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Media Alerts - Citizen Center v. Gessler- Tenth Circuit
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October 26, 2014
  Citizen Center v. Gessler- Tenth Circuit
Headline: Tenth Circuit holds that non-profit organization may bring suit against Colorado Secretary of State for violation of members' constitutional rights arising from use of traceable ballots

Areas of Law: Constitutional Law

Issues Presented:

1. Should Citizen Center's claims that traceable ballots violated members' constitutional rights be dismissed for mootness after the voting procedures in Colorado were changed?
2. Should Citizen Center's claims that traceable ballots violated members' constitutional rights be dismissed for lack of standing?
3. Did Citizen Center sufficiently state a claim against the clerks when they failed to allege that the clerks discriminated against voters because voting procedures varied by county?

Brief Summary:

Colorado non-profit Citizen Center brought suit against the Secretary of State and clerks from five Colorado counties, alleging that the use of traceable ballots violated their rights to voting, free speech and association, substantive due process, procedural due process and equal protection. After addressing the mootness and standing challenges raised by the defendants, the court held that the first amended complaint failed to state a valid claim against the clerks, but that a valid claim remained against the Secretary of State for federal equal protection and procedural due process claims.

Extended Summary:

Election officials in six Colorado counties had the ability to potentially learn how individuals voted because ballots were traceable in May, 2012. Colorado non-profit organization Citizen Center sued the Secretary of State and the clerks from five of the six counties, stating that the use of traceable ballots violated the constitutional rights of members. Citizen Center alleged that the ballots violated members' constitutional rights involving voting, free speech and association, substantive due process, equal protection and procedural due process. Citizen Center also alleged violations of the Colorado Constitution.

Defendants moved to dismiss for lack of standing, and alternatively, for failure to state a claim. The district court dismissed the complaint on standing grounds, and Citizen Center appealed. On appeal, three issues were considered: (1) mootness, (2) standing, and (3) sufficiency of the allegations against the clerks under Federal Rule of Civil Procedure 12(b)(6). The majority ruled that (1) the claims were partially moot due to new regulations banning some of the challenged regulations; (2) Citizen Center had standing on the equal protection and procedural due process claims, but that the injury is too speculative for standing on the other claims; and (3) The first amended complaint failed to state a valid claim against the clerks for denial of equal protection or procedural due process. Thus, the only claim that remained was the claim against the Secretary of State for denial of equal protection and procedural due process.

The ballots at issue had unique barcodes, and some of them may be unique among those cast on an electronic voting machine, and some were unique within a batch of ballots. Unique barcodes were used in three of the counties and could identify the ballot as belonging to a specific voter. For those that were unique among those cast on an electronic-voting machine, officials could record the date of voting, the machine's identifier, and the precinct number or type of ballot used by the voter. If compared with other data, election officials could trace a ballot when it was unique among the ballots cast on a specific voting machine. These ballots were used in all six counties. Finally, for the ballots that could be unique within a single batch, a batch sheet listing names, voter identification numbers, precinct numbers, ballot styles and other information were included. Due to the small size of the batches, some of the ballots could have been unique, and election officials may have been able to trace a ballot by comparing it to information on the batch sheet on some occasions. Four of the counties used this method.

Citizen Center alleged that the ballots' traceability subjected members to fear that they might be identified by government officials and thus limited their ability to freely exercise their fundamental right to vote. Further, Citizen Center alleged that the election procedures "substantially burden, infringe and chill" the members' constitutional rights to vote, engage in free speech and association, enjoy substantive and procedural due process and equal protection.

Colorado election officials are banned from disclosing how any elector voted, and all mail ballots have secrecy envelopes to prevent officials from learning how a citizen voted. Citizen Center argued that the election officials in three counties traced the ballots or failed to safeguard the secrecy of the voters' ballots. In Mesa and Larimer Counties, the ballots of public officials were traced and publicized, and in Jefferson County, the electoral choices of 30 voters were published for 1.5 years.

The court noted that the Secretary of State changed its voting regulations, which now prohibit counties from printing ballots with unique numbers or barcodes; require counties that use rotating numbers to print at least ten ballots of each ballot style for each number; and direct county clerks to "dissociate any batch number that could trace a ballot back to the specific voter who cast it from the counted ballots not later than the final certification of the abstract of votes cast." Defendants argued that the action was moot because (1) only the 2012 procedures were challenged and that election had passed; (2) the Secretary of State adopted new regulations and; (3) the action was prudentially moot (the court explained that a case is prudentially moot if "circumstances [have] changes since the beginning of the litigation that forestall any occasion for meaningful relief." S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997)).

The court began by addressing the mootness issue over standing issues. It noted that a live controversy was required in order to establish federal jurisdiction. The court held that the passing of the 2012 election did not render Citizen Center's claim moot because it was not trying to enjoin the use of traceable ballots for just the 2012 election, but for all future elections as well.

The court stated that the new regulations moot only Citizen Center's challenges to the use of unique numbers and barcodes and the use of a unique ballot within a batch after final certification of a vote. The court noted that even if ten copies of every ballot style are used, some ballots may remain traceable because they could still be unique when cast on a voting machine or within a batch before final certification.

The court rejected Citizen Center's argument that the voluntary-cessation exception to the mootness doctrine should apply. The court explained that voluntary cessation rarely works because a party should not be allowed to temporarily change behavior in order to avoid judicial review. In the present case, however, the government has not openly expressed the intent to reenact the repealed regulation, and the clerks have not threatened to ignore the new regulations.

The court then stated that the doctrine of prudential mootness does not apply to the part of the case that otherwise survives. The regulatory changes did not completely eliminate the threat of traceable ballots when voters use unique numbers or barcodes and they are unique in a batch prior to certification. Thus, because a judgment for Citizen Center could give meaningful relief, the prudential mootness doctrine did not apply.

The majority then addressed the issue of standing, reviewing the district court's decision de novo. In order to have constitutional standing there must be (1) injury in fact; (2) causation; and (3) redressability. Citizen Center's members must have standing to sue in their own right for Citizen Center to be able to pursue its claims.

The Secretary of State argued that Citizen Center failed to proffer any members who were harmed, but the court stated that it would conclude that Citizen Center satisfied its burden of identifying members who were harmed by providing affidavits from eleven individuals who were harmed by the traceable ballots.

The court then addressed injury in fact, rejecting the district court's rationale that there was no injury in fact because absolute anonymity is not a "legally protected federal interest." The court noted that for standing purposes, it must assume that each claim is legally valid and must not address the merits of the claim with standing. The plaintiffs must, however, have a legal right to do what they claim is being infringed. The court addressed Citizen Center's theories of injury and determined that they did not support standing.

First, the risk that election officials could determine how a member voted did not constitute an injury in fact because the risk was speculative. The majority noted that safeguards in the Colorado Constitution prevented this from happening and noted that Citizen Center did not allege that its members were among those whose ballots were actually traced and did not allege that election officials were likely to trace members' ballots. The court stated that the two cases relied upon by Citizen Center, Gredinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), and Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), were distinguishable. Greidinger was distinguishable because the plaintiff in that case was denied the right to vote, whereas in the present case, the argument was that the use of traceable ballots discouraged voting. Stewart was distinguishable because in that case, it was inevitable that mistakes in voting would be made, whereas here, Citizen Center cannot say that the votes of members would inevitably be traced.

The court also rejected Citizen Center's argument that injury in fact arises from the chilling effect that the traceable ballots may have on its members. The court noted that the Supreme Court has held that a chilling effect does not create an injury in fact, citing Laird v. Tatum, 408 U.S. 1, 13-14 (1972). It also cited Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc), in which the court required the plaintiffs to present evidence that they actually intended to refrain from the activity in question. In the present case, Citizen Center has not provided evidence that members intend to refrain from voting because their ballots might be traced. In fact, members stated that they do intend to continue voting in spite of this possibility. The court held that the chill was too speculative to constitute an injury in fact.

With respect to the equal protection claims, the court held that Citizen Center sufficiently pled an injury in fact that there was an unequal imposition of the risk that a traceable ballot could reveal how a member voted, based on where the voter lives. The court referred to American Civil Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313 (10th Cir. 2008), where the court held that in-person voters could challenge the requirement that in person voters had to present a photo identification to vote, but absentee voters did not. Citizen Center alleged an injury in fact based on the difference in treatment similar to the in person voters in Santillanes.

The majority concluded that the procedural due process claims sufficiently alleged an additional injury in fact that there were inadequate safeguards protecting the member's interest in the secrecy of the ballot guaranteed by the Colorado Constitution. The court stated that Citizen Center sufficiently alleged causation and redressability.

The clerks argued that Citizen Center could not show redressability on the procedural due process claim because it was asking for an injunction on practices that had been reformed, and had not shown that the clerks could satisfy their constitutional and statutory obligations without the practices at issue. The court rejected both of these arguments - the first for mootness and the second because Citizen Center alleges that another Colorado county uses untraceable ballots and is able to comply with the Colorado Constitution. The court concluded that the proposed injunction would redress the injury.

The court disagreed with the clerks' contention that they lacked the power to redress the injury alleged for the equal protection claim. The court stated that a judicial order enjoining the clerks from using traceable ballots would eliminate the alleged inequality, and, as such, the equal protection claims were redressable.

The court then rejected the Secretary of State's argument that it lacked the authority to remedy the issues raised. The court noted that Colorado law requires the Secretary of State's approval for ballot plans set forth by clerks. This approval makes the claims redressable against the Secretary of State.

The court rejected the clerks' argument that Citizen Center's request for secret ballots is too vague or generalized for constitutional standing. It first noted the inadequacy of the argument in the brief itself, and then noted that Citizen Center did identify the right being invoked, which made the claim specific enough for constitutional standing.

Next, the court addressed the clerks' motion to dismiss for failure to state a claim. With respect to the procedural due process claim the court found that the complaint was facially deficient because Citizen Center lacks a liberty interest in an untraceable ballot. Traceability alone is not a violation of the Colorado Constitution's guarantee of ballot secrecy, because Colorado courts have ruled that voter secrecy is preserved when officials do not actually learn how an individual voted. The court cited to Jones v. Samora, 318 P.3d 462 (Colo. 2014), where the Colorado Supreme Court held that election officials' use of traceable ballots did not violate the Colorado Constitution, because nobody actually took advantage of the opportunity to learn how an individual voted. There was no protected liberty interest alleged by Citizen Center, because the Colorado Constitution dd not protect against traceable ballots themselves. Without establishing a protected liberty interest, the procedural due process claims must fail.

The equal protection claims failed because Citizen Center did not allege that a county clerk discriminated between voters who resided in the same county, so there was no equal protection violation by any of the clerks. The court cited to Dunn v. Blumstein, 405 U.S. 330, 336 (1972), which stated that in the context of voting, citizens have a constitutional right to participate in elections on an equal basis with others in the same jurisdiction. In the present case, each voter in the same county was treated alike. Citizen Center's allegation that the equal protection right extends to voters in different counties went beyond the right set forth in Dunn. Further, there was no basis for holding the clerks responsible for inter-county differences. Each clerk only had power in his or her county and could not have violated the Equal Protection Clause by acting differently than a clerk in a different county.

The court concluded that Citizen Center did not have standing on its substantive due process claims and the rights to vote and to free speech, but that it did have standing on the federal claims against the Secretary of State and the clerks for denial of procedural due process and equal protection, as well as against the clerks for state claims involving denial of procedural due process and equal protection. It affirmed the dismissal of the claims involving denial of substantive due process, the right to vote, and the right to free speech. The court also agreed with the clerks' alternative argument for dismissal for failure to state a valid claim under Rule 12(b)(6). The claims against the Secretary of State, however, were valid because the Secretary of State did not move for dismissal under 12(b)(6). Thus, the court reversed and remanded on the dismissal of the federal claims against the Secretary of State for denial of procedural due process and equal protection.

To read the full opinion, please visit:

Panel: Holmes, McKay, Bacharach

Date of Issued Opinion: October 21, 2014

Docket Number: No. 12-1414

Decided: Dismissal of the federal claims against the Secretary of State was reversed and remanded; all other claims were affirmed.

Counsel: Robert A. McGuire, III, McGuire Bains LLC, Lone Tree, CO (Jeffrey David Baines, McGuire Baines LLC, Denver, CO, on the briefs), for Plaintiff-Appellant.

David Hughes, Boulder County Attorney, Boulder CO, and LeeAnn Morrill, First Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, CO (Writer Mott and David Wunderlich, Assistant Jefferson County Attorneys, Golden, CO, David Ayraud and William G. Ressue, Larimer County Attorney's Office, Fort Collins, CO, Gillian Dale and Tom Lyons, Hall & Evans, Denver, CO, Bryan Treu, Eagle County Attorney, Eagle, CO and Jennifer Davis, Chaffee County Attorney, Salida, CO, and John W. Suthers, Attorney General, with them on the briefs) for Defendants-Appellees.

Author: Bacharach

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 10/26/2014 09:17 AM     10th Circuit  

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