Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:16-cv-02986-WYD-NYW

POLLY BACA and ROBERT NEMANICH

Plaintiffs

v.

JOHN W. HICKENLOOPER JR., in his official capacity as of Colorado, CYNTHIA H. COFFMAN, in her official capacity as Attorney General of Colorado, and WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State.

Defendant.

INTERVENOR COLORADO REPUBLICAN COMMITTEE'S MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Plaintiffs, who have been elector candidates since April 16 and who have been electors

since November 8, filed this lawsuit in December, seeking to change the ground rules under

which the operates only days before the College meets. Those ground rules—

enacted by Colorado and most other States in the exercise of their “plenary” power (McPherson

v. Blacker, 146 U.S. 1, 25 (1892)) to “direct” the “manner” of appointing electors (U.S. Const.

art. II, § 1)—require electors to vote for the winner of the State’s popular vote. Plaintiffs’ last-

minute effort to upend these laws threatens to disrupt the orderly transition of power that our

nation embraces, notwithstanding President Obama’s instruction to his team to “work as hard as Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Colorado Page 2 of 19

[they] can to make sure that this is a successful transition.”1 On both procedural and substantive

grounds, Plaintiffs’ eleventh-hour request for extraordinary relief should be denied.

A. Laches Bars Plaintiffs’ Claims

Laches bars a claim if (1) the plaintiff engages in “inexcusable delay” and (2) “prejudice”

results. In re Centric Corp., 901 F.2d 1514, 1519 (10th Cir. 1990). In the fast-paced context of

elections for public office, even a delay of “days” may be too long. Martin v. Dicklich, 823 N.W.

2d 336, 341 (Minn. 2012).

Today’s case is a textbook example of inexcusable delay in bringing an election-related

challenge. Plaintiffs became candidates for elector eight months ago, “on April 16, 2016,”

Compl. ¶ 11. Plaintiffs knew then that Colorado required electors to vote for the winner of the

State’s popular vote. Colo. Rev. Stat. § 1-4-304(5). Four months ago, in July, Donald Trump

became the Republican nominee and became the Democratic nominee for

President. Plaintiffs knew then that one of those candidates would win Colorado’s electoral

votes, and that one would be elected President. And a month ago, on November 8, Secretary

Clinton won the Colorado popular vote, while Mr. Trump won a majority of the country’s

electoral votes. Plaintiffs knew then that Colorado law precluded them from conspiring to thwart

the will of Colorado voters (by not voting for the state winner) and indeed the nation as a whole

(by instigating a plot to elect neither Clinton nor Trump).

Plaintiffs missed opportunity after opportunity to file this lawsuit. Did they sue after

joining their party’s electoral slates? No. Did they sue after learning who the presidential

1 https://www.washingtonpost.com/news/post-politics/wp/2016/11/10/obama-to-welcome-trump- to-white-house-for-first-meeting-since-election/?utm_term=.72299e60ca98

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nominees were? No. Did they sue immediately after the presidential election? No. Plaintiffs

waited until the last possible moment to run to court. They have no excuse for this delay.

Plaintiffs’ delay has gravely prejudiced millions of Coloradans. In the months leading up

to November 8, Colorado voters endured a lengthy, expensive, hard-fought Presidential election.

The voters reflected and debated about the candidates’ qualifications, records, and plans. And on

November 8, they cast their ballots—on the understanding that state law required the electors to

respect their will. They surely expected their collective choice would be honored when the

Electoral College meets this December. Yet days before that meeting, Plaintiffs brought suit to

upend the laws on which voters relied in casting their ballots.

And the prejudice does not stop at the Colorado state line. Rather, by disrupting the

presidential transition, Plaintiffs’ delay threatens our nation as a whole. The Presidential

Transition Act of 1963 declares that “[t]he national interest requires” orderly presidential

transitions and that “[a]ny disruption” in a transition “could produce results detrimental to the

safety and well-being of the United States and its people.” Pub. Law 88-277, § 2. The Act thus

provides for the transition to begin immediately after the general election in November. Id.

§ 3(c). For weeks, therefore, the President-Elect and his Transition have been reviewing

potential appointees, preparing draft legislation, and coordinating efforts with President Obama,

Congress, and dozens of federal agencies—all in reliance on state laws guaranteeing that electors

will vote on December 19 in accordance with their States’ popular votes. Plaintiffs seek to upset

those deep reliance interests weeks after the election. Laches bars Plaintiffs from doing so.

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B. Purcell v. Gonzalez Bars Plaintiffs’ Request For An Election-Related Injunction.

In Purcell v. Gonzalez, 549 U.S. 1, 4 (2006), the Supreme Court held that courts should

generally refrain from issuing election-related injunctions “just weeks before an election.”

Election-eve orders risk “serious disruption of [the] election process” (Williams v. Rhodes, 393

U.S. 23, 35 (1969)), and “conflicting orders” can cause “confusion” (Purcell, 549 U.S. at 4–5).

In addition, the “imminence of the election” creates an unacceptable risk of inaccurate

decisionmaking, since the court may have “inadequate time” to resolve disputes. Id. at 5. Courts

must thus “carefully guard against judicial alteration of the status quo” shortly before an election

and in recent election cycles “the Supreme Court has stepped in to prevent such alterations

several times.” Veasey v. Perry, 769 F.3d 890, 894 (5th Cir. 2014).

These principles apply to the impending meeting of the Electoral College. Last-minute

orders and last-minute appeals would throw the Electoral College into chaos by leaving electors

uncertain about their obligations under state law. In addition, it would be irresponsible for a

court to resolve the momentous question of constitutional law posed by this case (and,

potentially, to strike down an Act of Congress and multiple state statutes) with the benefit of (at

most) only a few days to study the relevant text, precedents, and history. These problems—

which result from Plaintiffs’ own tardiness—preclude judicial intervention now.

C. Plaintiffs Lack Standing To Bring Their Claims.

Article III allows a federal court to hear a case only if the plaintiff establishes standing.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs cannot do so here, because

they do not even allege (let alone prove) that they intend to violate the statute they challenge.

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One essential element of standing is injury-in-fact—a “concrete and particularized” and

“actual or imminent” harm. Id. To establish injury-in-fact “in the context of a pre-enforcement

challenge” to a statute, a plaintiff must establish (among other things) “an intention to engage in

a course of conduct . . . proscribed by the [challenged] statute.” Colo. Outfitters Ass’n v.

Hickenlooper, 823 F.3d 537, 545 (10th Cir. 2016) (quoting SBA List v. Driehaus, 134 S. Ct. 2334,

2342 (2014)). Indeed, the plaintiff must have “concrete plans” to engage in the proscribed

conduct. Lujan, 504 U.S. at 564. This principle reflects the commonsense notion that a statute

cannot concretely and imminently injure someone who does not plan to violate it.

Courts routinely enforce these principles. For example, in Brady Campaign v.

Brownback, 110 F. Supp. 3d 1086, 1097–98 (D. Kan. 2015), the court denied standing because

the plaintiff lacked “concrete plans to engage in conduct proscribed by the Act.” The plaintiff

asserted only the “possibility” of engaging in the conduct, a “conjectural” suggestion that “f[ell]

well short” of satisfying Article III. Id. at 1098. Similarly, in San Diego Gun Rights Committee

v. Reno, 98 F.3d 1121, 1127 (9th Cir. 1996), a plaintiff’s allegation that it “wish[ed] and

intend[ed] to engage in [prohibited] activities” did not suffice, since the plaintiffs had failed to

“articulate[e] concrete plans.” So too in Jones v. Schneiderman, 101 F. Supp. 3d 283, 295

(S.D.N.Y. 2015), where a plaintiff who “potentially” sought to violate a statute also lacked

standing, as that “indeterminate commitment” “d[id] not rise to the level of a concrete plan.”

Here, Plaintiffs lack even a bare intention (never mind a concrete plan) to violate

Colorado’s Presidential Elector Statute. Colorado requires Plaintiffs to vote for Hillary Clinton

and —the candidates who won Colorado’s popular vote. Notably, however, Plaintiffs

never say that they will not vote as required. They allege that they “may vote” for someone other

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than Clinton and Kaine. Compl. ¶ 18 (emphasis added). They declare that “it may be that [they]

need to vote for someone other than” Clinton and Kaine. Baca Aff. ¶ 13; Nemanich Aff. ¶ 13

(emphasis added). In fact, they admit that they “may vote for” Clinton and Kaine after all.

Mem. 3. Plaintiffs have thus alleged (at most) an “indeterminate” and “conjectural” “possibility”

that they might violate the challenged statute; they have come nowhere near proving that they

have concrete plans to do so. They therefore lack standing.

D. This Case Presents A Non-Justiciable Political Question

A case presents a non-justiciable political question if there is “a textually demonstrable

constitutional commitment of the issue to a coordinate political department.” Nixon v. United

States, 506 U.S. 224, 228 (1993). This lawsuit presents a political question since the

Constitution commits resolution of disputes about electors’ votes to Congress, not the courts.

The Twelfth Amendment provides that electoral votes “shall . . . be counted” before “the

Senate and House of Representatives.” This text commits to Congress the responsibility to count

electoral votes—and, thus, to resolve disputes about which votes to count. Congress has

accordingly enacted a statute addressing the resolution of electoral-vote disputes (3 U.S.C. § 15),

and it has acted under that statute to resolve disputes relating to faithless electors (see 115 Cong.

Rec. 9–11, 145–71, 197–246 (1969)). It is thus up to Congress, not courts, to decide which votes

to count—the votes cast by Plaintiffs or the votes cast by any electors appointed to replace them.

The Supreme Court’s holding in Nixon, that impeachment disputes present political

questions, confirms these conclusions. The Court reasoned that judicial review of impeachments,

especially presidential impeachments, would “expose the political life of the country to months,

or perhaps years, of chaos,” severely impairing “[t]he legitimacy of any successor” “while the

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judicial process was running its course.” 506 U.S. at 236. That rationale applies not only to the

removal of a President, but also to the selection of one. If courts seek to decide (potentially in

conflicting opinions) which electoral votes count and which do not, they would undoubtedly

throw the country’s political life into chaos and would impair the legitimacy of any new

President. These realities counsel in favor of invoking the political-question doctrine here.

II. PLAINTIFFS ARE NOT ENTITLED TO PRELIMINARY RELIEF

A movant seeking preliminary relief must show (1) that it is likely to prevail on the

merits, (2) that it faces irreparable harm, (3) that the balance of hardships tips in its favor, and (4)

that an injunction is in the public interest. Diné Citizens Against Ruining Our Environment v.

Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016). The movant must establish all of these elements.

Id. Plaintiffs here cannot establish any of them.

A. Plaintiffs’ Article II and Twelfth Amendment Claims Are Unlikely To Succeed

Plaintiffs assert that the 12th Amendment prohibits Colorado from binding its electors.

This claim—which contravenes Supreme Court precedent, calls into question an Act of Congress

and statutes in a majority of States, and contradicts centuries of tradition—is unlikely to succeed.

1. Precedent establishes that States may bind electors

Multiple precedents, from both the Supreme Court and lower courts, establish that States

have the power to enact laws binding their electors.

a. Ray v. Blair, 343 U.S. 214 (1952)—in which the Supreme Court upheld a rule

requiring electors to pledge to vote for their party’s nominees—controls this case. Blair, to be

sure, involved the making rather than the enforcement of a pledge. A federal court, however, is

“bound by the theory or reasoning underlying a Supreme Court case, not just by its holding.”

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Witt v. Dept. of Air Force, 527 F.3d 806, 818 (9th Cir. 2008). The reasoning of Blair confirms

that States may require electors not only to make pledges but also to honor them:

• Blair rejected “the argument that the Twelfth Amendment demands absolute freedom for

the elector to vote his own choice.” 343 U.S. at 228. This Court should reject the same

argument here.

• Blair reasoned that nothing in “the language” of the Twelfth Amendment prohibits

requiring electors to make pledges. Id. at 225. By the same token, nothing in the

Amendment’s language prohibits requiring electors to fulfill those pledges.

• Blair emphasized the “longstanding practice” of appointing electors “simply to register

the will of the [people] in respect of a particular candidate.” Id. at 228–29 & n.16. The

Court added that States generally “do not [even] print the names of the candidates for

electors on the general election ballot,” but instead “allow a vote for the presidential

candidate . . . to be counted as a vote for his party’s nominees in the electoral college.”

Id. at 228. If “longstanding practice” showed that the Constitution does not grant electors

a federal right to vote as they please in Blair, it shows the same thing here.

All in all, the Supreme Court’s reasons for upholding laws requiring electors to make pledges

apply equally to laws requiring electors to fulfill those pledges. It would indeed be

counterintuitive to hold that States have power to require pledges but not to enforce them.

b. The Supreme Court has also emphasized the breadth of a State’s constitutional power

to “appoint” electors “in such manner as the Legislature thereof may direct” (U.S. Const. art. II,

§ 1, cl. 2). This power is “plenary” (McPherson, 146 U.S. at 25), “comprehensive” (id. at 27),

and “exclusive” (id. at 36). States hold “the broadest power of determination.” Id. at 27.

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The Colorado General Assembly’s plenary, comprehensive, and exclusive power to

decide the manner of appointing electors includes the power to enact the law at issue here.

Plaintiffs seem to acknowledge that the state law they challenge allows the removal of a faithless

elector and the seating of a replacement. Compl. ¶ 19. A law governing the circumstances under

which the State appoints a replacement elector plainly addresses the “manner” in which electors

are “appointed,” thus falling within the heartland of the state legislature’s constitutional authority.

c. More broadly, the Supreme Court has held that electors are state officials who act by

state authority. Electors “are no more officers or agents of the United States than are the

members of the state legislatures” (In re Green, 134 U.S. 377, 379 (1890)) and “are not federal

officers or agents” (Blair, 343 U.S. at 224). Electors “act by authority of the state that it in turn

receives its authority from the federal constitution.” Id.

Since electors are state officials who act by state authority, States may require them to

vote in accordance with state law. In “our federal system,” States “retain autonomy” to control

“their own governmental processes.” Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n, 135 S. Ct. 2652, 2673 (2015). Indeed, the power to control “those who exercise [state]

authority” is a “fundamental” attribute of state sovereignty. Gregory v. Ashcroft, 501 U.S. 452,

460 (1991)). These principles confirm that a state legislature may enact laws regulating how the

State’s electors exercise the State’s authority to cast the State’s electoral votes.

d. Precedents from state courts confirm that States may bind electors. For example, in

Thomas v. Cohen, 146 Misc. 836, 841–42 (N.Y. Sup. Ct. 1933), a New York court held that

electors had a common-law “duty” to vote for their party’s nominee, and that “[t]he elector who

attempted to disregard that duty could . . . be required by mandamus to carry out the mandate of

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the voters of his state.” The court rejected the notion that “presidential electors have a

[constitutional] right to defy the will of the people.” Id. at 846. Similarly, the Nebraska

Supreme Court concluded in State v. Wait, 138 N.W. 159, 163 (Neb. 1912), that electors have a

common-law “duty” to vote for their party’s nominees, and that candidates for elector who

“openly declare that they will not perform that duty” “vacat[e] their places as . . . presidential

electors.” Likewise, in Spreckels v. Graham, 228 P. 1040, 1045 (Cal. 1924), the

Supreme Court held that electors “have no duties to perform which involve the exercise of

judgment or discretion in the slightest degree,” but are instead “no more than messengers whose

sole duty it is to certify and transmit the election returns.” Id. The court added that the elector’s

duty to “represent the preferences” of the people was (even by 1924) “so long established” that it

constitutes “part of [California’s] unwritten law.” Id. These holdings further undermine any

claim that electors enjoy a constitutional right to defy the will of the voters of their State.

2. The original understanding of the Twelfth Amendment confirms that States may bind electors

The Electoral College today is governed by the Twelfth Amendment, which “materially

chang[ed] the mode of election of president” established by Article II. 3 Joseph L. Story,

Commentaries on the Constitution § 1460 (1833). Whatever may have been the original

understanding of Article II in 1789, the original understanding of the Twelfth Amendment in

1804 defeats any claim that electors enjoy a constitutional right to vote for whomever they please.

Congress proposed and the States ratified the Twelfth Amendment with the

understanding that electors are ministerial agents who represent their parties’ nominees, rather

than platonic guardians who exercise independent judgment. “In the [very] first election held

under the constitution,” the people “looked beyond [the electors], fixed upon their own

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candidates for President and Vice President, and took pledges from the electoral candidates to

obey their will.” Blair, 343 U.S. at 228 n.15 (quoting S. Rep. No. 22, 19th Cong., 1st Sess., at 4

(1826)). From 1796 on, presidential aspirants ran as “regular party candidates,” and the party’s

electors were “expected to support” them. Id. at 228 n.16. By 1802, everyone understood that

“the people do not elect a person for an elector who, they know, does not intend to vote for a

particular person as President.” 11 Annals of Congress 1289–90 (1802).

In fact, the whole purpose of the Twelfth Amendment was to accommodate these

political realities. Under the original Constitution, “the electors . . . did not vote separately for

President and Vice-President; each elector voted for two persons, without designating which

office he wanted each person to fill.” Blair, 343 U.S. at 224 n.11. That system may have

worked in a world where electors exercised independent judgment, but it broke down once

electors came merely to represent their parties’ presidential and vice presidential nominees. For

example, the election of 1800 ended in a tie because Democratic-Republican electors had no way

to distinguish between presidential nominee Thomas Jefferson and vice-presidential nominee

Aaron Burr when they each cast two votes for President. These problems prompted the Twelfth

Amendment, which provided that electors must cast “distinct ballots” for President and Vice

President. The whole point of this new procedure was (as the Supreme Court has recognized) to

ensure that “[e]lectors could be chosen to vote for the party candidates for both offices, and

electors could carry out the desires of the people, without confronting the obstacles which

confounded the [election of 1800].” Id.; see also 11 Annals of Congress 1289–90 (1802)

(explaining that “the very thing . . . intended by this amendment” was to facilitate the practice of

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voting for electors pledged “to vote for a particular person as President”) (cited in Blair, 343 U.S.

at 224 n.11). This history defeats Plaintiffs’ Article II and Twelfth Amendment claims here.

3. Longstanding practice confirms that States may bind electors

“[L]ong settled and established practice” deserve “great weight” in constitutional

interpretation. NLRB v. Noel Canning, 134 S. Ct. 2550, 2559 (2014); see, e.g., Blair, 343 U.S. at

228 (emphasizing “longstanding practice”). Practice validates the law challenged here.

The States. By one count, at least 29 state legislatures have enacted such laws. See S.

Doc. No. 111-15, at 346–434 (2010). Moreover, some state courts have concluded as a matter of

state common law that electors have a duty to fulfill their pledges. Supra 9. Plaintiffs’ theory

would require this Court to invalidate all of these statutes and state-court decisions.

Congress. Months after ratification of the Twenty-third Amendment—which authorizes

the District of Columbia to vote in presidential elections—Congress enacted a statute providing:

“Each person elected as elector [for the District of Columbia] shall . . . take an oath or solemnly

affirm that he will vote for the candidates of the party he has been nominated to represent, and it

shall be his duty to vote in such manner in the electoral college.” 75 Stat. 819 (emphasis added).

Plaintiffs’ theory would require holding this Act of Congress unconstitutional.

The People. From the beginning of the Republic, electors have been chosen on the

understanding that they will vote for a particular presidential candidate. Justice Story thus

explained (3 Commentaries § 1457):

[E]lectors are now chosen wholly with reference to particular candidates . . . The candidates for the presidency are selected and announced in each state long before the election; and an ardent canvass is maintained in the newspapers, in party meetings, and in the state legislatures, to secure votes for the favourite candidate, and to defeat his opponents. . . . [N]othing is left to the electors after their choice, but to register votes, which are already pledged; and an exercise of an

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independent judgment would be treated, as a political usurpation, dishonourable to the individual, and a fraud upon his constituents.

Presidential elections work much the same way today. Plaintiffs’ theory would require this

Court to replace a two-century-old system under which the vote of the People is decisive, and the

vote of the electors is a formality, with a system under which the vote of the electors is decisive,

and the vote of the People is a formality.

4. Plaintiff’s contrary arguments are unconvincing

Plaintiffs assert that state faithless-elector laws render the Electoral College “superfluous.”

Mem. 5. Not true. The Constitution’s Electoral College provisions continue to serve numerous

functions: They allocate electoral power in presidential elections among the States; they allow

state legislatures to decide how to use that electoral power; and they establish a mechanism for

transmitting the State’s exercise of that power to the Federal Government. Moreover, the

Electoral College provisions do not become “superfluous” merely because the Electoral College

is a formality. Many constitutional provisions require actions that might be considered

formalities—see, e.g., U.S. Const. art. I, § 5, cl. 3 (each House must keep a journal); id. art. II § 3

(President must commission officers)—but that does not make them “superfluous.”

Plaintiffs, citing Alexander Hamilton, also assert that the Framers of Article II originally

expected electors to exercise independent judgment. Mem. 5. True or not, that argument is

beside the point. The Electoral College operates today under the Twelfth Amendment, not under

Article II, and as just shown, the Framers of the Twelfth Amendment did not expect electors to

exercise independent judgment. In any event, the Supreme Court held in Blair that

“longstanding practice” outweighs the Framers’ original expectations about the operation of the

Electoral College. 343 U.S. at 228–29 & n.16. Blair requires this Court to do likewise here.

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In sum, Plaintiffs’ arguments do not come close to overcoming the precedent, history,

and tradition confirming the constitutionality of Colorado’s faithless-elector law.

B. Plaintiffs’ First Amendment Claim Is Unlikely To Succeed

Plaintiffs also claim that the First Amendment protects electors’ right to vote as they

please. Mem. 5–7. This claim, too, is unlikely to succeed on the merits.

First, the specific governs the general in constitutional interpretation. If a particular

Amendment addresses “a particular sort of government behavior,” “that Amendment,” not a

“more generalized notion” found elsewhere in the Constitution, “must . . . guide” the court’s

analysis of the claims. Graham v. Connor, 490 U.S. 386, 395 (1989). Here, the specific

provisions of the Twelfth Amendment contemplate state regulation of electors’ votes, and the

more general provisions of the First Amendment do not supersede them. Cf. Golan v. Holder,

132 S. Ct. 873, 891 (2012) (rejecting challengers’ “attempt to win under the banner of the First

Amendment what they could not win under the Copyright Clause”).

Second, the Supreme Court has “rejected the notion that the First Amendment confers a

right to use governmental mechanics to convey a message.” Nev. Ethics Comm’n v. Carrigan,

564 U.S. 117, 127 (2011). For example, “a legislator’s vote” is “not . . . protected speech,” since

“a legislator has no right to use official powers for expressive purposes.” Id. at 125–27. “In this

respect, voting by a legislator is different from voting by a citizen.” Id. at 126. These principles

apply not only to a legislator’s vote but also to an elector’s vote—especially since the Supreme

Court has analogized electors to “members of the state legislatures” (Green, 134 U.S. at 379).

Like a legislator, an elector is a government official; thus, like a legislator, an elector has “no

right to use governmental mechanics” (such as his electoral vote) “to convey a message.”

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Third, the Supreme Court has held that States may “requir[e] those making promises [to

speak or refrain from speaking] to keep them.” Cohen v. Cowles Media Co., 501 U.S. 663, 672

(1991). This holding rests on the premise that “a party’s voluntary promise [to speak or not to

speak] constitute[s] a valid waiver of First Amendment rights.” Yoder v. Univ. of Louisville, 526

Fed. Appx. 537, 547 (6th Cir. 2013). Here, Plaintiffs waived any First Amendment rights they

may have had in their electoral vote when they voluntarily pledged their votes. The First

Amendment allows Colorado to require them to keep this promise.

Finally, Colorado’s statute satisfies strict scrutiny. A State has a compelling interest in

the “integrity” and “fairness” of its elections. ACLF v. Meyer, 120 F.3d 1092, 1098 (10th Cir.

1997). Colorado’s law narrowly promotes that interest by preventing electors from perpetrating

“political usurpations” and “fraud[s] upon [their] constituents” (3 Story, Commentaries § 1457).

C. Plaintiffs’ Fourteenth Amendment Claim Is Unlikely To Succeed

Plaintiffs claim last of all that Colorado’s winner-take-all system for awarding electors

violates the Fourteenth Amendment. Mem. 8–9. No. Plaintiffs do not have standing to raise

this claim, since Colorado’s winner-take-all system does not injure them in any way (indeed, it

helped them win their seats). The only person harmed by Colorado’s system is Donald Trump

(who won 43% of the vote but 0% of the electors), and he is not complaining. In any event, the

Supreme Court expressly held in McPherson v. Blacker that the winner-take all system complies

with the Fourteenth Amendment. See 146 U.S. at 37. That holding, of course, remains binding.

D. Plaintiffs Fail To Satisfy The Remaining Prerequisites For Preliminary Relief

Plaintiffs cannot show irreparable injury for the same reason they cannot show even an

Article III injury: They have no concrete plans to violate Colorado’s faithless-elector law.

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Injury can be irreparable only if it is “certain” rather than “theoretical.” Heideman v. South Salt

Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003). Plaintiffs’ asserted injury is purely theoretical,

since Plaintiffs state at most that they “may” wish to violate the challenged statute.

The balance of hardships and public interest likewise disfavor an injunction. Most

importantly, an injunction would violate the constitutional rights of voters. “Having once

granted the right to vote” in presidential elections, “the State may not . . . debas[e] or dilut[e]”

that vote by “later arbitrary [action].” Bush v. Gore, 531 U.S. 98, 104–05 (2000). When

Colorado granted its citizens the right to vote for presidential electors, it promised them that

those electors would vote in the Electoral College for the presidential candidates they represent.

Coloradans relied on that assurance when they cast their ballots for electors whose names they

had never heard of. Telling the voters now that their votes have no binding effect after all would

debase and dilute those votes, in violation of the Constitution.

The harm to the public interest does not end there. At best, an injunction would create

uncertainty about the election, disrupting the expectations of those who “have proceeded with

their affairs—business, political, and social—upon the assumption that the election is over”

(Thomas, 262 N.Y.S. at 325). At worst, an injunction could spark a full-blown constitutional

crisis. These grave harms outweigh any injury caused by holding Plaintiffs to their promises.

CONCLUSION

The Court should deny Plaintiffs’ Motion.

Respectfully submitted this 9th day of December, 2016.

16 Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Colorado Page 17 of 19

s/Christopher O. Murray Christopher O. Murray, #39340 BROWNSTEIN HYATT FARBER SCHRECK, LLP 410 Seventeenth Street Suite 2200 Denver, CO 80202-4432 Telephone: 303-223-1100 Fax: 303-223-1111 Email: [email protected]

Attorneys for Intervenor Colorado Republican Committee

17 Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Colorado Page 18 of 19

CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of December, 2016, I electronically filed a true and correct copy of the foregoing INTERVENOR COLORADO REPUBLICAN COMMITTEE'S BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following counsel:

Jason B. Wesoky, Esq. 1331 17th Street, Suite 800 Denver, CO 80202 303-623-9133 [email protected]

Counsel for Plaintiffs

Leeann Morrill First Assistant Attorney General Matthew D. Grove Assistant Solicitor General Grant Q. Sullivan Assistant Solicitor General 1300 Broadway, 6th Floor Denver, CO 80203 Telephone: (720) 508-6157 Facsimile: (720) 508-6041 [email protected] [email protected] [email protected]

Counsel for John Hickenlooper, in his official capacity as Governor of Colorado, Cynthia Coffman, in her official capacity as Colorado Attorney General and Wayne Williams, in his official capacity as Colorado Secretary of State

s/Paulette M. Chesson Paulette M. Chesson, Paralegal BROWNSTEIN HYATT FARBER SCHRECK, LLP 410 17th Street, Suite 2200 Denver, CO 80202 303-223-1100; fax 303-223-1111

18 Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Colorado Page 19 of 19

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