No. 12-1414

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

CITIZEN CENTER, Appellants, 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 Chaffee Cnty. Clerk & Recorder, TEAK SIMONTON, in her official capacity as Eagle Cnty. Clerk & Recorder, and Appellees.

ANSWER BRIEF

Appeal from United States District Court for the District of Colorado Civil Action No. 12-cv-00370-CMA-MJW

The Honorable Christine M. Arguello, United States District Judge

Respectfully submitted this 3rd day of October, 2013.

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JEFFERSON COUNTY ATTORNEY ELLEN G. WAKEMAN /s/ Writer Mott Writer Mott David Wunderlich Assistant County Attorneys 100 Jefferson County Parkway, Suite 5500 Golden, CO 80419 Telephone: 303-271-8932 Email: wmott@jeffco.us Email: dwunderl@jeffco.us David Ayraud William G. Ressue Larimer County Attorney’s Office 224 Canyon Avenue #200 Fort Collins, CO 80522 Email: dayraud@larimer.org Email: wressue@larimer.org David Hughes Boulder County Attorney’s Office 1325 Pearl Street, 5th Floor Boulder, CO 80306 Email: dhughes@bouldercounty.org Gillian Dale Tom Lyons Hall & Evans 1125 17th Street #600 Denver, CO 80202 Email: daleg@hallevans.com Email: lyonst@hallevans.com Bryan Treu Eagle County Attorney 500 Broadway Eagle, CO 81631 Email: bryan.treu@eaglecounty.us

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Jennifer Davis Chaffee County Attorney 104 Crestone Ave. Salida, CO 81201 jdavis@chaffeecounty.org

Oral argument is requested.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................. vii

PRIOR OR RELATED APPEALS ........................................................................ xiii

STATEMENT OF JURISDICTION.......................................................................... 1

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

B. Appellate Jurisdiction and Timeliness of Appeal ...................................... 1

STATEMENT OF ISSUES ....................................................................................... 2

STATEMENT OF THE CASE .................................................................................. 2

SUMMARY OF ARGUMENT ................................................................................. 4

ARGUMENT ............................................................................................................. 5

I. Citizen Center’s claims have been mooted by the adoption of new election rules .................................................................................................................. 5

A. Reviewability ......................................................................................... 5

B. Standard of Review ............................................................................... 6

C. Election regulations governing ballot secrecy in Colorado have been substantially modified since the filing of the Complaint ...................... 7

D. The adoption of new election policies and rules have mooted the appeal ..................................................................................................... 8

II. The District Court properly held that Citizen Center failed to meet its burden of establishing standing ................................................................................ 14

A. Reviewability ........................................................................................... 14

B. Standard of review ................................................................................... 14

C. Elements of standing ................................................................................ 14

D. The Complaint fails to establish any injury in fact to its members’

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fundamental right to vote ............................................................................... 16

E. The Complaint fails to establish any injury to Citizen Center’s members’ rights to free speech and association ............................................................. 21

F. The Complaint fails to establish any injury to its members’ substantive due process rights .......................................................................................... 24

G. The Complaint fails to establish any injury to its members’ procedural due process rights .......................................................................................... 29

H. The Complaint fails to establish any injury to its members’ equal protection rights ............................................................................................. 35

I. The Complaint fails to satisfy the remaining tests for standing

J. The District Court properly considered Citizen Center’s legal theories in the standing analysis ...................................................................................... 40

K. Citizen Center fails to demonstrate any error in failing to discuss materials outside of the Complaint and Motion to Dismiss briefing ............ 42

III. If the District Court erred by dismissing Citizen Center’s complaint under Rule 12(b)(1), this Court should affirm the decision on alternate grounds because Citizen Center failed to state a federal claim for relief ................... 42

A. Reviewability ........................................................................................... 42

B. Standard of Review .................................................................................. 43

C. Citizen Center failed to state a fundamental rights claim ........................ 43

1. Citizen Center describes no violation of any right to vote ............. 44

2. Citizen Center’s asserted interest in a particular election process does not implicate the First Amendment ........................................... 46

D. Citizen Center failed to state a substantive due process claim based upon an as-yet unrecognized federal right to a secret ballot .................................. 46

1. The Court should not recognize a new fundamental right to a secret ballot because it would undermine the established authority of states

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to administer elections ......................................................................... 46

2. Even assuming that a fundamental right to a secret ballot in public elections exists, the facts alleged in the Complaint failed to demonstrate a violation of that right ................................................... 47

E. Citizen Center failed to state a procedural due process claim because it did not plead facts showing the deprivation of a state-protected liberty interest or the absence of an adequate state law remedy ............................... 49

1. Citizen Center failed to establish a liberty interest in a state election process that makes it impossible for an election official to determine the identity of a voter ......................................................... 49

2. Citizen Center’s extreme position on the scope of the secrecy requirement is unworkable and would actually undermine the right to vote ...................................................................................................... 50

3. Even assuming a protected state law liberty interest exists, Citizen Center cannot establish a procedural due process claim because Colorado provides an adequate state law remedy ............................... 53

F. Citizen Center failed to state an adequate factual basis for a traditional equal protection claim.................................................................................... 54

CONCLUSION ........................................................................................................ 56

STATEMENT OF COUNSEL AS TO ORAL ARGUMENT ................................ 64

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ...................................... 58

CERTIFICATE OF DIGITAL SUBMISSION ....................................................... 66

CERTIFICATE OF SERVICE ................................................................................ 67

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TABLE OF AUTHORITIES

Cases

ACLU of N.M. v. Santillanes, 546 F.3d 1313 (10th Cir. 2008) ........... 15, 30, 40, 62

Allen v. Wright, 468 U.S. 737 (1984) ..................................................................... 45

American Constitutional Law Found. v. Meyer, 120 F.3d 1092 (10th Cir. 1997) .. 30

Anderson v. Celebrezze, 460 U.S. 780 (1983) ................................................. 18, 49

Angel v. City of Fairfield, 793 F.2d 737 (5th Cir. 1986) ................................. 20, 63

Bldg. & Constr. Dep't v. Rockwell Int’l Corp., 7 F.3d 1487 (10th Cir. 1993) ........ 15

Bridgeman v. McPherson, 45 Cal.Rptr.3d 813 (Cal.App.3d 2006) ........................ 22

Bruce v. City of Colorado Springs, 971 P.2d 679 (Colo.App. 1998) ......... 23, 59, 60

Bruner v. Baker, 506 F.3d 1021 (10th Cir. 2007) .................................................... 61

Burdick v. Takushi, 504 U.S. 428 (1992) ................................. 18, 25, 26, 31, 49, 51

Burke v. State Bd. of Canvassers, 107 P.2d 773 (Kan. 1940) ................................. 22

Burson v. Freeman, 504 U.S. 191 (1992) ......................................................... 53, 54

Bush v. Gore, 531 U.S. 98 (2000) ............................................................................ 19

Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884 (10th Cir. 2008) .... 7

Church of Scientology Flag Serv. Org., Inc. v. Clearwater, 777 F.2d 598 (11th Cir. 1985) ..................................................................................................................... 12

Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000) ............................................................................ 10, 13

City of Herriman v. Bell, 590 F.3d 1176 (10th Cir. 2010) ...................................... 19

Colorado Off-Highway Vehicle Coal. v. United States Forest Serv., 357 F.3d 1130, (10th Cir. 2004) ............................................................................................... 6, 10

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County of Sacramento v. Lewis, 523 U.S. 833 (1988) ............................................ 53

Couture v. Bd. of Educ. of the Albuquerque Pub. Schs., 535 F.3d 1243 (10th Cir. 2008) .............................................................................................................. 55, 59

Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) ...................... 61, 62

Crider v. Bd. of County Comm’rs of the County of Boulder, 246 F.3d 1285 (10th Cir. 2001) .............................................................................................................. 63

D’Aurizio v. Borough of Palisades Park, 899 F.Supp. 1352 (D.N.J. 1995) ..... 25, 54

Day v. Bond, 511 F.3d 1030 (10th Cir. 2007) .................................................. 46, 47

Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) ............................................ 63

Doe v. Reed,130 S.Ct. 2811 (2010) .................................... 25, 26, 29, 30, 31, 32, 53

Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978) ............ 45, 46

Dunn v. Blumstein, 405 U.S. 330 (1972) ................................................................ 63

EEOC v. Continental Oil Co., 548 F.2d 884 (10th Cir. 1977) ................................ 36

Erickson v. Blair, 670 P.2d 749 (Colo. 1993). ......................................................... 57

Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993) ................................... 21, 49, 50

Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978) ...................................................... 20

Grusendorf v. Oklahoma City, 816 F.2d 539 (10th Cir. 1987) ............................... 29

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) ...................................... 19

Harris v. City of Houston, 151 F.3d 186 (5th Cir. 1998) .......................................... 9

Holt v. U.S., 46 F.3d 1000 (10th Cir. 1995) .............................................................. 8

Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333 (1977) ......................... 17

In re Interrogatories of the U.S. Dist. Court, 642 P.2d 496 (Colo. 1982). .............. 57

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In re Special Grand Jury 89-2, 450 F.3d 1159 (10th Cir. 2006) .............................. 46

Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) 24, 26, 27

Jordan v. Sosa, 654 F.3d 1012 (10th Cir. 2011) ....................................................2, 7

Koch v. Marks, 284 P.3d 118 (Colo.App. 2011) .............................................. 34, 36

Kremer v. Chem. Constr. Co., 456 U.S. 461 (1982) ............................................... 60

Lance v. Coffman, 549 U.S. 437 (2007) .................................................................. 44

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................... 16, 17, 41, 42, 44

Mahaffey v. Barnhill, 855 P.2d 847 (Colo. 1993) ................................................... 38

McClendon v. City of Albuquerque, 100 F.3d 863 (10th Cir. 1996) ........................ 6

Medina v. Dist. of Columbia, 517 F.Supp.2d 272 (D.D.C. 2007) ........................... 60

Meyer v. Lamm, 846 P.2d 862 (Colo. 1993) ........................................................... 57

Mitchell v. Rayl, 665 P.2d 1117 (Kan.App.1983) ................................................... 36

Nader v. Democratic Nat’l Comm., 555 F.Supp.2d 137 (D.D.C. 2008) .......... 16, 42

Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) ....................................................... 22

Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005) ................................. 16

Ordinance 59 Ass’n v. United States DOI Secy., 163 F.3d 1150 (10th Cir. 1998) . 16

People ex rel. Barton v. Londoner, 22 P. 764 (Colo. 1889) ............................. 38, 39

Peterson v. City of San Diego, 666 P.2d 975 (Cal. 1983) ....................................... 23

Princeton Univ. v. Schmid, 455 U.S. 100 (1982) .................................................... 13

Pullen v. Mulligan, 561 N.E.2d 585 (Ill. 1990) ....................................................... 22

Renne v. Geary, 501 U.S. 312 (1991) ...................................................................... 42

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Responsible Use of Rural & Agric. Land v. PSC, 619 N.W.2d 888 (Wis. 2000) ... 36

Sawyer v. Chapman, 729 P.2d 1220 (Kan. 1986).................................................... 23

Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008) ..................... 28, 29, 31

Socialist Workers Party v. Hechler, 890 F.2d 1303 (4th Cir. 1989) ................ 50, 51

Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724 (10th Cir. 1997) .......... 7

Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006) ................................................ 21

Sutton v. Utah State School for Deaf and Blind, 173 F.3d 1226 (10th Cir. 1999) .. 49

Taylor v. Pile, 391 P.2d 670 (Colo. 1964) ............................................................... 38

Thompson v. Dorchester County Sheriff’s Dept., 280 F.App’x 328 (4th Cir. 2008) .............................................................................................................................. 29

United States ex. rel. Burlbaw v. Orenduff, 548 F.3d 931 (10th Cir. 2008) ........... 48

United States v. Alaska S.S. Co., 253 U.S. 113 (1920) ........................................... 12

United States v. Exec. Comm. of the Democratic Party of Greene County, 254 F.Supp. 543 (N.D.Ala. 1966) ............................................................................... 23

United States v. Munsingwear, 340 U.S. 36 (1950) ................................................ 12

Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir. 2004) ................................................................................................................................ 9

Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) ................................................................................... 45

Vigil v. Garcia, 87 P. 543 (Colo. 1906) ................................................................... 32

Warth v. Seldin, 422 U.S. 490 (1975) ..................................................................... 47

Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................... 30

Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003) .................................................... 31

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White v. Lee, 227 F.3d 1214 (9th Cir. 2000) ............................................................. 8

Whitmore v. Arkansas, 495 U.S. 149 (1990) ........................................................... 41

Statutes

C.R.S. § (4)(b)(I) ...................................................................................................... 14

C.R.S. § (4)(b)(IV) ................................................................................................... 14

C.R.S. §1-10-101(3) ................................................................................................. 35

C.R.S. §31-10-407 ................................................................................................... 35

C.R.S. § 24-72-205.5(1)(a) ...................................................................................... 37

C.R.S. §§ 24-72-205.5(3)(a) ............................................................................. 14, 34

C.R.S. §1-6-114(1) ................................................................................................... 35

C.R.S. §1-8.3-101 .................................................................................................... 58

C.R.S., Title I, Article 7.5 ........................................................................................ 59

Other Authorities

Freedom of Silence: Constitutional Protection Against Governmental Intrusions in Political Affairs, 47 Mich. Law Rev. 181, 190 (1948). ....................................... 48

Rules

10th Cir. R. 31.3(D) ................................................................................................... 1

Fed.R.Civ.P. 12(b)(1) .................................................................................... 7, 16, 48

Fed.R.Civ.P. 12(b)(6) .................................................................................. 25, 35, 49

Regulations

8 C.C.R. 1505-1, Rule 25 ......................................................................................... 51

8 C.C.R. 1505-1, Rule 9 ........................................................................................... 52

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Constitutional Provisions

Colo.Const.Art. VII, §8 ......................................................................... 33, 35, 36, 37

Colo.Const.Art. XIV, §8 .......................................................................................... 62

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PRIOR OR RELATED APPEALS

Undersigned counsel hereby represents that there are no prior or related

appeals in this Court.

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Respondents Larimer County Clerk and Recorder Scott Doyle, Jefferson

County Clerk and Recorder Pam Anderson, Boulder County Clerk and Recorder

Hillary Hall, Chaffee County Clerk and Recorder Joyce Reno, and Eagle County

Clerk and Recorder Teak Simonton (collectively, the “Clerks”) for their Answer

Brief state as follows:1

STATEMENT OF JURISDICTION

I. District Court’s Subject Matter Jurisdiction

The District Court dismissed the federal claims filed by Citizen Center on

grounds that it lacked subject matter jurisdiction, because Citizen Center could not

establish standing. Aplt.App. 495-97. Citizen Center’s attempts to establish

jurisdiction on appeal remain deficient and, thus, this Court should affirm the

dismissal on grounds it lacks jurisdiction over Citizen Center’s claims.

II. Appellate Jurisdiction and Timeliness of Appeal

Although Citizen Center timely filed its appeal, this Court lacks jurisdiction

as there is no longer any live case or controversy. New election rules adopted by

the Secretary since this appeal was filed have mooted the issues raised in the

Complaint. See Argument Section I, infra; Aplee.Supp.App. 1-2. See also Jordan

v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (“The mootness doctrine provides 1 Respondent Colorado Secretary of State Scott Gessler (the “Secretary”) is filing a separate brief because the issues addressed to the Clerks are different than those directed to the Secretary and governmental entities are excluded from the requirements of filing a combined brief pursuant to 10th Cir. R. 31.3(D).

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that although there may be an actual and justiciable controversy at the time the

litigation is commenced, once that controversy ceases to exist, the federal court

must dismiss the action for want of jurisdiction.”) (citations and internal quotations

omitted).

STATEMENT OF ISSUES

1. The adoption of new election rules by the Secretary mooted Citizen

Center’s appeal.

2. The District Court properly dismissed Plaintiff’s Complaint on

grounds that Plaintiff lacked standing to assert its claims.

3. Even if Plaintiff could establish standing and a live case or

controversy, the Complaint still should have been dismissed for failure to state a

claim upon which relief can be granted.

STATEMENT OF THE CASE

In the First Amended Complaint (the “Complaint”), Aplt.App. 20-57,

Citizen Center sought declaratory and injunctive relief on grounds that certain

election policies and procedures of the Clerks for the 2012 general election might

theoretically enable the Clerks to trace a ballot to an individual voter, and argued

that anything short of an election system that guaranteed absolute anonymity of all

ballots was unconstitutional. Citizen Center sought to prohibit: (1) the use of

unique serial numbers or barcodes on ballots; and (2) the grouping of ballots into

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batches or smaller groups of ballots for purposes of counting votes and auditing the

election results.2

The Clerks and the Secretary moved to dismiss the Complaint on grounds

that: (1) Citizen Center lacked standing because any alleged injury was too

speculative; and (2) Citizen Center had failed to state a constitutional claim

because there was no right to absolute anonymity of the ballot under either the

Colorado or Federal Constitutions. Aplt.App. 58-88 (Clerks’ Motion to Dismiss);

Aplt.App. 89-103 (Secretary’s Motion to Dismiss).

Prior to the 2012 general election, Citizen Center moved for a preliminary

injunction against the clerks of Boulder, Chaffee, and Eagle counties, claiming that

the printing of unique serial numbers on ballots made those ballots identifiable.

The Clerks and the Secretary responded to Citizen Center’s Motion for Preliminary

Injunction by arguing, in part, that the requested injunction was moot in light of a

series of policy, legislative, and regulatory changes that related to the Clerk’s 2 Serial numbers on the ballots are used for counting purposes. The election tallying equipment identifies errors reading a ballot by number, so if there is a stain or crease and the counting equipment has an error when trying to read a particular ballot, the counting software lists the ballot number in an error message, enabling the election staff to identify the problem ballot and re-run it or create a duplicate readable ballot. Without these numbers, election officers would have no efficient means for determining which ballot in the stack placed in the counting machine was the ballot that the machine was unable to read. Similarly, using batches for counting purposes allows election officials during the audit to check some of the ballots to ensure the counting was correct or, if an error is discovered during the audit, to re-run a portion of the ballots where the error occurred instead of recounting the entire election. Aplee.Supp.App. 40-53.

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policies and practices. Aplt.App. 330-362 (Clerks’ Response); Aplt.App. 363-380

(Secretary’s Response). The District Court ordered Plaintiff to respond as to why

the requested injunction was not moot and ultimately set a hearing on the

injunction. Aplt.App. 381.

At the hearing, the District Court focused its inquiry on whether it had

jurisdiction to consider Citizen Center’s claims and, more specifically, whether

Citizen Center had standing to assert its claims. The District Court found that

Citizen Center could not establish standing and, as a result, its Complaint must be

dismissed for lack of subject matter jurisdiction. “Without plaintiff having

established standing, this Court lacks jurisdiction to proceed on plaintiff’s federal

claims, and inquires no further into plaintiff’s likelihood of success on the merits . .

. or whether the . . . preliminary injunction factors are satisfied.” Aplt.App. 495-96

(28:24-29:4). This Appeal followed.

SUMMARY OF ARGUMENT

Citizen Center sought an injunction prohibiting the Clerks from using

election systems and processes that allegedly failed to protect voter privacy. After

Citizen Center filed its Complaint, the Secretary adopted new election rules

implementing new procedures that further protect voter privacy while maintaining

the ability of the Clerks to effectively audit election results. As a result, Citizen

Center’s claims are moot and this Court lacks subject matter jurisdiction.

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Even assuming the case is not moot, the Court should uphold the dismissal

of Citizen Center’s claims for failure to allege an injury to a judicially cognizable

interest. A simple allegation that members of an association may choose not to

vote because they fear an election official might learn how they voted is

insufficient to state a concrete and particularized injury. Moreover, because this

case does not implicate the right to vote and the right to a secret ballot is not a right

established by the United States Constitution, Citizen Center has failed to allege a

harm to a judicially cognizable interest and therefore failed to allege an injury

sufficient to establish federal court jurisdiction.

Finally, even assuming Citizen Center can establish standing and a case or

controversy, this Court should uphold the dismissal on the alternate ground that

Citizen Center failed to state a claim for relief. The allegations in the Complaint

are insufficient to establish that the Clerks violated Plaintiff’s fundamental right to

vote, due process rights, or equal protection rights. Therefore, Citizen Center has

failed to state a viable constitutional claim.

ARGUMENT

I. Citizen Center’s claims have been mooted by the adoption of new election rules

A. Reviewability

“Article III limits a federal court’s jurisdiction to ‘cases and controversies.’”

Colorado Off-Highway Vehicle Coal. v. United States Forest Serv., 357 F.3d 1130,

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1133 (10th Cir. 2004) (citations omitted). The existence of a live case or

controversy must “exist[] at all stages of federal judicial proceedings, and it is

therefore not enough that the dispute was alive when the suit was filed; the parties

must continue to have a personal stake in the outcome.” McClendon v. City of

Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). “Thus, when ‘an event occurs

which renders it impossible for this court, if it should decide the case in favor of

the plaintiff, to grant him any effectual relief . . . , the court will not proceed to a

formal judgment, but will dismiss the appeal.’” Colorado Off-Highway, 357 F.3d

at 1133 (citations omitted). Because “[t]he ‘case or controversy’ requirement

applies at all stages of review” and is a jurisdictional issue, it may be raised at any

time during the litigation or sua sponte by the Court and is not an issue for which a

party must record an objection to preserve the right to appeal. Id.

B. Standard of Review

Courts apply a de novo standard of review to questions of constitutional

mootness, i.e. whether a controversy exists for which relief can be granted.3

3 “[C]ourts recognize two kinds of mootness: constitutional mootness and prudential mootness. Under the constitutional mootness doctrine, the suit must present a real and substantial controversy with respect to which relief may be fashioned. Also, the controversy must remain alive at the trial and appellate stages of the litigation.” Jordan, 654 F.3d at 1023-24 (citations and internal quotations omitted). “Prudential mootness addresses ‘not the power to grant relief but the court's discretion in the exercise of that power.’ In some circumstances, a controversy, though not moot in the strict Article III sense, is ‘so attenuated that considerations of prudence and comity for coordinate branches of government

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Jordan, 654 F.3d at 1024 n.14. Questions of prudential mootness, if decided by the

trial court, are reviewed for an abuse of discretion. Id. “If a party to an appeal

suggests that the controversy has, since the rendering of judgment below, become

moot, that party bears the burden of coming forward with the subsequent events

that have produced that alleged result.” Chihuahuan Grasslands Alliance v.

Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008) (citations omitted). A motion to

dismiss on grounds of mootness is properly raised under Rule 12(b)(1) and, in

evaluating it, a court “may look beyond the complaint to matters of public record

without having to convert the motion into one for summary judgment.” White v.

Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “A court has wide discretion to allow

affidavits, [and] other documents ... to resolve disputed jurisdictional facts under

Rule 12(b)(1).” Holt v. U.S., 46 F.3d 1000, 1003 (10th Cir. 1995).

C. Election regulations governing ballot secrecy in Colorado have been substantially modified since the filing of the Complaint

Colorado regulations related to ballot secrecy have changed significantly

since Citizen Center filed its Complaint and even since this appeal was filed.

Following the 2012 Primary Election, the Secretary sought to address voter

privacy issues through the adoption of new temporary election rules (the

“Temporary Rules”). Aplt.App. 372-73. The Temporary Rules prohibited county

counsel the court to stay its hand, and to withhold relief it has the power to grant.’” Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997).

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clerks from using unique serial numbers on ballots and required the clerks who use

serial numbers on ballots to use rotating numbers (i.e., to repeat numbers so no

single ballot has a unique number). Id.

Since the filing of this appeal, the Secretary adopted new, permanent

election rules (the “New Rules”) that have the effect of addressing both of the

issues raised by Citizen Center: the use of unique serial numbers on ballots and the

use of batches of ballots while tallying election results. Aplee.Supp.App. 1-4. The

New Rules moot Citizen Center’s claims.

D. The adoption of new election policies and rules have mooted the appeal

Citizen Center brought its Complaint seeking injunctive and declaratory

relief with respect to the election practices and procedures of the Clerks in place

for the 2012 presidential general election. That election has come and gone

without any of the speculative harms related to the disclosure of the contents of

any member of Citizen Center’s ballots occurring. See Utah Animal Rights Coal.

v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir. 2004) (“The alleged

violation took place in 2001, the Olympics have come and gone, and neither

temporary restraining order, preliminary injunction, nor permanent injunction

could have any present-day effect.”); Harris v. City of Houston, 151 F.3d 186, 189

(5th Cir. 1998) (“[W]e find it beyond dispute that a request for injunctive relief

generally becomes moot upon the happening of the event sought to be enjoined.”).

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In addition to the successful conclusion of the election, the challenged policies of

the Clerks have subsequently been modified and are no longer in effect.

Aplee.Supp.App. 40-53. Thus, any current challenge would be to an entirely

different set of regulations than those in place at the time this case was filed.

The election policies of the Clerks are fluid and are routinely modified from

election to election as the Clerks strive to improve their processes and respond to

new legislative and regulatory requirements. The Secretary’s Temporary Rules

passed on August 20, 2012, Aplt.App. 372, and the New Rules adopted on April

25, 2013, Aplee.Supp.App. 1-4, addressed the use of unique serial numbers and the

batching of ballots, eliminating any case or controversy. See Colorado Off-

Highway, 357 F.3d at 1134 (plaintiff’s challenge to the 1983 Routt Forest Plan

became moot when the 1998 forest plan was promulgated during the appeal);

Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236

F.3d 1174, 1182 (10th Cir. 2000) (“The parties have no legally cognizable interest

in the constitutional validity of an obsolete statute.”).

The Temporary Rules addressed Citizen Center’s concerns regarding the use

of unique numbers on ballots. The District Court, at the preliminary injunction

hearing, questioned Plaintiff’s counsel regarding whether Citizen Center’s claims

for injunctive relief were moot in light of the Temporary Rules. In response,

Plaintiff’s counsel argued that the Temporary Rules will expire and the Clerks

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could revert to the prior method of placing consecutive unique numbers on ballots

for auditing purposes. Aplt.App. 445-446 (18:12-19:2). Plaintiff’s counsel further

argued that the Temporary Rules did not go far enough because they did not

require the repeating of numbers for each unique ballot style, which meant there

allegedly might be a unique number within a particular ballot style. Aplt.App.

446-448 (19:23-21:6). Even assuming these arguments were sufficient to defeat a

mootness challenge with respect to the Temporary Rules, the New Rules address

both of these remaining concerns. Aplee.Supp.App. 1-2.

The New Rules are not temporary and do not expire. Aplee.Supp.App. 2

(“These new rules will become permanently effective twenty days after publication

in the Colorado Register.”). In addition, the New Rules, specifically Rule

10.8.1(A), require the Clerks to print a least ten ballots of each ballot style for each

number, addressing Citizen Center’s concern with the Temporary Rules that the

use of rotating numbers was not tied to ballot styles. Aplee.Supp.App. 1 (“Except

for ballots sent to military or overseas electors by electronic transmission under

Rule 25.2.7, no county may print a ballot for use in a state or federal election that

has a unique number, or a barcode containing a unique number, that is specific to a

single ballot. A county that uses rotating numbers must print at least ten ballots of

each ballot style for each number.”). Thus, the only arguments advanced by

Citizen Center as to the alleged inadequacies of the Temporary Rules were

11

specifically addressed in the New Rules, demonstrating that the claims regarding

the use of unique numbers have been fully resolved by the adoption of the New

Rule 10.8. See Church of Scientology Flag Serv. Org., Inc. v. Clearwater, 777

F.2d 598, 605 (11th Cir. 1985) (“‘Where by . . . a subsequent law, the existing

controversy has come to an end, the case becomes moot and should be treated

accordingly.’”) (citing United States v. Alaska S.S. Co., 253 U.S. 113, 116 (1920)).

The New Rule 10.8 prohibits the use of unique numbers or barcodes on a

specific ballot and requires the clerks that use serial numbers on ballots for election

auditing purposes to print at least ten ballots of each ballot style for each number,

meaning there would no longer be any risk of any individual ballot having a unique

number. Because the New Rule 10.8 addresses the exact issue raised by Citizen

Center, and even addresses it on a ballot style basis, Citizen Center’s challenge is

moot and this Court should dismiss this appeal. See United States v.

Munsingwear, 340 U.S. 36, 39 (1950) (“The established practice of the Court in

dealing with a civil case … which has become moot while on its way here or

pending our decision on the merits is to reverse or vacate the judgment below and

remand with directions to dismiss.”).

The rules governing elections have been revised since the filing of Citizen

Center’s lawsuit and the Clerks’ processes have changed accordingly in order to

comply with the requirements of the New Rules. Aplee.Supp.App. 40-53. This is

12

the classic example of where a claim has been mooted by the adoption of a new

regulation. See Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (case moot

where university modified its regulations during the litigation and the regulation at

issue in the Complaint was no longer in force); Citizens for Responsible Gov., 236

F.3d at 1182 (same).

The second issue raised in the Complaint was Plaintiff’s claim that the use of

batch tracking procedures by the Clerks could potentially allow an election official

to trace a ballot to a particular voter if there happened to be a single ballot of a

particular ballot style in a given batch. The New Rule 10.9, however, addresses

that issue by requiring counties to dissociate any batch number from a ballot after

the vote has been certified. Aplee.Supp.App. 2. Pursuant to the New Rule 10.9,

after votes have been certified and there is no longer any administrative need to

maintain the batches for auditing purposes, the clerks are required to shuffle the

ballots, avoiding any theoretical risk that a particular individual’s ballot could be

tied to any particular batch. This requirement is similar to the language of the new

Colorado Open Records Act (“CORA”) legislation enacted in 2012, which requires

the Clerks to shuffle ballots before releasing them in response to an open records

request in order to “de-batch” them. See C.R.S. §§24-72-205.5(3)(a), (4)(b)(I) and

(4)(b)(IV); Applee.Supp.App. 5-8. Because the New Rules and CORA legislation

address batch tracking by protecting privacy while simultaneously maintaining the

13

ability of the clerks to effectively audit election results, Citizen Center’s claims are

moot.

Further, even if this Court finds a controversy remains, this case should be

dismissed on grounds of prudential mootness in light of the substantial changes to

the voting rules and procedures since this case was filed.

Prudential mootness addresses ‘not the power to grant relief but the court's discretion in the exercise of that power.’ In some circumstances, a controversy, though not moot in the strict Article III sense, is ‘so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.’… [T]he doctrine of prudential mootness…has particular applicability in cases…where the relief sought is an injunction against the government. Under both Article III and prudential mootness doctrines, the central inquiry is essentially the same: have circumstances changed since the beginning of litigation that forestall any occasion for meaningful relief.

Southern Utah, 110 F.3d at 727 (citations omitted). Because states have wide

latitude in deciding how to run elections and because the challenged policies have

been substantially modified by regulation, prudential mootness and issues of

comity counsel against ruling in this case which was premised on a challenge to an

entirely different set of regulations and practices. Accord, ACLU of N.M. v.

Santillanes, 546 F.3d 1313, 1321 (10th Cir. 2008) (“[S]tates have wide latitude in

determining how to manage election procedures.”); Bldg. & Constr. Dep't v.

Rockwell Int’l Corp., 7 F.3d 1487, 1492 (10th Cir. 1993) (noting that, in cases

involving prudential mootness, “a court may decline to grant declaratory or

14

injunctive relief where it appears that a defendant, usually the government, has

already changed or is in the process of changing its policies or where it appears

that any repeat of the actions in question is otherwise highly unlikely.”). Thus, this

Court should uphold the dismissal of this case on mootness grounds and need not

reach the issues raised on appeal by Citizen Center.

II. The District Court properly held that Citizen Center failed to meet its burden of establishing standing

A. Reviewability

The issue of standing is not an issue for which a party must record an

objection to preserve the right of appeal, but is rather a jurisdictional issue that may

be raised at any time.

B. Standard of review

This Court reviews de novo a trial court’s decision to dismiss under

Fed.R.Civ.P. 12(b)(1). Ordinance 59 Ass’n v. United States DOI Secy., 163 F.3d

1150, 1152 (10th Cir. 1998). Likewise, this Court reviews questions of standing de

novo. Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005).

C. Elements of standing

“‘[A] showing of standing is an essential and unchanging predicate to any

exercise of a court’s jurisdiction.’” Nader v. Democratic Nat’l Comm., 555

F.Supp.2d 137, 147 (D.D.C. 2008) (citations omitted). To satisfy the case or

controversy requirement of Article III of the United States Constitution, a plaintiff

15

must have standing to invoke federal court jurisdiction. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 559-60 (1992).

Citizen Center is a non-profit corporation and claims to have associational

standing to sue on behalf of its members. Aplt.App. 22. As Citizen Center

acknowledges, to establish associational standing it must demonstrate that: (1) its

members would otherwise have standing to sue in their own right, (2) the interests

it seeks to protect are germane to the organization’s purpose, and (3) neither the

claim asserted nor the relief requested requires the participation of the individual

members in the lawsuit. Opening Br. 14 (quoting Hunt v. Wash. State Apple

Adver. Comm'n, 432 U.S. 333, 343 (1977)). At issue here is whether Citizen

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

To establish that its members would have standing to sue in their own right,

Citizen Center must demonstrate that its members can satisfy the following three

elements: (1) an injury in fact, defined as an invasion of a legally protected

interest that is (a) concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical; (2) a causal connection between the injury and the

conduct complained of; and (3) the likelihood that the injury will be redressed by a

favorable decision. Lujan, 504 U.S. at 560-61. “The party invoking federal

jurisdiction bears the burden of establishing these elements.” Id. at 561.

The District Court correctly determined that Citizen Center failed to meet its

16

burden of establishing associational standing because it did not allege any injury in

fact to any legally protected interest of its members, and its members therefore

could not satisfy the first element of the constitutional standing test. Aplt.App.

495. To reach this conclusion, the District Court evaluated each of Plaintiff’s legal

theories 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.” Aplt.App. 472 (5:8-10).

D. The Complaint fails to establish any injury in fact to its members’ fundamental right to vote

Although titled a substantive due process claim, in briefing on the Motions

to Dismiss Citizen Center clarified that its First Claim for Relief alleges a violation

of the right to vote under the fundamental rights analysis set forth in Burdick v.

Takushi, 504 U.S. 428 (1992), and Anderson v. Celebrezze, 460 U.S. 780 (1983).

Aplt.App. 46-47, 126-127, 473-474. Citizen Center asserts that the failure to

provide absolute anonymity in voting violates the fundamental right to vote

because some of its members may decide not to vote due to fear that their ballot

might be traced. Aplt.App. 42, 474.

The District Court observed that Citizen Center’s allegations fail to rise to

the level of infringing on the fundamental right to vote, as they fall “far short of

demonstrating problems with ballot box access, disenfranchisement, or any other

restriction of the right to vote.” Aplt.App. 475 (8:16-19). The District Court

17

further noted that “[s]tates are afforded a wide latitude in determining how to

manage election procedures,” and determined that “[i]n this case, the regulation or

the actions of the Secretary . . . and the Clerks does not appear to overstep federal

constitutional protections of the right to vote.” Id. at 475-76 (8:20-21; 9:6-9).

As the District Court noted, unlike the voter rights cases typically considered

by federal courts, Citizen Center’s claim does not involve state limitations on the

ability of a voter to cast a vote. See, e.g., Harper v. Virginia Bd. of Elections, 383

U.S. 663 (1966) (finding a poll tax unconstitutional on equal protection grounds);

City of Herriman v. Bell, 590 F.3d 1176, 1194-95 (10th Cir. 2010) (rejecting an

equal protection challenge to a state statute placing residency restrictions on a

school district detachment vote). Likewise, Citizen Center’s claim does not

involve how or whether certain votes will be counted. See, e.g., Bush v. Gore, 531

U.S. 98 (2000).

Instead, Citizen Center alleges its members may choose not to vote because

future election procedures employed by the Clerks may make it possible for the

Clerks to identify how individual members of Citizen Center voted. Aplt.App. 42

¶108. These allegations fail to state a fundamental rights claim. A plaintiff cannot

transform a case about past election procedures into a voting rights case simply by

indicating he or she may choose not to vote in the future. Otherwise, any quibble

regarding the election process could turn into a federal case. See Angel v. City of

18

Fairfield, 793 F.2d 737, 740 (5th Cir. 1986) (rejecting an equal protection

challenge to an election because it was no more than a “garden variety” election

challenge “promenading in disheveled constitutional dress”); Griffin v. Burns, 570

F.2d 1065, 1077 (1st Cir. 1978) (“If every election irregularity . . . involved a

federal violation, the court would be thrust into the details of virtually every

election, tinkering with . . . all manner of error and insufficiency under state and

federal law.”) (quotation omitted).

Citizen Center’s Opening Brief fails to cite any case holding that the

theoretical possibility that an election official, obligated by oath and by statute not

to reveal the contents of individual votes, could trace a ballot to an individual voter

under previously-existing election procedures, constitutes a violation of the

fundamental right to vote. Citizen Center instead offers the conclusory assertion

that the “meaningful risk” that one of its members’ votes could possibly be traced

is itself an injury in fact, followed by two case citations that simply do not support

this proposition.4

The first case, Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), held that

voters may have standing “based on an increased risk that their votes will be

improperly discounted,” and arose in the context of voting machines with 4 The Clerks dispute that the Complaint demonstrates any “meaningful risk” that any ballot of any Citizen Center member would actually be traced, as discussed below in Section II(G), and further note that changes in procedures since this lawsuit render any such risk even more attenuated, as discussed above in Section I.

19

demonstrated problems with properly counting ballots. In contrast, the Complaint

contains no allegation that the vote of any Citizen Center member might be

discounted, and in fact the processes Citizen Center complains of were previously

utilized for the express purpose of ensuring that all votes were properly counted.

See footnote 2, supra. The second cite, Greidinger v. Davis, 988 F.2d 1344 (4th

Cir. 1993), does not discuss standing at all, and instead holds that a state could not

require individuals to list their social security numbers on voter registration forms

when the social security numbers would then become public records. Citizen

Center’s Complaint contains no allegation that any Citizen Center member was

required to publicly produce any personal information in order to vote, nor is there

any allegation that any member’s vote have been or would be made public by the

Clerks.

By contrast to Citizen Center’s attenuated case law citations, courts across

the country have found no constitutional violation in voting procedures that allow

individual votes to be identified under a variety of different circumstances. See,

e.g., Nelson v. Miller, 170 F.3d 641, 653 (6th Cir. 1999) (upholding state law

permitting election officials to assist blind voters in marking ballots from a

challenge that it violated the protection for secret ballots); Burke v. State Bd. of

Canvassers, 107 P.2d 773, 779 (Kan. 1940) (election officials are bound by statute

to “keep the fact of such vote and the person for whom the same is recorded and

20

the contents thereof secret and shall not reveal or divulge the same”); Bridgeman v.

McPherson, 45 Cal.Rptr.3d 813, 820 (Cal.App.3d 2006) (legislature could

authorize voting by fax for citizens outside the country without violating the

constitutional secret ballot requirement, even though an election official inspecting

incoming fax ballots would know the identity of the person casting the ballot);

Pullen v. Mulligan, 561 N.E.2d 585, 607 (Ill. 1990) (because numbered ballots

were not actually traced to particular voters during the voting process, secrecy of

the ballots was not violated); United States v. Exec. Comm. of the Democratic

Party of Greene County, 254 F.Supp. 543, 546-47 (N.D.Ala. 1966) (allowing

federal observers to aid individuals unable to mark ballots did not violate the right

to secret ballot); Peterson v. City of San Diego, 666 P.2d 975, 978 (Cal. 1983)

(rejecting challenge to the use of mail ballots based on the claim that mail ballots

violated the constitutional requirement for secret ballots)5; Sawyer v. Chapman,

729 P.2d 1220, 1224 (Kan. 1986) (same). Citizen Center has never addressed this

authority.

Citizen Center’s Complaint includes no allegations that any of its members

would be prevented from voting in any future election, nor has it argued that any of

its members did not participate in the 2012 presidential election that took place

after the case was dismissed. Citizen Center offers neither authority nor persuasive 5 The Colorado Court of Appeals cited Peterson with approval in Bruce v. City of Colorado Springs, 971 P.2d 679, 684 (Colo.App. 1998).

21

argument for its position. Its members’ vague assertions that they may decide not

to vote in the future based on the theoretical possibility that an election official

might violate his or her oath and risk criminal sanctions to determine how that

member voted does not constitute an injury in fact to that individual’s fundamental

right to vote. Thus, Citizen Center has failed to establish standing based on an

alleged injury to its members’ right to vote.

E. The Complaint fails to establish any injury to Citizen Center’s members’ rights to free speech and association

Citizen Center’s Second Claim for Relief alleges that the potential for

traceability of ballots violates its members’ fundamental rights to free speech and

association. Aplt.App. 47-49. In evaluating this alleged injury, the District Court

first found that Citizen Center’s position 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” does not “sufficiently convey an injury in

fact, because it fails to demonstrate that plaintiff’s position is a legally protected

one.” Aplt.App. 477-78 (10:22-11-2). Even more problematic was Citizen

Center’s failure to convince the District Court that the Defendants’ alleged

production or use of traceable ballots “regulates or impinges the right to speech or

the right to association at all.” Aplt.App. 478 (citing Initiative & Referendum Inst.

v. Walker, 450 F.3d 1082 (10th Cir. 2006) (initiative requirement which deterred

wildlife advocates from threatening to launch petition did not regulate speech)).

22

Accordingly, the District Court concluded that Citizen Center failed to meet its

burden of demonstrating that it had experienced, or soon would experience, an

injury in fact based on its freedom of speech rights. Aplt.App. 478 (11:13-17).

Citizen Center does not address its First Amendment claim under its

standing argument. Opening Br. 14-21.6 Citizen Center instead attempts to

establish a fundamental right under its First Amendment claim in its Fed.R.Civ.P.

12(b)(6) argument. Id. at 30-32. Citizen Center acknowledges a concurrence from

Justice Scalia stating that the First Amendment does not protect the right to vote

anonymously, id. at 32 (citing Doe v. Reed,130 S.Ct. 2811, 2834 (2010)), but then

claims that “[o]ther courts have perceived that it does.” Id. None of the cases cited

by Citizen Center, however, holds affirmatively that the right to a secret ballot

implicates freedom of speech or association, and all but one of these cases predate

Burdick and Doe.7 Opening Br. 32.

In reality, the Supreme Court as a whole has expressed reluctance to

transform cases styled as voting rights cases into free exercise cases. See Burdick,

504 U.S. at 438 (“[T]he function of the election process is to winnow out and

6 Citizen Center appears to rely on its assertion that it is not necessary to consider its constitutional claims in evaluating standing. This argument is refuted in Section II(J) below. 7 The more recent case relied on by Citizen Center, D’Aurizio v. Borough of Palisades Park, 899 F.Supp. 1352 (D.N.J. 1995), addresses whether a witness can invoke the political privilege and therefore the discussion of the existence of a fundamental right is dicta.

23

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]. Attributing to elections a

more generalized expressive function would undermine the ability of States to

operate elections fairly and efficiently.”) (citations and internal quotations

omitted); see also Doe, 130 S.Ct. at 2832-33 (Scalia, J. concurring) (“Our Nation’s

longstanding traditions of legislating and voting in public refute the claim that the

First Amendment accords a right to anonymity in the performance of an act with

governmental effect.”).

Moreover, Citizen Center’s argument that the Clerks’ future election

procedures will deter some of its members from voting and therefore affect their

ability to express their political preference is similar to the argument raised and

rejected in Walker, 450 F.3d at 1104-05, which was relied on by the District Court

but not addressed in the Opening Brief. In Walker, an advocacy group launched a

First Amendment challenge to a Utah law requiring a supermajority for wildlife

initiatives. The group argued that the supermajority requirement “deterred wildlife

advocates from threatening to launch a petition . . . and it has cowed proponents of

initiatives on other subjects, who fear ‘similarly harsh treatment by the state

legislature and the Governor.’” Id. at 1104 (emphasis removed). Like Citizen

Center, the plaintiff in Walker argued that the challenged policy had a foreseeable

side effect of discouraging people from participating in the political process. This

24

Court rejected the plaintiff’s argument in Walker for the simple reason that “the

supermajority requirement does not regulate speech.” Id. at 1105. Likewise, the

Clerks’ procedures for processing voted ballots do not regulate speech and do not

implicate the First Amendment.

Because Citizen Center describes no fundamental right under the First

Amendment arising from the alleged ability to trace votes, it has described no

injury in fact to its freedoms of speech or association and lacks standing.

F. The Complaint fails to establish any injury to its members’ substantive due process rights

Citizen Center’s Third Claim for Relief is a substantive due process claim

and alleges that the Clerks’ procedures violate the fundamental right to a secret

ballot. Aplt.App. 49-50, 133-136. To establish a substantive due process claim

under a fundamental rights analysis, the District Court noted that the asserted

fundamental liberty interest must be carefully described and “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.”

Aplt.App. 479 (12:10-16) (quoting Seegmiller v. LaVerkin City, 528 F.3d 762, 769

(10th Cir. 2008)).

Under the first step, the District Court agreed 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.”

25

Aplt.App. 479 (12:17-21). Under the second step, the District Court rejected

Citizen Center’s assertion that the right to absolute anonymity of ballots is deeply

rooted in the Nation’s history and traditions and implicit in the concept of ordered

liberty. Aplt.App. 479-480. Heeding the Supreme Court’s caution to use the

utmost care in breaking new ground in the area of fundamental rights, and

considering the “absence of more persuasive authority,” the District Court declined

to extend the Constitution’s substantive due process protection to the right asserted

here and therefore found no invasion of any legally protected interest. Aplt.App.

481.

Citizen Center again fails to address this claim under its standing argument,

presumably based on its faulty assertion that the legal claims are never relevant to

the standing analysis. Opening Br. 14-21. However, Citizen Center does attempt

to establish a fundamental right to a secret ballot in its discussion of the merits of

that claim. Id. at 33-37. This argument falls short of establishing any existing

fundamental right to a secret ballot, and fails to demonstrate that a new

fundamental right should be recognized by this Court.

“The Supreme Court has never recognized secrecy in voting as a

constitutionally guaranteed right.” Thompson v. Dorchester County Sheriff’s

Dept., 280 F.App’x 328, 329 n. 2 (4th Cir. 2008); see also Doe, 130 S.Ct. at 2834

(Scalia, J., concurring) (“We have acknowledged the existence of a First

26

Amendment interest in voting, but we have never said that it includes the right to

vote anonymously. The history of voting in the United States completely

undermines that claim.”) (citations omitted). Thus, Citizen Center, in pleading its

substantive due process claim, is asking this Court to recognize a new right rather

than one that has been previously acknowledged by the Supreme Court or this

circuit.

Federal courts “should not take an expansive view of their authority to

discover new fundamental rights.” Grusendorf v. Oklahoma City, 816 F.2d 539,

543 n.3 (10th Cir. 1987). Instead, “[i]dentifying a new fundamental right subject

to protections of substantive due process is often an uphill battle, as the list of

fundamental rights is short.” Seegmiller, 528 F.3d at 770 (citations omitted).

Courts must “exercise the utmost care whenever [they] are asked to break new

ground in [the substantive due process] field.” Washington v. Glucksberg, 521

U.S. 702, 720 (1997).

Under this highly restrictive framework, this Court should not establish a

new fundamental right to absolute secrecy of the ballot. If such a right existed,

election administration would be placed “outside the arena of public debate and

legislative action,” Glucksberg, 521 U.S. at 720, and put in the hands of federal

courts. Such a shift is contrary to how this Court has previously viewed state

election administration.

27

This Court has recognized that “states have wide latitude in determining how

to manage election procedures.” Santillanes, 546 F.3d at 1321; see also American

Constitutional Law Found. v. Meyer, 120 F.3d 1092, 1097-98 (10th Cir. 1997)

(“Common sense, as well as constitutional law, compels the conclusion that

government must play an active role in structuring elections. The Supreme Court

has upheld generally-applicable and evenhanded restrictions that protect the

integrity of the electoral process.”) (citations and internal quotations omitted).

This is because “[t]he Constitution provides that States may prescribe ‘the Times,

Places and Manner of holding Elections for Senators and Representatives,’ Art. I, §

4, cl. 1, and the [Supreme] Court therefore has recognized that States retain the

power to regulate their own elections.” Burdick, 504 U.S. at 433. Thus, it is

elected officials like the Clerks and the Secretary—rather than federal courts—that

must “weigh the pros and cons of various balloting systems.” Weber v. Shelley,

347 F.3d 1101, 1107 (9th Cir. 2003) (citing cases).

The secret ballot is a part of the election system independently established

by the states, not a liberty interest “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.” Seegmiller, 528 F.3d at 769. States

originally used a non-secret viva voce method of elections and gradually replaced

this method with the paper ballot. Doe, 130 S.Ct. at 2835 (Scalia, J., concurring).

28

The adoption of paper ballots was not based on some “sudden realization that

public voting infringed voters’ freedom of speech” but rather as an effort to

prevent intimidation of voters. Id.; see also E. Scott Adler & Thad E. Hall, Ballots,

Transparency, and Democracy, 12 ELECTION L.J. 146, 148-49 (2013) (describing

the secret ballot as one of several reforms intended as “as a means of eliminating

the ‘vote market’”); Vigil v. Garcia, 87 P. 543, 546-47 (Colo. 1906) (“The

Australian ballot law was enacted for the purpose of promoting purity of

elections,” accordingly, persons assisting illiterate voters must be sworn to secrecy

or “[i]t will be possible for any number of voters to market their votes and call in

the judges to see that the goods are properly delivered . . .”).

With regard to the petition requirements at issue in Doe, Justice Scalia

stated, “nothing prevents the people of Washington from keeping petition

signatures secret . . . just as nothing prevented the States from moving to the secret

ballot. But there is no constitutional basis for this[.]” Doe, 130 S.Ct. at 2836. The

same reasoning applies to Colorado’s election processes. As discussed in Section

II(G) below, Colorado has chosen to protect the secrecy of the ballot through its

state constitution. Thus, the contours of this state right should be established

through state rulemaking or in Colorado state courts. Of course, where voters have

been disenfranchised by state election laws, federal courts should step in to protect

the fundamental right to vote. But, as in this case, where the fundamental right to

29

vote has not been implicated, the Court should defer to the State. Thus, the

allegations in the Complaint fail to demonstrate an injury to a liberty interest

protected by substantive due process and, accordingly, fail to establish standing.

G. The Complaint fails to establish any injury to its members’ procedural due process rights

Citizen Center’s Fourth Claim for Relief is for procedural due process,

claiming a violation of a state-created liberty interest in voting by secret ballot.

Aplt.App. 50-52, 136-140, 482. Under this claim, the District Court noted that

procedural due process applies only where there is a legitimate claim of

entitlement to the right, requiring the District Court to examine the relevant

Colorado constitutional provision to determine whether Citizen Center had a

legitimate claim of entitlement to absolute anonymity in voting. Aplt.App. 485.

Citizen Center relies on Article VII, §8 of the Colorado Constitution to

establish the purported state-created liberty interest. That provision states, in its

entirety:

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

30

secrecy in voting is preserved.

(Emphasis added). Examining the plain language of this provision, as a whole, the

District Court held that “the proscription on identification is meant to apply to

public identification” not to election officials. Aplt.App. 488 (21:8-10).

The District Court found support for its interpretation in Koch v. Marks, 284

P.3d 118, 122 (Colo.App. 2011), where the Colorado Court of Appeals found

voted ballots to be public records under CORA and held that Article VII, §8 only

protects the identity of individual voters from “public disclosure.” Aplt.App. 488-

489. The District Court noted that the Colorado Supreme Court initially granted

certiorari in Koch, but later denied certiorari as improvidently granted after the

Colorado General Assembly enacted new legislation to address the privacy

concerns raised by treating voted ballots as public records. Aplt.App. 489.

The District Court found this new legislation, codified at C.R.S. §24-72-

205.5, Aplee.Supp.App. 5-8, provided further support for the Clerks’ position, as it

requires county clerks to review all ballots to determine if any are individually

identifiable and withhold from public inspection or redact those ballots that may be

identifiable. Aplt.App. 489-490. The District Court held: “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

31

disclosed.” Aplt.App. 490 (23:6-11).

Finding that the Colorado Constitution does not create a legitimate

entitlement to absolute anonymity in voting, the District Court found no liberty

interest subject to due process protection, no invasion of any legally protected

interest in the alleged use of traceable ballots, and, as a result, no standing.

Aplt.App. 490-491.

Citizen Center again neglects to address this claim under its standing

discussion, addressing procedural due process only in its arguments under

Fed.R.Civ.P. 12(b)(6). Opening Br. 37-43. Reviewing those arguments in the

context of standing, Citizen Center fails to demonstrate any liberty interest subject

to procedural due process protection and therefore fails to satisfy its burden of

demonstrating an injury in fact.

Article VII, §8 of the Colorado Constitution expressly prohibits election

officials from inquiring or disclosing how any elector shall have voted.8 The plain

language of this provision contemplates that election officials may learn how a

particular voter voted and creates an affirmative obligation on the election official

not to disclose that information. This affirmative obligation would be superfluous 8 Similar prohibitions are found in Colorado’s statutory provisions relating to elections. See, e.g., C.R.S. §1-6-114(1) (oath of election judges not to disclose voter choice); §31-10-407 (oath of election judges for municipal election); §1-7-108(1) (oath for election watchers); §1-10-101(3) (oath for canvass board);§§1-13-712(3), 31-10-1514 (making it a crime for any election official, watcher, or person to reveal how another person voted).

32

if the Constitution contained an absolute bar on election officials ever discerning

how an individual voted in an election. See EEOC v. Continental Oil Co., 548

F.2d 884, 890 (10th Cir. 1977) (an interpretation which would render terms

surplusage should be avoided).9

In Koch, the Colorado Court of Appeals interpreted this constitutional

provision in the context of a request for production of images of voted ballots

under CORA. The Colorado Court of Appeals determined that the ballot secrecy

provision protected an individual voter’s identity only from public disclosure,

stating, “we conclude that the phrase ‘secrecy in voting,’ . . . protects from public

disclosure the identity of an individual voter and any content of the voter’s ballot

that could identify the voter.” Id. at 122 (citations omitted) (emphasis added). The

holding in Koch is consistent with the plain meaning of Article VII, §8, which

recognizes the potential for election officials to learn how an individual voted.

In response to Koch, the General Assembly took legislative action to address

the Court of Appeals’ determination that voted ballots were public records under

CORA. On June 7, 2012, House Bill 12-1036 was signed into law, proclaiming:

“By enacting this section, the General Assembly intends to permit the inspection of 9 Citizen Center cites to a newspaper article to support its argument regarding the meaning of Article VII, Section 8, but the article was not included as part of the Record below and therefore should not be considered by this Court. Moreover, an editorial is not an appropriate source for divining legislative intent. See, e.g., Mitchell v. Rayl, 665 P.2d 1117, 1119 (Kan.App.1983); Responsible Use of Rural & Agric. Land v. PSC, 619 N.W.2d 888, 904 n.20 (Wis. 2000).

33

ballots under the conditions specified in this section and to protect the integrity of

the election process while protecting voter privacy and preserving secrecy in

voting in accordance with the provisions of section 8 of Article VII of the State

Constitution.” C.R.S. § 24-72-205.5(1)(a).

The statute recognizes that in the course of conducting an election, certain

ballots with stray marks or write-in candidates, instances where less than ten voters

vote a unique ballot style, and military and overseas ballots may be identifiable,

and, as a result, it places an affirmative burden upon the Clerks to: (1) review all

ballots to determine if they are individually identifiable, and (2) withhold from

public inspection or redact those ballots that may be identifiable. Aplee.Supp.App.

5-8. The General Assembly therefore acknowledged that the Clerks, given their

unique roles in overseeing the elections, may be able to identify some individual

ballots and imposed a duty on them to redact those ballots being produced under

CORA to protect voters’ privacy. Under Citizen Center’s interpretation of Article

VII, §8, the mere possibility that such an inspection may be necessary would cause

a deprivation of Citizen Center’s liberty interests.

The Colorado cases cited as support for Citizen Center’s claim of absolute

right to ballot secrecy do not recognize such a right or imply that it exists. See

Mahaffey v. Barnhill, 855 P.2d 847 (Colo. 1993) (voters cannot be required to

testify in court as to how they voted); Taylor v. Pile, 391 P.2d 670 (Colo. 1964)

34

(same). Although Taylor contains language indicating that the election was void

because “all the ballots cast were not secret ballots,” that language is dicta because

the case was decided on jurisdictional grounds. See Taylor, 391 P.2d at 673-74.

Moreover, Taylor recognized that the right to secrecy of the ballot was not absolute

when it found that the right “does not extend to the ‘illegal’ voter.” Id.

Citizen Center also points to People ex rel. Barton v. Londoner, 22 P. 764

(Colo. 1889), but Barton demonstrates that Colorado lawmakers have long

recognized that election officials may come to know how a voter voted during the

course of administering an election. Specifically, the language of the 1889

constitutional provision at issue in the case reads:

Sec. 8. All elections by the people shall be by ballot. Every ballot voted shall be numbered in the order in which it shall be received, and the number be recorded by the election officers on the list of voters, opposite the name of the voter who presents the ballot. The election officers shall be sworn or affirmed not to inquire or disclose how any elector shall have voted. In all cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined, under such safeguards and regulations as may be prescribed by law.

Barton, 22 P. at 764.

Taking into account the plain language of the Colorado Constitution, the

Court of Appeals’ interpretation of that provision, and statutory and regulatory

enactments relating to ballot secrecy, the District Court correctly found that Citizen

Center’s effort to create a fundamental right to absolute secrecy in voting from the

Colorado Constitution fails as a matter of law.

35

H. The Complaint fails to establish any injury to its members’ equal protection rights

Citizen Center’s Fifth Claim for Relief is for denial of equal protection

relating to the fundamental right to vote, asserting its members will face “disparate

likelihoods of their ballots being made identifiable” from other similarly situated

voters. Aplt.App. 52-54, 141-144. To the extent this claim relies on a fundamental

right to absolute secrecy in voting, the District Court found no substantive

distinction between this claim and Citizen Center’s clarified First Claim for Relief,

and found no legally protected interest which could provide Citizen Center with

standing. Aplt.App. 493. Construing Citizen Center’s claim under a traditional

equal protection analysis, the District Court observed that equal protection requires

only that similarly situated individuals be treated the same, and held that Citizen

Center failed to identify any voter in any county who is treated differently than any

other voter of that same county. Aplt.App. 493-494.

In response, Citizen Center asserts that the unequal imposition of the

purported risk that a ballot might be traced back to one of Citizen Center’s

members itself constitutes an injury in fact, but again cites no authority for this

proposition. Opening Br. 17. The only case Citizen Center does cite, Santillanes,

found standing for an equal protection claim based on the fact that under the law in

question, in-person voters were required to show identification to vote, while

absentee voters were not. Significantly, the Tenth Circuit declined to premise

36

standing on the plaintiffs’ theoretical assertions that some of their identifications

might be found to be insufficient. Santillanes, 546 F.3d at 1319.

Citizen Center acknowledges that the Clerks are responsible for establishing

the procedures applicable to voting within that county, Aplt.App. 23-24 ¶¶10-15;

25-35 ¶¶24-81, and the District Court therefore correctly determined that “the

county appears to be the relevant jurisdiction for plaintiff’s equal protection

claim.” Aplt.App. 494 (27:16-18). Citizen Center does not explain how individual

voters within any given county might receive differential treatment.

I. The Complaint fails to satisfy the remaining tests for standing

Because the District Court found that the allegations of the Complaint failed

to establish any infringement of a federally protected right, it declined to address

the Clerks’ remaining arguments relating to standing. Aplt.App. 495.

Nonetheless, the Clerks address these additional arguments because Citizen Center

raises them in the Opening Brief.

Under the first prong of the constitutional standing test, even assuming the

Complaint describes a fundamental right to absolute secrecy in voting, it fails to

describe any injury in fact to such a right that is concrete, particularized, actual,

and imminent. Lujan, 504 U.S. at 560. The Complaint does not assert that any

member of Citizen Center ever had their vote in any election tracked by any of the

Clerks or exposed to public review. Instead, the Complaint offers only vague and

37

conclusory assertions that some members of Citizen Center may at some point in

the future have their votes exposed. Aplt.App. 38-40. Allegations of theoretical

future injury do not satisfy Article III’s standing requirement, and instead the

threatened injury must be “certainly impending” to constitute an injury in fact.

Whitmore v. Arkansas, 495 U.S. 149, 158 (1990); see also Whitmore, 495 U.S. at

155 (‘injury in fact’ must be concrete in both a qualitative and temporal sense, and

must allege an injury that is “distinct and palpable”); Nader, 555 F.Supp. 2d at 147

(“[N]o standing exists if the plaintiff’s allegations are purely speculative. . . . Nor

is there standing where the court would have to accept a number of very

speculative inferences and assumptions in any endeavor to connect the alleged

injury [with the alleged conduct].”) (citations and internal quotations omitted).10

Citizen Center offers no allegations to demonstrate an actual or imminent

threat that any election official would violate their oath and subject themselves to

criminal penalties by tracing the ballots of any of Citizen Center’s members, and

the purported injury is on its face conjectural and hypothetical. Lujan, 504 U.S. at

560; Renne v. Geary, 501 U.S. 312, 320-21 (1991) (challenge to state 10 Citizen Center argues that the risk of exposure of its members’ ballots is itself sufficient to constitute an injury in fact. Opening Br. 17-18. Citizen Center, however, continues to rely on cases relating to the denial of the right to vote or differential treatment of similarly situated voters, see id., neither of which is at issue. Nor does Citizen Center provide any support for its conclusory assertion of a “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.” Id. (emphasis in original).

38

constitutional provision barring political parties from endorsing candidates in

certain elections not ripe for review, as general allegations that parties refrained

from endorsing in the past and wished to endorse in the future not sufficient). In

fact, Citizen Center has itself undermined any claim of imminent exposure of the

votes of any of its members by asserting that the Clerks denied Citizen Center’s

requests, pursuant to CORA, for copies of voted ballots that could allegedly expose

the identities of the voters. Aplee.Supp.App. 9-32 (Original Complaint, ¶¶24, 26,

27, 28, 29).

Citizen Center also failed to satisfy the second and third elements of the

constitutional standing test. Under the second prong, without any injury in fact to

any legally protected interest, there can be no causal connection between such

injury and the Clerks’ conduct. Further, the Complaint does not demonstrate that

the theoretical possibility that an election official could violate their oath and risk

criminal sanctions actually did or would cause any member of Citizen Center not

to vote.

Under the third prong, Citizen Center does not describe specifically what

relief is sought to address its purported concern with ballot secrecy. Instead, it

offers only generalized requests that the Clerks be prohibited from implementing

systems that will allow them to trace individual ballots to specific voters in future

elections. Aplt.App. 56-57. Citizen Center assumed incorrectly that the election

39

practices used by the Clerks in upcoming future elections would be identical to

those used in the past, asking the Court to enjoin practices no longer in place. In

reality, those processes have already changed on the Clerks’ own initiative and

pursuant to statutory and regulatory revisions. See Section I above. Further,

Citizen Center did not explain how any of the Clerks could satisfy their

constitutional and statutory obligations to verify the qualifications of voters, ensure

the integrity of elections, and oversee election procedures under the vague

restrictions demanded by Citizen Center. As a result, the Complaint fails to

explain how Citizen Center’s purported injuries will be redressed by a favorable

decision from this Court. Lujan, 504 U.S. at 561.

Failing to address any of the three elements of the constitutional standing

requirement, Citizen Center appeared to ask the District Court to issue an order

requiring the Clerks to comply with the secret ballot provision of the Colorado

Constitution or with an even more vaguely defined “right” to a secret ballot under

federal law. This generalized request for relief, which could apply to any citizen in

any of the named counties, does not state a case or controversy under Article III of

the United States Constitution. See Lujan, 504 U.S. at 573-74 (“[A] plaintiff

raising only a generally available grievance about government -- claiming only

harm to his and every citizen's interest in proper application of the Constitution and

laws, and seeking relief that no more directly and tangibly benefits him than it does

40

the public at large -- does not state an Article III case or controversy.”); Lance v.

Coffman, 549 U.S. 437, 442 (2007) (four Colorado voters lacked standing to

challenge a re-districting decision, as allegation that Elections Clause of the U.S.

Constitution was not followed “is precisely the kind of undifferentiated,

generalized grievance about the conduct of government that we have refused to

countenance in the past”); Allen v. Wright, 468 U.S. 737, 754 (1984) (“This Court

has repeatedly held that an asserted right to have the Government act in accordance

with law is not sufficient, standing alone, to confer jurisdiction on a federal

court.”); Valley Forge Christian College v. Americans United for Separation of

Church & State, 454 U.S. 464, 483 (1982) (same). Citizen Center has, therefore,

failed to meet its burden of proving jurisdiction over its claims and the case was

properly dismissed.

J. The District Court properly considered Citizen Center’s legal theories in the standing analysis

Citizen Center also argues that the District Court improperly considered

Citizen Center’s legal theories in the course of analyzing whether it had standing.

Opening Br. 21-22. Citizen Center relies on Duke Power Co. v. Carolina Envtl.

Study Group, 438 U.S. 59, 78 (1978), which held that, outside of taxpayer suits, it

is not necessary to demonstrate a connection between the injuries claimed and the

constitutional rights being asserted. However, the District Court did not require

Citizen Center to prove such a connection. Instead, the District Court correctly

41

recognized that Citizen Center’s theory of injury relied on its asserted

constitutional rights to a secret ballot. Aplt.App. 472 (5:8-12) (“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.”). In other words, in the absence of a judicially cognizable interest in an

absolutely secret ballot, the claim that a voted ballot might be revealed to an

election official does not state an injury.

This Court has previously made the distinction between the discussion in

Duke and the type of analysis undertaken by the District Court below. In Day v.

Bond, 511 F.3d 1030, 1034 (10th Cir. 2007), the plaintiff argued that this Court’s

analysis of a federal statute to determine the existence of a private right of action to

convey standing conflicted with In re Special Grand Jury 89-2, 450 F.3d 1159

(10th Cir. 2006), which applied Duke. This Court rejected the argument, stating,

“Grand Jury’s statement that a ‘judicially cognizable interest’ can exist even if the

interest is not ‘protected by the law’ has no effect because Plaintiffs’ only claimed

injury relies explicitly and entirely on their asserted rights under statutory law.”

Day, 511 F.3d at 1034 (emphasis removed).

Likewise, because Citizen Center’s theory relied on several different sources

to assert a claimed right to absolute secrecy of the ballot, the District Court was

42

required to examine each of those sources to determine if such a right existed.

While such an analysis closely paralleled the type of analysis required for

statement of a claim under Fed.R.Civ.P. 12(b)(6), it did not constitute the type of

connection between the injury and the claim prohibited by Duke. Accord, Warth v.

Seldin, 422 U.S. 490, 500 (1975) (“Although standing in no way depends on the

merits of the plaintiff’s contention that particular conduct is illegal, it often turns

on the nature and source of the claim asserted.”) (internal citation omitted).

K. Citizen Center fails to demonstrate any error in failing to discuss materials outside of the Complaint and Motion to Dismiss briefing

Citizen Center’s last objection to the District Court’s standing analysis is its

assertion that the District Court failed to consider the affidavits Citizen Center

submitted in support of its motion for a preliminary injunction and the Secretary’s

Temporary Rule. Opening Br. 22-23. However, Citizen Center does not explain

how any of those affidavits or the Secretary’s rule would affect the District Court’s

determination that its members’ lacked standing. If anything, the Secretary’s rule

demonstrates Citizen Center’s Complaint is moot, as discussed above in Section I.

III. If the District Court erred by dismissing Citizen Center’s complaint under Rule 12(b)(1), this Court should affirm the decision on alternate grounds because Citizen Center failed to state a federal claim for relief

A. Reviewability

The Clerks argued below in the alternative that Citizen Center failed to state

any claims upon which relief could be granted and that such claims should be

43

dismissed under Rule 12(b)(6). Aplt.App. 65-80. Because the District Court

granted the Clerks’ motion to dismiss under Rule 12(b)(1), it denied the remainder

of the Clerks’ motion as moot. Aplt.App. 497. Nonetheless, the District Court’s

reason for dismissing the case under Rule 12(b)(1) closely tracked the Clerk’s

arguments with respect to Rule 12(b)(6). Compare Tr., Aplt.App. 470-497 with

Clerks’ Mtn. to Dismiss, Aplt.App. 65-80. This Court may affirm the District

Court’s judgment on alternative Rule 12(b)(6) grounds because the issue was fully

briefed below. See United States ex. rel. Burlbaw v. Orenduff, 548 F.3d 931, 940

(10th Cir. 2008).

B. Standard of Review

Dismissals pursuant to Rule 12(b)(6) are reviewed de novo, applying the

same standards as the trial court. Sutton v. Utah State School for Deaf and Blind,

173 F.3d 1226, 1236 (10th Cir. 1999). Review is limited to the sufficiency of the

allegations in the operative complaint. Id.

C. Citizen Center failed to state a fundamental rights claim Plaintiff’s First and Second Claims for Relief, as clarified in briefing on the

Motions to Dismiss, are actually fundamental rights claims analyzed under the

framework of Anderson and Burdick. Opening Br. 26-27. As discussed above,

Citizen Center has failed to state a “fundamental rights” claim because the factual

allegations in the Complaint fail to implicate the fundamental right to vote or the

44

rights to free speech and association.

1. Citizen Center describes no violation of any right to vote

Under its Fed.R.Civ.P. 12(b)(6) analysis, Citizen Center assumes that it has

established a fundamental right to absolute secrecy in voting, but as discussed

above, there is no such fundamental right, and as a result Citizen Center’s First and

Second Claims for Relief also fail to state a claim upon which relief can be

granted.

Citizen Center points to Greidinger as implicating the right to vote in the

context of voter privacy. However, Greidinger involved a Virginia board of

elections decision to prohibit the plaintiff from voting in a general election without

providing his social security number, which would then become publicly available.

Greidinger, 988 F.2d at 1346. Thus, the fundamental right to vote was implicated

because the state took an action that prevented the plaintiff from voting without

making personal information publicly available. Greidinger was not a case of the

plaintiff simply choosing not to vote based on internal ballot accounting

procedures not directed at any particular voter or class of voters.11

Citizen Center’s reliance on Socialist Workers Party v. Hechler, 890 F.2d

1303 (4th Cir. 1989), is similarly misplaced. Hechler involved a challenge to a

11 Notably, the plaintiff in Greidinger did not challenge the authority of elections officials to obtain his social security number for internal purposes, but rather the dissemination of his social security number to the public. 988 F.2d at 1348.

45

statute that required nominating petitions to state that the signatory “desire[d] to

vote” for the candidate named in the petition. Id. at 1304. Thus, the ability of a

citizen to sign a petition was conditioned upon revealing how the citizen intended

to vote. While the applicable West Virginia law stopped short of requiring

unlimited public exposure of this information, it was available to “persons with a

sufficient interest,” “[a]ny person soliciting signatures for the purpose of

nominating a candidate by petition” and “every signer on every petition after the

first one,” among others. Id. at 1309 n.4. The harm addressed in Hechler,

therefore, was a state law that established a system whereby a citizen’s effort to

nominate a candidate for office was conditioned on certain public statements, a

harm not supported by the allegations in the Complaint.12

Citizen Center’s inability to identify fundamental rights cases that do not

involve laws that limit ballot access shows that voting rights cases must involve a

government decision that actually prevents a voter from voting, not the speculative

fear that state officials might come to know private information. Otherwise, state

disputes about election administration would routinely be transformed into federal

civil rights cases. Accordingly, Citizen Center failed to state fundamental rights

claims based on equal protection. 12 In addition, the Fourth Circuit decided Hechler prior to Burdick, in which the Supreme Court refused to apply strict scrutiny to a Hawaii election law even though it had some impact on the right to vote. See Burdick, 504 U.S. at 441-42. Thus, the persuasive value of Hechler is limited.

46

2. Citizen Center’s asserted interest in a particular election process does not implicate the First Amendment

In addition to claiming that the Clerks’ election processes will burden its

members’ voting rights, Citizen Center argues that the facts alleged implicate their

fundamental speech and associational rights under the First Amendment.

Aplt.App. 42-45. As discussed in the standing argument, Citizen Center fails to

establish any First Amendment interest implicated by the alleged violation of ballot

secrecy, and as a result Citizen Center also fails to state any claim upon which

relief can be granted.

D. Citizen Center failed to state a substantive due process claim based upon an as-yet unrecognized federal right to a secret ballot

Citizen Center’s Third Claim for Relief is a substantive due process claim

based on an alleged violation of the as-yet unrecognized right to a secret ballot in

public elections. This claim fails under Rule 12(b)(6) because: (1) the Court

should not recognize a right to a secret ballot protected under the due process

clause; and (2) even if the Court recognized such a right, the facts alleged in the

Complaint do not fall within the contours of that right.

1. The Court should not recognize a new fundamental right to a secret ballot because it would undermine the established authority of states to administer elections

As discussed in the standing argument, Citizen Center has not established

any existing fundamental right to absolute secrecy in voting, and has not

47

persuasively argued that any new fundamental right should be recognized by this

Court. As a result, Citizen Center’s substantive due process claim fails under

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

2. Even assuming that a fundamental right to a secret ballot in public elections exists, the facts alleged in the Complaint failed to demonstrate a violation of that right

In any action under Section 1983, “the first step is to identify the exact

contours of the underlying right said to have been violated.” County of

Sacramento v. Lewis, 523 U.S. 833, 842 (1988). A court should ask “whether the

plaintiff has alleged a deprivation of a constitutional right at all.” Id. Assuming a

fundamental right to a secret ballot exists, the scope of that right does not

guarantee an election process that makes it impossible for an elected clerk to

determine how a particular voter cast his or her vote.

To support its substantive due process claim, Citizen Center points to

authorities that describe the secret ballot in broad strokes but give little insight into

the circumstances described in the Complaint. For example, Doe addressed

referendum petitions—not ballots—and the Court ultimately concluded that a law

requiring public disclosure of such petitions was constitutional. 130 S.Ct. at 2821.

Likewise, Burson v. Freeman, 504 U.S. 191 (1992), involved a First Amendment

challenge to a state statute prohibiting electioneering within 100 feet of a polling

place. While the Court upheld the limitation based in part on the state interest in

48

securing voting by secret ballot, the Court raised no concerns with exceptions to

the 100-foot limitation for election officials.13

Citizen Center also cites to a law review article by Professor Charles Nutting

to support its position on the secrecy of the ballot, but the article only addresses

aspects of the secret ballot not at issue in this case: casting the ballot in private and

public disclosure of cast ballots. Charles B. Nutting, Freedom of Silence:

Constitutional Protection Against Governmental Intrusions in Political Affairs, 47

Mich. Law Rev. 181, 190 (1948).14 Similarly, the discussion of secrecy in the

context of the “political vote privilege” is related to revealing the contents of a

ballot under oath in open court. See D’Aurizio, 899 F.Supp. 1352. In short,

Citizen Center has cited no circumstance in which the scope of secrecy of the

ballot has extended as far as election officials determining how a voter cast his or

her vote. Thus, even assuming a federal fundamental right to a secret ballot exists,

13 For example, the Court noted that the Australian Ballot system “provided for the erection of polling booths . . . open only to election officials, two ‘scrutinees’ for each candidate, and electors about to vote.” Burson, 504 U.S. at 202. In addition, the Court discussed a 1890 Tennessee law that only permitted voters “and certain election officials” within the room where the election was held and a 1901 Tennessee law that made it a misdemeanor for “any person, except the officers holding the election, to approach nearer than 30 feet to any voter or ballot box.” Id. at 205 (emphasis added). 14 Professor Nutting further noted that a characteristic of the Australian ballot is “the provision that election officials were prohibited from revealing how individual votes were cast,” implying the election officials may indeed come to know how an individual has voted. 47 Mich. Law Rev. 181, 190.

49

Citizen Center has failed to plead facts showing that the election processes

previously utilized by the Clerks violated that right. As a result, Citizen Center

failed to state a substantive due process claim.

E. Citizen Center failed to state a procedural due process claim because it did not plead facts showing the deprivation of a state-protected liberty interest or the absence of an adequate state law remedy

In its Fourth Claim for Relief, Citizen Center argued a deprivation of its

members’ Fourteenth Amendment right to procedural due process. Aplt.App. 50-

52 ¶¶145-152. A person alleging he has been deprived of his right to procedural

due process “must prove two elements: that he possessed a constitutionally

protected liberty or property ‘interest such that the due process protections were

applicable,’ and that he was not ‘afforded an appropriate level of process.’”

Couture v. Bd. of Educ. of the Albuquerque Pub. Schs., 535 F.3d 1243, 1256 (10th

Cir. 2008). Citizen Center failed to allege facts sufficient to state a claim under

either of these elements.

1. Citizen Center failed to establish a liberty interest in a state election process that makes it impossible for an election official to determine the identity of a voter

Citizen Center asserts that it has a liberty interest created by Article VII, §8

of the Colorado Constitution. Specifically, Citizen Center asks this Court to rule

that Article VII, §8 imposes a right to ballot secrecy so broad and sacrosanct that

even the possibility of an election official learning how an individual voted

50

deprives citizens of a protected liberty interest. The Colorado Constitution’s

provision relating to ballot secrecy, however, recognizes that election officials may

have the ability to learn how an individual voted, and this plain reading has been

recognized by the Colorado Court of Appeals, the General Assembly, and the

Secretary, as discussed above in Section II(G). The right to ballot secrecy, while

not absolute, does have ample protection in the form of sworn oaths of election

officials, Constitutional and statutory prohibitions on disclosure of individual

votes, criminal penalties attaching to violations of such prohibitions, and

legislative and regulatory enactments applicable to CORA requests. Citizen

Center’s attempt to establish a state liberty interest in the inability of any election

official to ever have any means to determine how an individual voted, whether

intentional or inadvertent, is contrary to established law, and further fails to

consider the unintended consequences of the requested rule.

2. Citizen Center’s extreme position on the scope of the secrecy requirement is unworkable and would actually undermine the right to vote

The Clerks support Colorado’s secret ballot system of elections, but Citizen

Center’s extreme position on voter secrecy is untenable and unworkable, would

prohibit any form of elections other than in-person elections, and would limit

election officials’ ability to prevent fraud, enfranchise disabled and overseas

voters, and ensure valid and accurate election returns.

51

The Colorado Supreme Court has found that “no law should be so strictly

construed as to prohibit from voting those otherwise qualified to exercise the

privilege.” In re Interrogatories of the U.S. Dist. Court, 642 P.2d 496, 497 (Colo.

1982). The rule of liberal construction protects the right to vote against

unnecessary restraints. Meyer v. Lamm, 846 P.2d 862, 875 (Colo. 1993). For

example, the Colorado Supreme Court held that it must “interpret absentee voting

legislation in light of the realities of modern life and the fundamental character of

the right of suffrage,” in order “to permit ‘a fuller expression of public opinion at

the ballot box.’” Erickson v. Blair, 670 P.2d 749, 754 (Colo. 1993).

Citizen Center argues that the Clerks’ election processes were

constitutionally flawed because of the mere possibility that an election official

could discover how someone voted. However, modern election systems oftentimes

balance secrecy protections against law and procedures that allow full expression

of the right to vote. For example, under the Uniform Military and Overseas Voters

Act, C.R.S. §1-8.3-101, et seq. and 8 C.C.R. 1505-1, Rule 25, Aplee.Supp.App.

33-37, eligible electors who live overseas or are stationed in the military overseas

are entitled to seek registration and cast ballots. Those ballots may be transmitted

via facsimile or email and must contain a signed affirmation. These overseas

ballots received by the Clerks are necessarily identifiable and, based on the strict

reading of the article VII, section 8 advocated by Citizen Center, would create an

52

election process that violates a state created liberty interest.

Similarly, under 8 C.C.R. 1505-1, Rule 9, disabled voters are entitled to

request the help of an election worker with ballot preparation or voting machine

operations. Aplee.Supp.App. 38-39. In such instances, the election worker

necessarily would learn how the disabled voter cast his or her ballot, potentially

creating a procedural due process violation. Citizen Center’s position would have

the effect of disenfranchising these voters.

Taken to its extreme, Citizen Center’s position could even invalidate state

statutes that permit voting by mail ballot. See generally C.R.S., Title I, Article 7.5.

Mail ballot envelopes contain identifying information about the voter, such as the

voter’s signature. Despite the significant protections in place through the opening

and separating process, it is theoretically possible that an election official could

open the envelope and remove the ballot from the secrecy sleeve to determine how

that voter voted. Despite this possibility, the Colorado Court of Appeals upheld a

mail ballot election in the face of a secret ballot challenge. See Bruce, 971 P.2d at

685 (where plaintiff claimed that “voters in this [mail ballot] election were denied

their right to a secret ballot and, therefore, the election is void. . .,” but the Court

refused to void the election).

The Colorado Constitution and related statutes have achieved a legitimate

balance between the right to ballot secrecy and the need for election officials to

53

verify the eligibility of voters and prevent voter fraud, a balance Citizen Center’s

position would overturn without offering any rational replacement.

3. Even assuming a protected state law liberty interest exists, Citizen Center cannot establish a procedural due process claim because Colorado provides an adequate state law remedy

In addition to pleading a protected liberty interest, Citizen Center must show

the absence of adequate state law remedies. Couture, 535 F.3d at 1256. A

Colorado voter who believes that a jurisdiction is about to conduct an election that

will deprive the individual and other voters of their state-created liberty interests

may file an action for injunctive relief in state court. The availability of such a

remedy is demonstrated by Bruce, in which the plaintiff filed a state court action

contesting the constitutionality and validity of an election in the City of Colorado

Springs. 971 P.2d at 681. Citizen Center invoked a similar state law remedy in

this case by filing pendant state law claims. Aplt.App. 54-56.

Citizen Center argues that, in past elections, it was deprived of its liberty

interest without any process and therefore the process was not adequate. Opening

Br. 43. However, Citizen Center is not seeking damages as a result of an alleged

past deprivation of a state-created liberty interest, but rather an injunction to

prevent the anticipated future deprivation of such an interest. Thus, the degree of

process provided in a past election is irrelevant. More importantly, Citizen

Center’s prior failure to invoke the available state law remedy does not equate to

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the absence or inadequacy of the remedy. Medina v. Dist. of Columbia, 517

F.Supp.2d 272, 281 (D.D.C. 2007) (“If procedures are already in place that provide

adequate process but a plaintiff does not utilize those procedures, there is no

constitutional violation.”) (citing Kremer v. Chem. Constr. Co., 456 U.S. 461, 485

(1982)). Thus, even assuming Citizen Center adequately pled a state-created

liberty interest, its procedural due process claim must fail because of the

availability of a state law remedy.

F. Citizen Center failed to state an adequate factual basis for a traditional equal protection claim.

As discussed in Section III(A) above, Citizen Center’s first two claims for

relief failed to state a claim based on the fundamental right to vote. If Citizen

Center’s fifth claim is simply another take on the fundamental rights analysis, the

Clerks incorporate their response above.

If Citizen Center’s claim is a traditional equal protection claim, the

touchstone inquiry is whether similarly-situated persons were treated differently.

Bruner v. Baker, 506 F.3d 1021 (10th Cir. 2007). Citizen Center claims its

members are similarly situated to each other and are similarly situated to other

“persons” who have voted or will vote. Aplt.App. 52 ¶155. In essence, Citizen

Center is requesting the Court pick a discrete group of voters and compare them to

other voters. This is not an accepted approach for an equal protection claim.

[W]eighing the burden of a nondiscriminatory voting law upon each

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voter and concomitantly requiring exceptions for vulnerable voters would effectively turn back decades of equal-protection jurisprudence. A voter complaining about such a law’s effect on him has no valid equal-protection claim because, without discriminatory intent, a generally applicable law with a disparate impact is not unconstitutional.

Crawford v. Marion County Election Bd., 553 U.S. 181, 207 (2008) (Scalia, J.,

concurring).

Indeed, Citizen Center’s factual allegations about the odds of a voter being

identified by that voter’s ballot show that its equal protection complaint is about

the different individual impacts of a single, uniform burden on all voters within a

particular county. Specifically, all voters within a particular county are 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. Aplt.App. 53 ¶156. Voters’

ballot styles may further be limited by the particular jurisdiction they vote in (i.e.,

what city within a particular county). See id. Factual allegations revealing that

individual voters experience different impacts as a result of the same burden do not

state an equal protection claim. Crawford, 553 U.S. at 205 (Scalia, J., concurring)

(“[O]ur precedents refute the view that individual impacts are relevant to

determining the severity of the burden [a voting regulation] imposes.”); see also

Santillanes, 546 F.3d at 1320-21 (rejecting an equal protection challenge to a law

that treated in-person voters differently than absentee voters).

Citizen Center further alleges voters in one county may be subject to more

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ballot secrecy than those in another. Aplt.App. 53 ¶156. However, county clerks

only have jurisdiction in their own counties. See Colo.Const.Art. XIV, §8. Section

1983 liability may “only be imposed upon those defendants whose own individual

actions cause a constitutional deprivation . . . .” Dodds v. Richardson, 614 F.3d

1185, 1200 (10th Cir. 2010). Thus, the Boulder County Clerk cannot be held liable

because she treated a Boulder County voter one way and the Chaffee County Clerk

treated a Chaffee County voter differently. 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 Angel, 793 F.2d at 739-40. Thus, Citizen Center’s equal

protection claim against the Clerks based on voters in different counties being

treated differently is invalid. Because Citizen Center has failed to state facts

supporting its equal protection claim, the District Court’s dismissal should be

affirmed. See Crider v. Bd. of County Comm’rs of the County of Boulder, 246

F.3d 1285, 1288-89 (10th Cir. 2001).

CONCLUSION

For the foregoing reasons, the Clerks respectfully request that this Court

affirm the dismissal of Plaintiff’s lawsuit on grounds that it lacks subject matter

jurisdiction and fails to state a claim upon which relief can be granted.

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STATEMENT OF COUNSEL AS TO ORAL ARGUMENT

Oral argument is requested.

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because: [X] this brief contains 13,988 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or [ ] this brief uses a monospaced typeface and contains lines of text, 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: [X] this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14-point Times New Roman font. [ ] this brief has been prepared in a monospaced typeface using with .

Dated this 3rd day of October, 2013.

/s/ Writer Mott Writer Mott Assistant County Attorney 100 Jefferson County Parkway, Suite 5500 Golden, CO 80419 Telephone: 303-271-8932 Email: wmott@jeffco.us

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CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing Appellee Chapman’s

Answer Brief: 1. all required privacy redactions have been made;

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, Symantec Endpoint Protection, version 12.1.1000.157 RU1, last updated June 6, 2013, and according to the program are free of viruses.

I certify that the information on this form is true and correct to the best of

my knowledge and belief formed after a reasonable inquiry.

/s/ Writer Mott Writer Mott Assistant County Attorney 100 Jefferson County Parkway, Suite 5500 Golden, CO 80419 Telephone: 303-271-8932 Email: wmott@jeffco.us

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing ANSWER BRIEF was served on the 3rd day of October, 2013 via the CM/ECF filing system on the following:

Robert A. McGuire, III Jeffrey D. Baines McGuire Baines LLC 1624 Market Street, Suite 202 Denver, CO 80202 ram@mcguirebaines.com

s/ Briana McCarten Briana McCarten, Paralegal