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Case 1:16-cv-02986-WYD-NYW Document 16 Filed 12/12/16 USDC Colorado Page 1 of 9

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLORADO
Civil Action No. 1:16-cv-02986-WYD-NYW
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.
Defendant.
MOTION TO INTERVENE BY PRESIDENT-ELECT DONALD J. TRUMP AND
DONALD J. TRUMP FOR PRESIDENT, INC.
Pursuant to Federal Rule of Civil Procedure 24, prospective intervenors President-elect
Donald Trump and Donald J. Trump for President, Inc. (the Campaign) move this Court to be
permitted to intervene in this case. Prospective intervenors seek intervention as of right under
subsection (a), or in the alternative permissive intervention under subsection (b).
Certificate of Compliance with D.C. COLO. LCivR 7.1(a)
Pursuant to D.C. COLO. LCivR 7.1(a), Intervenor Colorado Republican Committee
consents to the relief requested in this motion. Undersigned counsel for Intervenor certifies
that he attempted to confer with counsel for Plaintiffs and Defendants via telephone on the
morning of December 12, 2016. Counsel left voice messages for both at approximately
8:15am MST asking that they return his call by 9:30am MST. As of the filing of this motion,
counsel has not heard back from either counsel for Plaintiffs or Defendants.

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INTRODUCTION
Federal courts broadly construe the rules governing intervention to allow the disposal of
lawsuits by involving as many apparently concerned persons as compatible with efficiency and
due process. Coal. of Arizona/New Mexico Ctys. for Stable Econ. Growth v. Dept of Interior,
100 F.3d 837, 839 (10th Cir. 1996). The issue in this case is whether Colorado can require
presidential electors to vote for the presidential and vice-presidential candidate who received the
highest number of votes in the general election. Because a decision from this Court could affect
the President-elects and the Campaigns rights and their participation in this case will not
prejudice the parties, this Court should grant the motion to intervene.
BACKGROUND
On November 8, 2016, the several States conducted the Nations quadrennial presidential
election. Citizens across the country gathered to cast their votes for the electors for President
and Vice President of the United States. Donald Trump and Governor Mike Pence netted the
most electoral votes nationwide. They did not, however, win the nine electoral votes here in
Colorado. Coloradans chose the electors for Secretary Hillary Clinton and Senator Tim Kaine.
Because the Democratic nominees received the most votes in Colorado, the nine electors chosen
by the Colorado Democratic Party were certified to vote in the Electoral College. To ensure the
voters will is honored, Colorado law requires those electors to vote for the candidates who
received the most votes. C.R.S. 1-4-304(5).
Plaintiffs are two of those nine Democratic electors. Despite their prior commitment to
honor the outcome of Colorados presidential election, Plaintiffs now claim they might consider
voting for people other than Secretary Clinton and Senator Kaine. Of course, President-elect
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Donald Trump and Vice President-elect Mike Pence have more than enough electoral votes to
secure their respective offices. Plaintiffs lawsuit, however, threatens to undermine the many
laws in other states that sensibly bind their electors votes to represent the will of the citizens,
undermining the Electoral College in the process. That is why the President-elect and his
Campaign seek to intervene in this case. And because the prospective intervenors meet the
requirements of Rule 24, this Court should grant their motion.
ARGUMENT
I.

THE COURT SHOULD PERMIT THE PRESIDENT-ELECT AND THE CAMPAIGN TO


INTERVENE AS OF RIGHT
The President-elect and the Campaign satisfy all of the requirements for intervention as

of right. Federal Rule of Civil Procedure 24(a) governs intervention as of right, and establishes
that a motion to intervene should be granted if the motion is (1) timely; (2) the movant has an
interest relating to the property or transaction; (3) the movant is so situated that the disposition
of the action may as a practical matter impair or impede the movants ability to protect its
interest; and (4) the existing parties do not adequately represen[t] the movants interest. See
also Coal. of Arizona/New Mexico Counties, 100 F.3d 837, 840 (10th Cir. 1996).
First, this motion is timely. The timeliness of a motion to intervene is assessed in light
of all the circumstances, including the length of time since the applicant knew of his interest in
the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any
unusual circumstances. Utah Assn of Counties v. Clinton, 255 F.3d 1246 1250 (10th Cir.
2001). The current motion was filed just days after Plaintiffs initiated their action, and before

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this Court holds a hearing on Plaintiffs Motion for Temporary Restraining Order. See Dkt. No.
9. The timing of this motion thus does not prejudice any of the existing parties to the case.
Second, the President-elect and his Campaign have legal interests that are sufficiently
related to the subject of this action. The Tenth Circuit requires that the interest in the
proceedings be direct, substantial and legally protectable. Vermejo Park Corp. v. Kaiser Coal
Corp., 998 F.2d 783, 791 (10th Cir. 1993). In applying this standard, the Tenth Circuit has
tended to follow a somewhat liberal line in allowing intervention. National Farm Lines v.
Interstate Commerce Commn, 564 F.2d 381, 384 (10th Cir. 1977). That approach is appropriate
because the interest test is primarily a practical guide to disposing of lawsuits by involving as
many apparently concerned persons as compatible with efficiency and due process. Coal. of
Arizona, 100 F.3d at 839. It is thus not necessary for a party to have an economic interest to
support intervention. See id. at 841.
In this lawsuit, the interests of the President-elect and his Campaign are clear. The
President-elect won the majority of electoral votes in the several States. Many of those states
(like Colorado) require their electors to vote for the candidates who won the most votes on
election day. Should this Court conclude (despite decades of legal and historical precedent to the
contrary) that it is unconstitutional for Colorado to bind its presidential electors, similar statutes
in other states where the President-elect won may also be in jeopardy. The President-elect and
his Campaign therefore have a direct, substantial, and legally protectable interest in preventing
the invalidation of Colorados law requiring presidential electors to honor both their prior
commitment and the voters will.

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Third, this lawsuit threatens to impair or impede prospective intervenors rights. Fed.
R. Civ. P. 24(a). As the Tenth Circuit has explained, this element is not to be strictly construed.
See id. at 844. As a result, this Court may consider any significant legal effect in the applicants
interest and [it is] not restricted to a rigid res judicata test. Nat. Res. Def. Council v. U.S.
Nuclear Reg. Commn, 578 F.2d 1341, 1345 (10th Cir. 1978).

If this Court invalidates

Colorados statute, similar state statutes across the land will be in question. Some of those laws
directly affect the President-elect and the Campaign because those statutes bind electors to vote
for the President-elect. Indeed, one need look no further than the Complaint to see the real goal
of Plaintiffs lawsuit. Plaintiffs claim that Donald Trump is unfit for office, and aim to deny
him the presidency. Cmplt. 16. It is little exaggeration, then, to say that this lawsuit threatens
to impair the interests of the President-Elect and the Campaign.
Finally, the existing parties to the litigation will not adequately represent prospective
intervenors interests. The burden imposed by this element of Rule 24(a) is minimal. National
Farm Lines, 564 F.2d at 383 (citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10
(1972)). If the absentees interest is similar to, but not identical with, that of one of the parties, a
discriminating judgment is required on the circumstances of the particular case, although
intervention ordinarily should be allowed unless it is clear that the party will provide adequate
representation for the absentee. 7C Fed. Prac. & Proc. Civ. 1909 (3d ed.). A party may even
intervene in a case where its interests are identical to those of an existing party if it makes a
concrete showing of circumstances in the particular case that make the representation
inadequate. Id.

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For these reasons, the Tenth Circuit allows intervention where the interests of the
proposed intervenor and the original defendant overlap. Consider National Farm Lines. There
the district court denied intervention to groups that represented motor carriers registered with the
Interstate Commerce Commission in a lawsuit brought against the Commission challenging the
constitutionality of federal statutes that protected the motor carriers. 564 F.2d at 383. The Tenth
Circuit, reversing the district court, ordered that intervention be permitted under Rule 24(a). The
appeals court explained that the case involved the familiar situation in which the governmental
agency is seeking to protect not only the interest of the public but also the private interest of the
petitioners in intervention, a task which is on its face impossible. Id. at 384. As a result, this
kind of a conflict satisfies the minimal burden of showing inadequacy of representation. Id.
In this proceeding the Governor, Attorney General and Secretary of State, are responsible
for protecting the States interest in the statute. But the President-elect and his Campaign have
distinct interests, among them (1) ensuring other states laws are respected, (2) ensuring that the
Electoral College process is honored in the 50 states and the District of Columbia, and (3)
ensuring that Mr. Trump is officially elected to the presidency. The state officials cannot
represent these interests.
For the foregoing reasons, the President-elect and his Campaign satisfy the requirements
for intervention as of right under Rule 24(a), and this Court should grant the motion.
II.

THIS COURT SHOULD ALLOW THE PRESIDENT-ELECT AND THE CAMPAIGN PERMISSIVE
INTERVENTION
Even if the Court concludes that the President-elect and the Campaign are not allowed to

intervene as of right, the Court should nonetheless permit intervention under Federal Rule of
Civil Procedure 24(b). That Rule provides that upon timely motion, the court may permit
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anyone to intervene who . . . has a claim or defense that shares with the main action a common
question of law or fact. Fed. R. Civ. P. 24(b)(1)(B). The Rule further provides that [i]n
exercising its discretion the court must consider whether the intervention will unduly delay or
prejudice the adjudication of original parties rights. Fed. R. Civ. P. 24(b)(3).
The President-elect and his Campaign will assert defenses that directly relate to the
central issues in this case. Indeed, they intend to argue that (1) laches bars Plaintiffs claims, (2)
Plaintiffs lack Article III standing, and (3) Plaintiffs lawsuit presents a political question. If
permitted to intervene, the President-elect and the Campaign can present evidence regarding the
injury that could result if the Court finds Colorados statute unconstitutional. Further, allowing
intervention will not delay these proceedings, nor will it prejudice the existing parties. This case
is in its infancy and this motion is filed before the Courts hearing on Plaintiffs request for a
preliminary injunction. Thus, if the Court determines that the President-elect and his Campaign
cannot intervene as of right, the Court, at the very least, should exercise its discretion and allow
permissive intervention, given the fundamental importance of the rights implicated by this
litigation, this Court.

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CONCLUSION
For these reasons, the Court should grant the motion to intervene.
Respectfully submitted this 12th day of December, 2016.
s/Christopher O. Murray
Christopher O. Murray, #39340
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street
Suite 2200
Denver, CO 80202-4432
Telephone: 303-223-1100
Fax:
303-223-1111
Email:
cmurray@bhfs.com
Attorneys for Intervenors President-Elect Donald J.
Trump and Donald J. Trump for President, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of December, 2016, I electronically filed a true and
correct copy of the foregoing MOTION TO INTERVENE BY PRESIDENT-ELECT
DONALD J. TRUMP AND DONALD J. TRUMP FOR PRESIDENT, INC. with the Clerk
of the Court using the CM/ECF system which will send notification of such filing to the
following counsel:
Jason B. Wesoky, Esq.
1331 17th Street, Suite 800
Denver, CO 80202
303-623-9133
jwesoky@dmhlaw.net
Leeann Morrill
First Assistant Attorney General
Matthew D. Grove
Assistant Solicitor General
Grant Q. Sullivan
Assistant Solicitor General
1300 Broadway, 6th Floor
Denver, CO 80203
Telephone: (720) 508-6157
Facsimile: (720) 508-6041
leeann.morrill@coag.gov
matt.grove@coag.gov
grant.sullivan@coag.gov
Counsel for John Hickenlooper, in his official capacity as Governor of Colorado, Cynthia
Coffman, in her official capacity as Colorado Attorney General and Wayne Williams, in his
official capacity as Colorado Secretary of State

s/Paulette M. Chesson
Paulette M. Chesson, Paralegal
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 17th Street, Suite 2200
Denver, CO 80202
303-223-1100; fax 303-223-1111
018206\0002\15299456.2