Baca v. Hickenlooper

• Decision Date: 21 December 2016
• Docket Number: Civil Action No. 16-cv-02986-WYD-NYW
• Parties: POLLY BACA and ROBERT NEMANICH, Plaintiffs, v. JOHN W. HICKENLOOPER JR., in his official capacity as Governor of Colorado; CYNTHIA H. COFFMAN, in her official capacity as Attorney General of Colorado; and WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State, Defendants.
• Court: U.S. District Court — District of Colorado

POLLY BACA and ROBERT NEMANICH, Plaintiffs, v. JOHN W. HICKENLOOPER JR.,in his official capacity as Governor of Colorado;CYNTHIA H. COFFMAN,in her official capacity as Attorney General of Colorado;and WAYNE W. WILLIAMS,in his official capacity as Colorado Secretary of State, Defendants.

Civil Action No. 16-cv-02986-WYD-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

December 21, 2016

Senior Judge Wiley Y. Daniel

ORDER

I. INTRODUCTION

THIS MATTER is before the Court on Motion by Plaintiffs for Temporary Restraining Order and Preliminary Injunction (ECF No. 2), filed December 6, 2016. A hearing was held on December 12, 2016, at the end of which I orally denied Plaintiffs' motion. Plaintiffs filed an emergency motion with the Tenth Circuit Court of Appeals, filed December 13, 2016, seeking an injunction pending appeal. For the reasons noted in its December 16, 2016, Order, the Tenth Circuit denied Plaintiffs' emergency motion for injunction pending appeal. Therefore, the sole purpose of this Order is to state in a written order why Plaintiffs' request for injunctive relief was denied.

Plaintiffs are two of the nine appointed presidential electors, selected to vote for the candidates that received the majority of Colorado's electorate vote. (See Compl., ECF No. 1). On Tuesday, November 8, 2016, Hillary Clinton and Timothy Kaine won the majority of Colorado's votes, and as such, the Democrat Party's presidential electors are tasked with the duty to cast their votes for them when the Electoral College meets on Monday, December 19, 2016. Plaintiffs argue that Colorado's binding presidential elector statute, Colo. Rev. Stat. § 1-4-304(5), violates Article II of the U.S. Constitution, the Twelfth Amendment, the First Amendment, and the Fourteenth Amendment's Equal Protection Clause because they are "forced" to vote for the Clinton-Kaine ticket and will be removed from their position if they do not. (Id.).

Defendants filed a Response to Plaintiffs Motion for Preliminary Injunction (ECF No. 13), on December 9, 2016, arguing that Colorado's statute—which is similar to that of 28 other states and the District of Columbia—is constitutional. Defendants cite a bevy of case law and historical support for their position. In addition to contesting Plaintiffs' First and Fourteenth Amendment arguments, Defendants argue Plaintiffs' claims fail due to their lack of standing and laches. (Id.).

The Colorado Republican Committee filed a Motion to Intervene (ECF No. 11), on December 9, 2016, along with a Memorandum in Opposition to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 11-1). President Elect Donald J. Trump and Donald J. Trump for President, Inc., filed a Motion to Intervene (ECF No. 16), on December 12, 2016, the day of the preliminary injunction hearing, which motion was granted. I now turn to the merits of Plaintiffs' motion.

II. ANALYSIS

I first note that "[a]s a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Schrier v. Univ. Of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (quoting SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10thCir.1991) (citation omitted)); United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989) ("Because it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established."). In order to be entitled to entry of a preliminary injunction pursuant to Fed. R. Civ. P. 65, the moving party must establish that:

(1) [he or she] will suffer irreparable injury unless the injunction issues; (2) the threatened injury ... outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood [of success] on the merits.

Schrier, 427 F.3d at 1258.

Because the limited purpose of a preliminary injunction "is merely to preserve the relative positions of the parties until a trial on the merits can be held," we have "identified the following three types of specifically disfavored preliminary injunctions...: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits." Schrier, 427 F.3d at 1258-59 (citations omitted). Such disfavored 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." Id. (citations omitted).

Where the opposing party has notice, the procedure and standards for issuance of a temporary restraining order mirror those for a preliminary injunction. Stine v. Lappin, No. 08-cv-00164-WYD-KLM, 2009 WL 482630, *2 (D. Colo. Feb. 25, 2009) (citationomitted).

In this case, I find that the injunction that Plaintiffs request seeks to alter the status quo and, because it would otherwise be a mandatory injunction, it is disfavored under Tenth Circuit law. As such, Plaintiffs' motion must be more closely scrutinized under the standard prescribed above.

This case is extraordinary because the two plaintiffs were selected as Democratic electors and they signed a pledge pursuant to Colorado statute, Colo. Rev. Stat. § 1-4-304, which provides that they would vote consistent with the popular vote of the presidential election, which took place on November 8, 2016. See Colo. Rev. Stat. § 1-4-304(5). Hillary Clinton and Tim Kaine won the vote in Colorado, and because of that, the electors are bound to vote for the Clinton/Kaine ticket when the electors meet at high noon at the Colorado State Capitol, Monday, December 19, 2016. See Colo. Rev. Stat. § 1-4-304(1). Plaintiffs ask the Court to enjoin Defendants from enforcing Colorado's binding presidential elector statute, which provides:

Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state.

Colo. Rev. Stat. § 1-4-304(5).

The only consequences to the Plaintiffs' failure to comply with the statute raised by their filings with the Court is that the Secretary of State would replace them as electors and someone else would be chosen. At oral argument, Plaintiffs raised, for the first time, that the Secretary of State's office would pursue misdemeanor charges or misdemeanor allegations against these plaintiffs, and Plaintiffs' counsel referenced 18 U.S.C. § 594.Because neither of these two issues was properly raised in Plaintiffs' pleadings, and neither would change the outcome of my ruling, I will decide this matter based on whether or not there is a substantial likelihood of the plaintiffs prevailing on the merits, and whether or not there has been compliance with the other requirements for the issuance of an injunction, given the fact that the type of injunction sought here is disfavored and is an extraordinary remedy.

A. Substantial Likelihood of Prevailing on the Merits

Plaintiffs argue that somehow requiring them to honor their obligations pursuant to the pledge they signed, and as required by state statute, violates Article II of the Constitution, the Twelfth Amendment, the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Based on the reasons below, I find that Plaintiffs do not have a substantial likelihood of prevailing on the merits of their claim.¹

i. Colorado's Binding Statute

The selection of presidential electors is provided in Art. II, § 1, of the Constitution. States may appoint electors "in such Manner as the Legislature thereof may direct." U.S. Const. Art. II. § 1, cl. 2. Presidential electors act by authority of the State, which receives its authority from the federal constitution. Ray v. Blair, 343 U.S. 214, 224 (1952). The state legislature's power to select the manner for appointing electors is plenary; they may establish the manner in which electors are appointed and take back such power. Bush v. Gore, 531 U.S. 98, 104 (2000). States have "broad powers to regulate voting, which may include laws relating to the qualification and functions of electors." Williams v.Rhodes, 393 U.S. 23, 34 (1968).

Federal law supports the notion that the State's requirement that presidential electors pledge to vote for a particular candidate, in conformity with State law, is constitutional. See Blair, 343 U.S. at 224 ("[n]either the language of Art. II, § 1, nor that of the Twelfth Amendment forbids a party to require from candidates in its primary a pledge of political conformity with the aims of the party."). Blair suggests that the state may also set requirements for presidential electors, and in the event they fail to conform to the state's statutory mandate, the state is permitted to take some remedial action, such as removal of the electors. See id. at 228-231.

Defendants draw support from other state statutory provisions that allow states to remove electors who refuse to comply with state law. See, e.g., Mich. Comp. Laws Ann. § 168.47 (2016) (stating that refusal or failure to vote for the presidential and vice-presidential candidates appearing on the ballot of the political party that nominated the elector constitutes "a resignation from the office of the elector"); N.C. Gen. Stat. § 163-212 (2016) (same); Utah Code Ann. § 20A-13-304(3) (2016) (same). Defendants also point to 28 other states and the District of Columbia's choice to exercise the power to bind its presidential electors to the candidates who won the State's popular vote. (ECF No. 13, at 7). Plaintiffs cite no case or statute striking down that choice as unconstitutional. Furthermore, Plaintiffs' argument that Colorado's statute makes...