Colorado Supreme Court issues written opinion on challenge to constitutionality of Recall voting rules

The Colorado Supreme Court issued a written opinion expounding on the court’s earlier bench ruling on In re Interrogatory Propounded by Governor Hickenlooper, 13-SA-214 (when the court struck down Colorado’s constitutional requirement that a voter who fails to vote on whether to recall an official may not vote on who should fill the vacancy as a violation of the U.S. Constitution’s 1st & 14th Amendments)

The ruling was decided on a 5-2 vote, with Justices Coats and Marquez dissenting (a somewhat unusual pairing).

The Court’s Order (issued on 27 August 2013) was short and to the point:

The provision in Article XXI, Section 3, of the Constitution of the State of Colorado stating that “no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office,” conflicts with the First and Fourteenth Amendments to the United States Constitution. We therefore answer the Interrogatory in the negative. [Emphasis added] (Order 13SA214, p.2)


At issue was the constitutional requirement (Article XXI Section 3) that “an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue.”

The court ruled that requiring a vote on the recall question in order to vote on successor candidates amounted to an unconstitutional precondition (“prior participation requirement”) on the exercise of free speech (as expressed via voting) – in essence, “unconstitutionally compelling voters to speak on the recall question.” (Opinion at 9)

 The prior participation requirement in Colorado’s Constitution thus improperly burdens voters’ associational rights by compelling speech and therefore violates the First Amendment to the United States Constitution.  (Opinion at 11)

The court also held that the prior participation requirement “also effectuates a severe restriction on citizens’ fundamental right to vote”  (Opinion at 11) and “unconstitutionally compels voters to express a view on the question of whether to recall an elected official.” (Opinion at 12)

 Given that “any restrictions on [the right to vote] strike at the heart of representative government,” Reynolds, 377 U.S. at 555, the prior participation requirement at issue conflicts with voters’ fundamental right to vote under the Fourteenth Amendment. (Opinion at 13)

Dissenting Opinion

The dissent by Justice Marquez (joined by Justice Coats) raises some interesting issues, hinging on both the propriety of the court taking up the interrogatory in order to issue an advisory ruling, and on the interpretation of the federal constitutional language in this case.

Justice Marquez cautions against the exercise of judicial review to address a hypothetical situation –

(“Axiomatic to the exercise of judicial authority is the principle that a court should not decide a constitutional issue unless . . . the necessity for such a decision is clear and inescapable.”).  (Dissent at 8)

Justice Marquez also noted that overturning legislative or constitutional provisions “requires a showing of unconstitutionality beyond a reasonable doubt” and notes that

the U.S. Supreme Court has never addressed, let alone resolved, the constitutionality of a conditional vote requirement such as Colorado’s. We have no binding precedent on point that compels the conclusion that the language in article XXI, section 3 is unconstitutional beyond a reasonable doubt. (Dissent at 11)

Justice Marquez noted that the history of the adoption of Colorado’s Recall provision showed the intent of combining the question of Recall and successor candidate selection:

Here, the voters of Colorado decided, through citizen initiative, to establish a recall process that combines the recall question and the choice of a successor into a single election. In so doing, the citizenry decided that an incumbent shall be recalled only where a majority of those voting favor removal of the incumbent. Id. Accordingly, votes for a successor are tallied only where the incumbent is actually recalled. In this sense, the choice of a successor is derivative of the recall issue.  Thus, I disagree that these issues are in fact “wholly distinct,” maj. op. ¶ 26, at least where, as here, the voters of Colorado decided to combine them into a single election process. By requiring a voter to vote on the recall question as a condition to voting for a successor, this provision ensures that the citizens seeking to elect a particular successor are the same group of citizens who decided, by majority vote, to have the incumbent removed. (Dissent at 16-17; emphasis added)

Bottom Line:

The Colorado Supreme Court’s ruling did not substantially alter the conduct or timeline for the Recalls in September, nor will future Recall elections be substantially affected by the ruling, since (as actual election results have borne out) the number of votes to which the hypothetical raised in the governor’s Interrogatory applied was vanishingly small.  However, as Justice Marquez noted in her dissent, the court’s ruling may have set a precedent for expansion of the court’s power to preemptively decide future legal hypotheticals and “write out” constitutional language without benefit of trial.

Read more about the Colorado Recall Voting Rules case:

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

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