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 her 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-CV-01999-PAB-SKC)

_________________________________ 

Jennifer H. Weddle (Troy A. Eid and Harriett McConnell Retford with her on the briefs), 

Greenberg Traurig, LLP, Denver, Colorado, for Plaintiffs – Appellants. 

Michael Kotlarczyk, Senior Assistant Attorney General (Philip J. Weiser, Attorney 

General, and J. Greg Whitehair, Assistant Attorney General, with 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

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I. Introduction 

In 2021, the Colorado state legislature passed The Ballot Measure Fiscal 

Transparency Act (“HB 21-1321”), which requires certain language be included in 

state-imposed titles of citizen-initiated ballot measures. Specifically, if the proposal 

contains a tax change affecting state or local revenues, the measure’s title must 

incorporate a phrase stating the change’s impact on state and district funding 

priorities. In 2023, Appellants (collectively, “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”) included 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 injunction, concluding the titling process 

qualified as government speech and, therefore, 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 compelled speech under the First Amendment of the United 

States Constitution. Thus, exercising jurisdiction pursuant to 28 U.S.C. § 1292, this 

court affirms the district court’s order denying a preliminary injunction. 

II. Background 

a. Factual History 

Colorado law offers citizens the opportunity to propose their own laws or 

constitutional amendments through citizen-initiated ballot measures. Colo. Const. 

art. V, § 1(1). Qualifying proposals under this process must complete a comment and 

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review period before being delivered to the 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 Board 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 information 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 deliberates and sets a title, dissatisfied proponents may 

file a motion for rehearing 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 Colorado Supreme Court for review. Id. § 1-40-107(2). 

Generally, however, “[t]he Title Board is vested with considerable discretion in 

setting the title and the ballot title and submission clause.” Cordero v. Leahy (In re 

Title, Ballot Title & Submission 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 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: . . .”. 

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HB 21-1321 includes two language requirements for initiatives implicating 

reductions in tax revenue: 

(e) For measures that reduce state tax revenue through a tax change, the 

ballot 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...?”. If the ballot measure specifies the public services or 

programs that are to be reduced by the tax change, those public services 

or programs must be stated in the ballot 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 largest areas of program 

expenditure must be stated in the bill title along with the public services 

or programs identified in the measure. The estimates reflected in the 

ballot title shall not be interpreted as restrictions of the state's budgeting 

process. 

(f) For measures that reduce local district property tax revenue through 

a tax change, the ballot title must begin “Shall funding available for 

counties, school districts, water districts, fire districts, and other 

districts funded, at least in part, by property taxes be impacted by a 

reduction of (projected dollar figure of property 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 title. The estimates reflected in the 

ballot title shall not be interpreted 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 2024 statewide ballot that 

proposed tax changes: Colorado Proposed Initiative 2023–2024 #21 (“Initiative 21”), 

which includes a limit on property tax increases; and Colorado Proposed Initiative 

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2023–2024 #22 (“Initiative 22”), which includes a reduction in sales and use tax 

rates. In April 2023, the Title Board determined both measures triggered 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 districts 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 concerning a 3% annual limit on property tax 

increases, and, in connection therewith, creating an exception to the 

limit if a property’s use changes or its square footage increases by more 

than 10%, in which case, the property is reappraised, and, beginning in 

fiscal year 2024–2025, allowing the state to annually retain and spend 

up to $100 million of excess state revenue, if any, as a voter-approved 

revenue change to offset reduced property tax revenue and to reimburse 

local governments for fire protection? 

Likewise, the Title Board set Initiative 22’s title as the following: 

Shall there be a reduction to the state sales and use tax rate by 0.61 

percent, thereby reducing state revenue, which will reduce funding for 

state expenditures that include but are 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, and, in connection 

therewith, reducing the state sales and use tax rate from 2.90 percent to 

2.89 percent from July 1, 2024, through June 29, 2025, and eliminating 

the state sales and use tax for one day on June 30, 2025? 

In accordance with policy, the Colorado Legislature Council Staff released 

fiscal summaries analyzing the respective 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 taxpayers any revenues appropriated in excess 

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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 concluded the measure would 

not likely impact the state’s overall budget. Rather, given the probability of a state 

revenue surplus, the measure was projected only to reduce the amount available for 

taxpayer refunds under TABOR. The fiscal summary for Initiative 21 identified that 

the measure would decrease local property tax revenue and influence school 

financing. It further determined the measure would increase the amount of revenue 

the state could retain and, in turn, decrease the amount used for TABOR refunds. 

b. Procedural History 

Following the Title Board’s determinations, Advance Colorado filed motions 

for rehearing on both Initiative 21 and 22. The Title Board 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, 2023, and after an unrelated challenge, 

Initiative 21 became final on May 19, 2023. Advance Colorado refused, however, to 

circulate any petition to gather 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 appealed a substantively similar proposal 

to Initiative 22 to the Colorado Supreme Court during the 2021–2022 ballot cycle. 

The court summarily affirmed the Title Board’s determination without discussion of 

HB 21-1321’s language requirements. As a result, Advance Colorado asserts it has 

functionally exhausted its state court remedies. 

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Amendment.3

 One week later, it filed a motion for preliminary injunctive relief, 

requesting that the Secretary of State convene the Title Board to reauthorize the 

initiatives’ titles without the language mandated by HB 21-1321. Advance Colorado 

argued the law’s requirements improperly foist oppositional political viewpoints on 

citizen-led ballot measures and are specifically misleading regarding Initiatives 21 

and 22. Contrary to their assigned titles, Advance Colorado asserted that Initiative 21 

proposes only a property tax 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 government and private speech as outlined in 

Shurtleff v. City of Bos., 596 U.S. 243, 252 (2022). Namely, 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 Amendment compelled speech 

3

 In addition to facial and as-applied challenges under the U.S. Constitution, 

Advance Colorado’s complaint included a third claim arising under Article V of the 

Colorado Constitution. It alleged HB 21-1321 violated the state’s requirement that 

ballot titles be clear and direct. 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 argument insufficiently raised in 

a party’s opening brief is deemed waived.”). 

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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 government; 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, 1226 (10th Cir. 

2007). “An abuse of discretion occurs when the district court commits an error of law 

or makes clearly erroneous factual findings.” Att’y Gen. of Oklahoma v. Tyson Foods, 

Inc., 565 F.3d 769, 775 (10th Cir. 2009) (quotations omitted). In conducting this 

analysis, “we examine the district court’s legal determinations de novo, and its 

underlying factual findings for clear error.” Id. at 776. 

To succeed on a motion for preliminary injunction, the moving party must 

establish “(1) a substantial likelihood of prevailing on the merits; (2) irreparable 

harm unless the injunction is issued; (3) [that] the threatened injury outweighs the 

harm that the preliminary injunction may cause the opposing party; and (4) [that] the 

injunction, if issued, will not adversely affect the public interest.” Davis v. Mineta, 

302 F.3d 1104, 1111 (10th Cir. 2002) (quotation omitted), abrogated on other 

grounds by Dine Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276 

(10th Cir. 2016). Preliminary injunctive relief is considered an “extraordinary 

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remedy” that requires the moving party make 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, therefore, 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 has 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 “exempt from First Amendment scrutiny.” Johanns v. 

Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005). 

“The boundary between government speech and private expression can blur 

when . . . a government invites the people to participate in a program.” Shurtleff, 596 

4

 Certain requests for preliminary injunctions 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 reviewing a disfavored preliminary injunction request, this 

court requires the moving party to “make a heightened 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 Title Board, the district court determined the 

motion was disfavored. We conclude Advance Colorado fails to show a substantial 

likelihood of success on the merits 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. 

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U.S. at 252. Under such circumstances, it becomes difficult to discern when 

“government-public engagement” transmits the government’s own message or the 

message of its citizen-participants. Id. In analyzing which side 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 “application of rigid factors,” but rather looks to 

“a case’s context.” Id. Evidence typically used in drawing 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 speaking; and the extent to which the government 

has actively shaped or controlled the expression.” Id.; see also Walker v. Texas Div., 

Sons of Confederate Veterans, Inc., 576 U.S. 200, 208–14 (2015) (holding specialty 

license plate designs constitute government speech); VDARE Found. v. City of 

Colorado Springs, 11 F.4th 1151, 1170 (10th Cir. 2021) (holding public mayoral 

announcement to be government 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 evidence 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 tandem to underscore Colorado’s ballot titling qualifies as 

government speech. The Colorado Title Board has existed and set ballot titles in a 

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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 influence of proposal advocates. Compare id. with Colo. 

Rev. Stat. § 1-40-105(4). The long history of the Title Board’s practices reflects the 

substantial control the government asserts over initiative titles and its legitimate 

interest in providing a standardized process for presenting measures to voters. Titling 

is statutorily separated and preserved as an express function of the government under 

Colorado law. See id. § 1-40-106. Despite the catalytic role played by citizens in the 

initiative process, ballot titles 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 message does not extinguish the governmental 

nature of the message or transform the government’s role into that of a mere forumprovider.” Walker, 576 U.S. at 217. Advance Colorado 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 focused their argument regarding voter 

confusion on signature petitions and offered limited testimonial 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” 

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by the Title Board. See supra n.1. This statement plainly communicates to voters that 

the title is drafted by the government and does not represent the proponents’ 

expression. Advance Colorado provides no additional evidence calling into question 

the public’s perception of who writes the title. Given this minimal support, the robust 

history of titles being government expression, and the near total control the 

government asserts over titling, our holistic review clearly demonstrates 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 unconstitutional under the First Amendment. 

HB 21-1321’s requirements, it argues, inevitably mischaracterize an initiative’s 

purpose and, as a result, compel 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 Colorado ballot titles are private 

speech or government speech, Advance Colorado urges this court to analogize the 

issue to government regulations on political speech or limitations on commercial 

disclosures. The authority it provides, however, is of limited use because these cases 

contemplate clearly private 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 anonymous political literature); Zauderer v. Off. of 

Disciplinary Couns. of Supreme Ct., 471 U.S. 626, 651 (1985) (reviewing 

government disclosure requirements imposed on commercial entities). Here, we 

confront purely government speech, not government regulation of private speech. 

Thus, this court finds Advance Colorado’s private political speech and commercial 

disclosure authority unavailing. 

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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 ballot measure aiming to repeal TABOR was 

clear). The Free Speech Clause, however, typically “does not regulate government 

speech.” Summum, 555 U.S. at 467. Under Shurtleff, the Colorado initiative titling 

system squarely qualifies as government speech and Advance Colorado has not 

otherwise shown its own speech was improperly compelled by the government 

speech.6

 Accordingly, it cannot demonstrate a substantial likelihood of success on the 

merits of its claims and, therefore, the district court did not abuse its discretion in 

denying the preliminary injunction. 

IV. Conclusion 

The order denying Advance Colorado’s request 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 government measures are improperly 

compulsory when they punish or threaten to punish protected speech through 

regulatory or proscriptive acts). With the exception of limited discussion in its reply 

briefing, 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. Given this lack 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 appellant’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. 

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