PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ANDY KERR, Colorado State 

Representative; NORMA V. ANDERSON; 

JANE M. BARNES, member Jefferson 

County Board of Education; ELAINE 

GANTZ BERMAN, member State Board 

of Education; ALEXANDER E. 

BRACKEN; WILLIAM K. BREGAR, 

member Pueblo District 70 Board of 

Education; BOB BRIGGS, Westminster 

City Councilman; BRUCE W. 

BRODERIUS, member Weld County 

District 6 Board of Education; TRUDY B. 

BROWN; JOHN C. BUECHNER, Ph.D., 

Lafayette City Councilman; STEPHEN A. 

BURKHOLDER; RICHARD L. BYYNY, 

M.D.; LOIS COURT, Colorado State 

Representative; THERESA L. CRATER; 

ROBIN CROSSAN, member Steamboat 

Springs RE-2 Board of Education; 

RICHARD E. FERDINANDSEN; 

STEPHANIE GARCIA, member Pueblo 

City Board of Education; KRISTI 

HARGROVE; DICKEY LEE 

HULLINGHORST, Colorado State 

Representative; NANCY JACKSON, 

Arapahoe County Commissioner; 

WILLIAM G. KAUFMAN; CLAIRE 

LEVY, Colorado State Representative; 

MARGARET (MOLLY) MARKERT, 

Aurora City Councilwoman; MEGAN J. 

MASTEN; MICHAEL MERRIFIELD; 

MARCELLA (MARCIE) L. MORRISON; 

JOHN P. MORSE, Colorado State Senator; 

PAT NOONAN; BEN PEARLMAN, 

Boulder County Commissioner; 

WALLACE PULLIAM; PAUL 

No. 12-1445 

FILED 

United States Court of Appeals

Tenth Circuit 

June 3, 2016

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 12-1445 Document: 01019631617 Date Filed: 06/03/2016 Page: 1 
2 

WEISSMANN; JOSEPH W. WHITE, 

 Plaintiffs - Appellees, 

v. 

JOHN HICKENLOOPER, Governor of 

Colorado, in his official capacity, 

 Defendant - Appellant. 

------------------------------ 

D’ARCY W. STRAUB; 

INDEPENDENCE INSTITUTE; CATO 

INSTITUTE; SEN. KEVIN LUNDBERG; 

REP. JERRY SONNENBERG; REP. 

JUSTIN EVERETT; REP. SPENCER 

SWALM; REP. JANAK JOSHI; REP. 

PERRY BUCK; SEN. TED HARVEY; 

SEN. KENT LAMBERT; SEN. MARK 

SCHEFFEL; SEN. KEVIN GRANTHAM; 

SEN VICKI MARBLE; SEN. RANDY 

BAUMGARDNER; REP. DAN NORDBERG; 

REP. FRANK MCNULTY; REP. JARED 

WRIGHT; REP. CHRIS HOLBERT; REP. 

KEVIN PRIOLA; SEN. SCOTT RENFROE; 

SEN. BILL CADMAN; COLORADO UNION 

OF TAXPAYERS FOUNDATION; 

NATIONAL FEDERATION OF 

INDEPENDENT BUSINESS; TABOR 

FOUNDATION; AMERICAN 

LEGISLATIVE EXCHANGE COUNCIL; 

NATIONAL TAXPAYERS UNION; 

AMERICANS FOR TAX REFORM; 

CITIZENS IN CHARGE; HOWARD 

JARVIS TAXPAYERS ASSOCIATION; 

CITIZENS FOR LIMITED TAXATION; 

GOLDWATER INSTITUTE; FREEDOM 

CENTER OF MISSOURI; CASCADE 

POLICY INSTITUTE; PELICAN 

INSTITUTE FOR PUBLIC POLICY; 

TAX FOUNDATION OF HAWAII; 

Appellate Case: 12-1445 Document: 01019631617 Date Filed: 06/03/2016 Page: 2 
3 

WISCONSIN INSTITUTE FOR LAW & 

LIBERTY; WASHINGTON POLICY 

CENTER; OKLAHOMA COUNCIL FOR 

PUBLIC AFFAIRS; HOWARD JARVIS 

TAXPAYERS FOUNDATION; FREEDOM 

CENTER OF MISSOURI; FREEDOM 

FOUNDATION; GOLDWATER 

INSTITUTE; 1851 CENTER FOR 

CONSTITUTIONAL LAW; COLORADO 

CHAPTER OF THE AMERICAN 

ACADEMY OF PEDIATRICS; COLORADO 

NONPROFIT ASSOCIATION; COLORADO 

GENERAL ASSEMBLY; BELL POLICY 

CENTER; COLORADO FISCAL 

INSTITUTE; THE CENTER ON BUDGET 

AND POLICY PRIORITIES; COLORADO 

PARENT TEACHER ASSOCIATION; 

ERWIN CHEMERINSKY; HANS LINDE; 

WILLIAM MARSHALL; GENE NICHOL; 

WILLIAM WIECEK; COLORADO 

ASSOCIATION OF SCHOOL BOARDS; 

COLORADO ASSOCIATION OF SCHOOL 

EXECUTIVES; CENTER ON BUDGET 

AND POLICY PRIORITIES; DAVID 

BALMER; JOHN COOKE; LARRY 

CROWDER; OWEN HILL; BETH 

MARTINEZ HUMENIK; TIM NEVILLE; 

ELLEN ROBERTS; RAY SCOTT; LAURA 

WOODS; JON BECKER; J. PAUL BROWN; 

KATHLEEN CONTI; DON CORAM; BRIAN 

DELGROSSO; TIM DORE; STEPHEN 

HUMPHREY; GORDON 

KLINGENSCHMITT; LOIS LANDFRAF; 

POLLY LAWRENCE; PAUL LUNDEEN; 

PATRICK NEVILLE; BOB RANKIN; KIM 

RANSOM; CATHERINE ROUPE; LORI 

SAINE; LANG SIAS; DAN THURLOW; 

YEULIN V. WILLETT; JAMES WILSON; 

JOANN WINDHOLZ; BOB GARDNER; 

MIKE KOPP; ANDY MCELHANY; STATE 

OF TEXAS; STATE OF IDAHO; STATE OF 

INDIANA; STATE OF MICHIGAN; 

CENTER FOR CONSTITUTIONAL 

JURISPRUDENCE, 

 Amici Curiae. 

Appellate Case: 12-1445 Document: 01019631617 Date Filed: 06/03/2016 Page: 3 
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_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:11-CV-01350-RM-NYW)

_________________________________ 

Frederick R. Yarger (William Allen, Kathleen Spalding, Stephanie Lindquist Scoville, 

Matthew D. Grove, Megan Paris Rundlet, and Jonathan P. Fero, Office of the Attorney 

General for the State of Colorado, and Daniel D. Domenico, Kittredge LLC, with him on 

the briefs), Office of the Attorney General for the State of Colorado, Denver, Colorado, 

for Defendant-Appellant. 

David E. Skaggs (Lino S. Lipinsky de Orlov, Dentons US LLP, Denver, Colorado, John 

A. Herrick, Geoffrey Williamson, Carrie E. Johnson, Sarah M. Clark, Michael F. Feeley, 

Brownstein Hyatt Farber Schreck, LLP, Denver, Colorado, Michael L. Bender, Perkins 

Coie, LLP, Denver, Colorado; Herbert Lawrence Fenster, Covington & Burling LLP, 

Washington, D.C., with him on the briefs), for the Plaintiffs-Appellees. 

Richard A. Westfall, Hale Westfall, LLP, Denver, Colorado, and Karen R. Harned and 

Luke A. Wake, NFIB Small Business Legal Center, Washington, D.C., filed an amicus 

curiae brief for National Federation of Independant Business; Tabor Foundation; 

American Legislative Exchange Council; National Taxpayers Union; Americans for Tax 

Reform; Citizens in Charge; Howard Jarvis Taxpayers Association; Citizens for Limited 

Taxation; Goldwater Institute; Freedom Center of Missouri; Cascade Policy Institute; 

Pelican Institute; Institute for Public Policy; Tax Foundation of Hawaii; Wisconsin 

Institute for Law and Liberty; Washington Policy Center on behalf of DefendantAppellant. 

Matthew J. Douglas, Holly E. Sterrett, Paul W. Rodney, and Nathaniel J. Hake, Arnold & 

Porter, LLP, Denver, Colorado, filed an amicus curiae brief for the Bell Policy Center 

and the Colorado Fiscal Institute on behalf of Plaintiffs-Appellees. 

Ilya Shapiro, Cato Institute, Washington, D.C., filed an amicus curiae brief for Cato 

Institute on behalf of Defendant-Appellant. 

Anthony J. Bruno, Milton A. Miller, and Jacquelynn K.M. Levien, Latham & Watkins, 

LLP, Los Angeles, California, and John C. Eastman, Center for Constitutional 

Jurisprudence, Orange, California, filed an amicus curiae brief for the Center for 

Constitutional Jurisprudence on behalf of Defendant-Appellant. 

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Andrew M. Low, Emily L. Droll, and John M. Bowlin, Davis Graham & Stubbs, LLP, 

Denver, Colorado, filed an amicus curiae brief for Colorado Association of School 

Executives and Colorado Association of School Boards on behalf of Plaintiffs-Appellees. 

Harold A. Haddon and Laura G. Kastetter, Haddon Morgan and Foreman, P.C., Denver, 

Colorado, filed an amicus curiae brief for Colorado Chapter of the American Academy of 

Pediatrics and the Colorado Nonprofit Association on behalf of Plaintiffs-Appellees. 

Stephen G. Masciocchi and Maureen Reidy Witt, Holland & Hart, LLP, Denver, 

Colorado, and Greenwood Village, Colorado, filed an amicus curiae brief for the 

Colorado General Assembly on behalf of Plaintiffs-Appellees. 

Catherine C. Engberg, Shute Mihaly & Weinberger, LLP, San Francisco, California, filed 

an amicus curiae brief for the Colorado Parent Teacher Association on behalf of 

Plaintiffs-Appellees. 

Jeffrey W. McCoy and Steven J. Lechner, Mountain States Legal Foundation, Lakewood, 

Colorado, filed an amicus curiae brief for Colorado Union of Taxpayers Foundation, 

Andy McElhany, Bill Cadman, Bob Gardner, Bob Rankin, Brian DelGrosso, Catherine 

Roupe, Chris Holbert, Dan Nordberg, Dan Thurlow, David Balmer, Don Coram, Ellen 

Roberts, Frank McNulty, Gordon Klingenschmitt, J. Paul Brown, James Wilson, Janak 

Joshi, Jerry Sonnenberg, John Cooke, Jon Becker, Justin Everett, Kathleen Conti, Kent 

Lambert, Kevin Grantham, Kevin Lundberg, Kevin Priola, Kim Ransom, Laura Woods, 

Lang Sias, Larry Crowder, Lois Landfraf, Lori Saine, Mark Scheffel, Mike Kopp, Owen 

Hill, Patrick Neville, Paul Lundeen, Perry Buck, Polly Lawrence, Randy Baumgardner, 

Ray Scott, Scott Renfroe, Spencer Swalm, Stephen Humphrey, Ted Harvey Tim Dore, 

Tim Neville, Vicki Marble, Yeulin V. Willett, Beth Martinez Humenik, and JoAnn 

Windholz, on behalf of Defendant-Appellant. 

David Kopel, Independence Institute, Denver, Colorado, filed an amicus curiae brief for 

Independence Institute on behalf of Defendant-Appellant. 

Ken Paxton, Attorney General of Texas, Charles E. Roy, First Assistant Attorney 

General, Scott A. Keller, Solicitor General, J. Campbell Barker, Deputy Solicitor 

General, Autumn Hamit Patterson, Assistant Attorney General, Office of the Attorney 

General for the State of Texas, Austin, Texas, and Lawrence G. Wasden, Attorney 

General of Idaho, Boise, Idaho, Gregory F. Zoeller, Attorney General of Indiana, 

Indianapolis, Indiana, and Bill Schuette, Attorney General of Michigan, Lansing, 

Michigan, filed an amicus curiae brief for the State of Idaho, State of Indiana, State of 

Michigan, and State of Texas on behalf of Defendant-Appellant. 

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Joseph R. Guerra and Kathleen Mueller, Sidley Austin, LLP, Washington, D.C., filed an 

amicus curiae brief for The Center on Budget and Policy Priorities on behalf of PlaintiffsAppellees. 

D’Arcy W. Straub, Littleton, Colorado, filed an amicus curiae brief for D’Arcy W. Straub 

on behalf of Defendant-Appellant. 

Melissa Hart, University of Colorado School of Law, Boulder, Colorado, filed an amicus 

curiae brief for Erwin Chemerinsky, Gene Nichol, Hans Linde, William Marshall, and 

William Wiecek on behalf of Plaintiffs-Appellees. 

_________________________________ 

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges. 

_________________________________ 

LUCERO, Circuit Judge. 

_________________________________ 

We are asked to take a second look at this case to consider the effect of the 

Supreme Court’s intervening opinion in Arizona State Legislature v. Arizona 

Independent Redistricting Commission, 135 S. Ct. 2652 (2015) (hereinafter 

“Arizona”). See Hickenlooper v. Kerr, 135 S. Ct. 2927 (2015). In Arizona, the 

Supreme Court held that the Arizona Legislature as an institution had standing to 

challenge a voter-approved proposition. 135 S. Ct. at 2659. For standing purposes, 

the Arizona Court distinguished individual legislators, cf. Raines v. Byrd, 521 U.S. 

811 (1997), from a legislature as a whole for claims challenging a legislature’s 

power. We conclude that this rule of law materially alters the jurisprudence on 

legislator standing and compels us to reverse course from our previous opinion in 

Kerr v. Hickenlooper, 744 F.3d 1156 (10th Cir. 2014), vacated sub nom. 135 S. Ct. 

2927 (2015), (hereinafter “Kerr I”), in which we affirmed the district court’s ruling 

that individual legislators had standing. We now conclude that these individual 

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legislators lack standing because they assert only an institutional injury. We vacate 

the district court’s order and remand for further proceedings. 

I 

Plaintiffs are current and former government officials in Colorado, parents of 

school-aged children, and educators. They filed suit in the district court advancing 

several challenges to Article X, § 20 of the Colorado Constitution, commonly referred to 

as the Taxpayer’s Bill of Rights (“TABOR”). TABOR limits the revenue-raising power 

of state and local governments by requiring “voter approval in advance for . . . any new 

tax, tax rate increase, mill levy above that for the prior year, valuation for assessment 

ratio increase for a property class, or extension of an expiring tax, or a tax policy change 

directly causing a new tax revenue gain.” Colo. Const. art. X, § 20, cl. 4(a). The 

defendant, Governor John Hickenlooper, moved to dismiss the complaint. He argued that 

the plaintiffs lacked standing, that their claims presented nonjusticiable political 

questions, and that they failed to state a claim under the Equal Protection Clause. 

The district court granted in part and denied in part the Governor’s motion to 

dismiss. It dismissed plaintiffs’ equal protection claim, but concluded that certain 

plaintiffs, who were current state legislators (the “legislator-plaintiffs”), had standing and 

that their claims were not barred by the political question doctrine. The court declined to 

consider whether any other plaintiffs possessed standing. Upon motion by Governor 

Hickenlooper, the district court certified its order for interlocutory appeal under 28 

U.S.C. § 1292(b). We accepted jurisdiction and affirmed. Kerr I, 744 F.3d at 1183. 

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In Kerr I, we wrestled with the two essential Supreme Court cases on legislator 

standing, Coleman v. Miller, 307 U.S. 433 (1939), and Raines. In Coleman, the Court 

considered a challenge to Kansas’ ratification of a proposed constitutional amendment 

after the lieutenant governor cast a tie-breaking vote in the state senate. 307 U.S. at 435. 

The Court held that twenty-one state senators, including the twenty who voted against 

ratification, possessed standing to sue because their “votes against ratification have been 

overridden and virtually held for naught although if they are right in their contentions 

their votes would have been sufficient to defeat ratification.” Id. at 438. It concluded 

that “these senators have a plain, direct and adequate interest in maintaining the 

effectiveness of their votes.” Id. 

In Raines, the Court considered whether the Line Item Veto Act (“LIVA”) caused 

cognizable injury by granting the President the authority to cancel certain spending and 

tax measures after signing them into law. 521 U.S. at 814. The Court held that six 

members of Congress who voted against LIVA lacked standing to challenge the law. Id. 

at 813-14. It distinguished Coleman on the ground that the legislators in that case had 

their votes “completely nullified.” Id. at 823. In contrast, the Raines challengers merely 

alleged an “abstract dilution of institutional legislative power.” Id. at 826. 

We acknowledged in Kerr I that neither Raines nor Coleman “maps perfectly onto 

the alleged injury in this case,” but concluded plaintiffs’ “allegations fall closer to the 

theory of vote nullification espoused in Coleman than to the abstract dilution theory 

rejected in Raines.” Kerr I, 744 F.3d at 1165. The legislator-plaintiffs allege that 

TABOR deprives them of their ability to perform the “legislative core functions of 

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taxation and appropriation” and “remov[es] the taxing power of the General Assembly.” 

We determined that “[u]nder TABOR, a vote for a tax increase is completely ineffective 

because the end result of a successful legislative vote in favor of a tax increase is not a 

change in the law” and thus a legislator’s vote is “advisory from the moment it is cast.” 

Id. at 1165, 1166. 

In making that determination, we considered several factors that distinguished this 

suit from Raines. In particular, we noted that legislator-plaintiffs lack a legislative 

remedy because “TABOR was not passed by, and cannot be repealed by, the Colorado 

General Assembly.” Id. at 1166. But see Raines, 521 U.S. at 824 (noting that Congress 

could repeal LIVA by simple majority vote). Separation of powers concerns are not 

implicated because this case does not challenge an action taken by a coequal branch of 

the federal government. Kerr I, 744 F.3d at 1168. But see Raines, 521 U.S. at 819-20 

(“[O]ur standing inquiry has been especially rigorous when reaching the merits of the 

dispute would force us to decide whether an action taken by one of the other two 

branches of the Federal Government was unconstitutional.”). And although the General 

Assembly was not a party, it submitted an amicus brief in support of standing. Kerr I, 

744 F.3d at 1168. But see Raines, 521 U.S. at 829 (noting that both houses of Congress 

actively opposed the suit). 

We further noted several features of the alleged injury that counseled against 

standing. As in Raines, the legislator-plaintiffs did not “claim that they were ‘personally 

entitled’ to cast an effective vote on revenue-raising measures in the sense that the 

authority at issue runs . . . with the Member’s seat.” Kerr I, 744 F.3d at 1170 (quoting 

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Raines, 521 U.S. at 821). But we determined that “this factor alone cannot be sufficient 

to defeat standing.” Id. We also acknowledged but rejected the Governor’s argument 

that legislator-plaintiffs must identify a “specific legislative act,” id. at 1168 (quotation 

omitted), in order to establish standing because “[o]ur standing jurisprudence does not 

demand that plaintiffs engage in an obviously futile gesture,” id. at 1170. And although 

we recognized that some cases have concluded individual legislators lack standing if their 

claimed injury impacted all members of a legislature equally, we noted that those cases 

rested in part on “the availability of internal legislative remedies, or separation-of-powers 

concerns, none of which are present in this case.” Id. at 1171. Ultimately, we held that 

“the legislator-plaintiffs have sufficiently alleged an injury to the ‘plain, direct and 

adequate interest in maintaining the effectiveness of their votes.’” Id. at1171 (quoting 

Coleman, 407 U.S. at 438). 

II

After we decided Kerr I, the Supreme Court handed down Arizona, which 

parallels the present action in many respects. In that suit, the Arizona Legislature 

argued that Proposition 106, which created an independent commission with sole 

authority over redistricting, violated the Elections Clause, U.S. Const. art. 1, § 4, cl. 

1. Arizona, 135 S. Ct. at 2658-59. The Court held that the Legislature had standing, 

id. at 2665, but concluded that the regime did not violate the Elections Clause, id. at 

2677. 

The Arizona Court considered many of the same standing issues we confronted 

in Kerr I. It first held that the Legislature did not need to point to a “specific 

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legislative act that would have taken effect but for” the challenged constitutional 

provision. Arizona, 135 S. Ct. at 2663 (quotation omitted). It concluded that the suit 

was not “premature,” nor was the Legislature’s injury hypothetical, because any 

legislative act would “directly and immediately conflict with the regime Arizona’s 

Constitution establishes.” Id. Under the Arizona Constitution, the Legislature does 

not have the power “‘to adopt any measure that supersedes [an initiative], in whole or 

in part, . . . unless the superseding measure furthers the purposes’ of the initiative.” 

Id. at 2664 (quoting Ariz. Const. art. IV, pt. 1, § 1(14)). If the Legislature had 

adopted a redistricting plan, it would have violated the Arizona Constitution because 

any such adoption would constitute an attempt to supersede Proposition 106. Id. 

Further, once the independent commission certifies its redistricting plan to the 

Secretary of State, the Arizona Constitution requires the Secretary to implement that 

plan and no other. Id. (citing Ariz. Const. art. IV, pt. 2, § 1(17)). The Court held that 

“the Legislature need not violate the Arizona Constitution and show that the 

Secretary of State would similarly disregard the State’s fundamental instrument of 

government” to establish standing. Id. 

The Court then considered Raines and Coleman. It concluded the 

Legislature’s asserted injury was similar to that alleged in Coleman. Id. at 2665. As 

in Coleman, the Court reasoned, the Legislature had standing because Proposition 

106, in tandem with the Arizona Constitution’s prohibition on undermining the 

purposes of an initiative, would “‘completely nullif[y]’ any vote by the Legislature, 

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now or ‘in the future,’ purporting to adopt a redistricting plan.” Id. (quoting Raines, 

521 U.S. at 823-24). 

In distinguishing Raines, the Court first noted that the case before it did “not 

touch or concern the question whether Congress has standing to bring a suit against 

the President,” which “would raise separation-of-powers concerns” and warrant an 

“‘especially rigorous’” standing inquiry. Id. at 2665 n.12 (quoting Raines, 521 U.S. 

at 819). The Court then described that its primary basis for refusing to extend Raines 

was the plaintiffs’ identity. The plaintiffs in Raines, who did not have standing, were 

“six individual Members of Congress” who failed to show an alleged injury that 

“zeroed in on any individual Member.” Id. at 2664. Instead, the alleged injury was 

“‘widely dispersed’” and “‘necessarily impacted all Members of Congress and both 

Houses . . . equally.’” Id. (quoting Raines, 521 U.S. at 821, 829) (alterations 

omitted). In contrast, the Legislature in Arizona had standing because it was “an 

institutional plaintiff asserting an institutional injury, and it commenced th[e] action 

after authorizing votes in both of its chambers.” Id. Finally, the Court noted that 

Raines had “‘attached some importance to the fact that the Raines plaintiffs had not 

been authorized to represent their respective Houses of Congress.’” Id. (quoting 

Raines, 521 U.S. at 829) (alterations omitted). In contrast, the Arizona Legislature as 

an institution brought the suit challenging Proposition 106 after “authorizing votes in 

both of its chambers.” Id. 

III 

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Adhering to the holding in Arizona, we conclude that a threshold question in 

the legislator standing inquiry is whether the legislator-plaintiffs assert an 

institutional injury. This issue was discussed briefly in Raines. See 521 U.S. at 821 

(describing “the diminution of legislative power” as “a type of institutional injury”). 

But as we noted in Kerr I, both Raines and Coleman were brought by groups of 

individual legislators. See Kerr I, 744 F.3d at 1170. Not so in Arizona. There, the 

Court was presented with “an institutional plaintiff asserting an institutional injury.” 

Arizona, 135 S. Ct. at 2664. Viewing these cases together, individual legislators may 

not support standing by alleging only an institutional injury. 

As defined in Arizona, institutional injuries are those that do not “zero[] in on 

any individual Member.” Id. Instead, an institutional injury is “[w]idely dispersed” 

and “necessarily impact[s] all [m]embers of [a legislature] equally.” Id. (quotation 

and alterations omitted). Thus, under Arizona, an institutional injury constitutes 

some injury to the power of the legislature as a whole rather than harm to an 

individual legislator. An individual legislator cannot “tenably claim a personal 

stake” in a suit based on such an institutional injury. Id. (quotation omitted). 

This formulation differs in some respects from that expressed in Raines, which 

is internally inconsistent. The Raines Court described the injury alleged as a “type of 

institutional injury (the diminution of legislative power), which necessarily damages 

all Members of Congress and both Houses of Congress equally.” 521 U.S. at 821. It 

also stated—consistent with Arizona—that the plaintiffs had “alleged no injury to 

themselves as individuals” and “the institutional injury they allege is wholly abstract 

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and widely dispersed.” 521 U.S. at 829. But the Raines Court also stated that 

Coleman was “[t]he one case in which we have upheld standing for legislators . . . 

claiming an institutional injury.” Id. at 821. 

Describing the injury in Coleman as “institutional” is difficult to square with 

the definition of an institutional injury provided in Arizona. As discussed supra, the 

Coleman Court held that a group of legislators, whose votes would have been 

sufficient to defeat a proposed amendment if their position were correct, had “a plain, 

direct and adequate interest in maintaining the effectiveness of their votes.” 307 U.S. 

at 438. Such a claim does not rest on an injury that “necessarily impacted all 

[m]embers of [a legislature] equally.” Arizona, 135 S. Ct. at 2664 (quotation and 

alterations omitted). To the contrary, Coleman considered which bloc of legislators 

had prevailed in a vote. Only the state senators whose votes were allegedly nullified 

suffered an injury; the twenty senators who voted in favor of the amendment at issue 

were not aggrieved at all. Thus, Coleman did not concern injury to the power of the 

legislature as a whole. 

Moreover, prior to characterizing Coleman as involving an institutional injury, 

the Raines Court declared that the plaintiffs’ “claim of standing is based on a loss of 

political power, not loss of any private right” and compared lower court decisions 

reaching different conclusions as to whether individual legislators have standing 

when they “assert injury to their institutional power as legislators.” 521 U.S. at 820 

n.4. The Court also stressed that Powell v. McCormack, 395 U.S. 486 (1969), which 

decided a case brought by an individual legislator who was denied a seat in the House 

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of Representatives, was inapposite. Raines, 521 U.S. at 820-21. Thus, it may be that 

the Raines Court used the term “institutional” in describing Coleman to distinguish 

injuries that a legislator suffers in an official capacity from those suffered in a 

personal capacity. 

 Whatever the meaning of this passage from Raines, however, we determine it 

clear that the Arizona Court used the term “institutional injury” to refer to a harm 

inflicted on a legislature itself, such that it necessarily impacts all members of that 

legislature in equal measure. Arizona, 135 S. Ct. at 2664. And although we 

acknowledge that Arizona did not expressly hold that only an institutional plaintiff 

possesses standing to assert an institutional injury, that much is implicit in the 

Court’s opinion.1

 If we misrepresent the present state of the pertinent jurisprudence, 

the Court itself can clarify the matter on further review. 

We accordingly consider whether the legislator-plaintiffs have alleged an 

institutional injury. They claim that TABOR deprives them of their ability to 

perform the “legislative core functions of taxation and appropriation.” Kerr I, 744 

F.3d at 1163. This injury shares several features with the one alleged in Arizona. 

The injury goes “well beyond mere abstract dilution.” Kerr I, 744 F.3d at 1165 

(quotation omitted), cf. Arizona, 135 S. Ct. at 2665. Additionally, TABOR, like 

Proposition 106, cannot be repealed “pursuant to the normal legislative process.” 

Kerr I, 744 F.3d at 1166 (quotation omitted); cf. Arizona, 135 S. Ct. at 2664. And 

 

1

 We do not need to decide in this case whether a group of legislators large 

enough to prevail on a vote, see Coleman, 307 U.S. at 438, would possess standing 

based upon an institutional injury. 

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neither case presents separation of powers concerns. Kerr I, 744 F.3d at 1168; cf. 

Arizona, 135 S. Ct. at 2665 n.12. And most importantly, as in Arizona, the injury 

alleged by the legislator-plaintiffs is an institutional injury: it is based on the loss of 

legislative power that necessarily impacts all members of the General Assembly 

equally. 

In determining whether a party may rely on an institutional injury to 

demonstrate standing, the Court has considered whether the plaintiffs represent their 

legislative body as an institution. See Arizona, 135 S. Ct. at 2664; Raines, 521 U.S. 

at 829. In Arizona, the Legislature “commenced th[e] action after authorizing votes 

in both of its chambers.” 135 S. Ct. at 2664. In contrast, the Raines plaintiffs had 

“not been authorized to represent their respective Houses of Congress.” 521 U.S. at 

829. Similarly, when this suit was filed, only five of one hundred General Assembly 

members were parties. The Governor states that only three plaintiffs remain current 

members. And the plaintiffs have acknowledged that including their official 

positions in the complaint did not imply authority to represent the General Assembly. 

Thus, the legislator-plaintiffs pursue this action in their individual capacities, rather 

than as representatives for the General Assembly as a whole.

An amicus brief from the General Assembly in support of legislator standing 

does not alter our analysis. An amicus is not a party. See Coal. of Ariz./N.M. Ctys. 

for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 844 (10th Cir. 1996). 

And the amicus brief does not indicate institutional endorsement of the merits of the 

legislator-plaintiffs’ claims. The Senate Resolution approving the filing stated that 

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“[t]he involvement of the General Assembly as amicus curiae on the limited issue of 

standing . . . should carry no implication about the views of the General Assembly on 

the merits of such lawsuits.” S. Joint Res. 16, 69th General Assembly, 1st Regular 

Sess., at 2 (Colo. 2013). 

Moreover, the vote authorizing the amicus brief occurred two years after this 

suit was filed, and thus would not demonstrate that the “party invoking federal 

jurisdiction had the requisite stake in the outcome when the suit was filed.” Davis v. 

Fed. Election Comm’n, 554 U.S. 724, 734 (2008). We further note that 44 current 

General Assembly members, including a majority of the Colorado State Senate, filed 

an amicus brief supporting the Governor after the Supreme Court vacated our prior 

opinion. But we do not need to consider the relative weight of these filings in our 

standing analysis. We observe only that an amicus brief in support of standing does 

not constitute authorization to bring the suit on behalf of the institution. And because 

the legislator-plaintiffs are not authorized to represent the General Assembly or either 

chamber, they do not qualify as institutional plaintiffs. 

The Arizona Legislature was permitted to challenge a state constitutional 

provision stripping that body of certain power because it was “an institutional 

plaintiff.” Arizona, 135 S. Ct. at 2664. But the legislator-plaintiffs are a group of 

individual members of the General Assembly with numbers too small to authorize 

this lawsuit or to enact a specific legislative act. The alleged injury “scarcely 

zeroe[s] in on any individual [m]ember.” Id. “None of the plaintiffs, therefore, c[an] 

tenably claim a personal stake in the suit.” Id. (quotation omitted). 

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In so holding, we do not suggest that an individual legislator can never bring 

suit. An individual legislator certainly retains the ability to bring a suit to redress a 

personal injury, as opposed to an institutional injury. For example, if a particular 

subset of legislators was barred from exercising their right to vote on bills, such an 

injury would likely be sufficient to establish a personal injury. See Raines, 521 U.S. 

at 824 n.7 (discussing similar hypotheticals). Under those circumstances, the 

legislator could claim a personal injury that zeroes in on the individual and is thus 

concrete and particularized. See Powell, 395 U.S. at 550 (action brought by 

individual claiming personal right to seat in the House of Representatives was 

justiciable). But the legislator-plaintiffs allege a different sort of injury altogether. 

They claim that they have been individually disempowered only concomitantly as a 

result of TABOR’s diminution of the General Assembly’s authority as an institution. 

In determining that the legislator-plaintiffs had standing, Kerr I rested on a 

number of factors identified in Coleman and Raines, including the availability of a 

legislative remedy, Kerr I, 744 F.3d at 1166; the existence of separation of powers 

concerns, id. at 1168; and the extent to which TABOR disempowered the legislatorplaintiffs, id. at 1165-66. But Arizona materially altered the law on legislator 

standing such that the nature of the injury—whether it is personal or institutional—is 

a primary consideration in determining whether individual legislators may bring suit. 

Under Arizona, the legislator-plaintiffs assert only an institutional injury, and thus 

lack standing to bring this action. 

IV 

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We previously emphasized the limited nature of this interlocutory appeal: 

“The district court determined that the plaintiffs who are current state legislators . . . 

have standing and thus declined to assess the standing of any other named 

plaintiffs . . . . We similarly limit our review to the standing of the legislatorplaintiffs.” Kerr I, 744 F.3d at 1163. Governor Hickenlooper asks us to extend our 

review to determine whether any non-legislator plaintiffs have standing. We again 

decline to do so. 

The Governor argues that we are obligated to reach all jurisdictional questions 

in this interlocutory appeal. But our court frequently remands jurisdictional issues 

for determination by the district court. See, e.g., Dutcher v. Matheson, 733 F.3d 980, 

990 (10th Cir. 2013) (remanding “with instructions for the district court to determine 

whether it has jurisdiction”); Motive Parts Warehouse v. Facet Enters., 774 F.2d 380, 

389 (10th Cir. 1985) (“[W]e deem it more appropriate to have the trial court 

specifically address the standing issue on remand.”). Appellate courts have 

“discretion to remand issues, even jurisdictional ones, to the trial court when that 

court has not had the opportunity to consider the issue in the first instance.” Salmon 

Spawning & Recovery All. v. U.S. Customs & Border Prot., 550 F.3d 1121, 1134 

(Fed. Cir. 2008) (collecting cases). 

Declining to reach the issue of standing as to the remaining plaintiffs is 

particularly appropriate in the context of this interlocutory appeal. Although “[o]ur 

jurisdiction under 28 U.S.C. § 1292(b) is not confined to the question certified for 

appeal,” we “are limited to consideration of the order from which [the] appeal is 

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taken.” Jobin v. Boryla (In re M&L Business Mach Co.), 75 F.3d 586, 589 n.4 (10th 

Cir. 1996). Because the district court did not reach the Governor’s arguments as to 

the non-legislator plaintiffs in its certified order, we lack information about the other 

plaintiffs. We remand for the district court to make the initial determination 

regarding non-legislator plaintiffs’ standing. 

For similar reasons, we decline to address the political question doctrine. See 

Kerr I, 744 F.3d at 1181. Because the district court erred in holding the legislatorplaintiffs possess standing, we vacate its certified order. On remand, if the district 

court concludes the remaining plaintiffs lack standing, there will be no reason to 

consider the political question doctrine. See Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005) 

(federal courts possess discretion “to choose among threshold grounds for denying 

audience to a case on the merits” (quotation omitted)). If, however, the district court 

holds that some other plaintiffs possess standing, the district court may then consider 

other justiciability hurdles. In the interest of judicial economy, we conclude that a 

remand for consideration of non-legislator standing is the best course. 

V 

 Because the legislator-plaintiffs rely on an institutional injury, we hold that 

they lack standing. We VACATE the district court’s certified order and REMAND

for a determination of whether the non-legislator plaintiffs possess standing. 

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