In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

JOHN HICKENLOOPER, GOVERNOR OF COLORADO,IN HIS OFFICIAL CAPACITY,

Petitioner,v.

ANDY KERR, COLORADO STATE REPRESENTATIVE, ET AL., Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN W. SUTHERS

Attorney GeneralDANIEL D. DOMENICO

Solicitor General Counsel of RecordMICHAEL FRANCISCO

FREDERICK YARGER

Assistant Solicitors GeneralMEGAN PARIS RUNDLET

Senior Assistant Attorney GeneralOffice of the Colorado Attorney General1300 BroadwayDenver, Colorado 80203Dan.Domenico@state.co.us720-508-6559

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO.

i

QUESTIONS PRESENTED

In 1992, the People of Colorado enacted theTaxpayers’ Bill of Rights (TABOR), which amended thestate constitution to allow voters to approve or rejectany tax increases. In 2011, a group of plaintiffs,including a small minority of state legislators, broughta federal suit claiming that TABOR causes Colorado’sgovernment to no longer be republican in form, analleged violation of the Guarantee Clause, Article IV,Section 4 of the United States Constitution. The courtof appeals held that the political question doctrine doesnot bar federal courts from resolving this kind ofdispute and that the Legislator-Plaintiffs havestanding to redress the alleged diminution of theirlegislative power.

The questions presented are as follows:

1. Whether, after this Court’s decision in New York v.United States, 505 U.S. 144 (1992), Plaintiffs’ claimsthat Colorado’s government is not republican inform remain non-justiciable political questions.

2. Whether a minority of legislators have standing tochallenge a law that allegedly dilutes their power tolegislate on a particular subject.

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PARTIES TO THE PROCEEDING ANDCORPORATE DISCLOSURE

No party to this proceeding is a corporation.

Petitioner is John Hickenlooper, Governor ofColorado, in his official capacity.

Respondents are Andy Kerr, Colorado StateRepresentative; Norma V. Anderson; Jane M. Barnes;Elaine Gantz Berman, member, State Board ofEducation; Alexander E. Bracken; William K. Bregar;Bob Briggs, Westminster City Councilman; Bruce W.Broderius; Trudy B. Brown; John C. Buechner; StephenA. Burkholder; Richard L. Byyny; Lois Court, ColoradoState Representative; Theresa L. Crater; RobinCrossan, member, Steamboat Springs RE-2 Board ofEducation; Richard E. Ferdinandsen; StephanieGarcia; Kristi Hargrove; Dickey Lee Hullinghorst,Colorado State Representative; Nancy Jackson,Arapahoe County Commissioner; William G. Kaufman;Claire Levy; Margaret Markert, Aurora CityCouncilwoman; Megan J. Masten; Michael Merrifield;Marcella Morrison; John P. Morse; Pat Noonan; BenPearlman; Wallace Pulliam; Paul Weissmann; andJoseph W. White.1

1 Various Plaintiffs were, at the time this suit was filed,representatives of local governments or members of state or localboards of education. Some have since left office. Titles areindicated above only for those Plaintiffs who are currentofficeholders.

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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

REASONS FOR GRANTING THE PETITION . . . 12

I. The petition should be granted to review theTenth Circuit’s holding that Plaintiffs’ claimsunder the Guarantee Clause are justiciable . . . 13

A. The Tenth Circuit’s decision conflicts withPacific States . . . . . . . . . . . . . . . . . . . . . . . . 14

B. The Tenth Circuit split from numerouscircuits and state supreme courts byexplicitly holding that Guarantee Clauseclaims are justiciable . . . . . . . . . . . . . . . . . . 17

C. The Tenth Circuit’s decision would injectthe federal courts into countlessnovel disputes about the proper structure ofstate governments, without judicialstandards . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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D. These issues are of fundamental importance . . . . . . . . . . . . . . . . . . . . . . . . . . 23

II. The Court should also review the TenthCircuit’s expansion of the legislative standingdoctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

A. The Tenth Circuit radically and improperlyexpanded the doctrine of legislativestanding in direct conflict with this Court’sprecedents . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

B. The expansion of legislative standing beyondthe confines of Raines conflicts with thedecisions of other courts of appeals . . . . . . . 29

C. The Tenth Circuit’s expansion of legislativestanding implicates the fundamentalquestions of separation of powers andfederalism . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

APPENDIX

Appendix A Decision in the United States Court ofAppeals for the Tenth Circuit(March 7, 2014) . . . . . . . . . . . . . . App. 1

Appendix B Order in the United States Court ofAppeals for the Tenth Circuit(July 22, 2014) . . . . . . . . . . . . . . App. 54

Appendix C Order Certifying Interlocutory AppealUnder 28 U.S.C. § 1292(b)(September 21, 2012) . . . . . . . . . App. 78

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Appendix D Order Granting in Part and Denyingin Part Defendant’s Motion to Dismiss(July 30, 2012) . . . . . . . . . . . . . . App. 88

Appendix E Second Amended Subst i tuteComplaint for Injunctive andDeclaratory Relief(July 30, 2012) . . . . . . . . . . . . . App. 181

Appendix F Colorado Constitutional ProvisionsArticle V . . . . . . . . . . . . . . . App. 208Article X . . . . . . . . . . . . . . . App. 214

Appendix G Colorado Enabling Act, 18 Stat. 474 (1875) . . . . . . . . . . App. 224

vi

TABLE OF AUTHORITIES

CASES

Alaska Legislative Council v. Babbitt, 181 F.3d 1333 (D.C. Cir. 1999) . . . . . . . . . . . . . 30

Baird v. Norton, 266 F.3d 408 (6th Cir. 2001) . . . . . . . . . . . . . . . 30

Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . . . . . . . . 9, 10, 19, 22

Bickel v. City of Boulder, 885 P.2d 215 (1994) . . . . . . . . . . . . . . . . . . . . . . . 7

Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000) . . . . . . . . . . . . 29, 30

Campbell v. Hilton Head, 580 S.E.2d 137 (S.C. 2003) . . . . . . . . . . . . . . . . 18

Caperton v. A. T. Massey Coal Co., Inc., 556 U.S. 868 (2009) . . . . . . . . . . . . . . . . . . . . . . . 4

Chiles v. United States, 69 F.3d 1094 (11th Cir. 1995) . . . . . . . . . . . . . . 18

Clapper v. Amnesty Int’l USA, 568 U. S. ___, 133 S. Ct. 1138 (2013) . . . . . . . . 23

Clayton v. Kiffmeyer, 688 N.W.2d 117 (Minn. 2004) . . . . . . . . . . . . . . 18

Clinton v. City of New York, 524 U.S. 417 (1998) . . . . . . . . . . . . . . . . . . . . . . 27

Colegrove v. Green, 328 U.S. 549 (1946) . . . . . . . . . . . . . . . . . . . . . . 17

vii

Coleman v. Miller, 307 U.S. 433 (1939) . . . . . . . . 4, 26, 27, 28, 29, 30

Deer Park Indep. Sch. Dist. v. Harris Cnty. Appraisal Dist., 132 F.3d 1095 (5th Cir. 1998) . . . . . . . . . . . . . . 19

District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . 22

El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) . . . . . . . . . . . . . . 10

Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003) . . . . . . . . . . . . . . . . . . . . . . 21

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) . . . . . . . . . . . . . . . . . . . . . . 21

Helvering v. Gerhardt, 304 U.S. 405 (1938) . . . . . . . . . . . . . . . . . . . . . . 21

Kidwell v. City of Union, 462 F.3d 620 (6th Cir. 2006) . . . . . . . . . . . . . . . 14

Kiernan v. Portland, 223 U.S. 151 (1912) . . . . . . . . . . . . . . . . . . . . . . 16

Largess v. Supreme Judicial Ct.,373 F.3d 219 (1st Cir. 2004) . . . . . . . . . . . . . . . 19

Luther v. Borden, 48 U.S. 1 (1849) . . . . . . . . . . . . . . . . . . . . . . 13, 16

Murtishaw v. Woodford, 255 F.3d 926 (9th Cir. 2001) . . . . . . . . . . . . . . . 18

viii

New York v. United States, 505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . passim

Ohio ex rel. Bryant v. Akron Metro. Park Dist, 281 U.S. 74 (1930) . . . . . . . . . . . . . . . . . . . . . . . 16

Ohio ex rel. Davis v. Hildebrandt, 241 U.S. 565 (1916) . . . . . . . . . . . . . . . . . . . . . . 16

Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912) . . . . . . . . . . . . . . . . . . passim

Raines v. Byrd, 521 U.S. 811 (1997) . . . . . . . . . . . . . . . . . . passim

Risser v. Thompson, 930 F.2d 549 (7th Cir. 1991) . . . . . . . . . . . . . . . 19

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,490 U.S. 477 (1989) . . . . . . . . . . . . . . . . . . . . . . 13

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,549 U.S. 422 (2007) . . . . . . . . . . . . . . . . . . . . . . 32

State of Ore. ex rel. Huddleston v. Sawyer, 932 P.2d 1145 (Or. 1997) . . . . . . . . . . . . . . . . . . 18

State v. Davis, 943 P.2d 283 (Wash. 1997) . . . . . . . . . . . . . . . . 18

Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004) . . . . . . . . . . . . . . . . 11

United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 712 F.3d 761 (2d Cir. 2013) . . . . . . . . . . . . . . . . 19

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Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . . . . . 26

Vieth v. Jubelirer, 541 U.S. 267 (2004) . . . . . . . . . . . . . . . . . . . 16, 22

Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) . . . . . . . . . . . . . . . . . . . . 32

CONSTITUTIONS AND STATUTES

U.S. Const. art. III . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

U.S. Const. art. IV, § 4 . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . 1, 9

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Cal. Const. art. XIIIA, § 3 . . . . . . . . . . . . . . . . . . . . . 6

Colo. Const. art. V, § 1 . . . . . . . . . . . . . . . . . . . . . 2, 5

Colo. Const. art. X, § 20 . . . . . . . . . . . . . . . . . passim

Colo. Const. art. X, § 20(3)–(4) . . . . . . . . . . . . . . . . . 5

Colo. Const. art. XI, § 10 . . . . . . . . . . . . . . . . . . . . . . 5

Colo. Const. art. XVIII, § 12b . . . . . . . . . . . . . . . . . . 5

Colo. Const. art. XVIII, § 16 . . . . . . . . . . . . . . . . . . . 5

Colorado Enabling Act, 18 Stat. 474 (1875) . . . . . 2, 7

COLO. REV. STAT. § 24-77-103.6 (2014) . . . . . . . . . . . 7

Mich. Const. art. 9, § 26 . . . . . . . . . . . . . . . . . . . . . . 6

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Mo. Const. art. X, § 16 . . . . . . . . . . . . . . . . . . . . . . . . 6

Nev. Const. art. IV, § 18 . . . . . . . . . . . . . . . . . . . . . . 6

Okla. Const. art. V, § 33 . . . . . . . . . . . . . . . . . . . . . . 6

RULE

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

OTHER AUTHORITIES

Arthur E. Bonfield, The Guarantee Clause of ArticleIV, Section 4: A Study in ConstitutionalDesuetude, 46 Minn. L. Rev. 513 (1962) . . . . . . 20

David A. Carrillo and Stephen M. Duvernay, TheGuarantee Clause and California’s RepublicanForm of Government, 62 UCLA L. Rev. Disc. 104(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Erwin Chemerinsky, Cases Under The GuaranteeClause Should Be Justiciable, 65 U. Colo. L. Rev.849 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 16, 18, 21

Richard B. Collins, Article: The ColoradoConstitution in the New Century, 78 U. Colo. L.Rev. 1265 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

John H. Ely, Democracy and Distrust: A Theory ofJudicial Review 118 (1980) . . . . . . . . . . . . . . . . 14

Deborah Jones Merritt, The Guarantee Clause andState Autonomy: Federalism for a ThirdCentury, 88 Colum. L. Rev. 1 (1988) . . . . . . . . . 14

Nat’l Conf. of State Legislatures Fiscal Brief: StateBalanced Budget Provisions (Oct. 2010),http://tinyurl.com/m78pg66 . . . . . . . . . . . . . . . . . 6

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Fred O. Smith, Jr., Awakening the People’s Giant:Sovereign Immunity and the Constitution’sRepublican Commitment, 80 Fordham L. Rev.1941 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Symposium, Ira C. Rothgerber, Jr. Conference onConstitutional Law: Guaranteeing a RepublicanForm of Government, 65 U. Colo. L. Rev. 709(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Laurence H. Tribe, American Constitutional Law398 (2d ed. 1988) . . . . . . . . . . . . . . . . . . . . . . . . 14

Univ. of S. Cal. Initiative and ReferendumInstitute, http://tinyurl.com/afnscc . . . . . . . . . . . 6

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OPINIONS BELOW

The March 7, 2014 panel opinion of the Court ofAppeals for the Tenth Circuit, App. 1–53, is reported at744 F.3d 1156. The Tenth Circuit’s order denying theGovernor’s petition for rehearing en banc—with JudgesHartz, Tymkovich, Holmes, and Gorsuch dissenting inthree separate opinions, App. 54–77—was filed July 22,2014, and is reported at 759 F.3d 1186.

The opinion of the United States District Court forthe District of Colorado denying the Governor’s motionto dismiss, App. 88–180, was issued July 30, 2012, andis reported at 880 F. Supp. 2d 1112. The September 21,2012, order of the district court certifying this case forinterlocutory appeal, App. 78–87, is not reported.

JURISDICTION

The district court had jurisdiction under 28 U.S.C.§ 1331. The court of appeals had jurisdiction to reviewthe district court’s interlocutory order under 28 U.S.C.§ 1292(b). The court of appeals filed its opinion onMarch 7, 2014, and it denied, on July 22, 2014,petitioner’s timely petition for rehearing en banc. ThisCourt has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

The Guarantee Clause, Article IV, § 4 of the UnitedStates Constitution, states in relevant part:

The United States shall guarantee to everyState in this Union a Republican Form ofGovernment . . . .

2

Colorado Constitution article V, section 1, andarticle X, section 20 (TABOR), are reprinted at App.208–213 and 214–223, respectively.

The pertinent section of the Colorado Enabling Act,18 Stat. 474 (1875), is reprinted at App. 224–225.

INTRODUCTION

Like more than half the states, Colorado hasdeviated from purely representative democracy and, forover a century, has enabled its citizens to engage indirect democratic lawmaking. The ColoradoConstitution “reserve[s] to [the people] themselves thepower [to enact laws] independent of the generalassembly” and “to approve or reject at the polls any act. . . of the general assembly.” Colo. Const. art. V, § 1(1).Using this general lawmaking power, the People ofColorado have reserved to themselves a more specificone: the right to approve or reject any tax increasebefore it goes into effect. Id. art. X, § 20(4). Thisprovision, known as the Taxpayers’ Bill of Rights orTABOR, has been controversial since its enactment.

Having been unable to overturn TABOR at theballot box or in state court, a group of opponentsbrought this suit, asking the federal courts toinvalidate it. According to Plaintiffs, raising taxes is a“core governmental function,” and legislators’ decisionson that topic cannot be subjected to “plebiscite.” Underthis view, TABOR deprives Colorado citizens of arepublican form of government.

Courts throughout American history would havedismissed this case as non-justiciable. As JudgeGorsuch explained below in his dissent from the denialof rehearing en banc, more than a century of Supreme

3

Court precedent prohibits the federal judiciary fromwading into the political questions raised by theGuarantee Clause. App. 72–73.

Nonetheless, in response to dicta in New York v.United States, 505 U.S. 144 (1992), some courts havebegun to depart from this established practice.Expressing uncertainty about the continuing validity ofthe per se rule of non-justiciability for GuaranteeClause claims, these courts—which include the First,Second, Fifth, and Seventh Circuits—dismiss theseclaims on alternative grounds. Now, however, theTenth Circuit has rejected both the per se rule(currently followed by the Eleventh and Ninth Circuits)and the alternative approaches of the other circuits.Instead, the Tenth Circuit has adopted its own novelapproach to the Guarantee Clause. If that approachstands, Colorado will be the first state in the country tobe required to prove, to a federal judge’s satisfaction,that it is adequately republican.

Even putting aside the political question doctrine,most courts also would have dismissed this case forlack of standing under Article III. Respondents’ claimsrest on the alleged injuries of just three of the State’s100 legislators, who argue that TABOR deprives theColorado legislature of its “rightful” lawmaking power.Here, too, the court of appeals adopted an expansiveview of the federal courts’ power over state governmentstructure, creating confusion and inconsistency in thelaw of legislative standing. Under Raines v. Byrd, 521U.S. 811 (1997)—the seminal case that rejected achallenge to the federal Line Item Veto Act—legislatorsare generally prohibited from enlisting the federaljudiciary to vindicate the sort of “abstract dilution of

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institutional legislative power” alleged here. Butthe Tenth Circuit’s new multi-factor test sidelinesRaines, giving federal courts far greater power toadjudicate disputes between state legislators and theirown governors and voters—issues traditionally, andproperly, reserved for the political process.

This case thus involves two intertwined legaldoctrines, each residing at the heart of our system offederalism and divided power. The People of Coloradohave chosen to maintain a direct voice in the state’s taxpolicy and overall level of appropriations. Plaintiffshere challenge that choice and ask the federal courts toundo it. Whether the federal judiciary can interfere inthis sort of intra-state governance dispute is offundamental importance.

This case has already produced five writtenopinions joined by eight different federal judges(including seven judges and four opinions in the courtof appeals). Each of these opinions adopts its ownunique approach, which only serves to highlight thatthe legal issues presented in this case requireadditional clarity. See Caperton v. A. T. Massey CoalCo., Inc., 556 U.S. 868, 902 (2009) (Scalia, J.,dissenting) (“The principal purpose of this Court’sexercise of its certiorari jurisdiction is to clarify thelaw.” (citing Sup. Ct. R. 10)). The Court’s opinion inNew York raised, but did not answer, the “difficultquestion” whether to overrule the longstanding per serule of non-justiciability for Guarantee Clause claims.505 U.S. at 185. In Raines, meanwhile, the Court citedvarious facts that distinguished an earlier legislativestanding case, Coleman v. Miller, 307 U.S. 433 (1939),but stated that it “need not now decide” whether those

5

particular facts should be considered determinative.Raines, 521 U.S. at 829–30. The Tenth Circuit’s opinionshows that the time has come to answer the importantquestions left open in New York and Raines.

STATEMENT

Direct Democracy in Colorado. The People ofColorado amended their constitution in 1912 to providefor direct democratic lawmaking. Colo. Const. art. V,§ 1(1). Over the ensuing century, this power has beenused to override the judgment of the state’s legislatureon a number of topics, ranging from the mundane tothe groundbreaking. See, e.g., id. at art. XVIII, § 12b(banning the use of snares to trap wild game); art. XI,§ 10 (prohibiting the state from appropriating funds forthe 1976 Winter Olympic Games); art XVIII, § 16(making Colorado the first state in the nation tolegalize recreational marijuana).

In 1992, Colorado voters enacted TABOR, whichrequires the People to “accept or reject” any taxincrease, any increase in spending beyond certainlimits, and any new issuance of public debt. Colo.Const. art. X, § 20(3)–(4). TABOR’s focused form ofdemocratic oversight is an extension of the moregeneral direct lawmaking power provided by article Vof the Colorado Constitution. Under article V, thePeople may approve or reject any legislation, but thisrequires a particularized ballot petitioning process.TABOR removes that petition requirement andautomatically places tax and spending measures on theballot. Both article V and TABOR, however, accomplishthe same result: they subject legislative power to directdemocratic oversight.

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This kind of popular control over state governmentis widespread. Twenty-seven states have some form ofdirect popular lawmaking.2 Nearly all limit legislators’fiscal authority through, for example, balanced budgetor public debt limitations.3 Other state constitutionsinclude supermajority requirements for tax legislationor, as does Colorado’s, they require voter approval oftax increases.4

Plaintiffs’ Guarantee Clause Claim. In its twodecades, TABOR has been the subject of constantcriticism and litigation. See Richard B. Collins, Article:The Colorado Constitution in the New Century, 78 U.Colo. L. Rev. 1265, 1301–23 (2007) (discussing thevarious legal challenges involving TABOR). TheColorado Supreme Court has interpreted and applied

2 See Univ. of S. Cal. Initiative and Referendum Institute,http://tinyurl.com/afnscc (noting that twenty-seven states arereferendum states and twenty-four allow for citizen initiative).

3 See Nat’l Conf. of State Legislatures Fiscal Brief: State BalancedBudget Provisions (Oct. 2010), http://tinyurl.com/m78pg66(collecting provisions).

4 See, e.g., Cal. Const. art. XIIIA, § 3(a) (requiring a supermajoritylegislative vote for increased taxes); Mich. Const. art. 9, § 26(establishing “a limit on the total amount of taxes which may beimposed by the legislature” and requiring voter approval to changethat limit); Mo. Const. art. X, § 16 (“Property taxes and other localtaxes and state taxation and spending may not be increased abovethe limitations specified herein without direct voter approval asprovided by this constitution.”); Nev. Const. art. IV, § 18(2)(requiring two-thirds majority of each house to increase publicrevenue in any form); Okla. Const. art. V, § 33(D) (requiring voterapproval for any revenue bill that does not pass by a three-quarters majority in each house).

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TABOR at least 18 times—but has never suggested theprovision makes Colorado insufficiently republican inform. Cf. Bickel v. City of Boulder, 885 P.2d 215, 226(1994) (noting that TABOR is “a perfect example of thepeople exercising their initiative power to enact laws inthe specific context of state and local governmentfinance, spending, and taxation”).

But while Colorado voters have been willing toloosen some of TABOR’s more restrictive provisions, seeCOLO. REV. STAT. § 24-77-103.6 (2014) (authorizing thestate to retain and spend state revenue in excess ofTABOR’s limits from 2005 through 2010), Plaintiffshere have not been satisfied with the results of thepolitical process. They filed this lawsuit in 2011,declaring that it “presents for resolution the contestbetween direct democracy and representativedemocracy.” App. 182. The complaint argues thatTABOR amounts to an “arrogation” of legislative powerby the People of Colorado. Id. And because theGuarantee Clause describes a “republican” form ofgovernment rather than a “democratic” one,Respondents assert that TABOR is a stategovernmental innovation forbidden by the federalconstitution. App. 183–86, 202. Respondents also raiseda derivative claim under the Colorado Enabling Act, 18Stat. 474 (1875), which simply repeats theConstitution’s “republican form of government”language. App. 202.

Respondents are thirty-three individuals, each acitizen of the State of Colorado who asserts an “interestin assuring that their representatives can dischargethe inherently legislative function of taxation andappropriation.” App. 192. These citizens allege

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miscellaneous “injuries” that are not specific to anyparticular person and are not described in any concreteterms. These alleged injuries include preserving a morepure form of “representative democracy,” App. 182–83;preventing “fiscal dysfunction,” App. 183; maintainingan “effective legislative branch,” App. 183–84; “securing. . . the legislative core functions of taxation andappropriation,” App. 191; “adequately funding coreeducation responsibilities,” App. 191–92; and ensuringthat the legislators can increase taxes, App. 186, 192.

Also included in the list of Plaintiffs are three statelegislators. As the court of appeals recognized, theseLegislator-Plaintiffs cannot point to any particularlegislative act, such as a tax increase, that would havegone into effect but for TABOR. App. 23–24. Instead,they “contend they have been injured because they aredenied the authority to legislate with respect to tax andspending increases.” Id. at 23. That is, they allege aninjury to their interest in securing to themselves, andthe legislature as a whole, the so-called “core functionsof taxation and appropriation.” Id. at 191.

District Court Proceedings. The Governor movedto dismiss the complaint, arguing that Respondents’complaint presents a non-justiciable political questionand that no Plaintiff, including any of the Legislator-Plaintiffs, has standing to sue. The district courtdenied the motion.

On the issue of justiciability, the district court heldthat the political question doctrine would not preventa federal judge from determining, as a matter of federalconstitutional law, “how power is to be divided betweenthe General Assembly and the Colorado electorate.”App. 155. In arriving at this conclusion, the district

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court acknowledged this Court’s 150-year-old line ofprecedent that “consistently h[olds] that a challenge tostate action based on the Guaranty Clause presents nojusticiable question.” App. 150 (quoting Baker v. Carr,369 U.S. 186, 224 (1962)). But relying on dicta fromthis Court’s opinion in New York v. United States andon dicta from two Tenth Circuit cases, the district courtheld that there no longer is a per se non-justiciabilityrule in Guarantee Clause cases. It further concludedthat Pacific States Telephone & Telegraph Co. v.Oregon, 223 U.S. 118 (1912)—which held that theGuarantee Clause cannot be used to challenge a state’sexercise of direct democracy—is inapposite. App.154–55. Finally, the court applied the factors fromBaker v. Carr and concluded that this case isjusticiable. App. 156–67.

The district court also held that the handful ofRespondents who are current state legislators havestanding to sue under Article III. The courtacknowledged that Respondents here allege only an“institutional legislative injury.” App. 137.Nonetheless, the court held that the state legislatorssuffered a sufficiently concrete injury because TABOR“dilutes” the “core” legislative powers of taxing andspending. App. 120–23, 138. The district court declinedto reach the question of standing for the non-legislatorplaintiffs. App. 142.

The Tenth Circuit Panel Decision. The districtcourt certified its order for immediate interlocutoryappeal under 28 U.S.C. § 1292(b), recognizing that“[t]he ultimate resolution of this litigation will quiteliterally affect every individual and corporate entity inthe State of Colorado.” App. 84. The district court also

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sua sponte issued a stay of the case, because appellatereview “may obviate the need for the lengthy and costlyphases of discovery and trial.” App. 86 (citing the broadand excessive discovery, on all levels of government,which Plaintiffs have requested). The Tenth Circuitaccepted the interlocutory appeal and affirmed.

Like the district court, the Tenth Circuit panel heldthat Respondents’ claims are justiciable. The courtacknowledged that “[t]here can . . . be little doubt that[this Court’s decisions] include language suggestingthat Guarantee Clause litigation is categorically barredby the political question doctrine.” App. 34. But thepanel expressly rejected the per se rule, reasoning thatBaker and New York have “suggested that perhaps notall claims under the Guarantee Clause presentnonjusticiable political questions.” App. 38 (quotingNew York, 505 U.S. at 185). The panel also held thatRespondents’ derivative claim under the ColoradoEnabling Act is “independently justiciable” becausestatutes are “never” subject to political questionanalysis. App. 52–53 (quoting El-Shifa Pharm. Indus.Co. v. United States, 607 F.3d 836, 856 (D.C. Cir. 2010)(en banc) (Kavanaugh, J., concurring)).

Separately, the panel endorsed the district court’sexpansive view of legislative standing. App. 28.According to the panel, an “abstract dilution ofinstitutional legislative power” is generally insufficientunder Raines to create standing when there has beenno specific vote on a legislative act. But, in at leastsome cases, no specific vote is needed, and institutionalinjuries alone may provide a basis for federaljurisdiction. App. 16–17, 23–28. The court of appealsrejected the “especially rigorous” understanding of

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Raines adopted in other circuits, which limitslegislative standing to a narrow set of circumstances.App. 22 (quoting Tachiona v. United States, 386 F.3d205, 213 (2d Cir. 2004)). Instead, the panel held thatRaines need not apply to a handful of state legislatorsif they allege that a state law has interfered with oneof their allegedly “core function[s].” App. 25. TABOR’svoter-approval requirements allegedly “stripped thelegislature of its rightful power” over this “core”function and thus created a cognizable injury-in-fact.App. 20, 25, 28.

The Governor’s Petition for Rehearing. TheGovernor petitioned for rehearing en banc. On a 6–4vote, over three separate written dissents, the courtdenied the petition. App. 55. In the view of thedissenters, the panel opinion both shrinks the scope ofthe political question doctrine and expands the doctrineof legislative standing.

All four dissenting judges would have dismissed thecase as a non-justiciable political question. Judge Hartzwas “at a loss” to distinguish this case from PacificStates. App. 56. In Judge Hartz’s view, the plaintiffs inPacific States—like Respondents here—claimed that“the Guarantee clause was violated by the transfer oflegislative power from the legislature to the electorate.”App. 56. And because “the Supreme Court has neverquestioned the holding of nonjusticiability in PacificStates,” the panel decision improperly broke newjurisprudential ground. App. 59.

Judge Gorsuch, meanwhile, focused on “the failureof the plaintiffs, the district court, or the panel toidentify any standard for decision.” App. 75. To JudgeGorsuch, Plaintiffs face a formidable task under Pacific

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States, because there “the Supreme Court . . .dismissed for lack of judicially manageable standardsa case challenging a state constitutional provision thatallowed citizens to overturn by direct vote any statelegislative enactment (not just enactments raisingtaxes).” App. 72 (emphasis in original). To JudgeGorsuch, it would be improper to require the Governorto join “a multi-year scavenger hunt up and down thefederal court system looking for some judiciallymanageable standard that might permit us to entertainthe case.” App. 76.

Judges Tymkovich and Holmes agreed with thatanalysis. App. 70. But they separately objected to thepanel’s expansion of the legislative standing doctrine.They explained that “[t]he panel’s view of Rainesmakes any state constitutional provision that limits alegislature’s authority over a policy area vulnerable tolegislative standing on a Guarantee Clause claim.”App. 64. In the view of Judges Tymkovich and Holmes,“[a]n abstract reduction of authority to raise taxes is aninstitutional injury based on the dilution of politicalpower,” and, under Raines, “[t]his cannot serve as abasis for legislative standing.” App. 66.

REASONS FOR GRANTING THE PETITION

The Tenth Circuit decision highlights the growingdebate and uncertainty, since this Court’s opinions inNew York and Raines, about the proper extent offederal judges’ power to intervene in disputes betweena state’s people and their elected officials. Thatuncertainty has been percolating for years, but theTenth Circuit’s radical departure from other federaland state courts highlights the need for definitiveresolution from this Court. Without this Court’s

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intervention, Guarantee Clause claims will proliferatein the Tenth Circuit (at least) and place federal courtsin the untenable position of overseeing stategovernment structure without any judiciallymanageable standards to guide them. This Court’sguidance, on matters of the utmost importance in ourconstitutional system, is needed, particularly given thesplit among the circuits.

I. The petition should be granted to review theTenth Circuit’s holding that Plaintiffs’ claimsunder the Guarantee Clause are justiciable.

Whether the federal courts have a role in policingstate government structure under the GuaranteeClause is not a new question. Since at least Luther v.Borden, 48 U.S. 1 (1849), the Court has recognized thatif the courts have any role at all, it must be sharplylimited. Indeed, over the years, Luther has become a“general rule of nonjusticiability” for Guarantee Clauseclaims. New York, 505 U.S. at 184.

The Tenth Circuit was correct in noting that NewYork questioned whether to maintain that per se rule.But the panel overstepped its judicial authority whenit leapt beyond the holding of New York to do awaywith the per se rule entirely. See Rodriguez de Quijasv. Shearson/Am. Express, Inc., 490 U.S. 477, 484(1989) (“If a precedent of this Court has directapplication in a case, yet appears to rest on reasonsrejected in some other line of decisions, the Court ofAppeals should follow the case which directly controls,leaving to this Court the prerogative of overruling itsown decisions.”). And the panel erred even moregrievously in taking a further leap: holding that theparticular claims presented here are in fact justiciable,

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and Colorado can be forced to prove, after discoveryand possibly a trial, that its government is adequatelyrepublican in form. That decision conflicts with thisCourt’s own precedent, as well as the decisions ofnumerous circuits and many state courts.

The lower courts’ current confusion regarding theGuarantee Clause—which the decision below bothhighlights and exacerbates—proves that “the day hascome” for this Court to resolve the difficult question leftopen by New York: whether some Guarantee Clauseclaims are in fact justiciable. See Kidwell v. City ofUnion, 462 F.3d 620, 635 n.5 (6th Cir. 2006) (Martin,J., dissenting).5 This case presents the idealopportunity to resolve that question.

A. The Tenth Circuit’s decision conflicts withPacific States.

A century ago this Court first faced a GuaranteeClause challenge to the use of direct democracy on amatter of state tax policy. In Pacific States, the Courtrejected that challenge, declaring that the questionwhether courts are empowered “to determine when a

5 There has been no shortage of academics urging the Court itselfto take the leap the Tenth Circuit took. See, e.g., Symposium, IraC. Rothgerber, Jr. Conference on Constitutional Law:Guaranteeing a Republican Form of Government, 65 U. Colo. L.Rev. 709 (1994) (setting forth arguments by Professors Amar,Chemerinsky, Merritt, and Weinberg that Guarantee Clauseclaims should be justiciable); Laurence H. Tribe, AmericanConstitutional Law 398 (2d ed. 1988); Deborah Jones Merritt, TheGuarantee Clause and State Autonomy: Federalism for a ThirdCentury, 88 Colum. L. Rev. 1, 70–78 (1988); John H. Ely,Democracy and Distrust: A Theory of Judicial Review 118, n.*,122–23 (1980).

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State has ceased to be republican in form and toenforce the [G]uarantee [Clause] . . . . is not novel, asthat question has long since been determined by thiscourt . . . to be political in character, and therefore notcognizable by the judicial power.” Pac. States, 223 U.S.at 133.

The panel below attempted to distinguish PacificStates by arguing that it involved a challenge to theentire Oregon initiative system, while this case is afocused attack on TABOR. App. 33. This misstatesPacific States. There, the Court faced a variety ofchallenges to a democratically adopted tax, includingboth a broad challenge and several narrower ones. Butall the challenges were based on the same theorypresented here: that direct democracy is in conflict withconstitutionally required republicanism. 223 U.S. at136–37. Pacific States recognized that any such claim,no matter how broad or narrow, is an attack on thestate’s system of governing itself. The Court thusanalyzed, and rejected, all the claims identically. Id. at136–51.6

6 Pacific States also rejected the plaintiff’s derivative claim that theinitiative power “violates the provisions of the act of Congressadmitting Oregon to the Union.” 223 U.S. at 139. This disprovesthe panel’s mistaken view below that statutory claims, even thosethat merely parrot the language of the Guarantee Clause, arealways justiciable. App 52–53. As the Pacific States Courtrecognized, a statutory claim that is entirely duplicative of aGuarantee Clause claim, as here, offers nothing of substance tomake it justiciable. See 223 U.S. at 140 (noting that “every reasonurged to support [the plaintiff’s claims] is solely based on § 4 ofArt. IV”). To the extent the decision below was based onRespondents’ Enabling Act claim in addition to their GuaranteeClause claim, that decision should still be reviewed here.

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After Pacific States, the rule that federal courts arenot the proper forum for deciding whether states areadequately republican only became more settled. See,e.g., Kiernan v. Portland, 223 U.S. 151 (1912); Ohio exrel. Davis v. Hildebrandt, 241 U.S. 565 (1916). Today,even scholars who take an expansive view of federaljurisdiction over state government structure—and whodisapprove of the per se rule against justiciability ofGuarantee Clause claims—recognize the validity of theper se rule. As Dean Chemerinsky noted, “It is a well-settled principle that cases brought under [theGuarantee Clause] must be dismissed as posing anonjusticiable political question.” Erwin Chemerinsky,Cases Under The Guarantee Clause Should BeJusticiable, 65 U. Colo. L. Rev. 849, 849 (1994). This istrue, he said, because “countless Supreme Courtdecisions . . . summarily dismissed various challengesto various aspects of state governance.” Id.; see also id.at 849 & nn.1–2 (citing, e.g., Ohio ex rel. Bryant v.Akron Metro. Park Dist, 281 U.S. 74, 79–80 (1930)).Indeed, as recently as 2004, a plurality of this Courtcited Guarantee Clause claims, and specifically PacificStates, as examples of non-justiciable questions thatare “entrusted to one of the political branches orinvolve[ ] no judicially enforceable rights.” Vieth v.Jubelirer, 541 U.S. 267, 277 (2004) (plurality opinion).

Despite this broad and longstanding consensus,New York created significant confusion and a split ofauthority among the courts of appeals. In dicta, theCourt rejected the plaintiffs’ proposition that a lawrequiring states to dispose of radioactive waste withintheir borders violated the Guarantee Clause. JusticeO’Connor’s opinion for the Court questioned howLuther had “metamorphosed into the sweeping

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assertion that ‘violation of the great guaranty of arepublican form of government in States cannot bechallenged in the courts.’” New York, 505 U.S. at 184(quoting Colegrove v. Green, 328 U.S. 549, 556 (1946)(plurality opinion)). Justice O’Connor citedcommentators who “suggested that courts shouldaddress the merits of such claims, at least in somecircumstances.” Id. at 185. But whether to undo the perse rule was a “difficult question,” one the Court did notanswer in New York. Id. Instead, the Court avoided thequestion, “indulging the assumption” that the claims atissue were justiciable and holding that the challengedfederal statutes “d[id] not pose any realistic risk ofaltering the form or the method of functioning of NewYork’s government.” Id. at 186.

B. The Tenth Circuit split from numerouscircuits and state supreme courts byexplicitly holding that Guarantee Clauseclaims are justiciable.

By questioning, but not resolving, whetherGuarantee Clause claims should always be dismissedas political questions, the New York dicta createdsignificant confusion, leading to what is now a three-way split among circuit and state courts.7 Within thatsplit of authority, the Tenth Circuit stands alone in

7 See David A. Carrillo and Stephen M. Duvernay, The GuaranteeClause and California’s Republican Form of Government, 62 UCLAL. Rev. Disc. 104, 107 (2014) (“Ultimately, New York raised morequestions than it answered. . . . But while professors and punditsheavily debated these issues over the last twenty years, lowercourts provided little intervening guidance on Guarantee Clauseclaims, and New York remains the Supreme Court’s last word onthe subject.”).

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directly holding that at least some Guarantee Clauseclaims are in fact justiciable.

The majority of post-New York federal circuit andstate supreme court decisions follow this Court’s olderprecedents and continue to apply a per se bar toGuarantee Clause claims. This is the approach takenin the Eleventh and Ninth Circuits and by the highestcourts of Minnesota, Oregon, South Carolina, andWashington. See, e.g., Murtishaw v. Woodford, 255 F.3d926, 961 (9th Cir. 2001) (“A challenge based on theGuarantee Clause . . . is a non-justiciable politicalquestion. We therefore deny Murtishaw’s GuaranteeClause claim.”); Chiles v. United States, 69 F.3d 1094,1097 (11th Cir. 1995) (“[W]hether the level of illegalimmigration is an ‘invasion’ of Florida and whetherthis level violates the guarantee of a republican form ofgovernment present nonjusticiable politicalquestions.”); see also Clayton v. Kiffmeyer, 688 N.W.2d117, 126 (Minn. 2004); State of Ore. ex rel. Huddlestonv. Sawyer, 932 P.2d 1145, 1157–62 (Or. 1997);Campbell v. Hilton Head, 580 S.E.2d 137, 140 n.7 (S.C.2003); State v. Davis, 943 P.2d 283, 285–86 (Wash.1997). These courts recognize correctly that while NewYork may have suggested that “the time is clearlyapproaching [when] the Court may be quite willing toreject” the per se rule, Chemerinsky, 65 U. Colo. L. Rev.at 851, the Court has not done so yet.

Other courts take a middle course. Following theexample set by New York, these courts entertain thepossibility of someday adjudicating an extreme casethat poses a “realistic risk of altering the form or themethod of functioning” of state government. But as inNew York, these courts avoid the “difficult question” of

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justiciability and dismiss the case on alternativegrounds—namely, that the sort of extreme casecontemplated by New York is not before them. See, e.g.,United States ex rel. Anti-Discrimination Ctr. of MetroN.Y., Inc. v. Westchester Cnty., 712 F.3d 761, 774–75(2d Cir. 2013) (“[E]ven if we determined the questionhere was justiciable, the County has not presented anyevidence that it has been deprived of a republican formof government. The residents of the County remainable to ‘choose their own officers’ and ‘pass their ownlaws’ . . . .”); Largess v. Supreme Judicial Ct., 373 F.3d219, 229 (1st Cir. 2004) (holding that judicialrecognition of same-sex marriage “does not plausiblyconstitute a threat to a republican form ofgovernment”); see also Deer Park Indep. Sch. Dist. v.Harris Cnty. Appraisal Dist., 132 F.3d 1095, 1099–1100(5th Cir. 1998); Risser v. Thompson, 930 F.2d 549,552–53 (7th Cir. 1991). Neither applying nor rejectingthe per se rule, these courts decline to take thesignificant step of holding that Guarantee Clauseclaims are, in fact, justiciable. And not one of them hasrequired a state government to prove to a federaljudge’s satisfaction that it is sufficiently republican.

In parting ways with these other approaches, theTenth Circuit has taken at least two leaps beyondcurrent law. First, it not only questioned the per se rulebut affirmatively rejected it—something no other courthas done. Second, it went on to hold that claims such asRespondents’ (i.e., that “plebiscite” is unconstitutionalwhen applied to “legislative core functions”) areactually justiciable under the Baker test. App. 49. Intaking these steps the Tenth Circuit now stands alonein subjecting states to a trial on the merits over theiruse of direct democracy.

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C. The Tenth Circuit’s decision would injectthe federal courts into countless noveldisputes about the proper structure ofstate governments, without judicialstandards.

If Guarantee Clause claims are now justiciable,there is no shortage of creative lawyers and academicsstanding ready to embroil states and federal courts inan endless stream of litigation on questions that, beforenow, would have been resolved through the politicalprocess. For example, the Guarantee Clause could beused to challenge any limit imposed on legislativepower (such as balanced budget amendments andsupermajority requirements) or any delegation oflegislative power to non-representative institutions orbodies (such as the redistricting commission challengedin Arizona State Legislature v. Arizona IndependentRedistricting Commission, No. 13-1314). States wouldbe forced to defend, and courts to resolve, whether theconcept of a republican government includes anyvariety of positive individual rights, such as the rightto a free public education, the right to choose one’soccupation, and the right to own property.8 Asacademic commentators have suggested over and over,

8 See Arthur E. Bonfield, The Guarantee Clause of Article IV,Section 4: A Study in Constitutional Desuetude, 46 Minn. L. Rev.513 (1962).

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the scope of Guarantee Clause litigation is nearlyunlimited.9

The Tenth Circuit’s ruling here will also requirefederal courts to determine which legislative powersare “core functions” and which are something less. ThisCourt, however, has long recognized the peril in askingfederal courts to draw such lines. See Franchise TaxBd. of Cal. v. Hyatt, 538 U.S. 488, 498 (2003) (rejectinga test that asked whether a suit interfered with astate’s “core sovereign responsibilities”); Garcia v. SanAntonio Metro Transit Auth, 469 U.S. 528, 546–47(1985) (rejecting as “unsound in principle andunworkable in practice” a rule that turned on whethera state function was “integral” or “traditional”);Helvering v. Gerhardt, 304 U.S. 405, 427 (1938) (Black,J., concurring) (“There is not, and there cannot be, anyunchanging line of demarcation between essential andnon-essential governmental functions.”).

As Judge Gorsuch emphasized, the Tenth Circuitcompounded these problems by flatly refusing toprovide the Governor and the State of Colorado (not tomention the district court judge) with judicialstandards to govern this case. “[T]he parties haveexhausted no fewer than three rounds of pleadings inthe district court and an interlocutory appeal . . . . Atevery stage Governor Hickenlooper has challenged theplaintiffs to identify judicially manageable standards ofdecision . . . . Yet even today the plaintiffs profess no

9 See, e.g., Fred O. Smith, Jr., Awakening the People’s Giant:Sovereign Immunity and the Constitution’s RepublicanCommitment, 80 Fordham L. Rev. 1941 (2012); Chemerinsky, 65U. Colo. L. Rev. at 868–69.

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more than ‘confiden[ce]’ that if their case is allowed toproceed still further the district court will someday beable to find some standard for decision.” App. 73(Gorsuch, J., dissenting). This lack of guidance to thelower court, and to other courts that will be forced toaddress similar claims in the future, highlights theuncharted territory the Tenth Circuit has entered andis an additional reason to grant review.10

Even if the Tenth Circuit was correct that the per serule should no longer be employed, the Court shouldgrant the petition to provide guidance about whatshould replace it. There is no reason that the onlyoptions need be the per se rule or the standardlessexpedition the Tenth Circuit has endorsed. This Courtcould reaffirm that claims asking courts to resolve “thecontest between direct democracy and representativedemocracy” are non-justiciable. See Pacific States, 223U.S. 118. It could also reserve the option ofjusticiability for the “extreme” circumstances suggestedin Baker. 369 U.S. at 222 n.48; see also New York, 505U.S. at 185–86. Or it could draw the line at claimsasking the federal courts to determine which legislativepowers are sufficiently “core” such that they cannot besubject to popular oversight.

Finally, the Tenth Circuit refused to acknowledgeanother boundary line separating potentially viable

10 The panel cited this Court’s decision in District of Columbia v.Heller, 554 U.S. 570 (2008), for the proposition that a lack ofstandards on novel constitutional questions is no bar tojurisdiction. App. 43–44. That is a dubious description of Heller,and Judge Gorsuch was right that Vieth—which, after reviewingexisting case law, found a lack of judicial standards to governgerrymandering claims—is the far better analogy. See App 74 n.1.

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Guarantee Clause claims from those that should neverget off the ground. In New York it was a statechallenging the actions of the federal government. Thatclaim at least was consistent with the text of theGuarantee Clause: the guarantee of a “republican formof government” is made by the United States to theseveral states. The Tenth Circuit, however, opened theClause to challenges against states brought by anyfrustrated citizen. In that setting, there are improperparties on both sides of the caption, and the federalgovernment’s “guarantee” to the states is simply notimplicated.

Thus, the scope of potentially justiciable GuaranteeClause cases contemplated by New York is infinitelysmaller than the universe of now-viable cases underthe Tenth Circuit’s approach. Even if the Courtbelieves the panel was correct to jettison the per serule, it should grant the petition to give guidance to thelower courts about the otherwise potentially boundlessreach of the Guarantee Clause.

D. These issues are of fundamentalimportance.

The questions raised by the Tenth Circuit’s decisionsit at the confluence of two foundational principles:federalism and the separation of powers. As the Courtrecognized in New York, these questions implicate“perhaps our oldest question of constitutional law . . .:discerning the proper division of authority between theFederal Government and the States.” 505 U.S. at 149.This division of power “serves to prevent the judicialprocess from being used to usurp the powers of thepolitical branches.” Clapper v. Amnesty Int’l USA, 568U.S. ___, 133 S. Ct. 1138, 1146 (2013) (discussing

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standing). Yet these foundational issues haveprofoundly divided the judges of the Tenth Circuit, aswell as the lower courts more generally.

This Court will often review a case, like this one, atan interlocutory stage when doing so will clarifyimportant legal principles or advance significantlitigation. E.g., Burwell v. Hobby Lobby Stores, Inc., No.13-354; Am. Broadcasting Cos., Inc. v. Aereo, Inc., No.13-461; Fifth Third Bancorp v. Dudenhoeffer, No. 12-751; Halliburton Co. v. Erica P. John Fund, Inc., No.13-317; Limelight Networks, Inc. v. Akamai Techs.,Inc., No. 12-786; Michigan v. Bay Mills Indian Cmty.,No. 12-515; Lawson v. FMR LLC, No. 12-3. The needfor immediate review here is particularly strong giventhe lack of standards for the lower courts to apply asRespondents’ Guarantee Clause claim moves forward.The failure of the courts below to dismiss this casemeans a lengthy, expensive, and uncertain discoveryprocess for Colorado’s Governor, without any judicialstandards to govern that process or a later trial.

If this case were to proceed, it would be the first ofits kind to be litigated on the merits—but it is unlikelyto be the last. Warns Judge Gorsuch: “[T]o hold forplaintiffs in this case would require a court to entertainthe fantasy that more than half the states (27 in all)lack a republican government.” App. 74–75. And it isnot just the states that would feel the effects. Theimplications for the federal judiciary are significant too.This suit has drawn the courts into the center of adecades-old, politicized debate about the size ofgovernment and the power to tax. If this case proceeds,an unelected federal district court will be asked todetermine what state policy constitutes “fiscal

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dysfunction,” whether TABOR causes it, and whetherraising taxes will cure it.

II. The Court should also review the TenthCircuit’s expansion of the legislative standingdoctrine.

As it did with the Guarantee Clause, the TenthCircuit adopted an interpretation of this Court’slegislative standing cases that creates confusion amongthe lower courts and, if left in place, would expand thereach of the federal courts into intra-state governancedisputes. The result is an approach to federaljurisdiction that reaches far beyond what this Court,and any other circuit, has so far countenanced.

The injuries alleged in the complaint are a mix ofconclusory assertions, legal conclusions, andgeneralized grievances. Indeed, most are asserted inthe form of “interests,” not injuries—interests such as“representative democracy,” “the legislative corefunctions of taxation and appropriation,” and“adequately funding core education responsibilities.”App. 105–06, 119. Respondents’ complaint begins bydeclaring that this case “presents for resolution thecontest between direct democracy and representativedemocracy.” App. 182. But because the powerRespondents object to—the power to reject via popularvote a tax increase passed by the legislature—hasnever actually been exercised in Colorado, and becausethe Legislator-Plaintiffs have failed to base theiralleged injuries on any legislative vote that TABOR hasactually undone, Respondents have struggled toestablish their standing to bring this case. The districtcourt offered Respondents an opportunity to produceadditional briefing on standing, and in the end both

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lower courts found standing based solely on theallegations brought by members of Colorado’slegislature.11 Those allegations cannot supportstanding under this Court’s precedents and would notsupport standing in other circuits.

A. The Tenth Circuit radically and improperlyexpanded the doctrine of legislativestanding in direct conflict with this Court’sprecedents.

This Court has countenanced legislator standingonly once. Coleman v. Miller, 307 U.S. 433 (1939). InColeman, the Court faced a unique situation: a statelegislature’s vote to ratify a constitutional amendmentended in a tie—resulting in the amendment not beingratified. The state’s lieutenant governor, however, casta tie-breaking vote and thus reversed the legislativeoutcome. 307 U.S. at 436. All the senators who hadvoted to block ratification (as well as some otherlegislators who objected to the lieutenant governor’sparticipation in the vote) sued, challenging thelieutenant governor’s power to break the tie. The Courtheld that they had standing to do so under the narrowcircumstances presented. Id. at 438.

11 The lower courts did not address the non-legislator plaintiffs’standing. But the Complaint—along with the briefing andarguments in the record from the district court’s hearing onstanding—is more than adequate to show that no other plaintiffhas a cognizable injury in fact. See Valley Forge Christian Coll. v.Ams. United for Separation of Church and State, Inc., 454 U.S.464, 471, 473 (1982) (“Were the federal courts merely publiclyfunded forums for the ventilation of public grievances . . . theconcept of ‘standing’ would be quite unnecessary.”).

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The Court revisited this issue in Raines when ahandful of House members challenged the federal LineItem Veto Act. 521 U.S. at 814. Unlike Coleman, thecircumstances in Raines had much in common withthis case. The plaintiffs challenged the Line Item VetoAct in the abstract and did not point to any particularpiece of legislation the Act had affected; the size of thegroup of legislator-plaintiffs was insufficient to actuallyenact any legislation; and the plaintiffs’ challenge waspremature in that the line-item veto power had notbeen employed by the President. Id. at 824–30.

Raines noted that in Coleman, the Court“repeatedly emphasized that if the[ ] legislators (whowere suing as a bloc) were correct on the merits, thentheir votes not to ratify the amendment were deprivedof all validity.” 521 U.S. at 822. The Court thusdeclared it to be “obvious” that Coleman “stands . . . atmost . . . for the proposition that legislators whose voteswould have been sufficient to defeat (or enact) a specificlegislative act have standing to sue if that legislativeaction goes into effect (or does not go into effect), on theground that their votes have been completely nullified.”Id. at 823 (footnote omitted, emphasis added). Thosecircumstances being absent, the Raines Court held thatthe legislator-plaintiffs could not challenge the LineItem Veto.12

12 Once the challenged line-item veto power was employed, alegitimate injury was in fact caused, and the Line Item Veto Actwas struck down in Clinton v. City of New York, 524 U.S. 417(1998). Thus, an expansive version of legislative standing wasunnecessary to resolve the important constitutional questionspresented in Raines. So too here: if TABOR’s powers are everinvoked by the People of Colorado to block a legislatively-approved

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This suit satisfies none of the Raines requirements:there are now only three legislators suing, and theycannot point to a single vote they made that was“deprived of all validity” by TABOR. Yet the panelrejected this Court’s straightforward test. See App. 65(Tymkovich and Holmes, J.J., dissenting). Instead, thepanel held that the Plaintiff-Legislators have an injurybased on “their disempowerment rather than thefailure of any specific tax increase.” App. 24 (emphasisadded). That is, TABOR has allegedly “stripped thelegislature of its rightful power” and turned theirdecisions on tax matters from legally binding intomerely “advisory.” App. 16, 20.

The court of appeals recognized that Respondents’challenge to TABOR does not fit within the confines ofColeman. Instead, the panel transformed Raines intoan exception to Coleman. And it held that the exceptiondoes not apply here for a variety of reasons, including:

• the General Assembly had filed an amicusbrief (even though it did not actually join thecase as a party and even though a group ofother legislators filed an opposing amicusbrief supporting the Governor’s position);

• the challenge here is to a constitutionalrather than statutory limit on legislativepower; and

• Plaintiffs here are state legislators ratherthan federal.

tax increase, and a majority of legislators choose to sue, an injuryin fact is likely and the issue would be ripe.

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App. 21–22. The court declared that it would be“bizarre” to allow standing on the basis of a singlenullified vote but not on a more general limit onlegislative power, and it would be “futile” to require ashowing of a legislative act that was actually nullified.App. 26.

Raines rejected precisely this type of analysis. Thealleged injury in this case is shared by every memberof both houses of the Colorado legislature, and it existsonly in the abstract, not in connection with any specificvote that has been undone. It therefore amounts to an“abstract dilution of institutional legislative power”that is inadequate to create a case or controversy.Raines, 521 U.S. at 826. Such arguments about“effectiveness” or “meaning” of legislators’ votes “pull[ ]Coleman too far from its moorings.” 521 U.S. at 825.

B. The expansion of legislative standingbeyond the confines of Raines conflictswith the decisions of other courts ofappeals.

By drastically shrinking the Raines rule andmaking it merely an exception to Coleman—ratherthan vice versa—the Tenth Circuit created a secondsplit, this time with two other federal circuits. The D.C.Circuit, for one, has held exactly the opposite. SeeCampbell v. Clinton, 203 F.3d 19, 23 (D.C. Cir. 2000)(describing “the very narrow possible Colemanexception to Raines”). The Coleman exception, as theD.C. Circuit noted, is the result of the very “unusualsituation” presented by a ratification vote on aconstitutional amendment—once voted upon, literallynothing, absent judicial review, can be done to rescinda vote on an amendment. See Campbell, 203 F.3d at

30

22–23. In more typical cases of legislative dilution ofpower, the D.C. Circuit requires dismissal underRaines. See Alaska Legislative Council v. Babbitt, 181F.3d 1333, 1338 (D.C. Cir. 1999) (“[T]here is not theslightest suggestion here that these particularlegislators had the votes to enact a particular measure,that they cast those votes or that the federal statute orthe federal defendants did something to nullify theirvotes.”).

The Sixth Circuit similarly declines to treat Rainesas a mere exception to Coleman. In Baird v. Norton,266 F.3d 408 (6th Cir. 2001), that court confronted aconcurrent resolution procedure that undoubtedly hada serious effect on legislative power: concurrentresolutions could be passed by a “vote margin [that]would have been insufficient to enact legislation.” Id. at410. But “although [the plaintiff’s] institutional powerwas diluted,” “she ha[d] not suffered an injury thatsatisfie[d] the stringent requirements for legislativestanding set out in Raines.” Id. at 412. The legislatorfailed to identify a specific legislative act that “her votealone” could have defeated. Id.

The Tenth Circuit distinguished Babbitt and similarcases by asserting that “the extent and type ofdisempowerment” in this case is different becauseTABOR “strips [the legislature] of all power to conducta ‘legislative core function.’” App. 24–25. Thisreasoning causes even more mischief by importing thenovel “core powers” concept into not only GuaranteeClause jurisprudence, but into standing questions aswell.

Raines led the federal courts away from such adangerous course when it rejected legislative standing

31

based only on institution-wide disempowerment. 521U.S. at 825–26. But the Tenth Circuit took what Raineshad called a “drastic” step the Court was unwilling totake, see id.: allowing any frustrated legislator, orsmall group of them, to ask federal courts to throw outconstitutional limits on their power. See App. 60–66(Tymkovich, J., and Holmes, J., dissenting). This Courtshould grant certiorari to decide whether taking thatdrastic step was the right course.

C. The Tenth Circuit’s expansion of legislativestanding implicates the fundamentalquestions of separation of powers andfederalism.

Whether state legislators are permitted to lurefederal courts into disputes like this one is animportant question, as the Court recently recognized inArizona State Legislature v. Arizona IndependentRedistricting Commission, No. 13-1314. As importantas that case is, however, the implications here are evenmore significant.

The Tenth Circuit based its jurisdiction on thealleged injuries of just three of Colorado’s 100legislators. App. 11–12, 28. This is a significant stepbeyond the situation the Court faces in Arizona StateLegislature, where the entire legislature, acting as aninstitution with one voice, filed a suit to protect itspower to draw election districts.

Whatever the outcome in that case, decisive actionby this Court will still be needed. Here, the TenthCircuit extended legislative standing far beyond thefacts of Arizona State Legislature, allowing a tinyminority of the Colorado General Assembly to sue the

32

Governor, who is standing in as a surrogate for thevoters who enacted TABOR.13

Below, Judges Tymkovich and Holmes warnedagainst the combined effects of the panel’s decision thatGuarantee Clause claims are justiciable and itsextension of legislative standing:

The net result of the panel’s decision ratifyingstanding is that just about any policy provisioncodified in the state [and federal] constitutionwould be subject to legislative standing andattack on the theory of vote dilution [under theGuarantee Clause].

App. 60 (emphasis in original). No other court hasrecognized such an expansive role for federal courts’oversight of a state government’s division of politicalpower.

13 Even if the Court believes the standing issue in this case may beresolved by a decision in Arizona State Legislature, the Courtshould grant this petition to address whether Plaintiffs’ GuaranteeClause claims are non-justiciable political questions. This Court,in a unanimous opinion, recently confirmed “that a federal courthas leeway to choose among threshold grounds for denyingaudience to a case on the merits.” Sinochem Int’l Co. v. MalaysiaInt’l Shipping Corp., 549 U.S. 422, 431 (2007) (internal quotationmarks omitted). A holding that a claim is a non-justiciable politicalquestion is, of course, a threshold ground for denying review. SeeZivotofsky v. Clinton, 132 S. Ct. 1421 (2012). Given the importanceof the Guarantee Clause issue, we believe the preferable course isto address it first. At a minimum, however, this petition should beheld until Arizona State Legislature is resolved.

33

CONCLUSION

The petition should be granted.

Respectfully submitted,

JOHN W. SUTHERSAttorney General

DANIEL D. DOMENICOSolicitor GeneralCounsel of Record

MICHAEL FRANCISCOFREDERICK YARGER

Assistant Solicitors GeneralMEGAN PARIS RUNDLET

Senior Assistant Attorney GeneralOffice of the Colorado Attorney General1300 BroadwayDenver, Colorado 80203 Dan.Domenico@state.co.us720-508-6559

Counsel for Petitioner

OCTOBER 2014

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Decision in the United States Court ofAppeals for the Tenth Circuit(March 7, 2014) . . . . . . . . . . . . . . App. 1

Appendix B Order in the United States Court ofAppeals for the Tenth Circuit(July 22, 2014) . . . . . . . . . . . . . . App. 54

Appendix C Order Certifying Interlocutory AppealUnder 28 U.S.C. § 1292(b)(September 21, 2012) . . . . . . . . . App. 78

Appendix D Order Granting in Part and Denyingin Part Defendant’s Motion to Dismiss(July 30, 2012) . . . . . . . . . . . . . . App. 88

Appendix E Second Amended Subst i tuteComplaint for Injunctive andDeclaratory Relief(July 30, 2012) . . . . . . . . . . . . . App. 181

Appendix F Colorado Constitutional ProvisionsArticle V . . . . . . . . . . . . . . . App. 208Article X . . . . . . . . . . . . . . . App. 214

Appendix G Colorado Enabling Act, 18 Stat. 474 (1875) . . . . . . . . . . App. 224

App. 1

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALSTENTH CIRCUIT

No. 12-1445

[Filed March 7, 2014]______________________________________ANDY KERR, Colorado State )Representative; NORMA V. )ANDERSON; JANE M. BARNES, )member Jefferson County Board of )Education; ELAINE GANTZ BERMAN, )member State Board of Education; )ALEXANDER E. BRACKEN; )WILLIAM K. BREGAR, member Pueblo )District 70 Board of Education; BOB )BRIGGS, Westminster City Councilman; )BRUCE W. BRODERIUS, member Weld )County District 6 Board of Education; )TRUDY B. BROWN; JOHN C. )BUECHNER, Ph.D., Lafayette City )Councilman; STEPHEN A. )BURKHOLDER; RICHARD L. BYYNY, )M.D.; LOIS COURT, Colorado State )Representative; THERESA L. CRATER; )ROBIN CROSSAN, member Steamboat )Springs RE-2 Board of Education; )RICHARD E. FERDINANDSEN; )STEPHANIE GARCIA, member Pueblo )City Board of Education; KRISTI )

App. 2

HARGROVE; DICKEY LEE )HULLINGHORST, Colorado State )Representative; NANCY JACKSON, )Arapahoe County Commissioner; )WILLIAM G. KAUFMAN; CLAIRE )LEVY, Colorado State Representative; )MARGARET (MOLLY) MARKERT, )Aurora City Councilwoman; MEGAN J. )MASTEN; MICHAEL MERRIFIELD; )MARCELLA (MARCIE) L. )MORRISON; JOHN P. MORSE, )Colorado State Senator; PAT NOONAN; )BEN PEARLMAN, Boulder County )Commissioner; WALLACE PULLIAM; )PAUL WEISSMANN; JOSEPH W. )WHITE, )

)Plaintiffs - Appellees, )

)v. )

)JOHN HICKENLOOPER, Governor of )Colorado, in his official capacity, )

)Defendant - Appellant. )

-------------------------------------------------- )D’ARCY W. STRAUB; )INDEPENDENCE INSTITUTE; CATO )INSTITUTE; SEN. KEVIN )LUNDBERG; REP. JERRY )SONNENBERG; REP. JUSTIN )EVERETT; REP. SPENCER SWALM; )REP. JANAK JOSHI; REP. PERRY )BUCK; SEN. TED HARVEY; SEN. )KENT LAMBERT; SEN. MARK )

App. 3

SCHEFFEL; SEN. KEVIN )GRANTHAM; SEN VICKI MARBLE; )SEN. RANDY BAUMGARDNER; REP. )DAN NORDBERG; REP. FRANK )MCNULTY; REP. JARED WRIGHT; )REP. CHRIS HOLBERT; REP. KEVIN )PRIOLA; SEN. SCOTT RENFROE; )SEN. BILL CADMAN; COLORADO )UNION OF TAXPAYERS )FOUNDATION; NATIONAL )FEDERATION OF INDEPENDENT )BUSINESS; TABOR FOUNDATION; )OKLAHOMA COUNCIL FOR PUBLIC )AFFAIRS; HOWARD JARVIES )TAXPAYERS FOUNDATION; )FREEDOM CENTER OF MISSOURI; )FREEDOM FOUNDATION; )GOLDWATER INSTITUTE; 1851 )CENTER FOR CONSTITUTIONAL )LAW; COLORADO CHAPTER OF THE )AMERICAN ACADEMY OF )PEDIATRICS AND COLORADO )NONPROFIT ASSOCIATION; )COLORADO GENERAL ASSEMBLY; )BELL POLICY CENTER; COLORADO )FISCAL INSTITUTE; THE CENTER )ON BUDGET AND POLICY )PRIORITIES; COLORADO PARENT )TEACHER ASSOCIATION; ERWIN )CHEMERINSKY; HANS LINDE; )WILLIAM MARSHALL; GENE )NICHOL; WILLIAM WIECEK; )COLORADO ASSOCIATION OF )SCHOOL BOARDS; COLORADO )

App. 4

ASSOCIATION OF SCHOOL )EXECUTIVES, )

)Amici Curiae. )

______________________________________ )_________________________________

Appeal from the United States District Court for the District of Colorado

(D.C. No. 1:11-CV-01350-WJM-BNB)_________________________________

Daniel D. Domenico, Solicitor General (John W.Suthers, Attorney General, Frederick R. Yarger,Assistant Solicitor General, Bernie Buescher, DeputyAttorney General, Megan Paris Rundlet, AssistantAttorney General, with him on the briefs), Office of theAttorney General for the State of Colorado, Denver,Colorado, for the Defendant-Appellant.

David E. Skaggs (Lino S. Lipinsky de Orlov, HerbertLawrence Fenster, McKenna Long & Aldridge LLP;Michael F. Feeley, John A. Herrick, Geoffrey M.Williamson, and Carrie E. Johnson, Brownstein HyattFarber Schreck LLP, with him on the briefs), Denver,Colorado for the Plaintiffs-Appellees.

Richard A. Westfall, Hale Westfall, LLP, Denver,Colorado and Karen R. Harned and Luke A. Wake,NFIB Small Business Legal Center, Washington, DC,filed an amicus curiae brief for National Federal ofIndependent Business, Tabor Foundation, OklahomaCouncil for Public Affairs, Howard Jarvies TaxpayersFoundation, Freedom Center of Missouri, 1851 Centerfor Constitutional Law, Freedom Foundation, andGoldwater Institute on behalf of Defendant-Appellant.

App. 5

David B. Kopel, Independence Institute, Denver,Colorado, and Ilya Shapiro, Cato Institute,Washington, DC, filed an amicus curiae brief forIndependence Institute and Cato Institute on behalf ofDefendant-Appellant.

James M. Manley, Mountain States Legal Foundation,Lakewood, Colorado, filed an amicus curiae brief forSen. Kevin Lundberg, Rep. Jerry Sonnenberg, Rep.Justin Everett, Rep. Spencer Swalm, Rep. Janak Joshi,Rep. Perry Buck, Sen. Ted Harvey, Sen. Kent Lambert,Sen. Mark Scheffel, Sen. Kevin Grantham, Sen. VickiMarble, Sen. Randy Baumgardner, Rep. Dan Nordberg,Rep. Frank McNulty, Rep. Jared Wright, Rep. ChrisHolbert, Rep. Kevin Priola, Sen. Scott Renfroe, Sen.Bill Cadman, and Colorado Union of TaxpayersFoundation on behalf of Defendant-Appellant.

D’Arcy W. Straub, Littleton, Colorado, filed an amicuscuriae brief for D’arcy W. Straub, on behalf ofDefendant-Appellant.

Andrew M. Low, Emily L. Droll, and John M. Bowlin,Davis Graham & Stubbs LLP, Denver, Colorado, filedan amicus curiae brief for Colorado Association ofSchool Boards and Colorado Association of SchoolExecutives on behalf of Plaintiffs-Appellees.

Melissa Hart, University of Colorado Law School,Boulder, Colorado, filed an amicus curiae brief forErwin Chemerinsky, Hans Linde, William Marshall,Gene Nichol, and William Wiecek on behalf ofPlaintiffs-Appellees.

Joseph R. Guerra and Kathleen Mueller, Sidley AustinLLP, Washington, DC, filed an amicus curiae brief for

App. 6

The Center on Budget and Policy Priorities on behalf ofPlaintiffs- Appellees.

Stephen G. Masciocchi, Holland & Hart, Denver,Colorado, and Maureen Reidy Witt, Holland & Hart,Greenwood Village, Colorado, filed an amicus curiaebrief for The Colorado General Assembly on behalf ofPlaintiffs-Appellees.

Matthew J. Douglas, Holly E. Sterrett, Paul W.Rodney, and Nathaniel J. Hake, Arnold & Porter LLP,Denver, Colorado, filed an amicus curiae brief for theBell Policy Center and the Colorado Fiscal Institute onbehalf of Plaintiffs-Appellees.

Catherine C. Engberg, Shute, Mihaly & WeinbergerLLP, San Franscisco, California, filed an amicus curiaebrief for Colorado Parent Teacher Association on behalfof Plaintiffs-Appellees.

Harold A. Haddon and Laura G. Kastetter, Haddon,Morgan and Foreman, P.C., Denver, Colorado, filed anamicus curiae brief for Colorado Chapter of theAmerican Academy of Pediatrics and ColoradoNonprofit Association on behalf of Plaintiffs-Appellees.

_________________________________

Before BRISCOE, Chief Judge, SEYMOUR andLUCERO, Circuit Judges.

_________________________________

LUCERO, Circuit Judge._________________________________

Article IV, § 4 of the Constitution of the UnitedStates of America guarantees to the State of Coloradoa “Republican Form of Government.” It provides: “TheUnited States shall guarantee to every State in this

App. 7

Union a Republican Form of Government, and shallprotect each of them against Invasion; and onApplication of the Legislature, or of the Executive(when the Legislature cannot be convened) againstdomestic Violence.” U.S. Const. art. IV, § 4. This rightto a republican form of government is further assuredand mandated by the enabling act of Congress,Colorado Enabling Act, ch. 139, § 4, 18 Stat. 474, 474(1875), under which the State was admitted to theUnion in 1876.

Various groups, and in particular, several Coloradostate legislators, brought an action in the U.S. DistrictCourt for the District of Colorado. They claim that theso-called Taxpayer’s Bill of Rights, TABOR, violates theGuarantee Clause of the federal Constitution, is indirect conflict with provisions of the Enabling Act, andimpermissibly amends the Colorado Constitution.

In order to avoid Eleventh Amendment sovereigntyissues, the Governor of Colorado, John Hickenlooper,was designated as the named defendant. GovernorHickenlooper filed his Answer to the plaintiffs’Complaint, and promptly followed with a motion todismiss, alleging that plaintiffs lacked Article IIIstanding and prudential standing, and that theirclaims were barred by the political question doctrine.This motion was denied by the district court, and theGovernor brings this appeal to us, asserting error andasking us to dismiss the proceedings on the same basesthat he presented to the district court.

The merits of the case are not before us. We expressno view on the substantive issues and intend none. Weconsider solely standing and the political questiondoctrine: whether these plaintiffs have suffered a

App. 8

particularized injury not widely shared by the generalpopulace that entitles them to have their case heard bythe federal courts, and whether the question presentedis purely political in nature and should not be reachedby the courts. We conclude that these plaintiffs maybring their claims and that the political questiondoctrine does not bar our consideration. Exercisingjurisdiction under 28 U.S.C. § 1292(b), we affirm thedistrict court’s ruling and remand for furtherproceedings.

I

Article X, § 20 of the Colorado Constitution—betterknown as the Taxpayer’s Bill of Rights or TABOR—wasadopted by voter initiative in 1992.1 TABOR limits therevenue-raising power of the state and localgovernments by requiring “voter approval in advancefor . . . any new tax, tax rate increase, mill levy abovethat for the prior year, valuation for assessment ratioincrease for a property class, or extension of anexpiring tax, or a tax policy change directly causing anew tax revenue gain.” Colo. Const. art. X, § 20, cl. 4(a).TABOR also limits state year-to-year spendingincreases to “inflation plus the percentage change instate population in the prior calendar year,” id. cl. 7(a),requires that revenue exceeding this limit “be refundedin the next fiscal year unless voters approve a revenuechange,” id. cl. 7(d), and bans any “new state realproperty tax or local district income tax,” id. cl. 8(a).Like all provisions in Colorado’s Constitution, TABOR

1 Like the district court, we take judicial notice of the provisions ofthe Colorado Constitution at issue in this case. See Fed. R. Evid.201(b).

App. 9

may be revoked or amended only with voter approval.Id. art. XIX, § 2 (“[A]mendments shall be submitted tothe registered electors of the state for their approval orrejection, and such as are approved by a majority ofthose voting thereon shall become part of thisconstitution.”); id. § 1 (requiring voter approval to callconstitutional convention).

More than thirty citizens of Colorado—includingeducators, parents of school-age children, and currentand former state legislators—brought this suit againstColorado Governor John Hickenlooper in May 2011.The Second Amended Substitute Complaint forInjunctive and Declaratory Relief (the “complaint”)2

alleges that TABOR “undermines the fundamentalnature of the state’s Republican Form of Government”in violation of the Guarantee Clause, U.S. Const. art.IV, § 4. The complaint further alleges that TABORviolates the Colorado Enabling Act, the SupremacyClause, and the Equal Protection Clause of the

2 The complaint in this case has gone through several iterations.Plaintiffs originally intended to sue the state of Colorado, butfollowing preliminary discussions with attorneys in the Office ofthe Colorado Attorney General, both sides agreed that GovernorHickenlooper should be named as the defendant in order to avoidpossible Eleventh Amendment issues. Thus, on June 16, 2011,plaintiffs filed what they styled a “Substituted Complaint forInjunctive and Declaratory Relief.” The district court later grantedseveral motions to amend. Plaintiffs’ Second Amended SubstituteComplaint for Injunctive and Declaratory Relief is the operativecomplaint in this action. All references and citations to thecomplaint herein refer to that document. See S. Utah WildernessAlliance v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013) (“Where. . . the original complaint has been super[s]eded by an amendedcomplaint, we examine the amended complaint in assessing aplaintiff’s claims . . . .” (quotation omitted)).

App. 10

Fourteenth Amendment, and that it constitutes animpermissible amendment to the state constitutionunder state constitutional law principles.

Governor Hickenlooper moved to dismiss thecomplaint. He argued that plaintiffs lacked standingand that the political question doctrine requireddismissal of all claims. The Governor also argued thatthe plaintiffs failed to state a claim on which reliefcould be granted as to their equal protection andimpermissible amendment claims. The district courtconcluded that the plaintiffs who were current statelegislators possessed standing and declined to assessthe standing of the remaining plaintiffs. It ruled thatthe political question doctrine did not bar the lawsuit,thereby allowing plaintiffs to proceed on theirGuarantee Clause and Enabling Act challenges toTABOR. The district court dismissed the equalprotection challenge for failure to state a claim butrefused to dismiss the impermissible amendmentclaim, exercising supplemental jurisdiction under 28U.S.C. § 1367(a).

Governor Hickenlooper then asked the district courtto certify its order for interlocutory appeal pursuant to28 U.S.C. § 1292(b). The district court granted hisrequest for certification and stayed the proceedings. Aprevious panel of this court granted permission toappeal. See 28 U.S.C. § 1292(b) (“The Court of Appealswhich would have jurisdiction of an appeal of suchaction may thereupon, in its discretion, permit anappeal to be taken from such order [certified forinterlocutory appeal].”).

App. 11

II

We review de novo the district court’s rulings onstanding. Petrella v. Brownback, 697 F.3d 1285, 1292(10th Cir. 2012). The plaintiffs bear the burden ofestablishing each element of standing. Id. Indetermining whether plaintiffs have met their burden,we assume the allegations contained in the complaintare true and view them in the light most favorable tothe plaintiffs. S. Utah Wilderness Alliance, 707 F.3d at1152. To establish Article III standing, a plaintiff mustshow: (1) that it has suffered a concrete and particularinjury in fact that is either actual or imminent; (2) theinjury is fairly traceable to the alleged actions of thedefendant; and (3) the injury will likely be redressed bya favorable decision. Lujan v. Defenders of Wildlife, 504U.S. 555, 560-61 (1992).

The district court determined that the plaintiffs whoare current state legislators (the “legislator-plaintiffs”)have standing and thus declined to assess the standingof any of the other named plaintiffs. See Village ofArlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.252, 264 & n.9 (1977) (allowing suit to proceed based on“one individual plaintiff who has demonstratedstanding” without considering standing of remainingplaintiffs); see also Massachusetts v. Envtl. Prot.Agency, 549 U.S. 497, 518 (2007) (“Only one of thepetitioners needs to have standing to permit us toconsider the petition for review.”). We similarly limitour review to the standing of the legislator-plaintiffs.

A

Our analysis of standing begins with injury-in-fact.The legislator-plaintiffs claim that TABOR deprives

App. 12

them of their ability to perform the “legislative corefunctions of taxation and appropriation.” They say thatTABOR prevents them from doing their jobs. Severalcases have held, in other contexts, that an inhibition ona person’s ability to perform work constitutes aninjury-in-fact. See Singleton v. Wulff, 428 U.S. 106,112-13 (1976) (allowing physicians who performabortions to challenge law restricting Medicaidreimbursement); Ezell v. City of Chicago, 651 F.3d 684,696 (7th Cir. 2011) (concluding “supplier of firing-rangefacilities” possessed standing to challenge city’s ban onsuch facilities); Sammon v. N.J. Bd. of Med. Exam’rs,66 F.3d 639, 642 (3d Cir. 1995) (aspiring midwives hadstanding to challenge statutory scheme that made “itmore difficult for [them] to practice their chosenprofession”); see also Pierce v. Soc’y of Sisters, 268 U.S.510, 532, 535-36 (1925) (overturning state lawmandating public education characterized by plaintiffsas conflicting “with right of schools and teachers . . . toengage in a useful business or profession”). However,standing in these cases was based in part on the harm,either financial or penal, that plaintiffs would suffer asa result of legislation inhibiting their ability to work.TABOR does not inflict either type of injury uponColorado legislators. See Colo. Const. art. V, § 6 (fixingsalary of members of the General Assembly); id. § 16(providing legislative immunity to members).

Nonetheless, the Supreme Court has held thatmembers of a state legislature may have standing tosue in order to vindicate the “plain, direct and adequateinterest in maintaining the effectiveness of their votes.”Coleman v. Miller, 307 U.S. 433, 438 (1939). Wetherefore consider the legislator-plaintiffs’ claimedinjury under the Supreme Court’s legislative standing

App. 13

framework, first articulated in Coleman and laterrefined by Raines v. Byrd, 521 U.S. 811 (1997).

Coleman involved a challenge by state legislators toKansas’ ratification of a proposed federal constitutionalamendment. 307 U.S. at 435. Twenty senators voted infavor of the proposed amendment, and twenty votedagainst. Id. at 436. The Lieutenant Governor, presidingover the state Senate, broke the tie in favor ofratification, and the state House of Representativeslater approved the amendment. Id. Twenty-onesenators, including the twenty who had opposed theamendment, sought a writ of mandamus in state court.Id. After the state court denied mandamus relief, theSupreme Court granted certiorari. Id. at 437.

The Court held that the legislators had standing tosue:

[P]laintiffs include twenty senators, whose votesagainst ratification have been overridden andvirtually held for naught although if they areright in their contentions their votes would havebeen sufficient to defeat ratification. We thinkthat these senators have a plain, direct andadequate interest in maintaining theeffectiveness of their votes. Petitioners comedirectly within the provisions of the statutegoverning our appellate jurisdiction. They haveset up and claimed a right and privilege underthe Constitution of the United States to havetheir votes given effect and the state court hasdenied that right and privilege.

Id. at 438. It reasoned perforce from two cases in whichordinary voters were permitted to challenge state

App. 14

ratifications of federal constitutional amendments. Id.at 438-39 (citing Leser v. Garnett, 258 U.S. 130 (1922)(entertaining citizen challenge to registration of femalevoters) and Hawke v. Smith, 253 U.S. 221 (1920)(entertaining citizen challenge to Ohio constitutionalamendment requiring voter approval of federalconstitutional amendments)).

In Raines, the Supreme Court declined to extendColeman. Raines dealt with a challenge to the LineItem Veto Act (“LIVA”) brought by six Members ofCongress who had voted against it. 521 U.S. at 814.Holding that its “standing inquiry has been especiallyrigorous when reaching the merits of the dispute wouldforce us to decide whether an action taken by one of theother two branches of the Federal Government wasunconstitutional,” id. at 819-20, it distinguished anearlier suit in which a legislator had successfullyasserted standing to challenge his exclusion fromCongress. Id. at 820-21 (citing Powell v. McCormack,395 U.S. 486 (1969)). Plaintiffs in Raines were not“singled out for specially unfavorable treatment asopposed to other Members of their respective bodies,”521 U.S. at 821, and they failed to allege deprivation ofsomething to which they were “personally . . . entitled.”Id. (emphasis omitted).

Raines also distinguished Coleman, concluding that

Coleman stands []at most . . . for the propositionthat legislators whose votes would have beensufficient to defeat (or enact) a specificlegislative Act have standing to sue if thatlegislative action goes into effect (or does not gointo effect), on the ground that their votes havebeen completely nullified.

App. 15

521 U.S. at 823 (footnote omitted). It ultimately ruledthat the Raines plaintiffs lacked standing. “[T]heirvotes [against LIVA] were given full effect,” the Courtstated; “[t]hey simply lost that vote.” Id. at 824(footnote omitted). The Supreme Court characterizedthe Raines plaintiffs’ alleged injury as “the abstractdilution of institutional legislative power.” Id. at 826.

It emphasized that the plaintiffs in that case usedthe word “effectiveness” (describing their vote forappropriations bills) in a way that “pulls Coleman toofar from its moorings” and “stretches the word farbeyond the sense in which the Coleman opinion usedit.” Raines, 521 U.S. at 825-26.

The argument goes as follows. Before [LIVA],Members of Congress could be sure that whenthey voted for, and Congress passed, anappropriations bill that included funds forProject X, one of two things would happen:(i) the bill would become law and all of theprojects listed in the bill would go into effect, or(ii) the bill would not become law and none ofthe projects listed in the bill would go into effect.Either way, a vote for the appropriations billmeant a vote for a package of projects that wereinextricably linked. After [LIVA], however, avote for an appropriations bill that includesProject X means something different. Now, inaddition to the two possibilities listed above,there is a third option: the bill will become lawand then the President will “cancel” Project X.

Id. at 825 (footnote omitted). LIVA could not possibly“nullify [plaintiffs’] votes in the future in the same waythat the votes of the Coleman legislators had been

App. 16

nullified” because “a majority of Senators andCongressman can vote to repeal [LIVA], or to exempt agiven appropriations bill (or a given provision in anappropriations bill) from [LIVA].” Id. at 824.

Neither Coleman nor Raines maps perfectly ontothe alleged injury in this case. Unlike those in Raines,the allegations before us go well beyond mere “abstractdilution.” Plaintiffs claim that they have been deprivedof their power over taxation and revenue. UnderTABOR, the state “must have voter approval inadvance for . . . any new tax, tax rate increase, . . . or atax policy change directly causing a net tax revenuegain to any district,” with narrow exceptions.3 Colo.Const. art. X, § 20, cl. 4(a). With respect to taxing andrevenue, which the plaintiffs describe as “legislativecore functions,” the General Assembly allegedlyoperates not as a legislature but as an advisory body,empowered only to recommend changes in the law tothe electorate.

These allegations fall closer to the theory of votenullification espoused in Coleman than to the abstractdilution theory rejected in Raines. Under TABOR, avote for a tax increase is completely ineffective becausethe end result of a successful legislative vote in favor of

3 The exceptions permit “emergency taxes” when two-thirds of thelegislature “declares the emergency and imposes the tax byseparate recorded roll call votes,” Colo. Const. art. X, § 20, cl. 6,and permit the suspension of the prior approval requirement“[w]hen annual district revenue is less than annual payments ongeneral obligation bonds, pensions, and final court judgments,” id.cl. 1. None of the parties suggests these exceptions alter ouranalysis.

App. 17

a tax increase is not a change in the law.4 A vote thatis advisory from the moment it is cast, regardless ofhow other legislators vote, is “ineffective” in a way novote envisioned by LIVA could be.

Moreover, the case at bar does not share othercharacteristics highlighted by the Raines Court. UnlikeLIVA, TABOR was not passed by, and cannot berepealed by, the Colorado General Assembly. SeeRaines, 521 U.S. at 824; Colo. Const. art. XIX(requiring voters to approve constitutionalamendments or the calling of a constitutionalconvention). In Schaffer v. Clinton, 240 F.3d 878 (10thCir. 2001), we concluded that a Congressman lackedstanding to challenge a Congressional pay increase,noting that “as in Raines, there has been nonullification of Congressman Schaffer’s ability to vote.”Id. at 885-86. His pay was increased “simply becausehe lost [a] vote,” and to the extent he found the payincrease objectionable, the Congressman was free “topress for a change in the law setting Representatives’salaries or for Congress to amend the COLA provisionspursuant to the normal legislative process.” Id. at 886(quotation omitted). In sharp contrast, TABOR deniesthe Colorado General Assembly the “ability to vote” onoperative tax increases, and the legislator-plaintiffs

4 The governor may veto the result of a successful legislative votein Colorado, but the result of a veto is not analogous to whatTABOR requires. Colo. Const. art. IV, § 11. When the governorvetoes a bill, it does not become law but is returned to thelegislature, which may override the veto by a two-thirds vote. Id.Votes subject to a veto are not advisory from the moment that theyare cast in the same way as votes requiring “voter approval inadvance,” id. art. X, § 20, cl. 4, before a law is enacted.

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cannot undo its provisions “pursuant to the normallegislative process.” Id. at 885-86.

Several other courts have relied on this keydistinction between Coleman and Raines. In Russell v.DeJongh, 491 F.3d 130 (3d Cir. 2007), the Third Circuitconsidered whether a member of the Legislature of theVirgin Islands possessed standing to assert a claimthat the governor had improperly appointed justices tothe Supreme Court of the Virgin Islands. Id. at 131.Claiming that the expiration of a statutory ninety-daydeadline extinguished the governor’s authority tosubmit nominations, and that the governor’s decisionto ignore the deadline nullified his vote in favor of thelaw creating the deadline, the plaintiff sought adeclaration that the nominations were void. Id. at 133-34. The court explained that “legislators have a legallyprotected interest in their right to vote on legislationand other matters committed to the legislature, whichis sometimes phrased as an interest in ‘maintaining theeffectiveness of their votes.’” Id. at 134 (quotingColeman, 307 U.S. at 438). However, “[n]ot everyaffront to a legislator’s interest in the effectiveness ofhis vote . . . is an injury in fact sufficient to conferstanding.” Id. Although courts have “h[e]ld uniformlythat an official’s mere disobedience or flawed executionof a law for which a legislator voted . . . is not an injuryin fact,” the Russell court noted that “distortion of theprocess by which a bill becomes law by nullifying alegislator’s vote or depriving a legislator of anopportunity to vote . . . is an injury in fact.” Id. at 135(quotation omitted). It rejected the plaintiff’s relianceon Coleman and another case, Silver v. Pataki, 755N.E.2d 842 (N.Y. 2001) (per curiam), because “thechallenged actions in those cases left the plaintiffs with

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no effective remedies in the political process.” Russell,491 F.3d at 135 (footnote omitted). In announcing thatRussell was not a “vote nullification” case, the ThirdCircuit explained that “[t]he consequence of theGovernor’s late submission of the nominations was . . .not to circumvent the Legislature, but to place thedecision whether to confirm the nominees directly intheir hands.” Id. at 136. In the case at bar, the power totax and spend is not directly in the hands of theColorado legislature.

The New York Court of Appeals drew a similar linein Silver, which dealt with a challenge by the Speakerof the New York Assembly to the Governor’s line itemveto authority on non-appropriation bills.5 755 N.E.2dat 845. Considering both state and federal cases onlegislative standing, the court distinguished betweenalleged injuries related to “lost political battles” andthose concerning “nullification of votes.”6 Id. at 847.The Court characterized Coleman as involving votenullification, and Raines as a “lost vote” case. Id. Itconcluded that the plaintiff possessed standing in partbecause he was “not seeking to obtain a result in acourtroom which he failed to gain in the halls of theLegislature.” Id. at 848 (quotation omitted). In

5 The New York State Constitution provides for line-item vetoeswith respect to bills that “contain several items of appropriation ofmoney.” N.Y. Const. art. IV, § 7.

6 Although we recognize the Court of Appeals of New York is notbound by Article III, the Silver decision applies the injury-in-facttest in terms essentially identical to the federal requirement. Id.at 847, 848 (requiring an “injury in fact” that is “concrete andparticularized” (quotations omitted)). We cite Silver for itspersuasive interpretation of Coleman and Raines.

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contrast, the court explained that the Raines plaintiffs“lost their political battles when legislation was validlyenacted over their opposition.” Id. We are notconfronted with claimants who complain of nothingmore than a lack of success within the legislature;plaintiffs’ complaint alleges that TABOR has strippedthe legislature of its rightful power.

Baird v. Norton, 266 F.3d 408 (6th Cir. 2001),illustrates the difference between legislators who allegeunconstitutional state action and legislators whomerely seek to reverse the results of a lost vote. InBaird, two state legislators who were on the losing sideof a concurrent resolution approving gaming compactscomplained that the approval was improper. Id. at 409-10. Unlike the action in Coleman, the court observed,the suit was not joined by a sufficient number oflegislators to defeat the concurrent resolution and thusthe plaintiffs lacked standing. Id. at 412. The rule fromRaines applied because the plaintiffs were not arguing“that the compacts themselves [were] unconstitutional”but instead alleged that “the compacts would have beendefeated[] had the constitutionally required proceduresbeen followed.” Id. at 413. Baird therefore stands forthe proposition that legislators seeking standingarising from a lost vote must demonstrate that theywould have won had proper procedures been followed.Allegations before us go beyond those in Baird; theplaintiff-legislators in this case challenge a provisionthat, they allege, deprives them of the ability to castmeaningful votes at all.

Other circuits, the D.C. Circuit in particular, haveinterpreted Raines in a similar manner. In Campbell v.Clinton, 203 F.3d 19 (D.C. Cir. 2000), the court held

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that a number of congressmen lacked standing tochallenge U.S. participation in the NATO campaign inYugoslavia. Id. at 19. It wrote that Supreme Courtprecedent cannot be read to suggest “that the President‘nullifies’ a congressional vote and thus legislators havestanding whenever the government does somethingCongress voted against.” Id. at 22. The majorityconcluded that Judge Randolph, who concurred in thejudgment and wrote separately, did “not give sufficientattention to Raines’ focus on the political self-helpavailable to congressmen. . . . [T]he [Raines] Courtdenied them standing as congressmen because theypossessed political tools with which to remedy theirpurported injury.” Id. at 24; see also Chenoweth v.Clinton, 181 F.3d 112, 116 (D.C. Cir. 1999) (concludingHouse members lacked standing to challenge thePresident’s implementation of a program throughexecutive order, in part because “[i]t is uncontestedthat the Congress could terminate the [program] werea sufficient number in each House so inclined”);Kucinich v. Obama, 821 F. Supp. 2d 110, 120 (D.D.C.2011) (successful use of vote nullification theory“necessitates the absence of a legislative remedy”). Weagree with these cases that Raines rested in largemeasure on the plaintiffs’ ability to correct the allegedinjury through ordinary legislation, an ability thelegislator-plaintiffs in this case lack. A legislator whocomplains of nothing more than dissatisfaction withthe actions, or inaction, of his colleagues does not statean injury to a judicially cognizable interest.

Furthermore, because the present suit deals withthe relationship between a state legislature and itscitizenry, we are not presented with the separation-of-powers concerns that were present in Raines. See 521

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U.S. at 819-20 (“[O]ur standing inquiry has beenespecially rigorous when reaching the merits of thedispute would force us to decide whether an actiontaken by one of the other two branches of the FederalGovernment was unconstitutional.”). The Rainesdecision has been characterized as “standinginformed—and indeed virtually controlled—bypolitical-question concerns.” 13B Charles Alan Wrightet al., Federal Practice & Procedure, § 3531.11.2, at 135(3d ed. 2008). In Tachiona v. United States, 386 F.3d205 (2d Cir. 2004), the Second Circuit similarlyconcluded that Raines was “distinguishable in crucialrespects” because it did not “involve[] a constitutionalchallenge to an action taken by one of the other twobranches of the Federal Government—a fact that theCourt believed merited an ‘especially rigorous’ standinginquiry.” Id. at 213 (quoting Raines, 521 U.S. at 819-20); see also Chenoweth, 181 F.3d at 116 (stating thatRaines may “require [the court] to merge [its]separation of powers and standing analyses”).

Notably, the Colorado General Assembly, throughits Committee on Legal Services, has chosen toparticipate as an amicus curiae in favor of legislativestanding in this appeal.7 The General Assembly’sparticipation further distinguishes this case fromRaines, in which the Court “attach[ed] someimportance to the fact that appellees ha[d] not beenauthorized to represent their respective Houses ofCongress in this action, and indeed both Housesactively oppose[d] their suit.” 521 U.S. at 829.

7 The General Assembly’s amicus brief does not imply“authorization” of the legislator-plaintiffs.

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The legislator-plaintiffs’ allegations in the casebefore us differ in some respects from those at issue inColeman. Nevertheless, we must reject GovernorHickenlooper’s argument that plaintiffs’ failure toidentify a “specific legislative act” that TABOR hasprecluded is fatal to their claim. See Raines, 521 U.S.at 823. He argues that the legislator-plaintiffs mustrefer a tax increase to the voters, and have thatmeasure rejected, before they bring suit.8 Thisargument misunderstands the alleged injury.Legislator-plaintiffs contend they have been injuredbecause they are denied the authority to legislate withrespect to tax and spending increases.9 They cannot

8 Both parties have provided supplemental authority to this courtnoting that Colorado voters recently approved “Proposition AA,”which imposes a new tax on marijuana and was referred for areferendum, but rejected “Amendment 66,” a citizen initiative thatwould have raised taxes to fund certain public school reforms.However, “standing is determined at the time the action isbrought, and we generally look to when the complaint was firstfiled, not to subsequent events.” Mink v. Suthers, 482 F.3d 1244,1253-54 (10th Cir. 2007) (citation omitted). We accordingly do notconsider these November 2013 events.

9 We recognize that legislatures may permissibly be deprived ofauthority to legislate in certain arenas. The First Amendment, totake an obvious example, says that “Congress shall make no law”in a variety of fields. U.S. Const. amend. I. We distinguish thesorts of substantive prohibitions found in the Bill of Rights andelsewhere—“Congress shall make no law” means “there shall be nofederal law”—from TABOR’s alleged transformation of the statelegislature from a body that makes laws to a body thatrecommends to the public laws increasing taxes or spending. Soconstrued, the injury allegedly caused by TABOR is unique andunlikely to cause the federal courts to be flooded with legislatorson the losing side of a vote. We are aware of a few Supreme Court

App. 24

point to a specific act that would have resulted in a taxincrease because any revenue-raising bill passed byboth houses of the General Assembly and signed by thegovernor, instead of becoming law, would merely beplaced on the ballot at the next election. In otherwords, the legislator-plaintiffs’ injury is theirdisempowerment rather than the failure of any specifictax increase.

The extent and type of disempowermentdistinguishes the case before us from AlaskaLegislative Council v. Babbitt, 181 F.3d 1333 (D.C. Cir.1999). In that case, the D.C. Circuit concluded thatmembers of the Alaska State Legislature and alegislative committee lacked standing to challenge afederal statute that established a priority forsubsistence hunting and fishing on federal lands in thestate. Id. at 1335-36. Plaintiffs’ theory that the federalstatute “render[ed] the Alaska Legislature unable tocontrol hunting and fishing on federal lands within theState” was rejected because “there is not the slightestsuggestion here that these particular legislators hadthe votes to enact a particular measure, that they castthose votes or that the federal statute or the federaldefendants did something to nullify their votes.” Id. at1338. The court expressed skepticism that the federal

cases involving requirements of municipal referenda before adecision made by a city council could go into effect. See City ofEastlake v. Forest City Enters., Inc., 426 U.S. 668, 670 (1976)(changes in land use required 55% citizen approval in referendum);James v. Valtierra, 402 U.S. 137, 139, 142 (1971) (construction oflow-cost housing could not occur without voter referendum, notingother referenda requirements in California Constitution). Inneither case was standing a contested issue, nor did any plaintiffrest a claim on the Guarantee Clause.

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statute undermined state prerogatives, noting thatfederal regulations promulgated pursuant to thechallenged statute expressly incorporated state gameand fishing rules. Id. Much like the plaintiffs in Raines,the Alaska legislators therefore retained somelegislative control and were not without a legislativeremedy.

This led the D.C. Circuit to conclude that the“supposed injury is nothing more than an abstractdilution of institutional legislative power to regulateand manage fish and wildlife resources, and we are notsure it amounts to even this much.” Id. (quotationomitted). The state legislators in Alaska LegislativeCouncil complained only that they lost some controlover federal lands, a power the Constitution expresslygrants to Congress. See U.S. Const. art. IV, § 3, cl. 2(“The Congress shall have Power to dispose of andmake all needful Rules and Regulations respecting theTerritory or other Property belonging to the UnitedStates . . . .”). By contrast, the state legislators beforeus have alleged that TABOR strips them of all power toconduct a “legislative core function” that is notconstitutionally committed to another legislative body.

In light of the actual injury alleged, GovernorHickenlooper’s “specific legislative act” argument doesnot carry the day. TABOR plainly bars the GeneralAssembly from instituting a new tax throughlegislative action. Our standing jurisprudence does notdemand that plaintiffs engage in an obviously futilegesture. In United States v. Hardman, 297 F.3d 1116(10th Cir. 2002) (en banc), we considered a challenge to16 U.S.C. §§ 703 and 668(a), which prohibit possessionof certain eagle feathers absent a permit. Hardman,

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297 F.3d at 1122-23. Only members of federallyrecognized tribes were eligible for such permits. Id. at1121. We rejected the government’s argument that thenon-member claimants in the case lacked standingbecause they had not applied for permits, noting that“the application itself requires certification ofmembership.” Id. “Because it would have been futile forthese individuals to apply for permits, we find thatthey have standing to challenge the statutory andregulatory scheme.” Id. A similar principle applieshere: The legislator-plaintiffs were not required to passa law purporting to independently increase taxes inviolation of TABOR before filing this action.

That both Coleman and Raines involved allegationsconcerning a single vote does not imply that onlysingle-vote matters may give rise to an injury in fact. Ifplaintiffs seek legislative standing based on thenullification of a particular vote, Raines requires thatthey identify “a specific legislative act . . . [that] goesinto effect (or does not go into effect)” as a result. 521U.S. at 823; see also Baird, 266 F.3d at 412. But we donot read Raines to require legislators seeking standingto plead facts substantially identical to Coleman’s.Were that the case, the discussion of various otherelements militating against legislative standing inRaines would be dicta. See 521 U.S. at 819-20, 825-26.And it would be a bizarre result if the nullification of asingle vote supported legislative standing, but thenullification of a legislator’s authority to cast a largenumber of votes did not.

We recognize that the legislator-plaintiffs’ allegedinjury shares certain characteristics with that assertedin Raines. Just as the legislator-plaintiffs in this case,

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the Raines plaintiffs did not assert a claim that theywere “personally entitled” to cast an effective vote onrevenue-raising measures in the sense that theauthority at issue “runs . . . with the Member’s seat, aseat which the Member holds (it may quite arguably besaid) as trustee for his constituents, not as aprerogative of personal power.” Id. at 821. But thesame was true in Coleman, which the court declined tooverrule despite a clear opportunity to do so. See id. at825-26. If an elected official cannot sue on his ownbehalf to assert legislative prerogatives on the theorythat his power properly belongs to his constituents,legislative standing would cease to exist outside thenarrow category of particularly unfair treatmentexemplified by Powell. This factor alone thus cannot besufficient to defeat standing.

Some legislative standing cases have relied in parton the fact that a claimed injury impacted all membersof a legislature in denying standing to a sub-group oflegislators. In Schaffer, for example, the injuriesalleged “necessarily damage[d] all Members ofCongress equally.” 240 F.3d at 885 (quoting Raines,521 U.S. at 821) (alterations omitted). And in Kucinich,the court held that a group of House members lackedstanding to challenge alleged violations of the WarPowers resolution partially on the basis that theclaimed injury “impacts the whole of Congress—notsolely the ten plaintiffs[] before the Court.” 821 F.Supp. 2d at 117-18. But both of these cases also restedin part on the “lost vote” rationale, the availability ofinternal legislative remedies, or separation-of-powersconcerns, none of which are present in this case. SeeSchaffer, 240 F.3d at 886 (plaintiffs receivedobjectionable pay raise because they lost a vote, and

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could cure any injury “pursuant to the normallegislative process”); Kucinich, 821 F. Supp. 2d at 120(plaintiffs “overlook the important role politicalremedies have in the standing analysis” by arguingtheir votes were nullified while “acknowledging thatthey retain legislative remedies”).

In sum, the case under review differs from bothColeman and Raines—and the cases interpreting thosedecisions—in important respects. We ultimately agreewith the district court that the legislator-plaintiffs havesufficiently alleged an injury to the “plain, direct andadequate interest in maintaining the effectiveness oftheir votes,” Coleman, 407 U.S. at 438, rather thanrelying only on an “abstract dilution of institutionallegislative power,” Raines, 521 U.S. at 826. On remand,the plaintiffs will be required to prove their allegations.But at this stage, assuming the truth of all well-pledallegations contained in the complaint, we concludethat the legislator-plaintiffs have satisfied Coleman’srequirements for legislative standing. We thereforehold that plaintiffs have suffered an injury in fact, andthus proceed to a brief discussion of causation andredressability.

B

To satisfy causation for standing purposes, plaintiffsmust demonstrate that their injury is “fairly traceableto the challenged action of the defendant.” Defenders ofWildlife, 504 U.S. at 560 (quotation and alterationsomitted). And an injury is redressable if a courtconcludes it is “likely, as opposed to merely speculative,that the injury will be redressed by a favorabledecision.” Id. at 561 (quotations omitted).

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The Governor suggests that we construe the allegedinjury as broadly as possible for purposes of analyzingcausation. He selects two phrases from the operativecomplaint, arguing that plaintiffs’ alleged injuries area claimed slide into fiscal dysfunction and inadequateeducation funding. Neither injury, he suggests, iscaused by TABOR or redressable by a decisioninvalidating it. As explained supra, however, thelegislator-plaintiffs’ alleged injury is not a lack ofrevenue flowing into state coffers but the elimination oftheir authority to make laws raising taxes orincreasing spending. This injury is directly attributableto TABOR’s requirement that any tax increase beapproved by Colorado voters. Plaintiffs seek adeclaratory judgment that TABOR is null and void andan order prohibiting any state officer from enforcingTABOR’s provisions. Such a judgment would allow thelegislator-plaintiffs to vote directly for increased taxes,thereby redressing their alleged injury.10

10 To the extent that Governor Hickenlooper argues that theplaintiffs’ Guarantee Clause claim is not redressable because itcannot be enforced against him, this assertion is contradicted bythe Supreme Court’s decision in Minor v. Happersett, 88 U.S. 162(1875). There, the Court held that the Guarantee Clause“necessarily implies a duty on the part of the States themselves toprovide such a government.” Id. at 175. As Colorado’s chiefexecutive, Governor Hickenlooper bears responsibility for enforcingthat guarantee on the state’s behalf. See Developmental Pathwaysv. Ritter, 178 P.3d 524, 529-30 (Colo. 2008) (governor is generallyproper defendant in suit challenging state constitutionalamendment).

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C

In addition to the Article III requirements forstanding, we also consider prudential standingconsiderations. See Sac & Fox Nation of Mo. v. Pierce,213 F.3d 566, 573 (10th Cir. 2000) (listing prudentialstanding principles). Governor Hickenlooper suggeststhat plaintiffs assert only a “generalized grievanceshared in substantially equal measure by all or a largeclass of citizens.” Warth v. Seldin, 422 U.S. 490, 499(1975) (quotation omitted). We disagree. TheGovernor’s argument again rests on the premise thatthe legislator-plaintiffs’ claimed injury is nothing morethan a decrease in the amount of tax revenue collectedby the state. Such an alleged injury would constitute ageneralized grievance. Courts should generally declineto hear cases based on nothing more than a plaintiff’sdisagreement with budgetary policies. See Valley ForgeChristian Coll. v. Ams. United for Separation of Church& State, 454 U.S. 464, 476-78 (1982).

We do not doubt that TABOR has a substantialeffect on the state of Colorado and its citizens. But theinjury the legislator-plaintiffs seek to redress, asexplained in Parts II.A & B, supra, is particular totheir positions as state legislators and is not “shared insubstantially equal measure by all or a large class ofcitizens.” Warth, 422 U.S. at 499. Only the one hundredmembers of the Colorado General Assembly can claimthe disempowerment injury alleged here. Denyingprudential standing in this case would be particularlyproblematic given our instruction that parties harmedby “generalized grievances should normally be directedto the legislative, as opposed to judicial, branches ofgovernment.” Bd. of Cnty. Comm’rs v. Geringer, 297

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F.3d 1108, 1112 (10th Cir. 2002). As we have discussed,the legislator-plaintiffs cannot obtain a remedy throughthe legislative process.

Moreover, the Supreme Court has stressed that itsprudential standing limitation on widely dispersedinjuries “invariably appears in cases where the harm atissue is not only widely shared, but is also of anabstract and indefinite nature—for example, harm tothe common concern for obedience to law.” FEC v.Akins, 524 U.S. 11, 23 (1998) (quotation omitted).“Often the fact that an interest is abstract and the factthat it is widely shared go hand in hand. But theirassociation is not invariable, and where a harm isconcrete, though widely shared, the Court has foundinjury in fact.” Id. at 24 (quotation omitted); see alsoPub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449-50 (1989) (“The fact that other citizens or groups ofcitizens might make the same complaint . . . does notlessen appellants’ asserted injury . . . .”). As discussedin Part II.A, supra, we conclude that the legislator-plaintiffs have alleged a concrete injury.

Because neither the Article III standingrequirements nor the asserted doctrine of prudentialstanding bars the legislator-plaintiffs’ suit, we affirmthe district court’s rulings on legislative standing.

III

We turn to another justiciability hurdle, thepolitical question doctrine. “The political questiondoctrine excludes from judicial review thosecontroversies which revolve around policy choices andvalue determinations constitutionally committed forresolution to the halls of Congress or the confines of the

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Executive Branch.” Japan Whaling Ass’n v. Am.Cetacean Soc’y, 478 U.S. 221, 230 (1986). Applicabilityof the political question doctrine is a question of lawthat we review de novo. Custer Cnty. Action Ass’n v.Garvey, 256 F.3d 1024, 1031-32 (10th Cir. 2001).

A

As a threshold matter, we must decide if thepolitical question doctrine categorically precludesGuarantee Clause challenges against stateconstitutional amendments adopted by popular vote.There is some support for this position in SupremeCourt cases predating the modern articulation of thepolitical question doctrine in Baker v. Carr, 369 U.S.186 (1962). But we conclude that neither Luther v.Borden, 48 U.S. (7 How.) 1 (1849), nor Pacific StatesTelephone & Telegraph Co. v. Oregon, 223 U.S. 118(1912), precludes merits consideration in this case.

In Luther, the Supreme Court was asked to resolvea dispute that would have required it to determinewhich of two putative governments legitimatelycontrolled Rhode Island at the time. On the basis thatthe issue “ha[d] been already decided by the courts ofRhode Island,” the Court held that “[u]pon such aquestion the courts of the United States are bound tofollow the decisions of the State tribunals.” 48 U.S. at40. The Court also discussed the Guarantee Clause,labeling the issue of which government was valid as“political in its nature,” vested not in the judiciary butin Congress. Id. at 42. “Under [the Guarantee Clause]it rests with Congress to decide what government is theestablished one in a State.” Id.

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Pacific States involved a fact pattern similar to theone before us, but a much broader legal challenge.Shortly after Oregon amended its state constitution topermit lawmaking by initiative and referendum, thepeople enacted “a law taxing certain classes ofcorporations.” Pac. States, 223 U.S. at 135. Acorporation affected by the new tax challenged itslegitimacy, alleging that “by the adoption of theinitiative and referendum, the State violates the rightto a republican form of government.” Id. at 140(quotation omitted). “In other words,” said the Court,“the propositions [of error in the complaint] each andall proceed alone upon the theory that the adoption ofthe initiative and referendum destroyed all governmentrepublican in form in Oregon.” Id. at 141. Construingthe plaintiff’s complaint as an attempt to overturn “notonly . . . the particular statute which is before us, but. . . every other statute passed in Oregon since theadoption of the initiative and referendum,” id., theJustices held “the issues presented, in their veryessence, [to be] . . . political and governmental, andembraced within the scope of powers conferred uponCongress,” id. at 151.

Both the Luther and Pacific States claims differfrom those at bar. Importantly, both cases involvedwholesale attacks on the validity of a state’sgovernment rather than, as before us, a challenge to asingle provision of a state constitution. See Pac. States,223 U.S. at 150 (the “essentially political nature” of thequestion presented “is at once made manifest byunderstanding that the assault which the contentionhere advanced makes it not on the tax as a tax, but on

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the State as a State”);11 Luther, 48 U.S. at 47 (whetherthe people of a state “abolish[ed] an old government,and establish[ed] a new one in its place, is a question tobe settled by the political power”). There cannevertheless be little doubt that these cases includelanguage suggesting that Guarantee Clause litigationis categorically barred by the political questiondoctrine. In Luther, the Court stated that “Congressmust necessarily decide what government isestablished in the State before it can determinewhether it is republican or not.” 48 U.S. at 42. Andwhen the Pacific States Court faced the question of“whether it is the duty of the courts or the province ofCongress to determine when a State has ceased to berepublican in form, and to enforce the guaranty of theConstitution on that subject,” it declared that the issue

11 Contrary to the Governor’s position, Pacific States did notinvolve an issue “identical to the one presented here.” We areconfronted with an allegation that one provision of the ColoradoConstitution brings it below a constitutionally mandatedthreshold. Governor Hickenlooper directs us to the plaintiff’s briefin Pacific States in support of his argument that the issuespresented in the two cases are identical. According to that brief,the people of Oregon passed in 1910 an amendment similar inrelevant respects to TABOR that required voter approval viareferendum before certain taxes could be enacted. We note that theamendment was passed after the Oregon Supreme Court renderedthe decision reviewed by the Pacific States Court, see Oregon v.Pac. States Tel. & Tel. Co., 99 P. 427 (Or. 1909), and it is thereforeunclear whether that amendment was formally before the Courtin Pacific States. In any event, the Court’s opinion in Pacific Statesdoes not mention Oregon’s prior approval amendment, which wasrepealed by the people in November 1912. We are unpersuadedthat an argument briefed by one party but never addressed by theCourt requires us to read Pacific States more narrowly than itsframing of the issues suggests.

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was “political in character, and therefore not cognizableby the judicial power, but solely committed by theConstitution to the judgment of Congress.” 223 U.S. at133.

Had those been the Supreme Court’s final words onthe justiciability of the Guarantee Clause, a categoricalapproach might be proper. However, the Court inBaker highlighted the proposition that its priorpolitical question cases turned on a number of“attributes which, in various settings, diverge, combine,appear, and disappear in seeming disorderliness” andthat much confusion had resulted “from the capacity ofthe ‘political question’ label to obscure the need forcase-by-case inquiry.” 369 U.S. at 210-11. Afterreviewing its prior cases applying the political questiondoctrine, the Court explained that “severalformulations which vary slightly according to thesettings in which the questions arise may describe apolitical question.” Id. at 217.

Baker then announced six factors that render a casenon-justiciable under the political question doctrine:

[A] textually demonstrable constitutionalcommitment of the issue to a coordinate politicaldepartment; or a lack of judicially discoverableand manageable standards for resolving it; orthe impossibility of deciding without an initialpolicy determination of a kind clearly fornonjudicial discretion; or the impossibility of acourt’s undertaking independent resolutionwithout expressing lack of the respect duecoordinate branches of government; or anunusual need for unquestioning adherence to apolitical decision already made; or the

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potentiality of embarrassment from multifariouspronouncements by various departments on onequestion.

Id. “Unless one of these formulations is inextricablefrom the case at bar, there should be no dismissal fornonjusticiability on the ground of a political question’spresence.” Id. (emphasis added).

Given the clarity of this holding, we must agreewith the plaintiffs that the six tests identified in Bakerare the exclusive bases for dismissing a case under thepolitical question doctrine. Furthermore, the BakerCourt explicitly rejected a categorical GuaranteeClause bar. Immediately after announcing the sixpolitical question factors, the Court addressed theargument that the case under its consideration “sharesthe characteristics of decisions that constitute acategory not yet considered, cases concerning theConstitution’s guaranty, in Art. IV, § 4, of a republicanform of government.” Baker, 369 U.S. at 217-18. Itdetermined that the prior cases in which the Court hadconsidered “Guaranty Clause claims involve thoseelements which define a ‘political question,’”referencing the aforementioned six factors, “and forthat reason and no other, they are nonjusticiable.” Id.at 218 (emphasis added). “[N]onjusticiability of suchclaims has nothing to do with their touching uponmatters of state governmental organization.” Id.

The Baker opinion includes a lengthy discussion ofLuther, ultimately concluding that the decision restedon four of the six previously identified factors:

the commitment to the other branches of thedecision as to which is the lawful state

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government; the unambiguous action by thePresident, in recognizing the chartergovernment as the lawful authority; the need forfinality in the executive’s decision; and the lackof criteria by which a court could determinewhich form of government was republican.

Id. at 222. A reading of Luther under which “thepolitical question barrier was . . . absolute” wasrejected, with the Court continuing that in somecircumstances a court could determine “the limits ofthe meaning of ‘republican form,’ and thus the factor oflack of criteria might fall away.” Id. at 222 n.48. Eventhen, however, “there would remain other possiblebarriers to decision because of primary commitment toanother branch, which would have to be considered inthe particular fact setting presented.” Id. Inrecognizing Luther as standing solely for theproposition that “the Guaranty Clause is not arepository of judicially manageable standards which acourt could utilize independently in order to identify aState’s lawful government,” it clarified that it hadconsistently declined to resort to the clause as a“standard for invalidating state action.” Id. at 223.

More recently, the Supreme Court has continued todecline interpretation of its political question doctrineprecedent as categorically barring Guarantee Clauselitigation. In New York v. United States, 505 U.S. 144(1992), the Court expressed displeasure that Luther’s“limited holding metamorphosed into the sweepingassertion that violation of the great guaranty of arepublican form of government in States cannot bechallenged in the courts.” Id. at 184 (quotationomitted). The Supreme Court stressed that it has

App. 38

“addressed the merits of claims founded on theGuarantee Clause without any suggestion that theclaims were not justiciable.” Id. (citing Att’y Gen. ofMich. ex rel. Kies v. Lowrey, 199 U.S. 233, 239 (1905);Forsyth v. Hammond, 166 U.S. 506, 519 (1897); In reDuncan, 139 U.S. 449, 461-62 (1891); Minor, 88 U.S. at175-76). And although the Court did not address theissue directly, it noted that modern decisions have“suggested that perhaps not all claims under theGuarantee Clause present nonjusticiable politicalquestions,” id. at 185, quoting the statement inReynolds v. Sims, 377 U.S. 533, 582 (1964) that “[s]omequestions raised under the Guarantee Clause arenonjusticiable.”

Relying on the Court’s directive in Baker that “thereshould be no dismissal for non-justiciability on theground of a political question’s presence” absent one ofthe specifically identified factors, 369 U.S. at 217, wereject the proposition that Luther and Pacific Statesbrand all Guarantee Clause claims as per se non-justiciable.

B

We must yet apply the six-factor test announced inBaker. For the convenience of the reader, we restatethe Baker factors, inserting in brackets an Arabicnumber before each of the six tests, and proceed to adiscussion of those factors.

[1] a textually demonstrable constitutionalcommitment of the issue to a coordinate politicaldepartment; or [2] a lack of judiciallydiscoverable and manageable standards forresolving it; or [3] the impossibility of deciding

App. 39

without an initial policy determination of a kindclearly for nonjudicial discretion; or [4] theimpossibility of a court’s undertakingindependent resolution without expressing lackof the respect due coordinate branches ofgovernment; or [5] an unusual need forunquestioning adherence to a political decisionalready made; or [6] the potentiality ofe m b a r r a s s m e n t f r o m m u l t i f a r i o u spronouncements by various departments on onequestion.

Baker, 369 U.S. at 217.

1

Initially, we consider whether the Guarantee Clausemanifests “a textually demonstrable constitutionalcommitment of the issue to a coordinate politicaldepartment.” Id. The Guarantee Clause provides: “TheUnited States shall guarantee to every State in thisUnion a Republican Form of Government, and shallprotect each of them against Invasion; and onApplication of the Legislature, or of the Executive(when the Legislature cannot be convened) againstdomestic Violence.” U.S. Const. art. IV, § 4.

The text of the Guarantee Clause does not mentionany branch of the federal government. It commits the“United States”—which would normally be read asincluding the Article III courts—to the preservation ofrepublican government in the states. The GuaranteeClause is found not in Article I or Article II, where wewould expect to find it if its provisions were textuallycommitted to another branch, but in Article IV.Moreover, two other provisions of Article IV specifically

App. 40

empower Congress to act, but the Guarantee Clausedoes not. See id. § 1 (“[T]he Congress may by generalLaws prescribe the Manner in which [public] Acts,Records, and Proceedings shall be proved, and theEffect thereof.”); id. § 3 (“New states may be admittedby Congress into this Union . . . Congress shall havePower to dispose of and make all needful Rules andRegulations respecting the Territory or other Propertybelonging to the United States.”). The omission of anymention of Congress from the Guarantee Clause,despite Congress’ prominence elsewhere in Article IV,indicates there is no “textually demonstrablecommitment”—certainly not an inextricableone—barring our review or district court considerationof this case. Baker’s refusal to bar Guarantee Clauseclaims on an “absolute” basis would be rendered anullity if the clause itself contained a textualcommitment to the coordinate political branches. 369U.S. at 222 & n.48.

As part of its discussion of Luther, the Bakeropinion stated that “Chief Justice Taney . . . foundfurther textual and practical reasons for concludingthat, if any department of the United States wasempowered by the Guaranty Clause to resolve theissue, it was not the judiciary.” 369 U.S. at 220. Notethat the “issue” referenced was not whether a stategovernment had fallen below a minimum constitutionalthreshold, but “what government is the established onein a State.” Id. (quoting Luther, 48 U.S. at 42). Thequoted passage explains that “when the senators andrepresentatives of a State are admitted into thecouncils of the Union, the authority of the governmentunder which they are appointed, as well as itsrepublican character, is recognized by the proper

App. 41

constitutional authority.” Id. (quoting Luther, 48 U.S.at 42).

Inexorably, the Baker Court concluded thatCongress was the appropriate authority fordetermining “which is the lawful state government.”369 U.S. at 222. This conclusion follows logically fromthe Constitution’s text, which makes Congress thearbiter of congressional elections. See U.S. Const. art.I, § 5, cl. 1 (“Each House shall be the Judge of theElections, Returns and Qualifications of its ownMembers . . . .”). Yet, possibility of congressional actiondoes not preclude a judicial determination regardingwhether an admittedly established state governmenthas later adopted an impermissibly un-republican stateconstitutional provision. The Pacific States opiniondoes not identify any textual commitment of authority,but it too dealt with a claim that “assail[ed] . . . therightful existence of the State.” 223 U.S. at 141-42; seealso id. at 151 (plaintiffs “demand of the State that itestablish its right to exist as a State”).12 We must readLuther’s statement regarding recognition ofcongressional delegates, 48 U.S. at 42, in that context:When choosing between slates of representatives fromtwo competing governments, congressional admissionof one slate over the other would seem to imply

12 Similarly, in Hanson v. Flower Mound, 679 F.2d 497 (5th Cir.1982) (per curiam), the court summarily rejected a pro se litigant’sclaim that “the government of the Town of Flower Mound is anullity” based on a violation of the Guarantee Clause. Id. at 499,502. Assuming the Clause applied to municipalities, the Courtconcluded that “the question whether a government is a nullitybecause its form violates the Clause is a nonjusticiable politicalquestion.” Id. at 502 (citing Luther, 48 U.S. at 42).

App. 42

recognition of one putative government as the proper(and republican) representatives of the citizenry. Andgiven the textually demonstrable commitment toCongress the role of determining the “Elections,Returns and Qualifications of its own Members,” U.S.Const. art. I, § 5, cl. 1, we would not hesitate toconclude that the first Baker test would forbid thejudiciary from choosing between two putative stategovernments. That is not this case, however; thelegislator-plaintiffs do not challenge the representativelegitimacy of Colorado’s current government or theauthority of its congressional delegation to serve inWashington. Looking to the “particular fact settingpresented,” as Baker directed, 369 U.S. at 222 n.28, wediscern no textual commitment of the narrow issueraised by the plaintiffs to a coordinate political branch.

2

We are similarly unpersuaded that a “lack ofjudicially discoverable and manageable standards,” id.at 217, precludes judicial review of this lawsuit. Asconstrued by Baker, the Luther decision rested in parton the lack of criteria for determining whichgovernment was legitimately republican. See 369 U.S.at 222. We reiterate that this holding rests on theimpossibility of applying judicial standards to choosebetween two governments that each claim to be valid,rather than any extraordinary vagueness in the text ofthe Guarantee Clause itself. The Luther Court asked“by what rule could it have determined thequalification of voters upon the adoption or rejection ofthe proposed constitution, unless there was someprevious law of the State to guide it,” and answered:The Court lacks “the right to determine what political

App. 43

privileges the citizens of a State are entitled to, unlessthere is an established constitution or law to govern itsdecision.” 48 U.S. at 41. That is not this case.

There is sparse judicial precedent interpreting theGuarantee Clause to aid our analysis. Even GuaranteeClause cases in which the Supreme Court declined toinvoke the political question doctrine do not providemuch meaningful guidance in this case. See Kies, 199U.S. at 239 (“If the legislature of the State has thepower to create and alter school districts and divideand apportion the property of such districts . . . theaction of the legislature is compatible with a republicanform of government . . . .”); Minor, 88 U.S. at 175-76(depriving women of the franchise did not violateGuarantee Clause because none of the original thirteenstates nor any state admitted to that point “saveperhaps New Jersey” allowed women to vote).“Judicially manageable standards” must include—butcannot be limited to—precedent. We must not “hold[] acase nonjusticiable under the second Baker testwithout first undertaking an exhaustive search forapplicable standards.” Alperin v. Vatican Bank, 410F.3d 532, 552 (9th Cir. 2005).

Before the Supreme Court’s decision in District ofColumbia v. Heller, 554 U.S. 570 (2008), there wassimilarly sparse judicial interpretation of the SecondAmendment at both the state and federal levels.Precedent that did exist included a Supreme Court casethat had long been understood as foreclosing thesuggestion that the Second Amendment protects anindividual right. See United States v. Miller, 307 U.S.174, 178 (1939). Outside the judiciary, historians andlaw professors studied the meaning of the Amendment,

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relying on sources typically used to aid constitutionalinterpretation: dictionaries, ratification history,contemporary treatises, and the like. Meanwhile, statesand localities had developed various provisionsregulating firearms. Such legislative enactmentsbecame relevant because courts, including the HellerCourt, were willing to consider the rarity of stateenactments in determining whether they areconstitutionally permissible. 554 U.S. at 629 (“Fewlaws in the history of our Nation have come close to thesevere restriction of the District’s handgun ban.”).There is no evidence that the Court in Heller evenconsidered the possibility that the sources available toit could be insufficient for developing judiciallydiscoverable and manageable standards.

As it was with the Second Amendment, so it is withthe Guarantee Clause. We are directed, by both partiesand by various amici, to sources that courts have reliedon for centuries to aid them in constitutionalinterpretation. Briefing directs us to several of theFederalist Papers, founding-era dictionaries, records ofthe Constitutional Convention, and other papers of thefounders. We have the authority to take judicial noticeof other state constitutional provisions regulating thelegislature’s power to tax and spend. See Fed. R. Evid.201(b). At this stage of the litigation, we must strike adelicate balance between acknowledging thatrepositories of judicially manageable standards existand allowing further record development in the districtcourt before the merits of the case are adjudicated. SeeLargess v. Supreme Judicial Court for the State ofMass., 373 F.3d 219, 225 (1st Cir. 2004) (per curiam)(“[R]esolving the issue of justiciability in the GuaranteeClause context may also turn on the resolution of the

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merits of the underlying claim.”). Without reaching orconsidering the merits, we note the ready availabilityof sources providing judicially manageable guidance onthe meaning of the Guarantee Clause. We areunwilling to allow dicta suggesting that the GuaranteeClause is per se nonjusticiable to become a self-fulfilling prophecy; in order to develop judiciallymanageable standards, courts must be permitted toreach the stage of litigation where such standards aredeveloped.

Our holding comports with the holdings of othercircuits that have applied the second prong of Baker.We are not asked to second-guess military decisions,see Aktepe v. United States, 105 F.3d 1400, 1404 (11thCir. 1997) (“[C]ourts lack standards with which toassess whether reasonable care was taken to achievemilitary objectives while minimizing injury and loss oflife.”), nor must we consider sensitive foreign policyissues, see Schneider v. Kissinger, 412 F.3d 190, 196(D.C. Cir. 2005) (declining to determine whether “itwas proper for an Executive Branch official . . . tosupport covert actions against” a foreign official(quotation omitted)).

In Wang v. Masaitis, 416 F.3d 992 (9th Cir. 2005),the Ninth Circuit applied the Baker factors to a casethat would have required it to “decide whether, underthe Treaty Clause of the Constitution, the UnitedStates may enter into a ‘treaty’ with a non-sovereignentity.” Id. at 993. It discussed “Baker’s distinctionbetween discerning a nation’s sovereignty (a politicalquestion) and interpreting the impact of that status onthe law (a judicial one).” Id. at 995. Considering thesecond and third Baker factors together, the Ninth

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Circuit held: “‘Resolution of the question may not beeasy, but it only requires us to apply normal principlesof interpretation to the constitutional provisions atissue.’” Id. at 996 (quoting Goldwater v. Carter, 444U.S. 996, 999 (1979) (Powell, J., concurring)). The sameis true in this case. We cannot identify any feature ofthe Guarantee Clause that makes it unamenable to“normal principles of interpretation.”

Under Fed. R. Civ. P. 8(a)(2), a plaintiff mustprovide “a short and plain statement of the claimshowing that the pleader is entitled to relief.” TheGovernor notes that we relied on the plaintiffs’ initialpleadings to apply the Baker test in Schroeder v. Bush,263 F.3d 1169 (10th Cir. 2001). But we did not holdthat plaintiffs must incorporate into their complaintevery legal source relevant to the applicable standard.Our review of the record and briefing in this casesatisfies us that judicially discoverable and manageablestandards for Guarantee Clause litigation exist. Anattempt to define those standards thoroughly wouldnecessarily implicate adjudication on the merits notappropriate for interlocutory appeal.

3

With respect to the third Baker test, we concludethat resolving this case will not require the making ofa “policy determination of a kind clearly for nonjudicialdiscretion.” Baker, 369 U.S. at 217. TABOR is a hotlycontested issue in Colorado that has had a wide-ranging influence on the state’s fiscal policy. But theinterpretation of constitutional text—even vagueconstitutional text—is central to the judicial role. SeeMarbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)(“It is emphatically the province and duty of the

App. 47

judiciary to say what the law is.”). We “cannot avoid[our] responsibility merely because the issues havepolitical implications.” Zivotofsky ex rel. Zivotofsky v.Clinton, 132 S. Ct. 1421, 1428 (2012) (quotationomitted).

We agree with the district court that this lawsuit isdistinguishable from others in which courts haveinvoked the “policy determination” prong in Baker. See,e.g., Schroeder, 263 F.3d at 1175 (“Courts are ill-equipped to make highly technical, complex, and on-going decisions regarding how to maintain marketconditions, negotiate trade agreements, and controlcurrency.”); Ad Hoc Comm. on Judicial Admin. v.Massachusetts, 488 F.2d 1241, 1245 (1st Cir. 1973)(concluding that “the financing and, to an importantextent, the organization of the judicial branches”requires a policy determination);13 Orlando v. Laird,443 F.2d 1039, 1043 (2d Cir. 1971) (“[D]ecisionsregarding the form and substance of congressionalenactments authorizing hostilities are determined byhighly complex considerations of diplomacy, foreignpolicy, and military strategy inappropriate to judicialinquiry.”). Plaintiffs do not ask the court to balancedelicate policy matters similar to market conditions,

13 Ad Hoc Committee also includes the following language: “[I]twould be both unprecedented and unseemly for a federal judge toattempt a reordering of state priorities.” 488 F.2d at 1245-46. Wenote that “priorities,” as used in that case, refers directly to budgetpriorities. Plaintiffs alleged that the state’s inadequate judicialfinancing violated their constitutional rights and requested as aremedy the “enlargement and restructuring of the entire statecourt system.” Id. at 1243. The plaintiffs in this case seek nosimilar relief and do not ask the federal courts to become involvedin the minutiae of Colorado’s budget.

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budgeting priorities, or foreign policy concerns. Instead,they seek a ruling as to whether state governmentunder TABOR is republican in form.

If adjudicating this case required us or the districtcourt to determine the wisdom of allocating certaintraditionally legislative powers to the people, the thirdBaker factor would dictate dismissal. But decidingwhether a state’s form of government meets aconstitutionally mandated threshold does not requireany sort of “policy determination” as courts applyingthe Baker tests have understood that phrase. The casebefore us requires that we determine the meaning of apiece of constitutional text and then decide whether astate constitutional provision contravenes the federalcommand. See Goldwater, 444 U.S. at 999 (“Resolutionof the question . . . requires us to apply normalprinciples of interpretation to the constitutionalprovisions at issue.”).

4

We dispense briefly with the remaining three Bakerfactors: “[4] the impossibility of a court’s undertakingindependent resolution without expressing lack of therespect due coordinate branches of government; or[5] an unusual need for unquestioning adherence to apolitical decision already made; or [6] the potentialityof embarrassment from multifarious pronouncementsby various departments on one question.” 369 U.S. at217. These factors are best understood as promotingseparation-of-powers principles in cases featuring prioraction on an issue by a coordinate branch. SeeGoldwater, 444 U.S. at 1000 (Powell, J., concurring)(“[T]he political-question doctrine rests in part on

App. 49

prudential concerns calling for mutual respect amongthe three branches of Government.”).

We are aware of no action taken by either Congressor the executive with respect to this litigationspecifically or TABOR generally. Both the people andcourts of Colorado have made pronouncements onTABOR. However, the possibility that federal judicialdecisions will conflict with a state referendum or astate court decision does not implicate the politicalquestion doctrine. Such conflicts are an ordinary partof the judicial process. See, e.g., Romer v. Evans, 517U.S. 620 (1996) (striking down Colorado’s popularlyenacted Amendment 2 as unconstitutional); Gallegos v.Colorado, 370 U.S. 49 (1962) (reversing decision ofColorado Supreme Court). TABOR’s ratification by thepeople of Colorado was a “political decision,” Baker, 369U.S. at 217, but it was not a decision of the sort that wemust adhere to unquestioningly. See Gross v. GermanFound. Indus. Initiative, 456 F.3d 363, 390 (3d Cir.2006) (“As Baker makes clear, the fifth factorcontemplates cases of an ‘emergency[] nature’ thatrequire ‘finality in the political determination,’ such asthe cessation of armed conflict.” (quoting Baker, 369U.S. at 213-14 (alteration in Gross))).’

We thus affirm the district court’s conclusion thatthe specific Guarantee Clause claim asserted in thiscase is not barred by the political question doctrine.

IV

Governor Hickenlooper argues that the operativecomplaint fails to state a claim upon which relief can begranted because Colorado’s government remainsrepublican in form after the passage of TABOR. The

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Governor did not assert this traditional Fed. R. Civ. P.12(b)(6) argument to the district court with respect tothe Guarantee Clause claim; he sought dismissal ofthat claim only on standing, prudential standing, andpolitical question grounds. And the district court orderover which we exercise interlocutory review decidedonly the questions properly presented. Although wemay exercise our discretion in certain circumstances toreach issues “fairly included” in an order subject tointerlocutory review, we “may not reach beyond thecertified order.” Rural Water Dist. No. 4 v. City ofEudora, 720 F.3d 1269, 1278 (10th Cir. 2013) (citationsomitted); see also Yamaha Motor Corp., U.S.A. v.Calhoun, 516 U.S. 199, 205 (1996) (“The court ofappeals may not reach beyond the certified order. . . .”); Moore v. Liberty Nat’l Life Ins. Co., 267 F.3d1209, 1219-20 (11th Cir. 2001) (declining to considerstatute of limitations claim on interlocutory appealbecause of insufficient development of claim at districtcourt level); 16 Charles Alan Wright et al., FederalPractice & Procedure, § 3929, at 456-57 (3d ed. 2012)(“[T]he court of appeals will not consider matters notyet ruled upon by the district court.”). Because theorder at issue in this limited interlocutory appeal doesnot include a decision as to whether the GuaranteeClause claim asserted by plaintiffs plausibly states abasis for relief under Fed. R. Civ. P. 12(b)(6), we cannotaddress that question. We stress that our decision onplaintiffs’ Guarantee Clause claim is quite limited,leaving all issues other than standing, prudentialstanding, and the political question doctrine to thedistrict court.

App. 51

V

Plaintiffs also allege that TABOR violates § 4 of theColorado Enabling Act, which requires “[t]hat theconstitution [of Colorado] shall be republican in form.”Colorado Enabling Act, ch. 139, § 4, 18 Stat. 474, 474(1875). The district court concluded that even if theGuarantee Clause claim were found non-justiciable onpolitical question grounds, plaintiffs could proceed withtheir statutory Enabling Act claim. The Governorraises the same standing and political questionchallenges to the Enabling Act claim as to theGuarantee Clause claim. We do not need to conduct aseparate Article III standing inquiry for the EnablingAct claim because the injury, causation, andredressability analyses are identical regardless ofwhether the claim for relief is statutory orconstitutional. See Parts II.A & B, supra. Similarly, ourprudential standing analysis above applies with equalforce to the Enabling Act claim—we have alreadydecided that the legislator-plaintiffs’ particular claimdoes not constitute a generalized grievance. See PartII.C, supra.

We agree with the district court that the politicalquestion analysis is not identical for statutory andconstitutional claims. In Japan Whaling, the SupremeCourt held that “it goes without saying thatinterpreting congressional legislation is a recurring andaccepted task for the federal courts.” 478 U.S. at 230.To be sure, the mere fact that a claim is statutory doesnot automatically obviate political question concerns.See Spectrum Stores, Inc. v. Citgo Petroleum Corp.,632 F.3d 938, 943 (5th Cir. 2011) (declining toadjudicate “challenge [to] the structure of OPEC and

App. 52

its relation to the worldwide production of petroleum”);Lin v. United States, 561 F.3d 502, 504 (D.C. Cir. 2009)(invoking political question doctrine where issue wouldhave required determining “who exercises sovereigntyover Taiwan”); Crockett v. Reagan, 720 F.2d 1355, 1356(D.C. Cir. 1983) (per curiam) (political questiondoctrine barred challenge to U.S. military presence inEcuador notwithstanding statutory War PowersResolution). In each of these cases, the court could notaddress the question presented without rendering adecision on a question of foreign policy, thereby riskingeither “expressing lack of the respect due coordinatebranches of government” or “potentiality ofembarrassment from multifarious pronouncements byvarious departments on one question.” Baker, 369 U.S.at 217. Neither danger is present in the case before us.

The Supreme Court’s recent decision in Zivotofskyelucidates the difference between the judiciary “beingasked to supplant a foreign policy decision of thepolitical branches with the courts’ own unmooreddetermination” of foreign policy, 132 S. Ct. at 1427, and“enforc[ing] a specific statutory right,” id. In the instantcase, we are asked to decide “if [plaintiffs’]interpretation of the [Colorado Enabling Act] iscorrect.” Id. And at this stage of litigation, we mustdetermine only if federal courts are empowered tomake that decision. We hold that they are, and that theEnabling Act claim is independently justiciable forreasons that do not apply to the Guarantee Clauseclaim. See El-Shifa Pharm. Indus. Co. v. United States,607 F.3d 836, 856 (D.C. Cir. 2010) (en banc)(Kavanaugh, J., concurring) (“This is a statutory case.The Supreme Court has never applied the political

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question doctrine in a case involving alleged statutoryviolations. Never.”).

VI

We emphasize once again that this interlocutoryappeal allows us to consider only whether thelegislator-plaintiffs have established Article IIIstanding and whether prudential standingjurisprudence or the political question doctrineprecludes consideration of their Guarantee Clause andEnabling Act claims. Our answer to those questionscompletes our role at this stage of the proceedings.

We AFFIRM the standing and political questionrulings of the district court and REMAND for furtherproceedings.

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APPENDIX B

PUBLISH

UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

No. 12-1445(D.C. No. 1:11-CV-01350-WJM-BNB)

[Filed July 22, 2014]___________________________________ANDY KERR, Colorado State )Representative, et al., )

)Plaintiffs - Appellees, )

)v. )

)JOHN HICKENLOOPER, Governor ) of Colorado, in his official capacity, )

)Defendant - Appellant. )

------------------------------------------ )DARCY W. STRAUB, et al., )

)Amici Curiae. )

___________________________________ )_________________________________

ORDER_________________________________

Before BRISCOE, Chief Judge, KELLY, LUCERO,HARTZ, TYMKOVICH, GORSUCH, HOLMES,

App. 55

BACHARACH, PHILLIPS, and MCHUGH, CircuitJudges.*

_________________________________

This matter is before the court on the appellant’sPetition for Rehearing En Banc. We also have aresponse. The implicit request for panel rehearingcontained in appellant’s petition is denied by theoriginal hearing panel. The entire petition, as well asthe response, was also circulated to all of the judges ofthe court who are in regular active service. A poll wascalled, and a majority of the court voted to deny the enbanc request. See Fed. R. App. P. 35(a). Judges Hartz,Tymkovich, Gorsuch and Holmes voted to allow enbanc reconsideration.

Entered for the Court

/s/Elisabeth A. ShumakerELISABETH A. SHUMAKER, Clerk

* The Honorable Scott Matheson is recused in this matter and didnot participate in the en banc proceedings.

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HARTZ, Circuit Judge, dissenting from the denial ofrehearing en banc:

I respectfully dissent from the denial of en bancreview. We are bound by Supreme Court precedent tohold that the Guarantee Clause claim is nonjusticiableas a political question.

The Guarantee Clause provides: “The United Statesshall guarantee to every State in this Union aRepublican Form of Government.” U.S. Const. art. IV,§4. The claim in this case is that TABOR, anamendment to the Colorado constitution adopted byvoter initiative, violates the Guarantee Clause byrequiring advance voter approval of new taxes. A quitesimilar claim was raised in the United States SupremeCourt in Pacific States Telephone & TelegraphCompany v. Oregon, 223 U.S. 118 (1912). Oregon hadamended its constitution to allow the enactment oflegislation through an initiative or referendum. Onestatute so enacted imposed a tax on Pacific States. Thecompany defended against collection of the tax on theground that the initiative process violated theGuarantee Clause. The Supreme Court held that theclaim based on the Guarantee Clause was a politicalquestion and “not, therefore, within the reach ofjudicial power.” Id. at 151. The provisions in theOregon and Colorado constitutions are obviously notidentical. But I am at a loss to find a principled basison which to hold that the challenge in Pacific Stateswas a political question while the challenge here is not.In both, the gist of the claim has been that theGuarantee Clause was violated by the transfer oflegislative power from the legislature to the electorate.

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The panel opinion attempts to distinguish PacificStates on the ground that it raised “a much broaderlegal challenge” than does this case. Kerr v.Hickenlooper, 744 F.3d 1156, 1173 (10th Cir. 2014). Tosupport that characterization, the panel opinion quotesfrom a passage in the Supreme Court’s opinion. Thepassage follows the Court’s discussion of theassignments of error raised by Pacific States in its briefto the Court. The Court stated that those assignmentswere “reduced to six propositions, which really amountto but one, since they are all based upon the singlecontention that the creation by a state of the power tolegislate by the initiative and referendum causes theprior lawful state government to be bereft of its lawfulcharacter as the result of the provisions of [theGuarantee Clause].” Pac. States Tel. & Tel. Co., 223U.S. at 137. After quoting the six propositions in PacificStates’ brief, the Court wrote:

In other words, the propositions each and allproceed alone upon the theory that the adoptionof the initiative and referendum destroyed allgovernment republican in form in Oregon. Thisbeing so, the contention, if held to be sound,would necessarily affect the validity, not only ofthe particular statute which is before us, but ofevery other statute passed in Oregon since theadoption of the initiative and referendum. Andindeed, the propositions go further than this,since in their essence they assert that there is nogovernmental function, legislative or judicial, inOregon, because it cannot be assumed, if theproposition be well-founded, that there is, at oneand the same time, one and the same

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government, which is republican in form, andnot of that character.

Id. at 141 (emphasis added to language that is quotedby panel opinion).

This passage set forth the Court’s view of theimplications of Pacific State’s argument, not what wasactually stated in its brief. Nowhere did the briefargue, or even suggest, that everything done by anybranch of the Oregon state government wasillegitimate after approval of the constitutionalprovision allowing initiatives and referenda. The briefsimply argued, as one would expect, that the tax wasimproper because the initiative process—under whichthe tax was enacted—was unlawful under theGuarantee Clause. Nor did the Supreme Court“[c]onstru[e] the . . . complaint as an attempt tooverturn ‘not only . . . the particular statute which isbefore us, but . . . every other statute passed in Oregonsince the adoption of the initiative and referendum.’”Kerr, 744 F.3d at 1173 (quoting Pacific States, 223 U.S.at 140). Rather, it said only that if Pacific States’arguments in its brief (not the complaint) were sound,then all other legislation (even if not adopted byinitiative or referendum) would also fall. In otherwords, the Court was saying that either Oregon had arepublican form of government or it did not; if PacificStates was correct in saying that the initiative processviolated the Guarantee Clause, then the whole stategovernment came tumbling down because it was notrepublican in form. The Court rejected, albeit subsilentio, the possibility that the Court could justinvalidate the one feature of the Oregon

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government—the initiative process—that wasincompatible with a republican form of government.

One can challenge the cogency of the reasoning inPacific States. Professor Tribe wrote: “Chief JusticeWhite’s decisive assumption was, to say the least,dubious: if a court found that a particular feature ofstate government rendered the governmentunrepublican, why could not the court simply declarethat feature invalid?” 1 Laurence H. Tribe, AmericanConstitutional Law § 3-13, at 369 (3d ed. 2000). But wecannot ignore Supreme Court precedent just becausewe think it poorly reasoned. And the Supreme Courthas never questioned the holding of nonjusticiability inPacific States. At most, in New York v. United States,505 U.S. 144 (1992), it indicated that there may besome questions under the Clause that are justiciable.See id. at 184S86. Neither New York nor any otherSupreme Court opinion since Pacific States, however,has cast doubt on the validity of the nonjusticiabilityholding of that opinion. Even Baker v. Carr, 369 U.S.186 (1962), which formulated a new framework forassessing whether a claim raises a nonjusticiablepolitical question, see id. at 208S37, did not call intoquestion Pacific States or any other decision under theGuarantee Clause. Indeed, commenting on thepossibility that the appellants might have raised aclaim under the Clause, the Court said, “Of course, aswe have seen, any reliance on that clause would befutile.” Id. at 227.

Because I think it clear that Supreme Courtprecedent holds that the Guarantee Clause claim inthis case is nonjusticiable, I vote for en banc review tocorrect the panel’s error.

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TYMKOVICH, Circuit Judge, joined by HOLMES,Circuit Judge, dissenting from denial of RehearingPetition, En Banc

I would hear this case en banc. The panel’s decisionmistakenly extends the doctrine of legislative standing,as articulated in Raines v. Byrd, 521 U.S. 811 (1997),and contradicts Supreme Court precedent as to thenon-justiciability of the Guarantee Clause, U.S. Const.art. IV, § 4. Because the issues presented in this caseare of exceptional importance to the separation ofpowers that undergirds our constitutional structure, Iwould grant Governor Hickenlooper’s petition.

Colorado’s Taxpayers Bill of Rights (TABOR), Colo.Const. art. X, § 20, is a state constitutional provisionthat requires a vote of the people before new taxes canbe imposed or tax rates can be increased. Thelegislator-plaintiffs argue that they are injured by thisconstitutional provision because TABOR dilutes theircore legislative prerogative to increase taxes and thatthis injury confers Article III standing.

But many state constitutional provisions cause thesame type of injury. The net result of the panel’sdecision ratifying standing is that just about any policyprovision codified in the state constitution would besubject to legislative standing and attack on the theoryof vote dilution.

Thus, consider the effect of this view of legislativestanding:

• According to the panel’s logic, state legislatorswould have standing to challenge the stateconstitution’s protection of the recreational use ofmarijuana, Colo. Const., art. XVIII, § 16, on the

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theory that the provision infringes on the legislativecore function of codifying the criminal law.

• Legislators would also have standing to challengethe mandatory school funding provision of the stateconstitution, Colo. Const., art. IX, § 17, because itdeprives them of their right to cast effective voteson appropriations and education policy.

• Legislators are required to divvy up funds fromcasino gambling to specific recreational andenvironmental uses under the Great OutdoorsColorado Amendment, Colo. Const., art. XXVII, § 1.They could argue this requirement injures theirability to spend the money on other pressing socialissues.

• And on and on and on throughout the ColoradoConstitution (and the constitutions of other TenthCircuit states).

The panel’s view of legislative standing reaches wellbeyond Supreme Court precedent. And by remandingfor further proceedings under the Guarantee Clause,the decision squarely conflicts with longstandingSupreme Court precedent that holds such inquiries arebeyond the scope of federal-court review.

Legislative Standing

Article III standing requires the plaintiff to have asuffered an “injury in fact,” a causal connectionbetween the injury and the challenged conduct, andthat the injury be redressable by a favorable decision.Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61(1992). Consistent with Article III’s strict standingrequirements, it is rare for legislators to have standing

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to challenge a law or action that results in a loss of thelegislature’s political power. That is becauseinstitutional injuries of this kind are shared by allmembers of the legislature, so plaintiffs suing in theirlegislative capacities usually cannot establish a“concrete and particularized” injury for standingpurposes. Id. at 560.

In this light, the Supreme Court has held that the“abstract dilution of institutional legislative power” isnot a judicially cognizable injury for purposes ofindividual legislators’ standing. Raines, 521 U.S. at826. Raines reserves a narrow exception to the ruleagainst legislative standing—those actions that resultin “vote nullification.” Id. (citing Coleman v. Miller, 307U.S. 433, 438 (1939) (holding that legislator-plaintiffs’votes were nullified if their votes against ratification ofa constitutional amendment were “overridden”)).

The legislator-plaintiffs in this case have allegedthat TABOR violates the United States Constitution’sGuarantee Clause, which provides that “[t]he UnitedStates shall guarantee to every State in this Union aRepublican Form of Government . . . .” U.S. Const. art.IV, § 4. They argue that the Guarantee Clause requiresstate constitutions to preserve state legislators’ abilityto perform “legislative core functions,” which theplaintiffs contend include taxation and appropriation.Kerr v. Hickenlooper, 744 F.3d 1156, 1165 (10th Cir.2014). TABOR, because it requires successfullegislative votes in favor of tax increases or new taxesto be approved by citizen referendum before beingimplemented, has allegedly resulted in injury to themas lawmakers. In this way, TABOR reduces the

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legislators’ authority to cast fully effective votes infavor of tax increases.

In Raines, the Supreme Court held that plaintiffs,members of Congress, did not have standing tochallenge the Line Item Veto Act, rejecting anargument that the Act denied them the “meaning” and“effectiveness” of their votes on appropriations bills.521 U.S. at 825–26. The plaintiffs alleged the Actdeprived them of their “plain, direct and adequateinterest in maintaining the effectiveness of their votes.”Id. at 821–22 (relying on Coleman, 307 U.S. at 438).Rejecting a broad approach, the Court held thatlegislative standing exists only where plaintiffs’ voteshave been “completely nullified” or “deprived of allvalidity.” Id. at 822–23. The Court concluded that theline item veto caused abstract dilution of Congress’spower, rather than vote nullification, and thus theplaintiffs’ alleged injury was not judicially cognizable.Id. at 826.

The panel sees a distinction between this case andRaines—the lack of legislative remedies available tothe plaintiffs under TABOR. The lack of legislativeremedies is, of course, relevant to determining whetherthe plaintiffs have suffered complete nullification oftheir votes. But all of the cases cited by the panel standfor the proposition that legislator-plaintiffs do notsuffer complete nullification of their votes wherelegislative remedies remain available. See, e.g.,Schaffer v. Clinton, 240 F.3d 878, 885–86 (10th Cir.2001). The inverse is not necessarily true—the lack oflegislative remedies is necessary, but not sufficient, toshow vote nullification. The dispositive question is

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whether the injury caused by TABOR constitutes votenullification as understood in Raines. It does not.

The plaintiffs’ theory of the case is that their votesare ineffective in light of the requirements of theGuarantee Clause because the “end result of asuccessful legislative vote in favor of a tax increase isnot a change in the law.” Kerr, 744 F.3d at 1165. Putanother way, the right to an “effective” vote forstanding purposes is the right to have a successful votegiven its full effect under the relevant constitutionalprovision, not just some legal effect.

But, in Raines, the Court rejected a similarargument. According to the Raines plaintiffs, thelegislation rendered their future votes ineffective inlight of the requirements of the Presentment Clausebecause all approved appropriations were no longerinextricably linked for the President’s signature orveto. See Raines, 521 U.S. at 825. The Court describedthis change in effectiveness as “abstract dilution ofinstitutional legislative power” rather than “votenullification.” Id. at 826. The Court further noted that“[i]n the future, a majority of Senators andCongressmen can pass or reject appropriations bills;the Act has no effect on this process.” Id. at 824. TheCourt thus rejected the idea that the failure to give asuccessful vote its full effect under the PresentmentClause was a judicially cognizable injury to theplaintiffs as lawmakers—the claim was, rather, “basedon a loss of political power.” Id. at 821.

The panel’s view of Raines makes any stateconstitutional provision that limits a legislature’sauthority over a policy area vulnerable to legislativestanding on a Guarantee Clause claim. But TABOR

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and the other constitutional provisions described abovedo not completely nullify the plaintiffs’ votes nordeprive their votes of all validity. As to TABOR, a newtax or tax increase that passes the General Assemblyand is signed by the governor is referred to thestatewide ballot for a voter referendum and may indeedbecome law. A successful vote still has substantial legaleffect. Although the legal effect of a successful vote isless than it might have been without TABOR, Rainesmakes clear that abstract institutional injuries of thiskind cannot confer legislative standing.

Further, even if it were plausible that votes for taxincreases were not given legal effect, the resultinginjury falls far short of the type of institutional injuryat issue in Coleman. In Raines, the Supreme Courtnoted that Coleman allows for legislative standingwhen there has been “complete nullification” of a votefor a “specific legislative Act.” Id. at 823. In this case,the legislator-plaintiffs have not voted in favor of asuccessful tax measure that was subsequently deniedin a referendum. The panel attempts to explain awaythe “specific legislative Act” requirement by assertingit would be absurd if legislators could bring a claim fornullification of a specific vote but not for “nullificationof a legislator’s authority to cast a large number ofvotes.” Kerr, 744 F.3d at 1170. But Raines stands forthat precise proposition: legislative standing is limitedto claims of nullifications of specific, otherwise validvotes. The withdrawal of authority to cast a largenumber of votes with a particular degree ofeffectiveness is another way of alleging that thelegislature has suffered an abstract institutionalinjury. Without the complete nullification of an actualvote, there is no concrete injury under Raines.

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Even if the legislator-plaintiffs are correct on themerits of their argument—that TABOR’s reduction oflegislative authority violates the GuaranteeClause—the federal courts can only hear claims madeby plaintiffs who have suffered a judicially cognizableinjury. An abstract reduction of authority to raise taxesis an institutional injury based on the dilution ofpolitical power. This cannot serve as a basis forlegislative standing.

Political Question Doctrine

I also see no basis for the panel’s conclusion that theSupreme Court has retreated from consideringGuarantee Clause challenges to be non-justiciableunder the political question doctrine. And, inparticular, as I explain further below, the Court hasheld that Guarantee Clause challenges to statewidedirect democracy provisions, like TABOR, are non-justiciable.

Federal courts lack authority to hear cases thatinvolve a “political question.” The Supreme Court hasheld that a case “involves a political question . . . wherethere is a textually demonstrable constitutionalcommitment of the issue to a coordinate politicaldepartment; or a lack of judicially discoverable andmanageable standards for resolving it.” Zivotofsky exrel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012)(quoting Nixon v. United States, 506 U.S. 224, 228(1993)).

The Supreme Court has long maintained thatGuarantee Clause claims are generally non-justiciableunder the political question doctrine. See, e.g., City ofRome v. United States, 446 U.S. 156, 183 (1980) (“We

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do not reach the merits of the appellants’ argumentthat the Act violates the Guarantee Clause, Art. IV,§ 4, since that issue is not justiciable.”), abrogated onother grounds by Shelby Cnty. v. Holder, 133 S. Ct.2612 (2013); Baker v. Carr, 369 U.S. 186, 218 (1962).

The panel’s conclusion that Guarantee Clauseclaims are not generally barred by the politicalquestion doctrine derives from an erroneous reading ofBaker v. Carr. Baker involved an equal-protectionchallenge to Tennessee’s apportionment statute.Tennessee argued that apportionment cases, regardlessof how the litigants characterized the case, canimplicate no constitutional provision except theGuarantee Clause and that such claims present non-justiciable political questions. Baker, 369 U.S. at 209.In explaining that equal protection challenges toapportionment statutes were justiciable, the SupremeCourt clarified that previous Guarantee Clause claimswere considered non-justiciable not because they“touch[ed] upon matters of state governmentalorganization,” but because such claims involve at leastone of the six factors that make up the politicalquestion doctrine. Id. at 218. The panel reads thisclarification as a rejection of the general rule thatGuarantee Clause claims are non-justiciable. Butnowhere in Baker does the Supreme Court retreat fromprevious cases holding that Guarantee Clause claimsare non-justiciable—the Court simply explained whyGuarantee Clause claims have always been found non-justiciable. Indeed, the Court’s explanation of the non-justiciability of Guarantee Clause claims stronglysuggests the Court held that such claims alwaysinvolve political questions. Id. (“We shall discover thatGuaranty Clause claims involve those elements which

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define a ‘political question,’ and for that reason and noother, they are nonjusticiable.”).

In addition to recognizing this general rule, theSupreme Court has already held that challenges tostate-level direct democracy provisions under theGuarantee Clause are non-justiciable. In Pacific StatesTelephone & Telegraph Co. v. Oregon, 223 U.S. 118(1912), the Supreme Court held that a GuaranteeClause challenge to a tax increase enacted throughOregon’s initiative and referendum process was non-justiciable because the Constitution confers only onCongress the power to determine whether a stategovernment is republican in form. Id. at 150–51(holding it is “the [federal] legislative duty to determinethe political questions involved in deciding whether astate government republican in form exists”).

The panel distinguishes Pacific States by arguingthe lawsuit in that case was a “wholesale attack[] onthe validity of a state’s government rather than . . . achallenge to a single provision of a state constitution.”Kerr, 744 F.3d at 1173 (citing Pacific States, 223 U.S.at 150 (“[T]he assault which the contention hereadvanced makes is not on the tax as a tax, but on thestate as a state.”)). The panel maintains that, incontrast to Pacific States, the issue in this case is onlywhether “one provision of the Colorado Constitutionbrings it below a constitutionally mandated threshold.”Id. at 1173 n.11.

I do not think this is a meaningful distinction. TheGuarantee Clause presents a dichotomy: either a stategovernment is republican in form (and thus a “valid”government) or it is not. The plaintiffs in this case havealleged that TABOR is inconsistent with the Guarantee

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Clause. In other words, TABOR renders the Coloradogovernment non-republican in form.

In Pacific States, the Supreme Court explained thepetitioners’ claim called into question the validity of notonly the particular tax statute adopted by referendum,but “every other statute passed in Oregon since theadoption of the initiative and referendum” because theywere passed by a government not republican in form.223 U.S. at 141. This description may have beensomewhat hyperbolic, considering the wide discretioncourts have to fashion the appropriate remedy, but itslogic is equally applicable to the claim in this case.Ultimately, the essence of the claims in Pacific Statesand in the case before us—that a state constitution’sdirect democracy provision renders the stategovernment non-republican in form—is the same. TheCourt squarely held that this question is textuallycommitted to Congress. Id. at 150–51.

Moreover, the panel’s opinion does not expresslyfind that there are “judicially discoverable andmanageable standards” for resolving the case; it simplyassures the reader that judicially manageablestandards might emerge at a future stage of litigation.The panel gives no support for its conclusion besides acomparison to District of Columbia v. Heller, 554 U.S.570 (2008), where the Supreme Court was able todetermine the meaning and scope of the SecondAmendment based on a detailed historical inquiry. Thepanel is confident that the parties will be able toproduce materials that will allow for a similar inquiryinto the meaning of the Guarantee Clause.

But the requirement that there be “judiciallydiscoverable and manageable standards” is driven by

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more than concerns about the difficulty of a historicalinquiry. Instead, this Baker factor requires a court todetermine whether it can decide a legal issue in a waythat is “principled, rational, and based upon reasoneddistinctions.” Vieth v. Jubelirer, 541 U.S. 267, 278(2004) (plurality opinion). The majority gives usnothing besides a mere assurance that the GuaranteeClause contains standards allowing for a principledand rational application that remain to be found. Butthe panel’s failure to at least hint at what the relevantstandards are for Guarantee Clause litigation deprivesthe litigants and district court of necessary guidance asto how these claims are to be adjudicated.

The sharp dichotomy in the Guarantee Clausebetween republican and non-republican forms ofgovernment is all the more reason for concern in thiscase. The judicial line-drawing that will be required todetermine whether a direct democracy provisionrenders a state government non-republican in formleads me to doubt that a court can decide this case in away that is “principled, rational, and based uponreasoned distinctions.”

* * *

Because the panel’s opinion is inconsistent withSupreme Court precedent on legislative standing andthe non-justiciability of the Guarantee Clause, I wouldhave granted the Governor’s petition for rehearing enbanc.

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GORSUCH, Circuit Judge, dissenting from the denialof rehearing en banc.

Everyone knows that before a federal court maydecide a dispute “judicially manageable standards”must exist for doing so. Federal judges aren’t free tointervene in any old dispute and rule any way theywish. Legislatures may act in ways that are“inconsistent, illogical, and ad hoc.” Vieth v. Jubelirer,541 U.S. 276, 278 (2004) (plurality opinion). But the“judicial Power” extended by Article III, §1 to thefederal courts imposes on us the duty to act “in themanner traditional for English and American courts.”Id. And “[o]ne of the most obvious limitations imposedby that requirement is that judicial action must begoverned by standard, by rule” — or, put differently,federal courts must be able to proceed in a “principled,rational, and . . . reasoned” fashion. Id. Unlessjudicially manageable standards for decision exist, wehave no business intervening. Id.; see also Zivotofsky v.Clinton, 132 S. Ct. 1421 (2012).

Where are the judicially manageable standards fordeciding this case? The burden of showing suchstandards exist usually presents a plaintiff with littletrouble. Most cases in federal court — whether arisingunder congressional legislation or the common law orsounding in equity — come with ample principles andprecedents for us to apply in a reasoned way, even ifthose principles and precedents don’t always dictate asingle right answer. But in our case the plaintiffs makea rather novel claim: they contend that Colorado’sgovernment is not a republican one — and so violatesthe Guarantee Clause — because tax increasesproposed by the legislature must also be approved by

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the public. Where are the legal principles for decidinga claim like that?

The plaintiffs don’t say. They don’t suggest, forexample, that the Clause requires all decisions aboutlegislation to be made by elected representatives ratherthan the public. Neither do they contend that theClause is offended only when all legislative decisionsare made by direct democracy. If the Constitution couldbe said to contain one or the other of these rules —either forbidding any experiment with directdemocracy or forbidding only the total loss of arepresentative legislature — we might have aprincipled basis for deciding the case. The former ruleof decision might require judgment for the plaintiffs;the latter, for the defendants. But the plaintiffs in ourcase disclaim either such standard. They seem toacknowledge that some direct democracy is consistentwith republican government, insisting only and insteadthat the kind here runs afoul of the Constitution.

And this is where we run into trouble. To date, theplaintiffs have declined to advance any test fordetermining when a state constitutional provisionrequiring direct democracy on one subject (here, taxes)does or doesn’t offend the Clause. No doubt, the taskthe plaintiffs face is a formidable one: they enter a fieldin which the Supreme Court has already dismissed forlack of judicially manageable standards a casechallenging a state constitutional provision thatallowed citizens to overturn by direct vote any statelegislative enactment (not just enactments raisingtaxes). See Pac. States Tel. & Tel. Co. v. Oregon, 223U.S. 118 (1912). The plaintiffs enter a field, too, wherethe Supreme Court has more recently chosen to derive

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a multi-part justiciability test from its preexistingGuarantee Clause jurisprudence — in the processexpressly reaffirming the idea that the Clause lacksjudicially manageable standards for cases like ours. SeeBaker v. Carr, 369 U.S. 186, 223 (1962) (noting that theCourt has “refused to resort to the Guaranty Clause . . .as the source of a constitutional standard forinvalidating state action” in many cases, including oneinvolving the “claim that initiative and referendumnegated republican government”).

But even if the plaintiffs could somehow surmountthese precedential problems and colorably contend thatjudicially manageable standards exist for deciding theircase, they haven’t even tried. Three years of litigationhave slipped by. During that time the parties haveexhausted no fewer than three rounds of pleadings inthe district court and an interlocutory appeal in thisone. At every stage Governor Hickenlooper haschallenged the plaintiffs to identify judiciallymanageable standards of decision that might empoweran Article III court to decide their case. Yet even todaythe plaintiffs profess no more than “confiden[ce]” thatif their case is allowed to proceed still further thedistrict court will someday be able to find somestandard for decision. Appellees’ Br. 28. For their part,the district court and the panel have allowed the caseto proceed on this same sanguine hope — all whilefollowing the plaintiffs’ lead and conspicuouslydeclining to identify any principled standard for

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decision. See Panel Op. 39-42; App. at 449 (districtcourt opinion).1

In one sense, this shortcoming may be unimportant.On remand, after all, the district court remains verylikely to dismiss this case — eventually — either forlack of manageable standards or on the merits. Theplaintiffs’ failure for so long to identify any legalstandards for deciding their own case pretty stronglysuggests there aren’t any — or that what standards theGuarantee Clause may contain won’t prove favorable tothem. Indeed, this hypothesis is fully borne out by thescholarly literature on the Clause’s text and originalmeaning. Much of which suggests that the Clause mayrule out a state monarchy, a smaller amount of whichsuggests the Clause may rule out a complete directdemocracy, but none of which credibly suggests alimited dose of direct democracy of the sort at issuehere is constitutionally problematic.2 Indeed, to hold for

1 In expressing confidence that judicially manageable standardsmight yet pop up, the panel opinion leaned primarily on theargument that because manageable standards were found in theSecond Amendment to decide District of Columbia v. Heller, 554U.S. 570 (2008), manageable standards are sure to be found in theGuarantee Clause to decide this case. See Panel Op. 40-41. Butthat, of course, commits the logical fallacy of overgeneralization.Just because one clause of the Constitution contains manageablestandards to decide one case doesn’t mean another clause containsmanageable standards for deciding another case. See, e.g., Vieth,541 U.S. at 281; id. at 313 (dismissing political gerrymanderingchallenge because plaintiffs failed to carry their burden of showingjudicially manageable standards existed for deciding it).

2 See, e.g., Robert G. Natelson, A Republic, Not a Democracy?Initiative, Referendum, and the Constitution’s Guarantee Clause,80 Tex. L. Rev. 807, 811 n.19 (2002); G. Edward White, Reading

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plaintiffs in this case would require a court to entertainthe fantasy that more than half the states (27 in all)lack a republican government. See Appellant’s Br. 8.

Even so, it’s hard to look away — to ignore thefailure of the plaintiffs, the district court, or the panelto identify any standard for decision — and concludenothing of significance has happened here. TheSupreme Court has plainly instructed that “[w]hen acourt is given no standard by which to adjudicate adispute . . . resolution of the suit is beyond the judicialrole envisioned by Article III.” Zivotofsky, 132 S. Ct. at1432. Yet three years into this case and manychallenges later and still no one has ventured anystandard for deciding this dispute. It would seem time— past time — to say the plaintiffs have not carriedtheir burden of establishing that this case lies withinour power to decide under Article III. After all, thisisn’t some prosaic question of fact that can be resolvedby deposing a legislator-plaintiff or sending aninterrogatory to the Governor: no amount of factdiscovery can remedy the plaintiffs’ shortcomings inthis case. We face an Article III issue and a question oflaw, one the plaintiffs bear the burden of answeringbut one they have not borne.

the Guarantee Clause, 65 U. Colo. L. Rev. 787, 803-06 (1994); AkhilReed Amar, The Central Meaning of Republican Government:Popular Sovereignty, Majority Rule, and the Denominator Problem,65 U. Colo. L. Rev. 749, 749-52, 761-73 (1994); Jonathan Toren,Protecting Republican Government from Itself: The GuaranteeClause of Article IV, Section 4, 2 N.Y.U. J.L. & Liberty 371, 374-92,392-99 (2007); Brief for Amici Independence Institute and CatoInstitute 12-26.

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As things stand, the panel opinion assigns thelitigants and the district court to a kind of litigationlimbo — the promise of many more years wrestlingwith this case all without a wisp of an idea what rule oflaw might govern its disposition. That seems no smallwrong to impose on any litigant in any case, but it isperhaps an especially unseemly wrong to impose on thestate’s highest elected official in a case calling intoquestion a state constitutional amendment. Federalismand comity appear to count for little when we condemna state, its governor, and its constitution to a multi-year scavenger hunt up and down the federal courtsystem looking for some judicially manageablestandard that might permit us to entertain the case inthe first place.

The situation we confront in this case is more thana little reminiscent of the one the Supreme Court facedin Vieth, where the plaintiffs sought to challenge apolitical gerrymander as unconstitutional. There, 18years of experimenting by various courts failed to yieldany sure standards for litigating those sorts of cases.Here, we encounter an arguably longer history of failedefforts to develop standards for litigating GuaranteeClause cases involving individual citizen initiatives —one extending into the nineteenth century. There, theplaintiffs sought to identify and defend as workabletheir own set of legal standards at the motion todismiss stage, but the Court found those effortsunavailing and affirmed the dismissal of the complaint.Here, the plaintiffs haven’t even attempted to identifyworkable legal standards for adjudicating their casedespite many opportunities over many years. If thelaw’s promise of treating like cases alike is to meansomething, this case should be put to bed now as

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Vieth’s was then, rather than being destined to drag onforlornly to the same inevitable end. I respectfullydissent.

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APPENDIX C

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-01350-WJM-BNB

[Filed September 21, 2012]______________________________________ANDY KERR, Colorado State )Representative, NORMA V. )ANDERSON, JANE M. BARNES, )ELAINE GANTZ BERMAN, )Member State Board of Education, )ALEXANDER E. BRACKEN, )WILLIAM K. BREGAR, Member Pueblo )District 70 Board of Education, BOB )BRIGGS, Westminster City Councilman, )BRUCE W. BRODERIUS, )TRUDY B. BROWN, JOHN C. )BUECHNER, Ph.D., STEPHEN A. )BURKHOLDER, RICHARD L. BYYNY, )M.D., LOIS COURT, Colorado State )Representative, THERESA L. CRATER, )ROBIN CROSSAN, Member Steamboat )Springs RE-2 Board of Education, )RICHARD E. FERDINANDSEN, )STEPHANIE GARCIA, Member Pueblo )City Board of Education, KRISTI )HARGROVE, DICKEY LEE )HULLINGHORST, Colorado State )Representative, NANCY JACKSON, )Arapahoe County Commissioner, )

App. 79

WILLIAM G. KAUFMAN, CLAIRE )LEVY, Colorado State Representative, )MARGARET (MOLLY) MARKERT, )Aurora City Councilwoman, MEGAN J. )MASTEN, MICHAEL MERRIFIELD, )MARCELLA (MARCY) L. )MORRISON, JOHN P. MORSE, )Colorado State Senator, PAT NOONAN, )BEN PEARLMAN, WALLACE )PULLIAM, FRANK WEDDIG, )PAUL WEISSMANN, and JOSEPH W. )WHITE, )

)Plaintiffs, )

)v. )

)JOHN HICKENLOOPER, Governor of )Colorado, in his official capacity, )

)Defendant. )

______________________________________ )__________________________________________________

ORDER CERTIFYING INTERLOCUTORYAPPEAL UNDER 28 U.S.C. § 1292(b)

__________________________________________________

On July 30, 2012, this Court issued an Ordergranting in part and denying in part Defendant’sMotion to Dismiss, holding, inter alia, that theLegislator-Plaintiffs in this action have standing topursue their claims, that the political question doctrinedoes not bar Plaintiffs’ claims, and that only Plaintiffs’Equal Protection Claim is subject to dismissal. (ECFNo. 78.)

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This matter is before the Court on Defendant’sMotion for Certification of the Court’s July 30, 2012Order for Interlocutory Appeal Under 28 U.S.C.§ 1292(b) (“Motion for Certification”). (ECF No. 85.)Plaintiffs have filed a Response to the Motion forCertification (ECF No. 89), and Defendant has filed aReply (ECF No. 90). The Motion for Certification is ripefor adjudication. Having carefully considered thearguments presented, the Court GRANTS the Motionfor Certification.

I. ANALYSIS

As both parties implicitly concede, the Court’s July30, 2012 Order is not a “final decision” appealableunder 28 U.S.C. § 1291. However, under certaincircumstances, a district court may certify for appealan otherwise unappealable interlocutory order. 28U.S.C. § 1292(b) provides,

When a district judge, in making in a civil actionan order not otherwise appealable under thissection, shall be of the opinion that such orderinvolves a controlling question of law as to whichthere is substantial ground for difference ofopinion and that an immediate appeal from theorder may materially advance the ultimatetermination of the litigation, he shall so state inwriting in such order. The Court of Appealswhich would have jurisdiction of an appeal ofsuch action may thereupon, in its discretion,permit an appeal to be taken from such order, ifapplication is made to it within ten days afterthe entry of the order: Provided, however, Thatapplication for an appeal hereunder shall notstay proceedings in the district court unless the

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district judge or the Court of Appeals or a judgethereof shall so order.

Thus, there are three primary questions a district courtmust resolve in determining whether to certify aninterlocutory order for appeal: (1) whether the orderinvolves a controlling question of law; (2) whether thereis a substantial ground for difference of opinionregarding the question; and (3) whether an immediateappeal from the order may materially advance theultimate termination of the litigation. An interlocutoryorder can be certified for appeal if it involves at leastone such controlling question of law, but the scope ofreview on appeal will be all issues raised in the order.See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.199, 205 (1996).

It is within a district court’s discretion to certify anorder for appeal under section 1292(b). See Swint v.Chambers Cnty. Comm’n, 514 U.S. 35, 47 (1995).

A. Controlling Question of Law

In determining whether the Court’s July 30, 2012Order involves a “controlling question of law” withinthe meaning of section 1292(b), the Court must firstdetermine whether the Order involves a “question oflaw,” and if so, whether that question of law is“controlling.”

The Court concludes that the July 30, 2012 Orderinvolves at least two “questions of law” under section1292(b). First, the issue of whether the politicalquestion doctrine can bar a claim brought under theEnabling Act – a statutory claim – is a pure question oflaw. And second, the issue of whether the politicalquestion doctrine bars Plaintiffs’ claims generally is

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also a “question of law” within the meaning of section1292(b). As to this second issue, although considerationof this question would require the Tenth Circuit toapply law to fact, the factual setting is straightforward,with the complaint’s allegations accepted as true forpurposes of Defendants’ operative motion to dismiss,and the language of TABOR subject to judicial notice.However, the law to apply to those facts – in particularwhether a Guarantee Clause claim presents a non-justiciable political question – is highly unsettled.Given this record, the second issue is also a “questionof law” under section 1292(b). See In re Text MessagingAntitrust Litig., 630 F.3d 622, 624-27 (7th Cir. 2010)(permitting appeal to be taken from interlocutory orderwhere it would require appellate court to applyunsettled area of law to complaint’s allegations); 19James W. Moore, Moore’s Federal Practice § 203.31[2](3d ed. 2012).

Further, these two questions of law, whenconsidered together, are manifestly “controlling.”Specifically, if a higher court were to hold on appealthat the political question doctrine bars Plaintiffs’claims, including the Enabling Act claim, that wouldconclusively resolve the litigation in favor ofDefendant. See Sokaogon Gaming Enter. Corp. v.Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 659 (7thCir. 1996) (“A question of law may be deemed‘controlling’ if its resolution is quite likely to affect thefurther course of the litigation, even if not certain to doso.”); Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in AmministrazioneStraordinaria, 921 F.2d 21, 24 (2d Cir. 1990)(“Although the resolution of an issue need notnecessarily terminate an action in order to be

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‘controlling,’ it is clear that a question of law is‘controlling’ if reversal of the district court’s orderwould terminate the action.”).

The Court concludes that its July 30, 2012 Orderinvolves “controlling question[s] of law” under section1292(b).

B. Substantial Ground for Difference of Opinion

There is also a “substantial ground for difference ofopinion” regarding those controlling questions of law.As to whether the political question doctrine can bar anEnabling Act claim, the Court held in its July 30, 2012Order that it had jurisdiction to hear the Enabling Actclaim – a statutory claim – even if the political questiondoctrine barred Plaintiffs’ Guarantee Clause claim.(ECF No. 78, at 63-66.) However, Defendant hadtenably argued that the political question doctrineshould apply equally to Plaintiffs’ Guarantee Clauseclaim and their Enabling Act claim because both claimspresent the virtually identical question of whetherTABOR violates Colorado’s obligation to maintain arepublican form of government.

As to whether the political question doctrine barsPlaintiffs’ Guarantee Clause claim, the Courtemphasized in its July 30, 2012 Order how unsettledthe law is in that area, and how courts have come outon both sides of the issue. (Id. at 45-53.) So on thatissue, also, there is clearly a substantial ground fordifference of opinion.

Further, the importance of the issues presented inthis action cannot be reasonably disputed. See 16Charles Alan Wright, et al., Federal Practice &Procedure § 3930 (2d ed. 2012) (“The level of

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uncertainty required to find a substantial ground fordifference of opinion should be adjusted to meet theimportance of the question in the context of the specificcase. If proceedings that threaten to endure for severalyears depend on an initial question of jurisdiction . . .or the like, certification may be justified at a relativelylow threshold of doubt.”) As far as the Court is aware,TABOR is the only state law of its kind anywhere inthe country. Accepting the operative Complaint’sallegations as true, TABOR fundamentallyrestructured Colorado’s government and the way inwhich it functions, and in the process allegedly violatedthe U.S. and Colorado Constitutions, and a federalstatute. The ultimate resolution of this litigation willquite literally affect every individual and corporateentity in the State of Colorado. Faced with a case ofthis magnitude and importance, as well as theunsettled law governing the jurisdictional questionspresented, in the Court’s view the interests of justicemilitate in favor of certifying the June 30, 2012 Orderfor interlocutory review at this time.

C. Immediate Appeal May Materially Advancethe Ultimate Termination of the Litigation

“The requirement that an appeal may materiallyadvance the ultimate termination of the litigation isclosely tied to the requirement that the order involve acontrolling question of law.” Id. As explained above, ifa higher court were to hold on appeal that the politicalquestion doctrine bars Plaintiffs’ claims, including theEnabling Act claim, that decision would materiallyadvance the ultimate termination of the litigation infavor of Defendant. Thus, this final prerequisite for a

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district court to allow an appeal of an interlocutoryorder is also met here.

D. Timing of Certification

Section 1292(b) provides that, if a district judge is ofthe opinion that an interlocutory order is properlyappealable, “he shall so state in writing in such order.”However, the Tenth Circuit has made clear that adistrict judge may instead issue a supplemental ordercertifying a previously issued order for appeal. SeeHous. Fearless Corp. v. Teter, 313 F.2d 91, 92 (10th Cir.1962) (“[T]he trial court had the power to supplementthe original order to include the § 1292(b) statement.”);see also Shire LLC v. Sandoz Inc., No. 07-cv-00197,2008 WL 5120728, at *1 (D. Colo. Dec. 5, 2008) (“Whereno section 1292(b) certification is included in theoriginal order, the district court may supplement thatorder to include an appropriate certification.”) (citingTeter, 313 F.2d at 92).

The Court hereby supplements and amends its July30, 2012 Order with this Order, including a findingthat the July 30, 2012 Order involves controllingquestions of law as to which there are substantialgrounds for differences of opinion, and an immediateappeal from the Order may materially advance theultimate termination of the litigation. With thissupplemental Order, the July 30, 2012 Order is nowappealable. See Teter, 313 F.2d at 92 (“When [the trialcourt supplemented the original order to include the§ 1292(b) statement], the order became appealable andthe appeal time ran from the entry of the supplementalorder.”).

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E. Stay

Section 1292(b) provides that an interlocutoryappeal does not stay proceedings in the district court“unless the district judge or the Court of Appeals or ajudge thereof shall so order.” The district court hasdiscretion to determine whether to stay proceedingspending disposition of an interlocutory appeal. SeeUnited States ex rel. Drake v. NSI, Inc., 736 F. Supp. 2d489, 503 (D. Conn. 2010) (“When issuing a certificate ofappealability, the court also has the discretion to staythe proceedings . . . .”); Mills v. Everest ReinsuranceCo., 771 F. Supp. 2d 270, 273 (S.D.N.Y. 2009) (same).

Although Defendant has not explicitly requested astay, he argues that an interlocutory appeal iswarranted in part because it may obviate the need forthe lengthy and costly phases of discovery and trial.(ECF No. 85, at 12-13.) For the reasons discussed atlength supra, the Court finds it appropriate to stayproceedings in this Court pending resolution of anyappeal from the July 30, 2012 Order.

II. CONCLUSION

In accordance with the foregoing, the Court herebyORDERS as follows:

(1) Defendant’s Motion for Certification of theCourt’s July 30, 2012 Order for InterlocutoryAppeal Under 28 U.S.C. § 1292(b) (ECF No. 85)is GRANTED;

(2) This Order of the Court SUPPLEMENTS andAMENDS the Court’s July 30, 2012 OrderGranting in Part and Denying in PartDefendant’s Motion to Dismiss (ECF No. 78);

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(3) The Court FINDS that its July 30, 2012 Orderinvolves controlling questions of law as to whichthere are substantial grounds for differences ofopinion, and an immediate appeal from theOrder may materially advance the ultimatetermination of the litigation;

(4) The Court’s July 30, 2012 Order, assupplemented by this Order, is CERTIFIED forinterlocutory appeal under 28 U.S.C. § 1292(b);and

(5) In the event a party to this action files a timelyappeal of the July 30, 2012 Order, assupplemented by this Order, the Court STAYSall proceedings in this action until such time asthe appeal is fully and finally resolved and theaction is remanded to this Court.

Dated this 21st day of September, 2012.

BY THE COURT:

/s/William J. Martínez William J. MartínezUnited States District Judge

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APPENDIX D

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-01350-WJM-BNB

[Filed July 30, 2012]______________________________________ANDY KERR, Colorado State )Representative, NORMA V. )ANDERSON, JANE M. BARNES, )Member Jefferson County Board of )Education, ELAINE GANTZ BERMAN, )Member State Board of Education, )ALEXANDER E. BRACKEN, )WILLIAM K. BREGAR, Member Pueblo )District 70 Board of Education, BOB )BRIGGS, Westminster City Councilman, )BRUCE W. BRODERIUS, Member Weld )County District 6 Board of Education, )TRUDY B. BROWN, JOHN C. )BUECHNER, Ph.D., Lafayette City )Councilman, STEPHEN A. )BURKHOLDER, RICHARD L. BYYNY, )M.D., LOIS COURT, Colorado State )Representative, THERESA L. CRATER, )ROBIN CROSSAN, Member Steamboat )Springs RE-2 Board of Education, )RICHARD E. FERDINANDSEN, )STEPHANIE GARCIA, Member Pueblo )City Board of Education, KRISTI )HARGROVE, DICKEY LEE )

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HULLINGHORST, Colorado State )Representative, NANCY JACKSON, )Arapahoe County Commissioner, )WILLIAM G. KAUFMAN, CLAIRE )LEVY, Colorado State Representative, )MARGARET (MOLLY) MARKERT, )Aurora City Councilwoman, MEGAN J. )MASTEN, MICHAEL MERRIFIELD, )MARCELLA (MARCY) L. )MORRISON, JOHN P. MORSE, )Colorado State Senato, PAT NOONAN, )BEN PEARLMAN, Boulder County )Commissioner, WALLACE PULLIAM, )FRANK WEDDIG, Arapahoe County )Commissioner, PAUL WEISSMANN, )and JOSEPH W. WHITE, )

)Plaintiffs, )

)v. )

)JOHN HICKENLOOPER, Governor of )Colorado, in his official capacity, )

)Defendant. )

______________________________________ ) __________________________________________________

ORDER GRANTING IN PART AND DENYINGIN PART DEFENDANT’S MOTION TO DISMISS__________________________________________________

This action challenges the constitutionality andlegality of the Taxpayer’s Bill of Rights (“TABOR”), anamendment to the Colorado Constitution passed byvoter initiative in 1992. Among other provisions,

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TABOR prohibits the Colorado General Assembly fromincreasing tax rates or imposing new taxes withoutvoter approval. Plaintiffs allege that, by taking awaythe General Assembly’s power to tax, TABOR violatesColorado’s constitutional and statutory obligations tomaintain a republican form of government.

This matter is before the Court on Defendant’sMotion to Dismiss. (ECF No. 18.) In the Motion,Defendant argues that Plaintiffs lack standing to bringthis action, that Plaintiffs’ claims present non-justiciable political questions, and that Plaintiffs’ EqualProtection claim and “Impermissible Amendmentclaim”1 are independently subject to dismissal. (Id.) OnFebruary 15, 2012, the Court held oral argument onthe Motion, and thereafter requested supplementalbriefing from the parties on various issues related tostanding. (See ECF No. 57, 68). The Motion to Dismissis fully briefed and now ripe for adjudication. (See ECFNo. 18, 30, 51, 72, 73; see also ECF No. 21-1, 61.)

Having carefully analyzed the issues presented, theCourt GRANTS IN PART and DENIES IN PART theMotion to Dismiss. The Court holds that the Plaintiffswho are current members of the Colorado GeneralAssembly have standing to bring this action, andtherefore the action is not subject to dismissal for lackof standing.2 The Court also holds that Plaintiffs’claims are not barred by the political question doctrine.

1 The Court explains the nature of Plaintiffs’ “ImpermissibleAmendment claim” below.

2 As explained below, because of this determination, the Courtneed not consider the standing of the remaining Plaintiffs.

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Further, the Court holds that Plaintiffs have failed tostate an Equal Protection claim, but that their“Impermissible Amendment claim” is not subject todismissal. Therefore, the Court will allow this action toproceed past the pleading stage on all claims except forthe Equal Protection claim.

I. BACKGROUND

A. TABOR

TABOR is codified in Article X,3 Section 20 of theColorado Constitution. TABOR provides,4 among otherthings, that:

• A “district” (defined in TABOR as the State ofColorado or any local government in Colorado)“must have voter approval in advance for . . . anynew tax, tax rate increase, mill levy above that forthe prior year, valuation for assessment ratioincrease for a property class, or extension of anexpiring tax, or a tax policy change directly causing

3 Article X is the Article entitled “Revenue.”

4 The Court properly takes judicial notice of TABOR’s provisions.See Fed. R. Evid. 201(b) (providing that judicial notice may betaken of a fact that is “not subject to reasonable dispute in that itis . . . capable of accurate and ready determination by resort tosources whose accuracy cannot reasonably be questioned”);Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1278 n.1(10th Cir. 2004) (stating that, in evaluating a motion to dismiss, acourt may take judicial notice of facts that are a matter of publicrecord).

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a new tax revenue gain to any district.” Colo. Const.art. X, § 20, cls. (2)(b), (4)(a).5

• A district “must [also] have voter approval inadvance for . . . creation of any multiple-fiscal yeardirect or indirect district debt or other financialobligation whatsoever without adequate presentcash reserves pledged irrevocably and held forpayments in all future fiscal years.” Id. art. X, § 20,cl. (4)(b).6

• “The maximum annual percentage change in statefiscal year spending equals inflation plus thepercentage change in state population in the priorcalendar year . . . . The maximum annualpercentage change in each local district’s fiscal yearspending equals inflation in the prior calendar yearplus annual local growth . . . . The maximum annualpercentage change in each district’s property taxrevenue equals inflation in the prior calendar yearplus annual local growth . . . . If revenue fromsources not excluded from fiscal year spendingexceeds these limits in dollars for that fiscal year,the excess shall be refunded in the next fiscal year

5 Clause (4)(a) exempts from this limitation “emergency taxes” asdefined in clause (6), and also exempts the scenario (described inclause (1)) where “annual district revenue is less than annualpayments on general obligation bonds, pensions, and final courtjudgments.”

6 Clause (4)(b) exempts from this limitation “refinancing districtbonded debt at a lower interest rate or adding new employees toexisting district pension plans.”

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unless voters approve a revenue change as anoffset.” Id. art. X, § 20, cl. (7)(a)-(d).7

• “New or increased transfer tax rates on realproperty are prohibited. No new state real propertytax or local district income tax shall be imposed. . . .Any income tax law change after July 1, 1992 shallalso require all taxable net income to be taxed atone rate, excluding refund tax credits or voter-approved tax credits, with no added tax orsurcharge.” Id. art. X, § 20, cl. (8)(a).

Given that TABOR is part of the ColoradoConstitution, it cannot be revoked or amended withoutvoter approval. See Colo. Const. art. XIX, § 2, cl. (1)(provision of Colorado Constitution explaining howamendments to Constitution are adopted, and statingthat proposed constitutional amendments “shall besubmitted to the registered electors of the state fortheir approval or rejection [during a general election],and such as are approved by a majority of those votingthereon shall become part of this constitution”); id. art.XIX, § 1 (constitutional provision explaining how aconstitutional convention is called, providing that voterapproval must be obtained to hold the convention, andproviding that voter approval is required for theadoption of any revisions, alterations, or amendmentsto the Constitution resulting from the convention); see

7 In 2005, Colorado voters approved Referendum C, which, interalia, allowed the state to retain and spend all excess revenuecollected above the TABOR limit for five years (from fiscal year2005-06 through fiscal year 2009-10), and allowed the state,beginning in fiscal year 2010-11, to retain and spend excessrevenue up to a new “excess state revenues” cap. See Colo. Rev.Stat. § 24-77-103.6.

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also id. art. X, § 20, cl. (1) (provision of TABOR statingthat “[o]ther limits on district revenue, spending, anddebt may be weakened only by future voter approval”).

B. The Operative Complaint

For purposes of Defendant’s Motion to Dismiss, theCourt properly accepts as true the allegations inPlaintiffs’ First Amended Substitute Complaint forInjunctive and Declaratory Relief (the “OperativeComplaint”). (See “Legal Standards” section below.)

1. Plaintiffs

This action is brought by 33 Plaintiffs. (Id. ¶¶ 10-42.) Five Plaintiffs are current members of theColorado General Assembly, four of whom are membersof the Colorado House of Representatives and one ofwhom is a member of the Colorado Senate (the“Legislator-Plaintiffs”). (Id. ¶¶ 10, 22, 28, 31, 36.)8 NinePlaintiffs are former members of the Colorado GeneralAssembly. (Id. ¶¶ 11, 16, 19, 30, 32, 34, 35, 40, 41.)Other Plaintiffs include current or former countycommissioners, mayors, city councilpersons, membersof boards of education, public university presidents andprofessors, public school teachers, and parents ofschool-age children. (See generally id. ¶¶ 10-42.) AllPlaintiffs are Colorado citizens. (Id.)

8 The Plaintiffs who are current members of the Colorado House ofRepresentatives are Lois Court, Dickey Lee Hullinghorst, AndyKerr, and Claire Levy. Plaintiff John P. Morse is a current memberof the Colorado Senate. (Id.) See also www.leg.state.co.us (lastvisited June 20, 2012); Fed. R. Evid. 201(b); Grynberg, 390 F.3d at1278 n.1.

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2. General Allegations

Plaintiffs’ Operative Complaint states, “The purposeof this case is to seek a ruling that [TABOR] isunconstitutional because it deprives the state and itscitizens of effective representative democracy, contraryto a Republican Form of Government as required underboth the United States and Colorado Constitutions.”(ECF No. 36, ¶ 8.) Plaintiffs explain their position that“[a]n effective legislative branch must have the powerto raise and appropriate funds. When the power to taxis denied, the legislature cannot function effectively tofulfill its obligations in a representative democracy anda Republican Form of Government.” (Id. ¶ 7.) Theyallege that TABOR has caused a “slow, inexorable slideinto fiscal dysfunction [in Colorado]” (id. ¶ 3), andspecifically allege that TABOR has constrained thestate government’s ability to comply with itsconstitutional obligation to adequately fund publiceducation (id. ¶ 81). After reviewing some of TABOR’sprovisions (id. ¶¶ 75-77, 79), the Complaint states,

The totality of these TABOR provisions removesentirely from the Colorado General Assemblyany authority to change state law concerningtaxation to replace or increase revenue, andprohibits the General Assembly from raisingfunds by any other means, including borrowing.Moreover, the interactions of the provisions ofTABOR may actually force existing taxes to bedecreased without any action of the GeneralAssembly.

(Id. ¶ 80.)

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3. Claims

Plaintiffs bring five claims for relief in theOperative Complaint:

(1) The “Guarantee Clause claim,” alleging thatTABOR violates Article IV, Section 4 of theUnited States Constitution (the “GuaranteeClause”). (Id. ¶ 82.) The Guarantee Clauseprovides that “[t]he United States shallguarantee to every State in this Union aRepublican Form of Government . . . .” U.S.Const. art. IV, § 4. Plaintiffs’ Guarantee Clauseclaim alleges that, “[b]y removing the taxingpower of the General Assembly, the TABORamendment renders the Colorado GeneralAssembly unable to fulfill its legislativeobligations under a Republican Form ofGovernment and violates the guarantee ofArticle IV, Section 4 . . . .” (ECF No. 36, ¶ 82.)

(2) The “Enabling Act claim,” alleging that TABORviolates the Enabling Act of 1875 (the “EnablingAct”), the U.S. statute granting statehood toColorado. (Id. ¶ 83.) The Enabling Act, interalia, authorized the formation of “a constitutionand State Government [for Colorado] . . . .Provided, That the constitution shall berepublican in form . . . and not repugnant to theConstitution of the United States . . . .” 18 Stat.474 (1875). Plaintiffs’ Enabling Act claim allegesthat “the TABOR amendment violates theEnabling Act” because “[t]he Enabling Act’srequirement for a Republican Form ofGovernment entail[s] having and maintaining afully effective legislature.” (ECF No. 36, ¶ 83.)

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(3) The “Supremacy Clause claim,” alleging thatTABOR violates Article VI of the United StatesConstitution (the “Supremacy Clause”). (Id.¶ 84.) The Supremacy Clause provides that“[t]his Constitution, and the Laws of the UnitedStates which shall be made in Pursuance thereof. . . shall be the supreme Law of the Land . . .any Thing in the Constitution or Laws of anyState to the Contrary notwithstanding.” U.S.Const. art. VI, cl. 2. Plaintiffs’ SupremacyClause claim alleges that TABOR is in“irresolvable conflict” with the Guarantee Clauseand Enabling Act, and therefore “must yield tothe requirements of the ‘Guarantee Clause’ andof the Enabling Act that Colorado maintain aRepublican Form of Government.” (ECF No. 36,¶ 84.)

(4) The “Equal Protection claim,” alleging thatTABOR violates the Equal Protection Clause ofthe Fourteenth Amendment of United StatesConstitution. (Id. ¶ 85.) The Equal ProtectionClause provides that “[n]o State shall . . . deny toany person within its jurisdiction the equalprotection of the laws.” U.S. Const. amend. XIV,§ 1. Plaintiffs’ Equal Protection claim allegesthat, because TABOR violates the requirementof a Republican Form of Government, TABOR“den[ies] to Plaintiffs and others similarlysituated the Equal Protection of the Laws . . . .”(ECF No. 36, ¶ 85.)9

9 Despite the fact that paragraph 86 of the Operative Complaint isambiguous regarding whether Plaintiffs are attempting to asserta claim under the Fourteenth Amendment separate and apart

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(5) The “Impermissible Amendment claim,”alleging, inter alia, that TABOR impermissiblyamended the Colorado Constitution in violationof constitutionally superior provisions of theColorado Constitution, specifically Article II,Section 2; Article V, Sections 31 and 32; andArticle X, Section 2 of the Colorado Constitution.(Id. ¶¶ 87-92.)10, 11

from their Equal Protection claim, the Court holds that theOperative Complaint as a whole is properly interpreted as bringinga claim under the Fourteenth Amendment based only on thealleged violation of the Equal Protection Clause. (See id. ¶¶ 47, 51,58.)

10 To the extent that the Impermissible Amendment claim can beconstrued as also alleging violations of the Guarantee Clause andthe Enabling Act, such allegations are already encompassed withinthe Guarantee Clause claim and the Enabling Act claim.

11 Those sections of the Colorado Constitution provide:

• “The people of [Colorado] have the sole and exclusive right ofgoverning themselves, as a free, sovereign and independentstate; and to alter and abolish their constitution and form ofgovernment whenever they may deem it necessary to theirsafety and happiness, provided, such change be not repugnantto the constitution of the United States.” Colo. Const., art. II,§ 2.

• “All bills for raising revenue shall originate in the house ofrepresentatives; but the senate may propose amendments, asin the case of other bills.” Id. art. V, § 31.

• “The general appropriation bill shall embrace nothing butappropriations for the expense of the executive, legislative andjudicial departments of the state, state institutions, interest on

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4. Relief Sought

Through this action, Plaintiffs seek an orderrendering TABOR “null and void” and “prohibiting any[Colorado] state officer from taking any actionwhatsoever to effect the requirements and purposes of[TABOR].” (Id. at 20-21.)

C. Procedural History

Plaintiffs filed this action on May 23, 2011. (ECFNo. 1.) On June 15, 2011, Plaintiffs filed an unopposedmotion to amend the original Complaint in order to,inter alia, replace the State of Colorado as the nameddefendant with the Governor of Colorado, JohnHickenlooper, in his official capacity. (ECF No. 9.) TheCourt granted the request (ECF No. 11), and Plaintiffs’Substituted Complaint for Injunctive and DeclaratoryRelief (“Substitute Complaint”) was entered on June16, 2011 (ECF No. 12).

On October 17, 2011, Plaintiffs again filed anunopposed motion to amend their complaint. (ECF No.31.) The only differences between the proposed FirstAmendment Substitute Complaint for Injunctive andDeclaratory Relief and the Substitute Complaint werethe removal of one of the 34 Plaintiffs, the addition ofa new position for another Plaintiff, and a slight re-

the public debt and for public schools. All other appropriationsshall be made by separate bills, each embracing but onesubject.” Id. art. V, § 32.

• “The general assembly shall provide by law for an annual taxsufficient, with other resources, to defray the estimatedexpenses of the state government for each fiscal year.” Id. art.X, § 2.

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ordering of paragraphs. (Compare ECF No. 12, withECF No. 36.) The Court again granted the request(ECF No. 35), and the First Amended SubstituteComplaint for Injunctive and Declaratory Relief (the“Operative Complaint”) was entered on October 18,2011 (ECF No. 36).

On August 15, 2011, Defendant filed the Motion toDismiss currently at issue. (ECF No. 18.) On October11, 2011, Plaintiffs filed their Brief in Opposition to theMotion to Dismiss. (ECF No. 30.) On November 18,2011, Defendant filed a Reply to Plaintiffs’ Opposition.(ECF No. 51.) The Court has also allowed the filing oftwo amicus briefs, one filed by the IndependenceInstitute (ECF No. 21-1),12 and one filed by ProfessorsErwin Chemerinsky, Gene Nichol, and William Wiecek(ECF No. 61).13

On February 15, 2012, the Court held oralargument on Defendant’s Motion to Dismiss. (ECF No.68.) At the oral argument, the parties formallystipulated that the Motion to Dismiss is properlyconstrued as moving to dismiss the Operative

12 The amicus brief filed by the Independence Institute onlyaddresses the merits issue of what constitutes a republican formof government. (ECF No. 21-1.) The Independence Institute arguesthat, even if this case is justiciable, it should be dismissed on themerits. (Id.)

13 The amicus brief filed by the three Professors (the “amiciProfessors”) only addresses the political question doctrine. (ECFNo. 61.) The amici Professors argue that this action does notpresent non-justiciable political questions. (Id.)

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Complaint.14 Based on this stipulation and the Court’sauthority to do so, the Court construes Defendant’sMotion to Dismiss as moving to dismiss the OperativeComplaint in this action. See Medinger v. City ofAshland, No. 1:11-CV-00470, 2012 WL 1849667, at *1(D. Or. May 17, 2012) (construing motion to dismiss asapplying to later-filed amended complaint).

Because the parties in their briefing on the Motionto Dismiss and at oral argument disproportionatelyfocused on the political question doctrine’s applicabilityvel non to this action, the Court on February 17, 2012ordered further briefing from the parties on issuesrelated to Plaintiffs’ standing to bring this action. (ECFNo. 70.) On March 16, 2012, both sides filedsupplemental briefs addressing the standing issuesidentified by the Court. (ECF No. 72, 73.)

Defendant’s Motion to Dismiss is now ripe foradjudication.

II. LEGAL STANDARDS

A. Motion to Dismiss and Parties’ Positions

Defendant’s Motion to Dismiss is brought pursuantto Federal Rules of Civil Procedure 12(b)(1) (lack ofsubject-matter jurisdiction) and 12(b)(6) (failure tostate a claim). There is some dispute between theparties regarding which of these two rules applies to

14 As a technical matter, the Motion to Dismiss was filed inresponse to the Substitute Complaint, not the OperativeComplaint. However, the Substitute Complaint and OperativeComplaint are virtually identical, so from a practical perspectivethe Motion to Dismiss is properly construed as moving to dismissthe Operative Complaint.

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each of Defendant’s purported bases for dismissal. (SeeECF No. 18, at 3-4; ECF No. 30, at 5-7; ECF No. 51, at2.) See also, e.g., Schroder v. Bush, 263 F.3d 1169, 1171n.1 (10th Cir. 2001) (discussing Rules 12(b)(1) and12(b)(6), and stating, “Deeply rooted ambiguity in thenature and justification of the political questiondoctrine has prevented clear classification of theappropriate type of dismissal in political questioncases.”). However, the parties agree that, no matterwhich of the two rules applies to each purported basisfor dismissal, for every purported basis for dismissalthe Court should accept the Operative Complaint’sallegations as true. (See ECF No. 18, at 3-4; ECF No.30, at 5-6; ECF No. 51, at 2.)

B. Federal Rule of Civil Procedure 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), aparty may move to dismiss a claim for lack of subject-matter jurisdiction. Rule 12(b)(1) challenges aregenerally presented in one of two forms: “[t]he movingparty may (1) facially attack the complaint’s allegationsas to the existence of subject matter jurisdiction, or(2) go beyond allegations contained in the complaint bypresenting evidence to challenge the factual basis uponwhich subject matter jurisdiction rests.” Merrill LynchBus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074(10th Cir. 2004) (citation and quotation marksomitted). Where, as here, the defendant’s motion todismiss presents a facial attack on the existence ofsubject-matter jurisdiction, “the district court mustaccept the allegations in the complaint as true . . . andconstrue the complaint in favor of [the plaintiffs].”United States v. Rodriguez-Aguirre, 264 F.3d 1195,1203 (10th Cir. 2001); see also Warth v. Seldin, 422

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U.S. 490, 501 (1975) (“For purposes of ruling on amotion to dismiss for want of standing, . . . courts mustaccept as true all material allegations of the complaint,and must construe the complaint in favor of thecomplaining party.”). However, “[t]he burden ofestablishing subject matter jurisdiction is on the partyasserting jurisdiction.” Port City Props. v. Union Pac.R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).

C. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), adefendant may move to dismiss a complaint for “failureto state a claim upon which relief can be granted.” Inevaluating such a motion, a court must “assume thetruth of the plaintiff’s well-pleaded factual allegationsand view them in the light most favorable to theplaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493F.3d 1174, 1177 (10th Cir. 2007). In ruling on such amotion, the dispositive inquiry is “whether thecomplaint contains ‘enough facts to state a claim torelief that is plausible on its face.’” Id. (quoting BellAtlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).Granting a motion to dismiss “is a harsh remedy whichmust be cautiously studied, not only to effectuate thespirit of the liberal rules of pleading but also to protectthe interests of justice.” Dias v. City & Cnty. of Denver,567 F.3d 1169, 1178 (10th Cir. 2009) (quotation marksomitted).

III. ANALYSIS

The Court begins its analysis by evaluatingPlaintiffs’ standing to bring this action, and thenproceeds to discuss whether the political questiondoctrine bars this action, in addition to the other

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arguments raised in Defendant’s Motion to Dismiss.See Schlesinger v. Reservists Comm. to Stop the War,418 U.S. 208, 215 (1974).15

A. Standing

1. Operative Complaint’s AllegationsRegarding Standing

The Operative Complaint contains the followingallegations regarding various Plaintiffs’ purportedstanding to bring this action:

• “Several plaintiffs . . . hold[] public office in certainstate and local governmental bodies. The officesheld by these plaintiffs are relevant to theirstanding in the case.” (ECF No. 36, ¶ 9.)

• “In [Andy Kerr’s] individual capacity as a citizen ofthe State of Colorado and in his capacity as a StateRepresentative, he has standing to challenge the

15 In Schlesinger, the Court stated,

[T]he concept of justiciability, which expresses thejurisdictional limitations imposed upon federal courts bythe ‘case or controversy’ requirement of Art. III, embodiesboth the standing and political question doctrines . . . .Each of these doctrines poses a distinct and separatelimitation, so that either the absence of standing or thepresence of a political question suffices to prevent thepower of the federal judiciary from being invoked by thecomplaining party. The more sensitive and complex taskof determining whether a particular issue presents apolitical question causes courts . . . to turn intially,although not invariably, to the question of standing to sue.

418 U.S. at 215 (citations omitted).

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constitutionality of the TABOR amendment.” (Id.¶ 10.)

• “Certain plaintiffs in this case are past or sittingelected representatives in the General Assembly ofthe State of Colorado. As such, they have a directand specific interest in securing to themselves, andto their constituents and to the state, the legislativecore functions of taxation and appropriation. Otherplaintiffs in this case include officers of counties,districts and municipalities which are dependent,under the state constitution, on the power of thelegislature and their own powers to tax andappropriate.” (Id. ¶ 43.)

• “Certain plaintiffs in this case are past or sittingelected officials of counties, cities, and schooldistricts in the State of Colorado, jurisdictionswhose abilities to tax are eliminated by TABOR.”(Id. ¶ 44.)

• “Certain plaintiffs in this case are or have beeneducators employed by the State of Colorado or byvarious school districts. In addition to theirinterests as citizens of the state, they also have aspecific interest in assuring that the legislature ofthe state can discharge its responsibilities to tax forthe purpose of adequately funding core educationresponsibilities of the state as provided in ArticleIX, Section 2 of the Colorado Constitution.” (Id.¶ 45.)

• “Certain plaintiffs in this case are citizens of theState of Colorado, having a specific, protectableinterest in assuring that their representatives candischarge the inherently legislative function of

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taxation and appropriation and an interest inassuring that the State of Colorado has aRepublican Form of Government, as required by theUnited States Constitution.” (Id. ¶ 46.)

2. Summary of Parties’ Arguments RegardingStanding

In terms of the Legislator-Plaintiffs, Defendantargues that those Plaintiffs do not have standing toassert their claim that TABOR has caused adiminution of their political power, analogizing thiscase to Raines v. Byrd, 521 U.S. 811 (1997), anddistinguishing Coleman v. Miller, 307 U.S. 433 (1939).(ECF No. 51, at 5-7.) Plaintiffs, on the other hand,argue that the Legislator-Plaintiff have standingbecause “TABOR directly impacts their ability to fulfilltheir official responsibilities.” (ECF No. 30, at 8.) TheLegislator-Plaintiffs argue that their claim is akin tothe claim at issue in Coleman, and distinguishablefrom that in Raines. (Id. at 8-9 & n.5.) The Courtrequested further briefing from the parties’ regardingRaines’s applicability vel non to this action (ECF No.70, at 3), which the parties have provided (ECF No. 72,at 4-8; ECF No. 73, at 13-16).

In terms of citizen standing, Defendant argues thatPlaintiffs as citizens of Colorado do not have standingbecause their claim is “a generally available grievanceabout government – claiming only harm to [their] andevery citizen’s interest in proper application of theConstitution and laws . . . .” (ECF No. 18, at 15-16(quoting Lance v. Coffman, 549 U.S. 437, 439 (2007)).)In response, Plaintiffs liken their claim of citizenstanding to Flast v. Cohen, 392 U.S. 83 (1968), in whichtaxpayers bringing an Establishment Clause challenge

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were found to have standing. (ECF 30, at 10-11.)Defendant argues that Flast, a narrow exception to thegeneral rule that taxpayers do not have standing, isinapplicable. (ECF No. 51, at 8-11.) The Courtrequested further briefing from the parties’ regardingLance’s applicability to this action (ECF No. 70, at 3),which the parties have provided (ECF No. 72, at 9-14;ECF No. 73, at 10-13).

The parties’ original briefing on the Motion toDismiss focused only on legislative standing and citizenstanding. Given the allegation in the OperativeComplaint regarding the standing of educators (ECFNo. 36, ¶ 45), the Court asked Plaintiffs to clarifywhether they were alleging standing based on injury toeducators, and asked the parties to brief whetherstanding would exist on that basis (ECF No. 70, at 3).In the supplemental briefing, Plaintiffs clarified thatthey do seek standing on that basis, and both sidesprovided argument on that issue. (ECF No. 72, at 14-17; ECF No. 73, at 16-19.)

The parties also disagree as to whether TABORcaused the injuries alleged, and whether a ruling inPlaintiffs’ favor would redress those alleged injuries.(ECF No. 18, at 17-18; ECF No. 30, at 12-14; ECF No.51, at 11-13.)

3. General Rules of Constitutional Standing

Article III of the United States Constitution limitsthe jurisdiction of federal courts to “[c]ases” and“[c]ontrover[ies].” U.S. Const. art. III, § 2. “No principleis more fundamental to the judiciary’s proper role inour system of government than the constitutionallimitation of federal-court jurisdiction to actual cases or

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controversies.” Simon v. E. Ky. Welfare Rights Org.,426 U.S. 26, 37 (1976).

“[T]he core component of standing is an essentialand unchanging part of the case-or-controversyrequirement of Article III.” Lujan v. Defenders ofWildlife, 504 U.S. 555, 560 (1992). “The gist of thequestion of standing” is whether the plaintiffs have“alleged such a personal stake in the outcome of thecontroversy as to assure that concrete adversenesswhich sharpens the presentation of issues upon whichthe court so largely depends for illumination of difficultconstitutional questions.” Baker v. Carr, 369 U.S. 186,204 (1962). Standing “is perhaps the most important ofthe[] doctrines” limiting the federal judicial power.Allen v. Wright, 468 U.S. 737, 750 (1984).

“[T]he irreducible constitutional minimum ofstanding contains three elements”: (1) the plaintiffmust have suffered a “concrete and particularized”injury that is “actual or imminent” (i.e., an “injury infact”), (2) there must be “a causal connection betweenthe injury and the conduct complained of,” and (3) itmust be “likely . . . that the injury will be redressed bya favorable decision.” Lujan, 504 U.S. at 560-61(quotation marks omitted); see also Allen, 468 U.S. at751 (“A plaintiff must allege personal injury fairlytraceable to the defendant’s allegedly unlawful conductand likely to be redressed by the requested relief.”)

“The party invoking federal jurisdiction bears theburden of establishing these elements.” Lujan, 504 U.S.at 561.

At the pleading stage, general factualallegations of injury resulting from the

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defendant’s conduct may suffice, for on a motionto dismiss we presume that general allegationsembrace those specific facts that are necessaryto support the claim. In response to a summaryjudgment motion, however, the plaintiff can nolonger rest on such mere allegations, but mustset forth by affidavit or other evidence specificfacts, which for purposes of the summaryjudgment motion will be taken to be true. And atthe final stage, those facts (if controverted) mustbe supported adequately by the evidenceadduced at trial.

Id. (citations, quotation marks, and brackets omitted).

Also,

[w]hen the suit is one challenging the legality ofgovernment action or inaction, the nature andextent of facts that must be averred (at thesummary judgment stage) or proved (at the trialstage) in order to establish standing dependsconsiderably upon whether the plaintiff ishimself an object of the action (or forgone action)at issue. If he is, there is ordinarily littlequestion that the action or inaction has causedhim injury, and that a judgment preventing orrequiring the action will redress it.

Id. at 561-62.

4. Legislative Standing – “Injury in Fact”

The Court first addresses the issue of whether theLegislator-Plaintiffs have standing to bring this action.

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a. Governing Case Law

(1) U.S. Supreme Court Cases

The United States Supreme Court has infrequentlyaddressed the issue of legislative standing. One of thefew cases in which it did so is Coleman v. Miller, 307U.S. 433 (1939). There, twenty Kansas State Senators,among others, brought suit after a vote in the KansasState Senate deadlocked at 20-20 (which ordinarilywould mean the measure would not pass), but theState’s Lieutenant Governor cast a deciding votepassing the measure. Id. at 435-36. The Court foundstanding based on the complete nullification of theeffectiveness of those Senators’ votes, explaining, “[theplaintiffs’] votes against ratification have beenoverridden and virtually held for naught although ifthey are right in their contentions their votes wouldhave been sufficient to defeat ratification. We thinkthat these senators have a plain, direct and adequateinterest in maintaining the effectiveness of their votes.”Id. at 438. The Court in Coleman ultimately ruledagainst the plaintiffs on the merits, affirming theKansas Supreme Court’s denial of mandamus. See id.at 437-56.

The Supreme Court more recently took up the issueof legislative standing in Raines v. Byrd, 521 U.S. 811(1997). In Raines, six members of the United StatesCongress challenged the constitutionality of the LineItem Veto Act (the “Act”), which had been passed byCongress and signed into law by the President in 1996.Id. at 814. The six plaintiffs had voted against passageof the Act. Id. The Court held that the plaintiffs lackedconstitutional standing to bring the action because,among other reasons discussed in more detail below,

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the alleged injury constituted only an abstract dilutionof institutional legislative power. Id. at 818, 825-26,830.16

The Supreme Court in Raines began its analysis bylaying out fundamental rules of standing, id. at 818-20,and emphasized that “our standing inquiry has beenespecially rigorous when reaching the merits of thedispute would force us to decide whether an actiontaken by one of the other two branches of the FederalGovernment was unconstitutional,” id. at 820. Later inthe decision, the Court again emphasized theimportance of separation-of-powers concerns in thestanding analysis, evaluating in depth instances duringthe nation’s history when Members of Congress or theExecutive declined to entangle the Judiciary inconfrontations between Congress and the Executivebranch. Id. at 826-28.

The Raines Court then proceeded to analyzeColeman and another prior Supreme Court case inwhich a legislator was found to have standing, Powell

16 Notably, the Act specifically authorized Members of Congress tobring a legal action challenging the constitutionality of the Act. Seeid. at 815-16. As the Court in Raines pointed out, however,“Congress cannot erase Article III’s standing requirements bystatutorily granting the right to sue to a plaintiff who would nototherwise have standing.” Id. at 820 n.3. Rather, “Congress’decision to grant a particular plaintiff the right to challenge anAct’s constitutionality [only serves to] eliminate[] any prudentialstanding limitations.” Id.; see also Warth v. Seldin, 422 U.S. 490,501 (1975) (“Congress may grant an express right of action topersons who would otherwise be barred by prudential standingrules.”). Raines, therefore, dealt only with the issue of whether theplaintiffs there met the minimum constitutional requirements forstanding.

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v. McCormack, 395 U.S. 486 (1969). In Powell, theSupreme Court held that the exclusion of a member ofCongress from the House of Representatives (with aconsequent loss of salary) presented a live “case orcontroversy.” 395 U.S. at 512-14 & n.35. Rainesdistinguished Powell on two grounds. First, the Courtstated that, unlike in Powell, the plaintiffs in Raines“ha[d] not been singled out for specially unfavorabletreatment . . . . [Instead t]heir claim is that the Actcauses a type of institutional injury (the diminution oflegislative power), which necessarily damages allMembers of Congress and both Houses of Congressequally.” 521 U.S. at 821. Second, the Court statedthat, unlike in Powell, the Raines plaintiffs’ “claim ofstanding is based on a loss of political power, not lossof any private right, which would make the injury moreconcrete.” Id. The Court in Raines emphasized that theplaintiffs were suing in their official capacities ratherthan based on some private injury. Id.

Raines then turned to Coleman, identifyingColeman as “[t]he one case in which we have upheldstanding for legislators (albeit state legislators)claiming an institutional injury.” Id. (emphasis inoriginal). After evaluating Coleman, the Court inRaines stated,

[O]ur holding in Coleman stands (at most) forthe proposition that legislators whose voteswould have been sufficient to defeat (or enact) aspecific legislative Act have standing to sue ifthat legislative action goes into effect (or doesnot go into effect), on the ground that their voteshave been completely nullified.

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521 U.S. at 823 (citation omitted). The Court thenproceeded to explain why Coleman provided “littlemeaningful precedent” for the situation presented inRaines:

[The Raines plaintiffs] have not alleged thatthey voted for a specific bill, that there weresufficient votes to pass the bill, and that the billwas nonetheless defeated. In the vote on the Act,their votes were given full effect. They simplylost that vote. Nor can they allege that the Actwill nullify their votes in the future in the sameway that the votes of the Coleman legislatorshad been nullified. In the future, a majority ofSenators and Congressmen can pass or rejectappropriations bills; the Act has no effect on thisprocess. In addition, a majority of Senators andCongressmen can vote to repeal the Act, or toexempt a given appropriations bill (or a givenprovision in an appropriations bill) from the Act;again, the Act has no effect on this process.

Id. at 824. The Court ultimately stated, “There is a vastdifference between the level of vote nullification atissue in Coleman and the abstract dilution ofinstitutional legislative power that is alleged here. Touphold standing here would require a drastic extensionof Coleman. We are unwilling to take that step.” Id. at826.

In conclusion, the Court in Raines stated:

In sum, appellees have alleged no injury tothemselves as individuals (contra, Powell), theinstitutional injury they allege is wholly abstractand widely dispersed (contra, Coleman), and

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their attempt to litigate this dispute at this timeand in this form is contrary to historicalexperience. We attach some importance to thefact that appellees have not been authorized torepresent their respective Houses of Congress inthis action, and indeed both Houses activelyoppose their suit. We also note that ourconclusion neither deprives Members ofCongress of an adequate remedy (since they mayrepeal the Act or exempt appropriations billsfrom its reach), nor forecloses the Act fromconstitutional challenge (by someone who suffersjudicially cognizable injury as a result of theAct). Whether the case would be different if anyof these circumstances were different we neednot now decide.

We therefore hold that these individualmembers of Congress do not have a sufficient“personal stake” in this dispute and have notalleged a sufficiently concrete injury to haveestablished Article III standing.

Id. at 829-30 (some citations omitted).

(2) Tenth Circuit Case

In Schaffer v. Clinton, 240 F.3d 878 (10th Cir.2001), the Tenth Circuit discussed Raines andlegislative standing. In Schaffer, Bob Schaffer, amember of the U.S. House of Representatives, broughtsuit challenging a statute authorizing cost of livingadjustments (“COLAs”) for Members of Congress,claiming that the statute violated the Twenty-Seventh

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Amendment to the Constitution.17 Although the statutegranted Congressman Shaffer a pay increase, hebrought suit claiming that the unconstitutional salaryincrease was “personally offensive and professionallyharmful to him, as well as damaging to his politicalposition and his credibility among his constituency.” Id.at 883 (quotation marks and brackets omitted).Although that case presented an alleged injury quitedifferent than the one alleged here, the Tenth Circuit’sdiscussion of Raines is notable:

Like the plaintiffs in Raines, CongressmanSchaffer has not alleged a sufficiently personalinjury to establish standing because he has notbeen singled out for specially unfavorabletreatment as opposed to other Members of theHouse of Representatives. Instead the COLAs,which apply to every Representative, necessarilydamage all Members of Congress equally.Congressman Schaffer’s allegations of harm tohis political position and his credibility amonghis constituency are even more abstract than theassertion of a dilution of institutional legislativepower the Court found wanting in Raines.Finally, as in Raines, there has been nonullification of Congressman Schaffer’s ability tovote on the COLAs; if he received a COLA . . .,that is simply because he lost that vote. The[COLA] has no effect on either CongressmanSchaffer’s ability to press for a change in the law

17 The Twenty-Seventh Amendment provides, “No law, varying thecompensation for the services of the Senators and Representatives,shall take effect, until an election of Representatives shall haveintervened.” U.S. Const. amend. XXVII.

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setting Representatives’ salaries or for Congressto amend the COLA provisions pursuant to thenormal legislative process.

Id. at 885-86 (citations, quotation marks, brackets, andellipses omitted).

b. Analysis of Whether the Legislator-Plaintiffs Have Alleged a CognizableInjury in Fact

Raines identifies numerous issues to consider indetermining whether legislators in a particular casehave standing: whether the alleged injury is concrete orabstract; whether the legislators allege an institutionalinjury in their official capacities that is common to allmembers of the legislative body; whether thelegislators have been authorized to bring suit on behalfof the legislative body; whether separation-of-powersconcerns are present; whether the legislators have anadequate internal remedy within the legislative body;and whether declining standing to the legislators wouldforeclose any constitutional challenge to the disputedmeasure. See 521 U.S. at 829. Raines also specificallystated, “Whether the case would be different if any ofthese circumstances were different [than those presentin Raines] we need not now decide.” Id. at 829-30. TheCourt will analyze these important standingconsiderations in turn.

(1) Concreteness of Injury

Standing jurisprudence makes clear that theconcreteness (versus abstractness) of an injury is oneof the more important, if not the critical issue,governing the standing question. See Lujan, 504 U.S.at 560; Schlesinger, 418 U.S. at 222 (“To permit a

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complainant who has no concrete injury to require acourt to rule on important constitutional issues in theabstract would create the potential for abuse of thejudicial process, distort the role of the Judiciary in itsrelationship to the Executive and the Legislature andopen the Judiciary to an arguable charge of providing‘government by injunction.’”); Fed. Election Comm’n v.Akins, 524 U.S. 11, 24 (1998) (“[W]here a harm isconcrete, though widely shared, the Court has found‘injury in fact.’”); Okpalobi v. Foster, 190 F.3d 337, 352(5th Cir. 1999) (stating that “the fundamental goal ofthe standing inquiry” is to “ensur[e] that litigants havea concrete stake in the outcome of the proceedings suchthat the issue will be framed properly”).

In Raines, the Court did not engage in any extendeddiscussion of why the injuries alleged by the plaintiffsthere were too abstract to confer standing. The Court’sentire discussion regarding the nature of the injuriesalleged was made during the process of distinguishingColeman:

[A]ppellees rely heavily on our statement inColeman that the Kansas senators had “a plain,direct and adequate interest in maintaining theeffectiveness of their votes.” Appellees claim thatthis statement applies to them because theirvotes on future appropriations bills (assuming amajority of Congress does not decide to exemptthose bills from the Act) will be less “effective”than before, and that the “meaning” and“integrity” of their vote has changed. . . . Eventaking appellees at their word about the changein the “meaning” and “effectiveness” of their votefor appropriations bills which are subject to the

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Act, we think their argument pulls Coleman toofar from its moorings. Appellees’ use of the word“effectiveness” to link their argument toColeman stretches the word far beyond thesense in which the Coleman opinion used it.There is a vast difference between the level ofvote nullification at issue in Coleman and theabstract dilution of institutional legislativepower that is alleged here.

Raines, 521 U.S. at 824-26. Raines based its holding, inpart, on the ultimate conclusion that “institutionalinjury [that plaintiffs] allege is wholly abstract andwidely dispersed (contra, Coleman) . . . .” Id. at 829.18

In the Court’s view, it is significant that Raines didnot overrule Coleman, but instead reaffirmed that the“level of vote nullification” at issue in Coleman was

18 The Court’s emphasis on the “widely dispersed” nature of theinjury appears to be tied to the fact that it is an institutionalinjury. Notably, though, in the Supreme Court’s jurisprudence,this idea of a widely dispersed injury not being cognizable appearsto have only been consistently applied in the context of citizen ortaxpayer suits. See, e.g., Warth, 422 U.S. at 499 (“[W]hen theasserted harm is a ‘generalized grievance’ shared in substantiallyequal measure by all or a large class of citizens, that harm alonenormally does not warrant exercise of jurisdiction.”). Importantly,the Supreme Court in Akins stated, “Often the fact that an interestis abstract and the fact that it is widely shared go hand in hand.But their association is not invariable, and where a harm isconcrete, though widely shared, the Court has found ‘injury infact.’” 524 U.S. at 24. Given that a sufficiently concrete injury canconfer standing even if shared by all or a vast majority ofAmericans, this Court would be hard-pressed to deny standing ifa sufficiently concrete injury existed, just because it was “widelyshared” by 100 Colorado General Assembly members.

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sufficient to confer standing. Coleman involved a voteon one measure in which legislators’ votes were“nullified.” This action, on the other hand, challengesa state constitutional provision in effect for nearlytwenty years, under which members of the ColoradoGeneral Assembly have not had the power to increasetax rates or approve new taxes without voterapproval.19 In the Operative Complaint, Plaintiffsallege:

• “An effective legislative branch must have thepower to raise and appropriate funds. When thepower to tax is denied, the legislature cannotfunction effectively to fulfill its obligations in arepresentative democracy and a Republican Form ofGovernment.” (Id. ¶ 7.)

• “[T]axation and appropriation” are “legislative corefunctions.” (Id. ¶ 43.)

• “[TABOR] removes entirely from the ColoradoGeneral Assembly any authority to change statelaw concerning taxation to replace or increaseexisting revenue, and prohibits the GeneralAssembly from raising funds by any other means,including borrowing. Moreover, the interaction ofthe provisions of TABOR may actually force existingtaxes to be decreased without any action of theGeneral Assembly.” (Id. ¶ 80.)

19 Notably, in Raines, the plaintiffs brought suit the day after theLine Item Veto Act was passed, see 521 U.S. at 814, and so did noteven wait until the President had exercised his new powers underthe Act.

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• “A fully effective legislature is an essentialcomponent of a Republican Form of Government, asguaranteed to each state by [the Guarantee Clause].By removing the taxing power of the GeneralAssembly, the TABOR amendment renders theColorado General Assembly unable to fulfill itslegislative obligations under [the GuaranteeClause].” (Id. ¶ 83.)

• “The TABOR amendment has made the GeneralAssembly ineffective by removing an essentialfunction, namely the power to tax. In so doing, theTABOR amendment violates the Enabling Act.” (Id.¶ 84.)

At this early stage of the proceedings, the Courtmust accept as true that the Legislator-Plaintiffs havesuffered a concrete injury. See Lujan, 504 U.S. at 561(“At the pleading stage, general factual allegations ofinjury resulting from the defendant’s conduct maysuffice, for on a motion to dismiss we presume thatgeneral allegations embrace those specific facts thatare necessary to support the claim.”); see also Am.Tradition Inst. v. State of Colorado, --- F. Supp. 2d ---,2012 WL 2899064, at *6-*7 (D. Colo. July 17, 2012)(emphasizing importance of the stage of proceedings indenying motion to dismiss complaint based on claimthat the plaintiffs lacked standing).

As alleged, this injury is of a greater magnitudethan the single instance of vote nullification inColeman, and is far more concrete than the allegedinjury in Raines. The injury alleged here is a concreteinjury involving the removal of a “core” legislativepower of the General Assembly. The allegations of theOperative Complaint are of such a magnitude that the

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term “dilution of institutional power” appearsinsufficient to describe the alleged injury TABOR haseffected on Plaintiffs’ core representative powers. Moreimportantly, the allegations of the OperativeComplaint detail anything but an abstract dilution ofpower. As a consequence, the concreteness of the injuryalleged here weighs in favor of finding standing.20

20 The cases cited by Defendant are distinguishable. In AlaskaLegislative Council v. Babbitt, 181 F.3d 1333 (D.C. Cir. 1999), thecourt applied Raines and denied standing to state legislatorschallenging a federal statute that took away the power of theAlaska Legislature to control hunting and fishing on federal landswithin Alaska. At this early stage of these proceedings, this Courtcan without hesitation distinguish the relatively narrow removalof the power over hunting and fishing on the portions of land inAlaska owned by the federal government, as being of less civicimport than the alleged wholesale removal of the Coloradolegislature’s “core functions” of taxation and appropriation.

Defendant also unpersuasively likens this case to Daughtreyv. Carter, 584 F.2d 1050 (D.C. Cir. 1978). There, two legislatorsbrought suit challenging the Executive Department’s allegedfailure to enforce a law that the legislature had passed. The Courtdenied standing on the ground that “[t]he failure or refusal of theexecutive branch to execute accomplished legislation does notaffect the legal status of such legislation; nor does it invade, usurp,or infringe upon a Congressman’s power to make law. [citationomitted] Once a bill becomes law, a Congressman’s interest in itsenforcement is shared by, and indistinguishable from, that of anyother member of the public.” Id. at 1057. Here, however, the claimis that the power to legislate itself has been taken away.

Also, as previously mentioned, in Schaffer, a member of theHouse of Representatives alleged injuries based on a law being“personally offensive and professionally harmful to him, as well asdamaging to his political position and his credibility among hisconstituency.” 240 F.3d at 883. The Tenth Circuit denied standing,in part, on the conclusion that those asserted harms were “evenmore abstract” than those at issue in Raines. Id. at 885. Here,

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With respect to the nature of the injury alleged bythe Legislator-Plaintiffs and its effect on standing,Lujan is telling. There, the Supreme Court specificallyemphasized:

When the suit is one challenging the legality ofgovernment action or inaction, the nature andextent of facts that must be averred (at thesummary judgment stage) or proved (at the trialstage) in order to establish standing dependsconsiderably upon whether the plaintiff ishimself an object of the action (or forgone action)at issue. If he is, there is ordinarily littlequestion that the action or inaction has causedhim injury, and that a judgment preventing orrequiring the action will redress it.

Lujan, 504 U.S. at 561-62. Other courts have appliedthis holding from Lujan in finding standing forlegislators or legislative bodies. See Miller v. Moore,169 F.3d 1119, 1122-23 (8th Cir. 1999) (findingstanding where Nebraska voters passed ballotinitiative intended to punish legislators who did notsupport and actively pursue the passage ofcongressional term limits); U.S. House ofRepresentatives v. U.S. Dep’t of Commerce, 11 F. Supp.2d 76, 89 (D.D.C. 1998) (holding that House ofRepresentatives had standing to challenge the CensusBureau’s plan to use statistical sampling in the Census“because the House’s composition will be affected bythe manner in which the Bureau conducts the Census,”and citing this holding from Lujan).

however, the alleged harm is significantly more concrete than thatin Raines.

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Here, the allegations of the Operative Complaintindicate that TABOR was specifically designed to takeaway from the General Assembly “the power to tax and[to] arrogat[e] that power to [the voters] themselves.”(ECF No. 36, ¶ 1.) The Legislator-Plaintiffs, along withother members of the Colorado General Assembly, werethe targeted objects of TABOR’s design. See Bickel v.City of Boulder, 885 P.2d 215, 226 (Colo. 1994)(“[TABOR’s] requirement of electoral approval is not agrant of new powers or rights to the people, but is moreproperly viewed as a limitation on the power of thepeople’s elected representatives.”) (emphasis inoriginal). That makes this case different than Raines,where the challenged action was the passage of astatute where the plaintiffs, although on the losing sideof the vote, were not the targets of the action beingchallenged.

Thus, the concreteness and nature of the injuryalleged here is distinguishable from the abstract injuryalleged in Raines. Moreover, the Court finds that theinjury alleged here is of greater magnitude than thesingle instance of vote nullification in Coleman. Both ofthese considerations weigh in favor of finding that theLegislator-Plaintiffs have standing in this action.21

21 It would be overly formalistic to deny standing on the groundthat the Colorado General Assembly has never unsuccessfullyattempted to circumvent TABOR by, for example, passing a tax billand attempting to coax the Governor’s office to sign the bill intolaw without first submitting the bill to the voters for approval, butultimately being prevented from doing so by the Colorado AttorneyGeneral.

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(2) Institutional Injury, Suing in anO f f i c i a l C a p a c i t y , a n dAuthorization to Represent theLegislative Body

Raines repeatedly emphasized the importance of thefact that the plaintiffs there alleged an institutionalinjury in their official capacities, and not any personalinjury differentiable from the injury suffered by allMembers of Congress. See, e.g., 521 U.S. at 821 (indistinguishing Powell, the Court stated, “[A]ppelleeshave not been singled out for specially unfavorabletreatment as opposed to other Members of theirrespective bodies. Their claim is that the Act causes atype of institutional injury (the diminution oflegislative power), which necessarily damages allMembers of Congress and both Houses of Congressequally.”). The Raines Court also attached “someimportance” to the fact that the plaintiffs there had notbeen authorized to represent the legislative bodies inwhich they served. Id. at 829. These concepts areobviously inter-related because an institutionallegislative injury might be more appropriately raisedby the legislative institution itself, or by legislatorsauthorized to represent the legislative institution.

As in Raines, the Legislator-Plaintiffs here clearlybase their claim of standing on an institutional injury:TABOR’s removal of the Colorado General Assembly’spower to increase tax rates or impose new taxeswithout voter approval. The Legislator-Plaintiffs alsoclearly bring their claims in their official capacities asstate legislators. (ECF No. 36, ¶¶ 9-10 (“The officesheld by [the Legislator-Plaintiffs] are relevant to theirstanding in the case. . . . [They bring this action] in

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[their] capacity as [] State Representative[s].”) TheLegislator-Plaintiffs also concede that they have notbeen authorized to bring this action on behalf of theGeneral Assembly. (Id. ¶ 9 (“[Plaintiffs do] not implythat the governmental bodies have themselves takenany official position regarding this litigation nor thatthese plaintiffs speak for those governmental bodiesregarding this litigation.”).

The law remains unclear regarding the situations inwhich an institutional legislative injury (where theplaintiffs legislators are not authorized to represent thelegislative body) confers standing on legislators, andwhen it does not. Notably, in Coleman, the plaintiffsalleged an injury suffered in their official capacities, ofan institutional nature, and they had not beenauthorized to bring suit on behalf of the KansasSenate. The Supreme Court in Raines could haveoverruled Coleman and laid down a per se rule thatlegislators alleging an institutional injury, where thelegislators have not been authorized to bring suit onbehalf of the legislative body, never have standing topursue such claims. Instead, Raines’s treatment ofColeman was significantly more limited. Afteranalyzing ways in which Coleman was distinguishable(including the presence or lack of an adequate internallegislative remedy), the Court in Raines expressedconcern about pulling Coleman “too far from itsmoorings,” and emphasized how significantly differentthe concreteness and magnitude of the injuries were.Raines, 521 U.S. at 825-26 (“There is a vast differencebetween the level of vote nullification at issue inColeman and the abstract dilution of institutionallegislative power that is alleged here.”). Also, althoughthe Raines Court held that Coleman stands “at most”

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for the proposition that legislators have standing wheretheir votes have been completely nullified (becausetheir votes would have been successful but for thechallenged action), that does not mean legislativestanding can only be found to exist if the circumstancesin Coleman are present. By analyzing Coleman in theseways, the Court in Raines provided less guidance tofuture lower courts, including this Court, regardingwhen an institutional legislative injury does or does notconfer standing.

Given Raines’s discussion of Powell, however, andmuch of the case law interpreting Raines,22 theinstitutional injury alleged by the Legislator-Plaintiffshere, and the fact that they have not been authorizedto bring suit on behalf of the Colorado GeneralAssembly, draws some skepticism from this Courtregarding whether the injury alleged can provide alegitimate basis for standing. But because Raines didnot provide clearer guidance, and because of theconcreteness of the injury alleged here, the Court findsit appropriate to also evaluate the other factorsidentified in Raines to determine whether they weighin favor or against finding legislative standing in thecircumstances presented here. See Raines, 521 U.S. at829-30 (“Whether the case would be different if any of

22 As Defendant points out, however, numerous lower courts sinceRaines, in denying legislative standing, have placed great weighton the fact that what was being alleged was an institutional injurycommon to all members of the legislative body and/or one involvinga mere loss of political power. See, e.g., Schaffer, 240 F.3d at 885;Alaska Legislative Council, 181 F.3d at 1336-38; Chenoweth v.Clinton, 181 F.3d 112, 115-16 (D.C. Cir. 1999); Kucinich v. Obama,821 F. Supp. 2d 110, 116-18 (D.D.C. 2011).

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these circumstances were different we need not nowdecide.”).

(3) Separation-of-Powers andFederalism Concerns

In Raines, the Court’s emphasis on separation-of-powers concerns was significant. Overlaying theentirety of the decision was the Court’s initialstatement that

our standing inquiry has been especiallyrigorous when reaching the merits of the disputewould force us to decide whether an action takenby one of the other two branches of the FederalGovernment was unconstitutional. The law ofArticle III standing is built on a single basic idea– the idea of separation of powers. In the light ofthis overriding and time-honored concern aboutkeeping the Judiciary’s power within its properconstitutional sphere, we must put aside thenatural urge to proceed directly to the merits ofthis important dispute and to “settle” it for thesake of convenience and efficiency.

Id. at 819-20 (citations and quotation marks omitted).Also, later in the decision, the Court engaged in adetailed analysis of different times in the nation’shistory when Members of Congress or the Executivedeclined to entangle the Judiciary in confrontationsbetween Congress and the Executive Branch. Id. at826-28. This historical discussion underscores theimportance of separation of powers in the RainesCourt’s analysis. Further, it is notable that the RainesCourt’s initial statement regarding Colemanemphasized that Coleman was brought by state

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legislators, not federal legislators, further reiteratingthe importance of federal separation-of-powersconcerns in the Court’s analysis. Id. at 821 (“The onecase in which we have upheld standing for legislators(albeit state legislators) claiming an institutional injuryis Coleman . . . .) (emphasis in original).

Indeed, the vast majority of case law addressinglegislative standing involve cases in which the federalJudiciary is asked to resolve a dispute between thefederal Executive and Legislative Branches.23 Here,however, this Court is not being asked “to decidewhether an action taken by one of the other twobranches of the Federal Government wasunconstitutional.” Id. at 819-20. Instead, like inColeman, this Court is being asked to resolve a disputeinvolving a state legislature.24

It is significant, too, that this Court is also not beingasked to resolve a dispute between separate branches

23 Not surprisingly, for this reason most of these cases come out ofthe D.C. Circuit.

24 See also Harrington v. Bush, 553 F.2d 190, 204 n.67 (D.C. Cir.1977) (“The major distinguishing factor between Coleman and thepresent case lies in the fact that the plaintiffs in Coleman werestate legislators. A separation of powers issue arises as soon as theColeman holding is extended to United States legislators. If afederal court decides a case brought by a United States legislator,it risks interfering with the proper affairs of a coequal branch.”).But see Alaska Legislative Council, 181 F.3d at 1337-39 (applyingRaines to deny standing to state legislators challenging a federalstatute that took away the power of the Alaska Legislature tocontrol hunting and fishing on federal lands within Alaska).

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of Colorado government.25 Articles IV, V, and VI of theColorado Constitution create three “distinctdepartments” of the Colorado government, theExecutive Department, the Legislative Department,and the Judicial Department, respectively. See Colo.Const. arts. III, IV, V, VI. This action involves a solelyintra-branch dispute involving only the ColoradoLegislative Department: Article V of the ColoradoConstitution – the Article creating the LegislativeDepartment – not only creates the Colorado GeneralAssembly, it also reserves to the Colorado electoratethe initiative and referendum power as a legislativepower. See Colo. Const. art. V, § 1, cls. (1)-(3). Thisdispute, therefore, is between two components of thesame Legislative Department.

The fact that this action does not present anyseparation-of-powers concerns, either between separatebranches of the federal government or separatebranches of the Colorado government, does not end thisCourt’s inquiry into whether an equivalent concernwarrants declining to hear this case: federalism.26 See

25 See Planned Parenthood of Mid-Missouri & E. Kan., Inc. v.Ehlmann, 137 F.3d 573, 578 n.5 (8th Cir. 1998) (“Justice Souter [inhis concurring opinion in Raines] cautioned against courtsembroiling themselves in a political interbranch controversybetween the United States Congress and the President. [citationomitted] Federal courts should exercise this same caution when,as in this case, there exists a political interbranch controversybetween state legislators and a state executive branch concerningimplementation of a bill.”).

26 Raines declined to address appellants’ alternative argumentsthat Coleman should be distinguished because “the separation-of-powers concerns present in such suit were not present in Coleman,

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13B Wright & Miller, Federal Practice & Procedure§ 3531.11.3 (3d ed. 2012) (“State legislator standingraises issues similar to the issues of congressionalplaintiff standing, although the separation-of-powersconcerns are much diminished and largely replaced byconcerns of federalism.”).

[Federalism involves] the notion of ‘comity,’ thatis, a proper respect for state functions, arecognition of the fact that the entire country ismade up of a Union of separate stategovernments, and a continuance of the beliefthat the National Government will fare best ifthe States and their institutions are left free toperform their separate functions in theirseparate ways. . . . The concept does not meanblind deference to ‘States’ Rights’ any more thanit means centralization of control over everyimportant issue in our National Governmentand its courts. The Framers rejected both thesecourses. What the concept does represent is asystem in which there is sensitivity to thelegitimate interests of both State and NationalGovernments . . . .

Younger v. Harris, 401 U.S. 37, 44 (1971). Where,however, it is state action which allegedly violates theU.S. Constitution, federalism concerns are reduced. SeeValdivia v. Scharzenegger, 599 F.3d 984, 991 n.6 (9thCir. 2010) (“[P]rinciples of federalism do not permit astate to violate what this court has already deemed to

and since any federalism concerns were eliminated by the KansasSupreme Court’s decision to take jurisdiction over the case.”Raines, 521 U.S. at 824 n.8.

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be a constitutionally-protected right.”); Mackin v. Cityof Boston, 969 F.2d 1273, 1275-76 (1st Cir. 1992)(“[F]ederal courts, in mulling whether to relax orabandon their supervision over the operation of localgovernmental units, should take federalism concernsinto account, ever mindful that the legal justificationfor displacement of local authority is a violation of theConstitution by the local authorities.”) (quotationmarks and ellipses omitted).

In this regard, the Court finds it significant thatTABOR was passed nearly twenty years ago.27 In Lucasv. Forty-Fourth General Assembly of the State ofColorado, 377 U.S. 713 (1964), the Supreme Courtemphasized that a federal court might properly wait ashort period to allow a state’s electorate to remedy anunconstitutional measure passed by ballot initiative,but that otherwise the federal court must act to remedythe constitutional violation:

Courts sit to adjudicate controversies involvingalleged denials of constitutional rights. While acourt sitting as a court of equity might bejustified in temporarily refraining from theissuance of injunctive relief in an apportionmentcase in order to allow for resort to an availablepolitical remedy, such as initiative andreferendum, individual constitutional rightscannot be deprived, or denied judicialeffectuation, because of the existence of anonjudicial remedy . . . . [C]onstitutional rights

27 TABOR has only been modified since by Referendum C, which inno way affected the limitation on the General Assembly’s power toincrease tax rates or impose new taxes without voter approval.

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can hardly be infringed simply because amajority of the people choose that it be. . . . [T]hefact that a practicably available political remedy,such as initiative and referendum, exists understate law provides justification only for a court ofequity to stay its hand temporarily whilerecourse to such a remedial device isattempted . . . .

Id. at 736-37 (1964).28

At this stage of the proceedings, this Court mustassume the validity of Plaintiffs’ allegations thatTABOR is unconstitutional, and their allegationsregarding the importance of the constitutional rights atissue. See Lujan, 504 U.S. at 561. Given these acceptedallegations, the fact that TABOR has been in effect fornearly twenty years counsels against the Court“staying its hand,” and in favor of allowing the case toproceed without further delay.

With there being no separation-of-powers concernsin this case (unlike in Raines), and with federalismconcerns diminished by the length of time TABOR hascaused the alleged harms at issue (with thoseallegations being accepted as true at this stage of the

28 See also Kean v. Clark, 56 F. Supp. 2d 719, 727 (S.D. Miss. 1999)(“The States and their officers are bound by obligations imposed bythe Constitution and by federal statutes that comport with theconstitutional design. . . . [Further,] it is irrelevant that a statutoryrestriction is based upon a constitutional provision enacted bypetition. The voters may no more violate the United StatesConstitution by enacting a ballot issue than the general assemblymay by enacting legislation.”) (citations, quotation marks,brackets, and ellipses omitted).

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proceedings), the Court finds that these considerationsweigh in favor of finding legislative standing here.

(4) Whether Legislators Have anAdequate Internal Remedy

TABOR was passed by the Colorado electorate byballot initiative, without any involvement of theColorado General Assembly. (ECF No. 36, ¶ 1.) Also,significantly, TABOR is an amendment to the ColoradoConstitution that can only be revoked or amended by amajority of Colorado voters. See Colo. Const. art. XIX,§§ 1, 2. The only power members of the ColoradoGeneral Assembly have to undo TABOR is to propose toColorado voters that they pass a constitutionalamendment or authorize a constitutional convention.See id. In order for the legislature to submit a proposedconstitutional amendment to the Colorado electorate,an affirmative vote by two-thirds of each House of theGeneral Assembly is required. See id. This leaves theLegislator-Plaintiffs in this case with little availableremedy in the political process to undo TABOR, and nomeans by which to effect any change to the currentTABOR regime by way of any of the legislature’sremaining powers or prerogatives.

That distinction makes this case remarkablydifferent from Raines. Indeed, in Raines the presenceof an internal legislative remedy was one of theprimary bases upon which the Court distinguishedColeman. See 521 U.S. at 824. The removal of theColorado General Assembly’s power to independentlypass any tax legislation, without any recourse availableto that Assembly, places this case in starkcontradistinction to the facts in Raines, in which

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various internal remedies were available to theplaintiffs.

Courts since the Raines decision have continued toemphasize the importance of the existence of alegislative remedy in legislative standing analysis. Forexample, in Kucinich v. Obama, 821 F. Supp. 2d 110(D.D.C. 2011), the court denied standing to legislatorswho sought to challenge the President’s authorizationof military action in Libya without congressionalapproval. Analyzing Raines and Coleman, the courtconcluded that for legislative standing to exist,

plaintiff legislators must be without legislativerecourse before they may turn to the courts toseek their desired remedy. . . . [The plaintiffs]have not demonstrated that they are without alegislative remedy. . . . By contending that theirvotes were nullified, despite seeminglyacknowledging that they retain legislativeremedies, the plaintiffs’ arguments overlook theimportant role political remedies have in thestanding analysis. In the end, the availability ofeffective political remedies goes to the very heartof the standing analysis . . . .

Kucinich, 821 F. Supp. 2d at 119-20.29 Also, in Russell

29 Defendant cites Kucinich in support of the argument that theLegislator-Plaintiffs do not have standing here. (ECF No. 73, at 13,15-16.) Indeed, the Kucinich decision also placed great weight onthe fact that what was alleged there was an institutional injuryand that the legislator plaintiffs had not been authorized to bringsuit on behalf of their respective legislative bodies. 821 F. Supp. 2dat 116-18. However, the fact that in Kucinich an internallegislative remedy existed – and the fact that Kucinich placed so

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v. Dejongh, 491 F.3d 130 (3d Cir. 2007), a Senator ofthe Virgin Islands challenged the Governor’sappointment of Supreme Court justices on the groundthat the Governor was untimely in submitting thenominations to the legislature for approval. The courtdistinguished cases in which there were no internallegislative remedies, stating, “the Legislature was freeto confirm, reject, or defer voting on the Governor’snominees. The consequence of the Governor’s latesubmission of the nominations was thus not tocircumvent the Legislature, but to place the decisionwhether to confirm the nominees directly in theirhands.” Id. at 136. The Third Circuit in DeJongh alsostated, “[C]ourts have drawn a distinction . . . betweena public official’s mere disobedience of a law for whicha legislator voted – which is not an injury in fact – andan official’s distortion of the process by which a billbecomes law by nullifying a legislator’s vote ordepriving a legislator of an opportunity to vote – whichis an injury in fact.” Id. at 135-36 (quotation marksomitted).

The importance of the presence of a potentialinternal legislative remedy makes sense, because thisconsideration is directly tied to federal separation-of-powers concerns. See, e.g., Leach v. Resolution TrustCorp., 860 F. Supp. 868, 875 (D.D.C. 1994) (stating thatcourts should be “reluctant to meddle in the internalaffairs of the legislative branch” due to separation-of-powers concerns). If a legislator has an adequate

much importance on this fact – makes Kucinich distinguishable onthat basis. Also, like in Raines, separation-of-powers concernsexisted in Kucinich, but do not exist here, further distancingKucinich from the issues presented by the instant dispute.

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internal remedy, he should not be challenging adecision of the legislature in an Article III court.Instead, he should work within his own legislature toenact a remedy. Those concepts are entirelyinapplicable here. The fact that Colorado votersenacted TABOR in 1992, with members of the ColoradoGeneral Assembly having no effective recourse tolegislatively prevent its passage or undo its effects,weighs heavily in favor of finding legislative standingin this case.

(5) Whether a Finding of No StandingWould Foreclose TABOR fromConstitutional Challenge

Without discussing the issue during most of thedecision, the Supreme Court at the end of the Rainesdecision also “note[d]” that its decision to denylegislative standing would not “foreclose[] the [LineItem Veto] Act from constitutional challenge (bysomeone who suffers judicially cognizable injury as aresult of the Act).” 521 U.S. at 829. The weight ofSupreme Court jurisprudence on this point, however,makes clear that this issue is irrelevant: standingcannot be found merely because there is no otherplaintiff who would have standing. See Valley ForgeChristian Coll. v. Ams. United for Separation of Church& State, Inc., 454 U.S. 464, 489 (1982) (“‘[T]heassumption that if respondents have no standing tosue, no one would have standing, is not a reason to findstanding.’ This view would convert standing into arequirement that must be observed only when satisfied.Moreover, we are unwilling to assume that injuredparties are nonexistent simply because they have notjoined respondents in their suit.”) (quoting Schlesinger,

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418 U.S. at 227); United States v. Richardson, 418 U.S.166, 179 (1974) (“It can be argued that if respondent isnot permitted to litigate this issue, no one can do so. Ina very real sense, the absence of any particularindividual or class to litigate these claims gives supportto the argument that the subject matter is committedto the surveillance of Congress, and ultimately to thepolitical process.”); see also State of Utah v. Babbitt,137 F.3d 1193, 1202 (10th Cir. 1998). Given thisprecedent, the Court declines to place any weight onthe possibility that if the Legislator-Plaintiffs weredenied standing, there might be no other plaintiff whowould have standing to bring an action in federal courtchallenging TABOR.

c. Conclusion on Injury in Fact

This action involves an alleged institutionallegislative injury asserted by legislators suing in theirofficial capacities, but who have not been authorized tobring this action on behalf of their respective legislativebodies. These factors are of considerable significance indetermining whether the Legislator-Plaintiffs havestanding to pursue this action.

It is there, however, that the similarity between thiscase and Raines ends. Unlike in Raines, this actioninvolves a concrete, though dispersed, injury. Also,unlike Raines, there are no separation-of-powersconcerns present in this case, concerns that lie at theheart of standing analysis. Moreover, given thecircumstances of this dispute, federalism concerns donot weigh against hearing this case. And finally, unlikein Raines, the Legislator-Plaintiffs here are withoutmeaningful legislative recourse. All of these factors,especially when considered together, weigh in favor of

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finding that the Legislator-Plaintiffs have standing topursue this action.

The Court therefore concludes that the Legislator-Plaintiffs have, at this early stage of the proceedings,advanced sufficient allegations of a cognizable injury infact sufficient to confer Article III standing.

5. Legislative Standing – Causation andRedressability

Having determined that the Legislator-Plaintiffshave sufficiently alleged injury in fact, the Court haslittle trouble concluding that the remaining causationand redressability elements for legislative standing arealso met at the pleading stage. Lujan, 504 U.S. at 561.Plaintiffs have sufficiently alleged that the passage ofTABOR and resulting amendment of the ColoradoConstitution directly and proximately caused the harmof which Plaintiffs complain: the removal of theColorado General Assembly’s power to raise tax ratesor impose new taxes without separate voter approval.(ECF No. 36, ¶¶ 1, 6-8.) See also Colo. Const. art. X,§ 20, cls. (2)(b), (4)(a). Thus, as Plaintiffs also allege, itwould appear to easily follow that the invalidation ofTABOR would remove the requirement that a tax rateincrease or new tax passed by the General Assemblyobtain separate voter approval prior to becoming law.See Sierra Club v. Young Life Campaign, Inc., 176 F.Supp. 2d 1070, 1084-85 (D. Colo. 2001) (acceptinggeneral allegations of causation and redressability atthe pleading stage); Am. Tradition Inst., --- F. Supp. 2d---, 2012 WL 2899064, at *7 (same).

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The Court therefore concludes that, at this stage ofthe litigation, the Legislator-Plaintiffs haveconstitutional standing.

6. Prudential Standing of Legislator-Plaintiffs

Neither in the Motion to Dismiss nor in the Replybrief does Defendant specifically argue that the Courtshould dismiss this action based on prudentialstanding principles. Defendant’s Supplemental Brief,however, contains a brief section arguing thatdismissal is warranted based on the prudentialstanding principle that federal courts should refrainfrom resolving “abstract questions of wide publicsignificance.” (ECF No. 73, at 23-24.)

“Beyond the constitutional requirements [forstanding], the federal judiciary has also adhered to aset of prudential principles that bear on the question ofstanding.” Valley Forge Christian Coll., 454 U.S. at474; see also Allen, 468 U.S. at 751 (describingprudential standing principles as “judicially self-imposed limits on the exercise of federal jurisdiction”).First, “when the asserted harm is a ‘generalizedgrievance’ shared in substantially equal measure by allor a large class of citizens, that harm alone normallydoes not warrant exercise of jurisdiction.” Warth, 422U.S. at 499. Second, “even when the plaintiff hasalleged injury sufficient to meet the ‘case orcontroversy’ requirement, . . . the plaintiff generallymust assert his own legal rights and interests, andcannot rest his claim to relief on the legal rights orinterests of third parties.” Id. And third, “the interestsought to be protected [must be] arguably within thezone of interests to be protected or regulated by thestatute or constitutional guarantee in question.” See

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Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397U.S. 150, 153 (1970). See also Allen, 468 U.S. at 751(summarizing all three prudential standing principles).

The prudential standing principle that federalcourts should refrain from resolving “abstract questionsof wide public significance” – the basis on whichDefendant tardily seeks dismissal – might arguably beapplicable to Plaintiffs’ claim that they have standingas citizens of Colorado. However, the Court declines toreach the issue of whether Plaintiffs as citizens havestanding in that capacity. (See infra.) In terms of theLegislator-Plaintiffs (five of whom have brought thisaction and where there are a total of 100 members ofthe Colorado General Assembly), the Court declines todismiss this action based on the prudential standingprinciple barring adjudication of “abstract questions ofwide public significance.” Accepting the OperativeComplaint’s allegations as true, TABOR was an actiontargeted at the 100-member General Assembly. Theinjury alleged by the Legislator-Plaintiffs is not a“generalized grievance shared in substantially equalmeasure by all or a large class of citizens.” Warth, 422U.S. at 499 (emphasis added); see also Akins, 524 U.S.at 23 (“Whether styled as a constitutional or prudentiallimit on standing, the Court has sometimes determinedthat where large numbers of Americans suffer alike,the political process, rather than the judicial process,may provide the more appropriate remedy for a widelyshared grievance.”) (emphasis added). The prudentialstanding principle barring adjudication of “generalizedgrievances” or “abstract questions of wide publicsignificance” does not apply to the Legislator-Plaintiffs’claims.

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Likewise, no other prudential standing principlebars this action, and Defendant has not asserted asmuch. First, the principle prohibiting a litigant fromraising another person’s legal rights does not apply.The Operative Complaint’s allegations, accepted astrue, indicate that TABOR was directly targeted attaking away the power of members of the GeneralAssembly to independently enact tax legislation. SeeLujan, 504 U.S. at 561-62 (“[If] the plaintiff is himselfan object of the action (or forgone action) at issue . . .,there is ordinarily little question that the action orinaction has caused him injury, and that a judgmentpreventing or requiring the action will redress it.”).And second, the zone of interests test does not bar thisaction, at least at this early stage of the proceedings. Interms of that test, the Court has found little to no caselaw authority indicating who falls within the zone ofinterests intended to be protected by the GuaranteeClause and Enabling Act. See Largess v. SupremeJudicial Court for the State of Mass., 373 F.3d 219, 228n.9 (1st Cir. 2004) (citing authorities discussingquestion of whether the Guarantee Clause confersjudicially cognizable rights on individuals as well asstates). As to the Supremacy Clause, the Tenth Circuitrecently declined to decide who falls within the zone ofinterests test, but pointed to case law from otherCircuits in which courts held that consideration ofprudential standing is unnecessary in SupremacyClause challenges. See Wilderness Soc’y v. Kane Cnty.,Utah, 632 F.3d 1162, 1170 (10th Cir. 2011) (citingcases). Given the lack of precedent, the Court will erron the side of finding that the zone-of-interests test ismet here. See Match-E-Be-Nash-She-Wish Band ofPottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210(2012) (stating that the zone of interests prudential

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standing test “is not meant to be especially demanding”and that “we have always conspicuously included theword ‘arguably’ in the test to indicate that the benefitof the doubt goes to the plaintiff”) (quotation marksomitted).

On these grounds, the Court concludes thatprudential standing principles do not bar theLegislator-Plaintiffs at this stage of the proceedings.

7. Standing of Other Plaintiffs

Because the Court holds that the Legislator-Plaintiffs have standing to pursue this action, theCourt need not, and declines to, address whether anyother Plaintiffs have standing. See Village of ArlingtonHeights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264& n.9 (1977) (“[Because] we have at least oneindividual plaintiff who has demonstrated standing . . .,we need not consider whether the other individual andcorporate plaintiffs have standing to maintain thesuit.”); Sec’y of the Interior v. California, 464 U.S. 312,319 n.3 (1984) (“Since the State of California clearlydoes have standing, we need not address the standingof the other respondents, whose position here isidentical to the State’s.”); cf. Horne v. Flores, 129 S. Ct.2579, 2592 (2009) (“Because the superintendent clearlyhas standing to challenge the lower courts’ decisions,we need not consider whether the Legislators also havestanding to do so.”).30

30 See also U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 729 (1990);Bowsher v. Synar, 478 U.S. 714, 721 (1986); Watt v. Energy ActionEduc. Found., 454 U.S. 151, 160 (1981).

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B. The Political Question Doctrine

Defendants also argue that the political questiondoctrine bars all of Plaintiffs’ claims brought in theOperative Complaint.

1. General Rules Regarding the PoliticalQuestion Doctrine

“The political question doctrine excludes fromjudicial review those controversies which revolvearound policy choices and value determinationsconstitutionally committed for resolution to the halls ofCongress or the confines of the Executive Branch.”Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.221, 230 (1986); see also United States v. Munoz-Flores,495 U.S. 385, 394 (1990) (stating that the politicalquestion doctrine “is designed to restrain the Judiciaryfrom inappropriate interference in the business of theother branches of Government”); Baker v. Carr, 369U.S. 186, 210 (1962) (“The nonjusticiability of apolitical question is primarily a function of theseparation of powers.”). The basis for the doctrine isthat “courts are fundamentally underequipped toformulate national policies or develop standards formatters not legal in nature.” Japan Whaling, 478 U.S.at 230 (quotation marks omitted). It is a “judiciallycreated” doctrine (not an express constitutional orstatutory provision), In re Nazi Era Cases AgainstGerman Defendants Litig., 196 F. App’x 93, 97 (3d Cir.2006), having its roots in case law dating back toMarbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

The six widely recognized tests for determiningwhether a particular case presents a non-justiciable

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political question come from Baker v. Carr, 369 U.S.186 (1962). There, the Court stated,

It is apparent that several formulations whichvary slightly according to the settings in whichthe questions arise may describe a politicalquestion, although each has one or moreelements which identify it as essentially afunction of the separation of powers. Prominenton the surface of any case held to involve apolitical question is found [1] a textuallydemonstrable constitutional commitment of theissue to a coordinate political department; or[2] a lack of judicially discoverable andmanageable standards for resolving it; or [3] theimpossibility of deciding without an initial policydetermination of a kind clearly for nonjudicialdiscretion; or [4] the impossibility of a court’sundertaking independent resolution withoutexpressing lack of the respect due coordinatebranches of government; or [5] an unusual needfor unquestioning adherence to a politicaldecision already made; or [6] the potentiality ofe m b a r r a s s m e n t f r o m m u l t i f a r i o u spronouncements by various departments on onequestion.

Id. at 217 (bolded numbering added by this Court). TheBaker Court continued,

Unless one of these formulations is inextricablefrom the case at bar, there should be nodismissal for non-justiciability on the ground ofa political question’s presence. The doctrine ofwhich we treat is one of ‘political questions,’ notone of ‘political cases.’ The courts cannot reject

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as ‘no law suit’ a bona fide controversy as towhether some action denominated ‘political’exceeds constitutional authority.

Id. Baker further emphasized, “The cases we havereviewed show the necessity for discriminating inquiryinto the precise facts and posture of the particular case,and the impossibility of resolution by any semanticcataloguing.” Id.; see also id. at 210-11 (“Muchconfusion results from the capacity of the ‘politicalquestion’ label to obscure the need for case-by-caseinquiry. Deciding whether [the political questiondoctrine applies] is itself a delicate exercise inconstitutional interpretation . . . .”); id. at 210 (“theattributes of the [political question] doctrine . . . invarious settings, diverge, combine, appear, anddisappear in seeming disorderliness”).

2. The Guarantee Clause Claim and thePolitical Question Doctrine

a. Summary of Parties’ ArgumentsRegarding the Political QuestionDoctrine’s Applicability to Plaintiffs’Guarantee Clause Claim

The parties’ arguments, particularly those ofDefendant, regarding the applicability vel non of thepolitical question doctrine to this action focus onPlaintiffs’ First Claim for Relief in the OperativeComplaint, the Guarantee Clause Claim. Plaintiffs’Guarantee Clause claim alleges that, “[b]y removingthe taxing power of the General Assembly, the TABORamendment renders the Colorado General Assemblyunable to fulfill its legislative obligations under aRepublican Form of Government and violates the

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guarantee of Article IV, Section 4 . . . .” (ECF No. 36,¶ 82.)

In moving to dismiss Plaintiffs’ Guarantee Clauseclaim, Defendant argues that this case is directly onpoint with Pacific States Telephone & Telegraph Co. v.State of Oregon, 223 U.S. 118 (1912), a U.S. SupremeCourt case holding that a Guarantee Clause challengeto Oregon’s ballot initiative system was barred by thepolitical question doctrine. Defendant also argues thatall of the six tests identified in Baker v. Carr forwhether a case presents a non-justiciable politicalquestion are met here.

In response, Plaintiffs (and the amici Professors)argue that Pacific States is distinguishable, becausethat case involved a challenge to Oregon’s entire ballotinitiative process, while this case presents a farnarrower challenge to only one particular measurepassed by Colorado voters pursuant to their power ofinitiative. Plaintiffs (and amici Professors) also arguethat none of the six Baker tests are met here.

b. The History of the Application of thePolitical Question Doctrine toGuarantee Clause Claims, and WhetherSuch Claims Are Per Se Non-Justiciable

The United States Supreme Court’s most recentpronouncement regarding the applicability of thepolitical question doctrine to Guarantee Clause claimscame in 1992 in New York v. United States, 505 U.S.144 (1992). There, the Court reviewed the history ofcourt decisions and other sources addressing the issueof whether Guarantee Clause claims are barred by thepolitical question doctrine. Id. at 184-85. The Court

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first pointed out a substantial line of cases, beginningwith Luther v. Borden, 48 U.S. 1 (1849), that“metamorphosed into the sweeping asssertion” thatGuarantee Clause claims are per se non-justiciable.New York, 505 U.S. at 184.31 The Court then pointedout other cases (decided between 1875 and 1905) inwhich courts “addressed the merits of claims foundedon the Guarantee Clause without any suggestion thatthe claims were not justiciable.” Id. at 184-85. Further,the Court indicated that more recent authority“suggest[s] that perhaps not all claims under theGuarantee Clause present nonjusticiable politicalquestions.” Id. at 185 (citing, inter alia, Reynolds v.Sims, 377 U.S. 533 (1964)). Ultimately, the Court didnot resolve the question, stating, “We need not resolvethis difficult question today. Even if we assume thatpetitioners’ claim is justiciable, [it ultimately lacksmerit].” Id.

This Court proceeds to conduct its own, albeit non-exhaustive, historical analysis of the case law on thetopic. In Luther v. Borden, 48 U.S. 1 (1849) (“Luther”),the Supreme Court was asked to decide whether thecharter government of Rhode Island, or a competingfaction, was the legitimate government of RhodeIsland. The Court ultimately held that the case couldnot be heard in the courts because “it rests withCongress to decide what government is the establishedone in a State. For as the United States guarantee toeach State a republican government, Congress mustnecessarily decide what government is established in

31 Also citing Pacific States, 223 U.S. 118; Colegrove v. Green, 328U.S. 549 (1946); Baker, 369 U.S. 186; and City of Rome v. UnitedStates, 446 U.S. 156 (1980).

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the State before it can determine whether it isrepublican or not.” Id. at 42. The Luther Court alsopointed out that the President had already recognizedthe charter government by agreeing to assist it withmilitary force if the need should arise, and that courtsin Rhode Island had also recognized the chartergovernment’s authority. Id. at 40, 43-44. The LutherCourt further emphasized, among other things, thatthere were no judicially manageable standards toresolve the dispute, and that the Court was beingasked to make a political decision. Id. at 41.

New York emphasized that the “limited” holding inLuther – that it rests with Congress to decide whatgovernment is the established one in a state –subsequently began “metamorphos[izing] into thesweeping assertion” that Guarantee Clause claims areper se non-justiciable. New York, 505 U.S. at 184; seealso Akhil Reed Amar, The Central Meaning ofRepublican Government: Popular Sovereignty, MajorityRule, and the Denominator Problem, 65 U. Colo. L. Rev.749, 753 (1994) (“[T]he hoary case said to establish thegeneral nonjusticiability of the [Guarantee] Clause,Luther v. Borden, in fact establishes no suchthing . . . .”).

The next significant U.S. Supreme Court decision inthis area is Pacific States Telephone & Telegraph Co. v.State of Oregon, 223 U.S. 118 (1912) (“Pacific States”).This is the case focused on most heavily by the parties,with Defendant arguing that the case is on point, andPlaintiffs arguing that it is distinguishable. In thatcase, Pacific States Telephone & Telegraph Co.challenged a corporate tax passed by voter initiative.Through the framing of the issues, the U.S. Supreme

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Court was asked to decide whether Oregon’s entirevoter initiative system violated the Guarantee Clause.The Court in Pacific States analyzed the Luther opinionand concluded that “[i]t was long ago settled that theenforcement of th[e] guaranty [of a republican form ofgovernment] belonged to the political department.” Id.at 149. Applying Luther, the Court continued,

[The] essentially political nature [of the attackon the statute here] is at once made manifest byunderstanding that the assault which thecontention here advanced makes is not on thetax as a tax, but on the state as a state. It isaddressed to the framework and politicalcharacter of the government by which thestatute levying the tax was passed. It is thegovernment, the political entity, which (reducingthe case to its essence) is called to the bar of thiscourt, not for the purpose of testing judiciallysome exercise of power . . . but to demand of thestate that it establish its right to exist as a state,republican in form.

Id. at 150-51. Based on this rationale, the Court heldthat the challenge to Oregon’s ballot initiative systempresented a non-justiciable political question. Id. at151.

In Colegrove v. Green, 328 U.S. 549 (1946)(“Colgrove”), the Supreme Court was asked to intervenein a dispute regarding the apportionment of legislativedistricts within Illinois. The Court held that the issuewas political and non-justiciable. “To sustain thisaction would cut very deep into the very being ofCongress. Courts ought not to enter this politicalthicket. The remedy for unfairness in districting is to

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secure State legislatures that will apportion properly,or to invoke the ample powers of Congress.” Id. at 556.Citing to Pacific States, the Court in Colegrove againenunciated the broad rule called into question in NewYork: “Violation of the great guaranty of a republicanform of government in States cannot be challenged inthe courts.” Id.

The next case discussing the justiciability ofGuarantee Clause claims is the foundational case forthe political question doctrine, Baker v. Carr, 369 U.S.186 (1962) (“Baker”).32 There, the Court laid out the six(now widely recognized) tests for whether a casepresents a non-justiciable political question. Id. at 217.The Court also repeatedly emphasized that the facts ofeach case must be scrutinized in determiningjusticiability. See id. (“The cases we have reviewedshow the necessity for discriminating inquiry into theprecise facts and posture of the particular case, and theimpossibility of resolution by any semanticcataloguing.”). After reviewing other subject areas, theCourt addressed Guarantee Clause cases, discussingLuther and its progeny, and stating that “the Court hasconsistently held that a challenge to state action basedon the Guaranty Clause presents no justiciablequestion . . . .” Id. at 224; see generally id. at 218-26.There is language in Baker indicating the Court’sbelief, based on precedent, that Guarantee Clauseclaims are per se non-justiciable. See id. at 226-27(“[T]he appellants might conceivably have added aclaim under the Guarantee Clause. Of course, as wehave seen, any reliance on that clause would be

32 Notably, Baker held to be justiciable the same type of claim –legislative apportionment – that was at issue in Colegrove.

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futile.”). However, there is other language to thecontrary. See id. at 222 n. 48 (“Even though the[Luther] Court wrote of unrestrained legislative andexecutive authority under this Guaranty, thus makingits enforcement a political question, the Court plainlyimplied that the political question barrier was no[t]absolute . . . .”). Further, it is important to note thatBaker involved an equal protection claim, not aGuarantee Clause claim, so the Court’s discussion ofGuarantee Clause cases, albeit detailed, is clearlydicta. Nevertheless, Baker is much more widelyrecognized for setting forth the six governing tests fordetermining whether a particular claim presents a non-justiciable political question.

Between the Baker decision in 1962 and the 1992New York decision, the Supreme Court did not addressin detail the justiciability of Guarantee Clause cases.Two years after the Baker decision, the Court inReynolds v. Sims, 377 U.S. 533 (1964), cited Baker andstated, “some questions raised under the GuarantyClause are nonjusticiable, where [they are] ‘political’ innature and where there is a clear absence of judiciallymanageable standards.” Id. at 582 (emphasis added).This is the case cited by the New York Court for theproposition that “[m]ore recently, the Court hassuggested that perhaps not all claims under theGuarantee Clause present nonjusticiable politicalquestions.” 505 U.S. at 185.

That brings this Court back to the Supreme Court’smost recent pronouncement of the issue in New York,in which the Supreme Court called into question thecases adopting a per se rule that Guarantee Clauseclaims are not justiciable. In addition to looking at

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controlling precedent from the U.S. Supreme Court,this Court also looks for binding precedent from theTenth Circuit. Significantly, two recent Tenth Circuitdecisions have discussed the fact that New York calledinto question the idea that Guarantee Clause claimsare per se non-justiciable. In Kelley v. United States, 69F.3d 1503 (10th Cir. 1995), the Tenth Circuit describedthe New York decision, pointing out that “there hasbeen some belief that violations of the GuaranteeClause cannot be challenged in the courts,” but alsopointing out that “it has [been] suggested, in morerecent opinions, that this belief may be incorrect.” Id.at 1510. Like New York, the Court in Kelley did notresolve the issue: “Assuming, without deciding, thatplaintiffs’ claim is justiciable, there appears to be nomerit to it.” Id. at 1511. Then, in Hanson v. Wyatt, 552F.3d 1148 (10th Cir. 2008), the Tenth Circuit brieflyidentified Colegrove’s holding that Guarantee Clauseclaims cannot be raised in court, and then stated, “[t]heNew York court, however, was not so sure about that.It decided not to resolve the matter on justiciabilitygrounds. Rather, it assumed justiciability and rejectedthe claim on the merits.” Id. at 1163 (emphasis inoriginal).33

33 It is notable that many courts, like New York, Kelley, andHanson, have resolved cases on the merits rather than having toresolve the difficult question of whether any Guarantee Clauseclaims are justiciable, and if some are, which types of claims. See,e.g., City of New York v. United States, 179 F.3d 29, 37 (2d Cir.1999) (citing New York, and stating, “Even assuming thejusticiability of this [Guarantee Clause] claim, [it lacks merit].”);United States v. Vazquez, 145 F.3d 74, 83 (2d Cir. 1998) (same);Adams v. Clinton, 90 F. Supp. 2d 27, 34 (D.D.C. 2000) (same); seealso State of Michigan v. United States, 40 F.3d 817, 837 (6th Cir.

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c. Discussion of Whether a Per Se RuleWould Be Properly Applied, andWhether Pacific States Controls, in thisAction

New York, Kelley, and Hanson provide little to noguidance to this Court regarding whether the politicalquestion doctrine bars the particular Guarantee Clauseclaim being raised in this action, a claim based onunique allegations involving TABOR and its effects.However, given this recent U.S. Supreme Court andTenth Circuit case law seriously calling into questionthe propriety of applying a per se rule of non-justiciability in Guarantee Clause cases, the Courtdetermines that it cannot summarily conclude thatPlaintiffs’ Guarantee Clause claim is per se non-justiciable. See Trimble v. Gordon, 430 U.S. 762, 776

1994) (Guy, J., dissenting) (“I hesitate to reach the substantivequestion of the Guarantee Clause’s effect on federal taxation. . . .The district court did not reach plaintiffs’ main arguments, for itconcluded that this was a nonjusticiable issue. . . . Just as theSupreme Court has declined to answer this difficult question, seeNew York . . ., I would decline here. I would leave it to the SupremeCourt in the first instance to enter this constitutional thicket.”).

Indeed, if possible, courts should “adhere to [the] wise policy ofavoiding the unnecessary adjudication of difficult questions ofconstitutional law.” See Town of Castle Rock, Colo. v. Gonzales, 545U.S. 748, 778 (2005). This consideration, alone, would not warrantallowing this case to proceed past the pleading stage into theburdensome discovery process. However, independent of thisconsideration, the Court concludes below that it is not appropriateto dismiss this action as non-justiciable at this early stage of theproceedings. Given that the case will proceed to the summaryjudgment stage, the Court notes that it may be able to resolve thecase on the merits at that stage, rather than having to address thisdifficult constitutional question.

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n.17 (1977) (“To the extent that our analysis in thiscase differs from [a previous case] the more recentanalysis controls.”); Peoples v. CCA Detention Ctrs., 422F.3d 1090, 1102 (10th Cir. 2005) (“We . . . think itprudent to follow the Court’s most recentpronouncement on the issue.”).

The Court concludes that Pacific States is notcontrolling here. The way the issues were framed inPacific States led the Court there to consider whetherthe entire voter initiative system in Oregon violatedthe Guarantee Clause. Similarly, Defendant in thiscase tries to characterize Plaintiffs’ Guarantee Clauseclaim as challenging the entire initiative process inColorado. (See, e.g., ECF No. 18, at 2 (“[W]hile[Plaintiffs’] policy preferences lead them to focus theirire on one particular instance of direct democraticparticipation in Colorado, the Taxpayers’ Bill of Rights,their arguments ultimately would require the Court tohold unconstitutional all forms of direct citizenlawmaking.”). So framed, Defendant has little troublearguing that Pacific States controls. Indeed, the Courtwould agree that it would be appropriate to applyPacific States in an action brought under theGuarantee Clause challenging Article V, Section 1,Clause 2 of the Colorado Constitution, the clausereserving in Colorado voters the power of the initiativeprocess.

This action, however, seeks not the invalidation ofColorado’s ballot initiative system. Plaintiffs, in fact,seek only to invalidate one particular measure passedvia the Colorado voter initiative process: TABOR. (SeeECF No. 36, at 20-21 (prayer for relief seekinginvalidation of the “TABOR AMENDMENT”).)Invalidating Article X, Section 20 of the Colorado

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Constitution will in no way affect Colorado voters’power of initiative codified in Article V, Section 1 ofthat Constitution. The Court cannot conclude that achallenge to the effects of TABOR itself should beequated with a challenge to the entire voter initiativeprocess, at least at this stage of the proceedings, merelybecause both involve questions regarding how power isto be divided between the General Assembly and theColorado electorate. While Pacific States has languagethat one can argue should be similarly applied to thepower struggle involved here, the Court declines toread Pacific States that broadly.

Given that the Court declines to adopt a per se ruleof non-justiciability in Guarantee Clause cases, andgiven that Pacific States is not controlling, the Courtfinds it appropriate to apply the widely-recognizedBaker tests to determine whether Plaintiffs’ GuaranteeClause claim is barred by the political questiondoctrine. See Baker, 369 U.S. at 217 (“The cases wehave reviewed show the necessity for discriminatinginquiry into the precise facts and posture of theparticular case, and the impossibility of resolution byany semantic cataloguing.”).34

34 Indeed, both Plaintiffs and Defendant, and the amici Professors,conduct a thorough review of the Baker tests. (See ECF No. 18, 7-11; ECF No. 30, at 29-33; ECF No. 51, at 18-24; ECF No. 61, at 12-16.) At the very least this suggests Defendant’s agreement that, ifthere is no per se rule of non-justiciability in political questioncases, and if Pacific States does not govern, then the Baker testsshould be applied.

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d. The Baker Tests

(1) “A textually demonstrableconstitutional commitment of theissue to a coordinate politicaldepartment”35

Addressing the first Baker test of whether there is“a textually demonstrable constitutional commitmentof the issue to a coordinate political department,”Defendant argues that there is a textuallydemonstrable commitment of Guarantee Clausedisputes to a coordinate political department, namely,Congress. (ECF No. 51, at 18-19.) Defendant purportsto support that argument by citing to Luther andPacific States, arguing that “[t]he Supreme Court haslong been clear that the question of what constitutes arepublican form of government is committed toCongress.” (Id. at 19.) But “textually demonstrable”means demonstrable from the text of the constitutionitself, not from case law interpreting the constitutionaltext. See Nixon v. United States, 506 U.S. 224, 228(1993) (“[C]ourts must, in the first instance, interpretthe text in question and determine whether and to

35 Some recent Supreme Court decisions have only identified thefirst two Baker tests in describing the test for whether the politicalquestion doctrine applies in a particular case, suggesting theimportance of the first two tests. See Zivotofsky ex rel. Zivotofskyv. Clinton, 132 S. Ct. 1421, 1427 (2012) (“[A] controversy involvesa political question where there is a textually demonstrableconstitutional commitment of the issue to a coordinate politicaldepartment; or a lack of judicially discoverable and manageablestandards for resolving it.”) (quotation marks and ellipses omitted);Clinton v. Jones, 520 U.S. 681, 700 n.34 (1997) (same); Nixon v.United States, 506 U.S. 224, 228 (1993) (same).

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what extent the issue is textually committed [to acoordinate branch of government].”) (emphasis added);Powell, 395 U.S. at 519-20 (“In order to determinewhether there has been a textual commitment to acoordinate department of the Government, we mustinterpret the Constitution.”). The language in case lawprecedent, even from the U.S. Supreme Court, does notmake the commitment of an issue to a coordinatebranch of government “textually demonstrable.”

Although Defendant also baldly argues that “[t]hetext of the Guarantee Clause . . . definitively commit[s]this question to Congress,” that assertion is not correct.Again, the Guarantee Clause provides, “The UnitedStates shall guarantee to every State in this Union aRepublican Form of Government . . . .” The implicationin the Guarantee Clause that the “United States” willenforce this guarantee of a republican form ofgovernment in no way specifies whether enforcementwill lie in the Legislative, Executive, or JudicialDepartment of the U.S. government. See Wang v.Masaitis, 416 F.3d 992, 996 (9th Cir. 2005) (statingthat there was no textually demonstrable commitmentto a coordinate political branch because “the text [inquestion] is silent” regarding any such commitment);cf. Nixon, 506 U.S. at 229-36 (holding thatconstitutional clause providing that “[t]he Senate shallhave the sole Power to try all Impeachments”constituted a textually demonstrable commitment ofthat issue to the Senate). Also, importantly, theGuarantee Clause is included within Article IV of theConstitution, the Article entitled “The States.” Thus, itdoes not fall under Article I (specifying Congress’spowers), Article II (specifying the Executive’s powers),or Article III (specifying the Judiciary’s powers).

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Plainly, there is no textually demonstrablecommitment of this issue to Congress or to theExecutive Department. Thus, this Baker test is not metand does not indicate the political question doctrine’sapplicability to this case.

(2) “A lack of judicially discoverableand manageable standards forresolving [the issue]”

The second Baker test, asking whether there arejudicially discoverable and manageable standards forresolving a plaintiff’s claim, gives this Court somepause.

As previously discussed, the U.S. Supreme Courthas focused on the justiciability of Guarantee Clausechallenges, providing little guidance to lower courtsregarding actual standards for resolving GuaranteeClause claims on the merits. Also, in Largess v.Supreme Judicial Court for the State of Mass., 373 F.3d219 (1st Cir. 2004), the First Circuit pointed out that“scholars have interpreted . . . the Guarantee Clause innumerous, often conflicting, ways.” Id. at 226 (citingvarious law review articles). The Largess Court alsonoted that “John Adams himself, twenty years afterratification of the Constitution, confessed that he ‘neverunderstood’ what the Guarantee Clause meant andthat he ‘believ[ed] no man ever did or ever will.’” Id. at226-27 (citing letter written by Adams in 1807).However, the Largess Court ultimately found sufficientstandards for interpreting the Guarantee Clause,concluding that the plaintiffs’ Guarantee Clausechallenge in that case lacked merit. See id. at 227-29.Notably, the Independence Institute’s amicus briefargues the merits of Plaintiffs’ Guarantee Clause

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claim, indicating its belief that there are sufficientlyclear standards for dismissing Plaintiffs’ GuaranteeClause claim on the merits. (ECF No. 21-1.) See alsoZivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421,1428 (2012) (stating that the judicially manageablestandards for determining the constitutionality of thestatute in question were evidenced by the detailed legalarguments made by both sides on the issue).

However, the foregoing discussion of this Baker testreflects the fact that the discussion is premature at thisstage of the litigation. Resolving the issue of whetherthere are judicially discoverable and manageablestandards for determining the merits of Plaintiffs’Guarantee Clause claim would necessarily require thisCourt to begin to wade into the merits of this dispute.Indeed, in Largess, the court stated, “[R]esolving theissue of justiciability in the Guarantee Clause contextmay also turn on the resolution of the merits of theunderlying claim.” 373 F.3d at 225. For obviousreasons, the Court declines to address the merits ofPlaintiffs’ Guarantee Clause claim based merely on thepleadings filed in this action. See Shakman v.Democratic Org. of Cook Cnty., 435 F.2d 267, 271 (7thCir. 1970) (“We do not view [the aforementioned]difficulties . . . as demonstrating ‘a lack of judiciallydiscoverable and manageable standards for resolving’the case or as requiring, at the pleading stage, adecision that plaintiffs’ claim is not justiciable.”);Holtzman v. Richardson, 361 F. Supp. 544, 551(E.D.N.Y. 1973) (declining to evaluate whether therewere judicially discoverable and manageable standards

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for resolving a dispute because “the issue arises on amotion to dismiss the complaint on its face”).36

At this early stage of the proceedings, the Courtcannot resolve the issue of whether there will bejudicially discoverable and manageable standards forevaluating Plaintiffs’ Guarantee Clause claim. At thevery least, the Court is comfortable at this early stagein concluding that this Baker test is not “inextricablefrom” this case. See Baker, 369 U.S. at 217 (“Unless oneof these formulations is inextricable from the case atbar, there should be no dismissal for non-justiciabilityon the ground of a political question’s presence.”).

(3) “The impossibility of decidingwithout an initial policydetermination of a kind clearly fornonjudicial discretion”

The third Baker test asks whether it is possible fora court to resolve a plaintiff’s claim “without [making]an initial policy determination of a kind clearly fornonjudicial discretion.”

As to this test, Defendant’s argument focusesentirely on Plaintiffs’ motives in bringing this action –that Plaintiffs only brought this particular action

36 See generally United Steelworkers of Am. v. Or. Steel Mills, Inc.,322 F.3d 1222, 1229 (10th Cir. 2003) (“Defendants . . . outline whatmust be proven to ultimately succeed on the merits, and not whatis required at the pleading stage.”); Enriques v. Noffsinger Mfg.Co., Inc., 412 F. Supp. 2d 1180, 1183 (D. Colo. 2006) (“[Defendant’s]argument, while perhaps appropriate at the merits stage with thebenefit of discovery, is insufficient to dismiss the claim at thepleading stage, where a plaintiff’s well-pleaded allegations must beaccepted as true.”).

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because of their own values and judgments thatTABOR is bad public policy. (ECF No. 18, at 8-9; ECFNo. 51, at 20-21.) However, notwithstanding Plaintiffs’personal motivations for bringing this particularaction, this Baker test concerns whether the Court itselfwill be required to make a policy determination inresolving the claims. The question of whether TABORviolates Colorado’s obligation to maintain a republicanform of government is a question requiringinterpretation of the Guarantee Clause. A court’sinterpretation of the Constitution does not constitute apolicy determination, but instead a legal determinationthat courts are well-positioned to resolve. See Marbury,5 U.S. (1 Cranch) at 177 (“It is emphatically theprovince and duty of the judicial department to saywhat the law is.”); Powell, 395 U.S. at 548 (in findingthe political question doctrine inapplicable, the Courtstated that resolving the claim at issue “would requireno more than an interpretation of the Constitution.Such a determination falls within the traditional roleaccorded courts to interpret the law . . . .”).

That makes this case entirely distinguishable fromthe types of cases involving non-justiciable policydeterminations soundly committed to the politicalbranches of government. See, e.g., Schroder v. Bush,263 F.3d 1169, 1774 (10th Cir. 2001) (“Appellants’request that courts maintain market conditions,oversee trade agreements, and control currency . . .would require courts to make [non-justiciable] policydeterminations . . . .”); Ad Hoc Comm. on JudicialAdmin. v. Commonwealth of Massachusetts, 488 F.2d1241, 1245 (1st Cir. 1973) (finding non-justiciable apolicy determination regarding the financing of thejudicial branches, an issue that has “been left to the

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people, through their legislature”); Orlando v. Laird,443 F.2d 1039, 1044 (2d Cir. 1971) (in actionchallenging war in Vietnam, court stated, “[D]ecisionsregarding the form and substance of congressionalenactments authorizing hostilities are determined byhighly complex considerations of diplomacy, foreignpolicy and military strategy inappropriate to judicialinquiry.”).

The Court thus finds that the third Baker test doesnot apply to the case at bar.

(4) “The impossibility of a court’sundertaking inde pe n dentresolution without expressinglack of the respect due coordinatebranches of government”

The fourth Baker test requires the Court to considerwhether it is possible to undertake resolution of thisaction “without expressing lack of the respect duecoordinate branches of government.”

As to this test, Defendant first argues that theCourt’s consideration of Plaintiffs’ Guarantee Clauseclaim would express a lack of respect due to the U.S.Congress. (ECF No. 18, at 9; ECF No. 51, at 22-23.) Insupport of that argument, Defendant cites cases inwhich courts have held that questions arising underthe Guarantee Clause are to be decided by Congress,not the federal Judiciary. (Id.) However, the Court hasalready determined that, at this early stage of theproceedings, it is not appropriate to apply those cases’per se rules of non-justiciability. Thus, there is still aquestion whether Plaintiffs’ Guarantee Clause claimcan be decided by the Court, or whether the decision

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should be deferred to Congress. Further, the Courtagain finds it of some import that TABOR has been ineffect for nearly twenty years, and the Court is notaware of Congress ever having taken a position onTABOR’s constitutionality. While silence could indicateapproval, the Court cannot so presume. See Hanson v.Wyatt, 552 F.3d 1148, 1164 (10th Cir. 2008) (“It may beworth noting that neither New York’s treatment of theGuarantee Clause issue in that case nor our resolutionof [this case] is likely to raise any concern in thepolitical branches about the courts’ violating theirturf.”).

Defendant also argues that this Court should deferto decisions of the Colorado Supreme Court which haveaddressed TABOR: Zaner v. City of Brighton, 917 P.2d280 (Colo. 1996) (“Zaner”), and Bickel v. City ofBoulder, 885 P.2d 215 (Colo. 1994) (“Bickel”). (ECF No.51, at 22; see also ECF No. 18, at 11.) If the ColoradoSupreme Court had addressed a Guarantee Clausechallenge to TABOR, this Court would now likely deferto that Court’s interpretation of the U.S. Constitution.See Trans Shuttle, Inc. v. Pub. Utils. Comm’n, 24 F.App’x 856, 859 (10th Cir. 2001) (“One of thefundamental policies underlying the Younger doctrineis the recognition that state courts are fully competentto decide federal constitutional questions.”). However,in neither Zaner nor Bickel did the Colorado SupremeCourt consider whether TABOR violated the U.S.Constitution’s Guarantee Clause, whether TABORviolated the requirement that Colorado maintain arepublican form of government, or even more generallywhether TABOR is constitutional under either the U.S.Constitution or Colorado Constitution. Instead, Bickelmerely stated (a passage repeated by Zaner) that

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TABOR “is a perfect example of the people exercisingtheir initiative power to enact laws in the specificcontext of state and local government finance, spendingand taxation.” Bickel, 885 P.2d at 226; Zaner, 917 P.2dat 284. These cases’ statements that TABOR is a“perfect example” of the Colorado electorate’s exerciseof its initiative power does not speak to the issue ofwhether that particular exercise of the initiative powerin 1992 resulted in a violation of the Guarantee Clause,the issue presented in this case.

And finally, Defendant suggests that this Courtmust defer to the will of the Colorado electorate itselfin enacting TABOR. As a foundational matter, thepolitical question doctrine’s applicability in a particularcase is lessened or eradicated when the actionchallenges an act of a state. See Baker, 369 U.S. at 210(“[I]n the Guaranty Clause cases and in the other‘political question’ cases, it is the relationship betweenthe judiciary and the coordinate branches of theFederal Government, and not the federal judiciary’srelationship to the States, which gives rise to the‘political question.’”); L.A. Cnty. Bar Ass’n v. Eu, 979F.2d 697, 701-02 (9th Cir. 1992) (“[T]he politicalquestion doctrine arises primarily from concerns aboutthe separation of powers within the federalgovernment. . . . Accordingly, the doctrine has at bestlimited applicability to actions challenging statestatutes as violative of the federal Constitution.”). Also,as the Court’s previous discussion of Lucas indicates,the Court cannot defer to the will of a state’s electoratewhen it passes an allegedly unconstitutional ballotinitiative, particularly when that law has been in effectfor nearly twenty years. See also Romer v. Evans, 517U.S. 620 (1996) (invalidating amendment to Colorado

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Constitution passed by ballot initiative prohibiting alllegislative, executive, or judicial action designed toprotect homosexuals).

Although the fourth Baker test presents moredifficult and sensitive issues, the Court finds that thetest is not met here.

(5) “ A n u n u s u a l n e e d f o runquestioning adherence to apolitical decision already made”

Regarding the issue of whether this case presents“an unusual need for unquestioning adherence to apolitical decision already made,” Defendant argues that“[t]wenty-six states now use some form of directdemocracy, and countless laws and constitutionalprovisions have been instituted through thesemechanisms. . . . Plaintiffs’ argument, if accepted,would call into question all of these provisions, and allof the countless laws enacted under them.” (ECF No.18, at 10; see also ECF No. 51, at 23-24.)

The Court has already addressed and rejectedDefendant’s argument that this action is properlyinterpreted as a frontal attack on Colorado’s entireballot initiative process. Thus, Defendant’s moreincredible argument that this action should beconstrued as an attack on the ballot initiative systemsin place in twenty-six states in this country is similarlyand even more appropriately rejected. Thus,Defendant’s concern regarding the continuing validityof laws enacted via ballot initiative (other thanTABOR, of course) is also unfounded. And significantly,in terms of Plaintiffs’ actual challenge to TABOR itself,it warrants mentioning that laws are not enacted

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pursuant to TABOR. Instead, TABOR merely acts tolimit the power of the General Assembly to legislate incertain areas (“core” areas according to Plaintiffs). SeeBickel, 885 P. 2d at 226 (“[TABOR’s] requirement ofelectoral approval is not a grant of new powers orrights to the people, but is more properly viewed as alimitation on the power of the people’s electedrepresentatives.”). Thus, the invalidation of TABORwould not undo any other enacted law. Further, asalready explained, the Colorado Supreme Court’sdecisions in Zaner and Bickel did not address thequestion of whether TABOR violates Colorado’sobligation to maintain a republican form ofgovernment, and therefore a judgment resolving thatissue would not violate those “decision[s] alreadymade.”

The Court therefore concludes that the fifth Bakertest is not met here.

(6) “ T h e p o t e n t i a l i t y o fembarrassment from multifariouspronouncements by variousdepartments on one question”

As for the sixth and final Baker test, Defendantagain repeats the mantra that this action challengesthe entire ballot initiative process, a process repeatedlyupheld by state and federal decision-makers. (See ECFNo. 18, at 10 (“[A] court pronouncement in favor ofPlaintiff would be in conflict with the views of variousstate and federal departments on . . . whether directdemocracy is incompatible with a republican form ofgovernment. . . . Congress . . . has never questioned thepractice of state direct democracy . . . . State courts andlegislators have likewise upheld and relied upon

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citizen-initiated or approved laws.”).) Defendant alsoagain cites Zaner and Bickel for the proposition thatTABOR has already been upheld. (Id. at 11; ECF No.51, at 24.) For the aforementioned reasons, thosearguments are rejected. The sixth Baker test is also notmet in this case.

e. Conclusion

In summary, there is no basis to conclude, at thisstage of the proceedings, that any of the six Baker testsare “inextricable from the case at bar.” 369 U.S. at 217.Thus, the Court concludes it is not appropriate todismiss Plaintiffs’ Guarantee Clause claim at this stageas non-justiciable under the political question doctrine.

3. The Enabling Act Claim and the PoliticalQuestion Doctrine

Defendant’s Motion to Dismiss includes littleargument as to why the Enabling Act in particularshould be dismissed, saying only in a footnote that“[t]he rationale applied by the Supreme Court toGuarantee Clause claims therefore applies with equalforce to Plaintiffs’ claims brought under the ColoradoEnabling Act,” and citing the fact that Pacific Statesincluded an Enabling Act claim. (ECF No. 18, at 6n.4.)37 Defendant repeats the same argument in the

37 Pacific States did include an Enabling Act claim. See 223 U.S. at139 (listing as an assignment of error, “The provision in theOregon Constitution for direct legislation violates the provisionsof the act of Congress admitting Oregon to the Union”). The Courtin Pacific States held that the Guarantee Clause claim and theEnabling Act claim, among others, were to be resolved on the samebasis: “the propositions each and all proceed alone upon the theory

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Reply brief. (ECF No. 51, at 25-26.) However, asexplained above, Pacific States is not controlling anddoes not bar this Court’s consideration of Plaintiffs’Guarantee Clause claim. Because the Court holdsPlaintiffs’ Guarantee Clause claim to be justiciable atthis early stage of the proceedings, Plaintiffs’ EnablingAct claim is likewise not subject to dismissal.

Further, even if Plaintiffs’ Guarantee Clause claimwere barred by the political question doctrine, theCourt would nevertheless conclude that Plaintiffs’Enabling Act claim is not subject to dismissal. PacificStates includes a brief discussion as to why it wasappropriate to treat all of the claims in that casesimilarly. Indeed, both Plaintiffs’ Guarantee Clauseclaim and their Enabling Act claim are based on therequirement that Colorado maintain a republican formof government. See U.S. Const. art. IV, § 4; 18 Stat. 474(1875).

However, the fact that Plaintiffs’ Enabling Act claimis a statutory claim leads the Court to conclude that itwould have jurisdiction to hear that claim even if theGuarantee Clause claim were held to be non-justiciableunder the political question doctrine. In JapanWhaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221(1986), wildlife conservation groups brought an actionchallenging an executive agreement between Japaneseand U.S. officials that allegedly violated a U.S. statuterequiring sanctions for violations of whale harvestingquotas. On appeal, petitioners argued that the actionwas barred by the political question doctrine because

that the adoption of the initiative and referendum destroyed allgovernment republican in form in Oregon.” Id. at 141.

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federal courts lack the power to call into questionExecutive Department decisions, such as the executiveagreement at issue. Id. at 229. The Court disagreed:

[I]t goes without saying that interpretingcongressional legislation is a recurring andaccepted task for the federal courts. It is alsoevident that [whether the statute was violated]presents a purely legal question of statutoryinterpretation. The Court must first . . . apply[]no more than the traditional rules of statutoryconstruction, and then apply[] this analysis tothe particular set of facts presented below. Weare cognizant of the interplay between [thestatute] and the conduct of this Nation’s foreignrelations, and we recognize the premier rolewhich both Congress and the Executive play inthis field. But under the Constitution, one of theJudiciary’s characteristic roles is to interpretstatutes, and we cannot shirk this responsibilitymerely because our decision may havesignificant political overtones. We conclude,therefore, that the present cases present ajusticiable controversy . . . .

Id. at 230.

Earlier this year, the Supreme Court againreiterated the rule that federal courts have jurisdictionto interpret federal statutes, even in politically chargedcases. In Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S.Ct. 1421 (2012), the plaintiff, who was born inJerusalem, challenged a decision by State Departmentofficials to deny his request that his passport indicatehis place of birth as Israel, in apparent direct violationof a federal statute. The Secretary of State argued that

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the case presented a nonjusticiable political question.The Court disagreed:

The existence of a statutory right . . . is certainlyrelevant to the Judiciary’s power to decideZivotofsky’s claim. The federal courts are notbeing asked to supplant a foreign policy decisionof the political branches with the courts’ ownunmoored determination of what United Statespolicy toward Jerusalem should be. Instead,Zivotofsky requests that the courts enforce aspecific statutory right. To resolve his claim, theJudiciary must decide if Zivotofsky’sinterpretation of the statute is correct, andwhether the statute is constitutional. This is afamiliar judicial exercise.

Id. at 1427.

For the Court’s purposes here, a fellow U.S. DistrictJudge has stated the rule clearly. In Bredesen v.Rumsfeld, 500 F. Supp. 2d 752 (M.D. Tenn. 2007), theCourt stated that “it is well-settled that the politicalquestion doctrine applies only to constitutionalquestions, not to questions of statutory violations.” Id.at 762 (citing Japan Whaling). In Bredesen, the Courtultimately found that the plaintiff’s constitutionalclaims (but not the statutory claims) were barred bythe political question doctrine. Id. at 762-63.38

38 See also Schiaffo v. Helstoski, 492 F.2d 413, 419 (3d Cir. 1974)(“[S]ince Congress has seen fit to enact a statute granting thefranking privilege, we have considerable doubt whether thepolitical question doctrine is applicable at all. We have found nocase regarding the application of a statute concerned solely withdomestic affairs and passed by Congress in which the political

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Thus, it is not surprising that numerous courts haveevaluated the merits of Enabling Act claims. SeeBranson Sch. Dist. v. Romer, 161 F.3d 619 (10th Cir.1998) (evaluating whether an amendment to theColorado Constitution passed by voter initiativeviolated the Colorado Enabling Act); (ECF No. 30, at41-44 (listing 117 other cases in which courts havetaken up the issue of whether a provision in anEnabling Act has been violated).).

Given the sufficiently clear and recent case lawauthority (some of it binding U.S. Supreme Courtauthority from the past three decades) that this Courthas jurisdiction to hear the Enabling Act claim, itwould be error to dismiss this case based only on thefact that Pacific States also involved an Enabling Actclaim. The Court therefore concludes that it hasjurisdiction to hear Plaintiffs’ Enabling Act claim under28 U.S.C. § 1331, and as a consequence Plaintiffs’Enabling Act claim is not subject to dismissal.

To summarize, the Court concludes that, at thisstage of the litigation, Plaintiffs’ Guarantee Clause andEnabling Act claims are justiciable and not barred bythe political question doctrine.

question doctrine has precluded Supreme Court review.”); El-ShifaPharm. Indus. Co. v. U.S., 607 F.3d 836, 851 (D.C. Cir. 2010)(Ginsburg, J., concurring) (“Under Baker v. Carr a statutory casegenerally does not present a non-justiciable political questionbecause the interpretation of legislation is a recurring andaccepted task for the federal courts.”) (quotation marks omitted).But see Ctr. for Policy Analysis on Trade & Health (CPATH) v.Office of the U.S. Trade Representative, 540 F.3d 940, 945 (9th Cir.2008) (“[I]t is a political question arising out of a statute thatprovides us with no meaningful standards to apply.”).

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C. Equal Protection Claim

Defendant separately moves to dismiss Plaintiffs’Equal Protection claim for failure to state a claim uponwhich relief can be granted. (ECF No. 18, at 19-21.)39

Defendant argues that the claim must fail becausePlaintiffs have not alleged that they are members of aconstitutionally protected class or that they are beingtreated differently than other similarly situated peoplein Colorado. (Id. at 19.) Defendant also points out thatColorado cannot extend its jurisdiction outside itsborders so as to treat Colorado citizens differently thancitizens in other states. (Id. at 20.)

In response, Plaintiffs argue that their EqualProtection claim should not be dismissed because theirclaim is analogous to the Equal Protection claims foundviable in the legislative apportionment cases of Bakerv. Carr, 369 U.S. 186 (1962), Reynolds v. Sims, 377U.S. 533 (1964), and Lucas v. Forty-Fourth GeneralAssembly of the State of Colorado, 377 U.S. 713 (1964).(ECF No. 30, at 33-36.) Plaintiffs argue that, as in thelegislative apportionment cases, this action involves amajority’s efforts to impose an unconstitutional law ona minority. (Id.)40

39 Defendant also briefly argues that Plaintiffs “cannot use [theEqual Protection claim] to turn their otherwise non-justiciablequestion into a justiciable one.” (ECF No. 18, at 19.) Because theCourt has held that Plaintiffs have standing and that the politicalquestion doctrine does not bar this action, Plaintiffs’ EqualProtection claim is not subject to dismissal on the ground of non-justiciability.

40 Specifically, Plaintiffs make clear that their Equal Protectionclaim is based on the premise that a voting majority has taken

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The Equal Protection Clause of the FourteenthAmendment to the United States Constitutionprovides, “No State shall . . . deny to any person withinits jurisdiction the equal protection of the laws.” U.S.Const. amend. XIV, § 1. The Equal Protection Clause“is essentially a direction that all persons similarlysituated should be treated alike.” City of Cleburne, Tex.v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); seealso Plyler v. Doe, 457 U.S. 202, 216 (1982) (“The EqualProtection Clause directs that all persons similarlycircumstanced shall be treated alike.”) (quotationmarks omitted); Barney v. Pulsipher, 143 F.3d 1299,1312 (10th Cir. 1998). “In order to assert a viable EqualProtection claim, plaintiffs must first make a thresholdshowing that they were treated differently from otherswho were similarly situated to them.” Barney, 143 F.3dat 1312; see also Brown v. Montoya, 662 F.3d 1152,1172-73 (10th Cir. 2011) (same); Campbell v. Buckley,203 F.3d 738, 747 (10th Cir. 2000) (same).

Plaintiffs’ Equal Protection claim is properlydismissed because Plaintiffs have not plead orotherwise shown that TABOR has treated any of thePlaintiffs differently from others who are similarly

away the minority’s right to a republican form of government. (SeeECF No. 36, ¶ 85 (“The aforesaid violations of the requirement fora Republican Form of Government deny to Plaintiffs and otherssimilarly situated the Equal Protection of the Laws . . . .”); ECFNo. 30, at 33 (“[The Equal Protection Clause prohibits] a majority’sefforts to impose an unconstitutional law on a state’s entirepopulation.”); id. at 35 (“[Plaintiffs’ Equal Protection claim]concerns a minority’s attempt to vindicate rights lost through thewill of the majority.”); id. at 35-36 (“The Equal Protection Clause[bars] a majority’s attempt . . . to place in its own hands the criticalfunctioning of the state legislature.”).)

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situated to them. All Colorado voters had an equallyweighted vote on TABOR in 1992. All Colorado voterswould have an equal vote on any attempt to pass aballot initiative invalidating TABOR. TABOR increasesall Colorado voters’ power equally by, inter alia, givingthem the power to approve or reject any proposed newtax or tax rate increase. TABOR decreases ColoradoGeneral Assembly members’ power equally by, interalia, taking away their power to approve new taxes ortax rate increases without voter approval.41 Plaintiffshave not plead or shown how TABOR treats similarlysituated people in Colorado differently.42

41 Although Plaintiffs have not made the argument, it would not beappropriate to treat a Colorado voter as similarly situated to amember of the General Assembly for purposes of equal protectionanalysis. See Campbell, 203 F.3d at 748 (“Citizens who proposelegislation through the initiative process and members of thegeneral assembly who pass bills are not similarly situatedclasses. . . . The legislative process and the initiative process are sofundamentally different that we cannot read the Equal ProtectionClause of the federal Constitution to require the state to afford thesame title setting treatment to these two processes.”).

42 In the Court’s view, it would also not be appropriate inevaluating Plaintiffs’ Equal Protection claim to consider howTABOR treats Colorado citizens differently than the citizens ofother states. U.S. Const. amend. XIV, § 1 (“No State shall . . . denyto any person within its jurisdiction the equal protection of thelaws.”) (emphasis added); see also Fetzer v. McDonough, No.4:07cv464–WS, 2009 WL 3163147, at *7 (N.D. Fla. Sept. 29, 2009)(“Plaintiff’s argument that inmates in other states are providedKosher food does not show that these Defendants, who areresponsible for inmates incarcerated in Florida, have treated otherinmates in Florida differently than Plaintiff. These Defendants arenot responsible for the conditions of confinement for otherprisoners incarcerated in other states . . . .”) (emphasis in original).

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The legislative apportionment cases cited byPlaintiffs are inapposite. Of those cases, Reynoldsprovides the clearest explanation for why thelegislative apportionment at issue there violated theEqual Protection Clause. In Reynolds, the plaintiffsraised an Equal Protection claim challenging theapportionment of legislative districts in Alabama thatgave voters in certain districts greater weighted votesthan voters in other districts. 377 U.S. at 537-46. TheCourt struck down the apportionment as violative ofthe Equal Protection Clause, stating,

[T]he concept of equal protection has beentraditionally viewed as requiring the uniformtreatment of persons standing in the samerelation to the governmental action questionedor challenged. With respect to the allocation oflegislative representation, all voters, as citizensof a State, stand in the same relation regardlessof where they live. . . . Diluting the weight ofvotes because of place of residence impairs basicconstitutional rights under the FourteenthAmendment. . . . Simply stated, an individual’sright to vote for state legislators isunconstitutionally impaired when its weight isin a substantial fashion diluted when comparedwith votes of citizens living in other parts of theState.

Id. at 565-68. In the legislative apportionment cases,the allegation was that similarly situated people –voters from different districts – were being treateddifferently. That is not the case here. Here, TABORaffects all voters equally. TABOR does not give anyvoter more or less voting power than any other voter.

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And even if TABOR does violate Plaintiffs’constitutional rights as citizens to have a governmentrepublican in form, TABOR has the same effect onevery Colorado citizen’s constitutional right to arepublican form of government.43

The Court therefore concludes that Plaintiffs’ EqualProtection claim is properly dismissed. BecausePlaintiffs have not requested leave to amend thisClaim, nor made any suggestion how this fundamentaldefect in their Equal Protection claim might be cured,the dismissal will be with prejudice. See Curley v.Perry, 246 F.3d 1278, 1282 (10th Cir. 2001).

D. Impermissible Amendment Claim

Defendant’s primary argument in moving to dismissPlaintiffs’ Impermissible Amendment claim is that theclaim presents a non-justiciable political question.(ECF No. 18, at 21-22; ECF No. 51, at 27-28.) For thereasons discussed above, the political question doctrinedoes not bar this action or any claims brought herein,including the Impermissible Amendment claim.

Defendant also argues that the ImpermissibleAmendment claim fails to state a claim upon whichrelief can be granted. (ECF No. 18, at 22.) In support ofthat contention, Defendant argues that the Colorado

43 Plaintiffs attempt to generalize the holdings of the voterapportionment cases to stand for the propositions that the EqualProtection Clause does not allow a voting majority to “remake astate legislature,” to “compromise the fundamental operations” ofthe legislature, and to “manipulate their legislatures to promotethe interests of particular groups.” (ECF No. 30, at 33-34.) Such areading of the voter apportionment cases is overly broad andunsupported.

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Supreme Court considers the initiative and referendumprocess to be a fundamental right of voters, and alsoargues that the Colorado Supreme Court has neverquestioned TABOR’s general structure. (Id.) Regardingthe first argument, as this Court has already stated,this action challenging TABOR is not properlyinterpreted as an attack on the entire initiative andreferendum process in Colorado. Nonetheless, it is alsoindisputable that just because Colorado voters have theright to the initiative process does not mean they canpass any ballot initiative they choose, no matter howviolative of state or federal constitutional rights. SeeRomer, 517 U.S. 620. As to the second argument,Defendant attempts to read far too much into the factthat the Colorado Supreme Court to date has neverquestioned TABOR’s general structure. Particularly inlight of the fact that a direct challenge to TABOR’sconstitutional legitimacy has never previously beenmounted, Defendant’s contention that the ColoradoSupreme Court has at least implicitly found TABOR topass constitutional muster is without merit.

The Court therefore also finds that Plaintiffs’Impermissible Amendment claim is not subject todismissal for failure to state a claim. The Courtproperly exercises supplemental jurisdiction over thisclaim pursuant to 28 U.S.C. § 1367(a). (See ECF No. 36,¶ 53.)

E. Supremacy Clause Claim

Defendant does not separately move to dismissPlaintiffs’ Supremacy Clause claim. In fact, the onlytime the Supremacy Clause claim is even mentioned inDefendant’s Motion to Dismiss (ECF No. 18) or in hisReply brief (ECF No. 51) is in a footnote pointing out

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that Pacific States also involved a claim brought underthe Supremacy Clause. (ECF No. 18, at 13 n.7.)Plaintiffs’ Supremacy Clause claim is based on theallegation that “TABOR must yield to the requirementsof the ‘Guarantee Clause’ and of the Enabling Act thatColorado maintain a Republican Form of Government.”(ECF No. 36, ¶ 84.) The Supremacy Clause claim isderivative of the Guarantee Clause claim and EnablingAct claim; if TABOR violates the Guarantee Clauseand/or the Enabling Act, then it would appear that italso violates the Supremacy Clause. Because the Courthas held that Plaintiffs’ Guarantee Clause claim andEnabling Act claim are not subject to dismissal at thisstage of the proceedings, Defendant’s Motion toDismiss Plaintiffs’ Supremacy Clause claim will also bedenied.

F. Unopposed Motion to Amend Complaint

On March 28, 2012, Plaintiffs filed an UnopposedMotion for Leave to File Second Amended SubstituteComplaint for Injunctive and Declaratory Relief(“Unopposed Motion”). (ECF No. 74) In the UnopposedMotion, Plaintiffs explain that they only seek to amendthe Operative Complaint in order to update the currentelective status of six particular plaintiffs. (Id.) ThisCourt’s review of the Operative Complaint and theproposed Second Amended Substitute Complaint forInjunctive and Declaratory Relief confirms that thosewere the only changes made to the OperativeComplaint. (Compare ECF No. 36, with ECF No. 74-1.)The Court therefore finds good cause to grant theUnopposed Motion.

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IV. CONCLUSION

In accordance with the foregoing, the Court herebyORDERS as follows:

(1) Defendant’s Motion to Dismiss Plaintiffs’Substitute Complaint (ECF No. 18), properlyconstrued as moving to dismiss Plaintiffs’ FirstAmended Substitute Complaint for Injunctiveand Declaratory Relief, is GRANTED IN PARTand DENIED IN PART;

(2) Defendant’s Motion to Dismiss is GRANTED asto Plaintiffs’ Equal Protection claim. Plaintiffs’Equal Protection claim is hereby DISMISSEDWITH PREJUDICE;

(3) Defendant’s Motion to Dismiss is DENIED as toPlaintiffs’ other four claims for relief. Those fourclaims will be allowed to proceed past thepleading stage in this action;

(4) Plaintiffs’ Unopposed Motion for Leave to FileSecond Amended Substitute Complaint forInjunctive and Declaratory Relief (ECF No. 74)is GRANTED;

(5) The Clerk of Court shall FILE as a separatedocket entry the Second Amended SubstituteComplaint for Injunctive and Declaratory Relief,currently filed as an attachment at ECF No. 74.The Second Amended Substitute Complaint forInjunctive and Declaratory Relief willhereinafter be the operative complaint in thisaction; and

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(6) The Court’s Order staying disclosures anddiscovery in this action (ECF No. 29) isVACATED and said stay is hereby LIFTED.

Dated this 30th day of July, 2012.

BY THE COURT:

/s/William J. Martínez William J. MartínezUnited States District Judge

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APPENDIX E

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-01350-WJM-BNB

[Filed July 30, 2012]____________________________________________ANDY KERR, COLORADO STATE )REPRESENTATIVE; NORMA V. )ANDERSON; JANE M. BARNES; )ELAINE GANTZ BERMAN, MEMBER )STATE BOARD OF EDUCATION; )ALEXANDER E. BRACKEN; WILLIAM K. )BREGAR, MEMBER PUEBLO DISTRICT 70 )BOARD OF EDUCATION; BOB BRIGGS, )WESTMINSTER CITY COUNCILMAN; )BRUCE W. BRODERIUS; TRUDY B. BROWN )JOHN C. BUECHNER, PH.D.; STEPHEN A. )BURKHOLDER; RICHARD L. BYYNY, )M.D.; LOIS COURT, COLORADO STATE )REPRESENTATIVE; THERESA L. CRATER; )ROBIN CROSSAN, MEMBER STEAMBOAT )SPRINGS RE-2 BOARD OF EDUCATION; )RICHARD E. FERDINANDSEN; )STEPHANIE GARCIA, MEMBER PUEBLO )CITY BOARD OF EDUCATION; KRISTI )HARGROVE; DICKEY LEE )HULLINGHORST, COLORADO STATE )REPRESENTATIVE; NANCY JACKSON, )ARAPAHOE COUNTY COMMISSIONER; )WILLIAM G. KAUFMAN; CLAIRE LEVY, )COLORADO STATE REPRESENTATIVE; )

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MARGARET (MOLLY) MARKERT, )AURORA CITY COUNCILWOMAN; )MEGAN J. MASTEN; MICHAEL )MERRIFIELD; MARCELLA (MARCY) L. )MORRISON; JOHN P. MORSE, COLORADO ) STATE SENATOR; PAT NOONAN; )BEN PEARLMAN; WALLACE PULLIAM; )FRANK WEDDIG; PAUL WEISSMANN; and )JOSEPH W. WHITE, )

)Plaintiffs, )

)v. )

)JOHN HICKENLOOPER, GOVERNOR OF )COLORADO, IN HIS OFFICIAL CAPACITY, )

)Defendant. )

____________________________________________ ) __________________________________________________

SECOND AMENDED SUBSTITUTECOMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF__________________________________________________

I. OPENING STATEMENT

1. This case presents for resolution the contestbetween direct democracy and representativedemocracy. In 1992, Colorado voters adopted byinitiative the Taxpayers Bill of Rights (“TABOR”,removing from their own legislature the power to taxand arrogating that power to themselves. Howeverattractive it might have seemed, this assertion of directdemocracy is not permitted under the United States

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Constitution, which requires all states to have aRepublican Form of Government embodied in arepresentative democracy.

2. At our nation’s birth, some three million citizensacted through their representatives at a constitutionalconvention to commit the nation to a government ofrepresentative democracy, a Republic, and rejecteddirect democracy. Today, the Constitution carries thesame commitment in a nation of over three hundredmillion people. Frustration with the work oflegislatures, whether federal or state, may indicate aneed for representative institutions to be moreeffective, but that frustration does not justify or permitresorting to direct democracy.

3. Since the passage of TABOR in 1992, the Stateof Colorado has experienced a slow, inexorable slideinto fiscal dysfunction. Deterioration of the state’sfunding base has been slowed by many attempts topatch, cover over, or bypass the straightjacket ofTABOR. However, events have demonstrated that alegislature unable to raise and appropriate fundscannot meet its primary constitutional obligations orprovide services that are essential for a state.

4. The framers of the federal Constitutionprescribed a Republican Form of Government for thenation at large and, in Article IV, Section 4, of theUnited State Constitution, guaranteed a RepublicanForm of Government to each state. The federal statutescreating the Territory of Colorado and then enablingcreation of the State of Colorado required that the statehave a Republican Form of Government. The statecannot properly or constitutionally govern itselfwithout adhering to the requirements of a Republican

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Form of Government, which entails having an effectivelegislative branch.

5. In prescribing a Republican Form of Governmentfor the states, the framers of the federal Constitutionintended that each state have a government withpower exercised through a representative democracy.James Madison explained in Federalist 10 thedifference between a direct and a representativedemocracy and the reasons that a representativedemocracy was essential to the Republic to beestablished by ratification of the Constitution:

From this view of the subject it may beconcluded that a pure democracy, by which Imean a society consisting of a small number ofcitizens, who assemble and administer thegovernment in person, can admit of no cure forthe mischiefs of faction. A common passion orinterest will, in almost every case, be felt by amajority of the whole; a communication andconcert result from the form of governmentitself; and there is nothing to check theinducements to sacrifice the weaker party or anobnoxious individual. Hence it is that suchdemocracies have ever been spectacles ofturbulence and contention; have ever been foundincompatible with personal security or the rightsof property; and have in general been as short intheir lives as they have been violent in theirdeaths. Theoretic politicians, who havepatronized this species of government, haveerroneously supposed that by reducing mankindto a perfect equality in their political rights, theywould, at the same time, be perfectly equalized

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and assimilated in their possessions, theiropinions, and their passions.

A republic, by which I mean a government inwhich the scheme of representation takes place,opens a different prospect, and promises thecure for which we are seeking. Let us examinethe points in which it varies from puredemocracy, and we shall comprehend both thenature of the cure and the efficacy which it mustderive from the Union.

The two great points of difference between ademocracy and a republic are: first, thedelegation of the government, in the latter, to asmall number of citizens elected by the rest;secondly, the greater number of citizens, andgreater sphere of country, over which the lattermay be extended.

The effect of the first difference is, on the onehand, to refine and enlarge the public views, bypassing them through the medium of a chosenbody of citizens, whose wisdom may best discernthe true interest of their country, and whosepatriotism and love of justice will be least likelyto sacrifice it to temporary or partialconsiderations. Under such a regulation, it maywell happen that the public voice, pronounced bythe representatives of the people, will be moreconsonant to the public good than if pronouncedby the people themselves, convened for thepurpose.

6. The Colorado Constitution as adopted at theConstitutional Convention in 1876 and continuing until

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the passage of TABOR fully complied with the federalconstitutional requirement for a Republican Form ofGovernment, in part by providing in Article X, Section2, the requisite powers for the General Assembly to taxto provide for state expenses.

7. An effective legislative branch must have thepower to raise and appropriate funds. When the powerto tax is denied, the legislature cannot functioneffectively to fulfill its obligations in a representativedemocracy and a Republican Form of Government.

8. The purpose of this case is to seek a ruling thatthe TABOR amendment to the Constitution of theState of Colorado is unconstitutional because itdeprives the state and its citizens of effectiverepresentative democracy, contrary to a RepublicanForm of Government as required under both the UnitedStates and Colorado Constitutions.

II. PARTIES

9. Several plaintiffs are described in the captionand in the following paragraphs as holding public officein certain state and local governmental bodies. Theoffices held by these plaintiffs are relevant to theirstanding in the case. The listing of offices does notimply that the governmental bodies have themselvestaken any official position regarding this litigation northat these plaintiffs speak for those governmentalbodies regarding this litigation.

10. Plaintiff Andy KERR is a Member of theHouse of Representatives of the Colorado GeneralAssembly, representing District 26, and a social studiesteacher in the Jefferson County schools. In hisindividual capacity as a citizen of the State of Colorado

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and in his capacity as a State Representative, he hasstanding to challenge the constitutionality of theTABOR Amendment.

11. Plaintiff Norma V. ANDERSON is a formermember of and Majority Leader of the Colorado StateHouse of Representatives and the Colorado StateSenate, a former director of the RegionalTransportation District and a citizen of the State ofColorado.

12. Plaintiff Jane M. BARNES is a formermember of the Jefferson County Board of Education,past president of the Colorado Association of SchoolBoards and a citizen of the State of Colorado.

13. Plaintiff Elaine Gantz BERMAN is a memberof the Colorado State Board of Education, a formermember of the Denver Public Schools Board ofEducation and a citizen of the State of Colorado.

14. Plaintiff Dr. Alexander E. BRACKEN is aformer member of the Colorado Commission on HigherEducation, was the Nineteenth President of theUniversity of Colorado and is a citizen of the State ofColorado.

15. Plaintiff William K. BREGAR is a member ofthe Pueblo District 70 Board of Education, pastPresident of the Colorado Association of School Boards,and a citizen of the State of Colorado.

16. Plaintiff Bob BRIGGS is a Councilman of theCity of Westminster and a former member of theColorado State House of Representatives, the AdamsCounty Commission, former director of the Regional

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Transportation District, and a citizen of the State ofColorado.

17. Plaintiff Bruce W. BRODERIUS is a formermember of Weld County District 60 Board ofEducation, Professor of Education Emeritus and formerDean of Education at the University of NorthernColorado and is a citizen of the State of Colorado.

18. Plaintiff Trudy B. BROWN is a citizen of theState of Colorado.

19. Plaintiff Dr. John C. BUECHNER is a formerCouncilman in the City of Lafayette and was theEighteenth President of the University of Colorado. Heis Professor Emeritus of the University of Colorado,former Chancellor of the Denver Campus of theUniversity, former member of the Colorado StateHouse of Representatives, former Mayor andCouncilman of the City of Boulder, and is a citizen ofthe State of Colorado.

20. Plaintiff Stephen A. BURKHOLDER isformer Mayor and Councilman of the City of Lakewoodand a citizen of the State of Colorado.

21. Plaintiff Richard L. BYYNY, M. D., isDirector of the Center for Health Policy at theUniversity of Colorado Hospital, former Chancellor ofthe Boulder Campus of the University and a citizen ofthe State of Colorado.

22. Plaintiff Lois COURT is a member of theColorado State House of Representatives representingHouse District 6 and a citizen of the State of Colorado.

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23. Plaintiff Theresa L. CRATER is a professor atMetro State College of Denver and a citizen of the Stateof Colorado.

24. Plaintiff Robin CROSSAN is the formerpresident and a current member of the SteamboatSprings School District RE-2 Board of Education and acitizen of the State of Colorado.

25. Plaintiff Richard E. FERDINANDSEN is aformer Jefferson County Commissioner and a citizen ofthe State of Colorado.

26. Plaintiff Stephanie GARCIA is President ofthe Pueblo City Board of Education and a citizen of theState of Colorado.

27. Plaintiff Kristi HARGROVE is a parent ofschool-age children, a member of the Board of Directorsof Colorado PTA and a citizen of the State of Colorado.

28. Plaintiff Dickey Lee HULLINGHORST is amember of the Colorado State House ofRepresentatives, representing House District 10, anda citizen of the State of Colorado.

29. Plaintiff Nancy JACKSON is an ArapahoeCounty Commissioner and a citizen of the State ofColorado.

30. Plaintiff William G. KAUFMAN is a memberof the Colorado Transportation Commission, a formermember of the Colorado State House ofRepresentatives, and a citizen of the State of Colorado.

31. Plaintiff Claire LEVY is a member of theColorado State House of Representatives, representingHouse District 13 and a citizen of the State of Colorado.

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32. Plaintiff Margaret (Molly) MARKERT is aCouncilwoman of the City of Aurora, a former memberof the Colorado State House of Representatives and acitizen of the State of Colorado.

33. Plaintiff Megan J. MASTEN is the parent oftwo school children and a citizen of the State ofColorado.

34. Plaintiff Michael MERRIFIELD is a formermember of the Colorado State House ofRepresentatives and a citizen of the State of Colorado.

35. Plaintiff Marcella (Marcy) L. MORRISON isa former member of the Colorado State House ofRepresentatives, the El Paso County Commission, theManitou Springs Board of Education and is a citizen ofthe State of Colorado.

36. Plaintiff John P. MORSE is Majority Leaderof the Colorado State Senate, representing SenateDistrict 11, and a citizen of the State of Colorado.

37. Plaintiff Pat NOONAN is a former ArapahoeCounty Commissioner and a citizen of the State ofColorado.

38. Plaintiff Ben PEARLMAN is a formerBoulder County Commissioner and a citizen of theState of Colorado.

39. Plaintiff Wallace PULLIAM is a formerdirector of the Regional Transportation District and acitizen of the State of Colorado.

40. Plaintiff Frank WEDDIG is a formerArapahoe County Commissioner, a former member ofboth the Colorado State Senate and the Colorado State

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House of Representatives, a former member of theAurora City Council and a citizen of the State ofColorado.

41. Plaintiff Paul WEISSMANN is a formermember of both the Colorado State Senate and theColorado House of Representatives and a citizen of theState of Colorado.

42. Plaintiff Joseph W. WHITE is a teacher atThunderRidge High School and a citizen of the State ofColorado.

43. Certain plaintiffs in this case are past orsitting elected representatives in the General Assemblyof the State of Colorado. As such, they have a directand specific interest in securing to themselves, and totheir constituents and to the state, the legislative corefunctions of taxation and appropriation. Otherplaintiffs in this case include officers of counties,districts and municipalities which are dependent,under the state constitution, on the power of thelegislature and their own powers to tax andappropriate.

44. Certain plaintiffs in this case are past orsitting elected officials of counties, cities, and schooldistricts in the State of Colorado, jurisdictions whoseabilities to tax are eliminated by TABOR.

45. Certain plaintiffs in this case are or havebeen educators employed by the State of Colorado or byvarious school districts. In addition to their interests ascitizens of the state, they also have a specific interestin assuring that the legislature of the state candischarge its responsibilities to tax for the purpose ofadequately funding core education responsibilities of

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the state as provided in Article IX, Section 2 of theColorado Constitution.

46. Certain plaintiffs in this case are citizens ofthe State of Colorado, having a specific, protectableinterest in assuring that their representatives candischarge the inherently legislative function of taxationand appropriation and an interest in assuring that theState of Colorado has a Republican Form ofGovernment, as required by the United StatesConstitution.

47. All plaintiffs in this case are citizens of theState of Colorado and have rights protectable under theFourteenth Amendment to the United StatesConstitution to the equal protection of the laws,including the right to a Republican Form ofGovernment and therewith to a legislative branch withthe power to tax.

48. Defendant John HICKENLOOPER isGovernor and chief executive officer of the State ofColorado with authority to administer and execute theprovisions of the Constitution and laws of the State ofColorado and is named in his official capacity.

III. JURISDICTION AND VENUE

49. Jurisdiction of this case is grounded in 28U.S.C. § 1331, Federal Question, as this case requiresthe Court to interpret the provisions of Article IV,Section 4, of the United States Constitution, the“Guarantee Clause,” which requires a Republican Formof Government.

50. Jurisdiction of this case is grounded in 28U. S. C. § 1331, Federal Question, as this case requires

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the Court to interpret the provisions of Article VI,Section 2, of the United States Constitution, the“Supremacy Clause.”

51. Jurisdiction of this case is also grounded in28 U.S.C. § 1331, Federal Question, as this caserequires the Court to interpret the rights of thePlaintiffs under the “Equal Protection” provisions ofthe Fourteenth Amendment to the United StatesConstitution.

52. Jurisdiction under 28 U.S.C. § 1331 also liesbecause this case requires the Court to interpretfederal statutes, to wit, The Colorado Territorial Act,12 Stat. 176 (1861), and the Colorado Enabling Act, 18Stat. 474 (1875), “An Act To Enable The People OfColorado To Form A Constitution And StateGovernment, And For the Admission Of The Said StateInto The Union On An Equal Footing With TheOriginal States” (hereafter, the “Enabling Act”), underwhich Congress granted the People of Colorado theauthority to form a state subject to requirements thatare at issue in this case.

53. Jurisdiction of this case is also grounded in28 U.S.C. § 1367, as this Court has SupplementalJurisdiction over such matters as may involve theinterpretation of the Constitution of the State ofColorado.

54. Jurisdiction for relief in this case is alsogrounded in 28 U.S.C. § 1651, the All Writs Act, and 28U.S.C. § 2201, the Declaratory Judgment Act.

55. The Courts of the United States havejurisdiction to determine a state’s compliance withArticle IV, Section 4, of the Constitution of the United

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States, i.e., whether its government is a RepublicanForm of Government, and to nullify and declare voidlaws or state constitutional provisions that compromiserepublican governance.

56. The Courts of the United States havejurisdiction to determine whether TABOR violates therequirement that Colorado have a Republican Form ofGovernment prescribed by Article IV, Section 4, of theConstitution of the United States, the “GuaranteeClause,” and the Enabling Act, and that such conflictcompels invalidation of TABOR under the SupremacyClause.

57. The Courts of the United States havejurisdiction to determine whether a state is complyingwith federal statutes and, particularly, the statute (theEnabling Act) under the terms of which Congressauthorized the creation of the State of Colorado and itsadmission to the Union.

58. The Courts of the United States havejurisdiction to determine whether the citizens of theState of Colorado are being denied the equal protectionof the laws because Colorado now fails to provide aRepublican Form of Government.

59. Venue of this case is proper in this Courtunder the provisions of 31 U.S.C. § 1391(b) as all of thePlaintiffs and the Defendant are residents of the Stateof Colorado.

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IV. BACKGROUND OF THIS CIVIL ACTION

60. Article IV, Section 4, of the Constitution ofthe United States provides that:

“The United States shall guarantee to everyState in this Union a Republican Form ofGovernment . . . .”

This “Guarantee Clause” encompasses the assurancethat each state shall, as in the case of the governmentof the United States itself, have legislative, executive,and judicial branches and that the legislative branch,as in the case of the United States itself, shall beempowered to tax and appropriate.

61. On February 28, 1861, in accordance withArticle IV, Section 3, of the United States Constitution,Congress enacted The Colorado Territorial Act, 12 Stat.176, providing for the organization of and a temporarygovernment for the Territory of Colorado. That statutespecified in Section 4 the establishment of a bicameral“legislative council” and in Section 6 that the power ofthe legislative council “extend to all rightful subjects oflegislation consistent with the Constitution of theUnited States.”

62. On March 3, 1875, pursuant to Article IV,Section 3 of the United States Constitution, Congressenacted the Colorado Enabling Act. 18 Stat. 474 (1875).Under the terms of the Enabling Act, the Territory ofColorado was to be admitted to the Union as a stateafter meeting certain requirements. Among them wasthe requirement that the territory convene aConstitutional Convention that would, inter alia, adopton behalf of the people, the Constitution of the United

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States and draft a state Constitution that “shall berepublican in form.” 8 Stat. 474, Sections 4.

63. In compliance with the provisions of theEnabling Act, the Constitutional Convention of theTerritory of Colorado met, adopted the Constitution ofthe United States, and prepared a Constitution thenfully compliant with the Enabling Act. ThatConstitution of the proposed State of Colorado didprovide for a Republican Form of Government and, inArticle V, Section 1, expressly provided that “[t]helegislative power shall be vested in the GeneralAssembly, which shall consist of a Senate and House ofRepresentatives, both to be elected by the People.”

64. Article V of the Constitution of the proposedState of Colorado provided in Sections 31 and 32 for theGeneral Assembly of the State of Colorado to have andexecute the exclusive powers to raise and appropriaterevenue, powers similar to those of the legislativebranch in the Constitution of the United States, and inSection 33 that no monies shall be paid out of the StateTreasury “except upon appropriations made by law.”

65. Article X, Section 2, of the ColoradoConstitution provides: “The general assembly shallprovide by law for an annual tax sufficient, with otherresources, to defray the estimated expenses of stategovernment for each fiscal year.” This provision wasessential to and an integral part of the severalprovisions of the Colorado Constitution that constitutedthe state’s Republican Form of Government.

66. Combined with revenues from federalcommon lands ceded to the state under Section 7 of the

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Enabling Act, Article X, Section 2, was integral to thescheme for funding public education in the state.

67. On August 1, 1876, President Ulysses S.Grant, pursuant to the Enabling Act, proclaimed theTerritory of Colorado to be the State of Colorado,recognizing that the Constitution of the proposed Stateof Colorado had been duly drawn and ratified by thePeople of Colorado, and that compliance with theEnabling Act had been certified by the TerritorialGovernor, the Chief Justice, and the Territorial UnitedStates Attorney.

68. The certifications of compliance with theEnabling Act and the Proclamation of Statehood by thePresident could occur only if and because the ColoradoConstitution provided for a Republican Form ofGovernment, including a legislature with powerssufficient to fulfill its responsibilities under aRepublican Form of Government, including, withoutlimitation, plenary and exclusive powers to raise andappropriate revenues and to provide for taxes to defraythe expenses of state government.

69. For the succeeding 116 years, the State ofColorado and its Constitution complied with therequirements of the Territory Act, the Enabling Act,and Article IV, Section 4, of the United StatesConstitution, in that the State maintained a GeneralAssembly able to meet its constitutional obligationsunder a Republican Form of Government, including thepowers to raise and appropriate revenues.

70. In 1910, the General Assembly proposed andthe people adopted an amendment to the ColoradoConstitution, with the short title, “Providing for the

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initiative and referendum.” It revised Article V, Section1(1) of the State Constitution. That section originallystated that “[t]he legislative power of the state shall bevested in the general assembly consisting of a senateand house of representatives, both to be elected by thepeople.” The amendment added the following language:“but the people reserve to themselves the power topropose laws and amendments to the Constitution andto enact or reject the same at the polls independent ofthe general assembly and also reserve power at theirown option to approve or reject at the polls any act oritem, section, or part of any act of the generalassembly.” Laws 1910 Ex. Sess., p 11; emphasis added.(Subsequent subsections added and amended in 1980and 1994 elaborate on the initiative and referendumprocesses.)

71. Notwithstanding its sweeping terms, thisinitiative and referendum provision could not lawfullycompromise or subtract from the undertakings of theState of Colorado required under the Enabling Act andby the “Guarantee Clause” to have and maintain aRepublican Form of Government, necessarily includinga legislative branch with the requisite powers to beeffective. Section 2 of Article II of the ColoradoConstitution then and now expressly recognizes thislimitation, stating that the plenary power reserved tothe people “to alter or abolish their constitution andform of government” is itself constrained in that “anysuch change be not repugnant to the constitution of theUnited States.”

72. By Article IX of the original ColoradoConstitution, the proposed State of Colorado undertookto provide its children with a universal system of free

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public education. Specifically, Section 2 of Article IXprovided that “[t]he General Assembly shall, as soon aspracticable, provide for the establishment andmaintenance of a thorough and uniform system of freepublic schools throughout the State, wherein allresidents of the State between the ages of six andtwenty-one years may be educated gratuitously.”

73. On November 3, 1992, the People of the Stateof Colorado voted to amend the Colorado Constitutionby adding Section 20, “The Taxpayer’s Bill of Rights”(“TABOR”) as an amendment to Article X (“Revenue”)of the Constitution. This amendment became effectiveby Proclamation of the Governor of Colorado onJanuary 14, 1993.

74. The TABOR amendment removed from theGeneral Assembly and subordinate politicalsubdivisions the power to tax and raise revenue. Underthe TABOR amendment, the power to tax was to bevested exclusively in the People of Colorado and couldbe exercised only through a tightly constrained popularvoting process.

75. Paragraph 3 of TABOR, “Election Provisions,”and its subparagraphs specify and limit what thePeople of Colorado may be told in proposals for ballotmeasures to increase taxes or otherwise to change themeans and methods by which taxes would be imposed.The limitations of this Paragraph 3 deprived the Peopleof the State of Colorado of access to full and completefacts upon which they might base their votes.

76. Paragraph 4 of TABOR, “Required Elections,”and its subparagraphs vested in the People of Colorado,to be exercised only by popular vote, all of the powers

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to lay new taxes, to increase tax rates, to change in anymanner existing tax structures and in all otherrespects to raise and collect funds for the operation ofthe State. By its incorporation of various terms anddefinitions, paragraph 4 similarly applied thisarrogation of power to popular vote of the people to allother political subdivisions of the State, removing theseparate taxing ability of Counties, Municipalities, andSchool Districts, subject to a vote of the people in suchsubdivisions to suspend the effect of this provision onCounties, Municipalities, and School Districts.

77. Paragraph 7 of TABOR, “Spending Limits”and its subparagraphs established a cap on the totalamount that the state may spend in any given fiscalyear, a cap adjusted annually for the combination of“inflation” plus the “percentage change in statepopulation,” but otherwise inviolable and not subject toany findings, determinations, or circumstances thatmight be found by the State General Assembly or byCounties, Municipalities or School Districts. To theextent that revenues from tax sources exceed the cap,any excess must be refunded to the People of the Stateof Colorado or of the affected jurisdiction.

78. At the General Election in 2005, the votersapproved Referendum C, which, inter alia, adjusted thespending limit provisions of TABOR by removing therequirement to reset the spending cap each year to thelevel of the prior year’s General Fund spending.However, a spending limitation remains, adjusted onlyfor inflation and population increases, and causes agradual, continuing reduction in the ability of the Stateto defray the necessary expenses of state government.This occurs because the annual adjustment only for

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inflation and population fails to account for the effectsthat increases in productivity have on wage levels andstandards of living, and the impact that in turn has onthe cost of personal services that comprise the majorportion of the state budget.

79. Paragraph 8 of TABOR, “Revenue limits” andits subparagraphs prohibit the imposition of new orincreased property taxes, prohibit any new localdistrict income tax, and prohibit any new income taxchange that is progressive.

80. The totality of these TABOR provisionsremoves entirely from the Colorado General Assemblyany authority to change state law concerning taxationto replace or increase revenue, and prohibits theGeneral Assembly from raising funds by any othermeans, including borrowing. Moreover, the interactionof the provisions of TABOR may actually force existingtaxes to be decreased without any action of the GeneralAssembly.

81. The State, through its Attorney General, hasadmitted that, because of TABOR, the State can nolonger fulfill another critical constitutional obligation,namely the requirement that it educate its children,declaring that “[a]ny funding required by the EducationClause is constrained by TABOR.” (See Def.’s Mot. forDetermination of Questions of Law Pursuant to C. R. C.P. 56(h), filed by the Attorney General of Colorado,February 25, 2011, in Lobato, et al. v. State ofColorado, et al., District Court, City & County ofDenver, Colorado, 05 CV 4794, at p. 6.)

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V. COUNT I - VIOLATION OF ARTICLE IV,SECTION 4 OF THE UNITED STATES

CONSTITUTION

82. A fully effective legislature is an essentialcomponent of a Republican Form of Government, asguaranteed to each state by Article IV, Section 4, of theConstitution of the United States. By removing thetaxing power of the General Assembly, the TABORamendment renders the Colorado General Assemblyunable to fulfill its legislative obligations under aRepublican Form of Government and violates theguarantee of Article IV, Section 4, of the United StatesConstitution.

VI. COUNT II - VIOLATION OFTHE ENABLING ACT

83. The Enabling Act of 1875, a statute of theUnited States, set forth the conditions for Coloradostatehood, including the requirement that the statehave a Republican Form of Government. The EnablingAct’s requirement for a Republican Form ofGovernment entailed having and maintaining a fullyeffective legislature. This requirement has not beenamended by any subsequent federal law. The TABORamendment has made the General Assembly ineffectiveby removing an essential function, namely the power totax. In so doing, the TABOR amendment violates theEnabling Act.

VII. COUNT III - VIOLATION OF ARTICLE VI,SECTION 2, OF THE UNITED STATES

CONSTITUTION

84. TABOR is in irresolvable conflict with the“Guarantee Clause” of the United States Constitution

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and with the undertakings of the State of Colorado asrequired by the Enabling Act. Under the SupremacyClause of Article VI, Section 2, of the United StatesConstitution, TABOR must yield to the requirementsof the “Guarantee Clause” and of the Enabling Act thatColorado maintain a Republican Form of Government.

VIII. COUNT IV – VIOLATION OFAMENDMENT XIV OF THE UNITED STATES

CONSTITUTION

85. The aforesaid violations of the requirementfor a Republican Form of Government deny to Plaintiffsand others similarly situated the Equal Protection ofthe Laws as guaranteed by Amendment XIV of theConstitution of the United States.

86. Plaintiffs are also denied their rights underthe Colorado Constitution to the protections of aRepublican Form of Government that were guaranteedto them under the Enabling Act and in the ColoradoConstitution as originally drawn.

IX. COUNT V – IMPERMISSIBLE AMENDMENTOF COLORADO CONSTITUTION

87. As a condition for Colorado to become a Stateand be accepted into the Union under the Enabling Act,the citizens of the State of Colorado undertook to createand maintain irrevocably a Republican Form ofGovernment.

88. Thus, the expectant citizens of the futureState of Colorado, for themselves and for all citizens ofColorado to come, obligated themselves irrevocably toform and to maintain a state government republican inform. That obligation necessarily inheres in the

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Colorado Constitution without further elaboration andentails having a legislative branch able to fulfill itsresponsibilities under a Republican Form ofGovernment. Section 2 of Article II of the ColoradoConstitution expressly recognizes that the people of thestate relinquish the power to alter the republicannature of their government.

89. By accepting the obligations under itsEnabling Act and in its Constitution to establish andmaintain a Republican Form of Government, the Stateof Colorado and its citizens irrevocably undertook forthemselves and their successors to have and maintaina Constitution embodying a Republican Form ofGovernment. An essential component of a RepublicanForm of Government is a legislature with sufficientplenary authority to be effectively republican both inform and in actual authority, necessarily including thepower to impose taxes and raise revenues necessary todefray the expenses of state government.

90. Any amendment to the Colorado Constitutionmust therefore be read as subordinate to the originaland perpetual obligation of the state to maintain aRepublican Form of Government. The citizens of theState of Colorado were and are constitutionallydisempowered to amend the state Constitution toderogate or remove power and authority from thelegislative branch such that the fundamental nature ofthe state’s Republican Form of Government iscompromised or undermined.

91. The TABOR amendment, in depriving theGeneral Assembly of the power to tax, compromisesand undermines the fundamental nature of the state’sRepublican Form of Government. In passing the

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TABOR amendment, a one-time voting majority of thecitizens of the State of Colorado violated the superiorobligation inherent in the Colorado Constitution tomaintain, and the right of all the people to enjoy, aRepublican Form of Government. Therefore, as amatter of state constitutional law, TABOR exceededthe powers retained by the citizens of the State and isunconstitutional and void under the Constitution of theState of Colorado.

92. The TABOR amendment, in depriving theGeneral Assembly of the power to tax, nullifies theinherent and necessary powers of General Assemblyunder Article X, Section 2, and Article V, Sections 31and 32, of the Colorado Constitution, and so violatesboth those superior provisions of the ColoradoConstitution and the guarantee of a Republican Formof Government under Article IV, Section 4, of theUnited States Constitution.

X. PRAYERS FOR RELIEF

WHEREFORE, Plaintiffs pray for the followingrelief:

1. For a DECLARATION that the TABORAMENDMENT is facially unconstitutional andunconstitutional as applied;

2. For a DECLARATION that the TABORAMENDMENT is null and void;

3. For a DECLARATION that the Plaintiffs’srights to and responsibilities under a RepublicanForm of Government in accordance with ArticleIV, Section 4, of the United States Constitutionhave been violated;

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4. For a DECLARATION that the TABORAMENDMENT violates the Colorado Territorialand Enabling Acts;

5. For an ORDER prohibiting any state officer fromtaking any action whatsoever to effect therequirements and purposes of the TABORamendment; and

6. For such other and further relief as the Courtmay find justified.

DATED: March 28, 2012

Respectfully submitted,

/s/ Lino S. Lipinsky de OrlovLino S. Lipinsky de OrlovHerbert Lawrence FensterDavid E. Skaggs

MCKENNA LONG & ALDRIDGE LLP1400 Wewatta Street, Suite 700Denver, Colorado 80202Telephone: (303) 634-4000Facsimile: (303) 634-4400E-mail: hfenster@mckennalong.com

llipinsky@mckennalong.comdskaggs@mckennalong.com

/s/ Michael F. Feeley_Michael F. FeeleyJohn A. HerrickEmily L. Droll

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BROWNSTEIN HYATT FARBERSCHRECK LLP410 17th Street, Suite 2200Denver, CO 80202-4437Telephone: (303) 223-1100Facsmile: (303) 223-1111E-mail: mfeeley@bhfs.com

jherrick@bhfs.comedroll@bhfs.com

ATTORNEYS FOR PLAINTIFFS

* * *

[Certificate of Service Omitted in thePrinting of this Appendix]

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APPENDIX F

Colorado Constitution

Article V- Legislative Department

Section 1. General assembly – initiative andreferendum.

(1) The legislative power of the state shall be vested inthe general assembly consisting of a senate and houseof representatives, both to be elected by the people, butthe people reserve to themselves the power to proposelaws and amendments to the constitution and to enactor reject the same at the polls independent of thegeneral assembly and also reserve power at their ownoption to approve or reject at the polls any act or item,section, or part of any act of the general assembly.

(2) The first power hereby reserved by the people is theinitiative, and signatures by registered electors in anamount equal to at least five percent of the totalnumber of votes cast for all candidates for the office ofsecretary of state at the previous general election shallbe required to propose any measure by petition, andevery such petition shall include the full text of themeasure so proposed. Initiative petitions for statelegislation and amendments to the constitution, in suchform as may be prescribed pursuant to law, shall beaddressed to and filed with the secretary of state atleast three months before the general election at whichthey are to be voted upon.

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(3) The second power hereby reserved is thereferendum, and it may be ordered, except as to lawsnecessary for the immediate preservation of the publicpeace, health, or safety, and appropriations for thesupport and maintenance of the departments of stateand state institutions, against any act or item, section,or part of any act of the general assembly, either by apetition signed by registered electors in an amountequal to at least five percent of the total number ofvotes cast for all candidates for the office of thesecretary of state at the previous general election or bythe general assembly. Referendum petitions, in suchform as may be prescribed pursuant to law, shall beaddressed to and filed with the secretary of state notmore than ninety days after the final adjournment ofthe session of the general assembly that passed the billon which the referendum is demanded. The filing of areferendum petition against any item, section, or partof any act shall not delay the remainder of the act frombecoming operative.

(4) The veto power of the governor shall not extend tomeasures initiated by or referred to the people. Allelections on measures initiated by or referred to thepeople of the state shall be held at the biennial regulargeneral election, and all such measures shall becomethe law or a part of the constitution, when approved bya majority of the votes cast thereon, and not otherwise,and shall take effect from and after the date of theofficial declaration of the vote thereon by proclamationof the governor, but not later than thirty days after thevote has been canvassed. This section shall not beconstrued to deprive the general assembly of the powerto enact any measure.

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(5) The original draft of the text of proposed initiatedconstitutional amendments and initiated laws shall besubmitted to the legislative research and draftingoffices of the general assembly for review and comment.No later than two weeks after submission of theoriginal draft, unless withdrawn by the proponents, thelegislative research and drafting offices of the generalassembly shall render their comments to theproponents of the proposed measure at a meeting opento the public, which shall be held only after full andtimely notice to the public. Such meeting shall be heldprior to the fixing of a ballot title. Neither the generalassembly nor its committees or agencies shall have anypower to require the amendment, modification, or otheralteration of the text of any such proposed measure orto establish deadlines for the submission of the originaldraft of the text of any proposed measure.

(5.5) No measure shall be proposed by petitioncontaining more than one subject, which shall beclearly expressed in its title; but if any subject shall beembraced in any measure which shall not be expressedin the title, such measure shall be void only as to somuch thereof as shall not be so expressed. If a measurecontains more than one subject, such that a ballot titlecannot be fixed that clearly expresses a single subject,no title shall be set and the measure shall not besubmitted to the people for adoption or rejection at thepolls. In such circumstance, however, the measure maybe revised and resubmitted for the fixing of a propertitle without the necessity of review and comment onthe revised measure in accordance with subsection (5)of this section, unless the revisions involve more thanthe elimination of provisions to achieve a single subject,or unless the official or officials responsible for the

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fixing of a title determine that the revisions are sosubstantial that such review and comment is in thepublic interest. The revision and resubmission of ameasure in accordance with this subsection (5.5) shallnot operate to alter or extend any filing deadlineapplicable to the measure.

(6) The petition shall consist of sheets having suchgeneral form printed or written at the top thereof asshall be designated or prescribed by the secretary ofstate; such petition shall be signed by registeredelectors in their own proper persons only, to whichshall be attached the residence address of such personand the date of signing the same. To each of suchpetitions, which may consist of one or more sheets,shall be attached an affidavit of some registered electorthat each signature thereon is the signature of theperson whose name it purports to be and that, to thebest of the knowledge and belief of the affiant, each ofthe persons signing said petition was, at the time ofsigning, a registered elector. Such petition so verifiedshall be prima facie evidence that the signaturesthereon are genuine and true and that the personssigning the same are registered electors.

(7) The secretary of state shall submit all measuresinitiated by or referred to the people for adoption orrejection at the polls, in compliance with this section.In submitting the same and in all matters pertainingto the form of all petitions, the secretary of state andall other officers shall be guided by the general laws.

(7.3) Before any election at which the voters of theentire state will vote on any initiated or referredconstitutional amendment or legislation, thenonpartisan research staff of the general assembly

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shall cause to be published the text and title of everysuch measure. Such publication shall be made at leastone time in at least one legal publication of generalcirculation in each county of the state and shall bemade at least fifteen days prior to the final date ofvoter registration for the election. The form andmanner of publication shall be as prescribed by law andshall ensure a reasonable opportunity for the votersstatewide to become informed about the text and titleof each measure.

(7.5) (a) Before any election at which the voters of theentire state will vote on any initiated or referredconstitutional amendment or legislation, thenonpartisan research staff of the general assemblyshall prepare and make available to the public thefollowing information in the form of a ballotinformation booklet:

(I) The text and title of each measure to be voted on;

(II) A fair and impartial analysis of each measure,which shall include a summary and the majorarguments both for and against the measure, andwhich may include any other information that wouldassist understanding the purpose and effect of themeasure. Any person may file written comments forconsideration by the research staff during thepreparation of such analysis.

(b) At least thirty days before the election, the researchstaff shall cause the ballot information booklet to bedistributed to active registered voters statewide.

(c) If any measure to be voted on by the voters of theentire state includes matters arising under section 20of article X of this constitution, the ballot information

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booklet shall include the information and the titlednotice required by section 20 (3) (b) of article X, and themailing of such information pursuant to section 20(3) (b) of article X is not required.

(d) The general assembly shall provide sufficientappropriations for the preparation and distribution ofthe ballot information booklet pursuant to thissubsection (7.5) at no charge to recipients.

(8) The style of all laws adopted by the people throughthe initiative shall be, “Be it Enacted by the People ofthe State of Colorado”.

(9) The initiative and referendum powers reserved tothe people by this section are hereby further reservedto the registered electors of every city, town, andmunicipality as to all local, special, and municipallegislation of every character in or for their respectivemunicipalities. The manner of exercising said powersshall be prescribed by general laws; except that cities,towns, and municipalities may provide for the mannerof exercising the initiative and referendum powers asto their municipal legislation. Not more than tenpercent of the registered electors may be required toorder the referendum, nor more than fifteen percent topropose any measure by the initiative in any city, town,or municipality.

(10) This section of the constitution shall be in allrespects self-executing; except that the form of theinitiative or referendum petition may be prescribedpursuant to law.

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Article X- Revenue

Section 20. The Taxpayer’s Bill of Rights.

(1) General provisions. This section takes effectDecember 31, 1992 or as stated. Its preferredinterpretation shall reasonably restrain mostthe growth of government. All provisions areself-executing and severable and supersedeconflicting state constitutional, state statutory,charter, or other state or local provisions. Otherlimits on district revenue, spending, and debtmay be weakened only by future voter approval.Individual or class action enforcement suits maybe filed and shall have the highest civil priorityof resolution. Successful plaintiffs are allowedcosts and reasonable attorney fees, but a districtis not unless a suit against it be ruled frivolous.Revenue collected, kept, or spent illegally sincefour full fiscal years before a suit is filed shall berefunded with 10% annual simple interest fromthe initial conduct. Subject to judicial review,districts may use any reasonable method forrefunds under this section, including temporarytax credits or rate reductions. Refunds need notbe proportional when prior payments areimpractical to identify or return. When annualdistrict revenue is less than annual payments ongeneral obligation bonds, pensions, and finalcourt judgments, (4)(a) and (7) shall besuspended to provide for the deficiency.

(2) Term definitions. Within this section:

(a) “Ballot issue” means a non-recall petitionor referred measure in an election.

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(b) “District” means the state or any localgovernment, excluding enterprises.

(c) “Emergency” excludes economicconditions, revenue shortfalls, or districtsalary or fringe benefit increases.

(d) “Enterprise” means a government-ownedbusiness authorized to issue its ownrevenue bonds and receiving under 10% ofannual revenue in grants from allColorado state and local governmentscombined.

(e) “Fiscal year spending” means all districtexpenditures and reserve increasesexcept, as to both, those for refunds madein the current or next fiscal year or thosefrom gifts, federal funds, collections fora n o t h e r g o v e r n m e n t , p e n s i o ncontributions by employees and pensionfund earnings, reserve transfer orexpenditures, damage awards, orproperty sales.

(f) “Inflation” means the percentage changein the United States Bureau of LaborStatistics Consumer Price Index forDenver-Boulder, all items, all urbanconsumers, or its successor index.

(g) “Local growth” for a non-school districtmeans a net percentage change in actualvalue of all real property in a district fromconstruction of taxable real propertyimprovements, minus destruction ofsimilar improvements, and additions to,

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minus deletions from, taxable realproperty. For a school district, it meansthe percentage change in its studentenrollment.

(3) Election provisions.

(a) Ballot issues shall be decided in a stategeneral election, biennial local districtelection, or on the first Tuesday inNovember of odd-numbered years. Exceptfor petitions, bonded debt, or charter orconstitutional provisions, districts mayconsolidate ballot issues and voters mayapprove a delay of up to four years invoting on ballot issues. District actionstaken during such a delay shall notextend beyond that period.

(b) At least 30 days before a ballot issueelection, districts shall mail at the leastcost, and as a package where districtswith ballot issues overlap, a titled noticeor set of notices addressed to “AllRegistered Voters” at each address of oneor more active registered electors. Thedistricts may coordinate the mailingrequired by this paragraph (b) with thedistribution of the ballot informationbooklet required by section 1 (7. 5) ofarticle V of this constitution in order tosave mailing costs. Titles shall have thisorder of preference: “NOTICE OFELECTION TO INCREASE TAXES/TOINCREASE DEBT/ON A CITIZENPETITION/ON A REFERRED

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MEASURE.” Except for district voter-approved additions, notices shall includeonly:

(i) The election date, hours, ballottitle, text, and local election officeaddress and telephone number.

(ii) For proposed district tax or bondeddebt increases, the estimated oractual total of district fiscal yearspending for the current year andeach of the past four years, and theoverall percentage and dollarchange.

(iii) For the first full fiscal years ofeach proposed district tax increase,district estimates of the maximumdollar amount of each increase andof district fiscal year spendingwithout the increase.

(iv) For proposed district bonded debt,its principal amount and maximumannual and total districtrepayment cost, and the principalbalance of total current districtbonded debt and its maximumannual and remaining total districtrepayment cost.

(v) Two summaries, up to 500 wordseach, one for and one against theproposal, of written comments filedwith the election officer by 45 daysbefore the election. No summary

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shall mention names of persons orprivate groups, nor anyendorsements of or resolutionsagainst the proposal. Petitionrepresentatives following theserules shall write this summary fortheir petition. The election officershall maintain and accuratelysummarize all other relevantwritten comments. The provisionsof this subparagraph (v) do notapply to a statewide ballot issue,which is subject to the provisions ofsection 1 (7.5) of article V of thisconstitution.

(c) Except by later voter approval, if a taxincrease or fiscal year spending exceedsany estimate in (b)(iii) for the same fiscalyear, the tax increase is thereafterreduced up to 100% in proportion to thecombined dollar excess, and the combinedexcess revenue refunded in the next fiscalyear. District bonded debt shall not issueon terms that could exceed its share of itsmaximum repayment costs in (b)(iv).Ballot titles for tax or bonded debtincreases shall begin, “SHALL(DISTRICT) TAXES BE INCREASED(first, or if phased in, final, full fiscalyear dollar increase) ANNUALLY... ?” or “SHALL (DISTRICT) DEBTBE INCREASED (principal amount),WITH A REPAYMENT COST OF(maximum total district cost), ... ?

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(4) Required elections. Starting November 4,1992, districts must have voter approval inadvance for:

(a) Unless (1) or (6) applies, any new tax, taxrate increase, mill levy above that for theprior year, valuation for assessment ratioincrease for a property class, or extensionof an expiring tax, or a tax policy changedirectly causing a net tax revenue gain toany district.

(b) Except for refinancing district bondeddebt at a lower interest rate or addingnew employees to existing district pensionplans, creation of any multiple-fiscal yeardirect or indirect district debt or otherfinancial obligation whatsoever withoutadequate present cash reserves pledgedirrevocably and held for payments in allfuture fiscal years.

(5) Emergency reserves. To use for declaredemergencies only, each district shall reserve for1993 1% or more, for 1994 2% or more, and forall later years 3% or more of its fiscal yearspending excluding bonded debt service. Unusedreserves apply to the next year’ s reserve.

(6) Emergency taxes. This subsection grants nonew taxing power. Emergency property taxes areprohibited. Emergency tax revenue is excludedfor purposes of (3)(c) and (7), even if laterratified by voters. Emergency taxes shall alsomeet all of the following conditions:

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(a) A 2/3 majority of the members of eachhouse of the general assembly or of a localdistrict board declares the emergency andimposes the tax by separate recorded rollcall votes.

(b) Emergency tax revenue shall be spentonly after emergency reserves aredepleted, and shall be refunded within180 days after the emergency ends if notspent on the emergency.

(c) A tax not approved on the next electiondate 60 days or more after the declarationshall end with that election month.

(7) Spending limits.

(a) The maximum annual percentage changein state fiscal year spending equalsinflation plus the percentage change instate population in the prior calendaryear, adjusted for revenue changesapproved by voters after 1991. Populationshall be determined by annual federalcensus estimates and such number shallbe adjusted every decade to match thefederal census.

(b) The maximum annual percentage changein each local district’s fiscal year spendingequals inflation in the prior calendar yearplus annual local growth, adjusted forrevenue changes approved by voters after1991 and (8)(b) and (9) reductions.

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(c) The maximum annual percentage changein each district’s property tax revenueequals inflation in the prior calendar yearplus annual local growth, adjusted forproperty tax revenue changes approvedby voters after 1991 and (8)(b) and (9)reductions.

(d) If revenue from sources not excluded fromfiscal year spending exceeds these limitsin dollars for that fiscal year, the excessshall be refunded in the next fiscal yearunless voters approve a revenue changeas an offset. Initial district bases arecurrent fiscal year spending and 1991property tax collected in 1992.Qualification or disqualification as anenterprise shall change district bases andfuture year limits. Future creation ofdistrict bonded debt shall increase, andretiring or refinancing district bondeddebt shall lower, fiscal year spending andproperty tax revenue by the annual debtservice so funded. Debt service changes,reductions, (1) and (3)(c) refunds, andvoter-approved revenue changes aredollar amounts that are exceptions to,and not part of, any district base. Voter-approved revenue changes do not requirea tax rate change.

(8) Revenue limits.

(a) New or increased transfer tax rates onreal property are prohibited. No new statereal property tax or local district income

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tax shall be imposed. Neither an incometax rate increase nor a new statedefinition of taxable income shall applybefore the next tax year. Any income taxlaw change after July 1, 1992 shall alsorequire all taxable net income to be taxedat one rate, excluding refund tax creditsor voter-approved tax credits, with noadded tax or surcharge.

(b) Each district may enact cumulativeuniform exemptions and credits to reduceor end business personal property taxes.

(c) Regardless of reassessment frequency,valuation notices shall be mailedannually and may be appealed annually,with no presumption in favor of anypending valuation. Past or future sales bya lender or government shall also beconsidered as comparable market salesand their sales prices kept as publicrecords. Actual value shall be stated onall property tax bills and valuationnotices and, for residential real property,determined solely by the market approachto appraisal.

(9) State mandates. Except for public educationthrough grade 12 or as required of a localdistrict by federal law, a local district mayreduce or end its subsidy to any programdelegated to it by the general assembly foradministration. For current programs, the statemay require 90 days notice and that the

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adjustment occur in a maximum of three equalannual installments.

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APPENDIX G

Colorado Enabling Act, 18 Stat. 474 (1875)

CHAP. 139.—An act to enable the people of Coloradoto form a constitution and State government, and forthe admission of the said State into the Union on anequal footing with the original States.

Be it enacted by the Senate and House ofRepresentatives of the United States of America inCongress assembled, That the inhabitants of theTerritory of Colorado included in the boundarieshereinafter designated be, and they are hereby,authorized to form for themselves, out of said Territory,a State government, with the name of the State ofColorado; which State, when formed, shall be admittedinto the Union upon an equal footing with the originalStates in all respects whatsoever, as hereinafterprovided.

* * *

SEC. 4. That the members of the convention thuselected shall meet at the capital of said Territory, on aday to be fixed by said governor, chief justice, andUnited States attorney, not more than sixty dayssubsequent to the day of election, which time ofmeeting shall be contained in the aforesaidproclamation mentioned in the third section of this act,and, after organization, shall declare, on behalf of thepeople of said Territory, that they adopt theConstitution of the United States; whereupon the saidconvention shall be, and is hereby, authorized to forma constitution and State government for said Territory:

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Provided, That the constitution shall be republican inform, and make no distinction in civil or political rightson account of race or color, except Indians not taxed,and not be repugnant to the Constitution of the UnitedStates and the principles of the Declaration ofIndependence: And provided further, That saidconvention shall provide, by an ordinance irrevocablewithout the consent of the United States and the peopleof said State, first, that perfect toleration of religioussentiment shall be secured, and no inhabitant of saidState shall ever be molested, in person or property, onaccount of his or her mode of religious worship; secondly, that the people inhabiting said Territory doagree and declare that they forever disclaim all rightand title to the unappropriated public lands lyingwithin said Territory, and that the same shall be andremain at the sole and entire disposition of the UnitedStates, and that the lands belonging to citizens of theUnited States residing without the said State shallnever be taxed higher than the lands belonging toresidents thereof, and that no taxes shall be imposed bythe State on lands or property therein belonging to, orwhich may hereafter be purchased by the UnitedStates.