Curry v. Buescher , 394 F. App'x 438 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
August 31, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
KATHLEEN CURRY; RICHARD
MURDIE; LINDA REES; GARY
HAUSLER,
Plaintiffs-Appellants,
and No. 10-1265
(D.C. No. 1:09-CV-02680-MSK-CBS)
CAROL BLATNICK; WAYNE (D. Colo.)
BUCK; MANDY MIKULENCAK,
Plaintiffs,
v.
BERNIE BUESCHER, in his official
capacity as Secretary of State of the
State of Colorado, *
Defendant-Appellee,
and
LINDA DALEY, in her official
capacity as La Plata County Clerk and
Recorder,
Defendant.
*
The unopposed motion to remove Linda Daley as an appellee is
GRANTED.
JOELLE RIDDLE; JACQUELINE
SALIT,
Amici Curiae.
ORDER AND JUDGMENT **
Before TACHA, BRORBY, and MURPHY, Circuit Judges.
This case involves the constitutionality of Colorado’s requirement that
independent candidates for partisan public office be registered as unaffiliated with
a political party for nearly seventeen months before the general election if they
wish to appear on the general-election ballot. See Colo. Rev. Stat.
§ 1-4-802(1)(f)(I), (g) (2009). 1 Plaintiff Kathleen Curry, an incumbent member of
the Colorado House of Representatives, changed her registration to unaffiliated
eleven months before the November 2010 general election and, therefore, is
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
In May 2010, the Colorado General Assembly changed the requirement,
starting with the 2012 general election, to require unaffiliated registration “no
later than the first business day of the January immediately preceding the general
election for which the person desires to be placed in nomination.” 2010 Colo.
Legis. Serv. ch. 324, § 5; see also id. § 7.
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barred from the ballot on any basis other than as a write-in candidate. She and
the other Plaintiffs (voters eligible to cast ballots for Representative Curry if she
qualified for the 2010 ballot) brought this action under 42 U.S.C. § 1983 against
the Colorado Secretary of State, Bernie Buescher, to overturn the statutory
registration period. The district court granted the Secretary summary judgment.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
B ACKGROUND
Representative Curry is presently the State Representative for Colorado
State House District 61. She was first elected to that office as a member of the
Democratic Party of Colorado in 2004, and was re-elected as a Democrat in 2006
and 2008. In December 2009, however, she changed her party affiliation to
unaffiliated, hoping to seek re-election as an independent candidate on the
November 2010 general-election ballot. She explains that her “political
philosophy and beliefs” caused her to “clash[ ]” with Democratic party leaders on
several issues. Aplt. App. at 187.
Under Colorado law, unaffiliated candidates for partisan public offices in
general elections must be nominated by a petition signed by eligible electors.
Colo. Rev. Stat. § 1-4-802(1)(c). The petition must be filed no later than 140
days before the general election. Id. § 1-4-802(1)(f)(I). No person, however,
may be nominated by petition as an unaffiliated candidate “unless the person was
registered as . . . unaffiliated . . . for at least twelve months prior to the last date
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the petition may be filed.” Id. § 1-4-802(1)(g). Consequently, a person must
have registered as unaffiliated at least one year and 140 days before the upcoming
general election, i.e., sixteen-and-three-fifths months. So long as the petition is
timely, in the proper form, and bears the requisite number of signatures, and the
petitioner is sufficiently dissaffiliated, the petitioner qualifies for the
general-election ballot without further obstacles.
For the 2010 election, Representative Curry needed to register as
unaffiliated by June 15, 2009. She missed that date, however, by six months,
because she was unaware of Colorado’s disaffiliation laws. 2 In developing her
constitutional challenge, Representative Curry contrasts the laws applicable to
unaffiliated candidates with those applicable to partisan candidates, all ultimately
seeking general-election ballot access.
A person seeking a party’s nomination to run in the general election must
first win the party’s primary election. Id. § 1-4-101(1), (3). In order to compete
in the primary, however, the person must either be selected during the party’s
assembly process or file a petition. Id. § 1-4-102.
If access to the primary-election ballot is through the party’s assembly
process, the person must have been affiliated with that party during the twelve-
2
For convenience, we refer to the Colorado law as a disaffiliation law, as it
certainly is in this case. The law, however, may be broader than disaffiliation
and, if so, apply to those seeking ballot access who have never formally affiliated
with a political party.
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month period before the assembly, which must be held at least 70 days before the
primary election. Id. § 1-4-601(1), (4)(a). The primary is held three months
before the general election. See id. §§ 1-4-101(1), -104(17). The twelve-month
period prior to the assembly, however, may be shortened by major party rules or
minor party constitutions and by-laws. Id. §§ 1-4-601(4)(a), -1304(2)(b), (c). For
instance, the Democratic Party of Colorado has essentially cut nearly six months
from that period. See Aplt. App. at 74 (Democratic Party rule stating that “[a]
person shall be eligible for designation by an assembly . . . if that person has been
a registered Democrat for a period of at least 12 months immediately preceding
the date of the General Election”).
On the other hand, if the person seeks to be placed on the party’s
primary-election ballot through petition, id. §§ 1-4-801(1), -802(1)(a), the
petitioner must have been affiliated with the party for at least twelve months
before filing the petition, id. §§1-4-801(3), -802(1)(g), which can be “no later
than seventy-five days before the primary election,” §§ 1-4-801(5), -802(1)(f)(II).
Unlike the political-party assembly-nomination process, there is no statutory
provision allowing the affiliation period for the petition-nomination process to be
shortened. Consequently, a political-party petitioner must be affiliated with the
party for seventeen-and-one-half months before the general election.
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Plaintiffs sued Secretary Buescher in March 2010. 3 They alleged that the
disaffiliation requirement in section 1-4-802(1)(g) violates their rights to freedom
of speech, freedom of association, and equal protection. The parties stipulated
that the requirement was intended “to prevent partisan candidates from entering
races as unaffiliated candidates in order to circumvent the party primary process
or to bleed off votes from another candidate, and as part of a more general
statewide policy intended to promote political stability and protect the integrity of
Colorado’s political process.” Aplt. App. at 193. 4 The district court reviewed the
3
Specifically, Plaintiffs joined litigation brought several months earlier by
La Plata County Commissioner Joelle Riddle and several electors who supported
her. Like Representative Curry, Commissioner Riddle had untimely switched her
party affiliation to unaffiliated and was barred by section 1-4-802(1)(g) from
having her name placed on the ballot. Commissioner Riddle has since decided
not to seek re-election, and thus has not appealed the district court’s decision.
Nevertheless, she seeks leave to file an amicus brief along with Jacqueline Salit, a
New York resident and President of the Committee for a Unified Independent
Party, Inc. We grant the request.
4
In more detail, the parties agreed that the statute serves Colorado’s interests
by thwarting frivolous or fraudulent candidates, avoiding voter
confusion, preventing the clogging of election machinery required to
administer an election, maintaining the integrity of the various routes
to the ballot (i.e., preventing a potential candidate defeated in a
primary from petitioning onto the ballot, thereby defeating the
purpose of the primary system), presenting the people with
understandable choices between candidates who have not previously
competed against one another in a primary, refusing to recognize
independent candidates who do not make early plans to leave a party
and take the alternative course to the ballot, working against
independent candidacies prompted by short-range political goals,
pique, or personal quarrel, providing a substantial barrier to a party
(continued...)
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stipulation, considered the parties’ arguments, and granted the Secretary summary
judgment, prompting this appeal.
D ISCUSSION
I. Standard of Review
“We review de novo the grant of summary judgment to determine whether
any genuine issues of material fact were in dispute and, if not, whether the district
court correctly applied the substantive law at issue.” Anderson v. Commerce
Constr. Servs., Inc., 531 F.3d 1190, 1193 (10th Cir. 2008). “Because the parties
do not dispute the facts, we have before us a purely legal question.” Id.(quotation omitted).
II. Freedom of Speech and Freedom of Association
The First Amendment, made applicable to the states by the Fourteenth
Amendment, bars government from passing laws that “abridg[e] the freedom of
speech.” U.S. Const. amend. I. Freedom of association is “an indispensable
means of preserving” free speech, Roberts v. U.S. Jaycees, 468 U.S. 609, 618
4
(...continued)
fielding an “independent” candidate to capture and bleed off votes in
the general election that might well go to another party, ensuring that
voters are not presented with a laundry list of candidates who have
decided on the eve of a major election to seek public office,
reserving the general election ballot for major struggles and not
allowing it to be used as a forum for continuing intraparty feuds, and
limiting the names on the ballot to those who have won the primaries
and those independents who have properly qualified.
Aplt. App. at 193-94.
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(1984), and is protected by the First Amendment, see Healy v. James, 408 U.S.
169, 181 (1972).
To determine whether a state’s ballot-access restrictions comport with the
First Amendment, we must weigh the alleged constitutional injury against the
state’s justifications for restricting ballot access:
[We] must first consider the character and magnitude of the asserted
injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate. [We] then must
identify and evaluate the precise interests put forward by the State as
justifications for the burden imposed by its rule. In passing
judgment, [we] must not only determine the legitimacy and strength
of each of those interests; [we] also must consider the extent to
which those interests make it necessary to burden the plaintiff’s
rights. Only after weighing all these factors [will we be] in a
position to decide whether the challenged provision is
unconstitutional.
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). 5
A. Character and Magnitude of the Constitutional Injury
5
In Crawford v. Marion County Election Board, 553 U.S. 181, 190 n.8
(2008), the Supreme Court per Justice Stevens (who had also authored Anderson)
described Anderson’s test as a “flexible” approach, and indicated that strict
scrutiny does not apply “to all laws imposing a burden on the right to vote.” In
ACLU of New Mexico v. Santillanes, 546 F.3d 1313, 1321 (10th Cir. 2008), this
court seemingly approved the district court’s characterization of the Anderson test
as a form of “intermediate scrutiny.” In Rainbow Coalition of Oklahoma v.
Oklahoma State Election Board, 844 F.2d 740, 742 (10th Cir. 1988), we applied
Anderson and suggested that strict scrutiny was not an option in ballot-access
cases, a position followed by the district court in this case. In any event, it is
clear that Anderson’s formulation of the test governs, and we, like the district
court, apply it here.
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Plaintiffs argue Colorado’s requirement that Representative Curry
disaffiliate 12 months before the deadline for filing a nominating petition results
in a significant constitutional injury, as she is now denied the opportunity to
otherwise qualify for appearance on the general-election ballot as an independent
candidate. 6 We note Representative Curry’s acknowledgment that her untimely
disaffiliation was due to her lack of awareness of the requirements of Colorado
law, rather than any component of the disaffiliation statute. Aplt. App. at 188.
Plaintiffs do not identify any practical impediment to Representative Curry
meeting the requirements of section 1-4-802(1)(g) and disaffiliating twelve
months before the deadline for filing a nominating petition. Indeed, she concedes
that she had become “increasingly disenchanted with party politics over a period
of five years” before she eventually disaffiliated. Aplt. App. at 187. Nor do
Plaintiffs contend that the disaffiliation deadline would have burdened their
efforts to gather signatures for a nominating petition. Cf. Anderson, 460 U.S. at
6
Plaintiffs purport to challenge Colorado’s disaffiliation period both on its
face and as applied to Representative Curry. As the district noted, however, they
essentially advance only an as-applied challenge, ultimately focusing their
arguments on the effect the election statutes have when applied to their particular
circumstances. Thus, we address the disaffiliation period’s constitutionality only
as applied. In so doing, we note that “[f]acial challenges are disfavored[,]”
Washington State Grange v. Washington State Republican Party, 552 U.S. 442,
450 (2008), and generally fail if any “set of circumstances exists under which the
[law] would be valid,” id. at 449. Our conclusion that the disaffiliation period is
not unconstitutional as applied to Representative Curry is one such set of
circumstances that would prove fatal to a facial challenge of section
1-4-802(1)(g).
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792 (noting that a state’s deadline for independent candidates to file a nominating
petition burdened the candidate’s signature-gathering efforts in the context of a
nationwide campaign). Thus, the sole constitutional injury Plaintiffs present is
the denial of ballot access.
Denial of ballot access to a prospective candidate intrudes upon “important
[constitutional] rights,” Rainbow Coalition of Okla. v. Okla. State Elec. Bd., 844
F.2d 740, 743 (10th Cir. 1988), held by both the candidate and her supporters, see
Anderson, 460 U.S. at 786-88. Accordingly, we must address whether Colorado’s
interests in imposing its disaffiliation requirement justify excluding
Representative Curry’s name from the ballot.
B. The Weighing Process
“[N]ot all restrictions imposed by the States on candidates’ eligibility for
the ballot impose constitutionally-suspect burdens on voters’ rights to associate or
to choose among candidates.” Anderson, 460 U.S. at 788. “‘[A]s 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.’” Id. (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
Thus, “the State’s important regulatory interests are generally sufficient to justify
reasonable, nondiscriminatory restrictions” on election procedures. Id.Storer v. Brown is the seminal Supreme Court decision addressing a state’s
disaffiliation requirement for independent candidates. There, faced with a First
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Amendment challenge from independent candidates and their supporters, the
Court upheld a California statute that required independent candidates to be
disaffiliated from political parties for the twelve-month period before the primary
election. 415 U.S. at 728. 7 The Court explained that a disaffiliation requirement
maintains “the integrity of the various routes to the ballot” by
refusing to recognize independent candidates who do not make early
plans to leave a party and take the alternative course to the ballot. It
works against independent candidacies prompted by short-range
political goals, pique, or personal quarrel. It is also a substantial
barrier to a party fielding an ‘independent’ candidate to capture and
bleed off votes in the general election that might well go to another
party.
Id. at 735. Accordingly, the Court declared that the twelve-month disaffiliation
period furthered California’s interest in the stability of its political system, and
that the state’s interest was compelling, “outweighing the interest the candidate
and his supporters may have in making a late rather than an early decision to seek
independent ballot status.” Id. at 736. And while other methods might suffice,
the Court indicated that the Constitution did not require California to sacrifice the
political stability of its election system, “with profound consequences for the
7
In contrast, Colorado’s twelve-month disaffiliation-period is tied to “the
last date the [nominating] petition may be filed,” Colo. Rev. Stat. § 1-4-802(1)(g).
If, however, the disaffiliation periods in Storer and this case are equalized,
connecting them to the November general elections, it results in a seventeen-
month disaffiliation period in Storer and a sixteen-and-three-fifths months period
in this case.
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entire citizenry, merely in the interest of particular candidates and their
supporters having instantaneous access to the ballot.” Id. at 736.
The decision in Storer led both this court and the Colorado Supreme Court
to declare Colorado’s twelve-month disaffiliation period constitutional. In
Thournir v. Meyer, 909 F.2d 408 (10th Cir. 1990), this court viewed Colorado’s
disaffiliation period 8 as a reasonable restriction intended “to protect the integrity
of the party system and to prohibit frivolous candidacies.” Id. at 411. As such,
the disaffiliation requirement did not unduly burden the First Amendment rights
of an unaffiliated candidate. Id. (citing Storer, 415 U.S. at 733).
In Colorado Libertarian Party v. Secretary of State of Colorado, 817 P.2d
998 (Colo. 1991), the Colorado Supreme Court cited Thournir with approval,
quoted extensively from Storer, extended the disaffiliation requirement to
candidates of “political organizations,” and concluded that “Colorado’s one-year
unaffiliation requirement preserves the state’s compelling interest in maintaining
the integrity of its ballot access system, and thus promotes the overall stability of
the state’s election process, without unfairly or unnecessarily impinging upon the
[political organization’s] associational rights.” Id. at 1004 (quotations and
citation omitted). The court also observed that while “a disaffiliation provision
8
When Thournir was decided, Colorado’s disaffiliation requirement was
contained in section 1-4-801(1)(i) (1980), and was worded much like the current
version: “[n]o person shall be placed in nomination by petition unless the person
. . . was registered as unaffiliated . . . for at least twelve months prior to the date
of filing of the petition.”
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may preclude . . . voters from supporting a particular ineligible candidate, they
remain free to support and promote other candidates who satisfy the State’s
disaffiliation requirements.” Id. (quotation omitted).
Plaintiffs urge us to disregard Storer, Thournir, and Colorado Libertarian
Party. They argue that in Storer, the challenged disaffiliation statute did not
discriminate between independent candidates and party candidates. Similarly,
they contend that Colorado’s “affiliation requirements for independent candidates
and candidates for political parties were essential[ly] the same” when those cases
were decided, but is no longer true today. Aplt. Opening Br. at 26 n.4; see also
Reply Br. at 10 n.3.
To be sure, in Storer the Supreme Court observed that California’s
disaffiliation statute “involve[d] no discrimination against independents,” as the
statute required independents to “be clear of political party affiliations for a year
before the primary” and party candidates to be disaffiliated from other parties a
year before filing a declaration of candidacy. 415 U.S. at 733-34. Both Thournir
and Colorado Libertarian Party addressed Colorado’s disaffiliation statute before
political parties were permitted to vary the disaffiliation period by a major party’s
rules or a minor party’s constitution or by-laws. See Colo. Rev. Stat. §§ 1-4-
601(4)(a), -1304(2)(b), (c). As we indicated earlier, however, the ability of major
and minor parties to vary an affiliation/disaffiliation period applies only when the
putative candidate seeks nomination through the assembly process. When the
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road to the ballot involves a nominating petition, all hopeful candidates are
subject to an invariable twelve-month period. See id. §§ 1-4-801(3), -802(g).
Consequently, the burdens of the twelve-month disaffiliation requirement are
shared equally by petitioning independents and petitioning party members.
Granted, an individual like Representative Curry, whose political
philosophy motivates her to run as an independent rather than as a member of a
political party, has no way to invoke a shortened disaffiliation period. The First
Amendment, however, does not require Colorado to so “precisely draw[ ]” its
election statutes as to eliminate every disparity between independent and party
candidates, at least in cases involving disaffiliation requirements whose effects
are felt “wholly within the boundaries of [the state].” See Anderson, 460 U.S. at
804, 805 (stating that a state’s justification for imposing filing restrictions that
“discriminate against independents” is weaker in “nationwide Presidential
election[s]”). It is enough that Colorado’s disaffiliation statutes are
“generally[ ]applicable and evenhanded” for all petitioning candidates. See id. at
788 n.9. 9
Further, the Secretary has suggested valid reasons for treating petitioning
individuals differently than assembly-bound individuals in terms of the rigidness
9
This fact alone—that both independent and party candidates who seek the
ballot by petition are bound to an unalterable disaffiliation period—defeats
Plaintiffs argument that Colorado’s disaffiliation statute discriminates on the
basis of an individual’s political beliefs.
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of disaffiliation periods. For instance, individuals “who subject themselves to the
assembly process face scrutiny by those who are active within their party and who
are likely to have greater allegiance to the party. These [prospective] candidates
must obtain support at the precinct, county and state levels.” Aplee. Br. at 22.
Consequently, the assembly process can winnow out those prospective candidates
motivated by “short-range political goals, pique, or personal quarrel,” Storer,
415 U.S. at 735, notwithstanding a truncated disaffiliation period. In contrast,
petitioning independent candidates proceed directly to the general-election ballot
without being subjected to a similar winnowing process.
Plaintiffs also argue that the General Assembly’s recent change of the
disaffiliation period from “at least twelve months prior to the last date the
[nominating] petition may be filed,” Colo. Rev. Stat. § 1-4-802(1)(g), to
“the first business day of the January immediately preceding the general
election,” 2010 Colo. Legis. Serv. ch. 324, § 5 (effective for the 2012 general
election), shows that the state’s interests can be served by a less burdensome
disaffiliation requirement. 10 While that may be true, the United States Supreme
Court has not declared the presence of a “less drastic way of satisfying [the
state’s] legitimate interests” determinative in a disaffiliation case. See Anderson
v. Celebrezze, 460 U.S. at 806 (quotation omitted). Moreover, in Thournir, this
10
We note that Representative Curry sponsored the bill in the House. In its
middle stages, the bill would have had immediate effect. Aplt. App. at 224-25,
230.
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court closed the door to any inquiry into whether the state is pursuing its interests
regarding disaffiliation in the least restrictive means possible. 909 F.2d at 409
n.4 (citing Rainbow Coal. of Okla. v. Okla. State Elec. Bd., 844 F.2d 740, 742
(10th Cir. 1988), and declining to subject disaffiliation statute to strict scrutiny).
Thus, the Colorado Assembly’s decision to truncate the disaffiliation period,
starting in 2012, does not warrant the conclusion that the longer period applicable
to Representative Curry is unconstitutional.
Plaintiffs next contend that Colorado’s justifications for requiring
disaffiliation do not apply to Representative Curry because she is a legitimate
candidate, having already served three terms in office and run unopposed in the
past two elections. There is absolutely nothing in the election statutes, however,
that allows a case-by-case inquiry into whether operation of the disaffiliation
requirement is warranted. It is beyond cavil that we are without authority to
legislate such an inquiry.
As we noted earlier, the Supreme Court in Storer held that California’s
interest in “maintaining the integrity of the various routes to the ballot,” achieved
through a twelve-month disaffiliation provision, outweighed independent
candidates’ interest in making a late “decision to seek independent ballot status.”
415 U.S. at 736. Colorado’s interest is no less compelling in this case, and is
achieved through a similar disaffiliation requirement. Plaintiffs have failed to
convince us that we should weigh the pertinent interests any differently than the
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Supreme Court did in Storer. Nor have they identified a principled basis on
which to distinguish this case from Thournir and Colorado Libertarian Party,
both of which upheld Colorado’s disaffiliation requirement against similar
First-Amendment challenges. Thus, we conclude that Colorado’s compelling
interest in political stability, which required Representative Curry to disaffiliate
from the Democratic Party twelve months before filing a nominating petition,
outweighs her interest in pursuing an independent candidacy after the statutory
deadline.
Consequently, the twelve-month disaffiliation requirement in section
1-4-802(1)(g) does not violate the Plaintiffs’ First-Amendment rights. See ACLU
of N.M. v. Santillanes, 546 F.3d 1313, 1322 (10th Cir. 2008) (“Restrictions that
are generally applicable, even-handed, politically neutral, and which protect the
reliability and integrity of the election process are generally not considered severe
restrictions and are upheld.” (quotation omitted)).
III. Equal Protection
The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o
state shall . . . deny to any person within its jurisdiction the equal protection of
the laws.” U.S. Const. amend. XIV, § 1. “Equal protection is essentially a
direction that all persons similarly situated should be treated alike.” Abdulhaseeb
v. Calbone, 600 F.3d 1301, 1322 n.10 (10th Cir. 2010) (quotation omitted).
Conversely, while a state “must treat like cases alike,” it “may treat unlike cases
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accordingly.” Coalition for Equal Rights, Inc. v. Ritter, 517 F.3d 1195, 1199
(10th Cir. 2008) (quotation omitted).
For persons to be similarly situated, they must be alike “in all relevant
respects.” Id. Plaintiffs cursorily assert that Representative Curry is similarly
situated to “political party candidates,” but is treated worse because political
parties can, and have, shortened the disaffiliation periods for their members.
Aplt. Opening Br. at 46. 11 As we have already pointed out, however, only those
persons who pursue the assembly path toward their party’s nomination are
eligible for shortened disaffiliation periods. Independents, like Representative
Curry, do not have to participate in assemblies or even a subsequent primary
election. Instead, once independents have the requisite number of signatures on a
nominating petition, they go straight to the general election ballot. See Colo.
Rev. Stat. § 1-4-802. Thus, Representative Curry is not similarly situated to
persons in a political party seeking to be designated at an assembly so they can
compete for their party’s nomination in a primary election.
Nor is Representative Curry similarly situated to party members whose
political course starts by petition, because a qualifying petition in a contested
party race only gets that individual onto a primary ballot. See id. §§ 1-4-801(1)
11
We need not address whether Plaintiffs Richard Murdie, Linda Rees, and
Gary Hausler have standing to challenge the section 1-4-802(1)(g) bar to Curry’s
candidacy on equal-protection grounds because Representative Curry clearly has
standing to invoke our jurisdiction.
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(major parties), -1304(1.5)(a) (minor parties). Unlike independents then, a
qualifying political-party petitioner does not necessarily qualify for the
general-election ballot. A qualifying political-party petitioner will appear on the
general-election ballot only after winning her party’s primary or having no
primary challenger. See id. §§ 1-4-104.5(2) (major parties), -1304(1.5)(d) (minor
parties); see also Storer, 415 U.S. at 745 (recognizing that “the political party and
the independent candidate approaches to political activity are entirely different
and neither is a satisfactory substitute for the other”).
Even if we were to conclude that Representative Curry is similarly situated
to petitioning-party members, she would be unable to establish an
equal-protection violation. Colorado’s election statutes prescribe the same period
for all petitioning plaintiffs whether they are independents or members of a
political party, i.e., twelve months before filing a nominating petition. See Colo.
Rev. Stat. §§ 1-4-801(3) (major parties), -802(1)(g) (independents and minor
parties). Moreover, these statutes treat independents better than party petitioners
when the affiliation/disaffiliation periods are measured from the date of the
general election. 12
12
Independents have a shorter period because their petitions are due no later
than 140 days before the general election, whereas major and minor party
members’ petitions are due no later than seventy-five days before the primary
elections. Colo. Rev. Stat. §§ 1-4-802(f)(I) (independents), -801(5) (major
parties), -802(f)(II) (minor parties). As noted earlier, this works out to seventeen-
and-one-half months leading up to the general election for party members, but
(continued...)
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Plaintiffs’ equal-protection challenge fails.
12
(...continued)
only sixteen-and-three-fifths months preceding the general election for
independents.
To avoid this fact, Plaintiffs contend that “Colorado cannot impose any
affiliation requirements on political parties, no matter which method a particular
candidate seeks to obtain access to the primary ballot.” Aplt. Opening Br. at 56.
The import of this contention, however, is not apparent in the context of an
equal-protection challenge. Additionally, Plaintiffs have not demonstrated how
they have standing to assert the constitutional rights of political parties.
Moreover, the Supreme Court has not declared affiliation/disaffiliation periods
per se unconstitutional. See Storer, 415 U.S. at 736; cf. Tashjian v. Repub. Party
of Conn., 479 U.S. 208, 224 (1986) (holding, in a First-Amendment case, that
Connecticut could not prevent a political party from opening its primary election
to unaffiliated voters, and distinguishing Storer on the basis that Connecticut was
essentially trying to “protect[ ] the integrity of the Party against the Party itself”).
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C ONCLUSION
The judgment of the district court is AFFIRMED. The motion for leave to
file an amicus brief, submitted by Jacqueline Salit and Joelle Riddle, is
GRANTED. The Secretary’s motion requesting that we supplement the record
and take judicial notice of Representative Curry’s pursuit of a write-in candidacy
is DENIED. 13
Entered for the Court
Michael R. Murphy
Circuit Judge
13
Anticipating the possibility that her appeal of the district court’s order
might not succeed, Representative Curry has begun the steps necessary to appear
on the general-election ballot as a write-in candidate. The Secretary argues that
“because [Representative Curry] has altered her candidate status,” this case may
now be moot and beyond this court’s jurisdiction. Mot. to Supp. & Take Notice
at 3. The Supreme Court, however, has clearly stated that the option of pursuing
a write-in candidacy “is not an adequate substitute for having the candidate’s
name appear on the printed ballot.” Anderson, 460 U.S. at 799 n.26.
Consequently, this case has not become moot by Representative Curry’s pursuit
of a fall-back, write-in strategy.
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