PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ADVANCE COLORADO, a Colorado non-profit; GEORGE HANKS “HANK” BROWN, an individual; STEVEN WARD, an individual; CODY DAVIS, an individual; JERRY SONNENBERG, an individual; CARRIE GEITNER, an individual, Plaintiffs - Appellants,

v. JENA GRISWOLD, in he r official capacity as Secretary of State of Colorado, Defendant - Appellee. No. 23-1282

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:23-C V-01999-PAB-SKC)

________________ _________________ Jennifer H. Weddle (Troy A. Eid and Harriett McConnell Retf ord with her on the briefs), Greenberg Traurig, LLP, Denver, Colo rado, for Plaintiffs – Appellants. Michael Kotlarczyk, Senior A ssistant Attorney General (P hilip J. Weiser, Attorney General, and J. Greg Whitehair, Assistant Attorney General, w ith him on the brief), Colorado Department of Labor, Denver, Colorado, for Defendant – Appellee.

________________ _________________ Before McHUGH , MURPHY , and CARSON , Circuit Judges.

________________ _________________ MURPHY , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### April 26, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 12 I. Introduction In 2021, the Colorado state legislat ure passed The Ballot Measure Fiscal Transparency Act (“HB 21-1321”), which requires certain langua ge be included in state-imposed titles of citizen -initiated ballot measures. Sp ecifically, if the proposal contains a tax change affect ing state or local revenues, the measure’s title must incorporate a phrase stati ng the change’s impact on state and district funding priorities. In 2023, Appellants (collectiv ely, “Advance Colorado”) proposed two tax reduction measures subject to the provisions of HB 21-1321. After Colorado’s Ballot Title Setting Board (the “Title Board”) in cluded the mandated transparency language in each initiative’s title, Advance Colorado filed suit challenging HB 21-1321 as unconstitutionally compelling its political speech. The district court denied the corresponding request for a preliminary in junction, concluding the titling process qualified as government speech and, therefor e, Advance Colorado was not likely to succeed on the merits of its claims. We agree that HB 21-1321’s requirements do not result in improperly comp elled speech under the First Amendment of the United States Constitution. Thus, exercising jurisd iction pursuant to 28 U.S.C. § 1292, this

court affirms the district court’s order de nying a preliminary injunction.
II. Background

a. Factual History Colorado law offers citizens the opport unity to propose their own laws or constitutional amendments through citizen-i nitiated ballot measures. Colo. Const. art. V, § 1(1). Qualifying proposals under th is process must comp lete a comment and Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 23 review period before being delivered to th e Secretary of State’s office for titling. Colo. Rev. Stat. §§ 1-40-105( 1), 106(1). Colorado’s Title Board is responsible for ensuring each proposal receives a clear and direct title. Id . § 1-40-106(3)(b). Ballot titles are entirely crafted by the Title Bo ard and proposal sponsors do not submit any title language for consideration. Id . §§ 1-40-105(4), 106(1) . Once set, titles may appear in three places: (a) the petition form used by advocates to gather signatures; 1 (b) an official non-partisan voter inform ation booklet; and (c) the ballot itself. Id

. at § 1-40-102(2), 110(2); Colo . Const. art. V, § 1(7.5). After the Title Board deliber ates and sets a title, di ssatisfied proponents may file a motion for reheari ng with the Secretary of State. Colo. Rev. Stat. § 1-40-107(1)(a)(I). If advocates disagree with the Title Board’s rehearing outcome, they may further petition the Co lorado Supreme Court for review. Id . § 1-40-107(2). Generally, however, “[t]he Title Board is vested with consider able discretion in setting the title and the ballot title and submission clause.” Cordero v. Leahy (In re Title, Ballot Title & Submi ssion Clause for 2013-2014 #90) , 328 P.3d 155, 159 (Colo. 2014). HB 21-1321 implemented several rules regarding the contents of citizeninitiated ballot titles involving “tax change[s].” Colo. Rev. Stat. § 1-40-106.

1 When placed on the petition for signature s, each title is preceded by the following disclaimer: “The Ball ot title and submission clau se as designated and fixed by the Initiative Title Setting Review Board is as follows: . . .”. Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 34 HB 21-1321 includes two language requi rements for initiatives implicating reductions in tax revenue: (e) For measures that reduce state ta x revenue through a tax change, the ballot title must begin “Shall there be a reductio n 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 fo r state expenditures that include but are not limited to (t he three largest areas of program expenditure) by an estimated (projected dollar fi gure of revenue reduction to the state in the first full fiscal year that the meas ure reduces revenue) in tax revenue ... ?” . If the ballot measure specifies the public services or programs that are to be reduced by th e tax change, those public services or programs must be stated in the ba llot title. If the public services or programs identified in the measure are insufficient to account for the full dollar value of the tax change in the first full fiscal year that the measure reduces revenue , then the three larg est areas of program expenditure must be stated in the b ill title along with the public services or programs identified in the measur e. The estimates reflected in the ballot title shall not be in terpreted as restrictions of the state's budgeting process. (f) For measures that reduce local di strict property ta x revenue through a tax change, the ballot title must begin “Shall funding available for counties, school districts, water di stricts, fire districts, and other districts funded, at leas t in part, by property taxes be impacted by a reduction of (projected dollar figure of propert y tax revenue reduction to all districts in the first full fiscal year that the measure reduces revenue) in property tax revenue ... ?” . The title board shall exclude any districts whose property tax revenue would not be reduced by the measure from the measure's ballot tit le. The estimates reflected in the ballot title shall not be in terpreted as restrictions of a local district's budgeting process. Id . § 1-40-106(3)(e)–(f) (emphasis added). Advance Colorado sponsored two initiatives for the 202 4 statewide ballot that proposed tax changes: Colo rado Proposed Initiative 2023– 2024 #21 (“Initiative 21”), which includes a limit on property tax in creases; and Colorado Proposed Initiative Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 45 2023–2024 #22 (“Initiative 22”), which incl udes a reduction in sales and use tax rates. In April 2023, the Title Board determ ined both measures tr iggered the language requirements of HB 21-1321 and set titles accordingly. Initiative 21’ s title was stated as follows: Shall funding available for counties, school districts, water districts, fire districts, and other dist ricts funded, at least in part, by property taxes shall be impacted by a reduction of $2.2 billion in property tax revenue by an amendment to the Colorado constitution and a change to the Colorado Revised Statutes concerni ng a 3% annual limit on property tax increases, and, in connection ther ewith, creating an exception to the limit if a property’s use changes or it s square footage increases by more than 10%, in which case, the property is reappraise d, and, beginning in fiscal year 2024–2025, allowing the state to a nnually retain and spend up to $100 million of excess state re venue, if any, as a voter-approved revenue change to offset reduced pr operty tax revenue and to reimburse local governments for fire protection? Likewise, the Title Board set Initi ative 22’s title as the following: Shall there be a reduction to the st ate sales and use tax rate by 0.61 percent, thereby reduci ng state revenue, which will reduce funding for state expenditures that include but ar e not limited to education, health care policy and financing, and higher education by an estimated $101.9 million in tax revenue, by a change to the Colorado Revised Statutes concerning a reduction in state sales and use taxes, a nd, in connection therewith, reducing the state sales and use tax rate from 2.90 percent to 2.89 percent from July 1, 2024, thr ough June 29, 2025, and eliminating the state sales and use tax fo r one day on June 30, 2025? In accordance with policy, the Colorado Legislature Council Staff released fiscal summaries analyzing the respec tive economic impact of each proposal. Importantly, both measures implicate the Colorado Taxpayer’s Bill of Rights (“TABOR”). Colo. Const. art. X, § 20. Among its many mandates, TABOR requires state and local governments to refund taxp ayers any revenues appropriated in excess Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 56 of the prior year’s spending. Id . art. X, § 20(7). Based on then-current forecasts, the Legislature Council’s fiscal summary for Initiative 22 c oncluded the measure would not likely impact the state’s overall budget. Rather, given the pr obability of a state revenue surplus, the measure was projecte d only to reduce the amount available for taxpayer refunds under TABOR. The fiscal summary for Initiative 21 identified that the measure would decrease local prope rty tax revenue and influence school financing. It further determined the meas ure would increase th e amount of revenue the state could retain and, in turn, decr ease the amount used for TABOR refunds.
b. Procedural History Following the Title Board’ s determinations, Advan ce Colorado filed motions for rehearing on both Initia tive 21 and 22. The Title Boar d denied the motions, and Advance Colorado elected not to appeal either decision to the Colorado Supreme
Court. 2 Initiative 22 became final on April 19, 202 3, and after an unrelated challenge, Initiative 21 became final on May 19, 2023. Advance Colorado refused, however, to circulate any petition to ga ther signatures without a preliminary injunction prohibiting HB 21-1321’s application. In August 2023, Advance Colorado commenced this action, alleging HB 21-1321 unconstitutionally compelled its political speech in violation of the First

2 Advance Colorado argues it already app ealed a substantively similar proposal to Initiative 22 to the Colo rado Supreme Court during th e 2021–2022 ballot cycle. The court summarily affirmed the Title Board’s determin ation without discussion of HB 21-1321’s language requirements. As a result, Advance Colo rado asserts it has functionally exhausted its state court remedies. Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 67 Amendment. 3 One week later, it filed a motion for preliminary injunctive relief, requesting that the Secretar y of State convene the Titl e Board to reauthorize the initiatives’ titles without the language ma ndated by HB 21-1321. Advance Colorado argued the law’s requirements improperly foist oppositional political viewpoints on citizen-led ballot measures and are specif ically misleading regarding Initiatives 21 and 22. Contrary to their assigned titles, A dvance Colorado asserted that Initiative 21 proposes only a property ta x cap, not a tax reduction; and Initiative 22 would only result in smaller TABOR refunds, not funding decreases to popular healthcare and education programming. Following a hearing on the preliminary injunction motion, the district court concluded Advance Colorado could not show the requisite likelihood of success on the merits to grant the motion. In its analysis, the court considered the factors used for determining the boundary between govern ment and private sp eech as outlined in Shurtleff v. City of Bos. , 596 U.S. 243, 252 (2022). Name ly, it concluded the history of the expression; the public’s likely perception as to who is speaking; and the extent to which the government has shaped the expression all indicated Colorado’s titling system was government speech not subject to a First Amendmen t compelled speech

3 In addition to facial and as-applie d challenges under the U.S. Constitution, Advance Colorado’s complaint included a thir d claim arising under Article V of the Colorado Constitution. It alle ged HB 21-1321 violated th e state’s requirement that ballot titles be clear and di rect. Advance Colorado failed to raise this claim in its appellate briefing, thereby rendering the issue waived. SCO Grp., Inc. v. Novell, Inc. , 578 F.3d 1201, 1226 (10th Cir. 2009) (“An issue or argumen t insufficiently raised in a party’s opening brief is deemed waived.”). Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 78 claim. In making this determination, the court particularly pointed to the decadeslong history of the Title Board’s practices in Colorado; the heavy regulation of the initiative process by the state governmen t; and limited evidence voters perceive ballot title language to be the Appellants’ own, particularly in light of the disclaimer stating otherwise on petition forms. See supra n. 1.
III. Analysis

a. Standard of Review This court reviews the denial of a preliminary injunction for abuse of discretion. Gen. Motors Corp. v. Urban Gorilla, LLC , 500 F.3d 1222, 12 26 (10th Cir. 2007). “An abuse of discretion occurs when th e district court commits an error of law or makes clearly erroneous factual findings.” Att’y Gen. of Okl ahoma v. Tyson Foods,
Inc. , 565 F.3d 769, 775 (10th Cir. 2009) (quo tations omitted). In conducting this analysis, “we examine the di strict court’s legal determ inations de novo, and its underlying factual findi ngs for clear error.” Id . at 776. To succeed on a motion for preliminary injunction, the moving party must establish “(1) a substantia l likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) [t hat] the threatened injury outweighs the harm that the preliminary injunction may cau se the opposing party; and (4) [that] the injunction, if issued, will not adve rsely affect the public interest.” Davis v. Mineta , 302 F.3d 1104, 1111 (10th Cir. 2002) (quotation omitted), abrogated on other grounds by Dine Citizens Agai nst Ruining Our Env't v. Jewell , 839 F.3d 1276 (10th Cir. 2016). Preliminary injunctive re lief is considered an “extraordinary Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 89 remedy” that requires the moving party ma ke a “clear and unequivocal showing it is entitled to such relief.” Colorado v. U.S. Env’t Prot. Agency , 989 F.3d 874, 883 (10th Cir. 2021) (quotations omitted). 4
b. First Amendment Framework To state a compelled-speech claim under the First Amendment, “a party must establish (1) speech; (2) to which [it] objects; that is (3) compelled by some governmental action.” Cressman v. Thompson , 798 F.3d 938, 951 (10th Cir. 2015). The First Amendment, theref ore, works to “restrict[] government regulation of private speech.” Pleasant Grove City v. Summum , 555 U.S. 460, 467 (2009). Similar to citizens, however, the government ha s a right to “speak for itself.” Bd. of Regents of Univ. of Wis. Sys. v. Southworth , 529 U.S. 217, 229 (2000). In turn, purely government speech is generally “e xempt from First Amendment scrutiny.” Johanns v. Livestock Mktg. Ass’n , 544 U.S. 550, 553 (2005). “The boundary between government sp eech and private expression can blur when . . . a government invites the pe ople to participate in a program.” Shurtleff , 596

4 Certain requests for preliminary inj unctions are disfavored, including those that are mandatory, “alter the status quo,” or “afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.” U.S. Env’t Prot. Agency , 989 F.3d at 883–84. When revi ewing a disfavored prelimin ary injunction request, this court requires the moving party to “make a he ightened showing of the four factors.” RoDa Drilling Co. v. Siegal , 552 F.3d 1203, 1209 (10th Cir. 2009). Given that Advance Colorado’s request aims to alter the status quo by affirmatively requiring the Secretary of State to reconvene the Titl e Board, the district court determined the motion was disfavored. We conclude Advan ce Colorado fails to show a substantial likelihood of success on the mer its under the normal standard, see infra § III.b, and therefore need not determine whether the specific injunction requested was disfavored. See U.S. Env’t Prot. Agency , 989 F.3d at 884. Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 910 U.S. at 252. Under such circumstances, it becomes difficult to discern when “government-public engagement” transmit s the government’s own message or the message of its c itizen-participants. Id . In analyzing which si de of the watershed government engagement falls, “we conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression.” Id . This analysis is not a mechanical “applica tion of rigid factors,” but rather looks to
“a case’s context.” Id . Evidence typically used in dr awing such conclusions includes “the history of the expression at issue; the public ’s likely perception as to who (the government or a private person) is speaki ng; and the extent to which the government has actively shaped or c ontrolled the expression.” Id .; see also Walker v. Texas Div., Sons of Confeder ate Veterans, Inc. , 576 U.S. 200, 208–14 (2015) (holding specialty license plate designs constitu te government speech); VDARE Found. v. City of Colorado Springs , 11 F.4th 1151, 1170 (10th Cir. 2021) (holding public mayoral announcement to be go vernment speech).

c. Government Speech Analysis To receive a preliminary injunction, the moving party must first demonstrate a substantial likelihood of success on the merits of its claims. U.S. Env't Prot. Agency , 989 F.3d at 883. Considering the eviden ce presented and the First Amendment framework set out in Shurtleff , Advance Colorado has failed to meet this standard. 596 U.S. at 252. The first and third Shurtleff factors—history and government control of expression—work in tande m to underscore Colorado’s ballot titling qualifies as government speech. The Colora do Title Board has existed and set ballot titles in a Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 1011 similar manner for over eighty years. See An Act Relating to the Initiative and Referendum, ch. 147, § 1, 1941 Colo. Sess. Laws 480, 480. As is the case today, when it was first formed the Title Board was solely responsible for setting a measure’s title without the infl uence of proposal advocates. Compare id

. with Colo. Rev. Stat. § 1-40-105(4). The long history of the Title Bo ard’s practices reflects the substantial control the government asserts over initiative titles and its legitimate interest in providing a standa rdized process for presenting measures to voters. Titling is statutorily separa ted and preserved as an expres s function of the government under Colorado law. See id. § 1-40-106. Despite the catalytic role played by citizens in the initiative process, ballot ti tles are fully and exclusively crafted by the government through the Secretary of State’ s office. Indeed, “[t]he fact that private parties take part in the design and propagation of a me ssage does not extinguish the governmental nature of the message or transform the gove rnment’s role into th at of a mere forumprovider.” Walker , 576 U.S. at 217. Advance Colo rado has failed to offer any evidence refuting this history of substantial government control. Advance Colorado is also unable to demonstrate that, under the second Shurtleff factor, the general public perceives initiative titles to be the speech of private citizen-advocates. Appellants fo cused their argument regarding voter confusion on signature petiti ons and offered limited test imonial evidence indicating citizens do not always understand the origin of title language. As the district court noted, however, Advance Colorado fails to address the disclaimer shown immediately above the ballot title indicating the language is “designated and fixed” Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 1112 by the Title Board. See supra n.1. This statement plainly communicates to voters that the title is drafted by the government a nd does not represen t the proponents’ expression. Advance Colorado provides no additional evidence calling into question the public’s perception of who writes the titl e. Given this minimal support, the robust history of titles being gove rnment expression, and th e near total control the government asserts over titling, our holistic review clearly demo nstrates Colorado’s titling process qualifies as government speech. Shurtleff , 596 U.S. at 252. 5 Advance Colorado urges this court to conclude the mandatory and misleading effect of HB 21-1321 renders the law unc onstitutional under th e First Amendment. HB 21-1321’s requirements, it argues, in evitably mischaracterize an initiative’s purpose and, as a result, co mpel the speech of advocates by association. Nonetheless, whether the content of the expression may be misleading does not bear on the underlying question of who owns the speech. Colorado law provides a separate, statutorily protected appeal process for proponents who believe the Title Board has

5 Instead of using Shurtleff to analyze whether Colora do ballot titles are private speech or government speech , Advance Colorado urges this court to analogize the issue to government regulati ons on political speech or limitations on commercial disclosures. The authority it provides, howev er, is of limited use because these cases contemplate clearly priv ate or commercial speech. See, e.g. , Cal. Democratic Party v. Jones , 530 U.S. 567 (2000) (considering government regulation of political association on ballots); McIntyre v. Ohio Elections Comm’n , 514 U.S. 334 (1995) (analyzing distribution of ano nymous political literature); Zauderer v. Off. of Disciplinary Couns. of Supreme Ct. , 471 U.S. 626, 651 (1985) (reviewing government disclosure requirements impos ed on commercial en tities). Here, we confront purely government speech, not go vernment regulation of private speech. Thus, this court finds Advance Colorado’ s private political speech and commercial disclosure authority unavailing. Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 1213 provided a substantively unfair title. See, e.g. , Bruce v. Hedges (In re Ballot Title & Submission Clause for 2019-2020 #3 “State Fiscal Policy”) , 454 P.3d 1056, 1060 (Colo. 2019) (considering whether a ballo t measure aiming to repeal TABOR was clear). The Free Speech Cl ause, however, typically “ does not regulate government speech.” Summum , 555 U.S. at 467. Under Shurtleff , the Colorado initiative titling system squarely qualifies as governm ent speech and Advance Colorado has not otherwise shown its own speech was im properly compelled by the government speech. 6 Accordingly, it cannot demonstrate a substantial likelihood of success on the merits of its claims and, therefore, the di strict court did not abuse its discretion in denying the preliminary injunction.
IV. Conclusion The order denying Advance Colorado’s re quest for a preliminary injunction by the United States District Court for the District of Colorado is hereby affirmed

. 7

6 Indeed, even if speech is the government ’s own, it may still violate the First Amendment if it “compel[s] private persons to convey the government’s speech.” Cressman , 798 F.3d at 949 (quotation omitted); see also Semple v. Griswold , 934 F.3d 1134, 1143 (10th Cir. 2019) (holding g overnment measures are improperly compulsory when they punish or threat en to punish protected speech through regulatory or proscriptive acts). With the exception of limited discussion in its reply briefing, Advance Colorado has consistently a sserted that the ball ot titles are its own private speech and has not argued, in the alternative, that they are improperly compulsory government speech. Given this l ack of argument, this court treats the issue as waived. See SCO Grp., Inc. , 578 F.3d at 1226; Star Fuel Marts, LLC v. Sam’s E., Inc. , 362 F.3d 639, 647 (10th Cir. 2004) (“Generally, arguments raised for the first time on appeal in an appe llant’s reply brief are waived.”).

7 Given the disposition of this appeal, Advance Colorado’s Motion to Expedite Review of this case is denied as moot. Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 13