PHILIP A. BRIMMER, United States District Judge.
This matter comes before the Court on the Motion for Preliminary Injunction [Docket No. 2] filed by plaintiffs Melissa Renee Goodall, Jeremy Wayde Goodall, Shauna Leigh Arrington, Jeffery Phillip Arrington, Karla Jo Kroeker, Ryan Mark Tipple, Rep. Douglas Lamborn, and Lamborn for Congress. Plaintiffs ask the Court to issue a mandatory preliminary injunction requiring defendant Wayne W. Williams, the Secretary of State for the State of Colorado, to certify Congressman Lamborn for the ballot in the Republican primary election to the U.S. House of Representatives in the Fifth Congressional District. Docket No. 2 at 1.
Plaintiff Douglas Lamborn is a candidate for the U.S. House of Representatives for the Fifth Congressional District. He is also the incumbent, having been first elected in 2006. Docket No. 1 at 6. Lamborn for Congress is the authorized campaign committee for Congressman Lamborn and is registered as a federal political committee with the Federal Elections Commission. Id. Plaintiff Ryan Mark Tipple is a registered Colorado voter, affiliated with the Republican Party. Mr. Tipple collected nominating signatures on behalf of Congressman Lamborn for the primary election in 2018 and wants to collect signatures for nominating petitions in Colorado in the future. Id. at 6. He currently resides in the State of California. Id. Signatures that Mr. Tipple collected on behalf of Congressman Lamborn in 2018 were declared invalid by the Colorado Supreme Court on April 23, 2018 because Mr. Tipple was not a resident of the State of Colorado at the time he collected the signatures.
Plaintiffs Melissa Renee and Jeremy Wayde Goodall are registered Colorado voters, affiliated with the Republican Party, who reside in the Fifth Congressional District. Id. at 3. They signed a nominating petition for Congressman Lamborn circulated by Mr. Tipple, which was declared invalid. Id. They are also petition circulators. Plaintiffs Shauna Leigh and Jeffery Phillip Arrington and Karla Jo Kroeker are registered Colorado voters, affiliated with the Republican Party, who reside in the Fifth Congressional District. Id. They signed a nominating petition for Congressman Lamborn circulated by Mr. Tipple, which was declared invalid. The Arringtons and Ms. Kroeker are not petition circulators. As a result of the invalidation of the petitions circulated by Mr. Tipple, the signatures of the Goodalls, the Arringtons, and Ms. Kroeker will not be counted in the primary election. Id.
Colorado law provides two means by which a major party candidate can gain access to the primary ballot for public office: by collecting signatures on nominating petitions or by a certification of designation of the political party.
Congressman Lamborn decided to run for reelection and, on December 23, 2017, he submitted information to the Secretary of State's Office in order for the Secretary to prepare a petition format that Congressman Lamborn could use to gain access to the primary ballot through the petition process. Exhibit 5 to April 30, 2018 Preliminary Injunction hearing.
The Secretary uses the following procedures in reviewing signature petitions. Once a candidate submits his or her petitions to the Secretary for review, the Secretary of State's Office takes the petitions to a division of the Department of Personnel Administration in Pueblo. The petitions are electronically scanned. First, the reviewers check the circulator's affidavit for facial validity, including whether the circulator filled it out properly, signed it, and had it properly notarized. The reviewers then run the circulator's information through the state voter registration database to determine whether that person meets the qualifications to be a circulator, such as being over 18 years old, being affiliated with the proper political party, and being a resident of Colorado. Any problems regarding these issues are subject to a cure period wherein the candidate may attempt to correct the defects, the goal being to give every registered elector the opportunity to have his or her signature counted. Second, the reviewers check the information on each signature line to make sure that such information matches the information in the voter registration database for that person. This process determines whether the person was eligible to sign the petition. The second step also includes a signature verification procedure that Colorado is implementing for the first time this year, wherein the signature on the petition is compared, through the Secretary's electronic voter registration database, to the most recent signature for that voter. These signatures may include the signature of a voter on the back of a previously submitted mail-in ballot. If, in the opinion of the trained reviewers, the signatures match, the Secretary accepts the otherwise valid signature. If not, that signature is subjected to an additional level of review whereby at least two bipartisan
On April 3, 2018, five voters from the Fifth Congressional District filed a petition in the District Court for the City and County of Denver pursuant to Colo. Rev. Stat. §§ 1-1-113 and 1-4-909 challenging the Secretary of State's statement of sufficiency regarding Congressman Lamborn's petitions. The petitioners claimed that seven of Congressman Lamborn's circulators did not live within the State of Colorado in violation of the residency requirement of Colo. Rev. Stat. § 1-4-905(1).
To succeed on a motion for a preliminary injunction, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)); See Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)). "[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Beltronics USA, Inc. v. Midwest Inventory
There are three types of preliminary injunctions that are disfavored in this circuit: (1) injunctions that disturb the status quo, (2) injunctions that are mandatory rather than prohibitory, and (3) injunctions that provide the movant substantially all the relief it could feasibly attain after a full trial on the merits. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005). The "status quo" for purposes of the first category is defined as "the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing." Id. at 1260 (citing Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001)). In seeking a disfavored injunction, "the movant must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms." Fish v. Kobach, 840 F.3d 710, 724 (10th Cir. 2016) (internal quotation marks and brackets omitted); see also Schrier, 427 F.3d at 1259 (stating that such 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" (internal quotation marks omitted)).
Plaintiffs move for a preliminary injunction requiring the Secretary of State to certify Congressman Lamborn to the 2018 Republican Party primary ballot. Defendant opposes the preliminary injunction on two grounds. First, defendant argues that plaintiffs' claim is barred by the doctrine of laches because plaintiffs delayed in raising the constitutional issue. Second, defendant contends that the four preliminary injunction factors weigh against plaintiffs' requested relief.
Defendant argues that plaintiffs' claim is barred by the doctrine of laches. Docket No. 27 at 6. That doctrine "bars a party's dilatory claim" and "stems from the principle that equity aids the vigilant and not those who slumber on their rights." Biodiversity Conservation Alliance v. Jiron, 762 F.3d 1036, 1090-91 (10th Cir. 2014) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and Kansas v. Colorado, 514 U.S. 673, 687, 115 S.Ct. 1733, 131 L.Ed.2d 759 (1995)). To prevail on a laches defense, a defendant must show that there is: "(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Id. at 1091 (quoting Nat'l R.R. Passenger Corp., 536 U.S. at 121-22, 122 S.Ct. 2061).
Courts have expressed particular concern about a party bringing last minute election-related challenges. See, e.g., Perry v. Judd, 471 F. App'x 219, 227 (4th Cir. 2012) (unpublished) (noting that "applications for a preliminary injunction granting ballot access have been consistently denied when they threaten to disrupt an orderly election"); Merced v. Spano, 2016 WL 3906646, at *3 (E.D.N.Y. July 14, 2016) (expressing concern about impact of late-filed preliminary injunction motion on electoral process). One court noted that, "[a]s time passes, the state's interest in proceeding with the election increases in importance as resources are committed and irrevocable decisions are made." Fulani v.
Plaintiffs filed this lawsuit on April 25, 2018. See Docket No. 1. The deadline for the Secretary to certify candidates to the 2018 Republican primary — originally April 27, 2018 — has been postponed to May 2, 2018 pursuant to a state court order. Docket No. 32 at 1. The deadline for transmitting absentee and overseas ballots is May 12, 2018, and ballots to all other voters are scheduled to be distributed beginning June 4, 2018. Docket No. 31 at 14. The Republican Party primary election is June 26, 2018. Docket No. 1 at 2, ¶ 4.
Defendant argues that plaintiffs did not diligently pursue their claim because they waited until the eve of the Secretary's certification deadline to file this lawsuit. Docket No. 27 at 9. Specifically, defendant contends that plaintiffs could have brought their claims years ago or, at the latest, when the petitioners in the state-court action filed their lawsuit on April 3, 2018. Id. Defendant also asserts that plaintiffs' delay has resulted in prejudice to both the Secretary and the public at large. First, the Secretary argues that it has had to "scramble" to defend against plaintiffs' lawsuit with only a few days left before the ballot certification deadline. Id. at 9. Second, the Secretary claims that the lawsuit could disrupt the orderly administration of the election and cause the Secretary to miss deadlines, such as the ballot certification deadline on May 2, 2018. Id. at 9-10. Finally, at the evidentiary hearing on April 30, 2018, defendant expressed broader concerns about judicial intervention at this stage of the electoral process. In particular, defendant noted that the granting of a preliminary injunction could (1) result in the application of different standards to different candidates, (2) encourage future eleventh-hour challenges to ballot access requirements, and (3) cause voter confusion.
Plaintiffs assert that they were justified in bringing their constitutional claim on April 25, 2018 because the Colorado Supreme Court's April 23, 2018 decision in Kuhn v. Williams unexpectedly altered the status quo on two fronts: first, by interpreting § 1-1-113 to allow evidentiary challenges to the residency of a petition circulator after the Secretary has issued a statement of sufficiency as to that circulator's residency and signatures; and second, by holding that residency for purposes of § 1-4-905(1) must be determined according to objective factors. Plaintiffs contend that, until the Colorado Supreme Court's decision in Kuhn, they could not reasonably have known of the possibility that the signatures gathered by Mr. Tipple and deemed sufficient by the Secretary of State would be invalidated due to noncompliance with § 1-4-905(1)'s residency requirement.
Despite the Court's concerns about the diligence of Congressman Lamborn and his campaign, the Secretary's laches defense fails as to the second prong — prejudice. See Ute Indian Tribe of Uintah and Ouray Reservation v. Probst, 428 F.2d 491, 497 (10th Cir. 1970) (rejecting laches defense based on defendant's inability to show prejudice); List Interactive, Ltd. v. Knights of Columbus, 303 F.Supp.3d 1065, 1078-79 (D. Colo. 2018) (finding that laches argument "also fail[ed]" because defendant could not point to any prejudice resulting from delay); see also Nature Conservancy v. Wilder Corp. of Delaware, 656 F.3d 646, 651 (7th Cir. 2011) (declining to address whether plaintiff's delay in adding claim was unreasonable because defendant had failed to show that delay caused any material prejudice, as required under Illinois law).
Defendant next suggests that plaintiffs' delay could cause the Secretary to miss important deadlines with regard to the election process. That is not apparent to the Court. This order is being entered before the Secretary's deadline for certifying candidates to the 2018 Republican primary election ballot. The Secretary has already issued a statement of sufficiency regarding Congressman Lamborn. The Secretary has not identified any logistical impediment to his ability to certify Congressman Lamborn to the 2018 Republican Party primary ballot by the May 2 deadline.
Finally, defendant contends that the issuance of a preliminary injunction may have "unpredictable collateral consequences" for Colorado's electoral process. The Court is sympathetic to defendant's concern. As the Fourth Circuit recognized in Perry, "[b]allots and elections do not magically materialize. They require planning, preparation, and studious attention to detail if the fairness and integrity of the electoral process is to be observed." 471 F. App'x at 226; see also id. at 225 (discussing adverse consequences of permitting candidates to file last-minute challenges to state election laws). As with defendant's other prejudice arguments, however, defendant has failed to explain how such concerns are implicated in this case. Although defendant referred at oral argument to two pending state court cases that apparently involve the circulator residency requirement, defendant has offered no explanation as to what effect an adverse ruling in this case would have on the litigants in those proceedings. Additionally,
Defendant has not otherwise articulated or introduced any evidence of actual prejudice caused by plaintiffs' delay in filing this lawsuit. Accordingly, defendant has not shown that the doctrine of laches bars plaintiffs' claims. Compare Perry, 471 F. App'x at 227 (finding that prejudice prong had been satisfied where "most of the printing ha[d] already been authorized or completed," preliminary injunction would have "force[d] expensive reprinting of ballots," and reprinting in conjunction with other delays would have likely "prevent[ed] respondents from complying with their obligations under federal and state law"); Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980) (finding that application of laches was appropriate where, during the two weeks in which plaintiff delayed filing his lawsuit, state carried out all its preliminary work for the "paper ballots, voting machine strips, and punch cards" and completed and shipped "notices of election, absentee voting material, and registration notices").
Because plaintiffs are seeking a disfavored injunction, See Perry, 471 F. App'x at 223 (finding that, where candidate sought mandatory injunctive relief, such request is "disfavored, and warranted only in the most extraordinary circumstances" (quoting In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003)), they are entitled to relief only if they "make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms." Fish, 840 F.3d at 724.
Plaintiffs assert that they are likely to succeed on the merits of their First Amendment claim because the circulator residency requirement in Colo. Rev. Stat. § 1-4-905(1) is a clear violation of their free speech rights. Docket No. 2 at 6.
It is well established that states "may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election — and campaign-related disorder." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (citing Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)). However, a state's power to regulate its elections is constrained by the Constitution. See Williams v. Rhodes, 393 U.S. 23, 29, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).
The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. This provision "protects the right of citizens to associate and to form political parties for the advancement of common political goals and ideals," Timmons, 520 U.S. at 357, 117 S.Ct. 1364, and to "engage in discussions concerning the need for [political change]." Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir. 2008) (quoting Meyer v. Grant, 486 U.S. 414, 421, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988)). In assessing whether a state election law violates the First Amendment, a court must "weigh the character and magnitude of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make
The Tenth Circuit has recognized that "petition circulation is core political speech, because it involves interactive communication concerning political change." Yes on Term Limits, Inc., 550 F.3d at 1028 (quoting Chandler v. City of Arvada, 292 F.3d 1236, 1241 (10th Cir. 2002)) (ellipses omitted).
This case is analogous to Yes on Term Limits, Inc. Not only do plaintiffs seek to participate in the same core political speech — petition signing and circulation — but the residency requirement in § 1-4-905(1), like the regulation at issue in Yes on Term Limits, Inc., operates to reduce the pool of available circulators and limit the quantum of speech in the election process. Tenth Circuit precedent therefore instructs that strict scrutiny is the appropriate standard to apply. See Yes on Term Limits, Inc., 550 F.3d at 1028.
Defendant argues that strict scrutiny is not applicable in this case for two reasons. First, defendant suggests that the residency requirement does not impose a severe burden on speech because Congressman Lamborn, to gain access to the ballot, had to gather just 1,000 signatures
At the preliminary injunction hearing, defendant also contended that the Court is not in a position to apply strict scrutiny absent an evidentiary showing that the residency requirement imposes severe burdens on plaintiffs' First Amendment rights. The Court disagrees. Although decisions such as Buckley and Meyer cited evidence in support of the conclusion that restrictions on petition circulators are subject to strict scrutiny, see Buckley, 525 U.S. at 194, 119 S.Ct. 636 (citing "uncontested numbers" in the record showing that circulator registration requirement "decrease[d] the pool of potential circulators"); Meyer, 486 U.S. at 422-23, 108 S.Ct. 1886 (finding that prohibition against paying circulators of initiative petitions was subject to strict scrutiny based on evidence that law (1) "limit[ed] the number of voices who [would] convey appellees' message" and (2) "ma[de] it less likely that appellees [would] garner the number of signatures necessary to place the matter on the ballot"), more recent cases have recognized a judicial "consensus" that such restrictions impose severe burdens on speech. See, e.g., Wilmoth v. Sec'y of State of New Jersey, 731 Fed.Appx. 97, 102 (3d Cir. 2018) (applying strict scrutiny in light of general "consensus" among circuits that "laws imposing residency restrictions upon circulators of nomination petitions are subject to strict scrutiny analysis"); Libertarian Party of Virginia, 718 F.3d at 316-317 ("As the law has developed following the Supreme Court's decisions in [Meyer v. Grant and Buckley v. American Constitutional Law Foundation], a consensus has emerged that petition restrictions like the one at issue here are subject to strict scrutiny analysis."). The Third, Fourth, and Tenth Circuits have all reached the conclusion that strict scrutiny applies to circulator residency requirements without relying on any record evidence regarding the burdens that such requirements impose on First Amendment rights. See Wilmoth, 731 Fed.Appx. at 102; Libertarian Party of Virginia, 718 F.3d at 316-17; Yes on Term Limits, Inc., 550 F.3d at 1028.
Because the Court finds that strict scrutiny is the appropriate standard of review under Tenth Circuit precedent, the burden shifts to defendant to show that "its ban on non-resident circulators is narrowly tailored to serve a compelling
The Secretary argues that the residency requirement helps to reduce circulator fraud.
Moreover, the Secretary's concerns about circulator fraud are largely obviated by Colorado's new process for verifying signatures on candidate petitions. Under Colo. Rev. Stat. § 1-4-908(1.5)(a),
If a mismatch is detected, "or if a signature verification device is unable to determine that the signatures match, a second review shall be made by an employee of the secretary of state's office or a designee trained in signature verification." § 1-4-908(1.5)(b)(I).
Ben Schler, the legal and policy manager for the Secretary of State's Office, testified at the preliminary injunction hearing that, despite the implementation of this signature verification process, the residency requirement is still important because residency information enables the Secretary of State's Office to confirm whether a circulator complies with other requirements listed in § 1-4-905(1), such as the minimum age and citizenship requirements. In addition, he stated that the residency requirement facilitates the state's and candidates' access to circulators in the event there is a deficiency in a candidate's petition. However, neither of these arguments relates to the issue of fraud.
The Secretary also argues that the residency requirement ensures that the state can subpoena a circulator and compel him to "travel to and attend a hearing" within a short time frame in the event that there is a contest over a petition's sufficiency. Docket No. 27 at 17. Courts have routinely found that requiring circulators to sign affidavits or enter into agreements in which they "provide their relevant contact information and agree to return in the event of a protest" is a more narrowly tailored means of ensuring a state's ability to locate circulators than is a residency requirement. Yes on Term Limits, Inc., 550 F.3d at 1030; Chandler, 292 F.3d at 1244 (noting that less restrictive approach would be to "require ..., as a prerequisite to circulating an initiative, referendum, or recall petition in the City, the prospective circulator agree to submit to the jurisdiction of the Arvada Municipal Court"). Colorado has already implemented this requirement. See Colo. Rev. Stat. § 1-40-111(2)(a) (requiring circulator to execute affidavit attesting to compliance with § 1-4-905(1)'s requirements and certifying that "he or she understands that failing to make himself or herself available to be deposed and to provide testimony in the event of a protest shall invalidate the petition section if it is challenged on the grounds of circulator fraud"). To the extent residency is used as an easy way to ascertain a circulator's compliance with the other requirements in § 1-4-905(1), the Court is unable to perceive why § 1-40-111(2)(a) does not adequately achieve this same interest. The residency requirement itself is not a narrowly tailored means to accomplish the goal of locating circulators or gaining their testimony.
In summary, the Secretary fails to demonstrate that the residency requirement is narrowly tailored to protecting the integrity of the petition process. Accordingly, the Court finds that plaintiffs have made a strong showing that they are likely to succeed on the merits of their First Amendment claim.
As to the issue of irreparable harm, Congressman Lamborn claims that, unless an injunction issues, his name will not appear on the primary ballot and he will lose his ability to seek re-election. Docket No. 2 at 11. The plaintiffs who signed petitions submitted by Mr. Tipple claim that they will be irreparably harmed by not having their signatures counted and, as a result, will not be able to vote for
As to whether plaintiffs have shown that the threatened injury to them outweighs the injury caused by the injunction and whether the injunction would be adverse to the public interest, the Secretary claims that "the entire election administration process used by the Secretary to validate submitted signatures will be called into question." Id. at 19. However, the Court discerns no such possible deleterious effect on the Secretary's signature verification system, which appears to be working efficiently and effectively. The Secretary also claims that "[o]ther disqualified candidates may similarly seek court orders to place them on the primary ballot," id. at 20, but the Secretary has not identified any other candidates who, like Congressman Lamborn, would have qualified for the primary ballot but for the residency requirement. Finally, the Secretary argues generally that changing the election rules midstream could shake the confidence in the integrity of our electoral system. Id. at 20. While the Secretary appropriately has concerns about the integrity of the election system, which he is charged with administering and which constitutes a compelling interest of the State, that concern is lessened here. First, there is no dispute that the contested signatures were the signatures of qualified electors that were invalidated solely because of the likely unconstitutional residency requirement. The State has no legitimate interest in an unconstitutional provision. Second, this Court declared a similar residency provision in Colo. Rev. Stat. § 1-40-112(1) concerning issue petitions unconstitutional in Independence Inst. v. Gessler, 936 F.Supp.2d 1256 (D. Colo. 2013), and enjoined the Secretary from enforcing it. Id. at 1281. It cannot come as a surprise that a person prejudiced by the residency requirement in Colo. Rev. Stat. § 1-4-905(1) would challenge its constitutionality under Yes on Term Limits, Inc., yet the State has not taken steps to remove this requirement. The Court finds that both of the final two preliminary injunction factors weigh strongly in favor of plaintiffs and that, overall, plaintiffs have made a sufficient showing to justify the issuance of a mandatory injunction.
Wherefore, it is
[a]n elector should be able to sign a petition, thereby expressing support for allowing the candidate's name to appear on the ballot, without having to worry that subsequent challenges to the circulator's residency will discount all of the petition signers. That is particularly true in the new era of signature verification, which ensures that a candidate's support comes from real people irrespective of the circulator's residence or registration status.
Secretary's Brief at 21, Kuhn v. Williams, No. 18SA176 (Colo. 2018) (slip op.). Nevertheless, the Arringtons and Ms. Kroeker should have filed their constitutional claims shortly after the Kuhn petitioners filed their Colo. Rev. Stat. § 1-1-113 petition.
