In re Interrogatory Propounded by Hickenlooper

2013 CO 62, 312 P.3d 153, 2013 WL 5706767, 2013 Colo. LEXIS 771

• Court: Supreme Court of Colorado
• Decided: October 21, 2013
• Docket: Supreme Court Case No. 13SA214
• Status: Published

Opinions

JUSTICE RICE

delivered the Opinion of the Court.

1 1 The Governor of the State of Colorado submitted an Interrogatory to this Court pursuant to Article VI, section 3, of the Colorado Constitution asking whether the prior participation requirement 'in Article XXI, section 3, of the Colorado Constitution conflicts with the First and Fourteenth Amendments to the United States Constitution. This Court exercised its original jurisdiction and issued an Order holding that the prior participation requirement in Article XXI, section 8, conflicts with the First and Fourteenth Amendments to the United States Constitution. This opinion explains that Order.

I. Facts and Procedural History

T 2 In June 2013, citizens in Pueblo and El Paso County certified petitions to recall State Senator Angela Giron and State Senator John Morse. On July 19, 2018, the Governor set a September 10 recall election for both Morse's and Giron' s Senate seats. This recall election was the first in Colorado's history for members of the General Assembly.

T3 On August 28, 2013, with the recall election only weeks away, the Governor submitted the following Interrogatory for this Court's consideration:

Colo. Const. art. XXI, § 3 requires an elector who wishes to vote for a successor candidate in a recall election to also cast a "ballot on the recall issue. Is this requirement consistent with the First and Fourteenth Amendments to the United States Constitution?

T 4 The following Monday, August 26, this Court ordered the Governor, the Attorney General, the Secretary of State, the El Paso County Clerk and Recorder, the Pueblo County Clerk and Recorder, Senator Angela Giron, Senator John Morse, the Colorado Democratic Party, the Libertarian Party of Colorado, the Republican Party of Colorado, and any other interested persons to file briefs addressing the Governor's Interrogatory by the next morning. The Secretary of State, the Libertarian Party of Colorado joined by Gordon Roy Butt, and both Senators filed briefs within this Court's abbreviated deadline.

15 After considering the briefs, this Court took jurisdiction over the "important question" presented and issued an Order striking down the prior participation voting requirement in Colorado's Constitution:

The provision in Article XXI, Section 3, of the Constitution of the State of Colorado stating that "no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office," conflicts with the First and Fourteenth Amendments to the United States Constitution. We therefore answer the Interrogatory in the negative.

16 Consistent with our earlier Order, we now describe in detail why Article XXI, seetion 3, of the Colorado Constitution violates the First and Fourteenth Amendments to the United States Constitution. Before reaching the substance of the Governor's Interrogatory, we explain this Court's jurisdiction.

II. Jurisdiction

17 Our Constitution - commands that-when the Governor requires and a "solemn oceasion{]' presents itself-this Court will offer its opinion "upon important questions." , Colo. Const. art. VI, § 8. In determining whether to exercise original jurisdiction pursuant to this constitutional provision, "It is impossible to state any absolute rule by which the sufficiency of this importance and the degree of this solemnity can be determined." In re Senate Resolution Relating to Senate Bill No. 65, 12 Colo. 466, 468, 21 P. 478, 479 (1889). To be sure, the Governor's request, without more, does not create a "solemn occasion" demanding this Court's attention. For example, this Court refused to exercise its extraordinary jurisdiction in 1948 where doing so would resolve an individualized and speculative dispute. See In re Interrogatories by Governor, 111 Colo. 406, 411, 141 P.2d 899, 901-02 (1943). In refusing to assert jurisdiction, this Court explained that answering the Governor's interrogatory "in effect would be to attempt, without the interested parties being before us, to prejudge a private controversy, which may be brought before us through regular judicial channels." 111 Colo. at 411, 141 P.2d at 902. Thus, a speculative and private dispute masquerading as an interrogatory from the Governor does not warrant this Court's original jurisdiction.

¶ 8 Likewise, in 1960, this Court declined to exercise original jurisdiction when the Governor submitted eleven interrogatories for this Court to consider "before the expiration of the thirty day period in which [the Governor had] to sign or veto the measure." In re Interrogatories Propounded by McNichols Concerning Senate Bill No. 34, 142 Colo. 188, 189, 350 P.2d 811, 812 (1960). The interrogatories each implicated the intricate interplay between pending legislation and various constitutional provisions. For instance, the fourth interrogatory asked:

Does Senate Bill No. 34 contravene Article X Section 7 in that under the provisions thereof, particularly Section 7, the power granted corporate authorities of a city or town to impose sales or use taxes for municipal purposes is conditioned upon prior imposition of such taxes for county purposes by the county commissioners of the county in which such city or town is located?

142 Colo. at 190, 350 P.2d at 812.

¶ 9 Faced with ten more interrogatories of the same ilk, a divided Court declined to exercise original jurisdiction because it doubted the "wisdom of prejudging ... complex legal problems and fundamental constitutional questions in proceedings like this." 142 Colo. at 192, 350 P.2d at 813. The Court, moreover, did not read article VI, section 3, to require it to "act when possible prejudice may well result later to our citizens whose rights are protected by both the state and federal constitutions." Id.

¶ 10 The single question presented here is different. Unlike the aforementioned, very fact-specific cases, this Interrogatory asks this Court to consider whether a Colorado Constitutional provision governing the operation of a recall election conflicts with the United States Constitution. The Governor's Interrogatory, in other words, does not involve pending legislation that, onee enacted, might rise or fall on the merits of an individual controversy. Nor does it involve an individualized or speculative dispute between hypothetical private parties. Rather, the single question presented by this "solemn occasion" involves citizens' fundamental right to vote in a fast-approaching election.

¶ 11 Executive interrogatories must involve questions "publici juris,"¹ not merely questions of private rights. Wheeler v. N. Colo. Irrig. Co., 9 Colo. 248, 252, 11 P. 103, 105 (1886). The- Governor's Interrogatory implicates the very essence of the publici juris doctrine, which involves those questions "where the interest of the state at large is directly involved ... or the liberty of its citizens menaced." 9 Colo. at 253, 11 P. at 105.

¶ 12 The state interest in this matter is clear: the right to vote freely "is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 IN RE HICKENLOOPER Colo. 157 Cite as 312 P.3d 153 (Colo. 2013) L.Ed.2d 506 (1964), see also § 1-7.5-102, C.R.S. (2013) ("[Slelf-government by election is more legitimate and better accepted as voter participation increases."); Bruce v. City of Colo. Springs 971 P.2d 679, 684 (Colo.App.1998) ("[A] compelling state interest exists in having voters fully participate in the election process."). [ 13 The right to vote also implicates the liberties of Colorado's citizens; indeed, the right to vote is considered "fundamental" because it is ultimately "preservative of all rights." See Harman v. Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, 14 LEd2d 50 (1965) (citation omitted). "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1228 (Colo.2008) (citation omitted). T 14 Other state supreme courts have held cases implicating their citizens' right to vote to be "publici juris." See, eg., Hutcheson v. Gonzales, 41 NM. 474, 71 P.2d 140, 151 (1937); State ex rel. Fosser v. Lavik, 9 N.D. 461, 83 N.W. 914, 914-15 (1900) (holding that the case presented a question publici juris because it involved "the exercise of the elective franchise, the most sacredly guarded franchise granted by the state"). Similarly, the Rhode Island Supreme Court exercised its advisory opinion authority in 2004, explaining that it did so to avoid chaotic post-hoc decision making in the elections context: Because we believe the [referendum] question ... to be unconstitutional, to delay the issuance of our opinion would only postpone the inevitable. If we were to sit idly by while an unconstitutional question was submitted to the voters, only to later issue a binding decision declaring ... the referendum question void, chaos might well ensue. By delivering our advisory opinion before the question is submitted to the voters, we give credence to this Court's recognition of the prevailing public policy in favor of finality and validity of the voting process in this state ... [and] the strong preference for resolving election issues before the voters have spoken. In re Advisory Opinion to Governor, 856 A.2d 820, 826-27 (R.1.2004). { 15 Indeed, when assessing voters' fundamental right to vote in the moments preceding an election, there are no do-overs. See Erickson v. Blair, 670 P.2d 749, 754 (Colo. 1983) ("[The right to vote is a fundamental right of the first order."); W-470 Concerned Citizens v. W-470 Highway Auth., 809 P.2d 1041, 1048 (Colo,App.1990) ("If ... the conduct sought to be redressed is peculiar to a particular election, the occurrence of the election itself will moot the controversy."). { 16 We therefore conclude that this solemn occasion requires that we give our opinion upon the important question in the Governor's Interrogatory. See Colo. Const. art. VI, § 8. III Analysis 1 17 The portion of Article XXI, section 3, 'of the Colorado Constitution at issue provides that a vote for a successor candidate does not count "unless the voter also voted for or against the recall of such person sought to be recalled from said 'office." Put simply, this provision conditions a voter's ability to vote for a replacement candidate upon the voter's affirmative participation in answering the recall question. This prior participation requirement cannot pass constitutional muster because it severely burdens voters' First and Fourteenth Amendment rights. [2,831 118 "The right to vote freely for the candidate of one's choice is of the essence of a democratic society." Reynolds, 877 U.S. at 555, 84 S.Ct. 1862. As such, the Fourteenth Amendment protects citizens' right to vote because the "[oJther rights, even the most basic, are illusory if the right to vote is undermined." Id. at 560, 84 S.Ct. 1862 (internal quotation omitted). Citizens' First Amendment rights implicate the same pressing concerns: "The right to vote derives from the right of association that is at the core of the First Amendment, protected from state infringement by the Fourteenth Amendment." Storer v. Brown, 415 U.S. L.Ed.2d 506 (1964), see also § 1-7.5-102, C.R.S. (2013) ("[Slelf-government by election is more legitimate and better accepted as voter participation increases."); Bruce v. City of Colo. Springs 971 P.2d 679, 684 (Colo.App.1998) ("[A] compelling state interest exists in having voters fully participate in the election process.").

[ 13 The right to vote also implicates the liberties of Colorado's citizens; indeed, the right to vote is considered "fundamental" because it is ultimately "preservative of all rights." See Harman v. Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, 14 LEd2d 50 (1965) (citation omitted). "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1228 (Colo.2008) (citation omitted).

T 14 Other state supreme courts have held cases implicating their citizens' right to vote to be "publici juris." See, eg., Hutcheson v. Gonzales, 41 NM. 474, 71 P.2d 140, 151 (1937); State ex rel. Fosser v. Lavik, 9 N.D. 461, 83 N.W. 914, 914-15 (1900) (holding that the case presented a question publici juris because it involved "the exercise of the elective franchise, the most sacredly guarded franchise granted by the state"). Similarly, the Rhode Island Supreme Court exercised its advisory opinion authority in 2004, explaining that it did so to avoid chaotic post-hoc decision making in the elections context:

Because we believe the [referendum] question ... to be unconstitutional, to delay the issuance of our opinion would only postpone the inevitable. If we were to sit idly by while an unconstitutional question was submitted to the voters, only to later issue a binding decision declaring ... the referendum question void, chaos might well ensue. By delivering our advisory opinion before the question is submitted to the voters, we give credence to this Court's recognition of the prevailing public policy in favor of finality and validity of the voting process in this state ... [and] the strong preference for resolving election issues before the voters have spoken.

In re Advisory Opinion to Governor, 856 A.2d 820, 826-27 (R.1.2004).

{ 15 Indeed, when assessing voters' fundamental right to vote in the moments preceding an election, there are no do-overs. See Erickson v. Blair, 670 P.2d 749, 754 (Colo. 1983) ("[The right to vote is a fundamental right of the first order."); W-470 Concerned Citizens v. W-470 Highway Auth., 809 P.2d 1041, 1048 (Colo,App.1990) ("If ... the conduct sought to be redressed is peculiar to a particular election, the occurrence of the election itself will moot the controversy.").

{ 16 We therefore conclude that this solemn occasion requires that we give our opinion upon the important question in the Governor's Interrogatory. See Colo. Const. art. VI, § 8.

III - Analysis

1 17 The portion of Article XXI, section 3, 'of the Colorado Constitution at issue provides that a vote for a successor candidate does not count "unless the voter also voted for or against the recall of such person sought to be recalled from said 'office." Put simply, this provision conditions a voter's ability to vote for a replacement candidate upon the voter's affirmative participation in answering the recall question. This prior participation requirement cannot pass constitutional muster because it severely burdens voters' First and Fourteenth Amendment rights.

118 "The right to vote freely for the candidate of one's choice is of the essence of a democratic society." Reynolds, 877 U.S. at 555, 84 S.Ct. 1862. As such, the Fourteenth Amendment protects citizens' right to vote because the "[oJther rights, even the most basic, are illusory if the right to vote is undermined." Id. at 560, 84 S.Ct. 1862 (internal quotation omitted). Citizens' First Amendment rights implicate the same pressing concerns: "The right to vote derives from the right of association that is at the core of the First Amendment, protected from state infringement by the Fourteenth Amendment." Storer v. Brown, 415 U.S. , 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974).

¶ 19 "It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute." Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 LEd.2d 245 (1992). Rather, the United States Constitution provides that States may prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives." U.S. Const. art. I, § 4, cl. 1; see also Burdick, 504 U.S. at 433, 112 S.Ct. 2059 ("States retain the power to regulate their own elections."). As a result, the United States Supreme Court has crafted a flexible balancing test for considering "the propriety of a state election law [in light of citizens'] First and Fourteenth Amendment rights." Id. at 434, 112 S.Ct. 2059.

¶ 20 The "flexible standard" requires courts to "weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments" against the State's interests "as justifications for the burden imposed by its rule." Id. (internal quotation marks omitted). Essentially, the severity of the burden on individuals' voting rights determines the constitutionality of the State's election procedure. See id.

¶ 21 With this legal framework in mind, we address how the prior participation requirement in Article XXI, section 8, burdens voters' First Amendment rights. Thereafter, we detail how this requirement also severely burdens voters' Fourteenth Amendment rights.

A. First Amendment

¶ 22 The prior participation requirement severely burdens voters' First Amendment associational rights by unconstitutionally compelling voters to speak on the recall question.

¶ 23 The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech." Necessarily, this protection extends to a citizen's decision to not speak: "The citizen is entitled to ... reject certain ideas or influences without Government interference or control." Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1052 (Colo.2002) (quoting United States v. Playboy Entm' t Grp., Inc., 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)). In this context, then, the First Amendment protects voters' "right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Indeed, "[the right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind'." Id. The prior participation requirement commands just the opposite. A citizen who wants to refrain from opining on the recall question, but who still wants to express an opinion about which successor candidate should be elected, is forced to forfeit her vote entirely for that successor candidate.² The provision thus compels voters, if they wish for their vote to matter, to take a position on the recall where they may have no opinion on- or even categorically oppose-such elections. Such a drastic measure undermines our founders' belief "that freedom to think as you will and to speak as you think are means indispensable to the ... spread of political truth." Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring), overruled in part by Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).

¶ 24 As such, the prior participation provision is plainly unconstitutional. "A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts." Wooley, 430 U.S. at 714, 97 S.Ct. 1428. The mere fact that a voter who wishes to abstain from answering the recall question can still go through the motions of casting an ultimately meaningless ballot simply cannot salvage the prior participation requirement. "Concomitant with the right to cast a vote is the right to have that vote counted without undue interference with the exercise of that right." Meyer v. Lamm, 846 P.2d 862, 872 (Colo. 1998).

1 25 The prior participation requirement in Colorado's Constitution thus improperly burdens voters' associational rights by compelling speech and therefore violates the First Amendment to the United States Constitution.

B. Fourteenth Amendment

126 The prior participation requirement also effectuates a severe restriction on citizens' fundamental right to vote. It completely invalidates a voter's otherwise legal ballot for a successor candidate where that voter simply fails-or chooses not-to vote on the wholly distinct recall issue. < For example, a voter could wish to express an opinion about the propriety of the recall elections without also wishing to choose a successor candidate. Conversely, a voter could wish to affirmatively refrain from answering the recall question due to philosophical or political objections to (or disinterest regarding) the recall of the incumbent official but nevertheless wish to cast a vote for a replacement candidate in the event that the incumbent is ousted. The prior participation requirement penalizes the latter set of voters who, for whatever reason, do not wish to participate on the recall question without offering the State any practical or administrative gain. No compelling (or even rational) justification exists to nullify a voter's entire ballot simply because he or she refrains from answering the initial recall question.

127 The severity of this burden is best understood juxtaposed against a regulation the United States Supreme Court previously approved. In Burdick, the Court upheld Ha-wail's prohibition on write-in voting because it did "not impermissibly burden the right to vote." 504 U.S. at 430, 112 S.Ct. 2059. Most importantly, the write-in prohibition at issue helped prevent Hawaii's elections from unraveling. Id. at 487-838, 112 S.Ct. 2059. It barred late participants from participating in the election to maintain the integrity of Ha-wail's election process. See id. The Court opined that the regulation at issue merely required candidates "to act in a timely fashion if they wish to express their views in the voting booth." Id. at 488, 112 S.Ct. 2059; see also Storer, 415 U.S. at 780, 94 S.Ct. 1274 ("[Als a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes."). The Court contrasted the limited administrative convenience rationale supporting Hawaii's write-in laws with the severe burdens imposed by laws that more fundamentally interfered with voters' rights: "Reasonable regulation of elections does not require voters to espouse positions that they do not support." Bur-dick, 504 U.S. at 438, 112 S.Ct. 2059.

28 In this case, the State's prior participation requirement unconstitutionally compels voters to express a view on the question of whether to recall an elected official,. The voter must espouse a position even if she categorically opposes the recall mechanism, or, more benignly, has no opinion on whether a candidate should be recalled. Accordingly, though the extraordinary procedural posture of this case does not allow a fuller "weighing" of the State's interests, the United States Supreme Court's precedent (and common sense) make clear that virtually no regulation that compels voters to take a position can pass constitutional muster. - Seq eg., Anderson v. Celebresse, 460 U.S. 780, 792-98, 108 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (opining, in the ballot-access context, that "it is especially difficult for the State to justify a restriction that limits political participation" by a "group whose members share a particular viewpoint"); Dunn v. Blumstein, 405 U.S. 830, 386, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) ("In decision after decision, [the United States Supreme] Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.").

129 At least one other court wrestling with this unique question has reached the same conclusion. In Partnoy v. Shelley, 277 F.Supp.2d 1064, 1071 (§8.D.Cal2003), plaintiffs challenged a nearly identical provision in the California Elections Code requiring voters in a recall election to vote on the recall issue or have their vote concerning potential successors forfeited. Like this Court, the Partnoy court conducted the necessary balancing test without the benefit of a full ree-ord because the issue arose at the pleadings stage of the litigation. Id. at 1072. That court nonetheless concluded that the prior participation requirement "substantially burdens the right of citizens of California to vote on a'successor governor in the event of a recall by conditioning the counting of that -vote on whether the voter cast a ballot on the question of recall." Id. at 1078. This burden, the court reasoned, "neither advance[s] a state interest of compelling importance nor even an important regulatory interest of the State." Id. Thus, faced with an identical issue, and a comparable procedural posture, a federal court in California reached the same conclusion we do here: a state's prior participation requirement does not square with voters' fundamental right to vote.

130 Given that "any restrictions on [the right to vote} strike at the heart of representative . government," Reynolds, 877 U.S. at 555, 84 S.Ct. 1862, the prior participation requirement at issue conflicts with voters' fundamental right to vote under the Fourteenth Amendment. See also Ayers-Schoff-ner v. DiStefono, 37 F.3d 726, 727 (Ist Cir. 1994) (holding a requirement that limited the new election of a school board to those "voters who participated in the original balloting" to be unconstitutional and "almost inconceivable").

IV. Conclusion

{31 The provision in Article XXI, section 3, of the Constitution of the State of Colorado stating that "no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office," conflicts with the First and Fourteenth Amendments to the United States

Constitution. We therefore answer the Governor's Interrogatory in the negative.

132 The provision in Article XXI, section 3, of the Constitution of the State of Colorado stating that "no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office," conflicts with the First and Fourteenth Amendments to the United States Constitution. We therefore answer the Governor's Interrogatory in the negative.

{33 JUSTICE MARQUEZ dissents, and JUSTICE COATS joins the dissent.

1 . Black's Law Dictionary defines "publici juris" as "[olf public right; of importance to or available to the public." 1350 (9th ed. 2009) (emphasis added).

2 . The severity of the burden imposed by the prior participation requirement comes into sharper relief when one considers that, in a race involving multiple successor candidates, a voter's preference among these candidates-who may differ sharply in ideology-would be completely nullified if he or she failed or affirmatively decided not to indicate a position regarding the recall itself.