July 17, 2019

Tenth Circuit: Disparity in Contribution Limits Among Candidates for Same Office Violated Equal Protection of Contributors

The Tenth Circuit Court of Appeals published its opinion in Riddle v. Hickenlooper on Thursday, January 23, 2014.

In 2010, three individuals ran for the Colorado House of Representatives, House District 61: Kathleen Curry, Roger Wilson, and Luke Korkowski. Curry was a write-in candidate, Wilson was the Democratic nominee, and Korkowski was the Republican nominee. Under Colorado law, individual contributions to Curry were capped at $200, and individual contributions to each of her opponents were capped at $400. Contributors to Curry’s campaign (along with others) sued state officials under 42 U.S.C. § 1983, claiming violation of the First Amendment and the Fourteenth Amendment’s Equal Protection Clause. The district court rejected the claims and granted summary judgment to the state officials.

Amendment 27 of the state constitution limits campaign contributions to state office candidates from single contributors to $200 for the primary and $200 for the general election. In 2004, the legislature removed time limits as to when a candidate could accept and spend contributions when a primary is involved. Because Republican and Democratic candidates must run in a primary to get on the ballot even if unopposed, but minor party, unaffiliated, or write-in candidates are only required to run in a primary when multiple candidates seek the nomination, the Secretary of State interprets the amendment and statute to allow candidates with a primary to accept $400 and those without to accept only $200.

The plaintiffs made an as applied argument to the statute and challenged the disparity rather than the amount of the limit. The Tenth Circuit focused on the contributors, not the candidates, in finding that contributors to all three candidates were similarly situated. It then applied the intermediate level of scrutiny the U.S. Supreme Court applied in the First Amendment context of contribution limits — whether the limits are closely drawn to a sufficiently important governmental interest.

The court found that the defendant’s asserted interest of anticorruption was not advanced by the statute so it was not closely drawn. It held that the statutory classification violates the right to equal protection for individuals wishing to contribute to write-ins, unaffiliated candidates, and minor-party candidates when each candidate runs unopposed for the nomination. The court reversed and remanded for summary judgment to be awarded to the plaintiffs.

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