.) But in the present posture, this is irrelevant. The Court expressly avoided any ruling on the question of whether statewide support is a valid state interest. Semple, 2018 WL 858292, at *15 n.18 (ECF No. 18 at 29 n.8). Such a question would only be ripe if Colorado amended subsection 2.5 to require signatures in geographic districts (be they state senate districts or otherwise) of roughly equal voter population.

         Colorado also seeks an opportunity to develop expert testimony that redrawing its state senate districts to embrace roughly equal total population (as required under the United States and Colorado Constitutions) and roughly equal voter population is probably impossible. (ECF No. 20 at 10-11.) Again, this is irrelevant. There is no a priori requirement that the relevant geographic unit in any geography-based signature-gathering must be a state senate district, or any sort of legislative district. It simply must be a geographic district with roughly equal registered voter population as compared to all the other relevant geographic districts-assuming, again, that geography-based signature-gathering requirements are constitutional, which this Court does not address.

         As it happens, subsection 2.5 looks to state senate districts. Thus, without amendment, it is unconstitutional unless Colorado can reshape its state senate districts to embrace roughly equal total and registered voter population. The Court does not doubt the difficulty-the practical impossibility, perhaps-of that task. But that only means that subsection 2.5's drafters made an unwise choice. It does not somehow give Colorado a compelling interest in enforcing subsection 2.5.[1]

         Finally, Colorado sets forth the upcoming deadlines related to ballot initiatives in the 2018 election cycle and argues that the Court, if it enters an injunction, should stay the injunction through the ...


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