Respondents Brief — Advance Colorado, et al., Petitioners v. Jena Griswold, Colorado Secretary of State

Supreme Court briefJan 3, 2025

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NO. 24-216

In the

Supreme Court of the United States

_______________________

ADVANCE COLORADO, ET AL.,

Petitioners,

JENA GRISWOLD, COLORADO SECRETARY OF STATE,

Respondent.

________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________

BRIEF IN OPPOSITION

________________

PHILIP J. WEISER

Attorney General

RUSSELL D. JOHNSON

Deputy Solicitor General

SHANNON WELLS STEVENSON

Solicitor General

Counsel of Record

J. GREGORY WHITEHAIR

Senior Assistant Attorney

General

PETER G. BAUMANN

Office of the Colorado

Assistant Solicitor General

Attorney General

LEO T. NGUYEN

1300 Broadway

Assistant Attorney General

10th Floor

Fellow

Denver, Colorado 80203

Shannon.Stevenson@coag.gov

(720) 508-6000

Counsel for Respondent

QUESTION PRESENTED

Under Colorado law, citizen-initiated ballot

measures have their “titles”—paragraph-length

descriptions of the measure—set by a three-member

Title Board. The titles are set at a public hearing at

which anyone can lobby the Board to include or delete

language in the title. Once title is set, Colorado law

provides for a mandatory, expedited appeal to the

Colorado Supreme Court, which ensures the title

describes the initiative “succinctly, accurately, and

fairly and in a manner that will not mislead voters.”

In re Title, Ballot Title & Submission Clause for 20192020 #293, 466 P.3d 392, 393 (Colo. 2020). The final

version of the title appears on petitions approved by

the Secretary of State and circulated by signaturegathers under a bolded disclaimer saying that the

“ballot title and submission clause as designated and

fixed by the Initiative Title Setting Review Board is as

follows:”. And if enough signatures are collected, the

title ultimately appears on Coloradans’ ballots.

The question presented is whether the title set by

the Title Board, subject to review by the Colorado

Supreme Court, and distributed to voters on stateapproved petitions and ultimately on state-certified,

county-printed ballots, is an individual’s or

organization’s protected speech, or whether, as the

court of appeals held, it is government speech.

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ...................................... iv

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 2

Colorado’s ballot measure framework. ............... 2

II. Factual background. ............................................ 5

III. Procedural background. ...................................... 7

REASONS FOR DENYING THE PETITION ........... 8

Petitioners have waived any argument about

government-compelled speech. ........................... 8

A. Petitioners chose not to advance a theory

of government-compelled speech in the

courts below. ................................................. 8

B. Petitioners are not compelled to express

the Government’s message. ....................... 10

C. Petitioners chose not to pursue a readily

available state law remedy for allegedly

false ballot titles. ........................................ 11

II. With respect to the preserved issue of

whether the ballot title is government speech,

certiorari is not appropriate. ............................. 13

A. The Tenth Circuit faithfully applied this

Court’s

precedents

assessing

Petitioners’ challenge. ................................ 13

B. Cook is easily distinguishable. ................... 16

iii

C. There is no meaningful circuit split on

the question presented. .............................. 17

III. This case is a poor vehicle for addressing the

question presented. ........................................... 18

A. There are alternative grounds for

affirming the denial of the preliminary

injunction. ................................................... 18

1. Petitioners’ claim is moot. ..................... 18

2. Pullman abstention applies to

Petitioners’ case. ................................... 21

B. Petitioners’ position is unworkable. .......... 22

C. The language to which Petitioners object

is not false. .................................................. 26

CONCLUSION ......................................................... 29

TABLE OF AUTHORITIES

CASES

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ................................................ 10

Anderson v. Martin,

375 U.S. 399 (1964) ................................................ 17

Bierman v. Dayton,

817 F.3d 1070 (8th Cir. 2016) ................................ 20

Buckley v. Am. Constitutional Law Found., Inc.,

525 U.S. 182 (1999) ........................................... 22-23

Caruso v. Yamhill Cnty. ex rel. Cnty. Comm’r,

422 F.3d 848 (9th Cir. 2005) ............................. 17-18

Colo. Dep’t of State v. Unite for Colo.,

551 P.3d 687 (Colo. App. 2024) .......................... 4, 25

Cook v. Gralike,

531 U.S. 510 (2001) ........................................... 16-17

Davis v. Fed. Election Comm’n,

554 U.S. 724 (2008) ................................................ 19

Fleming v. Gutierrez,

785 F.3d 442 (10th Cir. 2015) ................................ 20

Granfinanciera, S.A. v. Nordberg,

492 U.S. 33 (1989) .................................................... 9

Haaland v. Brackeen,

599 U.S. 255 (2023) ................................................ 21

Hurley v. Irish-Am. Gay, Lesbian, and Bisexual Grp.

of Boston,

515 U.S. 557 (1995) ................................................ 10

In re Title, Ballot Title, Submission Clause, &

Summary for 1999-2000 #29,

972 P.2d 257 (Colo. 1999) ................................. 11-12

In re Title, Ballot Title & Submission Clause for

2019-2020 #293,

466 P.3d 392 (Colo. 2020) ........................................ 3

Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550 (2005) ................................................ 23

Kim v. Hanlon,

99 F.4th 140 (3d Cir. 2024) .................................... 18

Libertarian Party of Va. v. Alcorn,

826 F.3d 708 (4th Cir. 2016) .................................. 18

Matal v. Tam,

582 U.S. 218 (2017) ................................................ 15

Murthy v. Missouri,

603 U.S. 43 (2024) .................................................. 20

Overton v. Bazzetta,

539 U.S. 126 (2003) ................................................ 21

Pleasant Grove City, Utah v. Summum,

555 U.S. 460 (2009) ................................................ 16

R.R. Comm’n of Tex. v. Pullman Co.,

312 U.S. 496 (1941) ........................................... 21-22

Shurtleff v. City of Boston,

596 U.S. 243 (2022) ....................................7-8, 13-15

Singleton v. Wulff,

428 U.S. 106 (1976) .................................................. 9

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ................................................ 20

United States v. Sineneng-Smith,

590 U.S. 371 (2020) .................................................. 9

Walker v. Tex. Div., Sons of Confederate Veterans,

Inc.,

576 U.S. 200 (2015) ................................................ 15

Zaner v. City of Brighton,

917 P.2d 280 (Colo. 1996) ...................................... 12

STATUTES

1941 Colo. Sess. Laws 480........................................... 2

ARK. CODE ANN. § 7-9-107 ......................................... 15

COLO. REV. STAT. § 1-40-102 ....................................... 5

COLO. REV. STAT. § 1-40-104 ................................. 3, 24

COLO. REV. STAT. § 1-40-105 ................................. 3, 14

COLO. REV. STAT. § 1-40-106 ............................ 2-3, 6-7

COLO. REV. STAT. § 1-40-107 ...................... 3, 11, 25-26

COLO. REV. STAT. § 1-40-108 ..................................... 26

COLO. REV. STAT. § 1-40-110 .................................... 4-5

COLO. REV. STAT. § 1-40-116 ....................................... 5

COLO. REV. STAT. § 1-40-117 ....................................... 5

COLO. REV. STAT. § 1-40-118 ....................................... 5

H.B. 1321, 73rd Gen. Assemb., 1st Reg. Sess. (Colo.

2021) ........................................ 5-8, 10, 12, 19, 21, 26

CONSTITUTIONS

COLO. CONST. art. V, § 1 ........................... 2, 4-5, 11, 26

COLO. CONST. art. X § 20 .......................... 12, 19, 26-28

vii

U.S. CONST. amend. I ........1, 7-8, 11, 13, 16-18, 21-24,

26, 29

OTHER AUTHORITIES

13C Charles Alan Wright & Arthur R. Miller, Fed.

Prac. & Proc. Juris. § 3533.3.1 (3d ed.) ................. 20

Andrew McKean, Anti-Hunting Groups Are Running

a Paid Signature Campaign to Ban Cougar Hunting in Colorado. Conservation Orgs Launch “Decline to Sign” Effort, Outdoor Life, June 14, 2024,

https://www.outdoorlife.com/conserva-tion/signature-campaign-ban-lion-hunting-colorado/ ........... 24

Colorado Judicial Branch, 2023/2024 Ballot Initiatives, https://www.coloradojudicial.gov/taxonomy/term/580?topic=78&wrapped=true ................. 4

Colorado Secretary of State, 2023-2024 Initiative Filings, Agendas & Results, https://www.coloradosos.gov/pubs/

elections/Initiatives/titleBoard/ ............................... 4

Colorado Secretary of State, Results for Proposed Initiative #46, https://www.coloradosos.gov/pubs/elections/Initiatives/titleBoard/results/20212022/46Results.html .............................................. 12

Legislative Council Staff, Economic and Revenue

Forecast, December 2024, https://leg.colorado.gov/sites/default/files/images/dec2024forecastwithcover_0.pdf ...................................................... 28

Legislative Council Staff, Economic and Revenue

Forecast, June 2023, https://leg.colorado.gov/sites/default/files/images/june2023forecast_1.pdf................................................................ 28

viii

Legislative Council Staff, Economic and Revenue

Forecast, June 2024, https://leg.colorado.gov/sites/default/files/images/june2024forecastforposting.pdf ................................................... 28

INTRODUCTION

Since the 1940s, Colorado has exercised plenary

control over the ballot titles for citizen-initiated

measures. Those titles are crafted by the state Title

Board and appear only on signature petitions

approved by the government, ballots drawn and

printed by the government, and voter information

booklets drafted by the government. And on the

signature petitions—the place where the title

allegedly is most likely to be confused for private

speech—Colorado places a disclaimer at the top of

every page informing readers that the title is crafted

by the state Title Board.

Nonetheless, Petitioners brought this challenge

under the First Amendment, alleging that the ballot

title is Petitioners’ private speech, not the

government’s. And although Petitioners now try to

reframe their challenge to instead invoke this Court’s

precedents for government-compelled speech, that is

not how Petitioners pled or argued this case in either

of the courts below.

As to the preserved question, whether the titles

are government speech or private speech, the court of

appeals carefully and faithfully applied this Court’s

modern government speech precedents to Colorado’s

unique factual circumstances. And given both the factdependent nature of that inquiry, and the broad

diversity among states as to how ballot titles are

drafted and approved, it is unlikely the Court would

be able to articulate any helpful rule beyond the

guidance provided by its prior precedents.

Finally, this case is a poor vehicle to address

whatever concerns Petitioners raise about the

government speech doctrine, or even the governmentcompelled speech doctrine, in the ballot title context.

Petitioners’ challenge is moot. And even if the case, as

a whole, is capable of repetition yet evading review,

that exception to mootness cannot save this

interlocutory appeal, which arose from the denial of a

preliminary injunction tied to the 2024 election. And

Petitioners’ attempts to frame this as a

straightforward case belie the unworkability of their

ultimate position. The Petition should be denied.

STATEMENT OF THE CASE

Colorado’s ballot measure framework.

Colorado citizens enjoy a robust right to initiate

legislation. See, e.g., COLO. CONST. art. V, § 1(1), (2).

Subject to few limitations, citizens can draft and

circulate for signatures almost any proposed statutory

provision or constitutional amendment. Id. § 1(2). The

rights to make law through initiative and referendum

are, respectively, the “first” and “second” “power[s] . . .

reserved by the people” in the Colorado constitution.

Id. § 1(2), (3).

But although citizens may draft and propose their

own initiatives, they do not enjoy the right to

determine how those initiatives are described on

state-issued petitions and ballots. Instead, since 1941,

the paragraph-long description of the measure that is

ultimately submitted to voters—which Colorado calls

the ballot “title”—has been set by a three-person Title

Board. See 1941 Colo. Sess. Laws 480. In its current

form, the Board consists of the secretary of state, the

attorney general, and the director of the state office of

legislative legal services, or their designees. COLO.

REV. STAT. § 1-40-106(1) (2024). Representatives of the

proponents of an initiative, known as “designated

representatives,” id. § 1-40-104, must present their

measure to the Title Board, which “by majority vote,

shall proceed to designate and fix a proper fair title for

each proposed law or constitutional amendment,” id.

§ 1-40-106(1). The designated representatives must

attend any meeting of the Title Board at which their

measure is discussed, id. § 1-40-106(4)(a), but it is the

Board, not the designated representatives, that sets

the title. In fact, supporters of an initiative are

prohibited by statute from even recommending a

proposed title when they submit their initiative to the

Title Board. Id. § 1-40-105(4).

The Title Board drafts the title at a public

meeting, during which anyone, including the

designated representatives, can comment on the

Board’s proposal. Id. § 1-40-106(1). Once title is set,

any voter who “is not satisfied with the titles . . . and

who claims that they are unfair or that they do not

fairly express the true meaning and intent” of the

proposed measure, may seek rehearing before the

Title Board. Id. § 1-40-107(1)(a)(I).

If, after rehearing, that voter or any other

interested party is still dissatisfied with the title, they

enjoy a right of mandatory appeal directly to the

Colorado Supreme Court. On appeal from the Title

Board, the court will reject the title if it does not

summarize the measure “succinctly, accurately, and

fairly and in a manner that will not mislead voters.”

In re Title, Ballot Title & Submission Clause for 20192020 #293, 466 P.3d 392, 393 (Colo. 2020). The process

is heavily utilized. During the 2023-2024 ballot-issue

cycle, 314 unique measures were presented to the Title

Board,1 and the Colorado Supreme Court considered

41 separate title board appeals.2

Once a title has been set, proponents of the

measure may begin collecting signatures to qualify the

measure for the general election ballot.

Although designated representatives and original

proponents of a measure may be part of the signature

gathering effort, they are not the only persons that can

circulate a petition for signatures. In fact, a

predecessor of one Petitioner here, Advance Colorado,

spent over $1.5 million in 2020 collecting signatures

for two measures it did not draft or present to the Title

Board. Colo. Dep’t of State v. Unite for Colo., 551 P.3d

687, 694 (Colo. App. 2024), certiorari granted Unite for

Colo. v. Colo. Dep’t of State, No. 24SC281, 2024 WL

4906452 (Colo. Nov. 25, 2024).

Regardless of who is collecting signatures, the

signatures must be captured on petitions printed “in

such form as may be prescribed pursuant to law,”

COLO. CONST. art. V, § 1(2), and must include (1) the

full text of the measure, id., and (2) the title set by the

Title Board, COLO. REV. STAT. § 1-40-110(2). Most

importantly, at the top of every page of the petition is

a statement, in bold: “The ballot title and

submission clause as designated and fixed by

Available

https://www.coloradosos.gov/pubs/

elections/Initiatives/titleBoard/.

Available

https://www.coloradojudicial.gov/taxonomy/term/580?topic=78&wrapped=true. This includes challenges

both to the title itself and to whether the proposed measure violates Colorado’s single-subject requirement. See COLO. CONST.

art. V, § 1(5.5).

the Initiative Title Setting Review Board is as

follows:”. App. at 3a n.1.

Once proponents have collected signatures on the

petition, the petition is submitted to the Secretary of

State to verify whether proponents have collected

enough valid signatures. COLO. REV. STAT. § 1-40-116.

The Secretary then issues a statement of sufficiency

or insufficiency, id. § 1-40-117, which may be cured,

id. § 1-40-117(4), or challenged in state court, id. § 140-118.

Ultimately, the ballot title is required to appear

in only three places: (1) the ballot itself,3 id. § 1-40102(2), (2) the official voter information booklet (called

the “Blue Book”) prepared and published by the

general assembly’s nonpartisan research staff and

mailed to voters before an election, COLO. CONST. art.

V, § 1(7.5), and (3) on the signature petition, COLO.

REV. STAT. § 1-40-110(2). Proponents and opponents of

the measure are not required to use or refer to the title

in any of their own printed materials, radio or

television advertisements, or in any interactive

communication with voters.

II. Factual background.

In 2021, the Colorado General Assembly passed

House Bill 21-1321 (“HB 21-1321”). H.B. 1321, 73rd

Gen. Assemb., 1st Reg. Sess. (Colo. 2021). The purpose

of the legislation was to ensure voters were exposed to

complete information about the “fiscal impact of

statewide ballot measures that would result in a

3 The text of the measure is not printed on the actual ballot.

Instead, the ballot includes only the title that has been set by the

Title Board.

change in district revenue.” Id. Under HB 21-1321,

when an initiative implicates reductions in tax

revenue, the title must begin:

Shall there be a reduction to the (description

of tax) by (the percentage by which the tax is

reduced in the first full fiscal year that the

measure reduces revenue) thereby reducing

state revenue, which will reduce funding for

state expenditures that include but are not

limited to (the three largest areas of program

expenditure) by an estimated (projected

dollar figure of revenue reduction to the state

in the first full fiscal year that the measure

reduces revenue) in tax revenue . . . ?

COLO. REV. STAT. § 1-40-106(3)(e). Measures that

would reduce local revenues must follow similar

requirements. Id. § 1-40-106(3)(f).

Relevant here, two measures drafted specifically

to challenge this legislation were submitted to the

Title Board in 2023.

First, proponents submitted proposed initiative

2023-2024 #21, which would create a 3% annual limit

on property tax increases, subject to certain

exceptions. App. at 6a. After the Title Board concluded

that the measure would reduce local district property

tax revenue, it included in the title the mandatory

language from COLO. REV. STAT. section 1-40-106(3)(f).

App. at 7a. The designated representatives sought

rehearing before the Title Board on the grounds that

the measure was not a “tax change,” so the language

need not be required. After the Board denied the

motion, no party sought review before the Colorado

Supreme Court as to whether the title was inaccurate.

Second,

proponents

submitted

proposed

initiative 2023-2024 #22, which would lower the

state’s sales and use tax rate by .01% for one year from

2024-2025 and create a one-day sales tax holiday. App.

at 6a-7a. After the Title Board concluded that the

measure would reduce state revenue through a tax

change, it included in the title the mandatory

language from COLO. REV. STAT. section 1-40106(3)(e). App. at 7a. The designated representatives

sought rehearing before the Title Board on the

grounds that the title was inaccurate. The Board

denied the motion, and no party sought review by the

Colorado Supreme Court.

III. Procedural background.

Although the Title Board’s titles for #21 and #22

were final on May 19, 2023, and April 19, 2023,

respectively, proponents did not ask the Secretary to

approve a proof of those petitions until August 4, 2023.

The next business day, Petitioners filed this lawsuit,

alleging that HB 21-1321 violated their rights under

the First Amendment both facially and as-applied to

#21 and #22. Petitioners also included a claim under

the Colorado Constitution. Petitioners sought a

preliminary injunction, which the district court

denied, concluding that the ballot titles were

government speech under this Court’s decision in

Shurtleff v. City of Boston, 596 U.S. 243 (2022).

Plaintiffs appealed the denial of the preliminary

injunction to the Tenth Circuit, which also applied

Shurtleff. The court noted the “robust history of titles

being government expression, and the near total

control the government asserts over the titling,” as

well as the disclaimer included on the petitions

informing the reader that they were drafted by the

government. For these reasons, the court concluded

that the titles were government speech under the

Shurtleff factors, and thus Plaintiffs had no First

Amendment interests in the speech and were unlikely

to succeed on the merits of their claims. App. at 14a.

REASONS FOR DENYING THE PETITION

Petitioners have waived any argument

about government-compelled speech.

A. Petitioners chose not to advance a

theory of government-compelled speech

in the courts below.

In their Petition, Petitioners paint this case as

arising under the doctrine of government-compelled

speech. See, e.g., Pet. at 1 (requesting that this Court

“merely [] reverse the holding that [Petitioners’]

claims challenge pure government speech, and not

government-compelled speech”); see also e.g., id. at 13,

17, 19, 21, 24. But that is not how Petitioners argued

this case in the district court or originally on appeal.

Instead, as the court of appeals noted, “Advance

Colorado has consistently asserted that the ballot

titles are its own private speech and has not argued,

in the alternative that they are improperly

compulsory government speech.” App. at 16a n.6.4 As

4 See also App. at 181a

THE [DISTRICT] COURT: . . . Would you agree that in

order for me to be in a position of declaring 1321

unconstitutional as applied to these two initiatives,

that I would have to conclude that the title was the

a result, neither lower court applied this Court’s

government-compelled speech precedents.

“It is the general rule . . . that a federal appellate

court does not consider an issue not passed upon

below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976).

And for good reason. As a Court of last resort, it makes

little sense for this Court to answer a question on

which it “lack[s] guidance from the District Court or

the Court of Appeals,” Granfinanciera, S.A. v.

Nordberg, 492 U.S. 33, 39 (1989), particularly where

Petitioners were represented by skilled counsel in the

courts below, and knowingly chose not to advance a

government-compelled speech claim. See, e.g., App. at

181a; see also United States v. Sineneng-Smith, 590

U.S. 371, 375-76 (2020) (“[A]s a general rule, our

system is designed around the premise that parties

represented by competent counsel know what is best

for them, and are responsible for advancing the facts

and argument entitling them to relief.” (quotations

and alterations omitted)).

Here, Petitioners consistently argued that the

ballot titles were private speech, not governmentcompelled speech. As a result, the parties developed

no record from which this Court can meaningfully

evaluate a compelled speech claim.

speech of plaintiffs’ and not the speech of the

government?

MR. EID: Yes, sir. . . .[O]ur position is it’s not

governmental speech.

B. Petitioners are not compelled to express

the Government’s message.

Even if Petitioners had preserved the argument

that HB 21-1321 unlawfully compels them to transmit

the government’s message, that argument would fail.

The government-compelled speech doctrine

prohibits the government from compelling “affirmance

of a belief with which the speaker disagrees.” Hurley

v. Irish-Am. Gay, Lesbian, and Bisexual Grp. of

Boston, 515 U.S. 557, 573 (1995). It applies only in

circumstances where the government requires a

person to “speak as the State demands or face

sanctions for expressing [their] own beliefs.” 303

Creative LLC v. Elenis, 600 U.S. 570, 589 (2023).

Nothing in Colorado law prohibits Petitioners

from expressing disagreement with a ballot title.

Ballot titles only appear in three places: (1) on

signature petitions, (2) on the ballot, and (3) on a

government-produced-and-printed ballot information

book. On the petition—the only place where that title

might allegedly be associated with a private party—

the state includes a bold disclaimer that says: “The

ballot title and submission clause as designated

and fixed by the Initiative Title Setting Review

Board is as follows:”. App. at 3a n.1.

Alongside this bold disclaimer, signaturegatherers remain free to articulate their own message

about the operation or effect of a proposed measure,

including any disagreement with the Title Board’s

chosen language. In fact, Petitioners’ own witness

testified before the district court that signaturegatherers can, and do, argue that the title is

inaccurate or unclear. App. at 84a, 97a-98a. And they

can, and do, direct signatories to read the full measure

to learn more about the initiative and evaluate the

title for themselves. See App. at 91a.

Even if Petitioners had developed a record

sufficient to enable this Court to meaningfully review

a government-compelled speech claim, Petitioners’

speech was not compelled under this Court’s

precedents.

C. Petitioners chose not to pursue a readily

available state law remedy for allegedly

false ballot titles.

Although the titles set by the Title Board and

placed on state-approved petitions and ballots are not

subject to First Amendment scrutiny because they

reflect the government’s speech rather than a private

party’s, Colorado law provides robust protections to

ensure the accuracy of ballot initiative titles. These

protections stem from both statute and the Colorado

Constitution and protect Colorado voters from being

“tricked and manipulated with respect to the citizen

initiative process.” See Pet. at 13.

The Colorado Constitution includes a “clear title”

requirement, COLO. CONST. art. V, § 1(5.5), which

requires the Title Board to draft titles that “fairly,

clearly, and accurately” reflect the proposed initiative,

In re Title, Ballot Title, Submission Clause, &

Summary for 1999-2000 #29, 972 P.2d 257, 266 (Colo.

1999). To ensure the Title Board timely complies with

this obligation, Colorado law provides for a

mandatory, expedited, direct appeal from the Board to

the Colorado Supreme Court. COLO. REV. STAT. § 1-40107(2). The Supreme Court will invalidate the Board’s

title if it includes “a material and significant omission,

misstatement, or misrepresentation.” In re 1999-2000

#29, 972 P.2d at 266; see also id. (“Perfection is not the

goal; however, the Title Board’s chosen language must

not mislead voters.”).

Because the accuracy obligation flows from the

constitutional “clear title” requirement, it supersedes

any statutory enactment, including HB 21-1321. See,

e.g., Zaner v. City of Brighton, 917 P.2d 280, 286 (Colo.

1996) (“[L]egislation which directly or indirectly

impairs, limits, or destroys rights granted by selfexecuting

constitutional

provisions

not

permissible.”). Thus, if HB 21-1321 were to require

misleading or inaccurate language in a ballot title, the

Colorado Supreme Court could—and would—reject

that title on state law grounds.

But critically, no one—not even Petitioners—

availed themselves of Colorado’s mandatory review

procedures to allege that the titles for #21 or #22 were

false.5 Instead, they chose to bring this lawsuit.

In Colorado, like in other states that have

extended the right to initiate legislation, proponents

and opponents alike enjoy robust rights to challenge

In the court of appeals, Plaintiffs argued that they had

“functionally exhausted [their] state court remedies” by

appealing a similar measure to the Colorado Supreme Court in

2021, which denied the appeal without an order. App. at 8a n.2.

But the Title set for that measure, 2021-2022 #46, included

additional language addressing potential surpluses and tax

refunds that was not included in the Title for #22. Results for

Proposed

Initiative

#46,

available

https://www.coloradosos.gov/pubs/elections/Initiatives/titleBoar

d/results/2021-2022/46Results.html (adding “or will reduce the

amount of the taxpayer refund if a refund is required under

TABOR” to the language mandated by HB 21-1321).

titles set by the state. Those protections are more than

sufficient to address Petitioners’ parade of horribles

without invoking First Amendment scrutiny.

II. With respect to the preserved issue of

whether the ballot title is government

speech, certiorari is not appropriate.

A. The Tenth Circuit faithfully applied this

Court’s

precedents

assessing

Petitioners’ challenge.

Just two terms ago, this Court surveyed its

government speech precedents to enunciate a common

set of factors relevant to the analysis. Shurtleff, 596

U.S. at 251-52. The Court observed that resolving the

question requires a “holistic inquiry designed to

determine whether the government intends to speak

for itself or to regulate private expression,” and that

the ensuing analysis is “not mechanical,” but rather

“driven by a case’s context rather than the rote

application of rigid factors.” Id. at 252; see also id. at

262 (Alito, J., concurring) (identifying “the real

question in government-speech cases: whether the

government is speaking instead of regulating private

expression”). Nonetheless, the Court reiterated three

factors that often bear on the ultimate question: (1)

“the history of the expression at issue; [2)] the public’s

likely perception as to who (the government or a

private person) is speaking; and [3)] the extent to

which the government has actively shaped or

controlled the expression.” Id.

In assessing Petitioners’ likelihood of success on

the merits, the court of appeals faithfully applied

Shurtleff. As to the first and third factors, it found that

the Title Board is “solely responsible for setting a

measure’s title without the influence of proposal

advocates,” and that this “substantial control the

government asserts of initiative titles” had been the

norm since the Title’s Board’s inception in 1941. App.

at 13a. As the court observed, although citizens can

draft initiatives, the titles themselves “are fully and

exclusively crafted by the government[.]” Id. In fact,

the initiative’s proponents are prohibited by law from

even proposing a title. COLO. REV. STAT. § 1-40-105(4).

And as for the second factor, the court found that

Petitioners “fail[ed] to address the disclaimer shown

immediately above the ballot title indicating the

language is ‘designated and fixed’ by the Title Board”

and its significance in alerting the public to the title’s

governmental source. App. at 14a; see also id. at 3a n.1

(“When placed on a petition for signatures, each title

is preceded by the following disclaimer: “The Ballot

title and submission clause as designated and

fixed by the Initiative Title Setting Review

Board is as follows:”).

Given this disclaimer’s clarity in signaling the

title’s governmental source to the public, along with

the government’s longstanding and complete control

over the title’s language, the court of appeals

determined that a “holistic review clearly

demonstrates Colorado’s titling process qualifies as

government speech.” Id. at 14a.

In Shurtleff, this Court undertook the task of

organizing its government speech precedents and

enunciating a clear standard to apply in the lower

courts. Both the district court and the court of appeals

took advantage of that effort here and determined that

Colorado’s longstanding and robust control over the

ballot titling process clearly indicated Colorado’s

intention to “speak for itself” rather than to “regulate

private expression.” See Shurtleff, 596 U.S. at 252.

Even more important, Colorado made clear—with

efforts that included a disclaimer above the actual

Ballot Title itself—that the title reflected the

government’s speech, not that of any private party.

In fact, this case demonstrates the benefits of this

Court’s holistic approach for determining whether and

when speech is the government’s. Perhaps, in states

where citizens exercise greater control over the

content of a ballot title, the government speech

doctrine would apply differently to those different

facts. For example, in Arkansas, initiative proponents

draft their own titles and submit those titles to the

attorney general for review and approval. ARK. CODE

ANN. § 7-9-107(d)(1). In this way, Arkansas’s process

more closely resembles the process in Matal v. Tam,

582 U.S. 218, 235-36 (2017), in which the

government’s approval or rejection of marks

submitted for trademark registration was held not to

convert those marks into government speech.

On the other hand, where Colorado “maintains

direct control” over the ballot titles, “actively

exercise[s]” its authority to do so, and makes clear to

the public their governmental source, ballot titles

constitute government speech. See Walker v. Tex. Div.,

Sons of Confederate Veterans, Inc., 576 U.S. 200, 213

(2015) (holding that Texas license plates are

government speech because of the state’s history of

controlling the content of the plates and because of the

plates’ prominent display of the state’s name).

Finally, Petitioners’ parade of horribles allegedly

flowing from the decision below is unavailing and

irrelevant. Pet. at 25-26. In each hypothetical

proposed by Petitioners, application of the

government speech doctrine reveals that the

government is not speaking for itself but has instead

created a limited public forum for nongovernmental

speakers. In such fora, the government’s regulation

must be “reasonable and viewpoint neutral,” Pleasant

Grove City, Utah v. Summum, 555 U.S. 460, 470

(2009)—and the proposed facts in each hypothetical

would fail viewpoint neutrality.

But here, the government has not created a public

forum. It is speaking for itself. Rather than

highlighting the unworkability of the government

speech decision issued by the court of appeals,

Petitioners’ hypotheticals present a red herring by

discussing the separate First Amendment public

forum doctrine that is irrelevant to this case.

B. Cook is easily distinguishable.

To avoid application of this Court’s governmentspeech precedents, Petitioners reach for Cook v.

Gralike, 531 U.S. 510 (2001). Pet. at 14. But the

controlling opinion in that case applied the Elections

Clause, not the First Amendment. Cook, 531 U.S. at

526. Rather than supporting Petitioners’ argument,

Cook instead reflects this Court’s admonition that the

appropriate constraints on government speech are

often found outside the First Amendment. See, e.g.,

Summum, 555 U.S. at 468. Recognizing this,

Petitioners instead invoke a concurrence in Cook

joined by only two members of the Court. Pet. at 14.

So too with the other case cited by Petitioners,

Anderson v. Martin, 375 U.S. 399 (1964). There, this

Court applied the Equal Protection Clause to strike

down a law requiring racial labels next to a

candidate’s name on printed ballots. Id. at 402. Like

Cook, Anderson stands for the principle that

government speech is sufficiently restrained by forces

outside the First Amendment.

C. There is no meaningful circuit split on

the question presented.

Highlighting Caruso v. Yamhill Cnty. ex rel. Cnty.

Comm’r, 422 F.3d 848 (9th Cir. 2005), Petitioners

argue that the decision of the court of appeals here

creates a circuit split with the Ninth Circuit. Pet. at

21. However, Petitioners are unable to identify a

circuit split on the claim actually decided by the court

of appeals, much less on the claim Petitioners waived

but now want this Court to decide.

A split on the question Petitioners preserved

would involve a court holding that ballot titles are

purely private expression. But that is not what Caruso

held. Instead, Caruso holds—or at least assumes—

that ballot titles are government speech. 422 F.3d at

855. Therefore, on whether ballot titles are

government speech, Caruso and the decision of the

court of appeals here are not in conflict.

Caruso went on to consider whether any of the

constitutional limitations on government speech,

including the government-compelled speech doctrine,

applied to the ballot titles challenged there. Id. Here,

Petitioners advanced no such theory in either the

district court or the court of appeals, and the court of

appeals issued no decision relevant to that question.

Instead, Petitioners argued exclusively that the titles

are “not government speech.” App. at 181a. On this

point there is no conflict with Caruso, because the

court of appeals neither reached, nor needed to reach,

the arguments advanced before the Ninth Circuit, as

they were not pursued here.

Petitioners’ invocations of Kim v. Hanlon, 99

F.4th 140 (3d Cir. 2024), and Libertarian Party of Va.

v. Alcorn, 826 F.3d 708 (4th Cir. 2016), are similarly

unavailing. In neither case was the government

speech doctrine raised, briefed, or decided; let alone as

applied to the distinct question of ballot initiative

titles. Both of those cases addressed the location of

candidate names on candidate-election ballots, with

one concluding that ballot designs which force

candidates to “associat[e] with candidates with whom

they may not wish to associate or face ‘Ballot Siberia,’”

infringed on the candidates’ First Amendment

associational rights. Kim, 99 F.4th at 157; see also

Libertarian Party, 826 F.3d at 712 (addressing law

which relegated independent candidates to the “third

tier of the ballot”). Petitioners’ effort to connect

candidate-location to titles for ballot initiatives—

where Colorado’s initiative titles are specifically set by

the government—is inapt.

III. This case is a poor vehicle for addressing the

question presented.

A. There are alternative grounds for

affirming the denial of the preliminary

injunction.

Petitioners’ claim is moot.

There is no dispute that Petitioners’ request for a

preliminary injunction—sought to allow the proposed

measures to appear on the 2024 election ballot—is

moot. See App. at 181a. And although election-related

cases are often “capable of repetition, yet evading

review,” Davis v. Fed. Election Comm’n, 554 U.S. 724,

735 (2008), this particular action is not.

First, the “capable of repetition, yet evading

review” exception requires a “reasonable expectation

that the same complaining party will be subject to the

same action again.” Id. (quotations omitted). But even

if Petitioners are likely to propose future tax cut

measures in Colorado, the Petition itself emphasizes

specific facts relevant to #21 and #22 that may—or

may not—exist in the future. Unlike most tax cuts,

#22 was a “de minimis . . . tax cut that would be in

effect for a single year” which will have concluded by

the time any decision issues from this Court. Pet. at 7.

Moreover, Petitioners’ central argument is that this

single year “was projected to have tax revenue high

enough to trigger a substantial refund under the

Taxpayer’s Bill of Rights.” Id.

To satisfy the “capable of repetition, yet evading

review” exception, Petitioners must show not only the

likelihood that they will pursue “de minimis,” “single

year” tax cuts in the future, but also that the specific

years they choose are likely to have the same economic

conditions present in FY 2024-2025. And that the

titles set by the Title Board will be substantially

similar to those they challenge here. But see supra n.5

(noting that the Title Board included different

language alongside the language mandated by HB 211321 in the title for another, similar, measure).

Theories that depend on “guesswork as to how

independent decisionmakers will exercise their

judgment” are insufficient to satisfy Article III’s case

or controversy requirement. Murthy v. Missouri, 603

U.S. 43, 57 (2024). The speculative chain of guesswork

required to conclude that Petitioners will face the

same injury in the future is insufficient to satisfy the

exception to mootness.

Second, this case arises as an interlocutory appeal

to the denial of a preliminary injunction. There is no

question the specific relief Petitioners seek—an

injunction prohibiting the Secretary from including

the language drafted by the Title Board on petitions

circulated by Petitioners to qualify #21 and #22 to the

ballot—is moot. In such cases, it is possible for the

interlocutory appeal to be moot even though “the case

as a whole remains live because it is capable of

repetition.” Fleming v. Gutierrez, 785 F.3d 442, 446

(10th Cir. 2015); see also Bierman v. Dayton, 817 F.3d

1070, 1072 (8th Cir. 2016) (“[T]he appeal of an order

denying a preliminary injunction becomes moot if the

act sought to be enjoined has occurred.”) (quotations

omitted); 13C Charles Alan Wright & Arthur R.

Miller, Fed. Prac. & Proc. Juris. § 3533.3.1 (3d ed.)

(“[I]t may be clear that a particular request for relief

has become moot, even though other forms of relief

may remain available. Once the opportunity for a

preliminary injunction has passed, for example, the

preliminary injunction issue may be moot even though

the case remains alive on the merits.”).

“Federal courts do not possess a roving

commission to publicly opine on every legal question.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021).

The most Petitioners can hope for is that this

challenge will result in a favorable opinion that can be

used to address hypothetical, abstract, future injuries.

But “[i]t is a federal court’s judgment, not its opinion,

that remedies an injury; thus it is the judgment, not

the opinion, that demonstrates redressability.”

Haaland v. Brackeen, 599 U.S. 255, 294 (2023).

Where, as here, a favorable decision would offer

Petitioners none of the relief they requested in moving

for an injunction, the request is moot. Id. (holding that

where “petitioners can hope for nothing more than an

opinion,” they “cannot satisfy Article III”).

Pullman abstention

Petitioners’ case.

applies

Although the district court and court of appeals

both rejected Petitioners’ request for an injunction on

the grounds that the ballot titles were government

speech exempt from First Amendment scrutiny, the

Secretary also argued below that abstention was

warranted under Railroad Commission of Texas v.

Pullman Company, 312 U.S. 496 (1941). Under

Pullman, “when the resolution of a federal

constitutional issue may be rendered irrelevant by the

determination of a predicate state-law question,

federal courts should ordinarily abstain from passing

on the federal issue.” Overton v. Bazzetta, 539 U.S.

126, 140-41 (2003) (Thomas, J., concurring).

Here, the question of how the Title Board should

address the HB 21-1321 language in situations where

Colorado is expected to enjoy a budget surplus is a

significant question of state law. And Colorado

furnishes “easy and ample means for determining”

that question through the Title Board appeal process.

Pullman, 312 U.S. at 501. Petitioners chose not to

avail themselves of that process, depriving the state

courts of the opportunity to answer that question.

Under Pullman, this Court should give Colorado’s

courts that chance and abstain from answering the

question presented here.

As the Tenth Circuit concluded, Colorado’s long

history and complete control over the ballot title

language—along

with

the

transparently

governmental source of that language—render this an

easy case of government speech. And facts unique to

this case and to Colorado make it a poor vehicle for

addressing the general question of whether, and for

whom, First Amendment protections attach to state

ballot initiative titles.

B. Petitioners’ position is unworkable.

The Petition presents this case as a

straightforward question of whether the government

speech doctrine applies to ballot titles crafted by the

government and printed on government-controlled

ballots and signature petitions. But answering that

question will require the Court to wade into more

complicated waters. Most importantly, the Petition

raises the specter that individual proponents of a

ballot measure can craft their own titles without

government involvement.

As this Court has recognized, state regulation of

the initiative process is necessary to prevent confusion

and ensure consistency. See, e.g. Buckley v. Am.

Constitutional Law Found., Inc., 525 U.S. 182, 191-92

(1999). As a result, “States allowing ballot initiatives

have considerable leeway to protect the integrity and

reliability of the initiative process[.]” Id. But

Petitioners’ position in this lawsuit would wreak

havoc on the initiative process.

If the ballot titles set by the Title Board are not

government speech, then it may follow that every

individual with an interest in those titles enjoys First

Amendment rights as to them; including, perhaps, the

right not to include those titles on signature petitions.

After all, where persons enjoy First Amendment

protections for particular expression, the government

cannot force those persons to broadcast a message

with which they disagree. See, e.g., Johanns v.

Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005).

Does this mean that if a proponent disagrees with

the title set by the Title Board it may altogether omit

that title from the petition it circulates? Or craft its

own title? And putting aside the petition, what about

the ballot itself? If Advance Colorado enjoys First

Amendment rights as to the language of the title, that

right presumably applies equally as to the ballot as it

does to signature petitions. And if not, then that

finding would invite the possibility that proponents

could qualify a measure for the ballot by collecting

signatures on petitions with one title (set by the

proponents), but a different title entirely (set by the

Title Board) will appear on the ballot. It is hard to

fathom a more chaotic outcome. But see Buckley, 525

U.S. at 187 (“[T]here must be a substantial regulation

of elections if . . . some sort of order, rather than chaos,

is to accompany the democratic process.” (quotations

omitted)).

Moreover, Petitioners’ ultimate claim is that

Colorado is hijacking their protected speech by

making them include language with which they

disagree on the petitions they circulate for signatures.

See, e.g., Pet. at 13. If Petitioners’ theory is correct,

then any individual circulating a petition, or paying to

circulate a petition, has an individualized First

Amendment interest in the ballot title. That interest

is not limited to the original proponents of a measure.

This case illustrates the difficulty that would

arise in such a regime. The Petition claims that these

measures were “brought by Advance Colorado.” Pet. at

9. But for state law purposes the measures were

submitted

two

individual

“designated

representatives.” See COLO. REV. STAT. § 1-40-104

(describing role of “designated representatives” “who

shall represent the proponents in all matters affecting

the petition”). Nonetheless, the Petition argues that

Advance Colorado—which for state law purposes is

indistinguishable from any other party interested in

these measures—has First Amendment protected

interests during the signature gathering process. If so,

then so too does any signature gatherer. Or even

persons opposed to the signature gathering effort.6

At minimum, the Petition seems to suggest that

the title of a measure is the private speech of

whomever is circulating a petition for signatures on

that measure, and that those persons cannot be

compelled to circulate petitions with titles they

contend are false. See Pet. at 34 (“Respondent would

put Petitioner to a choice: circulate false ballot

6 Petitions often attract “decline to sign” efforts, which

encourage voters not to sign the petitions. See, e.g., Andrew

McKean, Anti-Hunting Groups Are Running a Paid Signature

Campaign to Ban Cougar Hunting in Colorado. Conservation

Orgs Launch “Decline to Sign” Effort, Outdoor Life, June 14,

2024. Available at https://www.outdoorlife.com/conservation/signature-campaign-ban-lion-hunting-colorado/.

petitions, or refrain from speaking.”). So, if a ballot

title is the protected speech of the signature gatherer,

there could be as many different titles as there are

petition circulators.

Even an attempt to draw a narrow interpretation

that the title is the private speech of whomever

drafted the proposal and submitted it to the Title

Board would raise complications. In 2020, a

predecessor to Advance Colorado “approached the

proponents” of two measures that had already had

titles set and “assumed signature gathering

responsibility for both propositions.” Unite for Colo.,

551 P.3d at 694. In that case, when Advance

Colorado’s predecessor went to collect signatures to

qualify the measure for the ballot, was the ballot title

the protected speech of the measure’s proponents, or

of the person now collecting signatures? What if, as

often happens, multiple groups collaborate on a ballot

measure and submit it to the Board, but then disagree

as to the title?

Today,

signature

gatherers,

supporters,

opponents, and any other interested parties may

freely speak out in favor of, or against, any proposed

measure. But those persons cannot each write and

advance their own title. Deciding this case on the

grounds Petitioners request would force the Court to

address these difficult issues.

Finally, accepting Petitioners’ theory would

unleash a flood of litigation at the federal level. As

noted, Colorado already has an easy state-law process

to determine the clarity and accuracy of ballot titles.

COLO. REV. STAT. § 1-40-107(2). During the 2023-2024

election cycle, 314 separate ballot measures were

submitted to the Title Board.7 Of those, 41 separate

measures were appealed to the Colorado Supreme

Court on either clear title or single subject grounds.8

If some private parties enjoy First Amendment

rights with regards to these titles, that litigation will

inevitably shift to federal court. And that litigation

will need to unfold on an expedited timeline. See COLO.

REV. STAT. § 1-40-107(2) (requiring appeals from the

Title Board to be filed within seven days and “disposed

of promptly”). In 2026, measures will be titled by the

Title Board through late-April. See id. § 1-40-107(1)(c).

And signatures must be submitted no later than

August 3, 2026, just three months later. COLO. CONST.

art. V, § 1(2); COLO. REV. STAT. §§ 1-40-108, 1-40107(5). Thus, any review in Federal court would need

to occur quickly enough that signatures could be

collected in this short window.

C. The language to

object is not false.

which

Petitioners

Finally, much of the Petition is devoted to arguing

that HB 21-1321 requires “false” language in the titles

for #21 and #22. Not only is this an important question

of state law that Petitioners could have pursued

through the state appellate process, but did not, it is

also incorrect as a matter of fact.

Unique among the states, Colorado has a

Taxpayer’s Bill of Rights (TABOR). Added to the

Colorado Constitution in 1992, TABOR requires voter

approval for certain types of tax increases. COLO.

CONST. art. X, § 20(4)(a). It also limits the amount of

7 See supra n.1.

8 See supra n.2.

money the state or local governments can spend in a

given fiscal year. Id. § 20(7). If revenues from certain

sources exceed a jurisdiction’s “cap,” the excess must

be refunded. Id.

This refund provision lies at the heart of

Petitioners’ challenge related to #22.9 They assume

that Colorado will exceed the TABOR cap in FY 20242025 and issue refunds. If so, they claim, any revenue

reduction traceable to #22 would not “reduce funding

for state expenditures,” but would rather only “reduce

the refund to Colorado taxpayers.” Pet. at 6, 7.

That distinction cuts too finely. First, under

Colorado law, a TABOR refund is a state expenditure.

TABOR defines “fiscal year spending” as “all district

expenditures . . . except” TABOR refunds, thus

defining the broad term, “expenditures” to include

refunds. COLO. CONST. art. X § 20(2)(e). Indeed, if

TABOR refunds were not expenditures, there would

be no need to exempt them from the “fiscal year

spending” definition as TABOR does.

Second, even if refunds are not expenditures,

#22’s title says only that funding for expenditures will

be cut. See Pet. at 6. That is true. A proposal to cut

government funding will reduce funding available for

government expenditures. Even if those expenditures

remain constant.10

9 Petitioners make no effort to explain why the title set for #21

is false.

10 An example is helpful. If a household budget anticipates $100

of expenditures per month, and the household’s income increases

from $100 per month to $200 per month, the funding available

Finally, Petitioners’ claims of falsity are based on

outdated and uncertain economic projections. The

Petition cites a June 2023 forecast when Colorado’s FY

2024-2025 revenue was projected to exceed the

TABOR cap by $1.97 billion. Pet. at 7 (citing The

Colorado Council of Legislative Staff, Economic and

Revenue Forecast, June 2023). But that same

publication is updated quarterly. And as of June 2024,

that projected surplus for FY 2024-2025 had fallen by

over $1.6 billion to around $300 million. The Colorado

Council of Legislative Staff, Economic and Revenue

Forecast, June 2024, at 3.11 The most recent update,

from December, projects a modest surplus, but warns

that Colorado could “fall short of the . . . cap even

without an economic downturn.” The Colorado

Council of Legislative Staff, Economic and Revenue

Forecast, December 2024, at 5.12

In other words, it is uncertain whether the state

will issue TABOR refunds in 2025. And if not, then

even under Petitioners’ cramped interpretation of

state “expenditures,” the title for #22 is not false.

These facts demonstrate the core problem with

Petitioners’ focus on falsity. If falsity is relevant to

determining whether the ballot title reflects the

government’s speech or instead that of a private

party—which it is not—when is that falsity measured?

And what happens if, like here, economic projections

for satisfying the $100 worth of expenditures has increased, even

if those expenditures remain constant.

11 Available at https://leg.colorado.gov/sites/default/files/images/june2024forecastforposting.pdf

12 Available at https://leg.colorado.gov/sites/default/files/images/dec2024forecastwithcover_0.pdf

change between when the title is set and the proposed

tax cut takes effect?13

Petitioners paint this as an easy case about how

to handle false language in ballot titles. It is anything

but. Even if this Court were inclined to hold that the

First Amendment attaches to the titles set by state

government for state ballot initiatives and draw a

bright-line rule on how to handle alleged falsity in that

context, reliance on shifting economic projections

unique to Colorado means this case does not present

that opportunity.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

PHILIP J. WEISER

Attorney General

RUSSELL D. JOHNSON

Deputy Solicitor General

SHANNON WELLS STEVENSON

Solicitor General

Counsel of Record

J. GREGORY WHITEHAIR

Senior Assistant Attorney

General

PETER G. BAUMANN

Assistant Solicitor General

Office of the Colorado

Attorney General

LEO T. NGUYEN

1300 Broadway

Assistant Attorney General

10th Floor

Fellow

Denver, Colorado 80203

Shannon.Stevenson@coag.gov

(720) 508-6000

Counsel for Respondent

January 3, 2025

13 The district court heard testimony at the preliminary

injunction hearing about how quickly these projections can

change. App. at 155a-57a.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.