WILLIAM SEMPLE, individually; THE COALITION FOR COLORADO UNIVERSAL HEALTHCARE, a not-for-profit corporation, a/k/a Cooperate Colorado; COLORADOCAREYES, a Colorado not-for-profit corporation; DANIEL HAYES, individually, Plaintiffs-Appellees,
v.
JENA GRISWOLD, in her official capacity as Secretary of State of Colorado, Defendant-Appellant. FORMER GOVERNORS BILL RITTER; BILL OWENS; THE DENVER METRO CHAMBER OF COMMERCE; RAISE THE BAR; COLORADO CONCERN; COLORADO RESTAURANT ASSOCIATION; RESTAURANT LAW CENTER; ALAMOSA COUNTY ECONOMIC DEVELOPMENT CORPORATION; ASSOCIATED GOVERNMENTS OF NORTHWEST COLORADO; CLUB 20; COLORADO ECONOMIC LEADERSHIP FUND; COLORADO FARM BUREAU; DELTA COUNTY, COLORADO; FRUITA AREA CHAMBER OF COMMERCE; GARFIELD COUNTY; GRAND COUNTY; GRAND JUNCTION AREA CHAMBER OF COMMERCE; JACKSON COUNTY; MESA COUNTY; MOFFAT COUNTY; MONTROSE COUNTY; PALISADE CHAMBER OF COMMERCE; PRO 15; RIO BLANCO COUNTY; ROUTT COUNTY; TOWN OF RANGELY; STATE OF UTAH; STATE OF IDAHO; STATE OF TEXAS; STATE OF WYOMING; 350 COLORADO; BE THE CHANGE-USA; COLORADO RISING; DOUGLAS COUNTY GREENS; EARTHWORKS; GREATER BOULDER GREEN PARTY; JEFFERSON COUNTY GREEN PARTY; BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY; ROCKY MOUNTAIN PEACE AND JUSTICE CENTER; PATRICIA A. OLSON; COLORADO COMMUNITY RIGHTS NETWORK, INC.; PROTECT OUR LOVELAND; COLORADO WATER CONGRESS; UTAH WATER CONSERVANCY DISTRICT; COLORADO COMMON CAUSE, Amici Curiae.
APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. NO. 1:17-CV-01007-WJM)
Grant
T. Sullivan, Assistant Solicitor General (Cynthia H. Coffman,
Attorney General; Frederick R. Yarger, Solicitor General and
Counsel of Record; and LeeAnn Morrill, First Assistant
Attorney General and Counsel of Record, with him on the
briefs), State of Colorado, Department of Law, Denver,
Colorado, for Defendant-Appellant.
Ralph
Ogden, Wilcox & Ogden, P.C., Denver, Colorado, for
Plaintiffs-Appellees.
Jeffrey S. Hurd, Ireland Stapleton Pryor & Pascoe, P.C.,
Grand Junction Colorado; Jonathan Anderson and Gwendolyn
Benevento, Maven Law Group, Denver, Colorado; Thomas M.
Rogers III, Hermine Kallman, and Dietrich C. Hoefner, Lewis
Roca Rothgerber Christie LLP, Denver, Colorado; Tyler R.
Green, Utah Solicitor General, and Sean D. Reyes, Utah
Attorney General, Salt Lake City, Utah; Lawrence G. Wasden,
Idaho Attorney General, Boise, Idaho; Ken Paxton, Texas
Attorney General, Austin, Texas; Peter K. Michael, Wyoming
Attorney General, Cheyenne, Wyoming; Jason R. Dunn and
Matthew C. Arentsen, Brownstein Hyatt Farber Schreck, LLP,
Denver, Colorado; Michael A. Sink, Perkins Coie LLP, Denver,
Colorado; Stephen H. Leonhardt, Burns, Figa & Will, P.C.,
Greenwood Village, Colorado; Mark A. Hermundstad, Ute Water
Conservancy District, Grand Junction, Colorado, on the briefs
for Amici Curiae in support of Defendant-Appellant.
Elizabeth A. Comeaux, of counsel, Libby Comeaux Law LLC,
Denver, Colorado; Karen R. Breslin, Progressive Law LLC,
Lakewood, Colorado; Martha M. Tierney, Tierney Lawrence LLC,
Denver, Colorado, on the briefs for Amici Curiae in support
of Plaintiffs-Appellees.
Before
BRISCOE, MURPHY, and McHUGH, Circuit Judges.
MURPHY, CIRCUIT JUDGE
I.
Introduction
A
citizen initiative passed by Colorado voters in 2016 (i.e.,
"Amendment 71") made it more difficult to amend the
Colorado constitution through the initiative process.
See Colo. Const. art. V, § 1(2.5). Plaintiffs
filed a complaint pursuant to 42 U.S.C. § 1983
challenging the constitutionality of Amendment 71, asserting
it violates the First and Fourteenth Amendments to the United
States Constitution. Defendant moved to dismiss the complaint
for failure to state a claim. See Fed. R. Civ. P.
12(b)(6). The United States District Court for the District
of Colorado entered judgment in favor of Plaintiffs, ruling
that article V, § 1(2.5) of the Colorado constitution
violates the "one person, one vote" principle
inherent in the Equal Protection Clause of the Fourteenth
Amendment because the number of registered voters is
not substantially the same in each state senate district.
Because
the district court not only denied Defendant's motion to
dismiss but also entered a final judgment in favor of
Plaintiffs, this court has jurisdiction under 28 U.S.C.
§ 1291. We reverse the entry of
judgment in favor of Plaintiffs and order the district court
to grant judgment in favor of Defendant.
II.
Background
Although
not required by the United States Constitution, the Colorado
constitution gives the citizens of Colorado the power to
enact state constitutional amendments through ballot
initiatives. Colo. Const. art. V, § 1(2); see also
John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010)
(Sotomayor, J., concurring) (stating that the initiative
process is a "mechanism[] of direct democracy . . . not
compelled by the Federal Constitution"). In 2016,
Colorado voters approved
Amendment 71, a ballot initiative that made changes to the
ballot initiative process. Before the passage of Amendment
71, the Colorado constitution required initiative proponents
to gather the signatures of "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 amended the Colorado
constitution to add the additional requirement that
initiative proponents also collect signatures from at least
two percent of registered voters in each of Colorado's
thirty-five state senate districts (hereinafter "Section
2.5").[1] Id. § 1(2.5). The purpose of
Amendment 71 was to make it more difficult to amend
Colorado's constitution using the initiative process.
Id.
The
individual plaintiffs in this action have been involved in
the Colorado ballot initiative process as designated
representatives[2] of initiatives seeking to amend the
Colorado constitution. Plaintiffs filed a federal complaint
on April 23, 2017, challenging the constitutionality of
Section 2.5. They alleged it infringes on their First
Amendment right of political association and violates the
one- person-one-vote principle inherent in the Equal
Protection Clause of the Fourteenth Amendment. See Moore
v. Ogilvie, 394 U.S. 814, 818 (1969) ("All
procedures used by a State as an integral part of the
election process must pass muster against the charges of
discrimination or of abridgment of the right to vote.");
Semple v. Williams, 290 F.Supp.3d 1187, 1190 (D.
Colo. 2018). In lieu of an answer, Defendant filed a Rule
12(b)(6) Motion to Dismiss the Complaint for failure to state
a claim. The district court not only denied Defendant's
motion, it also ordered Defendant to show cause as to why
judgment should not enter in favor of Plaintiffs on their
Equal Protection claim.[3] Id. at 1204. After considering
Defendant's response, including the argument that it
would be inappropriate to enter judgment in favor of
Plaintiffs without the opportunity to conduct discovery, the
district court entered a permanent injunction, enjoining the
enforcement of Section 2.5. This appeal
followed.[4]
III.
Discussion
A.
Standard of Review
The
district court denied Defendant's motion to dismiss based
on its conclusion Plaintiffs were entitled to judgment on the
pleadings as a matter of law. We review this ruling de novo.
Utah Republican Party v. Cox, 892 F.3d 1066, 1076
(10th Cir. 2018).
B.
Fourteenth Amendment Claim
Because
this matter was decided on the pleadings, this court turns
first to the allegations in Plaintiffs' complaint. There
is, of course, no dispute that Section 2.5 requires
proponents of ballot initiatives to collect signatures from
two percent of the registered voters in each of
Colorado's state senate districts. Plaintiffs'
complaint alleges that the population of each district varies
and, thus, Section 2.5 "dilutes the value of the
signature of voters in densely populated senate districts and
gives them less value than the signatures of voters in
sparsely populated districts."[5] If true, this allegation may
support the grant of judgment in favor of Plaintiffs. See
Reynolds v. Sims, 377 U.S. 533, 568 (1964) (holding that
"the Equal Protection Clause requires that the seats in
both houses of a bicameral state legislature must be
apportioned on a population basis"). The allegation,
however, is not true. The Colorado state senate districts are
equally populous and Plaintiffs concede this point in their
appellate brief. Appellee Br. at 2 (admitting that
Colorado's state senate "districts are approximately
equal in total population"); see also Evenwel v.
Abbott, 136 S.Ct. 1120, 1124 (2016) (stating that
"all States use total-population numbers from the census
when designing congressional and state-legislative
districts"). Thus, the allegation cannot be used to
support the district court's ruling in favor of
Plaintiffs on their equal protection claim.
Plaintiffs'
complaint, however, also alleges that the number of
registered voters in each state senate
district differs considerably. Specifically, it states:
There 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%.
Presuming
this allegation to be true, [6] the complaint can be read to
allege that an inequality in the number of registered voters
in each of Colorado's equally populous senate districts
dilutes the voting rights of petition signatories who live in
districts with a higher number of registered
voters.[7] See Evenwel, 136 S.Ct. at 1125
(involving the same assertion by voters in Texas). In other
words, because only the signatures of registered voters are
valid for purposes of citizen-initiative petitions, the
number of signatures required to meet the two-percent
threshold established by Section 2.5 varies from
district-to-district.
Using
the numbers alleged by Plaintiffs, approximately 1610
signatures must be collected in District 21 to satisfy the
two percent requirement, but 2537 signatures must be
collected in District 20 (the district in which Plaintiff
Hayes resides) and 2404 signatures must be collected in
District 18 (the district in which Plaintiff Semple resides).
As the argument goes, Plaintiffs' votes have less
influence on whether a citizen initiative appears on the
state-wide ballot than the votes of individuals living in
districts with fewer registered voters. Defendant understood
this to be Plaintiffs' assertion and addressed it in her
motion to dismiss. She argued Plaintiffs' claim fails as
a matter of law because every court to consider the matter
has held that signature-collection requirements involving
ballot initiatives do not violate the Equal Protection Clause
as long as the districts from which signatures are collected
have substantially the same total population. See Angle
v. Miller, 673 F.3d 1122, 1131 (9th Cir. 2012)
(upholding Nevada law requiring signatures from ten percent
of registered voters in each equally populous congressional
district); Libertarian Party of Va. v. Davis, 766
F.2d 865, 868 (4th Cir. 1985) (upholding requirement of 200
signatures from each of Virginia's ten congressional
districts because the districts "contain, as nearly as
practicable, an equal number of inhabitants");
Libertarian Party v. Bond, 764 F.2d 538, 539, 544
(8th Cir. 1985) (upholding Missouri's "one percent
in each" or a "two percent in one-half"
signature requirement because the congressional districts
were "virtually equal in population").
Recognizing
that the cases on which she relied did not involve
allegations that equally populous districts had unequal
numbers of registered voters, Defendant further argued the
cases were nonetheless applicable because the Supreme Court
recently held in Evenwel v. Abbott that the Equal
Protection Clause does not require states to draw their
legislative districts based on registered-voter population
rather than total population even if the two numbers differ.
136 S.Ct. at 1132-33. Defendant argued the Court's
reasoning in Evenwel applied to Plaintiffs'
Fourteenth Amendment claim. In their response, Plaintiffs
argued Evenwel was inapposite because it involved
legislative apportionment and equality of representation
while their complaint implicated only ballot-access issues.
The district court agreed with Plaintiffs, concluding
Evenwel involved "the tension between
preventing vote dilution and ensuring equality of
representation," a tension it stated was not present
here because this matter only involved allegations of vote
dilution, not equality of representation. Semple,
290 F.Supp.3d at 1197. This was error.[8]
Evenwel
involved a challenge to the practice of drawing state
legislative districts based on total population rather than
voter-eligible population. 136 S.Ct. at 1123. The plaintiffs,
two Texas voters, lived in state senate districts "with
particularly large eligible- and registered-voter
populations." Id. at 1125. They argued that
basing apportionment on total population, rather than voter
population, unconstitutionally diluted their votes in
relation to voters in other senate districts. Id.
The Court rejected plaintiffs' argument, holding that
longstanding precedent allowed states to draw legislative
districts based on total population. Id. at 1123. It
reasoned that "[a]dopting voter-eligible apportionment
as constitutional command would upset a well-functioning
approach to districting that all 50 States and countless
local jurisdictions have followed for decades, even
centuries."[9] Id. at 1132.
Although
Evenwel involved the right to vote, not the right to
sign a ballot initiative petition, its reasoning governs the
outcome of Plaintiffs' equal protection claim. Section
2.5 requires that signatures be obtained from a sub-group of
the total population in each state legislative district. Just
as in Evenwel, Plaintiffs allege this sub-group
varies in size from district to district. Thus,
Plaintiffs' equal protection claim is the same as that of
the plaintiffs in Evenwel-that the population of
either eligible or registered voters, not the total
population, in each state senate district must be equal or
voting power is diluted. The Court rejected this proposition,
refusing to hold that the principle of one person, one vote
requires states to equalize the number of voters in each
legislative district. Id. at 1131 ("It would
hardly make sense for the Court to have mandated voter
equality sub silentio and then used a
total-population baseline to evaluate compliance with that
rule.").
Notwithstanding
the Court's statements in Evenwel, Plaintiffs
argue Evenwel's holding is inapplicable in this
matter because it was based on an analysis that balanced
representational equality against vote dilution. The district
court agreed, concluding Section 2.5 does not involve
legislative apportionment and, thus, there is no
representational equality to balance against the alleged vote
dilution. Semple, 290 F.Supp.3d at 1197-98.
Plaintiffs, however, rightly conceded during oral argument in
this matter that citizen initiatives and direct democracy do,
in fact, implicate the principle of representational
equality. As the Court stated in Evenwel,
"[n]onvoters have an important stake in many policy
debates-children, their parents, even their grandparents, for
example, have a stake in a strong public-education system-and
in receiving constituent services, such as help navigating
public-benefits bureaucracies." 136 S.Ct. at 1132.
Because
elected representatives make decisions that affect both
voting and nonvoting constituents, representation is equal
when total population in each district is equal. Id.
at 1130-31. The same is true in the direct democracy context.
Because legislators "serve all residents, not just those
eligible or registered to vote, "[10] voters choose
a legislator who they expect will adequately advance the
interests of both voters and non-voters. In the direct
democracy context, voters are able to directly advance the
interests of non-voting members of their families and
communities when they decide whether to support a citizen
initiative. Although citizens, unlike elected
representatives, are not "subject to requests and
suggestions"[11] from constituents, their vote on citizen
initiative petitions can be influenced by private discussions
with non-voting friends, family, and neighbors. In this way,
voting-eligible citizens assume a role similar to that of
elected representatives when those voters engage in the
initiative process.[12]Otherwise, the interests of nonvoters,
who the Court acknowledges "have an important stake in
many policy debates, "[13] would be stifled in the
direct-democracy process. This interpretation is consistent
with the Supreme Court's statement in Evenwel
that the "one-person, one-vote guarantee" can
properly be viewed as a guarantee of equal representation,
"not voter equality." Id. at 1131.
Supreme
Court precedent is clear. No equal protection problem exists
if votes are cast in equally populated state legislative
districts that were drawn based on Census population data.
Id. In no instance has the Court "determined
the permissibility of [perfect population] deviation based on
eligible- or registered-voter data." Id. Just
as it is not unconstitutional to apportion seats in a state
legislature based on districts of equal total population,
id. at 1124, it is not unconstitutional to base
direct democracy signature requirements on total
population.[14] The district court's basis for
distinguishing Evenwel is, thus, unconvincing and
led the court to erroneously grant judgment in favor of
Plaintiffs on their equal protection claim. Evenwel
controls the disposition of Plaintiffs' equal protection
claim. Because there is no dispute that Colorado's
thirty-five state senate districts are approximately equal in
total population, summary judgment must be entered in favor
of Defendant on that claim.
C.
First Amendment Claims
Plaintiffs
raise two First Amendment challenges to Section 2.5,
asserting it violates the First Amendment by (1) increasing
the cost and difficulty of placing an initiative measure on
the ballot and (2) compelling core political speech in some
senate districts.
As to
their first theory, Plaintiffs complain that Section 2.5
unduly burdens their First Amendment rights by making it more
difficult to place a citizen initiative on the state-wide
ballot. Specifically, Plaintiffs' complaint alleges the
following in the third claim for relief:
By requiring initiative proponents to gather signatures from
each of the state's thirty-five senate districts,
Amendment 71 significantly increases the cost and difficulty
of placing an initiated constitutional amendment on the
general election ballot because it is far more efficient and
far more cost effective for circulators to collect signatures
in densely populated senate districts than it is for them to
collect signatures in rural districts where the population
density is very low.
Even
assuming Plaintiffs are able to prove the relevant factual
allegations in their complaint, this court has previously
addressed and rejected the proposition that the First
Amendment is implicated by a state law that makes it more
difficult to pass a ballot initiative. Initiative &
Referendum Instit. v. Walker, 450 F.3d 1082, 1099-1103
(10th Cir. 2006) (en banc). In Walker, the
plaintiffs argued that a supermajority requirement for
passage of wildlife initiatives in Utah impermissibly
burdened the exercise of their First Amendment rights by
making such initiatives less likely to succeed. Id.
at 1098. This court, sitting en banc, acknowledged that the
First Amendment protects political speech incident to an
initiative campaign but held that the supermajority
requirement at issue did not violate the First Amendment.
Id. at 1099-1103. Relying on this court's
holding in Save Palisade FruitLands v. Todd, 279
F.3d 1204 (10th Cir. 2002), the Walker court
emphasized the distinction "between laws that regulate
or restrict the communicative conduct of persons advocating a
position in a referendum, which warrant strict scrutiny, and
laws that determine the process by which legislation is
enacted, which do not." Walker, 450 F.3d at
1099-1100. In this way, the Utah law at issue in
Walker differed from the Colorado law at issue in
Meyer v. Grant, 486 U.S. 414 (1988), which
"dictated who could speak . . . or how
to go about speaking." Walker, 450 F.3d at
1099.
Walker
controls the issue presented here because Section 2.5 merely
determines the process by which initiative
legislation is enacted in Colorado. Like the supermajority
requirement addressed by the en banc court in
Walker, Section 2.5 is not content-based. Thus, even
assuming Section 2.5 makes it more difficult and costly to
amend the Colorado constitution because it requires
Plaintiffs to collect signatures from all districts in the
state, that process requirement does not give rise to a
cognizable First Amendment claim. Because Plaintiffs'
first theory fails as a matter of law, judgment must be
entered in favor of Defendant on this claim.
Plaintiffs
also argue Section 2.5 violates the First Amendment by
requiring them to interact in certain districts they prefer
to avoid. Their complaint alleges Section 2.5 compels core
political speech "[b]y requiring initiative proponents
to gather signatures from voters in every state senate
district, and to engage in political speech and associational
activities in each of those thirty-five senate districts . .
. even though, in the absence of Amendment 71's
requirements, they would avoid engaging in political speech
and associational activities in those districts."
As a
general matter, the First Amendment protects an
individual's "right to speak freely and the right to
refrain from speaking at all." Wooley v.
Maynard, 430 U.S. 705, 714 (1977). To state a
compelled-speech claim, a plaintiff must establish three
elements: (1) speech; (2) to which the speaker objects; that
is (3) compelled by some governmental action. Cressman v.
Thompson, 798 F.3d 938, 951 (10th Cir. 2015). As to the
compulsion element, this court has held that "the
governmental measure must punish, or threaten to punish,
protected speech by governmental action that is regulatory,
proscriptive, or compulsory in nature." Axson-Flynn
v. Johnson, 356 F.3d 1277, 1290 (10th Cir. 2004)
(quotation omitted). A plaintiff can show government
compulsion without identifying a direct threat, "such as
imprisonment, fines, injunctions or taxes," id.
(quotations omitted), but a discouragement that is
"minimal" and "wholly subjective," does
not impermissibly deter the exercise of a plaintiff's
First Amendment rights. Phelan v. Laramie Cty. Cmty.
Coll. Bd. of Trs., 235 F.3d ...