State of Colorado et al v. DeJoy et al

Filing 21

ORDER denying #12 Motion for Reconsideration by Judge William J. Martinez on 9/14/2020. (wjmlc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 20-cv-2768-WJM-STV
STATE OF COLORADO, and
JENA GRISWOLD, Colorado Secretary of State,
Plaintiffs,
v.
LOUIS DEJOY, in his official capacity as Postmaster General,
SAMARN S. REED, in his official capacity as the Denver, Colorado Regional
Postmaster,
CHRIS J. YAZZIE, in his official capacity as the Albuquerque, New Mexico Regional
Postmaster, and
UNITED STATES POSTAL SERVICE,
Defendants.

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION

Plaintiffs State of Colorado and Secretary of State Jena Griswold (jointly,
“Plaintiffs”), filed this lawsuit against Louis DeJoy, in his official capacity as Postmaster
General, Samarn S. Reed, in his official capacity as the Denver, Colorado Regional
Postmaster, Chris J. Yazzie, in his official capacity as the Albuquerque, New Mexico
Regional Postmaster, and the United States Postal Service (collectively, “Defendants”)
to enjoin Defendants from delivering by mail to Colorado households a notice regarding
the 2020 election. 1
On September 12, 2020, the Court issued a Temporary Restraining Order

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A copy of the notice at issue in the TRO (“Notice”) is attached as Exhibit A to the
Declaration of Judd Choate, Director of Elections for the Colorado Secretary of State. (ECF
No. 8-2.)

(“TRO”) enjoining Defendants from delivering the Notice by mail to Colorado
households. (ECF No. 11 at 8.)
Currently before the Court is Defendants’ Expedited Motion for Immediate
Reconsideration of Temporary Restraining Order (the “Motion”), filed on September 13,
2020. (ECF No. 12.) For the reasons explained below, the Motion is denied.
I. LEGAL STANDARD
District courts have broad discretion to reconsider their interlocutory rulings
before the entry of judgment. See Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th
Cir. 2011). Thus, a court can alter its interlocutory orders even where the more
stringent requirements applicable to a motion to alter or amend a final judgment under
Federal Rule of Civil Procedure 59(e), or a motion for relief from judgment brought
pursuant to Rule 60(b), are not satisfied. See Nat’l Business Brokers, Ltd. v. Jim
Williamson Prods., Inc., 115 F. Supp. 2d 1250, 1256 (D. Colo. 2000) .
“[T]o succeed in a motion to reconsider, a party must set forth facts or law of a
strongly convincing nature to induce the court to reverse its prior decision. Id. Even
under this lower standard, “[a] motion to reconsider . . . should be denied unless it
clearly demonstrates manifest error of law or fact or presents newly discovered
evidence.” Id.
II. ANALYSIS
A.

Heightened Standard
Defendants contend that the Court erred in applying the traditional TRO standard

instead of the heightened standard for disfavored injunctions. (ECF No. 12 at 10.) The

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Court disagrees.
The Tenth Circuit applies a heightened standard for “[d]isfavored preliminary
injunctions,” which do not
merely preserve the parties’ relative positions pending trial.
Instead, a disfavored injunction may exhibit any of three
characteristics: (1) it mandates action (rather than prohibiting
it), (2) it changes the status quo, or (3) it grants all the relief
that the moving party could expect from a trial win. To get a
disfavored injunction, the moving party faces a heavier
burden on the likelihood-of-success-on-the-merits and the
balance-of-harms factors: She must make a strong showing
that these tilt in her favor.
Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 797 (10th Cir. 2019)
(citations and internal quotation marks omitted). Although Defendants attempt to
characterize the TRO as an injunction affirmatively mandating action, it actually
prohibits action. (ECF No. 11 at 8 (“Defendants . . . are hereby IMMEDIATELY
ORDERED AND RESTRAINED FROM delivering by mail to Colorado households the
official notices attached as Exhibit A to the Declaration of Judd Choate, Director of
Elections for the Colorado Secretary of State (ECF No. 8-2).”).) The TRO preserves the
current status quo by prohibiting Defendants from undertaking a specific act – that of
mailing the Notice to Colorado households. Nothing in the actual text of the injunctive
language itself mandates any affirmative act whatsoever.
Moreover, even were the Court to unreasonably strain the meaning of its own
injunctive language to somehow transform the prohibition of an act the legal (and
factual) equivalence of ordering an affirmative act, that strained reality is a
consequence of Defendants’ own making. Plaintiffs state—and Defendants do not
contest or otherwise provide any controverting evidence to the contrary—that Plaintiffs
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began objecting to what they believed were the misstatements in the Notice as early as
Thursday, September 10, 2020, and that Defendants were informed on Friday,
September 11, 2020 that litigation was imminent absent some opportunity to informally
resolve the parties’ dispute. (ECF No. 14 at 8–9.) In the f ace of all this, Defendants
steadfastly held to their previously-planned course of conduct and continued to mail the
Notice to Colorado households. Had they not done so, there would be no need at this
point of these proceedings for the Court to require any affirmative disruption of the
status quo ante.
Accordingly, Defendants have failed to establish that the Court erred in applying
the traditional standard for a TRO.
B.

Likelihood of Success
Defendants argue that the Court erred in finding that Plaintiffs are likely to

succeed on the merits because Plaintiffs lack the authority to assert claims relating to
Colorado citizens’ right to vote. (ECF No. 12 at 10.) In particular, Defendants cite to
Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923), which bars states from acting
as parens patriae for their citizens in relations with the federal government. (Id. at
10–11.)
However, in Massachusetts v. Mellon, the Supreme Court left open the
possibility that states could sue the federal government to vindicate certain rights on
behalf of its citizens: “We need not go so far as to say that a state may never intervene
by suit to protect its citizens against any form of enforcement of unconstitutional acts of
Congress.” Id. at 485; see also Mass. v. EPA, 549 U.S. 497, 520 n.17 (2007) (allowing

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State “to litigate as parens patriae to protect quasi-sovereign interests—i.e., public or
governmental interests that concern the state as a whole”).
Based on the limited record before it at this stage of the proceedings, the Court
finds that the Notice implicates Plaintiffs’ quasi-sovereign interests in the integrity of its
own elections. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S.
592, 607 (1982) (recognizing the State has an interest in “assuring that the benefits of
the federal system are not denied to its general population”). Accordingly, because
Colorado has a quasi-sovereign interest in ensuring that its citizens can exercise their
fundamental right to vote without federal interference, Plaintiffs have standing here to
assert claims on behalf of Colorado citizens. The Court does not, however, rule out the
possibility that at a later time it may reassess this conclusion, having then the benefit of
more comprehensive briefing and research on this issue.
Moreover, Plaintiffs also remain perfectly free to also assert their own
constitutional claims relating to Colorado’s authority under the Elections Clause to
determine the “Times, Places and Manner of holding Elections for Senators and
Representatives.” U.S. Const., Art. I, § 4, Cl. 1.
Defendants argue that the Notice does not affect Colorado’s authority under
Elections Clause to set its election rules within the state. (ECF No. 12 at 11–13.)
However, the Supreme Court has explicitly recognized that the States’ authority under
the Elections Clause is comprehensive and “embrace[s] authority to provide a complete
code for congressional elections,” including “in relation to notices.” Smiley v. Holm, 285
U.S. 355, 366 (1932) (emphasis added). Although the Constitution allows Congress to
override a State’s authority regarding its elections, it does not extend the same authority
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to the Postal Service – an agency of the federal executive branch. Defendants cite to
no authority–and the Court is aware of none–which would permit this constitutional
authority, specifically delegated to Congress, to be massively enlarged so as to cloak
the Postal Service and its agents with the power over-ride the election functions of a
state sovereign.
Accordingly, Defendants have failed to establish that the Court erred in
determining that Plaintiffs have established that they are likely to succeed on the merits
of their claims.2
B.

Irreparable Harm
Defendants contend that Plaintiffs failed to establish that injunctive relief was

necessary to prevent irreparable harm. (ECF No. 12 at 13–15.) In particular, they
argue that the Court relied on an “inaccurate factual premise” when it issued the TRO
because Defendants have already delivered the Notice to approximately 75% of
Colorado households. (Id. at 7.)
However, even assuming that 75% of Colorado households have already
received the Notice, the TRO still prevents irreparable harm from being inflicted on the
remaining 25% of households. By Defendants’ own estimate, there are approximately
555,068 Notices that have not yet been distributed to Colorado households. (Id. at 8.)
The imminent distribution of false and misleading voting information to over half a

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Defendants also argue that “Plaintiffs cited no authority that states have a
freestanding right to assert claims against the federal government under the Tenth Amendment
when a dispute arises about information relating to the elections.” (ECF No. 12 at 13.)
Defendants do not, however, cite any authority suggesting that the Court’s findings with respect
to the Tenth Amendment were clearly erroneous. It has therefore failed to establish that
reconsideration is warranted at this time. Nat’l Bus. Brokers, Ltd.,115 F. Supp. 2d at 1256.

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million Colorado households constitutes irreparably harm.3
C.

Balance of Harms

Defendants argue that “[f]ull compliance with the TRO will be extremely
burdensome, requiring an examination of mail by thousands of postal employees.”
(ECF No. 12 at 4.) They represent that approximately 75% of the Notices were already
delivered to Colorado households this week. (ECF No. 12 at 7.) Upon learning of the
TRO, Defendants were able to segregate 15% of the total Colorado-bound Notices
before they entered the processing system. (Id. at 8.) The remaining 10% of the total
Colorado-bound postcards, however, had already been partially processed for delivery.
(Id.)
After the Court issued the TRO, Defendants took many administrative steps to
prevent the partially-processed Notices from being delivered to Colorado households.
According to the Supplemental Declaration of Gregory Graves, approximately 30 Postal
Service employees have already manually inspected mail and attempted to remove the
Notices from the processing system. (ECF No. 20-1 ¶ 5.) They have also already
“issued a directive to all USPS post offices around the State of Colorado advising them
that the USPS had ordered to stop delivery of the [Notices].” (Id. ¶ 6.) In other words,
Defendants have already incurred most of the administrative burdens to preserve the

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Defendants also argue that Plaintiffs fail to establish that potential voter confusion is an
irreparable injury. (Id. at 14.) As Plaintiffs point out, “the harm is not mere uncertainty.” (ECF
No. 14 at 7.) Instead, the Notice delivers false and misleading information to Colorado voters
about when they should request and submit their ballots. This implicates Colorado’s
constitutional right to determine the time, place, and manner of its elections, as well as
Colorado voters’ fundamental right to vote. See Fish v. Kobach, 840 F.3d 710, 752 (10th Cir.
2016) (“when an alleged constitutional right is involved, most courts hold that no further
showing of irreparable injury is necessary”).

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status quo and comply with the TRO. Accordingly, Defendants’ arguments about the
harms resulting from compliance with the TRO do not justify reconsideration.4
D.

Defendants’ Arguments Regarding Statutory Grounds
In their opening and reply briefs, Defendants spend substantial time addressing

grounds of relief that the Court did not rely on in issuing the TRO. (ECF Nos. 12, 14;
see also ECF No. 11 at 4 n.4 (“Because Plaintiffs have shown a likelihood of success
on their constitutional claims, the Court need not address their statutory claims at this
time.”).) Because the Court did not make any findings about Plaintiffs’ statutory claims,
it will not address Defendants’ arguments that those claims lack merit and warrant
reconsideration of the TRO. In other words, the Court will not undertake to “reconsider”
findings or conclusions it never made in the first instance.
III. CONCLUSION
Accordingly, for the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Expedited Motion for Immediate Reconsideration of
Temporary Restraining Order (ECF No. 12) is DENIED;

2.

The Temporary Restraining Order (ECF No. 11) REMAINS IN FULL
FORCE AND EFFECT; and

3.

The briefing schedule set forth in the Temporary Restraining Order for the
construed motion for a preliminary injunction remains in place.

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Defendants also argue that the Court did not consider that the Notice: (1) encouraged
advance planning for those who planned to vote by mail to prevent a “flood of last-minute mailin voting”; and (2) provides voters a method to check their state’s voting rules. (ECF No. 12 at
15.) The Court finds that the Notice’s benefits pale in comparison to the fact that it conveys to
Colorado residents false and misleading information about Colorado’s voting deadlines.

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Dated this 14th day of September, 2020.
BY THE COURT:

William J. Martínez
United States District Judge

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