934 F.3d 1134
10th Cir.2019Background
- Colorado adopted Amendment 71 (Art. V, §1(2.5)), requiring initiative petitions to include signatures equal to at least 2% of registered electors in each state senate district, in addition to statewide signature thresholds.
- Plaintiffs (initiative proponents) alleged this dilutes signatures from voters in more heavily registered districts versus less-registered districts, violating Equal Protection and the First Amendment.
- The district court granted judgment for Plaintiffs on the pleadings; defendant appealed. The Tenth Circuit reviews that ruling de novo.
- The factual allegations include substantial variation in registered-voter counts across equally populated state senate districts (districts are approximately equal by total population).
- The majority held Evenwel v. Abbott controls and reversed, entering judgment for the defendant on all claims; a dissent argued Evenwel is distinguishable and would affirm the district court on Equal Protection and remand First Amendment claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equal Protection (one-person, one-vote) — do unequal registered-voter counts across equally populated senate districts make Section 2.5 unconstitutional? | Section 2.5 bases signature requirements on registered voters, and because registered-voter counts vary widely, signatures in populous-registrant districts are diluted compared to signatures in sparsely-registrant districts. | Districts are equal by total population; Evenwel permits use of total population as the baseline, so Section 2.5 does not violate Equal Protection. | Majority: Evenwel governs; no Equal Protection violation where districts are equal by total population — judgment for defendant. Dissent: Evenwel is distinguishable; would find a violation and affirm district court. |
| First Amendment — increased cost/difficulty of ballot access (burden on speech/association) | Section 2.5 materially increases cost and difficulty of qualifying initiatives, burdening political speech and associational rights. | Laws that determine the process of enacting legislation (procedural signature requirements) do not implicate First Amendment protection for campaign speech in the same way as laws that dictate communicative conduct. Walker controls. | Majority: Claim fails; process rules do not give rise to a cognizable First Amendment claim — judgment for defendant. |
| First Amendment — compelled speech (forcing proponents to engage/speak in districts they would avoid) | Requirement compels core political speech and associational activity in districts proponents would otherwise avoid; failing to comply means initiative fails. | Failure of an initiative to qualify is not a government-imposed punishment or regulatory compulsion that rises to compelled-speech; procedural consequences do not equal compelled speech. | Majority: No compelled-speech claim; the consequence (initiative failing to reach ballot) is not a state-imposed penalty that coerces speech — judgment for defendant. Dissent: Would remand First Amendment claims to district court for initial consideration. |
| Procedural posture / standard (judgment on pleadings; evidence) | Plaintiffs proceeded on pleadings alleging registered-voter disparities; district court entered judgment for Plaintiffs without an evidentiary hearing. | Defendant preserved objections to the procedure and argued Evenwel and precedent; majority assumed plead facts true but resolved claim as matter of law. | Court: Review de novo; even accepting plaintiffs’ alleged facts, legal claims fail under Evenwel and binding precedent; reverse district court and enter judgment for defendant. |
Key Cases Cited
- Reynolds v. Sims, 377 U.S. 533 (1964) (one-person, one-vote principle for state legislative apportionment)
- Evenwel v. Abbott, 136 S. Ct. 1120 (2016) (states may draw districts using total population; Equal Protection does not require using voter-eligible population)
- Meyer v. Grant, 486 U.S. 414 (1988) (regulation that dictates who may engage in core initiative-related speech can implicate the First Amendment)
- Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc) (distinguishes process rules from regulations of communicative conduct; procedural barriers to initiative success do not necessarily violate the First Amendment)
- Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012) (upholding geographic distribution signature requirements where districts are equally populated)
- Moore v. Ogilvie, 394 U.S. 814 (1969) (statewide distributive signature requirements that disproportionately burden populous areas can violate Equal Protection)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (balancing test for evaluating burdens on voting and associational rights)