United States District Court, D. Colorado
MELISSA RENEE GOODALL, JEREMY WAYDE GOODALL, SHAUNA LEIGH ARRINGTON, JEFFERY PHILLIP ARRINGTON, KARLA JO KROEKER, RYAN MARK TIPPLE, REP. DOUGLAS LAMBORN, and LAMBORN FOR CONGRESS, Plaintiffs,
WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State, Defendant.
A. BRIMMER, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Motion for Preliminary
Injunction [Docket No. 2] filed by plaintiffs Melissa Renee
Goodall, Jeremy Wayde Goodall, Shauna Leigh Arrington,
Jeffery Phillip Arrington, Karla Jo Kroeker, Ryan Mark
Tipple, Rep. Douglas Lamborn, and Lamborn for Congress.
Plaintiffs ask the Court to issue a mandatory preliminary
injunction requiring defendant Wayne W. Williams, the
Secretary of State for the State of Colorado, to certify
Congressman Lamborn for the ballot in the Republican primary
election to the U.S. House of Representatives in the Fifth
Congressional District. Docket No. 2 at 1.
FINDINGS OF FACT
Douglas Lamborn is a candidate for the U.S. House of
Representatives for the Fifth Congressional District. He is
also the incumbent, having been first elected in 2006. Docket
No. 1 at 6. Lamborn for Congress is the authorized campaign
committee for Congressman Lamborn and is registered as a
federal political committee with the Federal Elections
Commission. Id. Plaintiff Ryan Mark Tipple is a
registered Colorado voter, affiliated with the Republican
Party. Mr. Tipple collected nominating signatures on behalf
of Congressman Lamborn for the primary election in 2018 and
wants to collect signatures for nominating petitions in
Colorado in the future. Id. at 6. He currently
resides in the State of California. Id. Signatures
that Mr. Tipple collected on behalf of Congressman Lamborn in
2018 were declared invalid by the Colorado Supreme Court on
April 23, 2018 because Mr. Tipple was not a resident of the
State of Colorado at the time he collected the signatures.
Melissa Renee and Jeremy Wayde Goodall are registered
Colorado voters, affiliated with the Republican Party, who
reside in the Fifth Congressional District. Id. at
3. They signed a nominating petition for Congressman Lamborn
circulated by Mr. Tipple, which was declared invalid.
Id. They are also petition circulators. Plaintiffs
Shauna Leigh and Jeffery Phillip Arrington and Karla Jo
Kroeker are registered Colorado voters, affiliated with the
Republican Party, who reside in the Fifth Congressional
District. Id. They signed a nominating petition for
Congressman Lamborn circulated by Mr. Tipple, which was
declared invalid. The Arringtons and Ms. Kroeker are not
petition circulators. As a result of the invalidation of the
petitions circulated by Mr. Tipple, the signatures of the
Goodalls, the Arringtons, and Ms. Kroeker will not be counted
in the primary election. Id.
law provides two means by which a major party candidate can
gain access to the primary ballot for public office: by
collecting signatures on nominating petitions or by a
certification of designation of the political
party. Id. at 12. Candidates for the
U.S. House of Representatives who seek to be placed on the
primary ballot through the nominating petition process must
collect 1, 000 signatures from eligible electors residing in
the congressional district and who are affiliated with the
same political party. Id.; Colo. Rev. Stat. §
1-4-801. There are 200, 000 registered Republicans in the
Fifth Congressional District.
Lamborn decided to run for reelection and, on December 23,
2017, he submitted information to the Secretary of
State's Office in order for the Secretary to prepare a
petition format that Congressman Lamborn could use to gain
access to the primary ballot through the petition process.
Exhibit 5 to April 30, 2018 Preliminary Injunction
hearing. The Secretary approved Congressman
Lamborn's petition format on January 3, 2018, noting,
among other things, that “petition circulators must be
Colorado residents.” Exhibit 6. Candidates for the
Fifth Congressional District could collect signatures between
January 16, 2018 and March 20, 2018, id., a total of
63 days. Congressman Lamborn used 13 circulators to collect
signatures for his nominating petitions. On March 6, 2018, he
turned in his nominating petitions to the Secretary of State.
Docket No. 1 at 14. On March 29, 2018, the Secretary of State
found that 1, 269 signatures of the 1, 783 signatures
submitted were valid. Id. Because this number was
more than the 1, 000 signatures needed, the Secretary
determined that Congressman Lamborn had obtained a sufficient
number of signatures to be placed on the ballot for the June
26, 2018 primary election and issued a Statement of
Sufficiency. Exhibit 3.
Secretary uses the following procedures in reviewing
signature petitions. Once a candidate submits his or her
petitions to the Secretary for review, the Secretary of
State's Office takes the petitions to a division of the
Department of Personnel Administration in Pueblo. The
petitions are electronically scanned. First, the reviewers
check the circulator's affidavit for facial validity,
including whether the circulator filled it out properly,
signed it, and had it properly notarized. The reviewers then
run the circulator's information through the state voter
registration database to determine whether that person meets
the qualifications to be a circulator, such as being over 18
years old, being affiliated with the proper political party,
and being a resident of Colorado. Any problems regarding
these issues are subject to a cure period wherein the
candidate may attempt to correct the defects, the goal being
to give every registered elector the opportunity to have his
or her signature counted. Second, the reviewers check the
information on each signature line to make sure that such
information matches the information in the voter registration
database for that person. This process determines whether the
person was eligible to sign the petition. The second step
also includes a signature verification procedure that
Colorado is implementing for the first time this year,
wherein the signature on the petition is compared, through
the Secretary's electronic voter registration database,
to the most recent signature for that voter. These signatures
may include the signature of a voter on the back of a
previously submitted mail-in ballot. If, in the opinion of
the trained reviewers, the signatures match, the Secretary
accepts the otherwise valid signature. If not, that signature
is subjected to an additional level of review whereby at
least two bipartisan reviewers compare that petition
signature to any other signatures of that person in the voter
registration database. If those reviewers determine that the
petition signature does not match, the Secretary provides a
list of the nonmatching signatures to the candidate so that
the candidate can attempt to cure.
April 3, 2018, five voters from the Fifth Congressional
District filed a petition in the District Court for the City
and County of Denver pursuant to Colo. Rev. Stat.
§§ 1-1-113 and 1-4-909 challenging the Secretary of
State's statement of sufficiency regarding Congressman
Lamborn's petitions. The petitioners claimed that seven
of Congressman Lamborn's circulators did not live within
the State of Colorado in violation of the residency
requirement of Colo. Rev. Stat. §
1-4-905(1). Congressman Lamborn was allowed to
intervene in the proceeding. On April 10, 2018, the state
district court, after an evidentiary hearing, found that one
circulator was not a Colorado resident and therefore
invalidated the 58 signatures that he collected. In regard to
Mr. Tipple, the court found that Mr. Tipple had every
intention of becoming a Colorado resident, but just had not
done so at the time he collected signatures in the state.
Kuhn v. Williams, No. 18SA176, at *10 (Colo. 2018)
(slip op.). The district court found that Mr. Tipple was a
Colorado resident and therefore rejected petitioners'
challenge as to Mr. Tipple. Petitioners then appealed
directly to the Colorado Supreme Court. The state supreme
court reversed, holding that Colo. Rev. Stat. §
1-1-113(1) allowed the petitioners to mount an evidentiary
challenge to the circulators' residency, despite the fact
that the Secretary had already issued a statement of
sufficiency on that issue, and that, based on Gordon v.
Blackburn, 618 P.2d 668, 671 (Colo. 1980), Mr. Tipple
was not a Colorado resident at the time that he collected the
signatures on behalf of Congressman Lamborn. Kuhn,
No. 18SA176, at *19-20, *22. The Colorado Supreme Court
invalidated the 269 signatures collected by Mr. Tipple,
causing Congressman Lamborn to have collected fewer than the
1, 000 signatures needed to qualify him. As a result, the
Colorado Supreme Court ruled that the “Secretary may
not certify Representative Lamborn to the 2018 primary ballot
for CD5.” Id. at *25. Moreover, although
Congressman Lamborn attempted to raise the constitutionality
of the residency requirement on appeal, the Supreme Court
noted that, in a Colo. Rev. Stat. § 1-1-113 appeal, it
lacked jurisdiction to consider such an argument.
Id. at *24-25. Plaintiffs filed this lawsuit on
April 25, 2018.
succeed on a motion for a preliminary injunction, the moving
party must show: (1) a likelihood of success on the merits;
(2) a likelihood that the movant will suffer irreparable harm
in the absence of preliminary relief; (3) that the balance of
equities tips in the movant's favor; and (4) that the
injunction is in the public interest. RoDa Drilling Co.
v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing
Winter v. Natural Resources Defense Council, Inc.,
555 US. 7, 20 (2008)); see Little v. Jones, 607 F.3d
1245, 1251 (10th Cir. 2010)). “[B]ecause a preliminary
injunction is an extraordinary remedy, the right to relief
must be clear and unequivocal.” Beltronics USA,
Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d
1067, 1070 (10th Cir. 2009) (quoting Greater Yellowstone
Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir.
2003)) (internal quotation marks omitted). Granting such
“drastic relief, ” United States ex rel.
Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enter.
Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.
1989), is the “exception rather than the rule.”
GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir.
are three types of preliminary injunctions that are
disfavored in this circuit: (1) injunctions that disturb the
status quo, (2) injunctions that are mandatory rather than
prohibitory, and (3) injunctions that provide the movant
substantially all the relief it could feasibly attain after a
full trial on the merits. See Schrier v. Univ. of
Colo., 427 F.3d 1253, 1260 (10th Cir. 2005). The
“status quo” for purposes of the first category
is defined as “the last uncontested status between the
parties which preceded the controversy until the outcome of
the final hearing.” Id. at 1260 (citing
Dominion Video Satellite, Inc. v. EchoStar Satellite
Corp., 269 F.3d 1149, 1155 (10th Cir. 2001)). In seeking
a disfavored injunction, “the movant must make a strong
showing both with regard to the likelihood of success on the
merits and with regard to the balance of harms.”
Fish v. Kobach, 840 F.3d 710, 724 (10th Cir. 2016)
(internal quotation marks and brackets omitted); see also
Schrier, 427 F.3d at 1259 (stating that such 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” (internal
quotation marks omitted)).
move for a preliminary injunction requiring the Secretary of
State to certify Congressman Lamborn to the 2018 Republican
Party primary ballot. Defendant opposes the preliminary
injunction on two grounds. First, defendant argues that
plaintiffs' claim is barred by the doctrine of laches
because plaintiffs delayed in raising the constitutional
issue. Second, defendant contends that the four preliminary
injunction factors weigh against plaintiffs' requested
argues that plaintiffs' claim is barred by the doctrine
of laches. Docket No. 27 at 6. That doctrine “bars a
party's dilatory claim” and “stems from the
principle that equity aids the vigilant and not those who
slumber on their rights.” Biodiversity Conservation
Alliance v. Jiron, 762 F.3d 1036, 1090-91 (10th Cir.
2014) (quoting Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 121-22 (2002), and Kansas v.
Colorado, 514 U.S. 673, 687 (1995)). To prevail on a
laches defense, a defendant must show that there is:
“(1) lack of diligence by the party against whom the
defense is asserted, and (2) prejudice to the party asserting
the defense.” Id. at 1091 (quoting
Nat'l R.R. Passenger Corp., 536 U.S. at 121-22).
have expressed particular concern about a party bringing last
minute election-related challenges. See, e.g.,
Perry v. Judd, 471 Fed.Appx. 219, 227 (4th Cir.
2012) (unpublished) (noting that “applications for a
preliminary injunction granting ballot access have been
consistently denied when they threaten to disrupt an orderly
election”); Merced v. Spano, 2016 WL 3906646,
at *3 (E.D.N.Y. July 14, 2016) (expressing concern about
impact of late-filed preliminary injunction motion on
electoral process). One court noted that, “[a]s time
passes, the state's interest in proceeding with the
election increases in importance as resources are committed
and irrevocable decisions are made.” Fulani v.
Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990).
filed this lawsuit on April 25, 2018. See Docket No.
1. The deadline for the Secretary to certify candidates to
the 2018 Republican primary - originally April 27, 2018 - has
been postponed to May 2, 2018 pursuant to a state court
order. Docket No. 32 at 1. The deadline for transmitting
absentee and overseas ballots is May 12, 2018, and ballots to
all other voters are scheduled to be distributed beginning
June 4, 2018. Docket No. 31 at 14. The Republican Party
primary election is June 26, 2018. Docket No. 1 at 2, ¶
argues that plaintiffs did not diligently pursue their claim
because they waited until the eve of the Secretary's
certification deadline to file this lawsuit. Docket No. 27 at
9. Specifically, defendant contends that plaintiffs could
have brought their claims years ago or, at the latest, when
the petitioners in the state-court action filed their lawsuit
on April 3, 2018. Id. Defendant also asserts that
plaintiffs' delay has resulted in prejudice to both the
Secretary and the public at large. First, the Secretary
argues that it has had to “scramble” to defend
against plaintiffs' lawsuit with only a few days left
before the ballot certification deadline. Id. at 9.
Second, the Secretary claims that the lawsuit could disrupt
the orderly administration of the election and cause the
Secretary to miss deadlines, such as the ballot certification
deadline on May 2, 2018. Id. at 9-10. Finally, at
the evidentiary hearing on April 30, 2018, defendant
expressed broader concerns about judicial intervention at
this stage of the ...