I blogged a few months ago about Colorado's recall mechanism, which a majority of the Colorado Supreme Court found unconstitutional. I'll analyze the highlights of the opinion briefly, and then turn to a federal courts question: can Colorado successfully petition the Supreme Court to hear the case?
Colorado's constitution provides, "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." Before the election, a question arose as to whether this was constitutional, as California had a similar mechanism that was struck down.
Rather than leave the question pending for an upcoming election, Colorado used a special mechanism, the "Governor's Interrogatory," where it could ask the Supreme Court to evaluate the constitutionality of the law.
The court concluded that the mechanism violated the First and Fourteenth Amendments. First, the court reasoned, it compels a voter to speak on one issue and forbids the voter from abstaining on that issue. Additionally, under the Fourteenth Amendment, the court concluded that there is no "rational" justification for the two-step system, and that it was, accordingly, a "severe restriction" on the right to vote.
The dissent, however, explained how such a system came about. Oregon developed the recall mechanism in a slightly different way. Originally, a century ago, the recall would consist of a slate of candidates, including the incumbent governor if he went through the process to put his name on the ballot, and the people would vote for the replacement. If the incumbent won a plurality of the vote, he would hold his seat; if someone else won a plurality of the vote, the governor had been recalled and the recall winner became governor. Later developments broke this question into two stages: a question on the recall, and a question as to who should replace the recalled governor. This simultaneously reflected a decision to exclude the subject of the recall from the subsequent slate of replacements. The dissent, then, notes a fairly straightforward explanation for having such a two-question system, and for requiring a vote on both parts. It's a thoughtful defense of the statute.
So, why revisit this opinion now? The court reached its decision October 21, 2013. Colorado has 90 days from the entry of judgment to petition the United States Supreme Court.
But, this question did not arise from a voter who was concerned that her vote might be lost, from a typical adversarial posture. It arose from the Governor's Interrogatory. And the Colorado Supreme Court has now weighed in and struck down the statute. But if the state appeals to the United States Supreme Court, the Court might be reluctant to hear the case. After all, even though Article III standing can look different on appeal, the Court still tends to appreciate a kind of "sharpness" in the adversarial posture of the parties on review.
Then again, Colorado prudently chose to ask its high court ex ante to avoid calling into doubt the election, or to avoid postponing the answer to the question until ordinary plaintiffs raised it and ran it through the court system. And now Colorado may find itself in a situation where the decision from the Colorado Supreme Court is unreviewable unless the United States Supreme Court would hear the case.
I don't know if Colorado will appeal. But the federal courts issue wrapped up in the recall issue is, I think, something that deserves some attention.