State Governance

Hickenlooper v. Kerr (2016)

  • May 17 2018

Oral Argument Not Available


Whether individual state legislators have standing to challenge a voter-approved initiative that deprives the legislature of their power to raise taxes, placing that power instead directly in the hands of voters. Also, whether claims made under the Republican Guarantee Clause are nonjusticiable “political questions” to be handled outside of the federal judiciary.

Second, whether bypassing state legislators to enact laws directly by the people is a violation of the Republican Guarantee Clause, which reads, “The United States shall guarantee to every State in this Union a Republican Form of Government …” In short, whether some or all direct democracy, in which the people vote directly on proposed laws, unconstitutionally detracts from the republican form of government, which some contend allows only representative lawmaking.


Established by voter initiative in 1992, the Colorado Taxpayers’ Bill of Rights TABOR amended Colorado’s state constitution to restrict state revenues for expenditure. Under this law state government, local government, and school boards may not raise taxes without voter approval and may not increase spending beyond a formula that combines the inflation rate percentage and the population rate percentage. Any revenue collected beyond this formula must be refunded to taxpayers.

In 2005, Coloradans passed Referendum C, which loosened some revenue caps for a period of five years to allow for more government spending. In 2011, after the referendum’s expiration, Colorado legislators challenged TABOR, claiming that the bill was unconstitutional primarily because it deprived Colorado of a republican form of government.

The Court Below

State representatives, school board members, councilmen, county commissioners, and others filed suit against Governor John Hickenlooper in federal district court, arguing that TABOR violated the Republican Guarantee Clause, the state’s Enabling Act, the Supremacy Clause, the Equal Protection Clause, and it impermissibly amended the state constitution in violation of the Colorado constitution.

Hickenlooper moved to dismiss the complaint, arguing that the plaintiffs lacked standing and because challenges to state initiatives under the Republican Guarantee Clause were not legal questions but “political questions” to be handled outside of the courts. The court, however, granted constitutional and prudential standing to plaintiffs who were current members of the Colorado General Assembly, holding that their Republican Guarantee and Enabling Act challenges to TABOR could proceed. The court did not address the merits of the case. See the opinion here:

Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 D. Colo. 2012

The 10th Circuit then ruled that indeed, the state legislators had standing and both the Enabling Act and the Republican Guarantee claims were both justiciable, and thus could be decided in the courts. The court did not address the substantive issues of whether the state initiative violated the Republican Guarantee Clause or the Enabling Act, instead remanding the case back to the district court for further proceeding. See the opinion here:

Kerr v. Hickenlooper, 744 F. 3d 1156 10th Cir. 2014

But Hickenlooper then petitioned the Supreme Court for a writ of certiorari, which the Court granted. The Court simply vacated the 10th Circuit’s judgment and remanded it for further consideration in light of Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.C. 46 2014. See the opinion here:

Hickenlooper v. Kerr, 135 S. Ct. 2927 2015

Examining the case for a second time, the 10th Circuit determined that in light of Arizona, the individual legislators lacked standing because they had asserted only an institutional injury, not a personal injury. They remanded the case back to the district court to determine whether the non-legislator plaintiffs possessed standing. See the opinion here:

Kerr v. Hickenlooper, 824 F. 3d 1207 10th Cir. 2016

The case returned to the district court, which concluded that in light of the above decisions, none of the plaintiffs had standing. It dismissed the action for lack of subject matter jurisdiction. See the opinion here:

Kerr v. Hickenlooper, No. 11-cv-01350-RM-NYW D. Colo. 2017

Question before the 10th Circuit

  1. Whether Plaintiffs’ claims that Colorado’s government is not republican in form remain non-justiciable political questions; and
  2. Whether a majority of legislators have standing to challenge a law that allegedly dilutes their power to legislate on a particular subject.

CCJ filed an amicus brief in support of Hickenlooper in the Supreme Court, and then filed an amicus brief in support of Hickenlooper in the 10th Circuit after the Supreme Court remanded the case.

Summary of CCJ’s Supreme Court brief:

For direct democracy to be ruled unconstitutional, the plaintiffs would first have to show that they suffered a cognizable injury to have standing in court. Next, the Court would have to ignore its precedent that challenging initiatives under the Guarantee Clause are nonjusticiable political questions. It would then have to ignore the shared principle of consent and sovereignty of the people to successfully distinguish between direct democracy and republicanism. These hurdles are insurmountable, and the Court should make this clear. Direct democracy is constitutional, cases challenging state initiatives on Republican Guarantee Clause grounds are nonjusticiable political questions, and the legislators lack standing to bring such a suit.

The 10th Circuit’s ruling in 2014 was contrary to Supreme Court precedent. Indeed, the 10th Circuit’s ruling is contrary to the very case on which it instead relies. In Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 1912, the Court ruled that direct democracy, such as initiatives, are nonjusticiable political questions that should be handled outside of the courts. Instead of relying on this precedent, the 10th Circuit looked at the Baker v. Carr 1962 six-part “political questions” test to determine if the constitutionality of initiatives are political questions. The lower court applied this test erroneously, holding that “judicially manageable standards” could be found and applied to determine the constitutionality of direct democracy. In his majority opinion in Baker, however, Justice Brennan explicitly held that “the Guarantee Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a State’s lawful government. … any reliance on that clause would be futile.”

Although Kerr’s claims under the Guarantee Clause are nonjusticiable, this case presents an opportunity for the Court to clarify which claims under the Guarantee Clause are justiciable. Justice O’Connor in New York v. United States, 505 U.S. 144 1992 wrote that “perhaps not all claims under the Guarantee Clause present nonjusticiable political questions,” so at least some claims must be susceptible to “judicially manageable standards.” As we see from the Declaration of Independence, the core understanding of republican government is that governments “derive their just powers from the consent of the governed.” This is the core axiom of republican government. Measures that wrest control of the government from the electorate would thus deprive states of republican forms of government.

So this case also presents the Court with the opportunity to clarify that Guarantee Clause claims challenging the extent to which the people may directly or indirectly control their governments are nonjusticiable. As long as the people control their governments, then they are by core principle republican. The general theme of the Federalist is the linkage between republicanism and majority rule, not whether such rule is direct or indirect. If we are to accept that at least some direct democracy is in keeping with republicanism, then identifying exactly when and where to draw the line of unconstitutionality is judicially unmanageable. Thus cases challenging the constitutionality of initiatives are nonjusticiable.

Review of this case is necessary to clarify that neither individual legislators nor the whole legislature suffers cognizable injury when the electorate chooses to exercise direct legislative powers. Without showing such injury, the legislators lack standing to bring suit. Disempowerment is not a cognizable injury, since the power of legislators delegated to them by the sovereign people—it is not held by them as a prerogative of personal power. Direct democracy is simply a transferal of power back to its beneficial owner.

Summary of 10th Circuit amicus brief:

Under a faithful reading of Arizona State Legislature, the 10th Circuit must find that the plaintiffs lack standing. This case confirms that legislators suffer no injury when the people retake their legislative power through direct democracy.

In Arizona, the Court properly granted standing to the legislators because the Elections Clause specifically commits to “the Legislature” the power to regulate elections, and it was the people themselves trying to control redistricting in a popular commission. In this case, however, the power to raise taxes is not necessarily committed to the legislature. Indeed, the Republican Guarantee Clause simply guarantees “to every State,” i.e., the people, a “Republican Form of Government.” The legislature was not improperly dispossessed of any particular power. Rather, the people exercised their sovereign capacity for self-government. Thus the legislators cannot be granted standing based on Arizona.

Similarly, the legislators should not have standing because they suffered no cognizable injury. Only five active members of the Colorado State Assembly brought suit. Even assuming that legislator in general could bring suit in such a case, the legislators did not vote in favor of a successful tax measure that was subsequently denied by popular referendum. Their supposed injury is merely speculative. Consistent with the principle that judicial power extends only to “Cases” and “Controversies,” the legislators must first show how a tax measure they proposed was stymied by the people. This didn’t happen.

We agree that some cases are justiciable under the Republican Guarantee Clause. But those claims are limited to “actions wresting control of government from the electorate,” which would imperil republican government. It does not include cases in which the people simply reassume their ultimate power in our system of government. The claims in this case raise the question of how much direct democracy is compatible with the constitutional guarantee, and since it is clear that at least some direct democracy is compatible with republican government, there are no “judicially discoverable and manageable standards” with which to determine such degrees. There have been debates on such standards since the Founding, and such debates have been settled outside of the courts. This is a political question, not a legal question, and is thus nonjusticiable.

Final Outcome

The federal judiciary agreed with CCJ that the legislators lacked standing. The federal judiciary did not address the primary merits of the case: whether direct democracy indeed deprives the people of the states of a republican form of government in violation of the Republican Guarantee Clause. Thus the federal judiciary has not adopted the general understanding of “republican” government that CCJ presented: that as long as the electorate maintains control of the government, whether indirectly via representation or directly via voter initiatives, the government remains “republican” in form. But it seems to have agreed that there are no “judicially manageable standards” by which to determine which types of direct democracy are constitutional. Thus state initiative lawmaking in general has not been ruled unconstitutional by the federal judiciary, and any controversies arising in such lawmaking procedures are to be settled in the political branches of government, not the courts.