Case 1:17-cv-01007-WJM Document 23 Filed 03/27/18 USDC Colorado Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1007-WJM
WILLIAM SEMPLE, individually;
THE COALITION FOR COLORADO UNIVERSAL HEALTH CARE, a/k/a COOPERATE
COLORADO, a not-for-profit corporation;
COLORADOCAREYES, a Colorado not-for-profit corporation; and
DANIEL HAYES, individually,
Plaintiffs,
v.
WAYNE W. WILLIAMS, in his official capacity as Secretary of State of Colorado,
Defendant.

ORDER MAKING ABSOLUTE ORDER TO SHOW CAUSE

In November 2016, Colorado voters approved “Amendment 71,” which altered
the state’s citizen initiative process with respect to constitutional amendments (although
not with respect to legislation). Before Amendment 71, one could place a constitutional
amendment initiative on the ballot by gathering supporting “signatures by 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 added a new subsection 2.5 to that same section
of the Colorado Constitution, requiring supporters to gather—in addition to the fivepercent requirement—signatures from “registered electors [i.e., registered voters] who
reside in each state senate district in Colorado in an amount equal to at least two
percent of the total registered electors in the senate district” (emphasis added).

 Case 1:17-cv-01007-WJM Document 23 Filed 03/27/18 USDC Colorado Page 2 of 9

William Semple, the Coalition for Colorado Universal Health Care,
ColoradoCareYes, and Daniel Hayes (together, “Plaintiffs”) brought this action
challenging subsection 2.5, naming as the sole defendant Wayne W. Williams in his
official capacity as Colorado’s secretary of state—to whom the Court will refer simply as
“Colorado” or “the state.” Plaintiffs argued that subsection 2.5 violates Colorado
citizens’ right to equal protection under the Fourteenth Amendment of the U.S.
Constitution, and also violates certain First Amendment rights under the U.S.
Constitution.
Colorado filed a motion to dismiss, arguing that requirements such as subsection
2.5 are constitutionally permissible. (ECF No. 13.) This Court recently denied that
motion and held that subsection 2.5 violates the “one person, one vote” principle
inherent in the Equal Protection Clause because voter population varies widely between
state senate districts. See Semple v. Williams, ___ F. Supp. 3d ___, 2018 WL 858292,
at *7–15 (D. Colo. Feb. 14, 2018) (ECF No. 18 at 13–29). Given this ruling, the Court
declined to rule on Plaintiffs’ First Amendment arguments and on Plaintiffs’ argument
that requiring statewide support would not be a legitimate interest even if state senate
districts had roughly equal voter population. Id. at *2, *15 n.18 (ECF No. 18 at 5, 29
n.8).
“Because there [was] no pending cross-motion from Plaintiffs (e.g., for summary
judgment),” the Court ordered Colorado to show cause “why final judgment and a
permanent injunction should not enter.” Id. at *1 (ECF No. 18 at 2). The Court
specifically stated that “if Colorado has a good faith basis for believing it can develop
empirical data showing that vote dilution is not actually occurring as between the
2

 Case 1:17-cv-01007-WJM Document 23 Filed 03/27/18 USDC Colorado Page 3 of 9

various state senate districts, the Court will not foreclose that opportunity.” Id. at *15
(ECF No. 18 at 30). Thus, Colorado’s response to the order to show cause was its
“opportunity to request such discovery, or to state any other reason why it would be
premature to enter a permanent injunction and final judgment.” Id. (ECF No. 18 at 30–
31).
Currently before the Court is Colorado’s response (ECF No. 20) and Plaintiffs’
reply (ECF No. 22). Colorado first argues that the Court’s order impermissibly shifts the
burden of proof, requiring Colorado to demonstrate that subsection 2.5 is constitutional
rather than requiring Plaintiffs to demonstrate the opposite. (ECF No. 20 at 3–4.) This
is a purely technical objection in the present circumstances.
Plaintiffs, through their complaint, explained their challenge to subsection 2.5.
(ECF No. 1.) Colorado moved to dismiss, arguing that all of Plaintiffs’ asserted
challenges to subsection 2.5 fail as a matter of law. (ECF No. 13.) Of particular
importance here, Colorado argued that the Supreme Court’s recent decision in Evenwel
v. Abbott, 136 S. Ct. 1120 (2016), upheld state legislative districts based on total
population as opposed to voter population. (Id. at 6.) Plaintiffs responded that Evenwel
was specifically about representational equality and does not apply in the context of
citizen initiatives. (ECF No. 16 at 13–14.) Colorado then filed a reply, re-urging its view
of Evenwel. (ECF No. 17 at 2–3.)
This Court ultimately agreed with Plaintiffs that Evenwel was not relevant
because this case was not about representational equality: “with no ‘representation’ in
the ballot petition form of direct democratic rule, there is no representative equality
component of the equation to balance against the integrity of the vote. In other words,
3

 Case 1:17-cv-01007-WJM Document 23 Filed 03/27/18 USDC Colorado Page 4 of 9

there is no representation; there is only voting.” Semple, 2018 WL 858292, at *10 (ECF
No. 18 at 19). Moreover, as to lower-court cases cited by Colorado that upheld
geography-based signature-gathering requirements similar to subsection 2.5, the Court
found that they did not directly address the argument Plaintiffs made here about the
disparity between voting population and total population. Id. at *7, *11–13 (ECF No. 18
at 12–13, 22–25). The Court concluded, therefore, that “subsection 2.5 creates a
classic vote-dilution problem, demanding strict scrutiny under the Equal Protection
Clause.” Id. at *14 (ECF No. 18 at 27). The Court then subjected subsection 2.5 to the
test articulated by Anderson v. Celebrezze, 460 U.S. 780 (1983), and found that
subsection 2.5 did not withstand such scrutiny. Id. at *5–6, *14 (ECF No. 18 at 9–11,
27–29).
In short, Colorado had a full opportunity to explain why, in its view, subsection
2.5 is constitutional. The Court has determined that Colorado’s arguments are not
persuasive. It is not clear what is left to decide, regardless of who bears the burden.
The Court therefore rejects this argument.
Colorado next objects that entering a final judgment and permanent injunction at
such an early stage would deprive it of “standard procedural rights granted by the
Federal Rules of Civil Procedure, such as the ability to answer the complaint, a
meaningful opportunity to develop defenses through fact and expert discovery, and the
right to present evidence in support of those defenses at either the dispositive motion or
trial stages.” (ECF No. 20 at 4.) This is precisely why the Court asked Colorado to
inform it of any “good faith basis for believing it can develop empirical data showing that
vote dilution is not actually occurring as between the various state senate districts,” and
4

 Case 1:17-cv-01007-WJM Document 23 Filed 03/27/18 USDC Colorado Page 5 of 9

of “any other reason why it would be premature to enter a permanent injunction and
final judgment.” Semple, 2018 WL 858292, at *15 (ECF No. 18 at 30–31).
Colorado, however, does not state any means by which it can demonstrate that
vote dilution is not occurring. In particular, Colorado does not deny Plaintiffs’ claim
(which is likely judicially noticeable in any event) that the registered voter population
varies by as much as 60% among Colorado’s state senate districts. (See ECF No. 1
¶ 40.) Colorado instead seeks an opportunity to develop other forms of discovery, such
as discovery establishing Colorado’s “compelling state interest in ensuring that initiated
constitutional amendments have some level of support from citizens across the State
before they appear on the statewide ballot.” (ECF No. 20 at 7; see also id. at 7–10.)
But in the present posture, this is irrelevant. The Court expressly avoided any ruling on
the question of whether statewide support is a valid state interest. Semple, 2018 WL
858292, at *15 n.18 (ECF No. 18 at 29 n.8). Such a question would only be ripe if
Colorado amended subsection 2.5 to require signatures in geographic districts (be they
state senate districts or otherwise) of roughly equal voter population.
Colorado also seeks an opportunity to develop expert testimony that redrawing
its state senate districts to embrace roughly equal total population (as required under
the United States and Colorado Constitutions) and roughly equal voter population is
probably impossible. (ECF No. 20 at 10–11.) Again, this is irrelevant. There is no a
priori requirement that the relevant geographic unit in any geography-based signaturegathering must be a state senate district, or any sort of legislative district. It simply must
be a geographic district with roughly equal registered voter population as compared to
all the other relevant geographic districts—assuming, again, that geography-based
5

 Case 1:17-cv-01007-WJM Document 23 Filed 03/27/18 USDC Colorado Page 6 of 9

signature-gathering requirements are constitutional, which this Court does not address.
As it happens, subsection 2.5 looks to state senate districts. Thus, without
amendment, it is unconstitutional unless Colorado can reshape its state senate districts
to embrace roughly equal total and registered voter population. The Court does not
doubt the difficulty—the practical impossibility, perhaps—of that task. But that only
means that subsection 2.5’s drafters made an unwise choice. It does not somehow give
Colorado a compelling interest in enforcing subsection 2.5. 1
Finally, Colorado sets forth the upcoming deadlines related to ballot initiatives in
the 2018 election cycle and argues that the Court, if it enters an injunction, should stay
the injunction through the November general election. The relevant dates are as
follows:
•

April 6, 2018 – Last day to file a proposed initiative with
the Secretary for consideration by Title Board for
measures that will appear on the November 2018
General Election ballot.

•

April 18, 2018 – Last Title Board meeting, and thus last
opportunity to have an initiative title set, for measures
that will appear on the November 2018 General Election
ballot. § 1-40-106(1), C.R.S.

•

August 6, 2018 – Deadline for initiative proponents to file
signed initiative petitions with the Secretary for the

1

In a footnote, Colorado additionally argues that this Court erroneously applied the
Anderson v. Celebrezze test to subsection 2.5 because “Anderson was not an Equal Protection
case, but rather a First Amendment case.” (ECF No. 20 at 7 n.5.) The Court’s previous order
explicitly stated that Anderson was a First Amendment case and also explained why applying it
in an Equal Protection context was nonetheless appropriate: “Although the Supreme Court in
Anderson acknowledged that it was applying this test with emphasis on the plaintiffs’ First
Amendment interests, it characterized the test as derived from and consistent with its previous
Equal Protection cases regarding ‘one person, one vote.’” Semple, 2018 WL 858292, at *6
(ECF No. 18 at 11). Moreover, the Tenth Circuit applies the Anderson test to “one person, one
vote” challenges. See Blomquist v. Thomson, 739 F.2d 525, 527–28 (10th Cir. 1984). The
Anderson test was therefore the appropriate analytical tool.

6

 Case 1:17-cv-01007-WJM Document 23 Filed 03/27/18 USDC Colorado Page 7 of 9

November 2018 General Election ballot.
•

September 5, 2018 – Last day for the Secretary to
complete his review of submitted initiative petitions and
declare them sufficient or insufficient, assuming
proponent submits petitions on the August 6 deadline.
§ 1-40-116(2), C.R.S.

•

September 10, 2018 – Deadline for the Secretary to
certify the ballot order and content for each county, and
to transmit the same to each county clerk and recorder.
§ 1-5-203(1), C.R.S.

•

November 6, 2018 – General Election.

(ECF No. 20 at 12.)
Colorado has not stated a sufficient reason for postponing the effective date of
any injunction. An injunction against enforcement of subsection 2.5 would mean that
initiative proponents would only need to gather, and the Secretary of State would only
need to verify, “signatures by 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). In other words, an
injunction would require proponents and the Secretary of State to do only what they
have been doing for many years before Amendment 71 became law—which is less
work than they would be required to do if this Court stayed the effective date of its
injunction. A stay is therefore inappropriate.
The Court now turns to the factors it must consider before awarding permanent
injunctive relief:
According to well-established principles of equity, a plaintiff
seeking a permanent injunction must satisfy a four-factor test
before a court may grant such relief. A plaintiff must
demonstrate: (1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary
7

 Case 1:17-cv-01007-WJM Document 23 Filed 03/27/18 USDC Colorado Page 8 of 9

damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between the
plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a
permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Despite the Court’s
order to show cause why a permanent injunction should not enter, Colorado does not
argue from (or even cite) these factors. The Court nonetheless finds that they favor
Plaintiffs.
As to irreparable injury and inadequacy of money damages, vote dilution is a
constitutional harm and constitutes irreparable injury—it cannot be repaired by later,
undiluted votes, or by money damages. Cf. 11A Charles Alan Wright et al., Federal
Practice & Procedure § 2948.1 n.26 and accompanying text (3d ed., Apr. 2017 update)
(stating, in the preliminary injunction context, that “[w]hen an alleged deprivation of a
constitutional right is involved . . . most courts hold that no further showing of irreparable
injury is necessary”).
The balance of hardships also favors Plaintiffs: “when the law that voters wish to
enact is . . . unconstitutional, their interests do not outweigh [a challenger’s interest] in
having his constitutional rights protected.” Awad v. Ziriax, 670 F.3d 1111, 1131–32
(10th Cir. 2012).
Finally, “it is always in the public interest to prevent the violation of a party’s
constitutional rights.” Id. at 1132. 2
2

Even if final judgment and a permanent injunction were not appropriate at this phase,
the Court would enter a preliminary injunction (which would be immediately appealable), or, at a
minimum, certify its February 14, 2018 order to the Tenth Circuit under 28 U.S.C. § 1292(b) and
stay proceedings in this Court. The parties’ dispute would thus come before the Tenth Circuit
sooner rather than later, as it should.

8

 Case 1:17-cv-01007-WJM Document 23 Filed 03/27/18 USDC Colorado Page 9 of 9

Accordingly, for the reasons set forth above, the Court ORDERS as follows:
1.

The Court’s Order to Show Cause (ECF No. 18) is MADE ABSOLUTE;

2.

The State of Colorado, its officers, agents, servants, employees, attorneys, and
any other person or entity in active concert or participation with any of the
foregoing, are PERMANENTLY ENJOINED from enforcing Colo. Const. art. V,
§ 1(2.5); and

3.

The Clerk shall enter final judgment in favor of Plaintiffs and against Defendant
and shall terminate this case. Plaintiffs shall have their costs upon compliance
with D.C.COLO.LCivR 54.1.
Dated this 27th day of March, 2018.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

9