In the United States District Court for the District of Colorado

Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Colorado 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 Governor 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 Electoral College 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 Hillary Clinton 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 2 Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Colorado Page 3 of 19 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. 3 Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Colorado Page 4 of 19 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. 4 Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Colorado Page 5 of 19 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 Tim Kaine—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 5 Case 1:16-cv-02986-WYD-NYW Document 11-1 Filed 12/09/16 USDC Colorado Page 6 of 19 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.

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