Kerr v. Hickenlooper (880 F. Supp. 2d 1112, 2012)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS

WILLIAM J. MARTINEZ, District Judge.

This action challenges the constitutionality and legality of the Taxpayer’s Bill of Rights (“TABOR”), an amendment to the Colorado Constitution passed by voter initiative in 1992. Among other provisions, TABOR prohibits the Colorado General Assembly from increasing tax rates or imposing new taxes without voter approval. Plaintiffs allege that, by taking away the General Assembly’s power to tax, TABOR violates Colorado’s constitutional and statutory obligations to maintain a republican form of government.

This matter is before the Court on Defendant’s Motion to Dismiss. (ECF No. 18.) In the Motion, Defendant argues that Plaintiffs lack standing to bring this action, that Plaintiffs’ claims present non-justieiable political questions, and that Plaintiffs’ Equal Protection claim and “Impermissible Amendment claim” are independently subject to dismissal. (Id.) On February 15, 2012, the Court held oral argument on the Motion, and thereafter requested supplemental briefing from the parties on various issues related to standing. (See ECF No. 57, 68). The Motion to Dismiss is fully briefed and now ripe for adjudication. (See ECF No. 18, 30, 51, 72, 73; see also ECF No. 21-1, 61.)

Having carefully analyzed the issues presented, the Court GRANTS IN PART and DENIES IN PART the Motion to Dismiss. The Court holds that the Plaintiffs who are current members of the Colorado General Assembly have standing to bring this action, and therefore the action is not subject to dismissal for lack of standing. The Court also holds that Plaintiffs’ claims are not barred by the political question doctrine. Further, the Court holds that Plaintiffs have failed to state an Equal Protection claim, but that their “Impermissible Amendment claim” is not subject to dismissal. Therefore, the Court will allow this action to proceed past the pleading stage on all claims except for the Equal Protection claim.

I. BACKGROUND

A. TABOR

TABOR is codified in Article X, Section 20 of the Colorado Constitution. TABOR provides, among other things, that:

• A “district” (defined in TABOR as the State of Colorado or any local government in Colorado) “must have 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 to any district.” Colo. Const, art. X, § 20, els. (2)(b), (4)(a).

• A district “must [also] have voter approval in advance for ... creation of any multiple-fiscal year direct or indirect district debt or other financial obligation whatsoever without adequate present cash reserves pledged irrevocably and held for payments in all future fiscal years.” Id. art. X, § 20, cl. (4)(b).

• “The maximum annual percentage change in state fiscal year spending equals inflation plus the percentage change in state population in the prior calendar year.... The maximum annual percentage change in each local district’s fiscal year spending equals inflation in the prior calendar year plus annual local growth.... The maximum annual percentage change in each district’s property tax revenue equals inflation in the prior calendar year plus annual local growth.... If revenue from sources not excluded from fiscal year spending exceeds these limits in dollars for that fiscal year, the excess shall be refunded in the next fiscal year unless voters approve a revenue change as an offset.” Id. art. X, § 20, cl. (7)(a)-(d).

• “New or increased transfer tax rates on real property are prohibited. No new state real property tax or local district income tax shall be imposed .... Any income tax law change after July 1, 1992 shall also require all taxable net income to be taxed at one rate, excluding refund tax credits or voter-approved tax credits, with no added tax or surcharge.” Id. art. X, § 20, cl. (8)(a).

Given that TABOR is part of the Colorado Constitution, it cannot be revoked or amended without voter approval. See Colo. Const, art. XIX, § 2, cl. (1) (provision of Colorado Constitution explaining how amendments to Constitution are adopted, and stating that proposed constitutional amendments “shall be submitted to the registered electors of the state for then-approval or rejection [during a general election], and such as are approved by a majority of those voting thereon shall become part of this constitution”); id. art. XIX, § 1 (constitutional provision explaining how a constitutional convention is called, providing that voter approval must be obtained to hold the convention, and providing that voter approval is required for the adoption of any revisions, alterations, or amendments to the Constitution resulting from the convention); see also id. art. X, § 20, cl. (1) (provision of TABOR stating that “[o]ther limits on district revenue, spending, and debt may be weakened only by future voter approval”).

B. The Operative Complaint

For purposes of Defendant’s Motion to Dismiss, the Court properly accepts as true the allegations in Plaintiffs’ First Amended Substitute Complaint for Injunctive and Declaratory Relief (the “Operative Complaint”). (See “Legal Standards” section below.)

1. Plaintiffs

This action is brought by 38 Plaintiffs. (Id. ¶¶ 10-42.) Five Plaintiffs are current members of the Colorado General Assembly, four of whom are members of the Colorado House of Representatives and one of whom is a member of the Colorado Senate (the “Legislator-Plaintiffs”). (Id. ¶¶ 10, 22, 28, 31, 36.) Nine Plaintiffs are former members of the Colorado General Assembly. (Id. ¶¶ 11, 16,19, 30, 32, 34, 35, 40, 41.) Other Plaintiffs include current or former county commissioners, mayors, city councilpersons, members of boards of education, public university presidents and professors, public school teachers, and parents of school-age children. (See generally id. ¶¶ 10-42.) All Plaintiffs are Colorado citizens. (Id.)

2. General Allegations

Plaintiffs’ Operative Complaint states, “The purpose of this case is to seek a ruling that [TABOR] is unconstitutional because it deprives the state and its citizens of effective representative democracy, contrary to a Republican Form of Government as required under both the United States and Colorado Constitutions.” (ECF No. 36, ¶ 8.) Plaintiffs explain their position that “[a]n effective legislative branch must have the power to raise and appropriate funds. When the power to tax is denied, the legislature cannot function effectively to fulfill its obligations in a representative democracy and a Republican Form of Government.” (Id. ¶7.) They allege that TABOR has caused a “slow, inexorable slide into fiscal dysfunction [in Colorado]” (id. ¶ 3), and specifically allege that TABOR has constrained the state government’s ability to comply with its constitutional obligation to adequately fund public education (id. ¶ 81). After reviewing some of TABOR’s provisions (id. ¶¶ 75-77, 79), the Complaint states,

The totality of these TABOR provisions removes entirely from the Colorado General Assembly any authority to change state law concerning taxation to replace or increase revenue, and prohibits the General Assembly from raising funds by any other means, including borrowing. Moreover, the interactions of the provisions of TABOR may actually force existing taxes to be decreased without any action of the General Assembly.

(Id. ¶ 80.)

3. Claims

Plaintiffs bring five claims for relief in the Operative Complaint: (1) The “Guarantee Clause claim,” alleging that TABOR violates Article IV, Section 4 of the United States Constitution (the “Guarantee Clause”). (Id. ¶ 82.) The Guarantee Clause provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government....” U.S. Const, art. IV, § 4. Plaintiffs’ Guarantee Clause claim alleges that, “[b]y removing the taxing power of the General Assembly, the TABOR amendment renders the Colorado General Assembly unable to fulfill its legislative obligations under a Republican Form of Government and violates the guarantee of Article IV, Section 4....” (ECF No. 36, ¶ 82.) ■

(2) The “Enabling Act claim,” alleging that TABOR violates the Enabling Act of 1875 (the “Enabling Act”), the U.S. statute granting statehood to Colorado. (Id. ¶ 83.) The Enabling Act, inter alia, authorized the formation of “a constitution and State Government [for Colorado].... Provided, That the constitution shall be republican in form ... and not repugnant to the Constitution of the United States.... ” 18 Stat. 474 (1875). Plaintiffs’ Enabling Act claim alleges that “the TABOR amendment violates the Enabling Act” because “[t]he Enabling Act’s requirement for a Republican Form of Government entail[s] having and maintaining a fully effective legislature.” (ECF No. 36, ¶ 83.)

(3) The “Supremacy Clause claim,” alleging that TABOR violates Article VI of the United States Constitution (the “Supremacy Clause”). (Id. ¶ 84.) The Supremacy Clause provides that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. Plaintiffs’ Supremacy Clause claim alleges that TABOR is in “irresolvable conflict” with the Guarantee Clause and Enabling Act, and therefore “must yield to the requirements of the ‘Guarantee Clause’ and of the Enabling Act that Colorado maintain a Republican Form of Government.” (ECF No. 36, ¶ 84.)

(4) The “Equal Protection claim,” alleging that TABOR violates the Equal Protection Clause of the Fourteenth Amendment of United States Constitution. (Id. ¶ 85.) The Equal Protection Clause provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Plaintiffs’ Equal Protection claim alleges that, because TABOR violates the requirement of a Republican Form of Government, TABOR “den[ies] to Plaintiffs and others similarly situated the Equal Protection of the Laws----” (ECF No. 36, ¶ 85.)

(5) The “Impermissible Amendment claim,” alleging, inter alia, that TABOR impermissibly amended the Colorado Constitution in violation of constitutionally superior provisions of the Colorado Constitution, specifically Article II, Section 2; Article V, Sections 31 and 32; and Article X, Section 2 of the Colorado Constitution. (Id. ¶¶ 87-92.) ,

4. Relief Sought

Through this action, Plaintiffs seek an order rendering TABOR “null and void” and “prohibiting any [Colorado] state officer from taking any action whatsoever to effect the requirements and purposes of [TABOR].” (Id. at 20-21.)

C. Procedural History

Plaintiffs filed this action on May 23, 2011. (ECF No. 1.) On June 15, 2011, Plaintiffs filed an unopposed motion to amend the original Complaint in order to, inter alia, replace the State of Colorado as the named defendant with the Governor of Colorado, John Hickenlooper, in his official capacity. (ECF No. 9.) The Court granted the request (ECF No. 11), and Plaintiffs’ Substituted Complaint for Injunctive and Declaratory Relief (“Substitute Complaint”) was entered on June 16, 2011 (ECF No. 12).

On October 17, 2011, Plaintiffs again filed an unopposed motion to amend their complaint. (ECF No. 31.) The only differences between the proposed First Amendment Substitute Complaint for Injunctive and Declaratory Relief and the Substitute Complaint were the removal of one of the 34 Plaintiffs, the addition of a new position for another Plaintiff, and a slight re-ordering of paragraphs. (Compare ECF No. 12, with ECF No. 36.) The Court again granted the request (ECF No. 35), and the First Amended Substitute Complaint for Injunctive and Declaratory Relief (the “Operative Complaint”) was entered on October 18, 2011 (ECF No. 36).

On August 15, 2011, Defendant filed the Motion to Dismiss currently at issue. (ECF No. 18.) On October 11, 2011, Plaintiffs filed their Brief in Opposition to the Motion to Dismiss. (ECF No. 30.) On November 18, 2011, Defendant filed a Reply to Plaintiffs’ Opposition. (ECF No. 51.) The Court has also allowed the filing of two amicus briefs, one filed by the Independence Institute (ECF No. 21-1), and one filed by Professors Erwin Chemerinsky, Gene Nichol, and William Wiecek (ECF No. 61).

On February 15, 2012, the Court held oral argument on Defendant’s Motion to Dismiss. (ECF No. 68.) At the oral argument, the parties formally stipulated that the Motion to Dismiss is properly construed as moving to dismiss the Operative Complaint. Based on this stipulation and the Court’s authority to do so, the Court construes Defendant’s Motion to Dismiss as moving to dismiss the Operative Complaint in this action. See Medinger v. City of Ashland, No. 1:11-CV-00470, 2012 WL 1849667, at *1 (D.Or. May 17, 2012) (construing motion to dismiss as applying to later-filed amended complaint).

Because the parties in their briefing on the Motion to Dismiss and at oral argument disproportionately focused on the political question doctrine’s applicability vel non to this action, the Court on February 17, 2012 ordered further briefing from the parties on issues related to Plaintiffs’ standing to bring this action. (ECF No. 70.) On March 16, 2012, both sides filed supplemental briefs addressing the standing issues identified by the Court. (ECF No. 72, 73.)

Defendant’s Motion to Dismiss is now ripe for adjudication.

II. LEGAL STANDARDS

A. Motion to Dismiss and Parties’ Positions

Defendant’s Motion to Dismiss is brought pursuant to Federal Rules of Civil Procedure 12(b)(1) (lack of subject-matter jurisdiction) and 12(b)(6) (failure to state a claim). There is some dispute between the parties regarding which of these two rules applies to each of Defendant’s purported bases for dismissal. (See ECF No. 18, at 3-4; ECF No. 30, at 5-7; ECF No. 51, at 2.) See also, e.g., Schroder v. Bush, 268 F.3d 1169, 1171 n. 1 (10th Cir.2001) (discussing Rules 12(b)(1) and 12(b)(6), and stating, “Deeply rooted ambiguity in the nature and justification of the political question doctrine has prevented clear classification of the appropriate type of dismissal in political question cases.”). However, the parties agree that, no matter which of the two rules applies to each purported basis for dismissal, for every purported basis for dismissal the Court should accept the Operative Complaint’s allegations as true. (See ECF No. 18, at 3^4; ECF No. 30, at 5-6; ECF No. 51, at 2.)

B. Federal Rule of Civil Procedure 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a claim for lack of subject-matter jurisdiction. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint’s allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.2004) (citation and quotation marks omitted). Where, as here, the defendant’s motion to dismiss presents a facial attack on the existence of subject-matter jurisdiction, “the district court must accept the allegations in the complaint as true ... and construe the complaint in favor of [the plaintiffs].” United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir.2001); see also Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“For purposes of ruling on a motion to dismiss for want of standing, ... courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.”). However, “[t]he burden of establishing subject matter jurisdiction is on the party asserting jurisdiction.” Port City Props, v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir.2008).

C. Federal Rule of Civil Procedure 12(b)(6) ,

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” In evaluating such a motion, a court must “assume the truth of the plaintiffs well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir.2009) (quotation marks omitted).

III. ANALYSIS

The Court begins its analysis by evaluating Plaintiffs’ standing to bring this action, and then proceeds to discuss whether the political question doctrine bars this action, in addition to the other arguments raised in Defendant’s Motion to Dismiss. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).

A. Standing

1. Operative Complaint’s Allegations Regarding Standing

The Operative Complaint contains the following allegations regarding various Plaintiffs’ purported standing to bring this action:

• “Several plaintiffs ... hold[ ] public office in certain state and local governmental bodies. The offices held by these plaintiffs are relevant to their standing in the case.” (ECF No. 36, ¶ 9.)

• “In [Andy Kerr’s] individual capacity as a citizen of the State of Colorado and in his capacity as a State Representative, he has standing to challenge the constitutionality of the TABOR amendment.” (Id. ¶ 10.)

• “Certain plaintiffs in this case are past or sitting elected representatives in the General Assembly of the State of Colorado. As such, they have a direct and specific interest in securing to themselves, and to their constituents and to the state, the legislative core functions of taxation and appropriation. Other plaintiffs in this case include officers of counties, districts and municipalities which are dependent, under the state constitution, on the power of the legislature and their own powers to tax and appropriate.” (Id. ¶ 43.)

• “Certain plaintiffs in this case are past or sitting elected officials of counties, cities, and school districts in the State of Colorado, jurisdictions whose abilities to tax are eliminated by TABOR.” (Id. ¶ 44.)

• “Certain plaintiffs in this case are or have been educators employed by the State of Colorado or by various school districts. In addition to their interests as citizens of the state, they also have a specific interest in assuring that the legislature of the state can discharge its responsibilities to tax for the purpose of adequately funding core education responsibilities of the state as provided in Article IX, Section 2 of the Colorado Constitution.” (Id. ¶ 45.)

• “Certain plaintiffs in this case are citizens of the State of Colorado, having a specific, protectable interest in assuring that their representatives can discharge the inherently legislative function of taxation and appropriation and an interest in assuring that the State of Colorado has a Republican Form of Government, as required by the United States Constitution.” (Id. ¶ 46.)

2. Summary of Parties’ Arguments Regarding Standing

In terms of the Legislator-Plaintiffs, Defendant argues that those Plaintiffs do not have standing to assert their claim that TABOR has caused a diminution of their political power, analogizing this case to Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), and distinguishing Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). (ECF No. 51, at 5-7.) Plaintiffs, on the other hand, argue that the Legislator-Plaintiff have standing because “TABOR directly impacts their ability to fulfill their official responsibilities.” (ECF No. 30, at 8.) The Legislator-Plaintiffs argue that their claim is akin to the claim at issue in Coleman, and distinguishable from that in Raines. (Id. at 8-9 & n. 5.) The Court requested further briefing from the parties’ regarding Raines’s applicability vel non to this action (ECF No. 70, at 3), which the parties have provided (ECF No. 72, at 4-8; ECF No. 73, at 13-16).

In terms of citizen standing, Defendant argues that Plaintiffs as citizens of Colorado do not have standing because their claim is “a generally available grievance about government — claiming only harm to [their] and every citizen’s interest in proper application of the Constitution and laws.... ” (ECF No. 18, at 15-16 (quoting Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007)).) In response, Plaintiffs liken their claim of citizen standing to Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), in which taxpayers bringing an Establishment Clause challenge were found to have standing. (ECF 30, at 10-11.) Defendant argues that Flast, a narrow exception to the general rule that taxpayers do not have standing, is inapplicable. (ECF No. 51, at 8-11.) The Court requested further briefing from the parties’ regarding Lance’s applicability to this action (ECF No. 70, at 3), which the parties have provided (ECF No. 72, at 9-14; ECF No. 73, at 10-13).

The parties’ original briefing on the Motion to Dismiss focused only on legislative standing and citizen standing. Given the allegation in the Operative Complaint regarding the standing of educators (ECF No. 36, ¶ 45), the Court asked Plaintiffs to clarify whether they were alleging standing based on injury to educators, and asked the parties to brief whether standing would exist on that basis (ECF No. 70, at 3). In the supplemental briefing, Plaintiffs clarified that they do seek standing on that basis, and both sides provided argument on that issue. (ECF No. 72, at 14-17; ECF No. 73, at 16-19.)

The parties also disagree as to whether TABOR caused the injuries alleged, and whether a ruling in Plaintiffs’ favor would redress those alleged injuries. (ECF No. 18, at 17-18; ECF No. 30, at 12-14; ECF No. 51, at 11-13.)

3. General Rules of Constitutional Standing

Article III of the United States Constitution limits the jurisdiction of federal courts to “[c]ases” and “[c]ontrover[sies].” U.S. Const, art. Ill, § 2. “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

“[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “The gist of the question of standing” is whether the plaintiffs have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Standing “is perhaps the most important of the[ ] doctrines” limiting the federal judicial power. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

“[T]he irreducible constitutional minimum of standing contains three elements”: (1) the plaintiff must have suffered a “concrete and particularized” injury that is “actual or imminent” (ie., an “injury in fact”), (2) there must be “a causal connection between the injury and the conduct complained of,” and (3) it must be “likely ... that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (quotation marks omitted); see also Allen, 468 U.S. at 751, 104 S.Ct. 3315 (“A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”)

“The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.

Id. (citations, quotation marks, and brackets omitted).

Also,

[w]hen the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.

Id. at 561-62,112 S.Ct. 2130.

4. Legislative Standing — “Injury in Fact”

The Court first addresses the issue of whether the Legislator-Plaintiffs have standing to bring this action.

a. Governing Case Law

(1) U.S. Supreme Court Cases

The United States Supreme Court has infrequently addressed the issue of legislative standing. One of the few cases in which it did so is Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). There, twenty Kansas State Senators, among others, brought suit after a vote in the Kansas State Senate deadlocked at 20-20 (which ordinarily would mean the measure would not pass), but the State’s Lieutenant Governor cast a deciding vote passing the measure. Id. at 435-36, 59 S.Ct. 972. The Court found standing based on the complete nullification of the effectiveness of those Senators’ votes, explaining, “[the plaintiffs’] 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. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.” Id. at 438, 59 S.Ct. 972. The Court in Coleman ultimately ruled against the plaintiffs on the merits, affirming the Kansas Supreme Court’s denial of mandamus. See id. at 437-56, 59 S.Ct. 972.

The Supreme Court more recently took up the issue of legislative standing in Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). In Raines, six members of the United States Congress challenged the constitutionality of the Line Item Veto Act (the “Act”), which had been passed by Congress and signed into law by the President in 1996. Id. at 814, 117 S.Ct. 2312. The six plaintiffs had voted against passage of the Act. Id. The Court held that the plaintiffs lacked constitutional standing to bring the action because, among other reasons discussed in more detail below, the alleged injury constituted only an abstract dilution of institutional legislative power. Id. at 818, 825-26, 830, 117 S.Ct. 2312.

The Supreme Court in Raines began its analysis by laying out fundamental rules of standing, id. at 818-20, 117 S.Ct. 2312, and emphasized that “our 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,” id. at 820, 117 S.Ct. 2312. Later in the decision, the Court again emphasized the importance of separation-of-powers concerns in the standing analysis, evaluating in depth instances during the nation’s history when Members of Congress or the Executive declined to entangle the Judiciary in confrontations between Congress and the Executive branch. Id. at 826-28, 117 S.Ct. 2312.

The Raines Court then proceeded to analyze Coleman and another prior Supreme Court case in which a legislator was found to have standing, Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). In Powell, the Supreme Court held that the exclusion of a member of Congress from the ‘House of Representatives (with a consequent loss of salary) presented a live “case or controversy.” 395 U.S. at 512-14 & n. 35, 89 S.Ct. 1944. Raines distinguished Powell on two grounds. First, the Court stated that, unlike in Powell, the plaintiffs in Raines “ha[d] not been singled out for specially unfavorable treatment.... [Instead tjheir claim is that the Act causes 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, 117 S.Ct. 2312. Second, the Court stated that, unlike in Powell, the Raines plaintiffs’ “claim of standing is based on a loss of political power, not loss of any private right, which would make the injury more concrete.” Id. The Court in Raines emphasized that the plaintiffs were suing in their official capacities rather than based on some private injury. Id.

. Raines then turned to Coleman, identifying Coleman as “[t]he one case in which we have upheld standing for legislators (albeit state legislators) claiming an institutional injury.” Id. (emphasis in original). After evaluating Coleman, the Court in Raines stated,

[O]ur holding in Coleman stands (at most) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.

521 U.S. at 823, 117 S.Ct. 2312 (citation omitted). The Court then proceeded to explain why Coleman provided “little meaningful precedent” for the situation presented in Raines:

[The Raines plaintiffs] have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless defeated. In the vote on the Act, their votes were given full effect. They simply lost that vote. Nor can they allege that the Act will nullify their votes in the future in the same way that the votes of the Coleman legislators had been nullified. In the future, a majority of Senators and Congressmen can pass or reject appropriations bills; the Act has no effect on this process. In addition, a majority of Senators and Congressmen can vote to repeal the Act, or to exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act; again, the Act has no effect on this process.

Id. at 824, 117 S.Ct. 2312. The Court ultimately stated, “There is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power that is alleged here. To uphold standing here would require a drastic extension of Coleman. We are unwilling to take that step.” Id. at 826, 117 S.Ct. 2312.

In conclusion, the Court in Raines stated:

In sum, appellees have alleged no injury to themselves as individuals (contra, Powell), the institutional injury they allege is wholly abstract and widely dispersed (contra, Coleman), and their attempt to litigate this dispute at this time and in this form is contrary to historical experience. We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit. We also note that our conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach), nor forecloses the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether the case would be different if any of these circumstances were different we need not now decide.

We therefore hold that these individual members of Congress do not have a sufficient “personal stake” in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing.

Id. at 829-30, 117 S.Ct. 2312 (some citations omitted).

(2) Tenth Circuit Case

In Schaffer v. Clinton, 240 F.3d 878 (10th Cir.2001), the Tenth Circuit discussed Raines and legislative standing. In Schaffer, Bob Schaffer, a member of the U.S. House of Representatives, brought suit challenging a statute authorizing cost of living adjustments (“COLAs”) for Members of Congress, claiming that the statute violated the Twenty-Seventh Amendment to the Constitution. Although the statute granted Congressman Schaffer a pay increase, he brought suit claiming that the unconstitutional salary increase was “personally offensive and professionally harmful to him, as well as damaging to his political position and his credibility among his constituency.” Id. at 883 (quotation marks and brackets omitted). Although that case presented an alleged injury quite different than the one alleged here, the Tenth Circuit’s discussion of Raines is notable:

Like the plaintiffs in Raines, Congressman Schaffer has not alleged a sufficiently personal injury to establish standing because he has not been singled out for specially unfavorable treatment as opposed to other Members of the House of Representatives. Instead the COLAs, which apply to every Representative, necessarily damage all Members of Congress equally. Congressman Schaffer’s allegations of harm to his political position and his credibility among his constituency are even more abstract than the assertion of a dilution of institutional legislative power the Court found wanting in Raines. Finally, as in Raines, there has been no nullification of Congressman Schaffer’s ability to vote on the COLAs; if he received a COLA ..., that is simply because he lost that vote. The [COLA] has no effect on either Congressman Schaffer’s ability to press for a change in the law setting Representatives’ salaries or for Congress to amend the COLA provisions pursuant to the normal legislative process.

Id. at 885-86 (citations, quotation marks, brackets, and ellipses omitted).

b. Analysis of Whetber the Legislator-Plaintiffs Have Alleged a Cognizable Injury in Fact

Raines identifies numerous issues to consider in determining whether legislators in a particular case have standing: whether the alleged injury is concrete or abstract; whether the legislators allege an institutional injury in their official capacities that is common to all members of the legislative body; whether the legislators have been authorized to bring suit on behalf of the legislative body; whether separation-of-powers concerns are present; whether the legislators have an adequate internal remedy within the legislative body; and whether declining standing to the legislators would foreclose any constitutional challenge to the disputed measure. See 521 U.S. at 829, 117 S.Ct. 2312. Raines also specifically stated, “Whether the case would be different if any of these circumstances were different [than those present in Raines ] we need not now decide.” Id. at 829-30, 117 S.Ct. 2312. The Court will analyze these important standing considerations in turn.

(1) Concreteness of Injury

Standing jurisprudence makes clear that the concreteness (versus abstractness) of an injury is one of the more important, if not the critical issue, governing the standing question. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130; Schlesinger, 418 U.S. at 222, 94 S.Ct. 2925 (“To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing ‘government by injunction.’ ”); Fed. Election Comm’n v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (“[W]here a harm is concrete, though widely shared, the Court has found ‘injury in fact.’ ”); Okpalobi v. Foster, 190 F.3d 337, 352 (5th Cir.1999) (stating that “the fundamental goal of the standing inquiry” is to “ensur[e] that litigants have a concrete stake in the outcome of the proceedings such that the issue will be framed properly”).

In Raines, the Court did not engage in any extended discussion of why the injuríes alleged by the plaintiffs there were too abstract to confer standing. The Court’s entire discussion regarding the nature of the injuries alleged was made during the process of distinguishing Coleman:

[Ajppellees rely heavily on our statement in Coleman that the Kansas senators had “a plain, direct and adequate interest in maintaining the effectiveness of their votes.” Appellees claim that this statement applies to them because their votes on future appropriations bills (assuming a majority of Congress does not decide to exempt those bills from the Act) will be less “effective” than before, and that the “meaning” and “integrity” of their vote has changed.... Even taking appellees at their word about the change in the “meaning” and “effectiveness” of their vote for appropriations bills which are subject to the Act, we think their argument pulls Coleman too far from its moorings. Appellees’ use of the word “effectiveness” to link their argument to Coleman stretches the word far beyond the sense in which the Coleman opinion used it. There is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power that is alleged here.

Raines, 521 U.S. at 824-26, 117 S.Ct. 2312, 117 S.Ct. 2312. Raines based its holding, in part, on the ultimate conclusion that “institutional injury [that plaintiffs] allege is wholly abstract and widely dispersed (contra, Coleman)....” Id. at 829, 117 S.Ct. 2312.

In the Court’s view, it is significant that Raines did not overrule Coleman, but instead reaffirmed that the “level of vote nullification” at issue in Coleman was sufficient to confer standing. Coleman involved a vote on one measure in which legislators’ votes were “nullified.” This action, on the other hand, challenges a state constitutional provision in effect for nearly twenty years, under which members of the Colorado General Assembly have not had the power to increase tax rates or approve new taxes without voter approval. In the Operative Complaint, Plaintiffs allege:

• “An effective legislative branch must have the power to raise and appropriate funds. When the power to tax is denied, the legislature cannot function effectively to fulfill its obligations in a representative democracy and a Republican Form of Government.” (Id. ¶ 7.)

• “[Tjaxation and appropriation” are “legislative core functions.” (Id. ¶ 43.)

• “[TABOR] removes entirely from the Colorado General Assembly any authority to change state law concerning taxation to replace or increase existing revenue, and prohibits the General Assembly from raising funds by any other means, including borrowing. Moreover, the interaction of the provisions of TABOR may actually force existing taxes to be decreased without any action of the General Assembly.” (Id. ¶ 80.)

• “A fully effective legislature is an essential component of a Republican Form of Government, as guaranteed to each state by [the Guarantee Clause]. By removing the taxing power of the General Assembly, the TABOR amendment renders the Colorado General Assembly unable to fulfill its legislative obligations under [the Guarantee Clause].” (Id. ¶ 83.)

• “The TABOR amendment has made the General Assembly ineffective by removing an essential function, namely the power to tax. In so doing, the TABOR amendment violates the Enabling Act.” (Id. ¶ 84.)

At this early stage of the proceedings, the Court must accept as true that the Legislator-Plaintiffs have suffered a concrete injury. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (“At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.”); see also Am. Tradition Inst. v. State of Colorado, 876 F.Supp.2d 1222,1233, 2012 WL 2899064, at *6-*7 (D.Colo. July 17, 2012) (emphasizing importance of the stage of proceedings in denying motion to dismiss complaint based on claim that the plaintiffs lacked standing).

As alleged, this injury is of a greater magnitude than the single instance of vote nullification in Coleman, and is far more concrete than the alleged injury in Raines. The injury alleged here is a concrete injury involving the removal of a “core” legislative power of the General Assembly. The allegations of the Operative Complaint are of such a magnitude that the term “dilution of institutional power” appears insufficient to describe the alleged injury TABOR has effected on Plaintiffs’ core representative powers. More importantly, the allegations of the Operative Complaint detail anything but an abstract dilution of power. As a consequence, the concreteness of the injury alleged here weighs in favor of finding standing.

With respect to the nature of the injury alleged by the Legislator-Plaintiffs and its effect on standing, Lujan is telling. There, the Supreme Court specifically emphasized:

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.

Lujan, 504 U.S. at 561-62, 112 S.Ct. 2130. Other courts have applied this holding from Lujan in finding standing for legislators or legislative bodies. See Miller v. Moore, 169 F.3d 1119, 1122-23 (8th Cir.1999) (finding standing where Nebraska voters passed ballot initiative intended to punish legislators who did not support and actively pursue the passage of congressional term limits); U.S. House of Representatives v. U.S. Dep’t of Commerce, 11 F.Supp.2d 76, 89 (D.D.C.1998) (holding that House of Representatives had standing to challenge the Census Bureau’s plan to use statistical sampling in the Census “because the House’s composition will be affected by the manner in which the Bureau conducts the Census,” and citing this holding from Lujan).

Here, the allegations of the Operative Complaint indicate that TABOR was specifically designed to take away from the General Assembly “the power to tax and [to] arrogat[e] that power to [the voters] themselves.” (ECF No. 36, ¶ 1.) The Legislator-Plaintiffs, along with other members of the Colorado General Assembly, were the targeted objects of TABOR’s design. See Bickel v. City of Boulder, 885 P.2d 215, 226 (Colo.1994) (“[TABOR’s] requirement of electoral approval is not a grant of new powers or rights to the people, but is more properly viewed as a limitation on the power of the people’s elected representatives.”) (emphasis in original). That makes this case different than Raines, where the challenged action was the passage of a statute where the plaintiffs, although on the losing side of the vote, were not the targets of the action being challenged.

Thus, the concreteness and nature of the injury alleged here is distinguishable from the abstract injury alleged in Raines. Moreover, the Court finds that the injury alleged here is of greater magnitude than the single instance of vote nullification in Coleman. Both of these considerations weigh in favor of finding that the Legislator-Plaintiffs have standing in this action.

(2) Institutional Injury, Suing in an Official Capacity, and Authorization to Represent the Legislative Body

Raines repeatedly emphasized the importance of the fact that the plaintiffs there alleged an institutional injury in their official capacities, and not any personal injury differentiable from the injury suffered by all Members of Congress. See, e.g., 521 U.S. at 821, 117 S.Ct. 2312 (in distinguishing Powell, the Court stated, “[A]ppellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies. Their claim is that the Act causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally.”). The Raines Court also attached “some importance” to the fact that the plaintiffs there had not been authorized to represent the legislative bodies in which they served. Id. at 829, 117 S.Ct. 2312. These concepts are obviously inter-related because an institutional legislative injury might be more appropriately raised by the legislative institution itself, or by legislators authorized to represent the legislative institution.

As in Raines, the Legislator-Plaintiffs here clearly base their claim of standing on an institutional injury: TABOR’s removal of the Colorado General Assembly’s power to increase tax rates or impose new taxes without voter approval. The Legislator-Plaintiffs also clearly bring their claims in their official capacities as state legislators. (ECF No. 36, ¶¶ 9-10 (“The offices held by [the Legislator-Plaintiffs] are relevant to their standing in the case.... [They bring this action] in [their] capacity as [] State Representative^].”) The Legislator-Plaintiffs also concede that they have not been authorized to bring this action on behalf of the General Assembly. (Id. ¶ 9 (“[Plaintiffs do] not imply that the governmental bodies have themselves taken any official position regarding this litigation nor that these plaintiffs speak for those governmental bodies regarding this litigation.”).

The law remains unclear regarding the situations in which an institutional legislative injury (where the plaintiffs legislators are not authorized to represent the legislafive body) confers standing on legislators, and when it does not. Notably, in Coleman, the plaintiffs alleged an injury suffered in their official capacities, of an institutional nature, and they had not been authorized to bring suit on behalf of the Kansas Senate. The Supreme Court in Raines could have overruled Coleman and laid down a per se rule that legislators alleging an institutional injury, where the legislators have not been authorized to bring suit on behalf of the legislative body, never have standing to pursue such claims. Instead, Raines’s treatment of Coleman was significantly more limited. After analyzing ways in which Coleman was distinguishable (including the presence or lack of an adequate internal legislative remedy), the Court in Raines expressed concern about pulling Coleman “too far from its moorings,” and emphasized how significantly different the concreteness and magnitude of the injuries were. Raines, 521 U.S. at 825-26, 117 S.Ct. 2312 (“There is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power that is alleged here.”). Also, although the Raines Court held that Coleman stands “at most” for the proposition that legislators have standing where their votes have been completely nullified (because their votes would have been successful but for the challenged action), that does not mean legislative standing can only be found to exist if the circumstances in Coleman are present. By analyzing Coleman in these ways, the Court in Raines provided less guidance to future lower courts, including this Court, regarding when an institutional legislative injury does or does not confer standing.

Given Raines’s discussion of Powell, however, and much of the case law interpreting Raines the institutional injury alleged by the Legislator-Plaintiffs here, and the fact that they have not been authorized to bring suit on behalf of the Colorado General Assembly, draws some skepticism from this Court regarding whether the injury alleged can provide a legitimate basis for standing. But because Raines did not provide clearer guidance, and because of the concreteness of the injury alleged here, the Court finds it appropriate to also evaluate the other factors identified in Raines to determine whether they weigh in favor or against finding legislative standing in the circumstances presented here. See Raines, 521 U.S. at 829-30, 117 S.Ct. 2312 (“Whether the case would be different if any of these circumstances were different we need not now decide.”).

(3) Separation-of-Powers and Federalism Concerns

In Raines, the Court’s emphasis on separation-of-powers concerns was significant. Overlaying the entirety of the decision was the Court’s initial statement that

our 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. The law of Article III standing is built on a single basic idea — the idea of separation of powers. In the light of this overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of this important dispute and to “settle” it for the sake of convenience and efficiency.

Id. at 819-20, 117 S.Ct. 2312 (citations and quotation marks omitted). Also, later in the decision, the Court engaged in a detailed analysis of different times in the nation’s history when Members of Congress or the Executive declined to entangle the Judiciary in confrontations between Congress and the Executive Branch. Id. at 826-28, 117 S.Ct. 2312. This historical discussion underscores the importance of separation of powers in the Raines Court’s analysis. Further, it is notable that the Raines Court’s initial statement regarding Coleman emphasized that Coleman was brought by state legislators, not federal legislators, further reiterating the importance of federal separation-of-powers concerns in the Court’s analysis. Id. at 821, 117 S.Ct. 2312 (“The one case in which we have upheld standing for legislators (albeit state legislators) claiming an institutional injury is Coleman ....) (emphasis in original).

Indeed, the vast majority of case law addressing legislative standing involve cases in which the federal Judiciary is asked to resolve a dispute between the federal Executive and Legislative Branches. Here, however, this Court is not being asked “to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Id. at 819-20, 117 S.Ct. 2312. Instead, like in Coleman, this Court is being asked to resolve a dispute involving a state legislature.

It is significant, too, that this Court is also not being asked to resolve a dispute between separate branches of Colorado government. Articles IV, V, and VI of the Colorado Constitution create three “distinct departments” of the Colorado government, the Executive Department, the Legislative Department, and the Judicial Department, respectively. See Colo. Const, arts. Ill, IV, V, VI. This action involves a solely mim-branch dispute involving only the Colorado Legislative Department: Article V of the Colorado Constitution — the Article creating the Legislative Department — not only creates the Colorado General Assembly, it also reserves to the Colorado electorate the initiative and referendum power as a legislative power. See Colo. Const, art. V, § 1, els. (l)-(3). This dispute, therefore, is between two components of the same Legislative Department.

The fact that this action does not present any separation-of-powers concerns, either between separate branches of the federal government or separate branches of the Colorado government, does not end this Court’s inquiry into whether an equivalent concern warrants declining to hear this case: federalism. See 13B Wright & Miller, Federal Practice & Procedure § 3531.11.3 (3d ed. 2012) (“State legislator standing raises issues similar to the issues of congressional plaintiff standing, although the separation-of-powers concerns are much diminished and largely replaced by concerns of federalism.”).

[Federalism involves] the notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.... The concept does not mean blind deference to ‘States’ Rights’ any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments....

Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Where, however, it is state action which allegedly violates the U.S. Constitution, federalism concerns are reduced. See Valdivia v. Schwarzenegger, 599 F.3d 984, 991 n. 6 (9th Cir.2010) (“[Principles of federalism do not permit a state to violate what this court has already deemed to be a constitutionally-protected right.”); Mackin v. City of Boston, 969 F.2d 1273, 1275-76 (1st Cir.1992) (“[F]ederal courts, in mulling whether to relax or abandon their supervision over the operation of local governmental units, should take federalism concerns into account, ever mindful that the legal justification for displacement of local authority is a violation of the Constitution by the local authorities.”) (quotation marks and ellipses omitted).

In this regard, the Court finds it significant that TABOR was passed nearly twenty years ago. In Lucas v. Forty-Fourth General Assembly of the State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), the Supreme Court emphasized that a federal court might properly wait a short period to allow a state’s electorate to remedy an unconstitutional measure passed by ballot initiative, but that otherwise the federal court must act to remedy the constitutional violation:

Courts sit to adjudicate controversies involving alleged denials of constitutional rights. While a court sitting as a court of equity might be justified in temporarily refraining from the issuance of injunctive relief in an apportionment case in order to allow for resort to an available political remedy, such as initiative and referendum, individual constitutional rights cannot be deprived, or denied judicial effectuation, because of the existence of a nonjudicial remedy.... [Constitutional rights can hardly be infringed simply because a majority of the people choose that it be.... [T]he fact that a practicably available political remedy, such as initiative and referendum, exists under state law provides justification only for a court of equity to stay its hand temporarily while recourse to such a remedial device is attempted....

Id. at 736-37, 84 S.Ct. 1459 (1964).

At this stage of the proceedings, this Court must assume the validity of Plaintiffs’ allegations that TABOR is unconstitutional, and their allegations regarding the importance of the constitutional rights at issue. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Given these accepted allegations, the fact that TABOR has been in effect for nearly twenty years counsels against the Court “staying its hand,” and in favor of allowing the case to proceed without further delay.

With there being no separation-of-powers concerns in this case (unlike in Raines), and with federalism concerns diminished by the length of time TABOR has caused the alleged harms at issue (with those allegations being accepted as true at this stage of the proceedings), the Court finds that these considerations weigh in favor of finding legislative standing here.

(4) Whether Legislators Have an Adequate Internal Remedy

TABOR was passed by the Colorado electorate by ballot initiative, without any involvement of the Colorado General Assembly. (ECF No. 36, ¶ 1.) Also, significantly, TABOR is an amendment to the Colorado Constitution that can only be revoked or amended by a majority of Colorado voters. See Colo. Const, art. XIX, §§ 1, 2. The only power members of the Colorado General Assembly have to undo TABOR is to propose to Colorado voters that they pass, a constitutional amendment or authorize a constitutional convention. See id. In order for the legislature to submit a proposed constitutional amendment to the Colorado electorate, an affirmative vote by two-thirds of each House of the General Assembly is required. See id. This leaves the Legislator-Plaintiffs in this case with little available remedy in the political process to undo TABOR, and no means by which to effect any change to the current TABOR regime by way of any of the legislature’s remaining powers or prerogatives.

That distinction makes this case remarkably different from Raines. Indeed, in Raines the presence of an internal legislative remedy was one of the primary bases upon which the Court distinguished Coleman. See 521 U.S. at 824, 117 S.Ct. 2312. The removal of the Colorado General Assembly’s power to independently pass any tax legislation, without any recourse available to that Assembly, places this case in stark contradistinction to the facts in Raines, in which various internal remedies were available to the plaintiffs.

Courts since the Raines decision have continued to emphasize the importance of the existence of a legislative remedy in legislative standing analysis. For example, in Kucinich v. Obama, 821 F.Supp.2d 110 (D.D.C.2011), the court denied standing to legislators who sought to challenge the President’s authorization of military action in Libya without congressional approval. Analyzing Raines and Coleman, the court concluded that for legislative standing to exist,

plaintiff legislators must be without legislative recourse before they may turn to the courts to seek their desired remedy.... [The plaintiffs] have not demonstrated that they are without a legislative remedy.... By contending that their votes were nullified, despite seemingly acknowledging that they retain legislative remedies, the plaintiffs’ arguments overlook the important role political remedies have in the standing analysis. In the end, the availability of effective political remedies goes to the very heart of the standing analysis....

Kucinich, 821 F.Supp.2d at 119-20. Also, in Russell v. DeJongh, 491 F.3d 130 (3d Cir.2007), a Senator of the Virgin Islands challenged the Governor’s appointment of Supreme Court justices on the ground that the Governor was untimely in submitting the nominations to the legislature for approval. The court distinguished cases in which there were no internal legislative remedies, stating, “the Legislature was free to confirm, reject, or defer voting on .the Governor’s nominees. The consequen