In a order announced Wednesday evening, Denver District Court Judge Robert L. McGahey Jr. denied a request for a temporary restraining order and declaratory relief against an executive order issued by Gov. Jared Polis to temporarily allow remote signature gathering for ballot measures.
The business group Colorado Concern sued Polis and Secretary of State Jena Griswold over an executive order issued May 15, alleging it “circumvents” the Colorado Constitution.
Daniel Ritchie is also an individual plaintiff in the lawsuit. According to the complaint, Ritchie would suffer harm if certain state ballot issues approved for signature-gathering become law, including a measure to create a state paid family and medical leave program and another measure to create a graduated income tax system.
Brownstein Hyatt Farber Schreck represents the plaintiffs.
Polis’s order allows the secretary of state to make temporary rules allowing signature collection by mail and email because of the COVID-19 pandemic. According to the complaint, the Colorado Constitution requires petitions for ballot issues to gather signatures in person and the governor does not have authority to suspend statutes related to the process.
“Leaders all across Colorado have expressed their view to the Governor that this action is out of line with our state’s constitutional protections around the signature gathering process, and that changes like these simply cannot be made unilaterally by the Governor,” said Colorado Concern CEO Mike Kopp in a news release when the group filed the suit. “We believe it is vital to speak up in defense of our constitutional system of checks and balances.”
The complaint refers to Title 1, Article 40 of the Colorado Revised Statutes, which includes requirements for the form and language of petitions for ballot measures. Among sections of the law temporarily suspended by the executive order is the requirement that a petition circulator be in the physical presence of electors signing the petition and in the physical presence of a notary. The complaint also references the executive order’s suspension of sections of Article 40 that invalidates petitions that don’t meet signature-collecting requirements.
According to the complaint, the executive order exceeds Polis’s power under the Colorado Disaster Emergency Act. It alleges that strict compliance with Article 40 does not interfere with necessary action to address the COVID-19 pandemic. The complaint requested expedited declaratory relief and for the court to stop the Secretary of State’s Office from making any rules for remote signature gathering.
But in Wednesday’s order, McGahey made a number of findings against the plaintiffs. Among them, he ruled they have not suffered actual injury and they have not shown a likelihood of succeeding on the merits of the suit.
“It is inappropriate for a preliminary injunction to be based on this kind of hypothetical harm that is not ripe for judicial review,” he wrote. McGahey also ruled that stopping the executive order would be against public interest and access to the ballot initiative process, adding that the state’s reopening of some activities and areas doesn’t change his analysis because allowed gatherings are still limited.
“Given the strong culture and history of the initiative and referendum process in Colorado, the injunction sought by the plaintiffs would harm the public interest by negatively impacting citizens’ fundamental right to initiative and referendum as provided by the Colorado Constitution,” he wrote.
In his order, McGahey said Polis’ executive order suspends technical requirements of the ballot initiative process, rather than substantive requirements. “The methods by which technical requirements of regulatory statutes are accomplished is likely to be shaped by the COVID-19 pandemic for years to come,” he wrote.
In a tweet Wednesday evening, Colorado Concern said the organization “disagree[s] with his conclusion, and will assess our situation and plan our next steps.”
During the May 22 hearing, McGahey said he expected whatever order he made to ultimately get appealed to the state Supreme Court.
In an interview May 20, Brownstein shareholder Chris Murray said Title 1, Article 40 doesn’t fall within the scope of regulatory statutes the governor has authority to suspend during a disaster emergency, because the law governing signature collection doesn’t interfere with Polis’s ability to take actions addressing the health crisis. He added even during the state’s stay-at-home orders, people still had interactions with similar levels of contact as with a signature gatherer, such as with grocery store clerks and restaurant workers for takeout.
“We don’t think that the requisite for triggering the governor’s ability to suspend a statute under the Disaster Emergency Act has been met,” Murray said.
He added the executive order may actually work contrary to Polis’s possible intent of making sure the coronavirus pandemic doesn’t chill grassroots efforts for ballot initiatives. People need to be able to depend on the framework set out by the state Constitution so they can work within it, and Murray said unexpected changes can actually end up disadvantaging everyday people who want to get issues on a ballot but are not politically well-connected to influence those changes or who don’t follow government developments for a living the way lobbyists, attorneys and journalists do.
Shortly after the case was filed, Murray said he believed the judge’s granting of an expedited hearing was a signal of the importance of resolving the case quickly.
“Entering a temporary restraining order against the governor of the state, that’s a big deal,” Murray said last week. “I think he’d prefer to simply say, let’s just decide this thing, and then that way there [don’t] have to be any preliminary measures.”