IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. Civil Action No. 08-CV-2321-JLK COMMON CAUSE OF COLORADO,

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1 Civil Action No. 08-CV-2321-JLK IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO COMMON CAUSE OF COLORADO, on behalf of itself and its members; Ml FAMILIA VOTA EDUCATION FUND; and SERVICE EMPLOYEES INTERNATIONAL UNION, on behalf of itself and its members, Plaintiffs, V. BERNIE BUESCHER, in his official capacity as Secretary of State for the State of Colorado, Defendant. SECRETARY S MOTION FOR LEAVE TO FILE SURREPLY TO PLAINTIFFS MOTION FOR ENFORCEMENT OF STIPULATION Defendant Bernie Buescher, the Secretary of State for the State of Colorado (the Secretary ), by and through undersigned counsel, files this Motion for Leave to File Suffeply to Plaintiffs Motion for Enforcement of Stipulation. Contemporaneously herewith, the Secretary files the Surreply. As grounds therefore, the Secretary states: 1. Undersigned counsel conferred with Plaintiffs regarding this Motion. Plaintiffs object to the filing of a Surreply and intend to file a formal written response to this Motion. 2. Plaintiffs have purposely chosen to raise both facts and legal arguments for the first time in their Reply brief; the result is that the Secretary has no opportunity

2 3. Plaintiffs filed their Motion for Enforcement of Stipulation, with their 4. However, for the first time, in their Reply brief, Plaintiffs assert facts 5. Importantly, Plaintiffs failed to provide the Court with g the relevant the counting of that ballot to argue that the ballots at issue should be counted. Id. Thus, Plaintiffs have already raised factual comparisons to unrelated provisional Enforce Stipulation ( Reply ): Memorandum in Support of Plaintiffs Motion for Enforcement of Stipulation, ( original brief or brief ). Memorandum in Support on April 3, See Docket Nos. 39 & 40. Plaintiffs contested the Secretary s decision to affirm the rejection of three provisional ballots. provisional ballot that the Secretary ordered be counted. Id., Plaintiffs used never raised any of these factual comparisons in their original brief. See Plfs brief. ballots to argue that the Secretary s decisions relating to these three remaining ballots were incorrect. relating to eight other provisional ballots cast in the November election. Plaintiffs provided all documentation and decisions on or by November 25, Plaintiffs inconsistent and did not afford the voters a presumption of eligibility. See Reply, 3, now argue the Secretary s decisions relating to those eight voters show that the Secretary s determinations on the provisional ballots at issue are illogical, For each of the eight ballots they raise for the first time in their Reply, the Secretary to respond. See generally Plaintiffs Reply to the Secretary s Response to Motion to See Plfs brief, 2. In their original brief Plaintiffs provided an example of a 6-8, 10.

3 facts and records for those eight voters, and in at least one instance, incorrectly inform the Court that a ballot was counted. Moreover, many of the facts Plaintiffs left out tie directly to the analysis the Secretary applied to the provisional ballots at issue here; the Secretary delineated that analysis in plain language in his Response to Motion to Enforce. See Secretary s Response, e.g., 15 ( [tjhe Secretary correctly reviewed the voters information for confirmation of the addresses provided on their applications. ). For instance, Plaintiffs Reply does not inform the Court of information concerning the addresses many of these voters provided on their registration applications, even though the Secretary s decisions largely hinged on that information. See Reply, 6 and exhibits. The key facts that Plaintiffs left out show that the Secretary s decisions were consistent, logical and afforded the voters the presumption of eligibility as required by the Stipulation. The Secretary should have an opportunity to provide the Court with all relevant information concerning these voters and how the decisions were reached regarding each. 6. Plaintiffs Reply also purports to represent the Secretary s analysis relating to the decisions reached for these eight additional ballots; those representations are largely inaccurate, both on a factual and legal basis. Plaintiffs Reply also repeatedly misstates the Secretary s analysis (set forth in the Secretary s Response brief) for the decisions relating to the three provisional ballots at issue here; they use their misstatements to argue the newly raised facts relating to the eight voters support their position that the three provisional ballots at issue here should be counted.

4 7. In addition to raising new facts for the first time in their Reply, Plaintiffs also raise a new legal argument. In particular, Plaintiffs argue for the first time in their Reply that the ballot of Corey Hansen should be counted because the county inadvertently did not send him a notice letter that was provided for under the Stipulation. See Pltfs brief Pltfs Reply. However, before they filed their Motion to Enforce Stipulation, Plaintiffs were aware that Mr. Hansen was not sent the notice letter. See Brief, 4; Exhibit 1. Nevertheless, Plaintiffs did not argue in their Brief that Mr. Hansen s ballot should be counted for that reason; as a consequence, the Secretary has had no opportunity to respond to that new legal argument. 8. In short, the Plaintiffs Reply raises new facts, leaves out key facts that provide the full picture, asserts incorrect facts, incorrectly represents the Secretary s reasoning for the decisions on the newly raised eight ballots, incorrectly represents the Secretary s stated grounds for rejecting the ballots at issue here, and makes a wholly new legal argument. Consequently, the Court should permit the Secretary to file a Surreply. The Secretary s Surreply does not re-argue anything; it merely addresses the new facts and arguments Plaintiffs presented in their Reply.

5 CONCLUSION For the foregoing reasons, the Court should permit the Secretary to file his Surreply to Motion to Enforce. Submitted this 28th day of May, JOHN W. SUTHERS Attorney General s/maurice G. Knaizer MAURICE G. KNAIZER* Deputy Attorney General s/monica M. Márguez MONICA M. MARQUEZ* Assistant Solicitor General s/melody Mirbaba MELODY MIRBABA* Assistant Attorney General A ttorneysjör Defendant Secretaiy ofstate 1525 Sherman Street, 2nd Floor Denver, Colorado Phone: Facsimile: rnaurie.knaizeistate.coaas mcy.rnirkbistte.cis *Counsel of Record

6 CERTIFICATE OF SERVICE I hereby certify that on May 28, 2009, 1 served a true and complete copy of the within SECRETARY S MOTION FOR LEAVE TO FILE SURREPLY TO PLAINTIFFS MOTION FOR ENFORCEMENT OF STIPULATION with exhibit upon all parties by the method indicated below: P1amt ff 1 S. Elizabeth Plaintiffs. Myrna Plaintiffs. Stacey Plaintiffs Plaintiffs James E. Johnson s Gale Dick sdickclcbevoise.com Richard Rosenblatt Plaintiffs. Penda D. Hair S. Westfall ewestfallaadvancençpflpç,g Jessie Allen Jcssieallen 101 i:uniai1 corn Wendy Weiser \Vendv.weiserI:nvu.edu Perez Mvrna.perezaiivu.edu Jennifer Rosenberg Jennifer.rosenhergnyu.edu Stephen P. Berzon sberzonäa1tshulcrberzon.com M. Leyton tiia;altshiilerherzoncm Barbara J. Chisholm hchisho1miaitshulerberzon.com Karen Neuman kncumanifairc1ectionsnetwork.coni Sarah Brannon sbrannon2iftiirelcctionsnetwork.com Debevoise & Plimpton, LLP 919 Third Avenue New York, NY Richard Rosenblatt & Associates, LLC 8085 East Prentice Avenue Greenwood Village, CO Advancement Project 1730 M Street, NW #910 Washington, DC Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas 12 Floor New York, NY th Altshuler Berzon, LLP 177 Post Street, Suite 300 San Francisco, CA Fair Elections Legal Network 1730 Rhode Island Avenue, NW Suite 712 Washington, DC s/melody Mirbaba

7 Page 1 of2 Melody Mirbaba - Answers to your questions From: To: Date: Subject: Melody Mirbaba PerezM@exchange.law.nyu.edu 4/1/2009 2:27 PM Answers to your questions Dear Myrna, This is intended to answer (to the best of our ability) the questions you posed yesterday during our conference call. 1. You asked about the notice letters that were to go with the second round of ballots discovered during the Secretary s audit. The second round of ballots discovered during the Secretary s audit process were not found by the counties during their initial review. This means that they did not pull these ballots at the time of the election, and that therefore, the notice letters were not sent to these voters. The counties were tasked with reviewing all of their provisional ballots within three days after the election, against the list of voters canceled within their county. This was an entirely manual process, which naturally resulted in some human error given the number of ballots that they needed to review. 2. You asked about the total and final numbers that we have tracked for those individuals that appeared on the first and supplemental list. We believe that your numbers may include some duplicate records. Below are the numbers the Secretary has tracked so far. However, these numbers have not been reviewed in enough detail for the Secretary to assert with absolute certainty that the numbers are final. Thus, the Secretary reserves the right to update or amend these numbers should we find any discrepancies or errors. Group Description 1 Group 2: Total: Total records on canceled list 46,069 Total provisional ballots (statewide) 52,252 Total appeared to vote (statewide) 8,500 Voted regular ballot (early, absentee, election day) 7,600 Appeared to vote (within same county as canceled) Rejected by counties 69 35* 108 Initially affirmed by SOS Final affirmed by SOS Final overturned by SOS Still in dispute *39 were identified in the audit as needing further review, and after review, 4 were not rejected. I hope this answers your questions. Regards, EXHIBIT file ://C :\Documents and Settings\Ssmirbmz\Local Settings\Temp\XPGrpWise\49D3 79EF...

8 Page 2 of 2 Melody Mirbaba Assistant Attorney General I Public Officials Unit 1525 Sherman Street Denver, Colorado Direct Phone: (303) Fax: (303) file ://C :\Documents and Settings\Ssmirbmz\Local Settings\Temp\XPGrpWise\49D379EF... 5/28/2009