In re Interrogatory Propounded by Hickenlooper, 2013 CO 62

Background

In June–September 2013 recall petitions were certified for Colorado State Senators Angela Giron and John Morse and a recall election was scheduled for September 10, 2013. This Court received a Governor's interrogatory asking whether Article XXI, §3 of the Colorado Constitution (the "prior participation" rule) — which provides that a vote for a successor candidate is not counted unless the voter also voted for or against the recall question — conflicts with the U.S. Constitution.
The Court exercised its advisory/original jurisdiction on an expedited basis because the issue implicated the upcoming election and the fundamental right to vote.
The majority held the prior participation requirement unconstitutional under the First and Fourteenth Amendments and issued an order invalidating the provision; a detailed opinion explaining that order followed.
The majority reasoned the provision both compels speech (First Amendment) by forcing voters to take a position on the recall to have their successor vote counted, and severely burdens the right to vote (Fourteenth Amendment) by nullifying otherwise valid successor votes when a voter abstains on the recall question.
The Court applied the flexible balancing test from Burdick v. Takushi (weigh burden on associational/voting rights against state interests) and concluded the burden was severe and not justified; the opinion relied in part on Partnoy v. Shelley, a federal district court decision addressing a similar California provision.
Justice Marquez (joined by Justice Coats) dissented, arguing the Court improvidently exercised its rare advisory power on a speculative, individual-rights claim without a record, and that legitimate state/regulatory interests and historical rationales for the provision were not adequately developed or weighed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Colorado's prior participation rule compels speech in violation of the First Amendment	Rule forces voters to speak on the recall (or forfeit successor vote), violating the right to refrain from speaking	Rule is a reasonable electoral regulation tying successor-selection to the threshold recall decision in a unified recall election	Held unconstitutional — it compels speech and severely burdens First Amendment associational rights
Whether the rule severely burdens the fundamental right to vote under the Fourteenth Amendment	Nullifies otherwise legal successor votes when a voter abstains on the separate recall question, creating a severe burden without sufficient justification	Rule serves legitimate administrative and structural interests in combining recall threshold and successor selection and ensures those electing a successor also decided to recall	Held unconstitutional — the rule severely burdens voting rights and the State failed to justify the burden
Appropriate standard of review for election regulation challenged on First/14th Amendment grounds	Apply Burdick balancing: weigh character/magnitude of burden against state interests	Same standard; State urged deference to electoral regulation and historical practice	Court applied Burdick balancing and found burden severe and unjustified
Whether Court should have exercised advisory/original jurisdiction and decided issue on an expedited basis	Governor: matter is publici juris because it implicates the fundamental right to vote immediately before an election	Dissent: matter is speculative, individual, and could be litigated in ordinary channels; advisory power should be used sparingly	Court exercised jurisdiction, concluding the imminent election and public interest warranted advisory opinion; dissent would have declined

Key Cases Cited

Reynolds v. Sims, 377 U.S. 533 (constitutional protection of the right to vote and representative government)
Harman v. Forssenius, 380 U.S. 528 (right to vote is preservative of all rights)
Wooley v. Maynard, 430 U.S. 705 (First Amendment protects the right to refrain from speaking)
Burdick v. Takushi, 504 U.S. 428 (flexible balancing test for election regulations)
Storer v. Brown, 415 U.S. 724 (states may regulate elections but practical regulations required for order)
Anderson v. Celebrezze, 460 U.S. 780 (framework for evaluating burdens on ballot access and political participation)
Dunn v. Blumstein, 405 U.S. 330 (right to participate in elections on equal basis)
Partnoy v. Shelley, 277 F. Supp. 2d 1064 (C.D. Cal. 2003) (federal district court holding similar prior-participation rule unconstitutional)