Colorado Libertarian Party v. Secretary of State of Colo., 90SA382

• Decision Date: 07 October 1991
• Docket Number: No. 90SA382,90SA382
• Citation: 817 P.2d 998
• Parties: COLORADO LIBERTARIAN PARTY and Robin Heid, Petitioners-Appellants, v. SECRETARY OF STATE OF COLORADO, Natalie Meyer, in her official capacity and not individually, Respondent-Appellee.
• Court: Colorado Supreme Court

Page 998

817 P.2d 998

COLORADO LIBERTARIAN PARTY and Robin Heid, Petitioners-Appellants, v. SECRETARY OF STATE OF COLORADO, Natalie Meyer, in her

official capacity and not individually, Respondent-Appellee.

No. 90SA382.

Supreme Court of Colorado,

En Banc.

Oct. 7, 1991.

Davis, Graham & Stubbs, Karen L. Page, Denver, for petitioners-appellants.

Gale A. Norton, Atty. Gen., Timothy K. Tymkovich, Sol. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Maurice Knaizer, Deputy Atty. Gen., Denver, for respondent-appellee.

Justice VOLLACK delivered the Opinion of the Court.

Appellants, the Colorado Libertarian Party (CLP) and Robin Heid (Heid), appeal the district court's ruling that the unaffiliation requirement in section 1-4-801(1)(i), 1B C.R.S. (1980), of the Colorado Election Code of 1980 does not violate appellants' right to political association, U.S. Const. amends. I & XIV; Colo. Const. art. II, § 5, or their right to equal protection of the laws, U.S. Const. amend. XIV; Colo. Const. art. II, § 25. We affirm. ¹

I.

This action arises from appellant Heid's efforts to become the CLP candidate in the 1990 Colorado gubernatorial election. The CLP is the Colorado affiliate of the national Libertarian Party and is a "qualified political organization" within the meaning of Colorado Secretary of State Rule 16, 8 C.C.R. 1505-1 (1984). ² The CLP has adopted a constitution and by-laws that outline its membership requirements and procedures for nominating CLP candidates. Membership in the organization occurs when an applicant either registers as a Libertarian voter in Colorado or pays the requisite membership fee established by the CLP Board of Directors, or both. The only requirement imposed on prospective CLP candidates is the submission of a signed statement by the candidate that he or she does not believe in or advocate the initiation of force as a means of achieving political or social goals.

Heid has been registered as a member of the Colorado Republican Party since April 25, 1980. On May 27, 1988, Heid also became a member of the CLP by paying a $25 membership fee to the CLP finance chairman, which entitled Heid to membership in the CLP for one year. In 1988, Heid circulated a petition for nomination as the CLP candidate for the First Congressional District, but did not receive a sufficient number of signatures to be placed on the ballot. On April 21, 1990, Heid renewed his CLP membership by paying the $25 fee. In convention on that same day, the CLP nominated Heid as its candidate for Governor of Colorado in the 1990 gubernatorial election. At the time of Heid's nomination, he was both a member of the CLP pursuant to its by-laws and constitution and a member of the Republican Party by virtue of his registered affiliation with that party.

On June 9, 1990, Heid attended the Republican Party State Assembly as a candidate for the Republican nomination. Heid's name was placed in nomination, but before the votes were announced, Heid committed his votes to John Andrews, who won the Republican gubernatorial nomination. Pursuant to his nomination as the CLP candidate, Heid submitted a petition to appellee Secretary of State, Natalie Meyer, to have his name placed on the November 1990 ballot. ³ In a letter dated August 15, 1990, the State Elections Officer notified Heid that his petition had been rejected for his failure to register either as a Libertarian or as unaffiliated, and thus to disaffiliate himself from the Republican Party, at least one year prior to filing his petition for nomination, as required by section 1-4-801(1)(i), 1B C.R.S. (1980).

On September 4, 1990, the CLP and Heid filed a verified petition in district court pursuant to section 1-1-112, 1B C.R.S. (1980), ⁴ requesting the court to enjoin the Secretary of State from enforcing section 1-4-801(1)(i) against the CLP and Heid, to declare section 1-4-801(1)(i) unconstitutional, and to award the CLP and Heid costs and attorney's fees under 42 U.S.C. § 1983. The district court denied the appellants' request for relief based on its conclusion that section 1-4-801(1)(i) was constitutional and that the Secretary of State properly rejected Heid's petition for nomination.

II.

We must determine whether the unaffiliation requirement in section 1-4-801(1)(i), 1B C.R.S. (1980), violates the rights of CLP and Heid to political association and equal protection of the laws under the United States Constitution and the Colorado Constitution.

Section 1-4-801 outlines the petition procedure by which candidates for public office who do not wish to affiliate with a political party may be nominated, other than by a primary election or a convention. For prospective candidates choosing this route to the ballot, section 1-4-801(1)(i) imposes a twelve-month unaffiliation requirement from a political party. Section 1-4-801(1)(i) provides in relevant part:

No person shall be placed in nomination by petition unless the person ... was registered as unaffiliated, as shown on the books of the county clerk and recorder, for at least twelve months prior to the date of filing of the petition....

In response to the Tenth Circuit's instruction in Baer v. Meyer, 728 F.2d 471 (10th Cir.1984), ⁵ Colorado's Secretary of State refined the meaning of the word "unaffiliated" in section 1-4-801(1)(i), by promulgating Rule 16, 8 C.C.R. 1505-1 (1984), to allow candidates not affiliated with a political party to register as either unaffiliated or as affiliated with a "qualified political organization." Thus, "unaffiliated" as used in section 1-4-801(1)(i) now means unaffiliated with a political party. It is undisputed that the CLP is a "qualified political organization" within the meaning of Secretary of State Rule 16 and that section 1-4-801(1)(i)'s twelve-month unaffiliation requirement applies to all prospective candidates of the CLP by virtue of Rule 16.6, which advises that "[c]andidates wishing to represent a qualified political organization on the General Election ballot shall be placed in nomination by independent nominating petition pursuant to C.R.S. 1-4-801." As the CLP's 1990 gubernatorial candidate, Heid was therefore required to register either as unaffiliated or as a Libertarian twelve months prior to filing his petition for nomination.

A.

We first address appellants' contention that the twelve-month unaffiliation requirement in § 1-4-801(1)(i) is an unconstitutional restriction on a political organization's right to choose its representative for public office in violation of the first and fourteenth amendments to the United States Constitution and article II, section 5, of the Colorado Constitution. We disagree.

The United States Supreme Court has approached the constitutionality of ballot access restrictions in an inconsistent manner, at times applying a strict standard of scrutiny, see Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), and at other times employing a more flexible standard, see Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1986) (following Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974); there is "no litmus-paper test for separating those restrictions that are valid from those that are invidious.... Decision in this context ... is very much a 'matter of degree,' very much a matter of 'consider[ing] the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.' " (Citations omitted.)); Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). See National Prohibition Party v. State, 752 P.2d 80, 83 (Colo.1988) (the Supreme Court "has only provided limited definitive guidance in determining the validity of restrictions on ballot access."); L. Tribe, American Constitutional Law § 13-20 (2d ed. 1988) (discusses Supreme Court's inconsistent approach to ballot access cases).

This court has favored the balancing test set forth in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), wherein the Court advised that, in determining the constitutionality of a ballot access restriction, a court

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.

Id. at 789, 103 S.Ct. at 1570. See National Prohibition Party, 752 P.2d at 83-84.

Appellants seek protection of their right to associate politically as guaranteed by the first and fourteenth amendments to the United States Constitution. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). It is well understood that "[f]reedom of association is considered to be an element of the broad right to freedom of expression and protects 'the right of individuals to associate to further their personal beliefs.' " State Bd. for Community Colleges and Occupational Educ., 687 P.2d 429, 439 (Colo.1984) (quoting Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972)).

A disaffiliation requirement for prospective political candidates, such as the one at issue, directly impacts those aspiring to public office, rather than the voters. Bullock v. Carter...