Campbell v. Buckley

• Decision Date: 10 February 2000
• Docket Number: No. 98-1329,98-1329
• Citation: 203 F.3d 738
• Parties: (10th Cir. 2000) DOUGLAS CAMPBELL, RICHARD HAMILTON, CLYDE HARKINS, JACK HAWKINS, DANIEL HAYES, GARY SWING, JEFFREY WRIGHT, DOUGLAS BRUCE, THE INITIATIVE AND REFERENDUM INSTITUTE, AMERICANS FOR SOUND PUBLIC POLICY, and the AMERICAN CONSTITUTIONAL LAW FOUNDATION, INC., Plaintiffs - Appellants, v. VICTORIA BUCKLEY, in her official capacity as Secretary of State for the State of Colorado and member of the Colorado State Initiative and Referendum Title Board, COLORADO STATE INITIATIVE AND REFERENDUM TITLE BOARD, and RICHARD WESTFALL and REBECCA LENNAHAN in their official capacities as Title Board members, Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 738

203 F.3d 738 (10th Cir. 2000)

DOUGLAS CAMPBELL, RICHARD HAMILTON, CLYDE HARKINS, JACK HAWKINS, DANIEL HAYES, GARY SWING, JEFFREY WRIGHT, DOUGLAS BRUCE, THE INITIATIVE AND REFERENDUM INSTITUTE, AMERICANS FOR SOUND PUBLIC POLICY, and the AMERICAN CONSTITUTIONAL LAW FOUNDATION, INC., Plaintiffs - Appellants, v. VICTORIA BUCKLEY, in her official capacity as Secretary of State for the State of Colorado and member of the Colorado State Initiative and Referendum Title Board, COLORADO STATE INITIATIVE AND REFERENDUM TITLE BOARD, and RICHARD WESTFALL and REBECCA LENNAHAN in their official capacities as Title Board members, Defendants - Appellees.

No. 98-1329

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

February 10, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. D.C. NO. 98-K-1022

Paul Grant, Parker, Colorado, for Plaintiffs-Appellants.

Maurice Knaizer, Deputy Attorney General (Ken Salazar, Attorney General; Barbara McDonnell, Chief Deputy Attorney General; Michael E. McLachlan, Solicitor General; Christine M. Arguello, Deputy Attorney General, with him on the brief), Denver, Colorado, for Defendants-Appellees.

Before BRISCOE, REAVLEY^*, and MURPHY, Circuit Judges.

REAVLEY, Senior Circuit Judge.

Eight individuals and three organizations¹ brought this action challenging the constitutionality of the "title setting" requirements of the State of Colorado's ballot initiative law. The district court, after a bench trial, upheld the constitutionality of the Colorado scheme.² We affirm.

BACKGROUND

The Colorado Constitution reserves to the people the power to enact laws and constitutional amendments by initiative, and to reject by referendum laws passed by the general assembly.³ An initiative is placed on the ballot after the proponent secures by petition the required number of signatures by registered electors.⁴ A referendum similarly may be placed on the ballot by circulating a petition, or may be placed on the ballot by the general assembly.⁵ Initiatives and referenda placed on the ballot and approved by majority vote are not subject to the governor's veto power.⁶

Colorado has various procedures, set out in its constitution and statutes, which regulate initiatives. "The Colorado Constitution grants the general assembly the authority to adopt legislation designed to prevent fraud, mistake, or other abuses in the petition process."⁷

Appellants challenge the "title setting" requirements of the ballot initiative procedure. Under these requirements, initiatives must comply with a "single subject" rule, and are given a title and summary by state officials before the petition is circulated. Under Art. V., § 1(5.5) of the Colorado Constitution:

No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls.

This provision was added to the Colorado Constitution by constitutional amendment approved by the voters in 1994.

Similar single subject requirements apply to bills and constitutional amendments proposed by the general assembly, other than general appropriations bills.⁸

By statute, the proponent of a ballot initiative must submit a draft of the initiative petition to the directors of the state legislative council and the office of legislative legal services for review and comment.⁹ The proponent may amend the petition in response to these comments.¹⁰ "To the extent possible, drafts shall be worded with simplicity and clarity and so that the effect of the measure will not be misleading or likely to cause confusion among voters."¹¹ The draft is then submitted to the secretary of state.¹² The "title board," consisting of the secretary of state, attorney general, and director of the office of legislative legal services or the director's designee, then gives the initiative a "proper fair title," a submission clause, and an impartial summary.¹³ The petition cannot be circulated for the required signatures unless these procedures are followed.¹⁴ If the proponent is dissatisfied with the title, submission clause, or summary, he may move for rehearing with the title board, and if rehearing is overruled, he may seek review in the Colorado Supreme Court.¹⁵

The reasons for the title setting requirements are described by statute:

(d) The Colorado supreme court has held that the constitutional single-subject requirement for bills was designed to prevent or inhibit various inappropriate or misleading practices that might otherwise occur, and the intent of the general assembly in referring to the people section 1(5.5) of article V and section 2(3) of article XIX was to protect initiated measures and referred constitutional amendments from similar practices;

(e) The practices intended by the general assembly to be inhibited by section 1(5.5) of article V and section 2(3) of article XIX are as follows: (I) To forbid the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits; (II) To prevent surreptitious measures and apprise the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters.¹⁶

Appellants alleged in their complaint that the statutory scheme, on its face, violates their federal constitutional rights under the First and Fourteenth Amendments "to speech, petitioning, political association, due process and voting." The complaint also alleged that as applied the single subject requirement had been used to thwart their efforts to submit legislative and constitutional changes to the voters. For example, they alleged that their proposed initiatives for tax reform and selection of judges had been kept off the ballot by opponents who, in a subjective, arbitrary, and discriminatory manner, found violations of the single subject requirement. The district court heard testimony at the trial, and also incorporated testimony previously given at a hearing on appellants' application for a preliminary injunction.

After considering the arguments of the parties and the evidence, the district court held that the Colorado initiative procedures challenged by appellants did not violate federal constitutional standards.

DISCUSSION

Appellants argue that the title setting process abridges their First Amendment rights. We have recognized that "even though the initiative and referendum process is not guaranteed by the United States Constitution, Colorado's choice to reserve it does not leave the state free to condition its use by impermissible restraints on First Amendment activity."¹⁷

The Supreme Court and this court have written extensively on the federal constitutional requirements placed on states when they regulate the voting process. As we detail here, precedent requires that our analysis turn in large measure on whether the regulation at issue is subject to a balancing test or strict scrutiny.

A. The Balancing Test

The Supreme Court has employed a flexible approach, which we refer to as the balancing test, in a number of cases involving state regulation of the voting process. In Anderson v. Celebrezze,¹⁸ the Court struck down a state filing deadline for independent candidates, but in so doing recognized that constitutional challenges to a state's election laws

cannot be resolved by any "litmus-paper test" that will separate valid from invalid restrictions. Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.¹⁹

In Burdick v. Takushi,²⁰ a voter challenged a state ban on write-in voting, on grounds that the ban violated his right to vote under the First and Fourteenth Amendments. In upholding the ban, the Court held that strict scrutiny was not required, and that instead a balancing test was in order:

Petitioner proceeds from the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny. . . . Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes. . . . Consequently, to subject every voting regulation to strict scrutiny . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently. . . . Instead . . . a more flexible standard applies. A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by...