Semple et al v. Williams

BRIEF in Opposition to 13 First MOTION to Dismiss Under Fed. R. Civ. P. 12

D. Colo.June 28, 2017

1 In the United States District Court For the District of Colorado Civil Action No. 1:17-cv-1007-WJM William Semple, individually; The Coalition for Colorado Universal Health Care, a/k/a Cooperate Colorado; ColoradoCareYes, a Colorado not-for-profit corporation, and Dan Hayes, invidividually, Plaintiffs, vs. Wayne W. Williams, in his official Capacity as Secretary of State of Colorado. PLAINTIFFS’ OPPOSITION TO THE MOTION TO DISMISS Prior to Amendment 71’s approval by the voters in the November, 2016, election, a proposed initiated constitutional amendment could be placed on the ballot if the proponents collected the signatures of 5% of those voting for secretary of state in the most recent election, regardless of where those voters lived. Amendment 71 keeps this 5% requirement, but mandates that the 5% figure include the signatures of at least 2% of the registered voters in each of the state’s thirty-five senate districts. While these districts are approximately equal in total population, the number of registered voters varies by as much as 60% from district to district. The stated purpose of Amendment 71’s two percent requirement is that, “Requiring that signatures for constitutional initiatives be gathered from each state senate district ensures that citizens from across the state have a say in which measures are placed on the ballot. Due to the relative ease of collecting signatures in heavily populated urban areas compared to sparsely populated rural areas, rural citizens currently have a limited voice in determining which issues Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 1 of 15 2 appear on the ballot.” (BlueBook, quoted in full in the Complaint, paragraph 28). As set forth below, this is not a legitimate state purpose. In American Constitutional Law Foundation, Inc. v. Meyer, 120 F.3d 1092, 1097 (10th Cir. 1997), the Court stated the obvious when it noted that “A successful [initiative] petition results in a question being submitted to the voters. Thus, the petition process is a ballot access vehicle, as well as a vehicle for political expression.” Plaintiffs claim that that Amendment 71 is constitutionally infirm for five reasons: (1) Because there is an enormous disparity in the populations of registered voters in the several districts, it violates the Equal Protection guarantee of one person, one vote – i.e., that every person’s vote - or in this case every person’s signature on the petition – has equal weight. (2) The state has no legitimate interest in giving voters throughout the state a “say” in what initiatives appear on the ballot when its need to assure a modicum of support for any ballot initiative seeking ballot placement is satisfied by the 5% requirement. (3) Amendment 71 gives voters in each district the power to block proposals that have the support of a majority of voters in other districts, even when 5% of the voters elsewhere in the State who voted for secretary of state sign the petitions. (4) Amendment 71 places an onerous burden on proponents seeking to place an initiative on the ballot by greatly increasing the cost and difficulty of doing so without a compelling reason for the increases, thus unconstitutionally blocking access to the ballot by the plaintiffs and other citizens’ groups. (5) Because Amendment 71 forces proponents to collect signatures in these rural districts, it coerces them, on pain of losing a place on the ballot, into speaking to people they do not choose to address in places they do not wish to speak. The right to initiate proposed laws and amendments to the Constitution is guaranteed by the Colorado Constitution, Article V, section 1: “The legislative power of the state shall be Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 2 of 15 3 vested in the general assembly. . . .but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly. . . .” In McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969, 971 (1980), the Court held that. “Like the right to vote, the power of initiative is a fundamental right at the very core of our republican form of government.” McKee then noted that, “This court has always. . . . viewed with the closest scrutiny any governmental action that has the effect of curtailing its free exercise.” See also, Margolis v. District Court, 638 P.2d 297, 302 (Colo. 1981); and Loonan v. Woodley, 882 P.2d 1380, 1383 (Colo. 1994). Initiatives are thus an integral part of Colorado’s electoral system because they are a “guarantee of participation in the political process.” Loonan, supra. Although a citizen’s right to initiate laws and amendments to the state’s constitution is a right created by the state, the state cannot impose conditions on its exercise that violate the United States Constitution. See, e.g., Meyer v. Grant, 828 F.2d 1446, 1455-1456 (10th Cir. 1987)(en banc), aff’d., Meyer v. Grant, 486 U.S. 414, 424-425 (1988). Nor can the people of a state enact by popular vote laws that violate the federal Constitution. American Constitutional Law Foundation, Inc. v. Meyer, supra, 120 F.3d at 1100, aff’d, Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999). See also, Lucas v. Forty-fourth General Assembly of Colorado, 377 U.S. 713, 736 (1964). By granting its citizens the right to initiate constitutional amendments, Colorado has enshrined into its foundational law a procedure that can only be utilized when citizens exercise rights guaranteed by the First and Fourteenth Amendments to the United States Constitution. To collect signatures on an initiative petition, citizens must engage in core political speech and Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 3 of 15 4 associational activities in an effort to induce voters to sign the petitions necessary to place the initiative on the ballot. See, generally, the Tenth Circuit and Supreme Court opinions in Meyer v. Grant and American Constitutional Law Foundation v. Buckley, both supra. In Meyer v. Grant, supra, the Supreme Court held that although Colorado’s statute “leaves open ‘more burdensome’ avenues of communication, [that] does not relieve its burden on First Amendment expression. . . The First Amendment protects appellees’ right not only to advocate their cause, but also to select what they believe to be the most effective means for doing so.” 486 U.S. at 424. Amendment 71 prevents initiative proponents from selecting what they believe to be the most effective means of advocating their cause, which in the first instance is the collection of signatures on their petitions. For any proponent on a limited budget, and that includes virtually all citizens’ organizations and the plaintiffs here, the best way to advocate their cause is to engage in core political speech and associational activities in the densely populated urban districts where the cost and difficulty of gathering signatures are not nearly as great as the cost and difficulty of gathering signatures in the thinly populated rural districts. Amendment 71 simultaneously prevents proponents from choosing the best means of communicating their message, i.e., by concentrating their efforts in densely populated urban districts, and forces them to present it to people and in places that the government dictates. Meyer rejected Colorado’s argument that “the prohibition [against paid circulators] is justified by its interest in making sure that an initiative has sufficient grass roots support to be placed on the ballot. . . As the Court of Appeals correctly held, the former interest is adequately protected by the requirement [that proponents obtain the signatures of 5% of those voting for secretary of state] that no initiative proposal may be placed on the ballot unless the required Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 4 of 15 5 number [5% of those voting for secretary of state in the last election] of signatures has been obtained.” 486 U.S. at 425-426. Here, because the 5% requirement is adequate to protect the state’s interest in insuring that a proposed initiative has sufficient grass roots support to place it on the ballot, the additional requirement that the 5% include 2% of the voters in each state senate district serves no legitimate state purpose, much less a compelling one. See, Bloomquist v. Thomson, 739 F.2d 525 (10th Cir. 1984), where the Tenth Circuit struck a Wyoming law that required minor parties to get voter signatures from at least two counties in order to be placed on the ballot. The Court rejected Wyoming’s argument that the rule was necessary “to assure that a new party has a fairly broad base of support” because “We are not persuaded that the State has a compelling interest in requiring that supporters of a new political party be scattered across the state.” 739 F.2d at 528. Bloomquist controls the disposition of the case at bar because the intent and effect of Amendment 71 is to insure that “citizens from across the state have a say in which measures are placed on the ballot.” BlueBook, supra. Because Bloomquist holds that the state has no compelling interest in ensuring that supporters of a new political party be scattered across the state, and because it also held that the requirement had to be compelling in order to satisfy the First Amendment, it would surely strike down Amendment 71’s two percent requirement for the same reason. Colorado has no legitimate interest in giving rural voters a greater say in what proposed initiatives will appear on the ballot, just as it has no legitimate interest in giving their votes greater weight in the general election. Thus, Colorado could not, consistent with the United States Constitution, require that a successful statewide ballot initiative or candidate obtain two percent of the votes in each senate district in addition to obtaining the votes of a majority of the Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 5 of 15 6 state’s citizens who voted in an election. By the same logic, it cannot require the proponents of an initiative to obtain signatures of two percent of the voters in each senate district in order to place an initiative on the ballot. Nor could Colorado constitutionally require candidates for office or proponents of an initiative already placed on the ballot to campaign in every senate district. Because it cannot compel them to campaign everywhere in the state once their proposal is on the ballot, rather than wherever they choose, it cannot compel them to campaign in every district just to get their proposal on the ballot in the first place. Amendment 71 restricts initiative proponents’ access to the ballot by significantly increasing the cost and the difficulty of collecting signatures on a petition. Complaint, paragraph 62. This in turn severely limits the number of important issues that can be presented for public debate during the election campaign, which after all is when important issues garner the most attention. Unconstitutional ballot access restrictions can exist when the State, directly or indirectly, makes the cost of gaining access so great that it eliminates many qualified candidates or initiatives. See, Bullock v. Carter, 405 U.S. 134, 143-144 (1972), which struck a Texas law that required the payment of a large filing fee.1 And see, Krislov v. Rednour, 226 F.3d 851, 860 (7th Cir. 2000), where the Seventh Circuit recognized that increased difficulty and cost in collecting 1 Here, although Colorado does not impose a filing fee for initiatives, the effect of Amendment 71’s two percent requirement is just as onerous as a substantial fee because the greatly increased cost of satisfying the requirement makes the initiative process available only to wealthy proponents such as the large corporations that funded the Amendment 71 campaign. Plaintiffs will offer evidence of this greatly increased cost and of the difficulty in soliciting signatures in all thirty-five districts at hearing on their forthcoming motion for a preliminary injunction. Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 6 of 15 7 signatures “substantially burdened” a candidate’s First Amendment rights. Because the state has no legitimate interest in giving rural voters the power to block popular initiatives from appearing on the ballot, it cannot constitutionally justify the greatly increased cost and difficulty of collecting signatures in all thirty-five districts, as opposed to only collecting them in the most populous districts. The constitutionality of ballot access restrictions was addressed by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), where the Court held that in reviewing the constitutionality of ballot access restrictions, it must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It must then identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. See also, Harper v. Virginia Board of Elections, 383 U.S. 663 (1966); Crawford v. Marion County Election Board, 553 U.S. 181, 190 (2008) (Scalia, J., concurring): “. . . .the first step is to decide whether a challenged law severely burdens the right to vote. Ordinary and widespread burdens, such as those requiring ‘nominal effort’ of everyone, are not severe. . . Burdens are severe if they go beyond merely inconvenient. See Storer v. Brown, 415 U.S. 724, 728-729 (1974). . . .” 553 U.S. at 204-205. See also, Burdick v. Takushi, 504 U.S. 428, 434 (1992): “. . . as we have recognized when those [First Amendment] rights are subjected to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’ Norman v. Reed, 502 U.S. (1992). See also, Lubin v. Panish, 415 U.S. 709, 716 (1974) and American Party of Texas v. White, 415 U.S. 767, 783 (1974): “Of course, what is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 7 of 15 8 from the ballot. The Constitution requires that access to the electorate be real, not ‘merely theoretical.’ Jenness v. Fortson, 403 U.S. 431, 439 (1971).” Under these tests, however they are applied, a 12(b)(6) dismissal is improper because it prevents the Court from engaging in the analyses and balancing tests which these cases require. Save Palisades Fruitlands v. Todd, 279 F.3d 1204, 1211 (10th Cir. 2002) does not help the State because it holds that “the right to free speech and the right to vote are not implicated by the state’s creation of an initiative procedure, but only by the state’s attempt to regulate speech associated with the initiative procedure.” This is precisely what the plaintiffs contend here, that the State is unconstitutionally regulating and compelling speech associated with the process of placing an initiative on the ballot. In Todd, the plaintiffs argued that their rights to free speech were violated because Colorado allowed initiative petitions in home rule counties but not in statutory ones. The Court noted that “[B]ecause there is no petition process being regulated, and because there is no federal right to have such a process created,” there was no First Amendment violation. Nor does Initiative and Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) support the State’s arguments. There, the plaintiffs brought a First Amendment challenge to a Utah law that required initiated measures relating to wildlife measures to pass by a two-thirds majority, while other measures only required a simple majority. The plaintiffs argued that this had a chilling effect on their First Amendment rights by making wildlife initiatives less likely to succeed. The Court held that, “Although the First Amendment protects political speech incident to an initiative campaign, it does not protect the right to make law, by initiative or otherwise.” 450 F.3d at 1100. The Court continued with this line of reasoning a bit later: “the supermajority requirement at issue here is a regulation of the legislative process, not a regulation of speech or Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 8 of 15 9 expression. . .” because while the First Amendment “ensures that all points of view may be heard; it does not ensure that all points of view are equally likely to prevail.” 450 F.3d at 1101. The other cases cited by the State, notably Marijuana Policy Project v. United States, 304 F.3d 82 (D.C. Cir. 2002) and Skrzypczak v. Kauger, 93 F.3d 1050 (10th Cir. 1996) are equally inapposite because they simply approve limitations on the kind of issues which can be the subject of initiatives, and are therefore restrictions on the legislative process and do not involve the First Amendment at all. Amendment 71’s Two Percent Requirement Violates the One Person One Vote Rule The one person one, vote rule of Reynolds v. Sims, 377 U.S. 533, 555 (1964) was extended to candidate nominating petitions in Moore v. Olgive, 394 U.S. 814 (1969), where the Court struck an Illinois law which required that a nominating petition contain the signatures of at least 25,000 electors and that included in this number there must be the signatures of at least 200 electors from each of at least fifty counties. The Court held that, “It is no answer to the argument under the Equal Protection Clause that this law was designed to require statewide support for launching a new political party rather than support from a few localities. . . . .The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.” Id. See also, Communist Party v. State Board of Elections, 518 F.2d 517 (7th Cir. 1975)(cert. denied, 423 U.S. 986 (1975)). In Idaho Coalition United for Bears v. Cenarrusa, 342 F.3d 1073 (9th Cir. 2003), the Ninth Circuit applied the reasoning of Moore v. Olgive to strike a multi-county signature requirement for initiatives to be placed on the ballot. “As the district court noted, even if three quarters of Idaho’s citizens signed a petition, the measure could still fail to qualify for the ballot Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 9 of 15 10 because the proponents failed to collect the signatures from six percent of the registered voters in at least 22 separate counties.” 342 F.3d at 1075. The effect of Amendment 71, like the effect of the Idaho rule, is that even if a substantial majority of voters in more densely populated urban districts support a ballot measure by signing the petitions, the measure would still fail to qualify for the ballot unless the supporters also obtained approval from voters in less densely populated rural districts. This gives voters in rural districts veto power over ballot measures supported by urban voters. See Gray v. Sanders, 372 U.S. 368, 379-380 (1963) which holds that “homesite” is not recognized in the Constitution as a permissible basis for distinguishing among qualified voters in different parts of the state. See also, Gallivan v. Walker, 2002 UT 89, 54 P.3d 1069 (2002), which, like Bloomquist and Idaho Coalition, holds that the state does not have a legitimate interest “to make certain that an initiative has broad geographically distributed statewide support before that initiative can be placed on the ballot.” 54 P.3d at 1087. The Utah Supreme Court held that, the multi-county signature requirement does not actually and substantially further the legislative purpose of ensuring statewide support. . . .[it] has the opposite effect. By giving an effective veto to the rural minority over the urban majority, initiatives that enjoy statewide support from the majority of the population and therefore focus on issues of at least numerical statewide concern are prevented from qualifying for the ballot. In this respect, the multi-county signature requirement thwarts the placement on the ballot of widely supported initiatives. 54 P.3d at 1088. Neither American Civil Liberties Union of Nevada v. Lomax, 471 F.3d 1010 (9th Cir. 2006), Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012), Libertarian Party of Virginia v. Davis, 766 F.2d 865 (4th Cir. 1985), Libertarian Party v. Bond, 764 F.2d 538 (8th Cir. 1985) nor Udall v. Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 10 of 15 11 Bowen, 419 F.Supp. 746 (N.D. Ind. 1976) (three judge court), affirmed, mem., 425 U.S. 947 (1976)2 are authority for the State’s position. In Lomax, the Ninth Circuit reaffirmed its holding in Idaho Coalition, supra, and struck Nevada’s rule that initiative proponents obtain the signatures of ten percent of the voters in thirteen of Nevada’s seventeen counties. However, the Court commented in dicta that, “even assuming that ensuring statewide support of a ballot initiative is a compelling state interest, the 13 Counties Rule is unconstitutional because it is not narrowly tailored. Nevada could base the 13 Counties Rule on legislative districts. . . .” 471 F.3d at 1021. Acting on this dicta, a subsequent panel of the Ninth Circuit upheld against an Equal Protection challenge a new Nevada statute that required petition circulators to obtain signatures from ten percent of the voters in each of Nevada’s three Congressional districts. Angle, supra. The Court reasoned that because each district was roughly equal in population, there was no one person, one vote violation. However, and importantly, in footnote 7, the Court in Angle stated that, “Ensuring a modicum of statewide support for an initiative is not a compelling state interest. See Moore, 394 U.S. 818. . . .” (italics in original) Angle nonetheless agreed that Nevada had shown an important regulatory interest “in this regard” and upheld its requirement that initiative proponents gather signatures from each of the state’s congressional districts. 673 F.3d 1135. In 2 Although the three judge court’s decision was summarily affirmed, the affirmance is not binding on the issues presented by the case at bar. See, Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 182- 183 (1979): “. . . the precedential effect of a summary affirmance can extend no further than the precise issues presented and necessarily decided by those actions. A summary disposition affirms only the judgment of the court below. . . .and no more may be read into our action than was essential to sustain the judgment. . . .Questions which merely lurk in the record. . . .are not resolved, and no resolution of them can be inferred.” (internal citations and quotation marks omitted). Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 11 of 15 12 reaching its conclusion on this point, however, the Court failed to explain precisely what that interest was or why it was important. See Id. Amendment 71’s two percent requirement is manifestly not regulatory because a state’s regulatory limits concern the time, place, and manner of holding elections, see, Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 451 (2008); its interest in ensuring an orderly electoral process and avoiding “chaos”, see Storer v. Brown, 415 U.S. 724, 730 (1974); “protecting the integrity of [its] political processes from frivolous or fraudulent candidacies, in ensuring that their election processes are efficient, in avoiding voter confusion caused by an overcrowded ballot,” see, Clements v.. Fashing, 457 U.S. 957, 965 (1982) (plurality opinion of Justice Rehnquist); in ensuring that initiatives, minor parties, and independent candidates have “a modicum of support” from the electorate, see, Id.; and its interest in deterring fraud and mistake, see Loonan v. Woodley, supra. Giving voters in thinly populated rural districts a “say” in what initiatives are placed on the ballot – especially since that “say” gives them veto power over the wishes of a substantial majority of urban voters -- has nothing whatsoever to do with any of these legitimate regulatory interests. Because Angle, Davis, Bond, and Bowen fail to address the question of whether the state had a “compelling interest” in ensuring that an initiative has statewide support in order to get on the ballot, they are not dispositive.3 Instead, the Tenth Circuit opinion in Bloomquist, supra, must guide this Court’s decision, and Bloomquist both requires such an interest in order to pass 3 Nor do they address the question presented here, that the relevant population is not the total district population, but rather, the population of registered voters, which in Colorado varies by as much as 60% from one district to another. See, ante, at page 13. Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 12 of 15 13 First Amendment scrutiny and holds that no such interest is a compelling justification for a ballot access restriction that requires voter support throughout the state. Additionally, plaintiffs’ claim here is not based on the non-existent general population disparity among state senate districts, but on the immense disparity in the relevant populations of registered voters. The State’s citation to Evenwell v. Abbott, 136 S.Ct. 1120 (2016) is misplaced because it merely reiterated the rule that state legislative and Congressional districts must be approximately equal in population. The Court reasoned that legislative representatives represented people, not just voters: “[A]s the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible to vote. . . .Nonvoters have an important stake in many policy debates – children, their parents, even their grandparents, for example, have a stake in a strong public-education system – and in receiving constituent services. . . .By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.” 136 S.Ct. at 1132. Amendment 71 does not involve legislative apportionment and it does not utilize total district population as the relevant population for purposes of initiative petitions. Instead, it utilizes a sub-group of the general population—i.e., registered voters – as the population from which signatures are required, and those sub-groups vary enormously in size from district to district. The concern here is not to ensure that each legislative representative is responsible to an equal number of constituents. Rather, this is a ballot access case which invokes the one person, one vote rule, just as Moore v. Olgivie and its progeny do, to insure that the signatures of voters in urban districts are not worth less than the signatures of voters in rural districts, and that voters Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 13 of 15 14 in rural districts do not have the ability to keep measures supported by 5% or more of the voters from appearing on the ballot. By forcing proponents to collect signatures in thinly populated senate districts, Amendment 71 forces proponents like the plaintiffs to engage in core political speech in those districts, see Meyer v. Grant, 486 U.S. at 421-422, even though they would prefer to solicit signatures only in more densely populated districts where they can be gathered more efficiently and at less cost. It likewise forces them to engage in associational activities in order to further their signature collecting efforts. Both compelled political speech and compelled political association are contrary to the First Amendment. See, Wooley v. Maynard, 430 U.S. 705, 714 (1977), citing with approval to Miami Herald Publishing Company v. Tornillo, 418 U.S. 241 (1974), and California Democratic Party v. Jones, 530 U.S. 567 (2000). The coercive effect of Amendment 71 is clearly set forth in the complaint. If the proponents do not engage in the political speech and associational activities that the State dictates, their proposed initiative will not appear on the ballot, and their exercise of core political speech will be further curtailed because they will lose the ability to present their ideas to voters across the state for acceptance or rejection in an election. See, American Communications Association v. Douds, 339 U.S. 382, 402 (1950): “. . .the fact that no direct restraint or punishment is imposed on speech or assembly does not determine the free speech question. Under some circumstances, indirect ‘discouragements’ undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes.” This was quoted in part in Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004). Finally, as for the severability issue, the fact that Amendment 71 does not contain a severability clause indicates that the drafters did not consider the two parts to be severable. Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 14 of 15 15 Additionally, the Colorado Constitution, Article V, section 1(5.5) states that, “No measure shall be proposed by petition containing more than one subject. . .” Thus, Amendment 71 must contain but a single subject or it would not have been placed on the ballot by the State Title board, see, C.R.S. section, and because it does, the two parts of the same subject cannot be severed from each other. The purpose of Amendment 71, which is three times stated in its text, is to make it “more difficult to amend this Constitution”, and to that end, it contains two inextricably related provisions which cannot be severed from each other. Respectfully submitted, /s/ Ralph Ogden Wilcox & Ogden, P.C. 160 Lafayette Street Denver, Colorado 80218 303-263-7811 irishcorky@aol.com Certificate of Service I certify that this brief in opposition to the defendant’s motion to dismiss was electronically filed with the Clerk of Court on June 28, 2017, using the Court’s ECF filing system, and that it was accordingly served on by the ECF on the defense counsel of record that same day. /s/ Ralph Ogden Case 1:17-cv-01007-WJM Document 16 Filed 06/28/17 USDC Colorado Page 15 of 15