No. 12-1414 UNITED STATES COURT OF APPEALS FOR THE

No. 12-1414

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

CITIZEN CENTER,

Plaintiff - Appellant, v.

SCOTT GESSLER, in his official capacity as Colorado Secretary of State, SCOTT DOYLE, in his official capacity as Larimer Cnty. Clerk & Recorder,

PAM ANDERSON, in her official capacity as Jefferson Cnty. Clerk & Recorder, HILLARY HALL, in her official capacity as Boulder Cnty. Clerk & Recorder,

JOYCE RENO, in her official capacity as Cnty. Clerk & Recorder, and TEAK SIMONTON, in her official capacity as Eagle Cnty. Clerk & Recorder,

Defendants - Appellees, and

SHEILA REINER, in her official capacity as Mesa Cnty. Clerk & Recorder, Defendant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO D. No. 1:12-cv-00370-CMA-MJW

Hon. Christine M. Arguello

OPENING BRIEF

Oral Argument Is Requested.

Robert A. McGuire, III Jeffrey D. Baines

MCGUIRE BAINES LLC 1624 Market Street, Suite 202

Denver, Colorado 80202 (303) 734-7175

[email protected]

Counsel for Plaintiff-Appellant

Appellate Case: 12-1414 Document: 01019110450 Date Filed: 08/15/2013 Page: 1

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. Rule 26.1(b), Plaintiff-Appellant Citizen Center discloses that it is a nongovernmental corporate party, that it has no parent corporation and that no corporation owns 10% or more of its stock. Dated: August 15, 2013

By: S/ Robert A. McGuire, III Robert A. McGuire, III

Attorney for Plaintiff-Appellant Citizen Center

MCGUIRE BAINES LLC 1624 Market Street, Suite 202 Denver, Colorado 80202 Telephone: (303) 734-7175 Email: [email protected],


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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ....................................................... i

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

LISTING OF ATTACHMENTS............................................................................iv

TABLE OF AUTHORITIES .................................................................................vi

STATEMENT OF RELATED CASES ..................................................................xi

I. JURISDICTIONAL STATEMENT .............................................................. 1

A. District Court’s Subject-Matter Jurisdiction ........................................ 1

B. Appellate Jurisdiction ......................................................................... 1

C. Timeliness of Appeal .......................................................................... 1

II. STATEMENT OF THE ISSUES .................................................................. 2

III. STATEMENT OF THE CASE ..................................................................... 3

A. Nature of the Case .............................................................................. 3

B. Course of Proceedings ........................................................................ 3

C. Disposition Below .............................................................................. 5

IV. STATEMENT OF THE FACTS ................................................................... 6

V. SUMMARY OF ARGUMENT .................................................................. 11

VI. ARGUMENT ............................................................................................. 12

A. The district court erred by dismissing the case below for lack of standing because the First Amended Complaint, First Supplemental Complaint, and other “materials of record,” allege facts – including injury-in-fact – that are more than sufficient to plausibly establish Citizen Center’s associational standing at the motion-to-dismiss stage. ................................................................... 12


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1. Citizen Center’s allegations plausibly establish all of the required elements of associational standing. ...........................14

a. Citizen Center’s individual members would have standing to sue in their own right. .................................15

i. Citizen Center’s allegations demonstrate injury-in-fact to its individual members. .............16

ii. Citizen Center’s allegations demonstrate that members’ injuries are fairly traceable to the defendants’ conduct. ...........................................19

iii. Citizen Center’s allegations demonstrate that members’ injuries will be redressed by a favorable decision. ..............................................20

b. The interests Citizen Center seeks to protect are germane to the organization’s purpose. .........................20

c. Neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. ....................................................................21

2. The district court erred as a matter of law by requiring a subject-matter nexus between the alleged injury-in-fact and the federal rights claimed. ................................................21

3. The district court erred by failing to consider “all materials of record” in dismissing the case for want of standing. ...........22

B. The district court’s erroneous order of dismissal on standing should not be affirmed on the alternate grounds of Rule 12(b)(6) because Citizen Center’s First Amended Complaint and First Supplemental Complaint properly state claims for declaratory and injunctive relief under the First and Fourteenth Amendments. .................................................................................... 23

1. The First Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ fundamental right to vote.............................................................................26


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2. The Second Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ First Amendment freedoms of speech and association. ...................30

3. The Third Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ fundamental right to vote using a secret ballot in public elections. ..............33

4. The Fourth Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ right to procedural due process. ...........................................................37

5. The Fifth Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ right to equal protection. .....................................................................43

VII. CONCLUSION .......................................................................................... 48

STATEMENT REGARDING ORAL ARGUMENT ............................................ 48

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ..................................... 49

CERTIFICATE OF DIGITAL SUBMISSION ..................................................... 50

CERTIFICATE OF SERVICE .............................................................................. 51

LISTING OF ATTACHMENTS

Native PDF Documents:

Tab No.

Citizen Center v. Gessler, 1:12-cv-00370-CMA-MJW, D. ECF No. 125, Transcr. Sept. 21, 2012, Hr’g (Order)

1

Citizen Center v. Gessler, 1:12-cv-00370-CMA-MJW, D. ECF No. 117, Minute Entry Proceedings, Sept. 21, 2012

2

Citizen Center v. Gessler, 1:12-cv-00370-CMA-MJW, D. ECF No. 118, Final J.

3


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Native PDF Documents:

Tab No.

Citizen Center v. Gessler, 1:12-cv-00370-CMA-MJW, D. ECF No. 142, Order Grant’g Pl.’s Mot. Clarify

4

Non-native PDF Documents:

Citizen Center v. Gessler, 1:12-cv-00370-CMA-MJW, D. ECF No. 129, Order Taxing Costs $13.76

5

Citizen Center v. Gessler, 1:12-cv-00370-CMA-MJW, D. ECF No. 136, Order Taxing Costs $654

6

Citizen Center v. Gessler, 1:12-cv-00370-CMA-MJW, D. ECF No. 137, Order Taxing Costs $907.80

7

Citizen Center v. Gessler, 1:12-cv-00370-CMA-MJW, D. ECF No. 138, Order Taxing Costs $4,526.34

8


vi

TABLE OF AUTHORITIES

Cases

American Civ. Liberties Union of N.M. v. Santillanes, 546 F.3d 1313 (10th Cir. 2008) ..................................................................................... 17, 18, 47

Anderson v. Celebrezze, 460 U.S. 780 (1983) ................................................. 26, 27

Anderson v. Mills, 664 F.2d 600 (6th Cir. 1981) ............................................. 32, 35

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................25

Bd. of Regents v. Roth, 408 U.S. 564 (1972) .........................................................38

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ..................................................32

Burdick v. Takushi, 504 U.S. 428 (1992) .................................................. 26, 27, 31

Burson v. Freeman, 504 U.S. 191 (1992) ..............................................................35

Bush v. Gore, 531 U.S. 98 (2000) .........................................................................45

Carrington v. Rash, 380 U.S. 89 (1964) ................................................................46

Commonwealth. Prop. Advocates, LLC v. Mortgage Elec. Registration Sys., Inc., 680 F.3d 1194 (10th Cir. 2011) ................................................... 13, 25

Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 (10th Cir. 2008) .................................................................................................38

D’Aurizio v. Borough of Palisades Park, 899 F. Supp. 1352 (D.N.J. 1995) .................................................................................................................32

Doe v. Reed, 130 S. Ct. 2811 (2010) ......................................................... 31, 32, 35

Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59 (1978) ................................................................................................................22

Dunn v. Blumstein, 405 U.S. 330 (1972) ...............................................................46


vii

Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167 (2000) .................................................................................................20

Gitlow v. People of State of New York, 268 U.S. 652 (1925) .................................26

Graham v. Connor, 490 U.S. 386 (1989) ..............................................................33

Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993) .................................. 16, 29, 45

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) .....................................45

Holt v. United States, 46 F.3d 1000 (10th Cir. 1995) ............................................13

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977) .... 14, 20, 21

Int’l Union, United Auto., Aerospace & Agr. Implement Workers v. Brock, 477 U.S. 274 (1986) ......................................................................... 15, 21

Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111 (10th Cir. 1991) ........................................................................................47

Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006) ..................................................16

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................... 14, 15

Mahaffey v. Barnhill, 855 P.2d 847 (Colo. 1993) ...................................... 40, 41, 42

Marks v. Koch, 284 P.3d 118 (Colo. Ct. App. 2011) .............................................41

Mathews v. Eldridge, 424 U.S. 319 (1976) ..................................................... 38, 42

Montero v. Meyer, 13 F.3d 1444 (10th Cir. 1994) .................................................38

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ..................................31

Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005) .................................19

Pennell v. City of San Jose, 485 U.S. 1 (1988) ......................................................21

People ex rel. Barton v. Londoner, 22 P. 764 (Colo. 1889) ............................. 39, 41

Roth v. Wilder, 420 F. App’x 804 (10th Cir. 2011) ...............................................25


viii

Russell v. United States, 551 F.3d 1174 (10th Cir. 2008) ......................................24

Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) ..........................................................................................................18

Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008) ............................ 34, 35

Smith v. Dunn, 381 F. Supp. 822 (M.D. Tenn. 1974) ............................................46

Smith v. United States, 561 F.3d 1090 (10th Cir. 2009) .................................. 13, 25

Socialist Workers Party v. Hechler, 890 F.2d 1303 (4th Cir. 1989) .......... 29, 45, 46

Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006) ......................................... 16, 45

Storer v. Brown, 415 U.S. 724 (1974) ....................................................... 27, 28, 31

Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004) ............................... 14, 16

Taylor v. Pile, 391 P.2d 670 (Colo. 1964) .............................................................41

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) .............................32

Toone v. Wells Fargo Bank, N.A., 716 F.3d 516 (10th Cir. 2013) .........................24

U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d 931 (10th Cir. 2008) ..........................24

United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996) ................................................................ 14, 21

United States v. Colorado Supreme Court, 87 F.3d 1161 (10th Cir. 1996) .................................................................................................................13

Vacco v. Quill, 521 U.S. 793, 799 (1997) ..............................................................45

Warth v. Seldin, 422 U.S. 490 (1975) .................................................. 13, 14, 21, 22

Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) .................................................................................................28

Washington v. Glucksberg, 521 U.S. 702 (1997)...................................................34


ix

Williams v. Stein, 38 Ind. 89 (1871) ......................................................................38

Statutes

1891 Colo. Sess. Laws 143 ...................................................................................39

1905 Colo. Sess. Laws 168 ...................................................................................39

1947 Colo. Sess. Laws 427 ...................................................................................39

28 U.S.C. § 1291.................................................................................................... 1

28 U.S.C. § 1331.................................................................................................... 1

28 U.S.C. § 1343(a)(3) ........................................................................................... 1

28 U.S.C. § 1343(a)(4) ........................................................................................... 1

42 U.S.C. § 1983.................................................................................................... 1

Colorado Open Records Act, C.R.S. §§ 24-72-200.1 to -206 (2012) .....................41

Rules

10th Cir. R. 28.2(C)(2) .................................................................................... 12, 23

56 F.R.D. 183, 249 (Advisory Committee’s Note to Rule 507) .............................36

8 Colo. Code Regs. § 1501-1 (Election Rule 10.8 Aug. 20, 2012) ........................23

Fed. R. App. P. 28(a)(9)(B)............................................................................. 13, 24

Fed. R. App. P. 3(a)(1) ........................................................................................... 1

Fed. R. App. P. 4(a)(1)(A) ..................................................................................... 2

Fed. R. Civ. P. 12(b)(1) ............................................................................... 5, 11, 13

Fed. R. Civ. P. 12(b)(6) .................................................................................. passim

Fed. R. Civ. P. 8(d)(3)...........................................................................................33


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Constitutional Provisions

Colo. Const. art. VII, § 8 ................................................................................ passim

Colo. Const. art. VII, § 8 (1876) ..................................................................... 38, 39

U.S. Const. amend. I ...................................................................................... passim

U.S. Const. amend. XIV ................................................................................ passim

U.S. Const. art. III ............................................................................... 13, 14, 17, 19

Other Authorities

Charles B. Nutting, Freedom of Silence; Constitutional Protection Against Governmental Intrusions in Political Affairs, 47 Mich. L. Rev. 181, 197 (1948) .........................................................................................36

Reject the Amendments!, Rocky Mountain News (Denver), Nov. 2, 1946, at 10 .........................................................................................................40


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STATEMENT OF RELATED CASES

Pursuant to 10th Cir. R. 28.2(C)(1), the undersigned states that there are no

prior or related appeals in this Court.

Dated: August 15, 2013

By: S/ Robert A. McGuire, III Robert A. McGuire, III

Attorneys for Plaintiff-Appellant Citizen Center MCGUIRE BAINES LLC 1624 Market Street, Suite 202 Denver, Colorado 80202 Telephone: (303) 734-7175 Email: [email protected]


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Plaintiff-Appellant Citizen Center, by undersigned counsel, for its Opening

Brief states:

I. JURISDICTIONAL STATEMENT

A. District Court’s Subject-Matter Jurisdiction

This matter is a civil rights action for declaratory and injunctive relief

brought under 42 U.S.C. § 1983 against Colorado elections officials over their

authorization and use of voting systems and procedures that permit voted ballots to

be traced to individual voters in derogation of voters’ federal and state

constitutional rights exercised through the “secret ballot.” Accordingly, the district

court had original subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331,

1343(a)(3)-(4) and 1357; and 42 U.S.C. § 1983.

B. Appellate Jurisdiction

The appealed judgment is final because it was entered in a separate written

document that disposed of all parties’ claims pending before the district court in a

manner adverse to the interests of the Plaintiff-Appellant. (Final J., Aplt. App. at

417, Attach. 3; Order Grant’g Pl.’s Mot. Clarify, Aplt. App. at 426, Attach. 4.)

Accordingly, this Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291 and

Fed. R. App. P. 3(a)(1).

C. Timeliness of Appeal

The final judgment of the district court was entered on September 25, 2012.


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(Final J., Aplt. App. at 417, Attach. 3.) Plaintiff-Appellant Citizen Center timely

filed its notice of appeal with the district clerk less than thirty days later, on

October 18, 2012. (Notice Appeal, Aplt. App. at 420.) See Fed. R. App. P.

4(a)(1)(A).

II. STATEMENT OF THE ISSUES

A. Whether, at the motion-to-dismiss stage, Citizen Center sufficiently

stated an injury-in-fact by alleging that Colorado government officials create,

compile and maintain information that permits them, their workers, election

insiders and even members of the public to associate voted ballots with individual

voters, and thus to ascertain how particular individuals voted, and by alleging that

Citizen Center’s members were threatened by this conduct with imminent

deprivation of their entitlement to cast ballots secure in the knowledge that their

personal electoral selections would thereafter remain absolutely secret.

B. Whether, having stated an injury-in-fact, Citizen Center’s allegations

were also sufficient to state claims for declaratory and injunctive relief from

imminent violations of members’ rights under the First and Fourteenth

Amendments, specifically their rights to freedom of speech and association, their

fundamental right to vote, their asserted fundamental right to vote by secret ballot,

their right to procedural due process and their right to equal protection.


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III. STATEMENT OF THE CASE

A. Nature of the Case

This matter is a civil rights action for declaratory and injunctive relief. The

Plaintiff-Appellant, Citizen Center, is a Colorado non-profit corporation and a

membership organization. The present Defendants-Appellees are five Colorado

county clerk and recorders (the “Clerks”) and the Colorado Secretary of State (the

“Secretary”).1

B. Course of Proceedings

Citizen Center brought this action on February 13, 2012, and subsequently

filed an amended complaint, (1st Am. Compl., Aplt. App. at 20.) The Clerks and

Secretary moved separately to dismiss the First Amended Complaint for lack of

subject-matter jurisdiction. (Clerks’ Mot. Dismiss, Aplt. App. at 58; Sec’y’s Mot.

Dismiss, Aplt. App. at 89.) In addition, the Clerks in their motion sought dismissal

for failure to state a claim. (Clerks’ Mot. Dismiss, Aplt. App. at 58.) Citizen

Center responded and requested leave to amend its pleadings if by doing so it

could cure any deficiencies. (Citizen Ctr. Resp. Clerks’ Mot. Dismiss, Aplt. App.

at 150.)

On July 27, 2012, during the pendency of the motions to dismiss, Citizen

1 Citizen Center reached a settlement with Defendant-Appellee Mesa County Clerk & Recorder Sheila Reiner and dismissed her from this appeal prior to the opening of briefing.


4

Center filed a supplemental complaint, which added additional allegations that had

only arisen or impacted new members since the commencement of the action.

(Mot. Leave File 1st Suppl. Compl. ¶¶ 11-13, D. ECF No. 69; 1st Suppl. Compl.,

Aplt. App. at 209.)

On August 17, 2012, with the motions to dismiss still pending, Citizen

Center moved for a temporary restraining order and preliminary injunction against

the Secretary and against three Clerks (Reno, Simonton and Hall), seeking to

immediately enjoin these defendants’ authorization and use of unique, identifying

permanent serial numbers and bar codes on ballots in advance of the 2012 general

election. (Citizen Ctr. Mot. TRO & Prelim. Inj., Aplt. App. at 219.) The parties’

briefings in connection with this motion placed substantial additional material into

the record before the district court that pertained to the injuries alleged in the First

Amended Complaint and First Supplemental Complaint. (Aplt. App. at 219-329,

330-62, 363-80, 382-415.)

Within seventy-two hours of Citizen Center’s motion being filed, and

expressly in response to Citizen Center’s allegations, (Sec’y’s Resp. Mot. TRO,

Aplt. App. at 364), the Secretary adopted emergency Election Rule 10.8, which

purported to immediately prohibit the use of unique serial numbers and bar codes

on ballots in certain elections. (Ex. A & B, Sec’y’s Resp. Mot. TRO, Aplt. App. at

371-80.)


5

The district court ordered Citizen Center to file a reply brief addressing

whether the Secretary’s emergency rule had rendered Citizen Center’s motion for a

temporary restraining order moot. (Minute Order, Aplt. App. at 381.) Citizen

Center duly replied, (Reply Supp. Mot. TRO & Prelim. Inj., Aplt. App. at 382),

whereupon the district court set a hearing on Citizen Center’s motion, (Minute

Order, ECF No. 112).

C. Disposition Below

The district court commenced the injunction hearing by taking argument on

the issue of jurisdiction, (Transcr. Sept. 21, 2012, Hr’g (Argument), Aplt. App. at

432), after which it ended the hearing by ruling from the bench that Citizen Center

had not alleged a judicially cognizable injury-in-fact and thus lacked standing.

(Transcr. Sept. 21, 2012, Hr’g (Order), Aplt. App. at 497.) The district court

dismissed the case by orally granting the Secretary’s pending Rule 12(b)(1)

motion, as well as that part of the Clerks’ pending motion to dismiss that was

based on Rule 12(b)(1), while at the same time denying as moot that part of the

Clerks’ motion that asserted Citizen Center’s failure to state claims under Rule

12(b)(6). (Id.)

A minute order memorialized the bench ruling on September 24, (Minute

Entry, Aplt. App. at 416), and final judgment entered on September 25, 2012,

(Final J., Aplt. App. at 417.)


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At Citizen Center’s request, the district court clarified that its oral order of

dismissal and the final judgment had dismissed Citizen Center’s entire case,

including the First Supplemental Complaint, which was not mentioned in either of

the motions to dismiss or in the oral ruling. (Order Grant’g Pl.’s Mot. Clarify,

Aplt. App. at 426-27, Attach. 4.)

Citizen Center timely appealed the district court’s final judgment. (Notice

Appeal, Aplt. App. at 420.)

IV. STATEMENT OF THE FACTS

Because this case was decided at the motion to dismiss stage, the facts

subject to review by this Court are each of the allegations of Citizen Center set out

in the First Amended Complaint, (Aplt. App. at 20-57), and in the First

Supplemental Complaint, (Aplt. App. at 209-18). Those allegations are hereby

incorporated in their entirety, but they may be summarized as follows:

Allegations in Citizen Center’s Complaints

Citizen Center is a Colorado nonprofit corporation as a membership

organized. In February 2012, Citizen Center filed this civil rights lawsuit against

Colorado Secretary of State Scott Gessler and six county clerks, seeking

declaratory and injunctive relief on behalf of its members based on allegations that

the Secretary of State had authorized – and the six defendant county clerk and

recorders had used and planned to continue using – voting systems and practices


7

that allowed election officials, workers and other insiders to preserve for

themselves the ability to gain access at will to the private electoral preferences of

their fellow citizens.

The methods that Citizen Center alleged were used to enable the tracing of

ballots to particular voters varied by county defendant, but they fell into two basic

categories. First, the Clerks of Mesa, Larimer and Jefferson counties had adopted

techniques for batching voted ballots that had the effect of establishing and

maintaining durable associations between the identity of voters and their particular

stored voted ballots. Moreover, Citizen Center alleged that these Clerks made use

of this batching information; in support of legislative efforts to limit the public’s

ability to inspect election records, Clerks Doyle and Reiner produced and

publicized separate PowerPoint presentations, (1st Am. Compl., Aplt. App. at 26 ¶

32, 28 ¶ 43; Marks Decl. and Ex. 1-2 (Doyle and Reiner PowerPoints), Aplt. App.

at 151-181), in which they explained how they could respectively use their internal

records to physically locate the actual identifiable ballots cast in the most recent

election by their local area’s individual state legislators. Clerk Anderson let it be

publicly known that she had used her office’s internal batching information to

locate her own individual ballot. (1st Am. Compl., Aplt. App. at 30 ¶ 52.)

Second, Citizen Center alleged that the Clerks of Boulder, Chaffee and

Eagle counties made use of unique bar codes and serial numbers on the ballots in


8

their counties, and further alleged that ballots permanently marked with these bar

codes and serial numbers were uniquely identifiable as the ballots of particular

voters. (Id. at 31-35 ¶¶ 56-81.)

Citizen Center alleged that the existence of such traceable ballots created a

real risk to voters of exposure of their identifiable votes to a host of officials,

workers and insiders, since,

[v]oted ballots in the custody and control of Colorado county clerk and recorders, including Defendant county clerk and recorders, are generally accessible to a large number of people, including: the county clerk and recorder (a partisan elected official), county elections staff, official observers from the Secretary of State’s office and the U.S. Department of Justice, county election system vendors, the county canvass board (whose members are often designees of county political parties), the county’s public resolution and duplication board, county election commissioners, volunteer election judges, student election judges, election watchers (appointed directly by partisan candidates and issue committees), media observers, election contestants and their experts, lawyers and witnesses, observers of public recounts, court officials, public prosecutors and any others who may from time to time lawfully view unredacted voted ballots. Many of these people are bound by no statutorily prescribed oath of secrecy or confidentiality when acting in the capacities that afford them access to view and potentially inspect and handle unredacted voted ballots.

(1st Am. Compl., Aplt. App. 37-38 ¶ 93.)

Citizen Center alleged that Secretary of State Gessler has a duty to supervise

Colorado elections and to enforce the laws prohibiting the kind of conduct engaged


9

in by the defendant Clerks and that he was failing on an ongoing basis to fulfill his

responsibilities.

Citizen Center also alleged that its members who were voters in each of

these six defendant counties wished to freely exercise their fundamental right to

vote in upcoming elections “without fear of retaliation or fear of ever being called

upon to explain to anyone for whom or for what reason their votes were cast,” (1st

Am. Comp. Aplt. App. at 41 ¶ 104), but could not do so as long as the Clerks and

Secretary continued to authorize and operate voting systems that deprive the public

of ballot secrecy.

Citizen Center alleged that at least one county in Colorado, namely Pitkin

County, where Citizen Center is headquartered, conducts its elections in a manner

that shows “that a lawful Colorado election may be conducted without any need for

the government to compile and maintain information that violates secrecy in voting

by permitting voted ballots to be traced to individual voters.” (1st Am. Compl.

Aplt. App. at 37 ¶ 92.)

Facts of Record Shown by Citizen Center’s Injunction Motion

In addition to the facts alleged in its First Amended Complaint and First

Supplemental Complaint, Citizen Center also placed additional material facts into

the record, in the form of exhibits and declarations, in connection with its motion

for a temporary restraining order and preliminary injunction, (Aplt. App. at 232-


10

329), and its reply in support of that motion, (Aplt. App. at 394-415). Those

additional facts of record are incorporated here in their entirety, but they may be

summarized as follows:

Seven week prior to the 2012 general election, discovery had allowed

Citizen Center to obtain evidence that unequivocally demonstrated that ballots

used by Boulder, Chaffee and Eagle counties were marked with numerical

information that permitted voted ballots to be traced to identifiable individual

voters on a vast scale. Citizen Center moved to enjoin the three defendant Clerks

of those counties from using marked ballots in the 2012 general election, and

produced material that showed not only how ballots could be traced to individual

voters, but why voters who were Citizen Center members in those counties feared

to cast votes on identifiable ballots. (See Affs. Arnold, Branscomb, Buell, Hallett,

Marks, Eberle, A. Kolwicz, Johansson, Martin, Rowe, S. Kolwicz, Aplt. App. at

250-329, 394-415.)

In what he conceded to be a response to the shocking but proven claims

made by Citizen Center’s motion for injunctive relief and the compelling evidence

submitted in support of the motion, (Sec’y’s Resp. Mot. TRO & Prelim. Inj. and

Exhibits A-B, Aplt. App. at 364, 371-80.), the Secretary adopted an emergency

election rule within seventy-two hours of Citizen Center’s motion that purported to

ban all Colorado county clerks from marking ballots with uniquely identifiable


11

serial numbers and bar codes, with immediate effect. (Id.) Despite this remarkable

action, which effectively constituted an admission by an opposing party of the

serious nature and validity of the concerns raised by Citizen Center both in its

motion and in this case generally, the district court took no action on Citizen

Center’s motion for an injunction, opting instead at the injunction hearing to

dismiss the case below by finding that no injury-in-fact had been alleged.

V. SUMMARY OF ARGUMENT

This appeal asks whether individuals rightly claim injury to their

constitutional rights associated with voting when the government systematically

creates, compiles and maintains information that permits officials, workers and

election insiders to associate voted ballots with the individuals who cast them and

thus to ascertain how particular individuals voted, all in derogation of individuals’

legitimate entitlement to be secure in the knowledge that their personal electoral

selections are absolutely secret.

The district court erred when it dismissed the case below on the grounds that

Citizen Center failed under Rule 12(b)(1) to plausibly allege associational

standing. First, Citizen Center’s allegations satisfy all the requirements of

standing. Second, it was legal error for the district court to impose a subject-matter

nexus requirement between the alleged injury-in-fact and the rights asserted by

Citizen Center and thus to find no valid injury-in-fact. Third, the district court


12

erred by failing to consider “all matters of record” when conducting the standing

inquiry and concluding there was no injury-in-fact.

Nor should the district court’s judgment not be affirmed on alternate grounds

of failure to state a claim under Rule 12(b)(6). Citizen Center’s pleadings state

legally sufficient claims for relief under the First and Fourteenth Amendments,

specifically for violations of its members’ rights to freedom of speech and

association, fundamental right to vote, asserted fundamental right to vote by secret

ballot, right to procedural due process and right to equal protection.

Accordingly, the final judgment of dismissal by the district court should be

reversed and this case remanded for further proceedings.

VI. ARGUMENT

A. The district court erred by dismissing the case below for lack of standing because the First Amended Complaint, First Supplemental Complaint, and other “materials of record,” allege facts – including injury-in-fact – that are more than sufficient to plausibly establish Citizen Center’s associational standing at the motion-to-dismiss stage.

Reviewability (10th Cir. R. 28.2(C)(2))

The Clerks’ and Secretary’s motions to dismiss raised the question of

Citizen Center’s standing. (Clerks’ Mot. Dismiss, Aplt. App. at 58; Sec’y’s Mot.

Dismiss, Aplt. App. at 89.) The district court orally ruled on standing at the

injunction hearing, finding that Citizen Center “has failed to meet its burden of

demonstrating it has associational standing. Its members would not have standing


13

to sue in their own right because they cannot satisfy Article III’s injury-in-fact

requirement.” (Transcr. Sept. 21, 2012, Hr’g (Order), Aplt. App. at 495.) The

district court halted its standing inquiry at the injury-in-fact prong and offered no

analysis of either causality or redressibility. (Id.)

Standard of Review (Fed. R. App. P. 28(a)(9)(B))

This Court reviews de novo a district court’s decision to grant a motion to

dismiss for lack of an injury-in-fact that is sufficient to confer standing. United

States v. Colorado Supreme Court, 87 F.3d 1161, 1164 (10th Cir. 1996). A Rule

12(b)(1) motion to dismiss for lack of subject-matter jurisdiction may take the

form of either a facial attack on the complaint’s allegations relating to jurisdiction

or a challenge to the veracity of alleged jurisdictional facts. Holt v. United States,

46 F.3d 1000, 1002-03 (10th Cir. 1995). A facial attack on jurisdiction, which is

all that was raised below, requires the court to accept jurisdictional allegations as

true. Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009). Those

allegations, taken as true, must be sufficient on their face to plausibly establish

jurisdiction. Commonwealth. Prop. Advocates, LLC v. Mortgage Elec.

Registration Sys., Inc., 680 F.3d 1194, 1201 (10th Cir. 2011). The party invoking

jurisdiction has the burden to demonstrate standing. Warth v. Seldin, 422 U.S. 490,

518 (1975). But a plaintiff’s success in demonstrating standing is to be assessed

under the standard governing the stage the litigation has reached. Lujan v.


14

Defenders of Wildlife, 504 U.S. 555, 561 (1992) (“At the pleading stage, general

factual allegations of injury resulting from the defendant’s conduct may suffice, for

on a motion to dismiss we ‘presum[e] that general allegations embrace those

specific facts that are necessary to support the claim.’”); Tandy v. City of Wichita,

380 F.3d 1277, 1284 (10th Cir. 2004) (“Each element of standing must be

supported with the manner and degree of evidence required at the pertinent,

successive stages of the litigation.”).

1. Citizen Center’s allegations plausibly establish all of the required elements of associational standing.

“Even in the absence of injury to itself, an association may have standing

solely as the representative of its members.” Warth, 422 U.S. at 511. “[A]n

association has standing to bring suit on behalf of its members when: (a) its

members would otherwise have standing to sue in their own right; (b) the interests

it seeks to protect are germane to the organization’s purpose; and (c) neither the

claim asserted nor the relief requested requires the participation of individual

members in the lawsuit.” Hunt v. Washington State Apple Adver. Comm’n, 432

U.S. 333, 343 (1977). The first two prongs of this associational standing test are

constitutional necessities under Article III, while the third is a judicially imposed

prudential requirement. United Food & Commercial Workers Union Local 751 v.

Brown Group, Inc., 517 U.S. 544, 555 (1996). “[T]he doctrine of associational

standing recognizes that the primary reason people join an organization is often to


15

create an effective vehicle for vindicating interests that they share with others.”

Int’l Union, United Auto., Aerospace & Agr. Implement Workers v. Brock, 477

U.S. 274, 290 (1986). Citizen Center’s allegations satisfy all three prongs of the

associational standing doctrine.

a. Citizen Center’s individual members would have standing to sue in their own right.

Citizen Center alleges facts demonstrating that at least six of its members

plausibly have individual standing to sue the Clerks and Secretary. (1st Am.

Compl., Aplt. App. at 38-39 ¶¶ 94, 96-102.) For an association’s members to be

able to sue in their own right, “the irreducible constitutional minimum of standing

contains three elements. First, the plaintiff must have suffered an injury in fact – an

invasion of a legally protected interest which is (a) concrete and particularized, and

(b) actual or imminent, not conjectural or hypothetical. Second, there must be a

causal connection between the injury and the conduct complained of – the injury

has to be fairly traceable to the challenged action of the defendant, and not the

result of the independent action of some third party not before the court. Third, it

must be likely, as opposed to merely speculative, that the injury will be redressed

by a favorable decision.” Lujan, 504 U.S. at 560-61 (internal quotation marks,

brackets, ellipses and citations omitted).


16

i. Citizen Center’s allegations demonstrate injury-in-fact to its individual members.

A person seeking prospective relief shows an injury-in-fact if he is “under a

real and immediate threat of being injured in the future. …. The threatened injury

must be ‘certainly impending’ and not merely speculative. Tandy, 380 F.3d at

1283 (citations omitted). “Past wrongs are evidence bearing on whether there is a

real and immediate threat of repeated injury.” Id.

Citizen Center alleges that its individual members are under a real and

immediate threat that the votes they have “concrete, present plans” to cast at

impending elections, Lippoldt v. Cole, 468 F.3d 1204, 1217-18 (10th Cir. 2006),

will be identifiably traceable back to them afterward. It is an injury-in-fact merely

to impose upon each of these members, as a condition of voting, the meaningful

risk that their “secret” ballot may actually serve as a record that will memorialize

their individual electoral preferences in a personally identifiable way. Cf. Stewart

v. Blackwell, 444 F.3d 843, 854 (6th Cir. 2006), superseded, 473 F.3d 692 (6th Cir.

2007) (“In the voting context, this Court and others have recognized that voters can

have standing based on an increased risk that their votes will be improperly

discounted.”); Greidinger v. Davis, 988 F.2d 1344, 1352 (4th Cir. 1993)

(conditioning the right to vote on disclosure of voter’s social security number

risked invasion of privacy that impermissibly burdened the right).


17

The imposition of this risk unequally on Citizen Center’s members voting in

some counties but not in others, and differentially even on members voting within

the same county, including by different methods, (1st Am. Compl., Aplt. App. at

53 ¶ 156), is a further injury-in-fact. See American Civ. Liberties Union of N.M. v.

Santillanes, 546 F.3d 1313, 1319 (10th Cir. 2008) (“The injury in fact is the denial

of equal treatment. Although the City argues that the bases identified by the district

court to show injury are speculative or non-existent, the fact remains that the

individual Plaintiffs will still be required to present photo identification that must

be accepted if they vote in-person whereas those voting absentee will not.”)

(citations omitted).

By holding that “[Citizen Center’s] members would not have standing to sue

in their own right because they cannot satisfy Article III’s injury-in-fact

requirement,” (Transcr. Sept. 21, 2012, Hr’g (Order), Aplt. App. at 495, Attach.

1), the district court failed to recognize that the deprivation of an individual’s

ability to cast a non-identifiable ballot – one that is secret both from the general

public and from the government – directly injures every voter by depriving each

individual of her security in the absolute privacy of her electoral choices.

The fact that any particular voter who is a member of Citizen Center may

not know with any certainty whether her own personal identifiable ballot will ever

actually be revealed to anyone and exposed as hers creates no obstacle to her


18

individual standing for two reasons. First, the imposition of risk is itself sufficient

to constitute an injury-in-fact. See Sandusky County Democratic Party v.

Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (“[A] voter cannot know in advance

that his or her name will be dropped from the rolls, or listed in an incorrect

precinct, or listed correctly but subject to a human error by an election worker who

mistakenly believes the voter is at the wrong polling place. It is inevitable,

however, that there will be such mistakes. The issues Appellees raise are not

speculative or remote; they are real and imminent.”) (finding standing); see also

Santillanes, 546 F.3d at 1319 (“As in many cases challenging aspects of voting,

Plaintiffs cannot identify a single individual who would not vote, let alone not vote

in-person because of the measure.”) (citing Sandusky County Democratic Party,

387 F.3d at 574) (finding the denial of equal treatment to be an injury-in-fact). It is

therefore sufficient for purposes of establishing an injury-in-fact that Citizen

Center’s affected members are forced by the defendants’ conduct to bear the real

and imminent risk that government officials, their workers and election insiders,

such as partisan election watchers and volunteers, will be able to determine how

those members voted.

Second, the deprivation of a voter’s security in the absolute secrecy of her

electoral choices is an injury-in-fact to the voter for the additional reason that this

lack of anonymity directly impacts her ability in the voting booth to exercise her


19

freedom to vote her conscience unburdened by concerns that the ballot she is about

to cast may remain identifiable as hers for years thereafter in government records.

Citizen Center’s allegations, accepted as true, demonstrate that at least six

affected members are plausibly threatened with a cognizable injury-in-fact.

ii. Citizen Center’s allegations demonstrate that members’ injuries are fairly traceable to the defendants’ conduct.

“Article III’s causation requirement demands something less than the

concept of proximate cause. Yet Article III does at least require proof of a

substantial likelihood that the defendant’s conduct caused plaintiff’s injury in fact.”

Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005) (internal

quotation marks and citations omitted).

Here, Citizen Center’s allegations state that the Secretary has approved the

use of distinguishing marks on ballots for upcoming elections in three counties,

(1st Am. Compl., Aplt. App. at 37 ¶¶ 90-91), and that such marks permit ballots to

be traced to individual voters, (id. at 31 ¶¶ 57-60, 33 ¶¶ 69-72, 34 ¶¶ 76-79).

Colorado law forbids the printing of such marks on ballots. (Id. at 36 ¶ 88 (citing

C.R.S. § 1-5-407(7) (2011)).) These allegations plausibly show a line of causation

between the defendants’ conduct and prospective injuries to Citizen Center’s

members as a result of certain ballots being traceable.


20

iii. Citizen Center’s allegations demonstrate that members’ injuries will be redressed by a favorable decision.

Citizen Center’s allegations specifically identify and describe certain forms

of unlawful, injurious current conduct by the Clerks and the Secretary that will

cause the organization’s members future injury. (1st Am. Compl., Aplt. App. at

25-37.) Citizen Center’s pleadings ask that such conduct be declared unlawful and

enjoined. (Id. at 56-57 ¶¶ a.-c.) “It can scarcely be doubted that, for a plaintiff

who is injured or faces the threat of future injury due to illegal conduct ongoing at

the time of suit, a sanction that effectively abates that conduct and prevents its

recurrence provides a form of redress.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Services (TOC), Inc., 528 U.S. 167, 185-86 (2000). There can be no doubt that this

Court’s granting the relief requested will provide a form of redress to Citizen

Center’s affected members. Citizen Center satisfies the first prong of the Hunt

test for associational standing.

b. The interests Citizen Center seeks to protect are germane to the organization’s purpose.

Turning to the second prong of Hunt, Citizen Center’s applicable

organizational purposes are set out in Paragraph Five of the First Amended

Complaint. (1st Am. Compl., Aplt. App. at 22 ¶ 5.) The purpose of protecting its

members’ rights that were at issue in the case below satisfies germaneness. See


21

Pennell v. City of San Jose, 485 U.S. 1, 7 n.3 (1988). Citizen Center thus meets

the second prong of the Hunt test for associational standing.

c. Neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

The third prong of the Hunt test is also satisfied because, except for standing

purposes, neither the claims nor the relief sought by Citizen Center required the

district court to consider the individual circumstances of Citizen Center’s

aggrieved members. See Int’l Union, 477 U.S. at 287. The claims at issue do not

require “individualized proof” and “are thus properly resolved in a group context.”

Hunt, 432 U.S. at 344. And because “the association seeks … prospective relief, it

can reasonably be supposed that the remedy, if granted, will inure to the benefit of

those members of the association actually injured.” Warth, 422 U.S. at 515.

Because the final prong of Hunt’s associational standing test is itself prudential in

character, United Food, 517 U.S. at 555, prudential standing considerations in

general are satisfied. (Sec’y’s Mot. Dismiss, Aplt. App. at 89, at 95-96, 100-101.)

2. The district court erred as a matter of law by requiring a subject-matter nexus between the alleged injury-in-fact and the federal rights claimed.

As a threshold matter, the district court erred by grounding its determination

that no injury-in-fact had been alleged in its conclusions about the substance of the

federal rights implicated by Citizen Center’s allegations. The United States


22

Supreme Court has plainly stated that, although standing requires a causal

connection between the challenged conduct and the alleged injury-in-fact, there is

no requirement, outside of taxpayer suits, for any kind of “subject-matter nexus

between the right asserted and the injury alleged.” Duke Power Co. v. Carolina

Envtl. Study Grp., Inc., 438 U.S. 59, 79 (1978) (emphasis added). By holding that

Citizen Center had not satisfied the injury-in-fact requirement because “absolute

anonymity in voting is not a legally protected interest under the federal theories

that plaintiff has pursued,” (Transcr. Sept. 21, 2012, Hr’g (Order), Aplt. App. at

495, Attach. 1 (emphasis added)), the district court applied a nexus requirement

between injury-in-fact and asserted rights that the Supreme Court has explicitly

repudiated. Requiring this nexus to exist as a precondition to recognizing an

alleged injury-in-fact was legal error.

3. The district court erred by failing to consider “all materials of record” in dismissing the case for want of standing.

The court below failed to heed the United States Supreme Court’s

admonition that “a motion to dismiss for want of standing” should only be granted

if “the plaintiff’s standing does not adequately appear from all materials of

record,” including amendments to the complaint and supplemental affidavits that

provide “further particularized allegations of fact deemed supportive of plaintiff’s

standing.” Warth, 422 U.S. at 501-02 (citation omitted) (emphasis added). Here,

the district court dismissed Citizen Center’s complaint for lack of an injury-in-fact


23

despite having before it in the record affidavits of eleven separate individuals, filed

in the course of Citizen Center’s briefings on its injunction motion, that were

clearly supportive of Citizen Center’s allegations that voters deprived of ballot

anonymity stood to suffer injury. (Affs. Arnold, Branscomb, Buell, Hallett, Marks,

Eberle, A. Kolwicz, Johansson, Martin, Rowe, S. Kolwicz, Aplt. App. at 250-329,

394-415.)

Indeed, even the Secretary’s emergency Election Rule 10.8 – which the

Secretary admitted promulgating “in response to policy (as opposed to legal)

concerns raised in” Citizen Center’s injunction motion – was before the district

court, an implicit acknowledgment by an opposing party of the harm caused by

demonstrably traceable ballots. (Sec’y’s Resp. Mot. TRO & Prelim. Inj. and

Exhibits A-B, Aplt. App. at 364, 371-80.) It was error for the district court to

ignore these materials of record entirely and still find no injury-in-fact to Citizen

Center’s members sufficient to confer standing.

B. The district court’s erroneous order of dismissal on standing should not be affirmed on the alternate grounds of Rule 12(b)(6) because Citizen Center’s First Amended Complaint and First Supplemental Complaint properly state claims for declaratory and injunctive relief under the First and Fourteenth Amendments.

Reviewability (10th Cir. R. 28.2(C)(2))

The Clerks’ motion to dismiss asserted that Citizen Center failed to state

claims under the First and Fourteenth Amendments. (Clerks’ Mot. Dismiss, Aplt.


24

App. at 58-88.) After finding that Citizen Center lacked standing, the district

court expressly denied as moot that part of the Clerks’ motion based on Rule

12(b)(6). (Transcr. Sept. 21, 2012, Hr’g (Order), Aplt. App. at 497, Attach. 1.)

However, the Rule 12(b)(6) arguments were fully briefed, and since this Court may

affirm “the judgment of the district court on any grounds for which there is a

record sufficient to permit conclusions of law, even grounds not relied upon by the

district court,” U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 940 (10th Cir.

2008), it is proper for Citizen Center to address why the judgment should not be

affirmed on alternate grounds.

Standard of Review (Fed. R. App. P. 28(a)(9)(B))

This Court’s scrutiny of the record for grounds not relied upon by the district

court is necessarily conducted de novo. In a de novo review, this Court examines

the sufficiency of claims in a complaint under Rule 12(b)(6) using the same

standards as a district court. Russell v. United States, 551 F.3d 1174, 1178 (10th

Cir. 2008). In the district court, “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim for relief that is

plausible on its face.… A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Toone v. Wells Fargo Bank, N.A.,

716 F.3d 516, 520-21 (10th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662,


25

678 (2009)) (quotation marks omitted).

The sufficiency determination ultimately looks to whether the facts alleged

support “all the elements necessary to establish an entitlement to relief under the

legal theory proposed. Dismissal is appropriate if the law simply affords no

relief.” Commonwealth. Prop. Advocates, LLC, 680 F.3d at 1194 (citations and

quotation marks omitted). The court’s function “is not to weigh potential evidence

that the parties might present at trial, but to assess whether the plaintiff’s complaint

alone is legally sufficient to state a claim for which relief may be granted.” Smith,

561 F.3d at 1098. Where a complaint sets forth facts that explain what each

particular defendant did, when each defendant did it, how each defendant’s actions

harmed the plaintiff, and what specific legal right the plaintiff believes each

particular defendant violated, a plaintiff has provided “enough factual matter

(taken as true) to suggest that he ... is entitled to relief.” Roth v. Wilder, 420 F.

App’x 804, 805 (10th Cir. 2011). “In evaluating a Rule 12(b)(6) motion to

dismiss, courts may consider not only the complaint itself, but also attached

exhibits and documents incorporated into the complaint by reference.” Smith, 561

F.3d at 1098 (citation omitted).

Applying the foregoing standards, this Court should conclude that each of

Citizen Center’s claims erroneously dismissed by the district court for want of


26

standing is supported by sufficient factual matter to withstand a motion for

dismissal under the alternate grounds of Rule 12(b)(6), as well.

1. The First Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ fundamental right to vote.

Citizen Center’s First Claim alleges the defendants’ conduct threatens to

infringe upon the fundamental right of Citizen Center’s members to vote. (1st Am.

Compl., Aplt. App. at 46-47 ¶¶ 125-131.) Among the allegations supporting this

claim are that the defendants’ challenged practices infringe upon and severely and

substantially burden and chill exercise of the fundamental right to vote in a number

of specific ways, (id. at 41-42 ¶¶ 104-110; 46-47 ¶ 127, ¶¶ 129-30); that following

the challenged practices is not necessary to conduct a lawful Colorado election, (id.

at 37 ¶ 92); and that there is no compelling state interest that justifies the burdens

and infringements resulting from the challenged practices that cannot be served by

other, less restrictive means, (id. at 46 ¶ 128). These allegations, taken as true,

plausibly state a claim for violation of the fundamental right to vote.

“The appropriate standard for evaluating a claim that a state law burdens the

right to vote is set forth in Anderson [v. Celebrezze, 460 U.S. 780 (1983)].”

Burdick v. Takushi, 504 U.S. 428, 438 (1992).2 Under Celebrezze, these claims are

2 The Due Process Clause incorporates a variety of underlying federal constitutional rights against deprivation by the States. See Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925). Claims One and Two involve


27

analyzed under the First and Fourteenth Amendments. Celebrezze, 460 U.S. at

789. The applicable standard of scrutiny is a matter of judgment. See Storer v.

Brown, 415 U.S. 724, 730 (1974) (“[T]he rule fashioned by the Court to pass on

constitutional challenges to specific provisions of election laws provides no litmus-

paper test for separating those restrictions that are valid from those that are

invidious.”). The first step is to “consider the character and magnitude of the

asserted injury to the rights protected.” Celebrezze, 460 U.S. at 789. The next step

is to “identify and evaluate the precise interests put forward by the State as

justifications for the burden imposed by its rule.” Id.

“In passing judgment, the Court must not only determine the legitimacy and

strength of each of those interests; it also must consider the extent to which those

interests make it necessary to burden the plaintiff’s rights.” Id. A balancing of all

the factors is required for a court to decide whether the challenged law is

unconstitutional. See id. “[W]hen [First and Fourteenth Amendment] rights are

subjected to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to

advance a state interest of compelling importance.’” Burdick, 504 U.S. at 439.

Where “the burden is slight, the State need not establish a compelling interest to tip

incorporated rights that are properly analyzed under the framework applicable to constitutional challenges to election laws set out in Burdick, 504 U.S. at 428, and Celebrezze, 460 U.S. at 780.


28

the constitutional scales in its direction.” Id. Decisions in these cases are “a

matter of degree.” Storer, 415 U.S. at 730.

In the context of a facial challenge to a statute, the Supreme Court has

concluded that a burden on First Amendment rights is only “severe” if there exist

no ways to implement the statute, consistently with its language, that would be

constitutional. See Washington State Grange v. Washington State Republican

Party, 552 U.S. 442, 455-56 (2008). If the same reasoning is applied here, though

the fit is imperfect, the burden on Citizen Center’s affected members must be

considered severe because traceability is amenable to no middle ground and

susceptible to no less offensive variation. Ballots are either traceable or they are

not; the choice is binary.

For this reason, the First Amended Complaint’s and the First Supplemental

Complaint’s allegations in connection with Citizen Center’s First Claim presume

that the applicable standard of review in a case such as this will be strict scrutiny

and allege that the fundamental right of Citizen Center’s members to vote is

“severely and substantially” burdened by the Clerks’ creation of traceable ballots.

(1st Am. Compl., Aplt. App. at 42 ¶ 109.) Certainly more severe and substantial

burdens on the right to vote can hardly be imagined than requiring voters, as a

condition of casting their ballot, to enter into a lottery in which the “losers”, if not

everyone, (see, e.g., id. at 26 ¶ 30; 28 ¶ 41), will end up voting ballots that may be


29

identifiably traced back to them as their own. See, e.g., Greidinger, 988 F.2d at

1345 (applying strict scrutiny to hold that a State’s requirement for the voter to

provide his social security number in order to register to vote impermissibly

burdened that voter’s fundamental right to vote); Socialist Workers Party v.

Hechler, 890 F.2d 1303, 1309 (4th Cir. 1989) (“[F]orcing individuals to state that

they desire to vote for a candidate before they can sign his nominating certificate is

a clear infringement of their right to keep their vote and their political preference

secret.”).

The “secret” that is protected by the “secret ballot” is the authorship of the

personal electoral preferences recorded on a voted ballot. Where many people

within and without the government and political parties have access to voted

ballots, (1st Am. Compl., Aplt. App. at 37 ¶ 93), any voter who is sensitive about

how her electoral preferences may reflect on her will hesitate to freely vote her

conscience. See Hechler, 890 F.2d at 1309 (“[W]e believe that the effect of such a

revelation can be substantial, in that it will discourage people from joining

unpopular or controversial parties or causes.”). The greater the voter’s sensitivity

about her electoral preferences, the greater will be her intimidation by the prospect

of traceability – and thus the greater the burden imposed upon her right to vote.

For these reasons, an individual’s electoral preferences are a secret to which the

government must not be allowed to make itself a party.


30

Because the burdens on the fundamental right to vote posed by government

procedures that destroy secrecy in voting by creating traceable ballots are so

severe, this Court should hold that the appropriate standard of review for Citizen

Center’s Second Claim is strict scrutiny. Applying this standard, Citizen Center’s

First Claim alleges factual matter that, taken as true, sustains all the elements of a

legally sufficient claim against the Clerks for deprivation of the fundamental right

to vote of Citizen Center’s affected members.

2. The Second Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ First Amendment freedoms of speech and association.

Citizen Center’s Second Claim alleges that Citizen Center’s members will

be deprived by defendants’ conduct of First Amendment rights to free speech and

association, including rights to engage in anonymous speech and association. (1st

Am. Compl., Aplt. App. at 47-49 ¶¶ 132-137.) Among the allegations supporting

this claim are that the defendants’ challenged practices infringe upon and severely

and substantially burden and chill the exercise of First Amendment rights by

Citizen Center’s members in a number of specific ways, (id. at 42-45 ¶¶ 111-121;

47-48 ¶¶ 133, ¶¶ 135-36); that the challenged practices are not necessary to

conduct a lawful Colorado election, (id. at 47 ¶ 92); and that there is no compelling

state interest that justifies the burdens and infringements resulting from the

challenged practices that cannot be served by other, less restrictive means, (id. at


31

48 ¶ 134). These allegations, taken as true, plausibly state a claim for violation of

the First Amendment.

The act of voting expresses a political view and thus is entitled to protection

under the First Amendment. Cf. Doe v. Reed, 130 S. Ct. 2811, 2817 (2010)

(signing a petition expresses a political view and implicates the First Amendment).

Voting by secret ballot also implicates the Supreme Court’s long-standing

recognition of the “vital relationship between” political association “and privacy in

one’s associations,” which is likewise protected by the First Amendment. NAACP

v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958); see also Burdick, 504 U.S.

at 433 (recognizing the right to “associate for political purposes though the

ballot”).

Although the Supreme Court held in Burdick that, “[T]he function of the

election process is ‘to winnow out and finally reject all but the chosen candidates,’

… not to provide a means of giving vent to ‘short-range political goals, pique, or

personal quarrel[s],’” and cautioned that, “Attributing to elections a more

generalized expressive function would undermine the ability of States to operate

elections fairly and efficiently,” Burdick, 504 U.S. at 438 (citing Storer, 415 U.S.

at 735), the Court has nonetheless been careful to reiterate that, even in the

electoral context, “severe burdens on plaintiffs’ rights must be narrowly tailored


32

and advance a compelling state interest.” Timmons v. Twin Cities Area New Party,

520 U.S. 351, 358 (1997).

The Supreme Court has neither affirmed nor foreclosed that the First

Amendment protects the right to vote anonymously. Justice Scalia, speaking only

for himself in a concurrence, has suggested that it does not. See Doe v. Reed, 130

S. Ct. at 2834. Other courts have perceived that it does. See Anderson v. Mills, 664

F.2d 600, 608-09 (6th Cir. 1981) (“Although the [U.S.] Constitution does not

specifically guarantee that a person has a right to a secret ballot, such a right has

been recognized as one of the fundamental civil liberties of our democracy.”);

Buckley v. Valeo, 519 F.2d 821, 867 n.117 (D.C. Cir. 1975) aff’d in part, rev’d in

part, 424 U.S. 1, 96 (1976) and modified, 532 F.2d 187 (D.C. Cir. 1976) (“In this

country a person’s right to vote secretly is inviolate.”); D’Aurizio v. Borough of

Palisades Park, 899 F. Supp. 1352, 1359 (D.N.J. 1995) (citing Buckley, supra, 519

F.2d at 867 n.117).

Because the burdens on speech and association posed by government

procedures that destroy secrecy in voting are severe, this Court should hold that the

appropriate standard of review for Citizen Center’s Second Claim is strict scrutiny.

Applying this standard, Citizen Center’s Second Claim alleges factual matter that,

taken as true, sustains all the elements of a legally sufficient claim against the


33

Clerks for deprivation of Citizen Center’s affected members’ First Amendment

rights to speak and associate through the ballot.

3. The Third Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ fundamental right to vote using a secret ballot in public elections.

Citizen Center’s Third Claim alleges that Citizen Center’s members have

been deprived of a fundamental right, properly protected by substantive due

process, of citizens to vote using a secret ballot in public elections.3 (1st Am.


claim are that the right of citizens to vote using a secret ballot in public elections is

a liberty interest “so deeply rooted in our history and traditions” and “so

fundamental to our concept of constitutionally ordered liberty” that it warrants the

substantive protection of the Due Process Clause, (id. at 49 ¶ 139); that the Clerks’

challenged practices infringe upon and severely and substantially burden and chill

exercise of this fundamental right, (id. at 49-50 ¶ 140, ¶¶ 142-43); that the

challenged practices are not necessary to permit the Clerks to conduct a lawful 3 The Due Process Clause of the Fourteenth Amendment is unnecessary to protect the fundamental right to vote by secret ballot if such a right is guaranteed either by the First Amendment or by the fundamental right to vote. See Graham v. Connor, 490 U.S. 386, 395 (1989) (“Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”). However, Claim Three is still appropriately pled. See Fed. R. Civ. P. 8(d)(3) (“A party may state as many separate claims or defenses as it has, regardless of consistency.”).


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Colorado election, (id. at 37 ¶ 92); and that there is no compelling state interest that

justifies the burdens and infringements resulting from the challenged practices that

cannot be served by other, less restrictive means, (id. at 49 ¶ 141). These

allegations, taken as true, plausibly state a claim for violation of the fundamental

right of citizens to vote using a secret ballot in public elections.

The Due Process Clause “specially protects those fundamental rights and

liberties which are, objectively, ‘deeply rooted in this Nation’s history and

tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty

nor justice would exist if they were sacrificed.’” Washington v. Glucksberg, 521

U.S. 702, 720-21 (1997) (citations omitted). “A plaintiff asserting a substantive

due process right must both (1) carefully describe the right and its scope; and (2)

show how the right as described fits within the Constitution’s notions of ordered

liberty.” Seegmiller v. LaVerkin City, 528 F.3d 762, 769 (10th Cir. 2008).

“[I]dentifying a new fundamental right subject to the protections of substantive due

process is often an uphill battle, as the list of fundamental rights is short.” Id. at

770. Where the Due Process Clause applies, “the Fourteenth Amendment forbids

the government to infringe ... fundamental liberty interests at all, no matter what

process is provided, unless the infringement is narrowly tailored to serve a

compelling state interest.” Washington, 521 U.S. at 721 (emphasis in original)

(quotation marks omitted).


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Citizen Center’s Third Claim asserts that the “right of citizens to vote using

a secret ballot in public elections” is a liberty that meets the standard set out in

Washington for recognition as a fundamental right warranting substantive

protection under the Due Process Clause. (1st Am. Compl., Aplt. App. at 49 ¶

139.) The formulation that Citizen Center suggests for such a right not only is

carefully described, (id.), but it also fits within the Constitution’s notions of

ordered liberty. See Seegmiller, 528 F.3d at 769.

That the secret ballot is deeply rooted in this nation’s history and tradition

has been all but explicitly acknowledged by various Justices of the United States

Supreme Court. See Doe v. Reed, 130 S. Ct. at 2836 (Scalia, J., concurring) (“It

was precisely discontent over the nonsecret nature of ballot voting, and the abuses

that produced, which led to the States’ adoption of the Australian secret ballot.

New York and Massachusetts began that movement in 1888, and almost 90 percent

of the States had followed suit by 1896.”); Burson v. Freeman, 504 U.S. 191, 220

(1992) (referring to use of secret ballot as a “tradition”) (Steven, J., O’Connor, J.,

and Souter, J., dissenting). Other courts have recognized the same. See, e.g.,

Mills, 664 F.2d at 608 (“Although the [U.S.] Constitution does not specifically

guarantee that a person has a right to a secret ballot, such a right has been

recognized as one of the fundamental civil liberties of our democracy.”).


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Scholarship going back nearly three-quarters of a century agrees. See, e.g.,

Charles B. Nutting, Freedom of Silence; Constitutional Protection Against

Governmental Intrusions in Political Affairs, 47 Mich. L. Rev. 181, 197 (1948)

(“[T]he almost universal experience of the states and, indeed, of the English

speaking world has been that freedom in the exercise of the franchise, as well as

fairness in elections, can be attained only through preserving the principle of secret

voting.”).

Consistent with recognizing that the right to vote by secret ballot is implicit

in our Nation’s concept of ordered liberty, the Supreme Court has promulgated

procedural rules containing a “political vote privilege” and accompanied the

privilege with the explanation that,

Secrecy in voting is an essential aspect of effective democratic government, insuring free exercise of the franchise and fairness in elections. Secrecy after the ballot has been cast is as essential as secrecy in the act of voting. Consequently a privilege has long been recognized on the part of a voter to decline to disclose how he voted. Required disclosure would be the exercise of “a kind of inquisitorial power unknown to the principles of our government and constitution, and might be highly injurious to the suffrages of a free people, as well as tending to create cabals and disturbances between contending parties in popular elections.”

56 F.R.D. 183, 249 (Advisory Committee’s Note to Rule 507) (citations omitted)

(emphases added).


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Accordingly, Citizen Center identifies this fundamental right for recognition

by this Court, as it did before the district court, and urges this Court to hold that

Citizen Center’s Third Claim alleges factual matter that, taken as true, sustains all

the elements of a legally sufficient claim under the Due Process Clause for

substantive protection of Citizen Center’s affected members’ fundamental liberty

interest in voting using a secret ballot in public elections.

4. The Fourth Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ right to procedural due process.

Citizen Center’s Fourth Claim alleges that Citizen Center’s members have

been deprived of the state-created liberty interest of secrecy in voting without

procedural due process. (1st Am. Compl., Aplt. App. at 50-52 ¶¶ 145-152.)

Among the allegations supporting this claim are that the right to secrecy in voting

is a substantive liberty interest created by the Colorado Constitution, (id. at 51 ¶¶

146-47); that the procedures used by the Clerks to deprive voters of this state-

created liberty interest are either non-existent or else wholly arbitrary and

capricious, (id. at 51 ¶ 150); and that the challenged practices are not necessary to

conduct a lawful Colorado election, (id. at 37 ¶ 92). These allegations, taken as

true, plausibly state a claim for violation of procedural due process.

“The fundamental requirement of [procedural] due process is the opportunity

to be heard at a meaningful time and in a meaningful manner.” Mathews v.


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Eldridge, 424 U.S. 319, 333 (1976). To succeed on a deprivation of procedural

due process claim, an individual must show: (1) he possessed a protected interest

to which due process protections were applicable; and (2) he was not afforded an

appropriate level of process. See Couture v. Bd. of Educ. of Albuquerque Pub.

Schs., 535 F.3d 1243, 1256 (10th Cir. 2008). “To have a property interest in a

benefit, a person clearly must have more than an abstract need or desire for it. He

must have more than a unilateral expectation of it.” Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972). “The analysis concerning the identification of a state created

liberty interest ‘parallels the accepted due process analysis as to property.’”

Montero v. Meyer, 13 F.3d 1444, 1447 (10th Cir. 1994). The scope of a claimed

state-created liberty interest is determined by reference to state law. Id.

The right to secrecy in voting has existed in Colorado since Statehood.

Colorado’s first Constitution required that all voting be “by ballot,” Colo. Const.

art. VII, § 8 (1876), a term that was uniformly understood at the time to connote

secrecy, see, e.g., Williams v. Stein, 38 Ind. 89, 92 (1871) (“The common

understanding in this country certainly is, that the term “ballot” implies secrecy. I

have nowhere found a dictum to the contrary.”). Although the 1876 Constitution

required all ballots to be numbered and those numbers to be recorded alongside

voters’ names in the poll book, the original Article VII, § 8, also required election

officers to foreswear attempts to determine how any elector might have voted and


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provided for the numbered ballots to be compared with the list of voters only in

election contests and then only “under such safeguards and regulations as may be

prescribed by law.” Colo. Const. art. VII, § 8 (1876). The Colorado Supreme

Court recognized even in the early days of Colorado’s legal existence that, “The

leading object of said section 8 was to preserve the purity of the ballot by insuring

its secrecy….” People ex rel. Barton v. Londoner, 22 P. 764, 768 (Colo. 1889).

In 1891, just fifteen years after Statehood and two years after Londoner was

decided, the Colorado General Assembly adopted S.B. 28, the so-called

“Australian Ballot Act,” which contained provisions that were clearly intended to

prevent election insiders from learning voters’ electoral choices. See 1891 Colo.

Sess. Laws 143, 157-58 § 26 (requiring judges receiving ballots “not to expose or

show how the voter has voted” and to paste down the ballot’s corner to conceal the

sequential number recorded there). Fourteen years later, Article VII, § 8, was

amended in 1905 to allow the use of voting machines as well as paper ballots in

elections, but only subject to the explicit added proviso “that secrecy in voting be

preserved.” See 1905 Colo. Sess. Laws 168-69.

Just over four decades later, in 1946, Article VII, § 8, was again amended,

this time into its current form, by the “Secret Ballot Constitutional Amendment.”

1947 Colo. Sess. Laws 427-28. For more than 65 years following the 1946

amendment, Article VII, § 8, has consistently read, in pertinent part, as follows:


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All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it. The election officers shall be sworn or affirmed not to inquire or disclose how any elector shall have voted. In all cases of contested election in which paper ballots are required to be used, the ballots cast may be counted and compared with the list of voters, and examined under such safeguards and regulations as may be provided by law. Nothing in this section, however, shall be construed to prevent the use of any machine or mechanical contrivance for the purpose of receiving and registering the votes cast at any election, provided that secrecy in voting is preserved….

Colo. Const. art. VII, § 8.

When the Secret Ballot Constitutional Amendment was adopted in 1946, it

was clear to contemporary observers that its purpose and effect was to eliminate

any ability of election officials or even the courts to associate a ballot with the

individual who had cast it. See Reject the Amendments!, Rocky Mountain News

(Denver), Nov. 2, 1946, at 10 (“The aim is to protect the secrecy of the ballot. If

adopted, however, this proposal would make virtually impossible the tracing of

ballots and would prevent the investigation of election frauds….”).

The form of Article VII, § 8, that was adopted in 1946 and that applies today

has been interpreted by the Colorado Supreme Court twice since its adoption as

providing a robust guarantee of anonymity for voted ballots. See Mahaffey v.

Barnhill, 855 P.2d 847, 851 (Colo. 1993) (privilege of ballot secrecy is personal,

and it is for the voter to determine whether to invoke its protection); Taylor v. Pile,


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391 P.2d 670, 673 (Colo. 1964) (voiding an election where ballots were numbered

and thus identifiable, but available only to election officials). The Colorado Court

of Appeals has applied Article VII, § 8, in the open-records-law context,

recognizing that ballots are public records open to public inspection, but noting

that secrecy in voting is implicated in the event that the identity of a voter can be

discerned from the face of her voted ballot. Marks v. Koch, 284 P.3d 118, 121

(Colo. Ct. App. 2011).

The fact that secrecy in voting under the Colorado Constitution is intended

to apply against the government is clear from these cases as well as from the

history of the ballot in Colorado. Two cases (Barton and Taylor) preceded the

enactment in 1968 of the Colorado Open Records Act, C.R.S. §§ 24-72-200.1 to -

206 (2012). Taylor, 391 P.2d at 673, went so far as to void an election over the

violation of secrecy at a time when election officials were the only people with

access to voted ballots. The third case (Mahaffey) applied Article VII, § 8 to

protect a voter against the judicially compelled disclosure of her vote choices,

consistently with application of the political vote privilege. This history can only

be understood if Colorado’s long-standing protections of secrecy have always been

intended to protect voters from disclosure of their electoral choices to officials,

workers and election insiders as well as from disclosure to the general public. In

sum, secrecy in voting under the Colorado Constitution is precisely the kind of


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robust state-created liberty interest that merits the procedural protections of the

Due Process Clause.

The Supreme Court has offered the following guidance for determining the

requirements of due process when the right at issue is a state-created liberty

interest such as secrecy in voting under the Colorado Constitution:

[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335.

Applying the three prongs of this test makes it clear that Citizen Center’s

members are entitled to some degree of due process. First, members’ interest in a

state constitutional right to secrecy in voting is obviously a personal and important

one. See Mahaffey, 855 P.2d at 851. Second, the risk of depriving Citizen

Center’s members of the right to secrecy in voting has been plausibly alleged and

must be accepted as true. (1st Am. Compl., Aplt. App. at 25-35 ¶¶ 24-81.) Third,

the burden on the government of additional procedures may be equated with the

burden of adopting practices to avoid the creation of traceable ballots entirely, and

Citizen Center has alleged that at least one County Clerk and Recorder in Colorado


43

uses practices that show it is possible to conduct lawful elections in Colorado

without creating traceable ballots at all. (Id. at 37 ¶ 92.)

Despite the conclusion that at least some degree of process is required before

Citizen Center’s members may be deprived of their state-created right to secrecy in

voting, Citizen Center’s allegations, taken as true, demonstrate clearly that the

defendants’ conduct is depriving voters of a substantive right conferred by Article

VII, § 8, without any process. (1st Am. Compl., Aplt. App. at 51-52 ¶¶ 150-51.)

Such a deprivation is arbitrary by definition. And, such an utter lack of process

cannot properly be deemed sufficient where the deprivation at issue concerns a

right as important as a state constitutional guarantee that is intended to facilitate to

the act of voting.

Citizen Center’s Fourth Claim alleges factual matter that, taken as true,

sustains all the elements of a legally sufficient claim against the Clerks for

deprivation of Citizen Center’s affected members’ rights to substantive protection

of a state-created liberty interest under the Due Process Clause.

5. The Fifth Claim states a legally sufficient claim for relief from violations of Citizen Center’s members’ right to equal protection.

Citizen Center’s Fifth Claim alleges that Citizen Center’s members have

been deprived of the Fourteenth Amendment right to equal protection. (1st Am.



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claim are that challenged practices infringe upon and severely and substantially

burden and chill the exercise by Citizen Center’s affected members of their

fundamental right to vote and their First Amendment rights to free speech and

association, including the rights to engage in anonymous speech and association, in

a number of specific ways, (id. at 41-42 ¶¶ 104-110, ¶¶ 112-121; at 46-49 ¶ 127, ¶¶

129-30, ¶ 133, ¶¶ 135-136; at 53 ¶ 157)]; that the affected members are similarly

situated to one another and to others affected, (id. at 52 ¶ 155); that the challenged

conduct treats the affected members and other similarly situated persons differently

by exposing each of them to disparate likelihoods that their ballots will be

personally traceable, (id. at 53-54 ¶¶ 156, 158, 160); that the challenged practices

are not necessary to conduct a lawful Colorado election, (id. at 37 ¶ 92); that there

is no compelling state interest that justifies the burdens and infringements resulting

from the challenged practices that cannot be served by other, less restrictive means,

(id. at 53 ¶ 158); and that this unequal treatment is a violation of equal protection,

(id. at 53-54 ¶ 159-160). These allegations, taken as true, plausibly state a claim

for violation of the Equal Protection Clause. After all, Citizen Center has alleged

that residents of Pitkin County, Colorado, where the organization itself is

headquartered, experience no risk of traceability at all. (Id. at 37 ¶ 92.)

“The right to vote is protected in more than the initial allocation of the

franchise. Equal protection applies as well to the manner of its exercise. Having


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once granted the right to vote on equal terms, the State may not, by later arbitrary

and disparate treatment, value one person’s vote over that of another.” Bush v.

Gore, 531 U.S. 98, 104-05 (2000). The Equal Protection Clause “creates no

substantive rights. Instead, it embodies a general rule that States must treat like

cases alike but may treat unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793,

799 (1997).

Strict scrutiny is the proper standard for this Court to apply to Citizen

Center’s equal protection claim where the right to vote and First Amendment

freedoms are severely burdened. See Harper v. Virginia Bd. of Elections, 383 U.S.

663 (1966). The unequal imposition of a serious risk of ballot traceability upon

voters based upon method of voting or location of residency is quite similar to the

burden imposed by the poll tax that was subjected to strict scrutiny in Harper. Cf.

Stewart, 444 F.3d at 854 (“In the voting context, this Court and others have

recognized that voters can have standing based on an increased risk that their votes

will be improperly discounted.”); Greidinger, 988 F.2d at 1352 (conditioning the

right to vote on disclosure of voter’s social security number risked invasion of

privacy that impermissibly burdened the right).

When state law guarantees secrecy of the ballot, equal protection is violated

where some voters are provided less secrecy than others, and some (such as

residents of Pitkin County) are provided with absolute secrecy. See Hechler, 890


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F.2d at 1310. In Hechler, the Fourth Circuit quoted the Supreme Court’s holding

that, "[T]he privilege to vote in a state is within the jurisdiction of the state itself, to

be exercised as the state may direct, and upon such terms as it may deem proper,

provided of course, no discrimination is made between individuals, in violation of

the Federal Constitution." Id. at 1309 (citing Carrington v. Rash, 380 U.S. 89, 91

(1964)). The State’s practice of discriminating between citizens – giving only some

voters secrecy of the ballot – was struck down on equal protection grounds. Id. at

1310; see also Smith v. Dunn, 381 F. Supp. 822 (M.D. Tenn. 1974) ("[O]nce the

right to secret balloting has been made part of the voting franchise granted by the

State, that right may not be withdrawn in ways inconsistent with the equal

protection clause of the Fourteenth Amendment.").

Equal protection is further implicated by the disparate exposure to

traceability of ballots that Citizen Center’s members face in different counties in

the State of Colorado. Voters residing in altogether different counties (and thus

exposed to differential risks of ballot traceability) may still reside in a common

district with one another (e.g., a multi-county congressional or state legislative or

judicial district), thus creating an equal-protection issue. See Dunn v. Blumstein,

405 U.S. 330, 336 (1972) (“[A] citizen has a constitutionally protected right to

participate in elections on an equal basis with other citizens in the jurisdiction.”)

(emphasis added); see also Bush, 531 U.S. at 109 (“The question before the Court


47

is not whether local entities, in the exercise of their expertise, may develop

different systems for implementing elections. …. When a court orders a statewide

remedy, there must be at least some assurance that the rudimentary requirements of

equal treatment and fundamental fairness are satisfied.”). Moreover, “[a] State

cannot deflect an equal protection challenge by observing that in light of the

statutory classification all those within the burdened class are similarly situated.

The classification must reflect pre-existing differences; it cannot create new ones

that are supported by only their own bootstraps. … Nor should it be allowed to

withstand scrutiny merely by observing that an individual may change

characteristics to fit within the favored class.” Jacobs, Visconsi & Jacobs, Co. v.

City of Lawrence, Kan., 927 F.2d 1111, 1118-19 (10th Cir. 1991) (citation and

quotation marks omitted).

For purposes of stating a claim, the First Amended Complaint and the First

Supplemental Complaint have satisfied the pleading requirements of Rule 12(b)(6).

See Santillanes, 546 F.3d at 1319 (“The injury in fact is the denial of equal

treatment. Although the City argues that the bases identified by the district court to

show injury are speculative or non-existent, the fact remains that the individual

Plaintiffs will still be required to present photo identification that must be accepted

if they vote in-person whereas those voting absentee will not.”) (citations omitted).

Accordingly, Citizen Center’s Fifth Claim alleges factual matter that, taken as true,


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sustains all the elements of a legally sufficient claim for deprivation of Citizen

Center’s affected members’ rights to equal protection under the Equal Protection

Clause.

VII. CONCLUSION

The final judgment of dismissal by the district court should be reversed and

this case remanded for further proceedings.

STATEMENT REGARDING ORAL ARGUMENT

Because certain issues presented by this case appear to be matters of first

impression in the Tenth Circuit, oral argument will be helpful to this Court.

Respectfully submitted this 15th day of August, 2013.

MCGUIRE BAINES LLC By: S/ Robert A. McGuire, III Robert A. McGuire, III Jeffrey D. Baines

Attorneys for Plaintiff-Appellant Citizen Center MCGUIRE BAINES LLC 1624 Market Street, Suite 202 Denver, Colorado 80202 Telephone: (303) 734-7175 Email: [email protected], [email protected]


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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

I hereby certify: 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 11,116 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman font. Date: August 15, 2013.

S/ Robert A. McGuire, III Robert A. McGuire, III Attorney for Plaintiff-Appellant Citizen Center MCGUIRE BAINES LLC 1624 Market Street, Suite 202 Denver, Colorado 80202 Telephone: (303) 734-7175 Email: [email protected]


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CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing: (1) all required privacy redactions have been made per 10th Cir. R. 25.5; (2) if required to file additional hard copies, that the ECF submission is an exact copy of those documents; (3) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Microsoft Security Essentials, and according to the program are free of viruses.



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CERTIFICATE OF SERVICE

I hereby certify that on August 15, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following email addresses:

David Patrick Ayraud [email protected] Gillian Dale [email protected] Jennifer Davis [email protected] Matthew D. Grove [email protected] David Evan Hughes [email protected] Thomas John Lyons [email protected] M. Brooke McKinley [email protected] LeeAnn Morrill [email protected] Writer Mott [email protected] William Glenn Ressue [email protected] Bryan Robert Treu [email protected] David Ryan Wunderlich [email protected] I hereby certify that on August 15, 2013, I have mailed or served the

foregoing by first class mail, postage pre-paid or by other consented means to the following:

None.




RAM

Typewritten Text

ATTACHMENT 1

DARLENE M. MARTINEZ, RMR, CRRUnited States District CourtFor the District of Colorado

1

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00370-CMA-MJW

CITIZEN CENTER, a Colorado nonprofit corporation,

Plaintiff,

v.

SCOTT GESSLER, a Colorado Secretary of State;SHEILA REINER, Mesa County Clerk & Recorder;SCOTT DOYLE, Larimer County Clerk & Recorder;PAM ANDERSON, Jefferson County Clerk & Recorder;HILLARY HALL, Boulder County Clerk & Recorder;JOYCE RENO, Chaffee County Clerk & Recorder; andTEAK SIMONTON, Eagle County Clerk & Recorder,

Defendants.__________________________________________________________

REPORTER'S TRANSCRIPT(Motions Hearing)

__________________________________________________________

Proceedings before the HONORABLE CHRISTINE M.ARGUELLO, Judge, United States District Court, for theDistrict of Colorado, commencing at 9:21 a.m. on the 21stday of September, 2012, Alfred A. Arraj United StatesCourthouse, Denver, Colorado.



2

A P P E A R A N C E S

FOR THE PLAINTIFF:ROBERT A. MCGUIRE, III and JEFFREY D. BAINES, McGuireBaines, LLC, 1624 Market Street, Suite 202, Denver, CO80202

FOR DEFENDANT SIMONTON:GILLIAN DALE and THOMAS J. LYONS, Hall & Evans, LLC, 112517th Street, Suite 600, Denver, CO 80202BRYAN R. TREU, Eagle County Attorney's Office, P.O. Box850, 500 Broadway, Eagle, CO 81631FOR DEFENDANT RENO:JENNIFER A. DAVIS, Chaffee County Attorney's Office , P.O.Box 699, 104 Crestone Avenue, Salida, CO 81202FOR DEFENDANT HALL:DAVID E. HUGHES, Boulder County Attorney's Office, P.O.Box 471, 1325 Pearl St., 5th Floor, Boulder, CO 80306FOR DEFENDANT GESSLER:MAURICE G. KNAIZER, MELODY MIRBABA and LEEANN MORRILLColorado Attorney General's Office-State Sevices, 1525Sherman Street, Denver, CO 80203FOR DEFENDANT PAM ANDERSON:WRITER MOTT, Jefferson County Attorney's Office100 Jefferson County Parkway, #5500, Golden, CO 80401


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SEPTEMBER 21, 2012

(Requested proceedings.)

THE COURT: All right. Well, I will tell you, this

is my concern. As a threshold matter, standing and

jurisdiction is a prerequisite to this Court's

jurisdiction. And my concern is, I'm not sure that the

plaintiff is going to be able to demonstrate that it has

standing.

Federal courts are courts of limited jurisdiction.

And my jurisdiction stems from Article III of the United

States Constitution. That Article allows me to hear only

"cases" or "controversies," and that means that there has

to be standing in this particular case.

Now, in this case, there are several varieties of

standing that have been argued; Article III, declaratory

judgment, prudential standing, organizational standing,

associational standing.

I am going to begin, I guess, to let you know my

thoughts with associational standing, both because it

appears to be the most applicable in this case, where

Citizen Center is representing the interest of its

members, and also because it effectively incorporates the

relevant inquiry for Article III standing.

An organization has associational standing to bring

suit on behalf of its members when its members would


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otherwise have standing to sue in their own right; the

interests that the organization seeks to protect are

germane to the organization's purpose; and neither the

claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.

Now, to show that the members would otherwise have

standing to sue in their own right, the organization must

show that its member could demonstrate the injury,

causation and redressability requirements derived from

Article III.

The first step is that the organization must show

that its member suffered an injury in fact, which is

defined as the invasion of a legally-protected interest,

which is concrete and particularized and actual or

imminent, not merely conjectural or hypothetical. Stewart

v. Kempthorne, K-E-M-P-T-H-O-R-N-E, 554 F.3d 535, Tenth

Circuit 2009.

Next, the organization must "demonstrate a causal

connection between the injury and the conduct."

And, finally, the organization must establish that

it is "likely, as opposed to merely speculative," that the

injury will be redressed by a favorable decision. And it

is the burden of the party invoking jurisdiction to

clearly allege facts demonstrating its standing. Warth v.

Seldin, 422 U.S. 490, 1975.


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Now, to a certain extent, I am going to have to get

into the merits of the case to try to determine the

injury-in-fact elements, because this is one those cases,

as Justice Brennan noted, matters relevant to the merits

will be "touched" during the standing determination. That

is Association of Data Processing Service Organizations,

Inc. v. Camp, 397 U.S. 159, 1970 case.

To determine whether the lack of absolute anonymity

in voting is a legally protected interest, such that its

invasion or violation could constitute an injury in fact,

the Court is going to have to look at each of the

different legal theories offered by the plaintiff. And I

am going to begin with plaintiff's federal claims. There

are essentially five federal claims posed by the

defendants.

The first claim is substantive due process,

infringement of fundamental right to vote. Second is

substantive due process, infringement of the First

Amendment rights to freedom of speech and association.

Third is the substantive due process, infringement of

fundamental right to secret ballot. Fourth is a

procedural due process claim, infringement of a

state-created liberty interest in voting by secret ballot.

And the fifth is an equal protection argument,

infringement of fundamental right to vote and rights to


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freedom of speech and association.

Now, at the outset, it is necessary to clarify what

is the nature of the plaintiff's first three claims,

because they're all styled as substantive due process

claims. Plaintiff asserts that "the due process clause is

referenced in the first two of those claims because

substantive due process incorporates the underlying

federal constitutional rights against deprivation by the

states."

Plaintiff thus argues that "Claims One and Two are

properly analyzed under the current framework applicable

to constitutional challenges to election laws set out in

Burdick v. Takushi 504 U.S. 428, 1992 and Anderson v.

Celebrezze, 460 U.S. 780, 1983." And, thus, really are

not due process claims.

Burdick cites Anderson for the "appropriate

standard for evaluating a claim that a state law burdens

the right to vote." However, the Court in Anderson

acknowledged that it relied "on the analysis in a number

of prior election cases applying the 'fundamental rights'

strand of equal protection analysis." So it's doing it in

the context of equal protection analysis, not due process.

Therefore, the Court understands plaintiff to be

relying on a "fundamental rights" equal protection

analysis for these claims and to have effectively


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withdrawn the asserted basis of substantive due process

with respect to these claims.

The Clerks point out that plaintiff's analysis

effectively leapfrogs over the first step, which is what I

came into this hearing with, that we first have to

determine whether a fundamental constitutional right is

implicated by the use of ballots in which it is possible

to trace the ballot to the person who completed it.

Plaintiff just assumes that a fundamental

constitutional right is implicated, and then dives

straight into the discussion of how the infringement of

such a "right" is to be weighed or evaluated under

Anderson. And proceeding in that way begs the question of

whether the deprivation the plaintiff complains of is a

legally protected federal interest to begin with.

In its First Amended Complaint, the plaintiff

asserts that a procedure that does not guarantee absolute

anonymity in voting violates the fundamental right to vote

because, effectively, some members of its organization may

end up not voting "because of the fear that their

individual voted ballot will not be a secret ballot, but

will instead be traceable to them personally and thus will

remain subject to being identified by government officials

and others at any time after an election as the particular

ballot cast by the voter personally." That is in Document


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No. 37, at page 23.

But, that outcome, even if it were to come to pass,

is a far cry from the fundamental rights claims that arise

in situations in which limitations have been placed on the

right to vote, and which have been found to be violations

of the fundamental right to vote, and that is an

infringement on the ability to cast a vote, such as was in

Harper v. Virginia Board of Elections, 383 U.S. 663, 1966,

which held the poll tax unconstitutional, or when

determination has to be made as to whether an individual's

vote should be counted at all. And that was Bush v. Gore,

531 U.S. 98, 2000.

In this case, I'm not convinced that the facts of

this case as alleged in the Plaintiff's Amended Complaint,

rises to the level of infringing upon the federal

fundamental right to vote. The facts of this case fall

far short of demonstrating problems with ballot box

access, disenfranchisement, or any other restriction of

the right to vote.

States are afforded a wide latitude in determining

how to manage election procedures, ACLU v. NM v.

Santillanes, S-A-N-T-I-L-L-A-N-E-S, 546 F.3d 1313, Tenth

Circuit, 2008. The Tenth Circuit has stated "common

sense, as well as constitutional law, compels the

conclusion that government must play an active role in


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structuring elections." American Constitutional Law

Foundation, Inc. v. Meyer, 120 F.3d 1092, on pages 1097

through -98, Tenth Circuit, 1997. Indeed, the power of

the States to "regulate their own elections" has been well

established. Burdick, 504 U.S. at 433.

In this case, the regulation or the actions of the

Secretary of State and the Clerks does not appear to

overstep federal constitutional protections of the right

to vote. And, if not, there is no invasion of a legally

protected interest. And, accordingly, on Claim One, it

seems to me that the plaintiff has failed to establish a

jurisdictional prerequisite of standing to bring that

claim.

With respect to its second claim, the infringement

of First Amendment rights to freedom of speech and

association, the Court doesn't see that that fares much

better. Plaintiff notes that the Supreme Court and,

correctly -- that "the Supreme Court has never addressed

whether the First Amendment protects the right to vote

anonymously." Thompson v. Dorchester County Sheriff's

Department, 280 Fed. Appx. 328. On page 329, note 2,

Fourth Circuit, 2008, stated "the Supreme Court has never

recognized secrecy in voting as a constitutionally

guaranteed right."

Plaintiff also correctly points out that, in a


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concurrence a 2010 free speech case, Justice Scalia gave a

well-reasoned explanation for his position that the First

Amendment does not protect the right to vote anonymously.

Doe v. Reed, 130 S. Ct. 2811, page 2834, 2010, with

Justice Scalia concurring.

After making these concessions, plaintiff then

pivots and asserts other courts have perceived the First

Amendment does protect the right to vote anonymously.

However, the cases plaintiff cites only indicate that a

person has a right to vote by secret ballot. And, more

specifically, that such ballot not be publicly disclosed.

See, for example, Anderson v. Mills, 664 F.2d 600, at page

608, Sixth Circuit, 1981 case.

But the issue the plaintiff raises in this suit is

not whether there is a right to vote by secret ballot,

but, rather, whether there is a right to vote by a ballot

that cannot be traceable to the voter even by the County

Clerk that records that vote.

And, perhaps, as the Clerks have suggested, the

problem is that the plaintiff and defendants simply

disagree on what constitutes a "secret ballot."

Plaintiff's position is that a ballot voted in private,

and never publicly disclosed, is not a "secret ballot,"

because the County Clerk could potentially trace it back

to the voter. That does not sufficiently convey an injury


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in fact, because it fails to demonstrate that plaintiff's

position is a legally protected one.

Perhaps, more problematic for plaintiff, is that it

fails to convince this Court that the defendants'

production or use of traceable ballots regulates or

impinges the right to speech or the right to association

at all. See Initiative & Referendum Institution v.

Walker, 450 F.3d 1082, Tenth Circuit, 2006, holding that

an initiative requirement which "deterred wildlife

advocates from threatening to launch a petition" and

"cowed proponents of initiatives on other subjects" did

not "regulate speech."

Accordingly, the plaintiff has failed to meet its

burden of demonstrating that it has experienced, or soon

will experience, an injury in fact based on its freedom of

speech rights, the Court is without jurisdiction to

adjudicate this claim.

Plaintiff stipulates that, as titled in its First

Amended Complaint, at its third claim, which is premised

on the "infringement of the fundamental right to secret

ballot," is actually a substantive due process claim.

The Supreme Court has described two types of

substantive due process protections. One, "protects an

individual's fundamental liberty interests, while the

other protects against the exercise of governmental power


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that shocks the conscience." Seegmiller v. Laverkin City,

528 F.3d 762, page 767, Tenth Circuit, 2008.

Plaintiff's First Amended Complaint clearly raises

the first type of substantive due process protection. For

such a claim, the Clerks assert, and plaintiff does not

dispute, and this Court agrees, that the analysis requires

two steps. First, the Court must carefully describe the

asserted fundamental liberty interest. That is from

Seegmiller, at page 769.

Second, the Court must decide "whether the asserted

liberty interest, once described, is 'objectively, deep

rooted in this Nation's history and tradition, and

implicit in the concept of ordered liberty, such that

neither liberty nor justice would exist if they were

sacrificed.'" That is also taken from Seegmiller, at page

769.

As to the first step, the Court agrees with the

Clerks that "the interest Citizen Center asserts is a

future election process that makes it impossible for an

elected clerk to determine how a particular voter cast his

or her vote."

As to the second step, plaintiff asserts that it

validly pled that the right to use a secret ballot is

deeply rooted in this Nation's history and traditions and

implicit in the concept of ordered liberty. But


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plaintiff's pleading burden is that it must plead facts

that could plausibly entitle it to relief under the

prevailing law.

Even under the very favorable review that a

plaintiff's complaint receives at the motion to dismiss

stage, the Court "is not bound to accept as true a legal

conclusion couched as a factual allegation." Bell

Atlantic Corp v. Twombly, 550 U.S. 554, 2007. The fact

that plaintiff alleges there to be a fundamental right to

a secret ballot at the federal level does not make it so.

As with its previous claim, plaintiff encounters a

definitional problem in its claim for infringement to the

"fundamental right" to a secret ballot. Plaintiff cites

cases that it asserts stand for the right, or at least a

mention, if it is in dicta, to use a secret ballot. But

even if those cases support such a proposition, the Clerks

correctly observe that the parties disagree on what

constitutes a "secret ballot."

Regardless, the Court agrees with the Clerks that

"the applicable law demonstrates that there is no

fundamental interest in an election procedure that makes

it impossible for an elected clerk to determine how a

particular voter cast his or her vote."

Whatever difficulties there might be in reconciling

constitutional cases in this area, it is clear to the


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Court that plaintiff's position is not supported by

adequate authority and, thus, the right it argues for is

not a fundamental federal right.

Indeed, the way in which plaintiff phrases its

statement that it "identifies this fundamental right for

recognition" is somewhat telling. To find that plaintiff

suffers an invasion of a legally protected interest on

this claim would require the Court to recognize a new

fundamental right. This Court declines to do so, heeding

the Supreme Court's admonition to use the "utmost care"

when "breaking new ground" in the area of fundamental

rights. Especially in the absence of more persuasive

authority, this Court is not inclined to extend the

federal Constitution's substantive due process protection

to cover the right asserted here.

In addition, plaintiff's claim faces a problem

brought about by tension it creates within the

injury-in-fact analysis. On the one hand, plaintiff is

understandably hesitant to plead its claim as alleging

that the ballots of its members might be actually traced

by someone at some point in time, because such pleading

would connect better with the cases plaintiff cites, many

of which deal with the actual and public disclosure of

identifying information on a ballot.

That sort of pleading, however, runs squarely into


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the problem of asserting an interest that is conjectural

or hypothetical and not actual or imminent. Plaintiff's

First Amended Complaint contains no allegations that any

of its members have had their votes publicly disclosed,

only that such disclosure is possible.

In order to assert something that is more actual or

imminent; in other words, that the creation of ballots

which can, but may very well not, be traced, plaintiff

ends up pleading facts to which there is no corresponding

legal protection under a fundamental rights analysis.

Therefore, again, without any legal protection for

the "injury" asserted, plaintiff has not established

standing for this particular claim.

Plaintiff's fourth claim is that it has experienced

an infringement of a state-created liberty interest in

voting by secret ballot. A determination of whether

plaintiff has articulated an invasion of a legally

protected interest for this claim, requires a brief

discussion of the Colorado Constitution and related state

law.

The analysis concerning the identification of a

State-created liberty interest "parallels the accepted due

process analysis as to property." Wolff v. McDonnell,

M-C-D-O-N-N-E-L-L, 418 U.S. 539, 557, 1974.

Whether an interest created by state law rises to


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the level of a "liberty interest" protected by the due

process clause of the Fourteenth Amendment is a matter of

federal law. Montero v. Meyer, 13 F.3d 1444, Tenth

Circuit, 1994. However, the scope of a claimed

state-created liberty interest is determined by reference

to state law. Bishop v. Wood, 426 U.S. 341, 1976.

To determine whether or not the due process

requirements apply, the Court looks not to the weight, but

to the nature of the interest at stake. Board of Regents

of State Colleges v. Roth, 408 U.S. 564, 1972. In

O'Bannon v. Town Court Nursing Center, 447 U.S. 773, at

page 800, 1980 case, the Supreme Court stated: When

governmental action affects more than a few individuals,

concerns beyond economy, efficiency, and expedition tip

the balance against finding that due process attaches. We

may expect that as the sweep of governmental action

broadens, so too does the power of the affected group to

protect its interest outside rigid constitutionally

imposed procedures."

Moreover, although "a liberty interest is of course

a substantive interest of an individual, it cannot be the

right to demand needless formality." Shango v. Jurich,

681 F.2d 1091, on pages 1100-1101, Seventh Circuit 1982.

Where a rule of conduct applies to more than a few

people, it is impracticable that everyone should have a


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direct voice in its adoption. The Constitution does not

require all public acts to be done in a town meeting or an

assembly of the whole. There must be a limit to

individual argument in such matters if the Government is

to go on." Bi-Metallic Investment Company v. State Board

of Equalization, 239 U.S. 441, page 445, a 1915, U.S.

Supreme Court case.

Beyond this recognition that due process is less

likely to attach as the Government's action, as here,

affects increasingly more people, the Supreme Court has

further narrowed this analysis. "To have a liberty

interest in a benefit, a person clearly must have more

than an abstract need or desire for it. He must have more

than a unilateral expectation of it, he must, instead,

have a legitimate claim of entitlement to it." Roth, 408

U.S., at 577.

The Tenth Circuit in Montero gave some examples

that are instructive. First, when a state creates in its

citizens the right to operate a vehicle on the highway by

issuing drivers' licenses, it also creates in the driver a

legitimate expectation to continue to operate the vehicle,

and the state may not withdraw this right from an

individual without giving him due process." That is Bell

v. Burson, 40 U.S. 535, 1971.

Similarly, if a state gives a parolee the right to


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be at liberty as long as he complies with the requirements

of his parole, the state has created in the individual a

legitimate right to his freedom, and the state may not

withdraw the conditions of his parole without affording

him procedural due process. Morrissey v. Brewer, 408 U.S.

471, 1972.

In those cases, a legitimate right to an

entitlement created by state law was terminated by state

action. As the Tenth Circuit stated in Montero, "it is

this termination of a right previously afforded by the

state and in which there is a legitimate claim of

entitlement which invokes the procedural guarantees

contained in the Due Process Clause of the Fourteenth

Amendment." 13 F.3d at 1447 through -48.

The fact which distinguishes why certain state

provisions have been found to create liberty interests

entitled to due process protection while others have not

is based upon the language of the provisions themselves.

Kentucky Department of Corrections v. Thompson, 490 U.S.

454, 1989. Thus, this Court must examine the relevant

Colorado constitutional provision to determine whether

plaintiff has a legitimate claim of entitlement to

absolute anonymity in voting.

Article VII, Section 8 of the Colorado Constitution

provides, in pertinent part, that: "All elections by the


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people shall be by ballot. And, in case paper ballots are

required to be used, no ballots shall be marked in any way

whereby the ballot can be identified as the ballot of the

person casting it."

However, that section also goes on to state that:

"The election officers shall be sworn or affirmed not to

inquire or disclose how any elector shall have voted. In

all cases of contested election in which paper ballots are

required to be used, the ballots cast may be counted and

compared with the list of voters, and examined under such

safeguards and regulations as may be provided by law.

Nothing in this section, however, shall be construed to

prevent the use of any machine or mechanical contrivance

for the purpose of receiving and registering the votes

cast at any election, provided that secrecy in voting is

preserved."

Plaintiffs assert that "this provision of the

Colorado Constitution provides for absolute anonymity of

voted ballots." The Clerks, on the other hand, assert

that the provision only prohibits the public disclosure of

traceable ballots.

In interpreting a constitutional provision, the

Court employs the same set of construction rules

applicable to statutes. The Court starts with the plain

meaning of the language of the relevant provision. But


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the Court also reads applicable provisions as a whole.

This method of interpretation is employed by

Colorado state courts. Garcia-Martinez v. City & County

of Denver, 392 F.3d 1187, Tenth Circuit, 2004. In re

Midpoint Development, LLC, 466 F.3d 1201, Tenth Circuit,

2006. And Danielson v. Dennis, 139 F.3d 688, Colorado,

2006. I start with the words, giving them their plain and

commonsense meaning, and then I read the applicable

provisions as a whole, harmonizing them if possible.

In this case, Section 8 begins by stating that "no

ballots shall be marked in any way whereby the ballot can

be identified as the ballot of the person casting it."

The provision does not, however, specify who is prohibited

from identifying the ballot.

There would perhaps be no issue with the failure of

the provision to identify who is prohibited from

identifying the ballot as the ballot of the person casting

it, except that subsequent provisions, which the Court

seeks to harmonize with this provision, indicate that the

election officers are not prohibited from identifying the

ballot.

The Clerks argue, and the Court agrees, that the

provision "the election officers shall be sworn or

affirmed not to inquire or disclose how any elector shall

have voted," presumes that, and thereby implicitly


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approves of, the election officers in at least some

situations knowing how a person voted.

Otherwise, such disclosure would not need to be

prohibited and, indeed, the "sworn and affirmed"

requirement would be mere surplusage. EEOC v. Continental

Oil Company, 548 F.2d 884, the Tenth Circuit, in 1977,

said "interpretation which would render terms surplusage

should be avoided." Accordingly, the better

interpretation is that the proscription on identification

is meant to apply to public identification.

This analysis is supported by the recent Colorado

Court of Appeals decision in Marks v. Koch, 2011 West Law

4487753, September 29, 2011, Colorado appellate decision.

In Marks, a Division of the Court of Appeals, addressed

the phrase "secrecy in voting," as used in Section 8. In

its decision, the Division noted that, under the Colorado

Constitution:

"The identity of an individual voter, and any

markings on the ballot that could identify that voter, are

to be kept secret." "An individual voter's identity is to

be protected from public disclosure, because this

clause --" referring to the sworn or affirmed clause

"-- coincides with the election officials' viewing of the

marked ballots."

The Court of Appeals actually held that "the phrase


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'secrecy in voting,' when read in conjunction with the

section's other clauses, protects from public disclosure

the identity of an individual voter and any content of the

voter's ballot that could identify the voter."

After the Marks opinion came down, the Colorado

Supreme Court granted cert. Ordinarily, such an

occurrence would cause this Court to exercise Pullman

abstention, which is a doctrine borne out of comity and

federalism concerns and based on the principle that

unsettled questions of state law should be resolved by the

state court before a substantial federal question can be

decided.

But, after granting cert, the State Supreme Court

withdrew it as having been improvidently granted. As

such, Marks is now binding precedent on Colorado trial

courts. This Court agrees with the analysis and

conclusion in Marks and follows them here.

In further support of the Clerk's position is the

reason why the Colorado Supreme Court withdrew its cert in

Marks. On June 7, 2012, Colorado House Bill 12-1036 was

signed into law. The bill addresses how to preserve

secrecy in voting while also allowing the inspection of

ballots as public records under the Colorado Open Records

Act.

The new language is codified at Colorado Revised


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Statutes 24-72-205.5. Among other things, the new

provision requires County Clerks to, one, review all

ballots to determine if they are individually

identifiable. And, two, withhold from public inspection,

or redact those ballots that may be identifiable.

Such language conveys to the Court recognition by

the Colorado General Assembly that the Colorado

Constitution does not prohibit ballots from being

individually identifiable but, rather, prohibits

individually identifiable ballots from being publicly

disclosed.

Moreover, the other cases plaintiff cites to

support its argument that the Colorado Constitution

provides for absolute anonymity in voting does not

substantiate the proposition. Both Mahaffey v. Barnhill,

855 P.2d 847, Colorado, 1993, and Taylor v. Pile, 391 P.2d

670, Colorado, 1964, addressed the right not to be

compelled to publicly disclose how one voted. People ex

rel. Barton v. Londoner, 22 P. 764, Colorado, 1889,

involved a constitutional provision that required the

numbering of ballots.

Accordingly, the Colorado Constitution does not

create a legitimate entitlement to absolute anonymity in

voting. Thus, the desire for absolute anonymity in voting

does not rise to the level of a "liberty interest" under


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federal law.

Without a liberty interest to which due process

protections are applicable, the Court has no occasion to

consider the level of process offered by the plaintiff.

Couture v. Board of Education, 535 F.3d 1243, Tenth

Circuit, 2008.

As such, federal due process law does not recognize

an invasion of a legally protected interest in the Clerk's

usage of traceable ballots. Thus, plaintiff has not met

its burden of establishing the jurisdictional requirement

of standing for this claim.

Plaintiff's fifth claim is brought under the Equal

Protection Clause, and is for the infringement of the

fundamental right to vote and rights to freedom of speech

and association.

As of the 1950s, and beginning with Brown v. Board

of Education, 347 U.S. 483, 1954, which held

unconstitutional public school segregation. The Supreme

Court has used the Equal Protection Clause in both the

area of fundamental rights, and also to address laws that

discriminate as to who can exercise a given right.

It is well settled that a law may violate the Equal

Protection Clause if the law infringes upon a fundamental

right. However, if a right is fundamental, the Supreme

Court generally treats it as such for both due process and


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equal protection purposes.

As the great Erwin Chemerinsky has said,

"relatively little depends on whether the Court uses due

process or equal protection as the basis for protecting a

fundamental right." That is from his Constitutional Law,

793, Aspen, 2006 publication. The reason is that under

either doctrine, a fundamental right, if it is found to

exist, merits strict scrutiny review.

Additionally, when a challenge under one doctrine

is successful, a challenge under the other one will likely

be, as well. See Carey v. Population Services

International, 431 U.S. 678, 681, 1997, which invalidated

a contraception ban on due process grounds. Eisenstadt v.

Baird, 405 U.S. 438, 1972, invalidating contraception ban

on equal protection grounds.

Conversely, if one fails, generally so does the

other. A prime example of this eventuality is illustrated

by two cases cited by plaintiff: Washington v.

Glucksberg, G-L-U-C-K-S-B-E-R-G, 521 U.S. 702, 1997, and

its companion case and Vacco, V-A-C-C-O, v. Quill 521 U.S.

793, 1997.

In Glucksberg, the Supreme Court upheld a state ban

on physician-assisted suicide on due process grounds. And

in Quill the Court upheld the same ban on equal protection

grounds.


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Plaintiff's first two claims, for the infringement

of the fundamental right to vote, claim one, and for

rights to freedom of speech and association, claim two,

respectively, mirror the fifth claim, except that the

former ones were brought as "due process" claims, whereas

this claim is brought under the Equal Protection Clause.

Given the substantially similar treatment of

fundamental rights, as between these two theories, and

especially given plaintiff's heavy reliance on its first

two claims on cases applying the fundamental rights strand

of equal protection analysis, there is no reason for the

Court to walk through its analysis again.

For the reasons previously given, absolute

anonymity in voting is not a fundamental right under the

United States Constitution and, therefore, it is not a

legally protected interest, the invasion of which could

provide for plaintiff's standing under this claim.

Plaintiff's claims really fare no better under a

traditional equal protection analysis. As the Clerks

observe, the touchstone inquiry under a classic equal

protection analysis is whether similarly-situated persons

were treated differently. Bruner v. Baker, 506 F.3d,

1021, Tenth Circuit, 2007 case.

In this case, plaintiff does not identify any voter

that is treated differently than any other voter, because


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all voters within a given county are, as the clerk put it,

"exposed to a uniform set of choices regarding when to

vote, where to vote, what methodology they will use to

vote, and how votes will be tabulated."

Plaintiff responds that "voters residing in

altogether different counties may still reside in a common

district with one another." And that "a citizen has a

constitutionally protected right to participate in

elections on an equal basis with citizens in the

jurisdiction." Citing to Dunn v. Blumstein, 405 U.S. 330,

1972.

But if plaintiff means to equate "district" with

"jurisdiction," it provides no authority for so asserting.

And nor is this Court aware of any case which equates the

two. Given that plaintiff's complaint is aimed at the

ballot designs put in place by County Clerks, the county

appears to be the relevant jurisdiction for plaintiff's

equal protection claim.

Further, the residency requirement that was at

issue in Dunn was established by state law. In the

instant case, plaintiff targets a procedure set up by

counties. Whereas in Dunn, voters within the state were

treated differently than each other based on whether they

had met the residency requirement. In this case, voters

within a county are treated the same as far as the


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traceability of their ballots go.

In any event, the underlying concern in the cases

plaintiff cites is that there be "assurance that the

rudimentary requirements of equal protection and

fundamental fairness are satisfied." Bush v. Gore, 531

U.S. 98, 2000. Here, as previously stated, there is no

actual or imminent restriction on voter access by virtue

of a county's ballot being potentially traceable and,

thus, no invasion of a legally protected interest.

Based on this analysis, the Court finds that

plaintiff has failed to meet its burden of demonstrating

it has associational standing. Its members would not have

standing to sue in their own right because they cannot

satisfy Article III's injury-in-fact requirement. Put

simply, absolute anonymity in voting is not a legally

protected interest under the federal theories that

plaintiff has pursued.

As a result, the Court need not address the "causal

connection" and "redressability" requirements for Article

III standing, nor the other standing doctrines or the

Clerk's arguments on the merits of the case, including its

assertion that plaintiff has failed to state a claim for

declaratory or injunctive relief.

Without plaintiff having established standing, this

Court lacks jurisdiction to proceed on plaintiff's federal


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claims, and inquires no further into plaintiff's

likelihood of success on the merits of such claims or

whether the remaining preliminary injunction factors are

satisfied.

Accordingly, as to the Secretary of State, no

claims remain in light of plaintiff's concession that its

state-law claims against him are barred by the Eleventh

Amendment. Further, because the Court's disposition of

the standing issue means, essentially, that there is no

Article III case or controversy, the Court cannot exercise

supplemental jurisdiction, under 28 U.S.C. Section

1367(a), over plaintiff's remaining state-law claims

against the Clerks.

Now, as I indicated, analysis of plaintiff's

procedural due process claim did require this Court to

discuss the Colorado Constitution case law and the

recently passed House Bill. However, that analysis was

only for purposes of attempting to identify a

state-created liberty interest in absolute anonymity in

voting, and whether such an interest exists is a matter of

federal law, not state law.

Further, whether Colorado courts would offer

plaintiff greater due process or equal protection under

the Colorado Constitution than is available to it under

the Federal Constitution is a question that, for reasons I


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have already stated, this Court cannot answer.

The Court notes that, despite the often

co-extensive coverage of the United States and Colorado

Constitutions, Colorado's Due Process and Equal Protection

Clauses have been interpreted more broadly than their

federal analogs on other occasions. And that will be a

matter, if plaintiff wishes to take this up in state

court.

For these reasons, it is ordered that Plaintiff's

Motion for a Temporary Retraining Order and Preliminary

Injunction against Defendants Reno, Simonton, Hall and

Gessler are denied as moot, because this Court has no

jurisdiction.

The Secretary's Rule 12(b)(1) Motion to Dismiss is

granted.

The County Clerk's Joint Motion to Dismiss is

granted in part, to the extent that it seeks dismissal

under Rule 12(b)(1), and otherwise denied as moot.

Any other matters that are currently pending are

denied as moot.

Plaintiff's request for leave to amended is denied.

Although each party shall bear their own attorney

fees, defendant shall have their costs by the filing of a

Bill of Costs with the Clerk of the Court within 10 days

after entry of Judgment. And this case is dismissed.


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Is there anything further?

MR. MCGUIRE: Nothing from us, Your Honor.

MR. HUGHES: No, Your Honor.

THE COURT: All right. Court will be in recess.

(Court is in recess at 10:05 a.m.)

R E P O R T E R ' S C E R T I F I C A T E

I, Darlene M. Martinez, Official Certified

shorthand Reporter for the United States District Court,

District of Colorado, do hereby certify that the foregoing

is a true and accurate transcript of the proceedings had

as taken stenographically by me at the time and place

aforementioned.

Dated this 6th day of October, 2012.

_____________________________

s/Darlene M. Martinez

RMR, CRR



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ATTACHMENT 2

From: [email protected]: [email protected]: Activity in Case 1:12-cv-00370-CMA-MJW Citizen Center v. Gessler et al Order on Motion to DismissDate: Monday, September 24, 2012 1:25:15 PM

This is an automatic e-mail message generated by the CM/ECF system.Please DO NOT RESPOND to this e-mail because the mail box isunattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the UnitedStates policy permits attorneys of record and parties in a case (includingpro se litigants) to receive one free electronic copy of all documents filedelectronically, if receipt is required by law or directed by the filer. PACERaccess fees apply to all other users. To avoid later charges, download acopy of each document during this first viewing. However, if thereferenced document is a transcript, the free copy and 30 page limit donot apply.

U.S. District Court

District of Colorado

Notice of Electronic Filing

The following transaction was entered on 9/24/2012 at 1:24 PM MDT and filed on9/21/2012 Case Name: Citizen Center v. Gessler et alCase Number: 1:12-cv-00370-CMA-MJWFiler:Document Number: 117(No document attached)

Docket Text: MINUTE ENTRY for proceedings held before Judge Christine M. Arguello:Motion Hearing held on 9/21/2012. MOTIONS: Denying as moot [100] Plaintiff'sMotion for Temporary Restraining Order and Preliminary Injunction againstDefendants Reno, Simonton, Hall and Gessler; granting in part and denying inpart as moot [44] County Clerks' Joint Motion to Dismiss First AmendedComplaint. Any other matters that are currently pending are denied as moot.Plaintiff's request for leave to amend the complaint is denied. Each party shallbear its own attorney fees. Defendants are awarded their costs and shall file abill of costs within ten day after the entry of judgment. Case is dismissed.(Total time: 1:33, Hearing time: 8:32-10:05)

APPEARANCES: Robert McGuire, Jeffrey Baines on behalf of the plaintiff,Writer Mott on behalf of Pam Anderson, David Hughes on behalf of Hillary Hall,Lee Ann Morrill, Melody Mirbaba, Hilary Rudy on behalf of the defendant. ALSOPRESENT: Marilyn Marks, Hillary Hall. Court Reporter: Darlene Martinez.(cmacd) Text Only Entry

1:12-cv-00370-CMA-MJW Notice has been electronically mailed to:


mailto:[email protected]

mailto:[email protected]

https://ecf.cod.uscourts.gov/cgi-bin/DktRpt.pl?131425


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ATTACHMENT 3

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO


CITIZEN CENTER,

Plaintiff,

v.

SCOTT GESSLER, in his official capacity as Colorado Secretary of State, SHEILA REINER, in her official capacity as Mesa County Clerk & Recorder, SCOTT DOYLE, in his official capacity as Larimer County Clerk & Recorder, PAM ANDERSON, in her official capacity as Jefferson County Clerk & Recorder, HILLARY HALL, in her official capacity as Boulder County Clerk & Recorder, JOYCE RENO, in her official capacity as Chaffee County Clerk & Recorder, TEAK SIMONTON, in her official capacity as Eagle County Clerk & Recorder,

Defendants.

FINAL JUDGMENT

In accordance with the orders filed during the pendency of this case, and

pursuant to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered.

Pursuant to the Order of the court at the motions hearing held before the

Honorable Christine M. Arguello on September 21, 2012, and as reflected in the text-

only Minute Entry for Proceedings, it is

ORDERED the case is dismissed due to lack of standing. Each party shall bear

its own attorney fees. Defendants are awarded their costs and shall file a bill of costs

within ten days after the entry of judgment.

DATED at Denver, Colorado this September 25th, 2012.

FOR THE COURT:JEFFREY P. COLWELL, CLERK

By: s/ Edward P. Butler Edward P. Butler, Deputy Clerk

Case 1:12-cv-00370-CMA-MJW Document 118 Filed 09/25/12 USDC Colorado Page 1 of 1



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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Judge Christine M. Arguello


CITIZEN CENTER, a Colorado nonprofit corporation,

Plaintiff,

v.

SCOTT GESSLER, in his official capacity as Colorado Secretary of State,SHEILA REINER, in her official capacity as Mesa County Clerk & Recorder,SCOTT DOYLE, in his official capacity as Larimer County Clerk & Recorder,PAM ANDERSON, in her official capacity as Jefferson County Clerk & Recorder,HILLARY HALL, in her official capacity as Boulder County Clerk & Recorder,JOYCE RENO, in her official capacity as Chaffee County Clerk & Recorder, andTEAK SIMONTON, in her official capacity as Eagle County Clerk & Recorder,

Defendants.

ORDER GRANTING PLAINTIFF’S MOTION TO CLARIFY

This matter is before the Court on Plaintiff’s Motion for Clarification of Final

Judgment. (Doc. # 141.) Essentially, Plaintiff seeks assurance from this Court that the

Final Judgment (Doc. # 118) entered in this case “is, in fact, a final judgment subject to

the appellate jurisdiction of the United States Court of Appeals for the Tenth Circuit.”

(Doc. # 141 at 4.) Plaintiff’s concern stems from the absence of an explicit mention of

its First Supplemental Complaint for Declaratory and Injunctive Relief (Doc. # 88) in:

this Court’s September 21, 2012 oral ruling (see Doc. # 125 at 30); the minute entry that

followed the Court’s ruling (Doc. # 117); or the Final Judgment entered on September

25, 2012 (Doc. # 118). As Plaintiff notes, however, all three docket entries state that the

case was dismissed in its entirety. Moreover, and to quell Plaintiff’s lingering concern,



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the Court notes that its ruling – and, thus, the subsequent docket entries – encompass

Plaintiff’s First Supplemental Complaint, which the Court considered, along with all of

the other filings in this case, before issuing its ruling.

Accordingly, Plaintiff’s Motion for Clarification of Final Judgment (Doc. # 141) is

GRANTED, and the Final Judgment is hereby CLARIFIED so that the parties, and the

Tenth Circuit Court of Appeals, are aware that this case truly has been DISMISSED

IN ITS ENTIRETY.

DATED: November 27 , 2012

BY THE COURT:

_______________________________CHRISTINE M. ARGUELLOUnited States District Judge




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