Semple v. Griswold

Decision Date20 August 2019
Docket NumberNo. 18-1123,18-1123
Citation934 F.3d 1134
Parties 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.
CourtU.S. Court of Appeals — Tenth Circuit
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, 130 S.Ct. 2811, 177 L.Ed.2d 493 (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 representatives2 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, 89 S.Ct. 1493, 23 L.Ed.2d 1 (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, 84 S.Ct. 1362, 12 L.Ed.2d 506 (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 , ––– U.S. ––––, 136 S. Ct. 1120, 1124, 194 L.Ed.2d 291 (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,...

To continue reading

Request your trial
12 cases
  • Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs
    • United States
    • Arizona Supreme Court
    • September 4, 2020
    ...be said ... [ ] nor d[id] it adopt or reject any particular subject that can be raised in a petition"); see also Semple v. Griswold , 934 F.3d 1134, 1142 (10th Cir. 2019) (determining that a law making it more difficult and expensive to enact legislation through initiative measures was not ......
  • 303 Creative LLC v. Elenis
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 26, 2021
    ...is whether, in speaking, the government is compelling others to espouse or to suppress certain ideas and beliefs"); Semple v. Griswold , 934 F.3d 1134, 1143 (10th Cir. 2019) (concluding that a Colorado state amendment raising standards for citizen ballot initiatives did not compel speech by......
  • Eggers v. Evnen
    • United States
    • U.S. District Court — District of Nebraska
    • June 13, 2022
    ... ... "[C]itizen initiatives ... and direct democracy do, in fact, implicate the principle of ... representational equality." Semple v. Griswold , ... 934 F.3d 1134, 1141 (10th Cir. 2019). If anything, it seems ... like in the exercise of direct democracy, weighing each ... ...
  • Speight v. Gordon
    • United States
    • U.S. District Court — District of Wyoming
    • January 27, 2022
    ...Toltec Watershed Imp. Dist. , 490 P.2d 1069 (Wyo. 1971) (aff'd 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973) ); Semple v. Griswold , 934 F.3d 1134 (10th Cir. 2019) ).At first blush, Seergy appears to mirror Plaintiffs’ claims and proposed relief. In that case, Republican voters and mem......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT