Defendant Bernie Buescher, in his official capacity as the Colorado Secretary of

Transcription

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; MI 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 REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendant Bernie Buescher, in his official capacity as the Colorado Secretary of State, by and through undersigned counsel, respectfully submits this Reply in further support of his Motion for Summary Judgment. 1 INTRODUCTION The gravamen of the Plaintiffs argument is that the NVRA does not permit Colorado to confirm the eligibility of its electors before adding them to the state s official list of registered voters. Under Plaintiffs theory, those who fill out a registration application in 1 The Secretary moved for summary judgment on all of the Amended Complaint s remaining claims, Counts I-IV. The parties have now reached a settlement on Counts II, III, and IV. This brief therefore addresses the only remaining issues: 1) whether the Plaintiffs have standing to pursue their claims on behalf of themselves or their members, and 2) whether (3), C.R.S. (2009), as interpreted by the Secretary, violates the NVRA.

2 Colorado, regardless of their actual eligibility, are registered from the moment the information from that application is entered into SCORE. The actual contents of the application whether they include fictitious names, false addresses, or fraudulent information seem not to matter. The NVRA does not go so far. The Act obliges states to maintain accurate registration rolls. It does not, and indeed cannot, simultaneously require them to abandon their most effective and efficient means of eligibility confirmation. Colorado s so-called 20-day rule is a blend of statute and administrative policy intended to maximize the chances that the ballots cast by eligible electors will count. Far from violating the NVRA, the 20-day rule actually exceeds the Act s minimum requirements. While it may fall short of the Plaintiffs expectations, the 20-day rule avoids the adverse consequences that would result from implementing those expectations and strikes an effective balance between the competing requirements of the NVRA. That the state has an obligation to ensure that its voting rolls are populated solely by eligible electors should be beyond dispute. The 20-day rule effectuates this goal while at the same time protecting the franchise of eligible electors whose registrations would otherwise fail due to postal or clerical error. In short, and as discussed in detail below, Colorado s 20-day rule does precisely what the NVRA requires. REPLY CONCERNING UNDISPUTED MATERIAL FACTS 1. No reply is required. 2. No reply is required. 3. No reply is required. 2

3 4. No reply is required. 5. The Secretary objects to the Plaintiffs claim that the lists provided identified any purged voters. No additional reply is required. 6. Plaintiffs response to the first sentence of this paragraph is incomplete, and therefore the Secretary is unable to reply to it. As detailed in the Reply to paragraphs below, the Secretary maintains that he reviewed each and every provisional ballot required by the Stipulation. 7. No reply is required. 8. No reply is required. 9. No reply is required. 10. The Secretary maintains that the 7,633 voters on the List who cast a regular ballot were not affected in any way by the existence of either a cancelled registration or a registration application that failed the 20-day period. Indeed, the very fact that these voters cast a regular ballot is dispositive of the fact that they were unaffected by the existence of a cancelled registration or failed registration application. Att O, Suppl. Rudy Aff., The Secretary denies that the 267 (not 257 or 247, as stated in Plaintiffs brief) ballots at issue were subject to review under the Stipulation. The existence of these additional provisional ballots cast by electors who appeared on the List was discovered 2 The Secretary s motion for summary judgment contained Att. A-N. Attachments to the Secretary s Response to Plaintiffs motion for partial summary judgment began with Att. A- 1. Additional attachments to this Reply will begin with Att. O. 3

4 during the Secretary s audit in spring 2009, and brought to the Plaintiffs attention in April Id. 7. The Secretary denies that the Stipulation applied to any of these 267 electors, who voted provisional ballots for reasons other than what put them on the List in the first place. As explained on page 4, footnote 1 of the Secretary s Memorandum of Law in Support of Motion for Summary Judgment, these 267 electors did not appear to vote in the counties where they had cancelled registrations. The fact that they cast provisional ballots instead of regular ones was a coincidence, and had nothing to do with the fact that they had cancelled or failed registrations elsewhere in the state. Id The Secretary admits that if these 267 ballots had been subject to additional review pursuant to the Stipulation, the numbers would have been slightly different. However, the Secretary denies that the Stipulation applied to these ballots. 13. The Secretary admits that if these 267 ballots had been subject to additional review pursuant to the Stipulation, the numbers would have been slightly different. However, the Secretary denies that the Stipulation applied to these ballots. 14. The Secretary admits that the Plaintiffs did not agree[] with the rejection of any of the 267 ballots at the time that review under the Stipulation occurred. However, the Secretary points out that the issue was never discussed at that time because no one was aware of the ballots existence until the audit occurred. Id. 7, 8. The Plaintiffs were informed of the existence of these ballots in April 2009, shortly after they were discovered during the Secretary s audit process. Plaintiffs have raised no complaint until now, nine months later. 15. No reply is required. 4

5 16. No reply is required. 17. No reply is required. 18. No reply is required. 19. No reply is required. 20. No reply is required. 21. The Secretary maintains that the Plaintiffs have been offered access to SCORE throughout this litigation, both during discovery and after the close of discovery. Att. O, 10. No further reply is required. 22. No reply is required. 23. No reply is required. 24. No reply is required. 25. No reply is required. 26. No reply is required. 27. No reply is required. a. No reply is required. b. No reply is required. 28. No reply is required. 29. No reply is required. 30. The Voter Protection Hotline recorded far fewer calls in 2008 than it had in 2004 or This statement was not offered as an undisputed fact, but is nonetheless supported by the record. Ms. Flanagan estimated that the hotline received 20,000 calls each 5

6 in 2004 and Flanagan Dep. 76: She also admitted that the hotline only recorded about 1800 calls in Id. 76: In an AP article offered as an exhibit in her deposition, Ms. Flanagan was quoted as saying the hotline received only 800 calls. Id. 77:24-78:4. Ms. Flanagan did state that she believed a large number of calls weren t tracked, but she did not provide an estimate of the percentage of calls that were tracked. Id. 77: In reply to the remaining allegations in this paragraph, the Secretary admits that Ms. Flanagan and Ms. Ramirez testified that calls from electors inquiring about their registration status required more time than other types of calls. However, the Secretary objects to Plaintiffs claim that the additional time required thereby reduc[ed] the number of calls the Hotline was able to handle in Neither citation even remotely supports this assertion. 31. Ms. Flanagan and her staff devoted a few hours over a few weeks to investigate Defendant s cancellation policies in the wake of the New York Times article describing them. This statement was not offered as an undisputed fact, but is nonetheless supported by the record. In light of Plaintiffs response, no further reply is required. 32. Mi Familia Vota s state director was unable to testify as to whether the organization received a significant number of calls related to Defendant s list maintenance procedures. This statement was not offered as an undisputed fact, but is nonetheless supported by the record. Ms. Ramirez merely testified: all I can say is that the number of calls went up once the media got ahold of the story. Ramirez Dep. 47:1-2. While this may statement suggests a correlation between the media attention and increased call volume, it 6

7 does not establish causation. The increased call volume may very well have been associated with the fact that the election was only a month away. Moreover, to the extent that Ms. Ramirez testified that Mi Familia Vota received calls about voter purging, she was unable to estimate how many the organization received, Id. 48:23-49:3, and she did not specify whether any of the callers specifically asked whether their registrations had failed pursuant to the 20-day rule. Ms. Salazar s declaration likewise makes only general statements about purges, and does not state whether any of the calls concerned application of the 20-day rule. See generally Salazar Dec. 33. Ms. Ramirez was unable to identify any specific diversion of resources associated with the allegations in the Amended Complaint. This statement was not offered as an undisputed fact, but is nonetheless supported by the record. In addition, Plaintiffs recitation omits the first part of the sentence, which reads in full: In fact, beyond vaguely asserting that the number of calls went up once the media got ahold of the story, Ms. Ramirez was unable to identify any specific diversion of resources associated with the allegations made in the Amended Complaint. Ms. Ramirez did testify that Mi Familia Vota had to devote more staff to answer the phones than was originally anticipated, but the evidence does not establish that this was caused by the Secretary s list maintenance activities. Ramirez Dep. 23: More importantly for the remaining claim, Ms. Ramirez s claim was that callers were prompted to contact the hotline by the allegations in the New York Times article, which made no reference to the 20-day rule. Id. 27:8-9. 7

8 34. The increase in call volume experienced by all Plaintiffs in October 2008 was prompted by the media attention to Defendant s unlawful cancellations. The Secretary s brief did not contain this statement. The cited page does contain the following: all three Plaintiff organizations maintained voter hotlines, and all three Plaintiff organizations claim to have received numerous phone calls from voters concerned about their registration status in the wake of media coverage occurring in the early part of October But there is no evidence that calls went unanswered due to increases in volume associated with the conduct complained of, nor is there any proof that these calls were prompted by any individuals having discovered that their registrations had actually been cancelled. Rather, the Plaintiffs themselves allege that the increase in call volume was prompted by the media attention caused by the October 9th New York Times article. The Secretary does not claim that the New York Times article was the sole piece of media attention, but he does assert that the New York Times article was the first media attention that the Secretary s list maintenance activities received. 35. There is no proof that calls to Plaintiffs were prompted by any individuals having discovered that their registrations had actually been cancelled. This does not appear in the Secretary s brief. The actual statement is: But there is no evidence that calls went unanswered due to increases in volume associated with the conduct complained of, nor is there any proof that these calls were prompted by any individuals having discovered that their registrations had actually been cancelled. In any event, neither caller identified in Mr. 8

9 Naifeh s declaration had a registration cancelled. To the contrary, both had failed registration applications under the 20-day rule. 36. Defendant s list maintenance activities do not appear to have substantially diverted resources from Plaintiffs other organizational activities. This statement does not appear in the Secretary s brief. The actual statement is: Nor does the Secretary s list maintenance appear to have substantially diverted resources from the Plaintiffs other organizational activities. The evidence cited on pp of the Secretary s brief establishes the extent of Common Cause s involvement with Colorado s legislative and rulemaking processes in its normal course of business. The citations demonstrate that Ms. Flanagan and Common Cause would have been heavily involved in the activities she described regardless of the existence of the litigation or the Secretary s list maintenance policies and procedures. REPLY CONCERNING PLAINTIFFS STATEMENT OF ADDITIONAL UNDISPUTED FACTS The Secretary incorporates by reference the general objections expressed in his Response to the Undisputed Facts asserted in the Plaintiffs Motion for Partial Summary Judgment. In particular, the Secretary objects to the legal conclusions and characterization offered as facts by the Plaintiffs The Secretary denies the statements in this paragraph. The Secretary admits that Common Cause offered testimony on H.B The Secretary denies, however, that this participation in the legislative process constituted additional resources, because Ms. 9

10 Flanagan testified that her organization monitoring and commenting on the bill as it progressed is part of Common Cause s normal course of business. Flanagan Dep. 15:24-16:1 (job duties include lobbying); 17:15-18:2 (Common Cause regularly follows pending legislation of interest, including list maintenance practices); 18:3-5(job duties include regularly testifying in front of legislative committees); 20:1-4(job duties include testimony in front of Election Reform Commission) Admitted The Secretary denies the statements in this paragraph. In particular, the Secretary denies that Mi Familia Vota registers any voters. An entity conducting a voter registration drive submits applications for registration. Section (2), C.R.S. (2009). The Secretary denies that the application of the 20-day rule will require any diversion of resources to counteract[] the 20-Day Rule s effect on voters Admitted The Secretary denies the statements in this paragraph. In particular, the Secretary denies that SEIU registers any voters, see (2), and the suggestion that electors who fail the 20-day rule are removed from the voting rolls. The Secretary denies that the application of the 20-day rule will require SEIU to divert resources from its other election protection and advocacy initiatives The Secretary does not dispute that SEIU plans to send a law fellow to Colorado in advance of the 2010 federal election. The Secretary denies that continued 10

11 application of the 20-day rule will have any adverse impacts on the law fellow s ability to carry out election protection and election-day readiness Admitted The Secretary denies that Common Cause will be forced to devote resources to addressing the 20-day rule in advance of the 2010 election, or that the inclusion of training on the 20-day rule will result in the omission of training on other important issues that may affect voters in Common Cause sets its own agenda, and neither Colorado statutes nor the Secretary s policies force it to do anything The Secretary denies the statements in this paragraph because they are speculative and without adequate foundation. Common Cause sets its own agenda, and neither Colorado statutes nor the Secretary s policies will prevent it to from administering its interests as it pleases The Secretary denies that any members of the Just Vote Colorado steering committee or members of Colorado s c3 Roundtable register voters, or that the 20-day rule will have a negative effect on their registration efforts The Secretary denies the statements in this paragraph because they are speculative and without adequate foundation. The phrase very packed is relative, and in addition, at this point there is no way of knowing how full the meeting agendas will be The Secretary denies that Common Cause will be required to devote resources to lobbying. Common Cause may choose, but is not required, to do so. 11

12 185. Denied. The quoted statement is taken out of context. The witness was responding to a question about what types of problems could be created if an additional process, such as the one that Plaintiffs requested in the preliminary injunction hearing, was put into place on Election Day. Mr. Munster s response was that the implementation of another process at the polls would result in additional lines at the polls, which could result in some voters choosing not to cast a ballot. (Pl. Ex. 1, Hrg. Tr. (Munster Direct), at 127:25-129: Admitted. An elector whose registration has been cancelled is treated as a new applicant. Registered electors who fill out an application for any reason are considered to be updating their registrations. Because they are already registered, such electors cannot, by definition, have a registration application fail pursuant to the 20-day rule. Att. O, Suppl. Rudy Aff., Without more information, the Secretary cannot admit that the investigation detailed in Plaintiffs Exhibit 69 is sufficient to establish that Ms. Ortega is a member of Colorado WINS. In any event, and assuming arguendo that Ms. Ortega was correctly identified, the Secretary denies that Ms. Ortega s voter registration was cancelled under the 20-day rule, but admits that she had a registration application that failed the 20-day rule in Jefferson County in Ms. Ortega has not submitted an update to her registration record or attempted to vote since Denied. Ms. Twolde has a current inactive registration, as explained in detail in 12 (pp ) of the Secretary s Additional Statement of Undisputed Facts in his 12

13 Response to Plaintiffs Motion for Summary Judgment, which is incorporated herein by reference The Secretary admits that Ms. Cohen is currently registered to vote in Colorado. Because she is already a registrant, Ms. Cohen would not be subject to the 20-day rule if she did, in fact, move. To the contrary, if Ms. Cohen filled out a registration application reflecting her new address, the county clerk would transfer her record to the new address and send a voter information card to confirm. If the card was returned as undeliverable, the elector would be placed in Inactive-Returned Mail status, and a forwardable card would be sent to verify the elector s address. Att. O, Suppl. Rudy Aff., The Secretary does not deny that Ms. Grant is a member of Common Cause or that she lives in Colorado. Att. O, Rudy Aff., 12. There are, however, two SCORE records in the relevant county with the name Rebecca Grant, id., and without more identifying information the Secretary is thus unable to admit or deny that Ms. Grant has never registered to vote in Colorado. If Ms. Grant is not currently registered and does fill out an application for registration, the 20-day rule will be applied to her application before she is a registrant under Colorado law. SUMMARY OF THE ARGUMENT The Plaintiffs do not have either organizational or associational standing to pursue their claims. The NVRA does not create independent organizational standing, and even if it did, Plaintiffs have not alleged or proven sufficient injury in fact to qualify for organizational 13

14 standing under Article III. Plaintiffs failure to demonstrate cognizable injury to any of their members or VRD participants likewise undercuts their claim of associational standing. Assuming arguendo that the Plaintiffs have standing, the arguments below demonstrate that (3), along with the Secretary s administrative policies implementing it, are consistent with the NVRA s competing requirements that states facilitate voter registration while simultaneously working to prevent fraud and maintain accurate registration lists. Confirmation of elector eligibility is an essential part of maintaining accurate lists. The 20-day rule is a valuable tool in effectuating this goal, and the Court should find that it is thus consistent with the NVRA. ARGUMENT I. Plaintiffs do not have standing to pursue their claims. The parties are in agreement concerning the minimum requirements for standing under Article III: injury in fact, a causal connection between the injury and the conduct complained of, and a likelihood that a favorable decision will redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992). To demonstrate injury in fact, a plaintiff must show an invasion of a legally protected interest, which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Stewart v. Kempthorne, 554 F.3d 1245, 1253 (10 th Cir. 2009) (quotation omitted). To show causation the Plaintiff must show that the injury is fairly traceable to the challenged action of the defendant. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180, (2000). 14

15 And the redressability prong is met when it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 181. The plaintiff, as the party asserting jurisdiction, bears the burden of showing that he has standing for each type of relief sought. Utah Ass n. of Counties v. Bush, 455 F.3d 1094, 1100 (10th Cir. 2006). To seek injunctive relief, a plaintiff must show that he is under threat of suffering injury in fact that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical. See Summers v. Earth Island Inst.,129 S. Ct. 1142, 1149 (2009). Plaintiffs assert that they have satisfied all three minimum requirements of standing, and thus qualify to sue on behalf of themselves (organizational standing) as well as their members (associational standing). The Secretary will address each of these claims in turn. A. Organizational standing. As organizations suing on their own behalves, Plaintiffs fall short of establishing standing for two reasons. First, the NVRA does not contemplate independent organizational enforcement. And second, even assuming that organizational standing exists under the statute, the Plaintiffs are unable to satisfy the minimum requirements of standing under Article III. 1. The NVRA does not grant organizations an independent right of enforcement. The NVRA authorizes the following persons to bring actions to enforce the NVRA: 1) private individuals aggrieved by violations of the Act, and 2) the United States Attorney 15

16 General. See 42 U.S.C. 1973gg-9(a) ( The Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as is necessary to carry out [the NVRA] ), and 1973gg-9(b)(1)-(2) ( [a] person who is aggrieved by a violation of [the NVRA]... may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to the violation ). The plain language of the statute does not encompass organizations. Plaintiffs nevertheless claim that it means something other than what it says, and point to the Dictionary Act (1 U.S.C. 1) and the NVRA s legislative history in support. The Dictionary Act provides in pertinent part: In determining the meaning of any Act of Congress, unless the context indicates otherwise the words person and whoever include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. 1 U.S.C. 1. A statutory reference to a person therefore creates a rebuttable presumption that it includes bodies corporate. See Isaacson v. Dow Chemical Co., 517 F.3d 129, 135 (2 nd Cir. 2008). That presumption may be rebutted if the context indicates otherwise, 1 U.S.C. 1, or if Congressional intent, as expressed in the legislative history, does so. See Krangel v. Crown, 791 F.Supp (S.D. Cal 1992) (for purposes of federal officers removal statute, the term person does not include corporations). In the case of the NVRA, the context indicates that enforcement actions under the Act may be brought by the Attorney General and by individuals whose voting registration rights have been adversely impacted by state action. The Act is designed to protect individuals, 16

17 and makes repeated reference to the voting and registration rights of persons. Because corporations and other organizations cannot vote or register to vote, these references to persons cannot, by definition, refer to them. See 42 U.S.C. 1973gg-2(a)(3) (registration may take place in person ); 42 U.S.C. 1973gg-4(c)(1) ( a State may require a person to vote in person ); 42 U.S.C. 1973gg-6(b)(2) (limiting states removal of the name of any person from the official list of voters by reason of the person's failure to vote ). Plaintiffs make no compelling argument that the persons granted standing to enforce alleged violations of the Act should include persons who have no rights protected by it. A review of the legislative history compels a similar conclusion. Plaintiffs rely on the Fifth Circuit s citation of committee testimony in ACORN v. Fowler, 178 F.3d 350, 363 (5th Cir. 1999), in which a single Senator suggested that the language in the Bill had been changed to broaden the enforcement mechanism to include corporations. Pl. Resp. Br. at 46-47, citing Fowler, 178 F.3d at 364. What neither Fowler nor the Plaintiffs are able to explain, however, is why the Senator s understanding is not reflected in the official committee report, issued after committee testimony was concluded and noting that the Act allows an aggrieved individual to bring a civil action where necessary to enforce the NVRA. 3 Att. N (Senate Rep., p. 38) (attached to Secretary s Motion for Summary Judgment). 3 The Senator s statement is reported in the daily edition of the Congressional Record published on May 7, The Senate Report is dated February 25 (legislative day January 5),

18 2. The Plaintiffs have suffered no legally cognizable organizational injury. As organizations, Plaintiffs are unable to satisfy any of the three prongs required for standing. Regarding the injury in fact prong, the fact remains that none of the Plaintiff organizations are able to show that Colorado s list maintenance activities impaired their organizational goals. Each Plaintiff planned to, and did, operate a voter assistance hotline during the 2008 election. Common Cause planned to, and did, comment on voter registration statutes, rules and policies adopted by the legislature and Secretary, and would have participated actively and continuously in the electoral process whether or not it believed that any NVRA violations were imminent. Where Plaintiffs organizational standing collapses, however, is with their assumption that the Secretary s actions caused the increase in phone calls received by their voter hotlines. Deponent after deponent claimed that the various hotlines experienced a sharp increase in calls after the New York Times article was published. Ramirez Dep. 27:4-5; Flanagan Dep. 59:13-61:20; Flanagan Supp. Decl. 14; Webb Supp. Decl. 5. The New York Times article, however, made no mention of the 20-day rule. To the contrary, it was focused entirely on the timing of Colorado s list maintenance activities. Pltfs. Ex. 39, at p. 1 ( Michigan and Colorado are removing voters from the rolls within 90 days of a federal election ). The other publications on which the Plaintiffs rely concentrated on identical issues. The Secretary s press release, published in the Rocky Mountain News on October 20, 2008, discussed only the fact that cancellations of existing registrations had taken place within 90 days of an impending election. (See Ex. 8 to Pl. Br. in Support of Application for 18

19 Temporary Restraining Order, Oct. 25, 2008). A Denver Post article published eleven days earlier likewise discussed only the Secretary s timing. (See Ex. 7 to Pl. Br. in Support of Application for Temporary Restraining Order, Oct. 25, 2008). And, perhaps most tellingly, Plaintiffs original Complaint made no mention of the 20-day rule. If, as Plaintiffs assert, the increased call volume was related to the media attention, it is incumbent upon them to also establish that the media attention had something to do with the 20-day rule. They have utterly failed to do so, and accordingly are unable to establish causation. A lack of redressability causes additional problems for Plaintiffs assertion that they have standing. As is discussed in detail at pp , infra, granting the relief that Plaintiffs seek would result in either: 1) fewer eligible voters being able to cast a ballot; or 2) voting rolls populated by the records of hundreds of thousands, if not millions, of ineligible registrations. Simply put, if granted, the relief that Plaintiffs seek would adversely impact Colorado s voters. Their claims are thus not redressable. B. Associational standing. Plaintiffs asserted in their Complaint and Amended Complaint that they sued the Secretary to improper disenfranchisement of eligible Colorado voters[.] Am. Compl., 1. Despite a year of searching, Plaintiffs have found no members or voter registration drive ( VRD ) participants who were disenfranchised by the Secretary s policy, and so they have recast their original allegations to include electors who: 1) were cancelled under the 20-day rule but who successfully cast a ballot; 2) electors who are currently registered but plan to move within the state; and 3) electors who are not registered, but plan to do so at some 19

20 indefinite future time. None of these electors suffered the harm that Plaintiffs Amended Complaint alleges, and all are outside of the Amended Complaint s scope. None of Plaintiffs members or VRD participants, even those whose registration applications have failed the 20-day rule, has suffered harm sufficient to constitute the injury in fact required to qualify for standing under Article III. As argued in the Secretary s Motion for Summary Judgment and Response to Plaintiffs Motion for Summary Judgment, Plaintiffs are unable to demonstrate an injury in fact sufficient to create associational standing on behalf of these persons. Summary judgment should therefore be granted in the Secretary s favor. II. Even if Plaintiffs have standing, their arguments fail on the merits because Colorado s 20-day rule does not violate the NVRA. Plaintiffs rely heavily on the Sixth Circuit s decision in U.S. Students Assoc. Found. v. Land, 546 F.3d 373 (6 th Cir. 2008), in which the majority declared an elector registered for purposes of the NVRA from the first moment that he or she is actually able to go to the polls and cast a regular ballot. Plaintiffs argue that electors in Active-20 day status are, under certain circumstances, capable of casting a regular ballot, and therefore urge the Court to conclude that they are registered for purposes of the NVRA. This factual assertion, like many others underlying Plaintiffs claims, is patently incorrect. Once Plaintiffs mistaken factual assertions are cleared out of the way, the foundations of their argument crumble. And once Colorado s policies and procedures are adequately explained, the entire structure of Plaintiffs argument falls apart. 20

21 Plaintiffs argument suffers from three fundamental flaws. First, its principal factual underpinnings are incorrect. Second, it fails to recognize that Colorado s 20-day rule is more protective of voters than the NVRA requires. Finally, it wrongly urges this Court to follow Land, and hold that the NVRA prohibits states from confirming the eligibility of their own applicants before adding them to the voting rolls. A. The majority of Plaintiffs facts are immaterial or false. Plaintiffs argument is semantically driven. In an attempt to create the impression that electors who fail the 20-day rule are registered and then cancelled, it relies on informal language contained in training materials, categories created in SCORE, inaccurate facts, and misleading citations to the Secretary s election rules. Plaintiffs attempt to create an interpretation inconsistent with the Secretary s stated application of the law cannot, however, overcome the basic fact that the 20-day rule, in a manner consistent with the NVRA, allows Colorado to confirm the eligibility of its registration applicants before adding them to the voting rolls. At least some of Plaintiffs incorrect facts appear to arise from a persistent misunderstanding of Colorado s registration procedures. Plaintiffs continue to argue, for example, that voters do not become registered until the passage of the 20-day period [.] Pl. Resp. Br. At 27. This statement completely ignores the exception that proves the validity of the 20-day rule: an elector may finalize his registration before the 20-day period expires by confirming his address at the polling place, thereby enabling him to cast a regular ballot during that period. A card returned in error after the elector has confirmed his address in this 21

22 manner does not result in a cancellation of the voter s then-active registration. Contra Pl. Stmt. Facts 18. Instead, it merely requires the clerk to convert the elector s record to inactive and initiate further contact to confirm whether there is a need to change his registration status. Att. O, Suppl. Rudy Aff., 13. Plaintiffs misapprehend how the 20-day rule works and to whom it applies. In 189 of their Additional Undisputed Facts, Plaintiffs cite an affidavit from Common Cause member Lisa Cohen, who is currently registered to vote in Colorado but has plans to move in advance of the next federal election and to re-register at her new address. The 20-day rule, however, applies only to new registration applicants. Registered electors who have moved within the state, and who submit a registration application reflecting that new address within the state, are not subject to having their registrations cancelled pursuant to the 20-day rule (1), C.R.S. (2009); Att. O. Suppl. Rudy. Aff. 11. Voter information cards are sent to such electors as confirmation of the change, but if a card is returned as undeliverable it does not trigger a cancellation. If it did, it would no doubt violate the NVRA s general limitations on the cancellation of existing registrations. Thus, ensures that registration applications filled out by electors who are already registered will be treated as a change of address notification, and will not trigger cancellation of an existing registration. Voter information cards are sent to registered electors such as Ms. Cohen who re-register at their new address by filling out a voter registration application. If the card is 22

23 returned as undeliverable the elector remains on the rolls, the status is changed to inactive returned mail, and the clerk will follow up with a forwardable confirmation card. 4 Plaintiffs misconstrue the purpose and effect of mailing the voter information card. Pl. Resp. Br. at 28. Although they claim that receipt of the disposition notice cannot be a requirement of eligibility or successful registration because the card notifies a voter that he is already registered, Plaintiffs ignore the obvious fact that the card cannot actually notify a voter unless and until it is actually delivered. Printing and mailing the card does not represent the end of the registration process, delivery does. Successful delivery is presumed (and thus the process completed) after passage of the 20-day period. Plaintiffs misunderstanding of the voter information card extends further. Plaintiffs claim that the disposition notice presupposes that a decision regarding the adequacy of the application has already been made. Pl. Resp. Br. at 28. The voter information card, however, does nothing of the sort. To the contrary, it is an integral part of confirming the elector s eligibility. The House Report on the NVRA expressly acknowledged and approved the fact that the disposition notice can serve two purposes. 5 As the report put it, such notices are sent by most States as a means of detecting the possibility of fraud in voting 4 Moreover, any assertion of standing based on Ms. Cohen s status would not be ripe. Even assuming that the 20-day rule could be applied to cancel Ms. Cohen s registration (it could not), Plaintiffs would be unable to demonstrate that she suffered any injury in fact unless and until applying the 20-day rule actually deprived her, as a still-eligible elector, of the opportunity to have her vote counted. 5 The House Report was quoted at length in the Secretary s Motion for Summary Judgment, at 49-50, and is attached in full to that brief as Att. J. 23

24 registration as well as providing a means of notifying a means of notifying an applicant of the appropriate voting place for his or her residence. See House Report at 14 (Att. J to Secretary s Motion for Summary Judgment) (emphasis added). Thus, contrary to Plaintiffs claim, the disposition notice may serve two purposes. Colorado uses it both to help it detect fraud and, if it is delivered, to notify the applicant that he is registered. Other facts asserted by Plaintiffs come closer to being accurate, but are wholly immaterial. For example, Plaintiffs rely on training materials provided to county clerks that describe electors who fail the 20-day period as being registered and then, upon return of the voter information card, cancelled. Any reasonable reading of these statements must take context into account. The informal use of these terms in a training session does not magically transform long-established Colorado statutes and policies into something entirely different. The 20-day rule is delineated in statutes and rules, not by isolated, colloquial references plucked out of context to serve the purposes of Plaintiffs legal arguments. Cf. Association of Community Organizations for Reform Now v. Miller, 912 F.Supp 976, 987 (W.D. Mich 1995) ( A state official's opinion of when an applicant is registered is of no consequence when the matter has been conclusively determined by the Michigan Legislature ), overruled on other grounds by Land, supra. B. The 20-day rule is more protective of voters than the NVRA requires. The history of the 20-day rule highlights its purposes and import. The analysis flows from the interplay of Colorado statute and the NVRA, and in doing so, highlights the shortcomings in the Land opinion. 24

25 In 1994, the Colorado General Assembly passed H.B , an act entitled Concerning Implementation Of The National Voter Registration Act of 1993, And, In Connection Therewith, Providing For Registration of Voters By Mail, At Public Assistance Offices, And At Other Government Offices, Making Other Changes In Response To The Federal Act, And Making An Appropriation Therefor Colo. Sess. Laws, ch. 294, p The Act required the Secretary to coordinate responsibilities of the State of Colorado under the federal National Voter Registration Act of 1993, 42 U.S.C. Sec. 1973gg. Id. 2, p. 1751; Colo. Rev. Stat (d) (2009). The Act also established the process by which the eligibility of electors who submitted applications would be confirmed Colo. Sess. Laws, 21, p. 1766; section In particular, (3) stated: The county clerk and recorder shall notify each applicant of the disposition of the application by nonforwardable mail. If the notification is returned to the county clerk and recorder as undeliverable, the applicant shall not be registered, or if registered the registration shall be stricken. In 1995, the Colorado General Assembly amended Colo. Sess. Laws, ch. 187, 22, p It amended (3) to read as follows: Within two business days after receipt of the application, the county clerk and recorder shall notify each applicant of the disposition of the application by nonforwardable mail. If within ten days the notification is not returned to the county clerk and recorder as undeliverable, the applicant shall not be registered. If the notification is not returned within ten days as undeliverable, then the applicant shall be deemed registered as of the date of the application; except that, if applicant was notified that the application was not complete, then the applicant shall be deemed registered as of the date of the application if the additional information is provided at any time prior to actual voting. 25

26 The General Assembly amended this section in 2005 and changed ten days to twenty business days and added after receipt of the application Colo. Sess. Laws, ch. 309, 9, p The statute did not specifically discuss the legal status of an applicant whose notification was returned. The Secretary is empowered to interpret the Election Code, (1)(c ), C.R.S. (2009). The Secretary must liberally construe elections laws so that all eligible electors may be permitted to vote and those who are not eligible electors may be kept from voting in order to prevent fraud and corruption in elections. Section (1), C.R.S. (2009). In order to clarify a potential inconsistency between the requirements of the NVRA and , the Secretary implemented policies regarding the 20-day rule. 6 In particular, the Secretary established a policy for handling new applications received shortly before an election. This policy functions as a special election-time exception to the 20-day rule. Specifically, under the Secretary s interpretation and application of the NVRA and the 20-day rule, during mail ballot voting, early voting, and on election day, an elector whose application is still in the 20-day waiting period may finalize his registration and cast a regular ballot if, and only if, he confirms the address under which he submitted his application either at the polling place or on his mail ballot affidavit. If an elector does so and his card is returned as undeliverable after his ballot has been cast (but 6 The Secretary s interpretation is entitled to respect if persuasive. Christensen v. Harris, 529 U.S. 576, 587 (2000). 26

27 still within the 20-day period), the voter will remain registered, but will be placed in inactive status. Anytime the card is returned as undeliverable after the registration application is deemed accepted (i.e., after the elector has confirmed his address or after the twenty day period has expired), the clerk will place the elector in inactive (but still registered) status, and send a forwardable card requesting that the elector confirm his address or respond with his new information. Thus, an application is not necessarily rejected just because the notification has been returned as undeliverable. Under the aforementioned circumstances, an applicant will be deemed registered upon confirmation of the address even after the notification has been returned. It is important to note that the Secretary could have, as a legal matter, continued to strictly apply the terms of (3) to all voters statewide, the consequence being that no elector would be able to cast a regular ballot until his particular 20-day period has expired, including persons who attempted to register close to an actual election. This policy would undoubtedly result in fewer successful registrations, but it would be entirely consistent with the NVRA. Even Land s interpretation assuming that it is correct and applicable to Colorado law and policy would not call the law into question. Land, after all, holds that a person is registered from the moment he is able to go to the polls and cast a regular ballot. The Secretary could decline to take the circumstances of an imminent election into account and declare that no elector could, under any circumstances, cast a regular ballot until the entire 20-day period has passed. Even assuming it was correctly decided, the holding in Land would simply be inapplicable to this interpretation. 27

28 Because (3) is entirely consistent with the Land majority s definition of registrant, the statute itself cannot be the source of Plaintiffs assertion that the 20-day rule violates the NVRA. Plaintiffs claim, therefore, must be based on the Secretary s policy of allowing an elector during mail ballot voting, early voting and on election day to bypass the normal 20-day period by confirming the accuracy of the address under which he submitted his registration application. The fact that the Plaintiffs challenge goes to the Secretary s liberal policy, however, and not the statute itself, causes serious problems for Plaintiffs position. Indeed, if the Secretary s interpretation of (3) is inconsistent with the NVRA, then we are left only with the plain language of the statute. However, strictly applying the plain language of the statute would result in fewer Coloradans being permitted to cast a ballot that counts than would be permitted to do so under the Secretary s current policies and procedures. While this result would not advance the stated goals of the NVRA and Colorado law, it would nonetheless be consistent with the definition of registrant created by the Land majority. Put another way, if (3), standing on its own, is consistent with the NVRA, then a liberal interpretation of the statute that enhances the likelihood that a registration application will be successful is, a fortiori, also valid. C. Land was wrongly decided. Although the panel majority does not actually say it, the basis of the Sixth Circuit s holding in Land is that the NVRA preempts state laws that allow election officials to thoroughly assess the eligibility of electors before adding them to the voting rolls. Land s reasoning is not explicit, but since the NVRA neither expressly preempts state law nor 28

29 occupies the field of voter registration, the majority s holding must be based on some semblance of conflict preemption. See Ramsey Winch Inc. v. Henry,555 F.3d 1199, 1204 (10 th Cir. 2009) (describing three types of preemption). The Land majority must have concluded that Michigan s statutes, which required election officials to deem an elector not registered if his confirmation card was returned as undeliverable, conflicted with the NVRA s limitations on removing registered electors from the rolls. As the Land dissent pointed out, in addition to conflicting with well-established precedent, this conclusion is a non sequitur. Because an applicant is not registered to vote under state law until he or she receives the card, there [is] no conflict between the two statutes because under the NVRA the states are still left the task of determining that an applicant is eligible[.] Land, 546 F.3d at 389, quoting Miller, 912 F.Supp. at 987; cf. Bell v. Marinko, 367 F.3d 588, 591 (6 th Cir. 2004) ( In creating a list of justifications for removal, Congress did not intend to bar the removal of names from the official list of persons who were ineligible and improperly registered to vote in the first place. ). Plaintiffs, like the Land majority, are dismissive of the district court s opinion in Miller, claiming that it discussed the meaning of registrant in a single line with no supporting reasoning. Pl. Resp. Br. at 23. This is a gross misreading of the Miller opinion, which thoroughly discussed the question whether the NVRA regulates voter qualifications (concluding that qualifications were left to the states), and conducted an extensive analysis of Michigan s practice of using nonforwardable confirmation cards to verify voter eligibility before making additions to the rolls. Miller, 912 F.Supp. at The Miller plaintiffs 29

30 argued that under the NVRA an applicant is registered upon merely filling out a registration application. Plaintiffs here contend that an elector is registered after the data from an application is entered into SCORE. 7 There is no tangible difference between these two arguments because data on an application is entered into SCORE without an independent confirmation of its validity. Plaintiffs in both cases would surely argue that a registration is complete once it is accepted by the county clerk. The flaw in this argument, however, is that confirmation of the applicant s eligibility is a key part of the registration process. Legislative history, statutory language, and common sense all compel the conclusion that the Land majority simply got it wrong. Congress did intend to protect the registrations of voters who have been properly admitted to the voting rolls, but it did not require Colorado to throw open the gates of registration to anyone real or fictitious, resident or foreign national who happened to sign a voter registration form and provide a purported Colorado address. Under Plaintiffs theory, confirming an elector s actual eligibility to vote is not part of the registration process. The implications of adopting this policy are predictable: Colorado s registration lists, as they are now, will be populated with millions of ineligible 7 Plaintiffs attempt to further distinguish their argument from the one asserted in Miller by suggesting the existence of several other steps in the registration process. Pl. Resp. Br. at All of these steps, however, follow automatically once an application is entered into SCORE. Plaintiffs have taken the position that electors are registered for the purposes of the NVRA once the clerk determines that the application is complete and accurate and enters its data into SCORE. Cf. Land, 546 F.3d at 379 ( the district court found that individuals become registrants as soon as they are placed on the [Michigan statewide database] and designated active ). The remaining facts relied upon flow directly from the application s entry into SCORE, but under Plaintiffs theory they signify confirmation of an alreadyexisting registration, and are not part of the registration process itself. 30

31 registrants. Once entered into SCORE these individuals, whether or not they are eligible to vote, will become part of the state s rolls and will remain so for a minimum of four years. As a matter of common sense, Congress simply could not have intended the NVRA to cause this result. Plaintiffs arguments should therefore be rejected. D. Even if it was correctly decided, Land is distinguishable. Plaintiffs argue that the NVRA strongly implies a definition of the term registrant, but they are unable to show that the definition formulated by the Land majority would even apply to Colorado s 20-day rule. Although there are superficial similarities between Michigan s law and the 20-day rule, two crucial distinctions render Land s holding inapplicable here in any event. First, in Michigan, active voters may vote without further action or verification. Land, 546 F.3d at 377. In contrast, Colorado electors who are still within the 20-day period may not cast a regular ballot unless and until they verify the accuracy of the address on their registration application. That confirmation operates to finalize the registration. If a postal error leads to the subsequent return of the voter information card (even if that occurs within twenty days of mailing), the registration will not be cancelled. Instead, the elector s status will be changed to Inactive returned mail, and the clerk will send a forwardable information card requesting address information. Second, Michigan law, in contrast to Colorado s 20-day rule, does not set a time limit on the failure of an application due to returned mail. As previously noted, in Colorado, successful delivery of the voter information card is presumed after the passage of twenty 31

32 days, thus a Colorado elector s registration is definitively finalized at that point. Mail returned thereafter will trigger a confirmation card, but it will not result in cancellation of the already-finalized registration. Michigan law, on the other hand, sets no time limit. Michigan s open-ended period, combined with the fact with the fact that Michigan electors in active status may vote without further action or verification, appears to leave open the possibility that an elector casting a regular ballot at the polls could later be removed from the rolls due to returned mail. As already discussed, such a scenario cannot happen under Colorado law. E. The Secretary s interpretation of Colorado law is correct. In the alternative, Plaintiffs argue that Colorado law is consistent with the definition of registrant that they urge the Court to adopt. The Secretary disagrees. As discussed at length in the Secretary s Response Brief (pp ), his interpretation of Colorado law is entitled to substantial deference. Tivolino Teller House, Inc. v. Fagan, 926 P.2d 1208, 1215 (Colo. 1996). In any event, Colorado law is not difficult to interpret. If within twenty business days after receipt of the application the notification is returned to the county clerk and recorder as undeliverable, the applicant shall not be registered (3). 8 If the 8 A 2005 amendment to (3) added the following italicized language: If within ten twenty business days after receipt of the application the notification is returned. Colo. Sess. Laws (2005), p This represents yet another acknowledgment by the General Assembly that the applicant s registration form is an application, and does not register the voter until the address listed is confirmed. 32

33 application is not returned within twenty business days of mailing, the applicant shall be deemed registered as of the date of the application. Id. The General Assembly could hardly have made its intent more clear. No further analysis is required. F. Colorado s 20-day rule is a fair and effective tool for confirming voter eligibility. Colorado s 20-day rule is designed to maximize an elector s chance of casting a ballot that counts. The foregoing demonstrates that the rule effectively balances the competing concerns expressed in the NVRA: facilitating voter registration while simultaneously ensuring that the state s official lists are populated only by eligible electors. The Secretary has never claimed that the system works perfectly or is immune to occasional human or postal error. On rare occasions, a voter information card may be returned erroneously within twenty days and before an elector attempts to cast a ballot. Such electors are deemed not registered under Colorado law, but they are not deprived of the franchise. To the contrary, and as the history of this case demonstrates, virtually every error whether it is committed by the elector in the registration application, the clerk performing data entry, or by the postal service during the address confirmation process can be and is cured by one of two methods. For electors who appear at the polls before the card has returned, an error in delivery will have no effect on the ability to cast a regular ballot, either in that election or any future ones. Electors whose cards are erroneously returned within twenty days of mailing and who appear at the polling place after the return has occurred may still cast a provisional ballot. As the history of this case shows, in virtually every case election officials will count that ballot after conducting a brief investigation. 33

34 Practically speaking, a finding that the NVRA preempts Colorado s 20-day rule will result in one of two consequences. One possibility would be to strictly apply (3), thereby restricting the ability of last-minute registrants to participate in early voting. The other would be to do as Plaintiffs suggest, and register electors without adequately confirming their eligibility to vote. The first solution will likely result in fewer electors having an opportunity to cast a ballot. The second has the potential to result in inaccurate registration rolls, widespread fraud, and the concomitant dilution of ballots cast by electors who are legitimately eligible to do so. Neither of these possibilities represents a desirable outcome, and for this reason the legality of Colorado s 20-day rule should be affirmed, and summary judgment granted in the Secretary s favor. CONCLUSION Based on the foregoing reasoning and authorities, as well as those contained in the Secretary s Memorandum of Law in Support of Motion for Summary Judgment and in the Secretary s Response to Plaintiffs Motion for Summary Judgment, the Secretary respectfully requests that this Court grant summary judgment in his favor. Respectfully submitted this 4 th day of February,

35 JOHN W. SUTHERS Attorney General s/ Monica M. Marquez MONICA M. MARQUEZ* Deputy Attorney General s/ Maurice G. Knaizer MAURICE G. KNAIZER* Deputy Attorney General s/ Melody Mirbaba MELODY MIRBABA* Assistant Attorney General s/ Matthew D. Grove MATTHEW D. GROVE* Assistant Attorney General Public Officials State Services Section Attorneys for Defendant 1525 Sherman Street, 7th Floor Denver, Colorado Telephone: (303) FAX: (303) *Counsel of Record 35

36 CERTIFICATE OF SERVICE I HEREBY CERTIFY by my signature below that on the 4th day of February, 2010, I electronically filed the foregoing REPLY BRIEF IN SUPPORT OF SECRETARY S MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will send the notification of such filing to the legal counsel of the parties herein. Furthermore, I certify that on this same date, I ed a true and accurate electronic copy of this same document to each of the legal counsel of the parties at the addresses listed below. Name of Addressee Address James E. Johnson jejohnson@debevoise.com S. Gale Dick sgdick@debevoise.com Richard Rosenblatt rrosenblatt@cwa-union.org Penda D. Hair phair@advancementproject.org Elizabeth S. Westfall ewestfall@advancementproject.org Bradley Heard bheard@advancementproject.org Wendy Weiser wendy.weiser@nyu.edu Myrna Perez myrna.perez@nyu.edu Stephen P. Berzon sberzon@altshulerberzon.com Stacey M. Leyton sleyton@altshulerberzon.com Barbara J. Chisholm bchisholm@altshulerberzon.com James Finberg jfinberg@altshulerberzon.com Karen Neuman kneuman@fairelectionsnetwork.com Sarah Brannon sbrannon@fairelectionsnetwork.com 36 s/ Thomas R. Bovee THOMAS R. BOVEE Legal Assistant Public Officials Unit State Services Section

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