IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. Civil Action No. POLLY BACA and ROBERT NEMANICH, Plaintiffs v. JOHN W. HICKENLOOPER JR,, in his official capacity as Governor of Colorado, CYNTHIA H. COFFMAN, in her official capacity as Attorney General of Colorado, and WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State. Defendants. [PROPOSED] ORDER GRANTING MOTION BY PLAINTIFFS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION THIS MATTER came before the Court on the Motion By Plaintiffs for Temporary Restraining Order and Preliminary Injunction (the “Motion”), dated December 6, 2016, filed by PI ‘ffs. ‘The Court, having considered the Motion and the Exhibits attached thereto or referenced therein, the Complaint, any response to the Motion and reply in support of the Motion, any testimony and other evidenced offered at any evidentiary hearing on the Motion, and being, otherwise fully advised in the premises, makes the following preliminary findings of fact and conclusions of law: I. RELIEF SOUGHT AND NOTICE Plaintiffs seek entry of a temporary restraining order and preliminary injunction, pursuant to Fed. R. Civ. P. 65(a) and (b) based on their claim that C.R.S. § 1-4-304(5) is unconstitutional. Plaintiff's provided actual notice of the Motion and Complaint and Exhibits thereto to Defendants.I. STANDARD OF REVIEW “In order to merit a preliminary injunction, Plaintiff must establish that: (1) it has a substantial likelihood of prevailing on the merits; (2) it will suffer irreparable injury if itis denied ‘the injunction; (3) its threatened injury outweighs the injury that the opposing party will suffer under the injunction; and (4) an injunction would not be adverse to the public interest.” Country Kids ‘N Slicks, Inc. v. Sheen, 77 F.3d 1280, 1283 (10" Cir. 1996). It. APPLICABLE FACTS AND APPLICATION OF FACTS TO LAW Applying the four preliminary injunction factors to the facts of this case, the Court finds that Plaintiffs have established their entitlement to the relief sought. AL Substantial Likelihood of Prevailing on the Merits As to this factor, the Tenth Circuit advises: ‘To demonstrate a substantial likelihood of success (a plaintiff is] required to present “a prima facie case showing a reasonable probability that [he/she] will ultimately be entitled to the relief sought.” [A plaintiff is} not required to show to an absolute certainty that [he/she] has a right to prevail on the infringement claim at trial. Rather, under our “liberal definition” of the likelihood of success factor, “[wJhen the other three requirements for a preliminary injunction are satisfied, ‘it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation."* Autoskill Inc. v. Nat’ Educ. Support Sys., Inc., 994 F.2d 1476, 1487 (10" Cir. 1993) omitted). Plaintiffs assert that C.R.S. § 1-4-304(5) is unconstitutional because it requires them to vote for Hillary Clinton and Timothy Kaine because Plaintiffs are electors from the Democratic Party and the majority of Colorado’s voters voted for Mrs. Clinton and Mr. Kaine, Plaintiffs assert this “binding statute” violates Article Il § 1 of the Constitution and the TwelfthAmendment because the Constitution does not allow for the removal of electors like Plaintiffs. The State would remove Plaintiffs as electors if electors vote for someone other than Mrs. Clinton and Mr. Kaine. But if Plaintiffs violate their pledge to vote for Mrs. Clinton or Mr. Kaine, itis a pledge they made to the Democratic Party and the State has no interest in who the Democratic or Republican Party choose to be electors or enforcing pledges to private political parties. Further, the party is granted all authority to nominate and fill vacancies for electors, not the State. It is dangerous for the State to insert itself, as a sovereign, into party politics. Were the State, in this instance, to force electors to vote for the Democratic nominees, the State would be favoring Mrs. Clinton and Mr. Kaine over other presidential and vice-presidential candidates. This is something no state can or should do. Thus, it is substantially likely that Plaintiffs will succeed in showing that a statute binding electors to certain candidates violates Article 1 § 1 and Amendment XII, in a system like Colorado’s where only the winner of the popular vote state- wide sends his/her slate of electors to vote on December 19, 2016. Plaintiffs also assert that Colorado's binding statute violates the Fourteenth Amendment to the U.S. Constitution because the statute unconstitutionally dilutes their votes as electors. While the Constitution grants Colorado, and other states, the power to administer elections and appoint electors, states must do so consistent with other parts of the Constitution, including the Fourteenth Amendment, which, guarantees equal protection under the law. See Williams v. Rhodes, 393 U.S. 23, 29 (1968). The U.S. Supreme Court in Bush v. Gore, 531 U.S. 98, 104 (2000) found that states, once “the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed toeach voter.” Thus, Colorado, because it has vested the right to vote for President in its people by allowing them to vote for the presidential electors as opposed to appointing the electors, Colorado cannot dilute its citizens’ vote for the President through a system or statute that values the votes of whichever citizens vote for the candidates that carry a majority or plurality of the popular vote in the state — in this case Mrs. Clinton and Mr. Kaine — over the votes of citizens that voted for other candidates. Colorado's binding statute unconstitutionally ensures that the citizens in the minority have no voice in the presidential election because only electors for the “winning” candidate are allowed to vote and those electors must vote for that candidate. Thus, it is substantially likely that Plaintiffs will succeed in showing that a statute binding electors to certain candidates violates Amendment XIV. Finally, Plaintiffs argue that Colorado’s binding statute violates the First Amendment because it eliminates debate and investigation into the best candidate for office and compels Plaintiffs to cast their votes for a specific candidate. Free political speech is fundamental to a free Republic. Forcing someone to vote for a particular candidate is antithetical to the concept of democracy and is reserved for banana republics and dictatorships. Enforcing the binding statute forces Plaintiffs to vote for, in this case, Mrs. Clinton and Mr. Kaine. While Plaintiffs may ultimately vote for them, they cannot be compelled to do so. The fact that Plaintiffs are electors and are not acting similarly to private citizens in an election for a congressman, for example, does not change the outcome because all citizens eligible to vote, regardless of what role they are in when they vote, are entitled to free speech. Thus, it is substantially likely that Plaintiffs will succeed in showing that a statute binding electors to certain candidates violates Amendment I. Irreparable Harm“In federal courts, the moving party must show irreparable injury in order to obtain a preliminary injunetion. Injury is generally not irreparable if compensatory relief would be adequate. Thus, [Plaintiffs] must show not only that [they are] injured by the failure to issue the preliminary injunction, but also that damages are not adequate to compensate that injury.” Tri- State Generation, 805 F.2d at 355. Absent an injunction, Plaintiffs will lose their ability to vote for the President and Vice- President on December 19, 2016. No monetary damages exist that would undo that harm. Thus, Plaintiffs satisfy the irreparable harm prong. C. Balance of Hardships The third prong of a standard preliminary injunction inquiry requires [Plaintiffs] to demonstrate that the balance of harms weighs in [their] favor, and that denying the injunction will cause more harm than granting it” Doubleclick Inc. v. Paikin, 402 F. Supp. 24 1251, 1260 (D. Colo. 2005) (citation omitted). The balance of hardship weighs in favor of Plaintiffs here because they will experience the hardship in being removed from their position as electors. The State has not demonstrated any hardship will occur and it is apparent to this Court that allowing the electors, including PlaintiffS, to vote their free will on December 19, 2016 will cost nothing and result inno harm. D. Public Interest “The final showing that [Plaintiffs] must make is that the preliminary injunction will not be adverse to the public interest.” Doubleclick, 402 F.Supp.2d at 1260 (citation omitted). ‘The Court agrees with Plaintiffs that granting the injunction will serve the public interest and not granting the injunction would be adverse to the public interest because the public, both inColorado and beyond, have a vested interest in ensuring our elections are fair, reliable, and constitutionally sound. Under our system, the electors must be given the time and freedom to deliberate, investigate, and vote for the candidates they believe to be best fit and qualified for the presidency and vice-presidency. Forcing electors to rubber-stamp the popular vote in Colorado di erves the public interest by ignoring the safety valve ereated in the Constitution by the Electoral College. Today, the Plaintiffs ask only for the freedom to do their constitutional duty. This Court will grant them that freedom. IV. SECURITY IS UNNECESSARY injunction bond for an enforceable order for preliminary injunctive relief. Defendants cannot show “a likelihood of harm” if the preliminary injunction issues. As such no security is required. Coguina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10" Cir. 1987) (*[A] trial court may, in the exercise of discretion, determine a bond is unnecessary to secure a preliminary injunction “if there is an absence of proof showing a likelihood of harm.™) (citation omitted). Accordingly, it is ORDERED as follows: A. Until further Order of the Court, Defendants, and each of their principals, officers, agents, servants, employees, attorneys-in-fact, attorneys-in-law, contractors, consultants, distributors, and any and all persons under the control or in active concert or participation with Defendants, jointly or severally, who receive actual notice of the Court’s order or judgment by personal service or otherwise, are temporarily and preliminarily enjoined and restrained from enforcing C.R.S. § 1-4-304(5), removing or replacing any electors for any reason other thandeath or physical absence of the elector, or otherwise influencing or interfering with the electors votes on December 19, 2016. B. The Court waives the security requirement of Fed. R. Civ. P. 65(c). BY THE COURT: