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Goodall v. Williams

United States District Court, D. Colorado

May 1, 2018

WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State, Defendant.



         This 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.


         Plaintiff 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.

         Plaintiffs 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.

         Colorado 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.[1] 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.

         Congressman 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.[2] 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.

         The 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.

         On 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).[3] 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.


         To 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. 1984).

         There 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)).

         III. ANALYSIS

         Plaintiffs 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 relief.

         A. Laches

         Defendant 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).

         Courts 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).

         Plaintiffs 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, ¶ 4.

         Defendant 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 ...

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