On a 2-1 vote, a 10th Circuit panel has rejected a constitutional challenge to a provision of the Colorado Constitution requiring those who gather signatures for ballot measures to collect signatures from at least two percent of registered voters in each of Colorado’s thirty-five state senate districts. Plaintiffs argued the measure violated the Equal Protection Clause.

The district court not only rejected Colorado motion to dismiss, it entered judgment in favor of the plaintiffs on the equal protection challenge, not reaching the First Amendment challenge also raised. The 10th circuit panel majority reversed and ruled for the defendant, rather than requiring a full trial looking at the evidence, finding the case governed by the Supreme Court’s decision in Evenwel v. Abbott, which the majority claims decided the issue. Judge Briscoe in dissent explains why the majority’s reliance on Evenwel is wrong, and further faults the 10th circuit for deciding the First Amendment issue which was not addressed by the lower court.