IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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 RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant Bernie Buescher, in his official capacity as the Colorado Secretary of State, respectfully submits this Response to Plaintiffs Motion for Partial Summary Judgment. INTRODUCTION The Plaintiffs have moved for summary judgment on their only remaining claim. Their motion: 1) challenges the Secretary s interpretation and application of (3), C.R.S. (2009); and 2) asserts that they have organizational and associational standing to pursue this claim under the NVRA. Although the Secretary does contest many of the characterizations 1 and 1 Many of the Plaintiffs characterizations and descriptions are not facts in any sense. Given that the legality of the Secretary s actions is the central dispute in this case, the Plaintiffs repeated use of the word unlawful to describe the Secretary s conduct is particularly unhelpful. (See Open. Br. at 4, 2, 132, 145, etc.). Similar non-factual characterizations abound throughout Plaintiffs Undisputed Facts, and include use of the word purge, (Open. Br., passim), burdens (Open. Br. at 11, 44), and the phrase removed from the rolls. (Open. Br.

2 factual assertions contained in the Plaintiffs Statement of Undisputed Material Facts, the parties are nonetheless in agreement on the facts material to resolving the Plaintiffs Motion for Partial Summary Judgment. Indeed, the Secretary maintains that the interplay between (3) and NVRA is a pure question of law, and as such requires virtually no factual context to resolve. With respect to standing (which is addressed first in the Argument below), even assuming that Congress made organizational standing part of the NVRA, the Plaintiffs have failed to demonstrate that their organizational goals have been sufficiently impaired to confer organizational standing in this case. Even more importantly, Plaintiffs have utterly failed to provide proof in support of the harm that they have alleged throughout these proceedings: the disenfranchisement of [Plaintiffs ] members and citizens they registered to vote. Compl. 1. Absent a showing that anyone associated with any of the Plaintiffs suffered harm due to the Secretary s allegedly unlawful conduct, associational standing is simply unavailable. For the reasons outlined below, the Secretary respectfully requests that the Court deny the Plaintiffs motion for partial summary judgment. General Statement RESPONSE TO PLAINTIFFS STATEMENT OF UNDISPUTED MATERIAL FACTS Plaintiffs assert 172 paragraphs of purported material Undisputed Facts, many of which include legal conclusions, argument, inaccurate and non-material claims, and descriptions or at 35, 164). The Secretary notes that these words and phrases, among others, are not facts at all, and even to the extent they may be, are certainly disputed. 2

3 characterizations that are not facts in any sense. See Open. Br. at In fact, as discussed paragraph-by-paragraph below, of the 172 paragraphs alleged by Plaintiffs, only 57 paragraphs set forth undisputed facts that accurately represent the necessary and relevant information on the subject. Another 20 paragraphs allege facts, although undisputed, require additional facts in order to have accurate and complete meaning in context. Whether or not the Secretary complied with the NVRA is the central dispute in this case, yet Plaintiffs statement of Undisputed Facts repeatedly uses the words unlawful, illegal, and erroneous to describe the Secretary s conduct or interpretation of law. In addition, Plaintiffs also couch key legal conclusions as facts, which are, without a doubt, in dispute. In particular, a central legal conclusion that Plaintiffs masquerade as a fact is the assertion that persons whose registration applications failed the 20 day statute were registered. See Undisputed Facts 1, 16, 35, 147, 148, 157, 158, 162, 164, 165, 166, 167, 169, 170, 171,172. The Secretary disputes all such paragraphs because this is precisely the issue that the Court must resolve: whether or not the NVRA prohibits Colorado from confirming the eligibility of their electors prior to deeming them registered pursuant to the NVRA. Supra---. Plaintiffs attempt to incorporate their legal arguments into their undisputed facts is inappropriate, and where it has been attempted, should simply be ignored. As detailed below, the Secretary s general objections to the Plaintiffs assertions of Undisputed Fact fall into four primary categories: Additional context needed. Many of Plaintiffs assertions are incomplete and thus misleading. 3

4 Contain legal conclusions. As previously mentioned, Plaintiffs Undisputed Facts repeatedly conflate fact and legal conclusion. Inaccurate. The Secretary objects to a sizeable number of Plaintiffs Undisputed Facts because they are incorrect or lack sufficient support in the record. Characterizations. The Plaintiffs use of loaded terms such as purge, burdens, and removed from the rolls is objectionable for reasons explained below. The Secretary s specific disputes and objections, where necessary, are detailed in paragraphs corresponding to the Plaintiffs Undisputed Facts below. (1) The Secretary disputes that any registered electors have been purged pursuant to (3). To the contrary, (3) is used to confirm the eligibility of electors who complete a voter registration application. The Secretary does not dispute that at least 3,123 registration applications have failed the 20-day rule, and thus their corresponding electors have been deemed not registered pursuant to (3). (2) The Secretary disputes the Plaintiffs assertions that there were unlawful cancellations. The Secretary admits that his office has applied (3) to ensure the eligibility of registration applicants since 1995, when that legislation became effective. (3) Admitted. (4) The Secretary disputes Plaintiffs factual assertion and legal conclusion that voter registration is achieved by completing one of the several types of voter registration applications. This is simply inaccurate. The accurate and undisputed facts are that the process of registering to vote begins by completing a voter registration 4

5 application. See Rudy Supp. Aff., Ex A-1, 3. (this may be covered by last affidavit). Under the Secretary s interpretation of Colorado law, a person is not registered to vote unless the application is complete, the voter information card is not returned within 20 days of the date of the application, or, if application is submitted within 20 business days of an election, when the elector confirms his address at the time of voting. See Rudy Supp. Aff., Ex #A-1, 3. (5) Admitted. (6) The Secretary disputes Plaintiffs assertion that a county clerk must first determine that a registration application is complete and accurate prior to entering it into SCORE. This is inaccurate. 2 Rather, a clerk will enter a registration application into the SCORE database even if it is not complete, so long as there is enough information to identify the individual and contact the individual via mail. See Rudy Supp. Aff., Ex A-1, 8. The accuracy of the information has no bearing on whether the application will be entered into SCORE. Id. Accuracy is not determined at the time the application is entered into SCORE. Id. Accuracy is determined, at least in part, by mailing a voter information card to the elector s address and waiting for the 20 day period to elapse without the return of the card. Id. 2 At best, during the deposition of Hilary Rudy, Plaintiffs counsel read , C.R.S. to Ms. Rudy, and asked her whether he read it accurately. Section , C.R.S., does state that an application must be complete and accurate, but it does not state that an application must be accurate in order to be entered into the SCORE system. The Secretary affirmatively states that Plaintiffs are incorrect; accuracy is not determined at the time the application is entered into SCORE. 5

6 (7) The Secretary disputes Plaintiffs allegations to the extent that Plaintiffs assert that registration applications must be complete and accurate to be entered into SCORE. The supporting facts for this dispute are stated above in response to Plaintiffs paragraph 6 and are incorporated herein. In addition, Plaintiffs incorrectly describe status designations. Rather, it is undisputed that all registration applications that are complete receive an application status in SCORE as Active- 20 day period. Once the 20 day period elapses without the return of undeliverable voter information card, the elector s application is deemed Active and the elector is registered to vote. See id; see Rudy Supp. Aff., Ex. A-1, 9. (8) Admitted. (9) The Secretary disputes Plaintiffs legal conclusions that a voter information card informs the voter that he is registered. An individual whose voter information card is returned within 20 business days of the registration application is not registered at all. See Rudy Supp. Aff., Ex #A-1, 10. (10) The Secretary disputes Plaintiffs legal conclusions that a voter information card informs the voter of the Date Registered. The words used in the voter information are not disputed, but Plaintiffs imported meaning is disputed. The Secretary does not dispute that the voter information card provides information, if received by a voter, that will inform the voter the date that his registration will be effective. See id. The Date Registered listed on the voter information card will become the effective registration date so long as the voter information card is not returned as undeliverable within 20 business of the date of the application. See id. 6

7 An individual whose voter information card is returned within 20 business days of the registration application is not registered at all and the Date Registered has no meaning for registration purposes because the elector will never receive it and therefore, is not informed that he is registered. See id. (11) Admitted. (12) Admitted. (13) Admitted. (14) The Secretary admits that the website has been accurately quoted, but disputes the legal conclusion that the Plaintiffs derive from it. The Secretary s website is not the official record of an elector s status (see 42 U.S.C (a)(1)(A)(i)), and any reference to Date of Registration is generally only accurate after the 20-day period has passed. The website does not currently have the technical capability to distinguish active from active 20-day status. However, the Secretary is planning to add this technical capability so that individuals who look up their registration information during the time that they are in the active 20-day status will be informed of that status and its meaning under the Secretary s interpretation of law. The website will advise the individual to check her status on the day she intends to vote in order to ensure that she is in an active status or an active 20-day status at the time of voting. See Rudy Supp. Aff., Ex A-1, 13. (15) The Secretary disputes Plaintiffs assertion that an individual who finds his information on the Secretary s website is registered. The Secretary does not dispute that this is generally true. Several exceptions exist. During the 20 business 7

8 days after the elector s application is received, an individual is not registered to vote under the Secretary s interpretation of (3) (20-day statute). See Rudy Supp. Aff., Ex #A-1, 14. Whether an individual can locate information on the Secretary s website has no impact on the fact that under Colorado law the elector is not registered to vote unless and until his address (and his eligibility) is confirmed. (16) The Secretary disputes the description of electors in Active-20 day status as registrants. The Secretary admits that pollbooks do not distinguish between electors in Active-20 day status and electors in Active status. (17) Electors in active 20-day status at the time of voting may cast a regular or mail-in ballot in federal elections so long as they confirm their address at the polling place or on the mail-in ballot affidavit. See Rudy Supp. Aff., Ex #A-1, 15, 17. (18) Once cast, a regular ballot counts. No additional review is required. Once the regular ballot is cast, it is forever separated from the identity of the elector casting it. There is no ability to tie the regular ballot to the elector that cast it. However, before a person is permitted to cast a regular ballot, she must confirm her address. By virtue of the elector s address confirmation at the time of voting, an elector then in a active-20-day status will become active. If a voter information card is returned as undeliverable after an elector has cast a regular ballot while in an active- 20-day status, the elector s active status will not be changed to cancelled- 20-day because the elector provided the required address confirmation at the time of voting. See Rudy Supp. Aff., Ex #A-1, 16, 17. 8

9 (19) The Secretary disputes Plaintiffs characterization that during the 20-day window, registration applications have a status of active only. Rather, during the 20 day window, registration applications have a status of Active-20 day. When an application fails pursuant to the 20 day statute, the election official for the county in which the applicant attempted to register updates the status of an application, to Failed-20 day and the application is cancelled. See Rudy Supp. Aff., Ex #A-1, 14. (20) The Secretary disputes Plaintiffs implication that the Secretary s use of the terms in prior public statements cancellation or cancelled constituted a factual or legal admission. However, the Secretary does not dispute that his office has used the terms cancellation, and cancelled and that the SCORE system uses such terms. The technical make up of the SCORE system does not offer any other terms to describe the rejection of a registration application under the 20-day statute. However, it does permit a registration application that fails the 20-day statute to be rejected for the reason of Failed-20 day. See Rudy Supp. Aff., Ex #A-1, 18. (21) Admitted. (22) The Secretary disputes Plaintiffs assertion that electors who cast a regular ballot must orally recite their address to a poll worker. This is inaccurate. Registered electors that appear in person at a polling place must affirm their address and may do 9

10 so by signing signature card containing their address or by signing the poll book containing their address. 3 See Rudy Supp. Aff., Ex #A-1, 19, 20, 21. (23) The Secretary disputes Plaintiffs paragraph 23 to the extent that it attempts to incorporate paragraph 22 and states that an elector must also check the address on the pollbooks, or write his or her address on the signature card. This method of address confirmation is not mandatory. The county and polling place may choose their method of obtaining address confirmation. The following options are available for address confirmation prior to voting: (1) signing the signature card containing that contains the elector s address; (2) signing the poll book containing the elector s address; (3) writing down the current address on the signature card (and signing the card); (4) completing and signing the mail-in ballot affidavit containing the elector s address; and (5) completing and signing the provisional ballot affidavit after writing the address on it. However, in all cases, electors attempting to cast a ballot (regular or provisional) must confirm their address prior to casting their ballot. See Rudy Supp. Aff., Ex. A-1, 21. (24) Admitted, although it should be noted that the number cited (3,128) is most likely a typographical error, and suggests that it should be the same number (3,123) as that cited in 1. (25) Admitted. 3 Plaintiffs reference to Hilary Rudy s testimony at the Preliminary Injunction Hearing indicates only that Ms. Rudy believed that electors must orally recite their address at the polling place. It was just that, a belief, to the best of Ms. Rudy s recollection at the time. 10

11 (26) Admitted. (27) Admitted. (28) The Secretary disputes Plaintiffs characterization and conclusion that the Secretary recognized a risk that individuals might be disenfranchised by operation of the 20 day statute as unsupported by the record. Plaintiffs assert that the Statement of Justification and Reasons for Adoption of Temporary Rules for Rule 2.17 states this conclusion. However, the document makes no such statement. Instead, it says, The temporary adoption of the rule is necessary to clarify statutory language and to provide clear guidance regarding the treatment of undeliverable new voter registration notifications pursuant to section (3), C.R.S. until a legislative clarification may be proposed. It also says The Secretary of State finds that in order to protect applicants from being possibly disenfranchised due to postal or other error, applicants who are deemed not registered in accordance with section (3), C.R.S., because their new voter notification was returned as undeliverable must be afforded an opportunity to confirm their address. The language does not state that creates a risk that individuals will be disenfranchised.. See Rudy Supp. Aff., Ex. A- 1, 22, 23. (29) To the extent that this paragraph incorporates the risk assumptions set forth in paragraph 28, the Secretary disputes Plaintiffs assertions for the same reasons stated above for paragraph 28. In addition, the Secretary does not agree that Plaintiffs have provided evidence to support all other conclusions and assertions in paragraph 29. The evidence submitted relates to the Stipulated Preliminary Injunction and the 11

12 Secretary s decisions that certain provisional ballots should be counted. The Secretary does not dispute that he ordered ballots to be counted under that Stipulation that were not initially counted by the counties. However, the Stipulation required the application of a heightened standard of review for those provisional ballots, one which applied only to the ballots subject to the Stipulation. See Pltfs Ex. 21 (Order Approving Parties Stipulated Preliminary Injunction). The Secretary disputes Plaintiffs conclusion that decisions regarding those ballots, which applied the heightened standard of review, amount to an admission of any kind; it certainly does not amount to an admission of a risk of the sort suggested by Plaintiffs. The Secretary agreed to the heightened standard in the best interests of the Colorado citizens because the request for an injunction was brought by these Plaintiffs after early voting had begun and only days before the November 2008 election; the Secretary believed it was more important not to disrupt the smooth function of the election by virtue of an injunction entered by the Court without the Secretary s input. Thus, the Secretary agreed to a heightened standard of review as a compromise in order to reach an agreement that would ensure that any actions taken regarding the cancelled registrations and applications raised by Plaintiffs would be post-election, and not during the course of the election itself. See Rudy Supp. Aff., Ex #A-1, 23, 24. As the Stipulation itself says, the Secretary did not make any admissions by virtue of entering into it. See Pltfs Ex. 21, 6. (30) The Secretary disputes Plaintiffs use of the word erroneous as a legal conclusion (as previously stated herein), but also disputes this paragraph because it (1) implies 12

13 that any clerical error may result in the incorrect cancellation of an application under the 20 day statute; and (2) that all such clerical errors regularly result in the incorrect cancellation of an application under the 20 day statute. These statements lack record support. In support of their conclusion, Plaintiffs reference a statement by Hilary Rudy that sometimes there are data entry errors in the entry of information into SCORE. See Pltfs. Ex. 2, 65: 4-6. The Secretary does not dispute this. Sometimes, there are data entry errors in the entry of the information into the SCORE database. Any registration system that requires human action carries the risk of human error. The impact of any data entry error differs on a case by case basis, and often does not result in an incorrect cancellation of any record. See Rudy Supp. Aff., Ex #A-1, 25. (31) The Secretary disputes Plaintiffs assertion that the Secretary s application of the heightened standard of the Stipulated Preliminary Injunction, and his consequent decision to order that certain ballots be counted, indicates that counties erroneously reject provisional ballots cast by voters who failed the 20 day rule. Notwithstanding Plaintiffs inappropriate use of erroneous (implying a legal conclusion), Plaintiffs assumption is based on a heightened standard of review unique to the November 2008 election. The provisional ballots Plaintiffs refer to were all reviewed under a heightened standard set forth by the Stipulation. The fact the Secretary required ballots to be counted under that heightened standard is not the equivalent of an admission that the counties erroneously reject ballots. Moreover, Plaintiffs language (which is in the present tense) implies that any such incorrect rejections are on-going. To the extent that errors may occur, the Secretary has passed rules that set 13

14 forth the factors the counties should consider in determining whether a provisional ballot should count. See Ex. Q-1 (rules). Those rules were passed on December 8, No other election has taken place since then; thus, no provisional ballots have been reviewed under these formalized rules. Accordingly, there is no evidence to show that on an on-going basis, counties err by rejecting provisional ballots that should count. Indeed, the rules were intended to eliminate errors, and very well may completely serve that purpose. See Rudy Supp. Aff., Ex #A-1, 26. (32) The Secretary disputes this paragraph to the extent that it attempts to incorporate prior conclusions in paragraph 31, that counties presently erroneously reject ballots that should count. The grounds for that are stated above in response to paragraph 31 and are incorporated herein. The Secretary does not dispute that he ordered at least 51 provisional ballots to be counted under the procedures and heightened standard of review set forth in the Stipulated Preliminary Injunction and that the ballots would not have been counted without the Secretary s order. See Rudy Supp. Aff., Ex. A-1, 26. (33) Admitted. (34) The Secretary denies Plaintiffs conclusions that voting by provisional ballot or completing an emergency registration is always more time consuming and less convenient than casting a regular ballot. The difference in the time it takes to complete a provisional ballot application or emergency register as compared to casting a regular ballot may be de minimis. It depends entirely on the circumstances. In some situations, it may be more time consuming. In others, it may not be. For 14

15 instance, if a polling location permits emergency registration at that location, the extra time to emergency register may be insignificant when compared to voting a regular ballot. Moreover, individuals may require assistance when voting their regular ballot, so the time to vote a regular ballot is not always less than the time to vote a provisional ballot or to emergency register. See Rudy Supp. Aff., Ex #A-1, 27, 28. (35) The Secretary disputes Plaintiffs suggestion that an elector whose registration application has failed the 20-day rule has had his registration cancelled. The Secretary also disputes the implication that under all circumstances, a voter must first wait in line before learning that his name is not listed in the poll book. Whether a line exists depends on the circumstances. There may be no line at all. However, the Secretary does not dispute that an elector whose name is not in the poll book will be informed of this fact by the poll worker, and all options will be explained to the elector. That is, to cast a provisional ballot or to emergency register. The Secretary disputes Plaintiffs assertion that the poll worker will also always inform the elector of his or her status ; often, poll workers will not know the elector s registration status or application status at the time of voting. See Rudy Supp. Aff., Ex #A-1, 27, 28, 29, 31. (36) Admitted. (37) The Secretary disputes Plaintiffs assumption that in all circumstances, an individual casting a provisional ballot must then wait in a separate line at a provisional ballot table. The counties have discretion to arrange their tables in the manner they deem fit; it is common that polling locations set up a separate table for provisional ballot 15

16 processing, but the Secretary cannot agree that all counties and polling locations will operate in this fashion. See Pltfs. Ex. 1, Hrg. Tr. at 136:9-11. Moreover, the Secretary disputes the assumption that there will always be a line. As previously indicated, whether a line exists entirely depends on the circumstances. In some circumstances, an elector may have to do no more than take a few steps and begin resolving the issue immediately. See Rudy Supp. Aff., Ex #A-1, 32. (38) Admitted. However, the provisional ballot affidavit is attached to the outside of the sealed envelope that contains the provisional ballot. See Rudy Supp. Aff., Ex #A-1, 34. (39) The Secretary disputes the Plaintiffs assertion that [f]illing out the paperwork associated with a provisional ballot often requires the assistance of a poll worker. The transcript citation does not support this assertion. Although the election judge is available to assist if needed, the cited testimony does not support the conclusion that the paperwork often requires the assistance of a poll worker. A more reasonable interpretation of the testimony is that poll workers assist those to whom provisional ballots are provided by handing them the paperwork and telling them what to do with it once it is completed. The only paperwork that an elector must complete to cast a provisional ballot is the provisional ballot affidavit. If the elector requires assistance in filling out the provisional ballot affidavit, the poll worker or election judge is available to provide that assistance. Poll workers and election judges also provide assistance to voters who have questions when casting their regular ballot. See Rudy Supp. Aff., Ex #A-1,

17 (40) Admitted. (41) The Secretary disputes that the citation provided supports this statement. The Secretary admits that a voter cannot confirm whether the provisional ballot was counted until after the election. An individual that casts a provisional ballot is able to confirm whether the provisional ballot was counted after the election. See Rudy Supp. Aff., Ex #A-1, 36. (42) This statement is true, although it cites an outdated rule. The current rule is The Secretary notes that making a mistake on a voter registration application can have the same result. If an elector attempting to register provides an invalid address, an incorrect name, or makes another mistake on his registration application, that mistake may, in some instances, result in the rejection of his application. See Rudy Supp. Aff., Ex #A-1, 37. (43) Admitted. (44) The Secretary objects to Plaintiffs assertion that the Secretary s policy is based upon burdens. Plaintiffs exhibit reference does not contain any language which implies their conclusion. See Pltfs Ex. 1, 52: 18-53:2. The word burden is relative and its meaning will vary depending on the person asserting it. To the Secretary, it is not a burden to step to a different table or to fill out a piece of paper, particularly when there is no line. It is an additional step, not a burden. However, the Secretary does not dispute that it is his policy that poll workers should take reasonable efforts to assist electors such that they will only have to cast a provisional ballot when necessary. See Pltfs Ex. 1, 52: ( It s always preferable to resolve that prior to 17

18 moving to the provisional ballot step if possible. ). As previously indicated, whether and to what extent additional steps are required of an individual whose name does not appear on the poll book will depend on the circumstances. See Response to paragraphs 34, 35 and 37; See Rudy Supp. Aff., Ex #A-1, 39. (45) The Secretary again disputes Plaintiffs conclusion that under all circumstances, an elector must wait in a line prior to learning whether her name is listed in the poll book. As previously indicated, whether a line exists is entirely dependent on the circumstances. Some additional clarification may be helpful. In particular, on election day, an elector whose name does not appear on the poll book will follow the exact same procedures in order to learn this information as she would if she decided to vote provisionally. Whether the elector votes provisionally or opts to emergency register has no impact on the steps taken to learn those options. See Response to Plaintiffs paragraph 35. Once a poll worker determines the elector is not on the poll books, the worker will explain both the option of provisional voting and of emergency registering. Id. See Rudy Supp. Aff., Ex #A-1, 40. (46) This is generally true, although in some circumstances the polling station may allow for emergency registration on-site. See Rudy Supp. Aff., Ex #A-1, 31. (47) The Secretary disputes Plaintiffs assumption that a voter must always wait in a line at the clerk s authorized emergency registration location in order to emergency register. This entirely depends on the circumstances. See Rudy Supp. Aff., Ex #A-1,

19 (48) The Secretary disputes Plaintiffs assertion that electors waited in considerable lines during the November 2008 election. This descriptive term is vague; the Plaintiffs idea of a considerable may not be a considerable line to an elector. The exhibit Plaintiffs cite contain the same vague descriptor that lines were considerable but provides no facts setting forth quantifiable terms, such as the number of minutes it took to get through a county clerk s line. (49) The Secretary admits that an elector may cast a regular ballot after completing the emergency registration process. (50) The Secretary disputes this entire paragraph. Plaintiffs reference the deposition of Hilary Rudy in support. While Ms. Rudy may have humored counsel s hypothetical (not factual) assumptions, she did make it clear that I can t speak to what a voter would do. See Pltfs Ex. 2, 48: It may be hypothetically true that an elector could voluntarily chose to leave the polling location without voting; that hypothetical possibility will exist even for electors that vote a regular ballot. Plaintiffs have offered no evidence in the record showing that this hypothetical has factual support. (51) Admitted. The Secretary points out that the Plaintiffs have produced no such records either, despite the fact that they carry the burden of proof in this case. (52) The Secretary disputes Plaintiffs conclusions that all electors in cancelled-failed 20 day status will be required to wait in a line, wait for a poll worker to research his registration status, or go to a different location to vote. Whether any of those factors exist depends on the individual circumstances. For instance, whether there is an additional line for cancelled-failed 20 day status electors will depend on the polling 19

20 location, and whether there are enough people there to create a line in the first place. Moreover, contrary to Plaintiffs implication, electors wishing to emergency register do not necessarily need to go to a different location. In addition, there are circumstances where an elector in active status may be required to wait in an additional line prior to voting a regular ballot, or may need to provide additional information or documentation in order to vote a regular ballot. For instance, an elector may be required to provide appropriate identification prior to voting. Again this depends on the individual circumstances (polling location physical set-up or lines, for instance). See Rudy Supp. Aff., Ex #A-1, (53) Admitted. (54) Admitted. (55) Admitted. (56) Admitted. (57) The Secretary disputes Plaintiffs assertion that the Secretary determined the counties had erroneously rejected provisional ballots. This word has broad legal connotations that are generally disputed. It is possible that the Secretary overturned county decisions to reject ballots because the decisions could not be upheld based on the heightened standards of the Stipulated Preliminary Injunction. This does not mean all, or for that matter, any of the counties decisions were erroneous under any other legal standard or even under then-existing Colorado law. See Rudy Supp. Aff., Ex #A-1, 26. (58) Admitted. 20

21 (59) Admitted. (60) Admitted. (61) Admitted. However, the Secretary points out that these ballots would have been cast prior to the inception of SCORE in (62) The Secretary disputes this entire paragraph because it includes multiple disputed legal conclusions and multiple disputed facts. The Secretary has already disputed in detail Plaintiffs risk assumptions and incorporates those disputes herein (supra response to Plaintiffs paragraphs 28-32). Moreover, it is the Secretary s legal position that an elector is eligible to vote and have that vote counted if he is registered; electors who fail the 20-day statute are not registered. Therefore, Plaintiffs assumption that electors that fail the 20 day statute meet all the criteria for having their provisional ballots counted presumes that the elector is actually registered despite failing the 20 day statute. These legal positions have been in dispute since suit was filed in October The Secretary again disputes Plaintiffs assertion of their legal position as an undisputed fact. (63) Admitted. (64) Admitted. (65) The Secretary disputes Plaintiffs assertion to the extent that it provides incomplete, and misleading information concerning Mi Familia Vota s resources. In particular, the language implies that MFV s limited resources include only two full time employees during the period leading up to the November 2008 election. However, it is undisputed that MFV also had approximately five to ten volunteers and eight to 21

22 ten part-time paid staff, (Pltfs Ex. 27, Lopez depo, 25:22-25; 26:1; 58: 2-10), as well as a $250,000 budget for the 2008 calendar year (Pltfs Ex. 27, Lopez depo, 30: 24-25; 31:1). (66) The Secretary disputes Plaintiffs assertion that Mi Familia Vota planned to devote all of its resources in the weeks preceding Election Day to an outreach effort to contact new, first-time or low-propensity voters. The evidence supports a different conclusion. In particular, it cannot be disputed that MFV planned to devote at least some resources during the weeks leading up to the election to receiving and answering calls from the public regarding any questions whatsoever about voting that year through the voter hot-line that MFV had in place from May 2008 to November 4, Pltfs Ex. 27, Lopez depo, 46: 18-25; 59: As a matter of fact, MFV publicized the hotline number through media outlets as the number to call if they have any questions whatsoever about voting that year. Pltfs Ex. 27, 46: The hotline was listed on all of our materials that we handed out at either community events throughout the summer or when we went door to door and was active for Colorado from late May 2008 to Election Day Pltfs Ex : 15-22; see also Pltfs Ex. 27, 23: 9-11; 52: (calls were received on the voter hotline prior to the October 8 th ); 55: (volunteers were all trained on how to answer basic questions). However, the Secretary does not dispute that MFV planned to devote the majority of its resources to the outreach plan. (67) Admitted. (68) Admitted. 22

23 (69) Admitted. (70) Admitted. (71) Admitted. (72) Admitted. (73) Admitted. (74) Admitted. (75) This statement is incomplete and misleading. The Secretary admits that during the fall of 2008 Common Cause employed had five paid staff. However, additional evidence omitted demonstrates that Common Cause had far more resources than asserted: Q: Do you know how many volunteers you had here? A. I don t remember the exact number. It was sort of in flux, but no less than two and, I think, up to or a dozen. That s not including Election Day, when we had a number of volunteers that worked at the call center. That was more like 30 or 40, and the upwards of 200 plus in the field on Election Day. Pltfs Ex. 34, part 1, 33: Moreover, the undisputed facts also clarify that two to four volunteers at any given time means simply that is the number of people that could physically fit into Common Cause s office space, but that there were often as many as a dozen who would cycle through: I don t want to confuse, but generally, within the office, during a heightened period, we could have as many as a dozen who would cycle through. Our office isn t big enough to house all of them. Generally, our staff is small, and then we d have two to four volunteers, but also interns Pltfs Ex. 34, part 1, 33: 23-25; 34: 1-4. (76) Admitted. 23

24 (77) Admitted. (78) Admitted. (79) Admitted. (80) Admitted. (81) Admitted. (82) Admitted. (83) Admitted. (84) Admitted. (85) Admitted. (86) Admitted. (87) Admitted. The Secretary points out that the JVC steering committee met weekly starting in September Ex. 34, Flanagan Depo, 56:6-15. (88) The citation provided does not support this assertion because it makes no reference to an election reform agenda. The deponent did agree that certain issues were important to Common Cause, and its partners. Ex. 34, Flanagan Dep., 57:1-8. There is, however, no evidence demonstrating the existence of a formal election reform agenda. (89) Admitted, with the following caveat. The record supports the assertion that Common Cause planned to work on these issues in 2008, but the Secretary does not admit the validity of the concerns outlined. (90) Admitted. (91) Admitted. 24

25 (92) Admitted. (93) Admitted. (94) Admitted. (95) Admitted. (96) Admitted. (97) The Secretary objects to the use of the term cancellations in this paragraph, but admits that the New York Times of October 9, 2008, contained an article reporting on the Secretary s list maintenance activities (along with those in several other states). The Secretary disputes the accuracy of the article. See, e.g., Pltfs. Ex. 12. The Secretary admits that some other Colorado media outlets subsequently reported on the issues discussed in the New York Times story. (98) The Secretary again disputes Plaintiffs characterization of cancelled records as being purged and specifically asserts that the referenced press release contains no such statement. See Pltfs Ex. 12. Colorado does not purge registrations in any sense. Whether active, inactive or cancelled, the records are never eliminated from the SCORE database, and are therefore, never purged. See Rudy Supp. Aff., Ex #A-1, 6. (99) The phrase limited amount of attention is vague to the point of having no meaning, and the Secretary disputes the implication that it provides any meaningful information here. (100) The Secretary disputes the Plaintiffs use of the term purge. The Secretary does not dispute Common Cause s claim that it was unaware of the extent of the Secretary s 25

26 list maintenance procedures, but points out that all the information concerning Colorado s list maintenance policies and practices has been publicly available since it was put in place. That Common Cause may not have been fully aware of the policies is not reflective of whether the information was available for its consideration. (101) The Secretary disputes Plaintiffs characterization of publicity as widespread, as well as the use of the word purge. Whether publicity was widespread is a matter of opinion and is relative. However, the Secretary does not dispute that media outlets publicly reported information concerning Colorado s cancellation practices starting on October 9, See Pltf s Ex. 12 (Coffman Press release); Pltfs Ex. 39 (New York Times article). Likewise, the Secretary does not dispute that Common Cause made Colorado s list maintenance practices a central focus of its attention starting as early as October 9, 2008 and continuing beyond the election. Indeed, Common Cause is a Plaintiff in this case, and the focus of the case is on Colorado s list maintenance practices. (102) The Secretary disputes the Plaintiffs use of the term purges, but does not dispute the remaining claims. (103) The Secretary disputes the Plaintiffs use of the term purges, but does not dispute the remaining claims. (104) The Secretary disputes the Plaintiffs use of the term purge, but does not dispute the remaining claims. (105) The Secretary disputes Plaintiffs use of the word purge in this paragraph, but additionally disputes this paragraph based on characterization of the amount of time 26

27 devoted to cancellation issues during Just Vote Colorado s steering committee meetings as significant. Whether the amount of time is significant is relative to the context and circumstances, and is a matter of opinion. Here, the evidence shows that approximately 15 to 30 minutes per meeting were devoted to discussing the issues related to Colorado s cancellation practices. See Pltf s Ex. 34, 127: In the weeks leading up to the 2008 general election, the JVC Steering committee meetings lasted anywhere from an hour to two hours. See Pltfs Ex. 34, 125: (106) The Secretary disputes Plaintiffs assertion that the need to address the unlawful purges necessarily displace other items on the Just Vote Colorado steering committee s very full agenda. Notwithstanding Plaintiffs improper use of the words unlawful purges, Plaintiffs assertions are not supported by the evidence. None of the Plaintiffs exhibit references provide any evidence that addressing the Secretary s cancellation practices during the JVC steering committee meetings necessarily displaced other items from their agenda. 4 As previously indicated, only approximately minutes on average were devoted to discussing the cancellation issues at these meetings; thus, the Secretary submits that amount of time did not necessarily displace other items from their agenda. However, the Secretary does not dispute that the JVC steering committee had a full agenda, both for meetings or otherwise. 4 The Secretary only disputes this paragraph if Plaintiffs intend to state that addressing the cancellation policies during the JVC s steering committee meetings displaced agenda items. The Secretary believes this is what the Plaintiffs are alleging based on the language in this paragraph and exhibit references Plaintiffs provided. 27

28 (107) Admitted. (108) The Secretary disputes Plaintiffs characterization of significant to describe the amount of time Laurel Webb was to spend in Colorado involving the cancellation policies. Whether it was a significant part of her work in Colorado is relative to the circumstances. See e.g., Pltfs Ex. 38, 41: 1-4 ( And to the extent that I was able to in between the other things I was doing, I continued answering calls up until election day, but it became less of my time. ). However, the Secretary does not dispute that Ms. Webb devoted approximately hours researching Colorado s cancellation policies and practices. (109) The Secretary disputes several characterizations of this paragraph: purges public controversy and large number of calls. The Secretary s grounds for disputing purge references is stated in detail herein and incorporated herewith. As to whether the number of calls concerning the cancellation practices was large, the Secretary states this is relative. For instance, in 2004 and 2006, Common Cause s call center (Pltfs Ex. 34, 75: 8-10) received approximately 20,000 calls (Pltfs Ex. 34, 76: 18-22). In 2008, Common Cause documented approximately 1,800 total calls (Pltfs Ex. 34, 76: 20-22; 77: 5-9); of that number, only about 10% concerned the cancellation questions (Pltfs Ex. 34, 79: 12-20). 5 Thus, compared to 2004 and 2006, when 5 The Secretary acknowledges that these numbers provided by Plaintiffs are their best guesstimates (Pltfs Ex. 34, 77: 1-2) and that there may have been calls received in 2008 on the hotline that were not tracked (Pltfs Ex. 34, 77: 10-13). However, Plaintiffs have provided no evidence indicating the amount of calls that were not tracked, and, to the contrary have indicated that this information is provided to the best of [Plaintiffs ] ability (Pltfs Ex. 34, 77: 8-9). Plaintiffs have indicated that they do not have an idea of the number of calls that were not 28

29 approximately 20,000 calls were received, 180 calls concerning the cancellation policies is not a large amount. (110) The Secretary disputes Plaintiffs characterization that the volume of calls was much higher than anticipated. The Secretary questions whether Common Cause and SEIU anticipated the approximately 1,800 record calls that came through during the time leading up the November 2008 general election; other evidence suggest that Common Cause was aware that in the most recent prior election cycles, a larger number of calls were received, approximately 20,000 calls in 2004 and See Pltfs Ex. 34, 76: This information suggests that Plaintiffs were aware that as much as 10,000 or 20,000 calls could be received during the 2008 general election cycle. However, the Secretary does not dispute that Common Cause and SEIU were not prepared to handle the approximately 1,800 recorded calls that were received during the 2008 general election cycle. (111) The Secretary disputes the use of the terms purge and unlawfully cancelled, but does not dispute that Webb, Granderson, and Common Cause staff and volunteers responded to some phone calls related to the Secretary s list maintenance procedures. (112) Admitted. (113) The Secretary disputes the use of the terms purged and cancellation, but does not dispute that Webb spent 7-15 hours answering calls regarding concerns about their registration status and helping electors with those concerns. tracked. See Pltfs Ex. 34, 73: 24-25; 74: 1-2. Thus, the only evidence before the Court is Plaintiffs guesstimates. 29

30 (114) The Secretary disputes the use of the term purged. The Secretary disputes the assertion that the electors Webb assisted did, in fact, have their registrations fail under the 20-day rule. See Pltfs. Ex. 38, 53:2-6 ( when someone called and had a problem with their registration status, it s hard to know whether the problem was the result of the unlawful acts of the Secretary ). The Secretary admits that Webb testified that she personally helped people with their registration issues for about hours in the course of the weeks leading up to the election. (115) The Secretary disputes the Plaintiffs use of illegal purges. The Secretary does not dispute that, on Election Day, Flanagan was in the hotline call center providing guidance to volunteers and answering some calls herself. (116) The Secretary disputes Plaintiffs assertions to the extent that it purports to provide all reasons that a staff member or volunteer may not have documented calls. Evidence suggests that staff members or volunteers may have failed to document calls irrespective of the complexity of the issues, as their priority is in helping that person on the line, and not in documenting. See Pltfs Ex. 34, The Secretary also disputes Plaintiffs characterization of the volume of calls as high and the use of the word unlawful for the same reasons already set forth herein. The volume of calls may not be high considering the number of calls was thousands less than in prior election cycles. (supra, paragraph 33). (117) The Secretary disputes Plaintiffs characterization that staff and volunteers spent much more than 10% of their time addressing calls arising out of questions relating to the cancellation practices. Whether it was much more time depends on how 30

31 much more time was spent. Without any information on how much more than 10% of their time was spent, the conclusion that it was much more than 10% of their time is without sufficient evidence and is disputed. However, the Secretary does not dispute that Common Cause and SEIU spent at least 10% of their time addressing calls arising out of questions relating to the cancellation practices. (118) The Secretary disputes this paragraph to the extent that it presumes that Common Cause and SEIU did not anticipate the volume of calls that were received. See supra, Response to paragraph 110. As stated previously, the Secretary disputes the use of the word purges. However, the Secretary does not dispute that SEIU and Common Cause did not plan for, or otherwise prepare for, the amount of time that they ultimately spent addressing calls regarding cancellation practices. The Secretary does not dispute that such work was not done in anticipation of litigation. (119) The Secretary disputes the term unlawful, but admits the remaining allegations of this paragraph. (120) The Secretary disputes the term purge. Flanagan verbally supplemented the materials during training sessions. She did not actually revise them in writing. See Pltfs. Ex. 34, 87: 8-12; 87: 25; 88: 1-11; 91: 8-13; 91: 14-25). (121) Admitted. (122) Admitted. (123) Admitted. (124) The Secretary disputes the term unlawful, but does not dispute the remaining allegations in this paragraph. 31

32 (125) The Secretary disputes the term cancellations, but does not dispute the remaining allegations in this paragraph. (126) The Secretary admits that, after the 2008 election, Common Cause began to work on what it considered to be key election problems identified in the 2008 election cycle, including cancellation policies. (127) The Secretary disputes Plaintiffs characterization that Ms. Flanagan spent considerable time learning the details of the cancellation practices to prepare testimony for the Election Reform Commission. Whether any amount of time is considerable differs from situation to situation, and is entirely dependent on context. Plaintiffs have provided no context or evidence to show how much time was spent. In fact, Flanagan does not know how much time she spent educating herself on the cancellation policies in preparation for her testimony. See Pltfs Ex. 34, 107: Moreover, Flanagan testified that many of the issues about which she testified were issues she had been working on for years. See Pltfs Ex. 34, 107: 21: Flanagan did not indicate how much time was spent preparing, let alone how much of the time was specific to these issues. Pltfs. Ex. 34, 107:6-7 ( That s where it sort of took more time. Flanagan s job duties regularly included lobbying, legislative testimony, testimony in front of the Election Reform Commission, and tracking legislation. 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). 32

33 (128) The Secretary disputes this paragraph to the extent that it implies that the time spent by Common Cause and SEIU relating to the Secretary s list maintenance procedures wholly prevented them from devoting any resources to issues and projects previously on their agendas. Evidence suggests that the time and resources spent relating to the Secretary s cancellation policies was only from October 9, 2008 to November 4, See Pltfs Ex. 34, 151: 19-25; 152: 1-5. SEIU did not have any voter education programs planned for 2009 or just after the election in 2008; SEIU therefore, did not divert any resources from voter education programs to addressing the alleged unlawful actions of the Secretary. Ex. 30, 55: 2-25; 56: Since that time, there is no evidence that any of the plaintiffs have diverted resources to the address the cancellation policies outside of this litigation. The Secretary also disputes this paragraph based on the use of the word purges. (129) The Secretary disputes this paragraph to the extent that it does not specify a timeframe and therefore implies that Common Cause s efforts to oppose the Secretary s list maintenance procedures have continued to prevent it from addressing the operation of SCORE even after the 2008 general election. The Secretary disputes that, subsequent to the election, there has been an ongoing diversion of resources preventing Common Cause from addressing the operation of SCORE. See Ex. 34, 154: 5-6; also, Ex. 34, 151: 25; 152:1-16. (130) The Secretary disputes this paragraph to the extent that it does not specify a time frame. The Secretary does not dispute that, in the weeks leading up to the election, Common Cause reassigned its staff person from media and democracy work to full 33

34 time support for the Just Vote Colorado program. To the extent that this paragraph implies that this reassignment continued subsequent to the election, the Secretary does dispute it. See Ex. 34, 154: 5-6; also, Ex. 34, 151: 25; 152:1-16. (131) The Secretary disputes this paragraph because there is not sufficient evidence in the record to support Plaintiffs assertion that the number and resource-intensive nature of the calls was the cause of Plaintiffs inability to carry out other programs. See Response to paragraph 110, supra. Pltfs Ex. 34, 76: (evidence indicates that Plaintiffs were aware that as much as 10,000 or 20,000 calls could be received during the 2008 general election cycle.) The Secretary disputes whether the evidence supports that any additional efforts that Plaintiffs were unable to perform would have made the hotline and election protection program more effective, but the Secretary does not dispute that Plaintiffs believe that to be the case. The Secretary also disputes this paragraph based on the use of the word purges. (132) To the extent that Plaintiffs attempt to incorporate the same disputed facts alleged in paragraph 131, the Secretary disputes such assertions and incorporates the response to paragraph 131 herein. The Secretary does not dispute that Webb and Granderson were unable to complete all the planned work set forth in that paragraph. The Secretary disputes the use of the word unlawful. (133) The Secretary disputes Plaintiffs use of the word effectively as that is a subjective characterization that is not quantified in the evidence. However, the Secretary does not dispute that SEIU and Common Cause did not fulfill their original plans. 34

35 (134) The Secretary disputes Plaintiffs use of the word sufficient as that is a subjective characterization that is not quantified in the evidence. However, the Secretary does not dispute that SEIU and Common Cause did not fulfill their original plans or otherwise did not devote the resources they believed would be sufficient to the issues discussed in this paragraph. (135) Admitted. (136) Admitted. (137) The Secretary disputes the use of the words unlawful purge, but otherwise admits the allegations in this paragraph. (138) The Secretary disputes the assertion that MFV s hotline rang every two or three minutes until midnight as unsupported by the record. Ms. Lopez testified that the MFV office was generally staffed until midnight during this period, and that the hotline received calls all day. Ex. 27, 26:23, 52:18-53:3. (139) The Secretary disputes the use of the phrase illegal purges, but otherwise admits the allegations in this paragraph. (140) The Secretary disputes the use of the word purge, but otherwise admits the allegations in this paragraph. (141) The Secretary disputes all allegations in this paragraph; the allegations are just that, and are not supported by the evidence. First, whether the volume of calls would have remained steady is simply unknown. Other factors certainly may have played into an increase in call volume, such as a normal increase in calls as the election approached. See Pltfs Ex. 27, 47: 24-25; : ( Q. So you can t really speak to whether that 35

36 may have been the same volume of phone calls, during, say the 2006 election? A. Not with Mi Familia Vota, no. Q. You can t really compare those volumes from 2006, to say, 2008, the volume of calls? A. Correct. Q. So you don t know whether it s just common for the volume of calls to increase as an election approaches? A. Correct. ) Id., 48: 1-5. Secondly, October 9, 2008 does not mark the date of any change of policy by the Secretary. Indeed, the statute being applied (and contested here) has been in place without controversy since See (3), C.R.S. (2009). And, critically to Plaintiffs allegations of standing, the 20-day statute was not mentioned in the media coverage that allegedly triggered the increased call volume. See Pltfs. Ex. 39. All I can say is that the number of calls went up once the media got ahold of the story. Pltfs Ex. 27, 47:1-2. Thus, to the extent that the call volume increased after October 9, 2008, that increase is attributable to the media attention that was not focused on the harm alleged here. The fact that the attention came just weeks before a major election could have been a contributing factor to the increased call volume. See Pltfs Ex. 27, 54: ( a lack of trust in the system if this was happening just a few weeks before the election ); (Pltfs Ex. 39, the article, not the statute, came weeks before the election). Moreover, the language used by the New York Times, States Actions to Block Voters Appear Illegal may have also inflamed or confused the public to make more calls. See Pltfs Ex. 39; Pltfs Ex. 27, 54: ( The confusion that I think a lot of voters were calling in because they were confused. In the purge case, hearing these reports on media might have confused them even more ). 36

37 (142) Admitted. (143) The Secretary objects to the phrase illegal purges. The Secretary disputes MFV s characterization that it received a large volume of calls related to the Secretary s cancellation practices for the same factual reasons stated in response to paragraph 141. In addition, the number of calls relating to the Secretary s cancellation practices is unknown and certainly has not been established by the evidence. See Ex. 27, 46:15-25; 47: 1 ( So, I don t know how many, I have no idea ). However, the Secretary does not dispute that MFV received multiple calls every day from October 9 th to November 4 th that may have touched upon the Secretary s list maintenance practices. See Ex. 27, 53: Moreover, whether it was a large volume is dependent on the context, and there is none here. Nevertheless, the Secretary does not dispute that MFV provided minutes of training to staff and volunteers to train them on how to answer questions concerning cancellation of registration records in Colorado. (144) The Secretary disputes Plaintiffs characterizations that it often took considerable time to address a call concerning cancellation-related questions based upon the distance between the volunteers and staff members. There is no context for these characterizations, and therefore there is insufficient evidence to give them any meaning. The Secretary does not dispute that calls regarding an elector s registration status may have taken more time to resolve than other calls, and that volunteers may have had to consult with others in order to address the questions involved. 37

38 (145) The Secretary disputes Plaintiffs conclusion that the volume of calls received by Mi Familia Vota is attributable to the Secretary s actions for the same reasons set forth in response to paragraph 143 above. The Secretary disputes Plaintiffs use of the word unlawful and purge to describe the Secretary s conduct. The Secretary does not dispute that MFV assigned an additional four to five volunteers to respond to calls and that MFV had originally planned to assign these volunteers to other duties such as reaching out to new and low propensity voters or assisting with the delivery of mail ballots. The Secretary also does not dispute the remaining assertions of activities that MFV would have done if the call volume had been lower. (146) Admitted. (147) The Secretary disputes Plaintiffs legal conclusion that MFV registered 2,500 persons in Colorado in Not all of these applications resulted in a registration because some individuals applications failed the 20-day statute and were never registered. However, the Secretary does not dispute that MFV submitted registration applications on behalf of approximately 2,500 individuals in Colorado in Likewise, the Secretary does not dispute that MFV submitted registration applications for Marian Anderson, Janine Legare Low, Zayatona Ahmed, and Ivan A. Valverde. (148) The Secretary disputes Plaintiffs conclusion of law that these persons were registered simply by the fact that they filled out, and MFV submitted, registration applications. Applicants must satisfy the requirements of the 20-day statute to be registered. Of the individuals identified, Marion Anderson, Janine Legare Low, and Zayatona Ahmed were registered through the applications submitted by MFV and have passed the 20 38

39 day statute. See Ex. B-1, C-1, D-1, and E-1; Rudy Supp. Aff., Ex #A-1, 42, 43, 44. Additional information is necessary to explain the complete facts related to these individuals registration records and to understand the implications of any failed applications. The Secretary is providing such undisputed facts in the Section entitled Additional Undisputed Facts, infra. (149) Admitted. (150) To the extent that the second sentence of this paragraph implies that MFV has members, the Secretary disputes it. To the extent that MFV is attempting to assert that low-propensity voters may believe that their votes will not count, the Secretary does not dispute that such individuals may believe this. However, whether that belief is in any way triggered by or related to the Secretary s application of the 20-day rule has not been established by the evidence. On the contrary, as MFV has stated, many of these people carry this presumption based on their prior experience with the governments of their former countries. Pltfs. Ex. 27, Lopez depo, 54: MFV has provided no statements from low-propensity voters to support an assertion that the Secretary s actions have caused those voters to believe their votes will not count. The Secretary certainly cannot be held accountable for the actions of other countries. Cf. Pltfs. Ex. 27, Lopez depo., 17:13-20:3; 54:23-55:6. The Secretary does not dispute the remaining assertions of paragraph 150. (151) The Secretary disputes Plaintiffs conclusions that the Secretary s list maintenance procedures caused any electors to lose trust in the electoral system, and also disputes MFV s corresponding conclusion that this has made it more difficult for them to 39

40 engage voters in the electoral process or register them to vote based on a lack of evidence in the record. Pltfs. Ex. 27, Lopez depo., 17:13-20:3; 54:23-55:6. The Secretary also disputes Plaintiffs use of the word unlawful. (152) Admitted. (153) Admitted. (154) Admitted. (155) Admitted. (156) Admitted. (157) The Secretary disputes Plaintiffs legal conclusion that SEIU registered 3,000 persons in Colorado in Not all of these applications resulted in a registration because some individuals applications failed the 20-day statute and were never registered. However, the Secretary does not dispute that SEIU submitted registration applications on behalf of approximately 3,000 individuals in Colorado in Likewise, the Secretary does not dispute that SEIU submitted registration applications on behalf of Jean Blaylock, Aura Gomez, Vonray Little, Johnita Taylor and Tameka Thompson. See Ex. F-1 through I-1. (158) The Secretary disputes Plaintiffs conclusion of law that these persons were registered simply by SEIU submitting registration applications for the same reasons set forth in response to paragraph 157 and 147. The applicants must pass the 20 day statute to be registered. Of the individuals identified, Aura Gomez was registered through the applications submitted by SEIU and have passed the 20 day statute. Johnita Taylor is also currently registered. A significant amount of additional information is necessary 40

41 to explain the complete facts related to these individuals registration records. The Secretary is providing such undisputed facts in the Section entitled Additional Undisputed Facts, infra. (159) The Secretary disputes Plaintiffs statement that the returned voter information card had no information regarding the reason the card was returned. That card was returned with the following notation from the postal service, return to sender- not deliverable as addressed- unable to forward. (Ptlfs Ex. 48). (160) The Secretary disputes Plaintiffs conclusion that the address indicated in the returned voter information card is Gomez s correct residential address because there is evidence in the record to suggest otherwise. In particular, a voter information card has been returned as undeliverable from that address. Pltfs. Ex. 48. Plaintiffs provide no evidence to support their conclusion. (161) Admitted. (162) The Secretary disputes Plaintiffs conclusions that (1) the Secretary s cancellation policies cast doubt on whether registration applications submitted by SEIU would result in such individuals being placed on the poll book and permitted to vote; and (2) that any such doubt has harmed SEIU s registration efforts and will likely harm furture efforts. These conclusions are mere speculation that is unsupported by facts in the record. Plaintiffs do not even provide hearsay evidence from any one elector who allegedly has such doubts. 6 There is no reason to believe that Plaintiffs could not 6 The Secretary would certainly object to and dispute any hearsay evidence as there has been no opportunity for the Secretary to question any such individual. 41

42 have provided such evidence if it actually exists. To the contrary, the evidence shows that Plaintiffs had contact information for many electors that either called them to express concerns, are members of their organizations, or on whose behalf they submitted registration applications. See Pltfs. Ex. 34, 149:23-151:1; See Pltfs Ex. 33 ( 4, acknowledging that Common Cause keeps addresses on file for their members; 6 acknowledging that Common Cause reached Gail Dubas by phone, but providing no statement that Dubas was concerned or had doubts about the registration system as alleged by Plaintiffs), Plfts Ex. 3 ( 7 acknowledging membership lists); See Pltfs Ex. 2. At best, Plaintiffs have provided evidence that during the weeks leading up to the election, they took calls from electors that were concerned about the status of their registration. Without more evidence, there is no way to know that a concern cast the type and amount of doubt that could impact Plaintiffs future efforts to register electors. Moreover, any doubt on behalf of the voting public is more attributable to the timing and inflammatory nature of the media coverage than it is to the Secretary s application of the 20-day rule. See Pltfs Ex.39, October 9, 2008 New York Times article: States Actions to Block Voters Appear Illegal; Pltfs Ex. 27, 54: ( The confusion that I think a lot of voters were calling in because they were confused. In the purge case, hearing these reports on media might have confused them even more ). The fact is that the practices were already in place; the public only became concerned when the inciting article was published; language of the article aside, had the article been published months before the election, rather than weeks, then the response and doubt cast by the article may have been entirely different. 42

43 (163) The Secretary disputes all assertions of this paragraph. Plaintiffs assertions are, again, conclusions that are not supported by the evidence. As set forth above in response to paragraph 162, Plaintiffs have provided no evidence from any elector that any of them have a sense that they are not going to be able to vote. On the contrary, throughout the course of this litigation, Plaintiffs have utterly failed to provide evidence of even one elector who was unable to vote, let alone anyone who believed that due to the actions of the Secretary. See, e.g., Ex. 28, Ulibarri depo., 41:21-25, 42:1-25; Pltfs. Ex. 38, Webb depo., 70-76; Pltfs. Ex. 34, Flanagan depo., 164:25-165:1-25. Rather, Plaintiffs merely assume that because they received calls in the weeks leading up to the election with questions and concerns about registration status, that means that people think they will not be able to vote. See Pltfs Ex. 30, 43: 19-25; 44: 1-2 ( Q.... Do you have anything quantifiable for that? Like do you have any individuals that have approached you expressing that these sorts of concerns that A: I think I refer back to the statement I made about the calls that were received in the call center leading up to the election. The volume of those calls indicates to me there was a widespread concern over this purging issue, and that indicates to me that this was a major issue. It s hard to quantify, your question, but I think the level of concern about it indicates to me that that was did end up being a major issue. ) Indeed, the Plaintiffs have merely asserted that some registration applications were cancelled. See Pltfs Op. Br., 148, 158, 166, 167, 170, 172. In addition, SEIU has not engaged in any voter education efforts since the November 43

44 2008 election, so Plaintiffs have no factual basis to assert that their ability to educate people has been impacted. Pltfs. Ex. 30, 55:2-56:11. (164) The Secretary disputes Plaintiffs characterization and legal conclusion that registrations are removed from the rolls by operation of the 20-day rule. If a application fails the 20 day statute, the elector was not registered in the first place; thus, the cancellation under that provision cannot be a cancellation of a registration and does not amount to a removal from the rolls. As to whether SEIU s members failed the 20-day statute, the Secretary does not dispute that some members of SEIU were never registered because their applications failed the 20 day statute. (165) The Secretary disputes that Rudy Puente registered to vote on February 2, The Secretary asserts that Mr. Puente is now registered, and that any Failed-20 day status is outdated. See Aff. of Hilary Rudy, Ex. A-1, at 51; Ex. J-1. (166) This elector is registered to vote, and any Failed-20 day record is outdated. See Ex. K-1. (167) The Secretary disputes the assertions in this paragraph, except for the assertion that Timnit Twolde is an SEIU member. The Secretary admits that Twolde s registration is effective as of November 4, 2008, and any cancelled Failed-20 day record is outdated. See Aff. of Hilary Rudy, Ex. A-1, at 53; Ex. L-1 (SOS006042). (168) Plaintiffs have filed a notice of errata with the court amending the assertions of paragraph 168 to delete the phrase [while in cancelled 20-day status]. With that change, the Secretary admits the allegations in this paragraph. Twolde was not in a cancelled failed- 20-day status at the time of the November 2008 election, and in 44

45 fact, had not submitted any registration application in the entire state of Colorado by the time of the November 2008 election. The Secretary also disputes that Twolde cast a provisional ballot under the first name Timmit. The Secretary is of the opinion that the handwriting on the affidavit says Timnit. See Aff. of Hilary Rudy, Ex. A-1, at 53; Ex. L-1(SOS006042). (169) The Secretary disputes Plaintiffs characterization and legal conclusion that registrations are removed from the rolls by operation of the 20 day rule. If an application fails the 20 day statute, the elector was not registered in the first place, and thus has no registration that can be removed. The Secretary does not dispute that some members of Common Cause were never registered pursuant to certain registration applications they submitted because their applications failed the 20 day statute. (170) This elector is registered to vote, and any Failed-20 day record is outdated. (171) The Secretary disputes Plaintiffs assertion that because her registration had been cancelled, Ms. Dubas re-registered to vote [sic] 2008 General Election. This assertion is contradicted by the evidence Plaintiffs provided and is factually inaccurate. The application that Plaintiffs allege that supports their conclusion is dated in April See Pltfs Ex. 56, SOS bates label number Plaintiffs assert that this April 2008 application was submitted by Ms. Dubas because her registration had been cancelled. However, this simply cannot be true because Ms. Dubas application was not cancelled until May 2008 (even as asserted by Plaintiffs). Any prior cancellations have not been established as relating to the 20 day statute and 45

46 the registration records also do not indicate this. Thus, Plaintiffs assertion is inaccurate and unsupported by the evidence. (172) The Secretary disputes Plaintiffs characterization and legal conclusion that Mr. Jesser was ever registered to vote for the reasons set forth in response to paragraph 164. The Secretary does not dispute that Mr. Jesser is a Common Cause member and that he has an application currently in a cancelled- failed-20 day status. Additional information concerning this record is necessary for the court to have a complete picture of her registration records and to understand the implications of the cancelled application. This additional information is provided in the section entitled Additional Statement of Undisputed Facts. ADDITIONAL STATEMENT OF UNDISPUTED FACTS The Secretary outlines the following facts, which he asserts are undisputed, as further explanation of the registration status of the members and VRD registrants identified in the Plaintiffs Statement of Undisputed Facts. Additional Information Concerning Persons Identified by Mi Familia Vota 1. The following information relates to Plaintiffs paragraphs 147 and 148, concerning Marion Anderson. (Ex. B-1, bates labels SOS through SOS ; SOS ). a. The elector has one record in SCORE in Arapahoe County and the current status is inactive-returned mail. The elector does not have a record that is presently in a cancelled- failed-20 day period status. Ex. B-1, bates 46

47 label number SOS ; SOS b. The elector submitted a Voter Registration Drive application on July 29, 2008 through Mi Familia Vota ( MFV ). Ex. B-1, bates label numbers SOS , SOS c. The application submitted by MFV triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 15, Ex. B-1, bates label number SOS and SOS The county mailed a forwardable confirmation card. This confirmation card was returned as undeliverable on September 22, Ex. B-1, bates label number SOS On October 15, 2009, the county marked the record as cancelled- failed 20-day period and mailed another forwardable confirmation card to the elector. Ex. B-1, bates label number SOS d. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Ex. B-1, bates label number SOS Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On October 15, 2009, the county took corrective action on the status of the application by changing the status from cancelled- failed 20-day to inactive-returned mail. Ex. B-1, bates label numbers SOS and SOS e. The elector is registered to vote. 47

48 f. The status change to inactive-returned mail is the correct status for this record because (1) it should have been placed in active status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in inactive-returned mail status when the confirmation card was returned. g. Since July 29, 2008, the elector has not attempted to vote, and has not updated her registration record. Ex. B-1, bates label number SOS The following information relates to Plaintiffs paragraphs 147 and 148, concerning Janine Lagare Low. (Ex. C-1, bates labels SOS SOS004727; SOS SOS-6384). a. The elector has two records in SCORE, one that is presently in active status in Denver County and one that is cancelled- moved in Arapahoe County. The elector has no record currently in a cancelled- failed 20-day status. (Ex. C-1, bates numbers SOS and SOS ). b. The elector submitted a Voter Registration Drive application on July 29, 2008 through MFV. The application submitted by MFV triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 17, 2008 with a forwarding address in Denver County. (Ex. C-1, bates numbers SOS and SOS004725). c. The county marked the record cancelled-failed 20-day on September 23, 2008 and mailed a forwardable confirmation card on September 30, On 48

49 October 10, 2008 the elector submitted a change of address to Denver County through Department of Motor Vehicles ( DMV ). Based on the DMV update, the county marked the status active and transferred to Denver county on April 14, The elector did not attempt to vote in the November 2008 election. (Ex. C-1, bates numbers SOS , SOS004726, and SOS004727). 3. The following information relates to Plaintiffs paragraphs 147 and 148, concerning Zayatona Ahmed. (Ex. D-1, bates label numbers SOS ; SOS ). a. The elector has one record in SCORE in Arapahoe County and the current status is inactive-returned mail. The elector does not have a record that is presently in a cancelled- failed-20 day status. (Ex. D-1, bates label numbers SOS-6360.). b. The elector submitted a Voter Registration Drive application on August 8, 2008 through MFV. (Ex. D-1, bates label numbers SOS and SOS ). c. The application submitted by MFV triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 22, On September 25, 2008, the county marked the application cancelled-failed 20-day. (Ex. D-1, bates label numbers SOS and SOS ). 49

50 d. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Ex. D-1, bates label number SOS Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On January 19, 2010, the county took corrective action on the status of the application by changing the status from cancelled- failed 20-day to inactive-returned mail. Ex. D-1, bates label number SOS and SOS e. The elector is registered to vote. f. The status change to inactive-returned mail is the correct status for this record because (1) it should have been placed in active status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in inactivereturned mail status when the voter information card was returned. g. Since the date that the application was submitted, the elector has not attempted to vote, and has not updated her registration record. Ex. D-1, bates label number SOS The following information relates to Plaintiffs paragraphs 147 and 148, concerning Ian A. Valverde. (Ex. E-1, bates numbers SOS through 6168.) a. The elector has one record in SCORE and the current status is cancelledfailed 20-day. (Ex. E-1, bates label number SOS ). b. The elector submitted a Voter Registration Drive application on March 28, 2008 through MFV. The application submitted by MFV triggered the mailing 50

51 of a voter information card to the address on the application. The voter information card was returned as undeliverable on April 11, Based on this, the county marked the record cancelled- failed 20-day period on May 28, (Ex. E-1, bates label numbers SOS , SOS , and SOS ). c. The elector did not attempt to vote during the 2008 election. (Ex. E-1, bates label number SOS ). Additional Information Concerning Persons For Whom SEIU Submitted Registration Applications 5. The following information relates to Plaintiffs paragraphs 157 and 158, concerning Jean Blaylock. (Ex. F-1, bates label numbers SOS through SOS ). a. The elector has one record in SCORE and the current status is cancelledfailed 20-day. (Ex. F-1, bates label number SOS ). b. The elector submitted a Voter Registration Drive application on August 25, 2008 through SEIU. The application submitted by SEIU triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 19, 2008 with a forwarding address in Adams County. (Ex. F-1, bates label numbers SOS , SOS , SOS ). c. On September 30, 2008, the county marked the record cancelled- failed 20- day. The county sent a forwardable confirmation card on September 30, (Ex. F-1, bates label numbers SOS ). 51

52 d. The elector did not attempt to vote during the November 2008 election and has not updated her record since. 6. The following information relates to Plaintiffs paragraphs 157 to 160, concerning Aura Gomez. (Ex. F-1, bates label numbers SOS through SOS ; SOS ). a. The elector has one record in SCORE and the current status is inactivereturned mail. The elector has no record presently in cancelled- failed 20- day period status. (Ex. F-1, bates label numbers SOS and SOS ). b. The elector submitted a Voter Registration Drive application on August 7, 2008 through SEIU. The application submitted by SEIU triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 15, Based on this, the county marked the record cancelled- failed 20-day on September 17, (Ex. F-1, bates label numbers SOS and SOS ). c. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Ex. F-1, bates label number SOS Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On January 19, 2010, the county took corrective action on the status of the application by changing the status 52

53 from cancelled- failed 20-day period to inactive-returned mail. Ex. F-1, bates label number SOS d. The elector is registered to vote. e. The status change to inactive-returned mail is the correct status for this record because (1) it should have been placed in active status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in inactivereturned mail status when the voter information card was returned. 7. The following information relates to Plaintiffs paragraphs 157 and 158, concerning Vonray Little. (Ex. G-1, bates label numbers SOS through SOS ; SOS ). a. The elector has two records in SCORE one that is currently in a cancelledfailed 20-day status and one cancelled- inactive to cancelled. (Ex. G-1, bates label numbers SOS and SOS ). b. The elector submitted a Voter Registration Drive application on August 25, 2008 through SEIU. The application submitted by SEIU triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 21, Based on this, the county marked the record cancelled- failed 20-day period on September 30, (Ex. G-1, bates label numbers SOS and SOS ). 53

54 c. The elector did not attempt to vote during the November 2008 election and has not updated his record. 8. The following information relates to Plaintiffs paragraphs 157 and 158, concerning Johnita Taylor (Ex. H-1, bates label numbers SOS through SOS ). a. The elector has two records in SCORE one in a status of inactiveundeliverable ballot and one in a cancelled- failed 20-day period. (Ex. H-1, bates label numbers SOS-4690 and SOS ). b. The elector submitted a Voter Registration Drive application on September 11, 2008 through SEIU. The application submitted by SEIU triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on October 2, Based on this, the county marked the record cancelled- failed 20-day period on October 9, The elector did not attempt to vote or update her registration during the November 2008 election. (Ex. H-1, bates label numbers SOS , SOS , and SOS ). c. On February 6, 2009, the elector submitted a new application at the same address but provided a new apartment number. The application was not submitted through any of the Plaintiffs voter registration drives. (Ex. H-1, bates label numbers SOS ). d. When the county processed the February 2009 application, they did not identify the new application as belonging to Taylor s cancelled failed 20- day record and did not update the cancelled record with the new information 54

55 provided on the new application. Instead, the county created a duplicate registration; the cancelled- failed-20 day record remains. (Ex. H-1, bates label numbers SOS and SOS ). e. The February 6, 2009 application triggered the mailing of a voter information card to the address provided on the application. The voter information card was not returned as undeliverable. The February 6, 2009 application resulted in an active registration for this elector. f. During the 2009 coordinated election, the county sent the elector a ballot through the February 6, 2009 registration to the address provided on that application. The ballot mailed to the elector in the 2009 coordinated election was returned undeliverable. Based on this, the county marked the status to inactive- undeliverable ballot. (Ex. H-1, bates label numbers SOS ). g. The elector is eligible to vote a regular ballot based on her inactiveundeliverable ballot registration. h. The elector s two records will be consolidated into one record as a part of the VoICE process. The cancelled- failed-20 day period application will become a part of the history for this individual elector. The most recent status will be controlling for registration purposes, that is, the inactiveundeliverable ballot record. 9. The following information relates to Plaintiffs paragraphs 157 and 158, concerning Tameka Thompson (Ex. I-1, bates label numbers SOS through SOS ). 55

56 a. The elector has one record in SCORE and the current status is cancelledfailed 20-day. (Ex. I-1, bates label numbers SOS ). b. The elector submitted a Voter Registration Drive application on August 15, 2008 through SEIU. This application triggered the mailing of a voter information to the address provided on the application. The voter information card was returned as undeliverable on September 15, The returned voter information card provided a new address for elector in Denver. On September 17, 2008 the county sent a forwardable confirmation card to the address on the application. (Ex. I-1, bates label numbers SOS , SOS , and SOS ). c. The elector did not attempt to vote during the November 2008 election and has not attempted to vote or otherwise updated her record since. (Ex. I-1, bates label numbers SOS ) Information Concerning Identified Members of SEIU 10. The following information relates to Plaintiffs paragraph 165 concerning Rudy Puente. (Ex. J-1, bates label numbers SOS through SOS , SOS through SOS-4656). a. The elector has one record in SCORE and the current status is inactivereturned mail. (Ex. J-1, bates label numbers SOS ). b. The elector submitted a Voter Registration Drive application on February 22, This application triggered the mailing of a voter information card to the address on the application. The voter information card was returned as 56

57 undeliverable on March 27, Based on this, the county marked the application as cancelled- failed 20-day period on May 7, Ex. J-1, bates label numbers SOS , SOS , and SOS ). c. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On January 19, 2010, the county took corrective action on the status of the application by changing the status from cancelled- failed 20-day period to inactive-returned mail. (Ex. J-1, bates label numbers SOS ). d. The elector is registered to vote. e. The status change to inactive-returned mail is the correct status for this record because (1) it should have been placed in active status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in inactivereturned mail status when the voter information card was returned. f. The elector did not attempt to vote in the 2008 November election and has not updated his record since. (Ex. J-1, bates label numbers SOS The following information relates to Plaintiffs paragraph 166 concerning Diana Bain. (Ex. K-1, bates label numbers SOS through SOS ; SOS ). a. The elector has three records in SCORE (1) one active in Adams County (2) one cancelled- failed 20- day period in Arapahoe County and (3) one 57

58 cancelled moved in Moffat County. (Ex. K-1, bates label numbers SOS , SOS , and SOS ). b. The elector is registered to vote. c. The elector submitted a Federal Mail Registration application on August 14, 2008 to Arapahoe County. That application triggered the mailing of a voter information card to the address provided on the application. The voter information card was returned as undeliverable on September 15, 2008 with a forwarding address in Adams County. Based on the returned voter information card, the county marked the record cancelled- failed 20 day period on September 17, On that same day, the county mailed a forwardable confirmation card to the address on the application.. (Ex. K-1, bates label numbers SOS , SOS , and SOS ). d. On October 1, 2008, the elector returned the confirmation card and verified the move to Adams County; at that same time, she requested a mail-in ballot for the November 2008 election. (Ex. K-1, bates label numbers SOS and SOS ). e. Adams County processed the application as a new application for registration and created a new record. Adams County mailed the elector a ballot for the November 2008 election. The elector cast that ballot and returned it to Adams County. (Ex. K-1, bates label numbers SOS and SOS ). f. The elector s records will be consolidated into one record as a part of the VoICE process. The cancelled- failed-20 day period application will 58

59 become a part of the history for this elector, as well as the cancelled-moved record. The most recent status will be controlling for registration purposes, that is, the active record. 12. The following information relates to Plaintiffs paragraph 167 concerning Timnit Twolde. (Ex. L-1, bates label numbers SOS through SOS ; SOS ). a. The elector has one record in SCORE and the current status is inactivereturned mail. The elector has no record presently in a cancelled- failed 20- day period status. (Ex. L-1, bates label numbers SOS ). b. On Election Day, November 4, 2008, the elector appeared in person to vote in Arapahoe County. As of November 4, 2008, there was no record in SCORE indicating that Twolde had submitted a registration application in any county in Colorado. (Ex. L-1, bates label numbers SOS and SOS ). c. At the November 2008 election, Twolde cast a provisional ballot, and as a part of that, he completed a provisional ballot affidavit. The name provided on the affidavit is Timnit Twolde. Ex. L-1, SOS The provisional ballot affidavit was treated as a registration application. d. The November 2008 application triggered the mailing of a voter information card. The voter information card was returned as undeliverable on February 26, 2009 with a forwarding address in Arapahoe County. Based on this, the county marked the record cancelled- failed 20-day period on March 10, The county mailed a forwardable confirmation card to the elector on 59

60 March 17, (Ex. L-1, bates label numbers SOS , SOS , and SOS ). e. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On January 19, 2010, the county took corrective action on the status of the application by changing the status from cancelled- failed 20-day period to inactive-returned mail. (Ex. L-1, bates label numbers SOS ). f. The elector is registered to vote. g. The status change to inactive-returned mail is the correct status for this record because (1) it should have been placed in active status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in inactivereturned mail status when the voter information card was returned. h. The elector did not attempt to vote in the 2008 November election and has not updated his record since. (Ex. L-1, bates label numbers SOS ). Information Concerning Identified Common Cause Members: 13. The following information relates to Plaintiffs paragraph 170 concerning Gail Dubas. (Ex. M-1, bates label numbers SOS through SOS ; SOS ). a. This elector has six records in SCORE (1) one active in Douglas County; (2) one cancelled- failed 20-day in Douglas County; (3) one cancelled- 60

61 conversion in Douglas County; (4) one cancelled- withdrawn in Douglas County (5) one cancelled- conversion in Denver county and (6) one cancelled- withdrawn in Douglas County. (Ex. M-1, bates label numbers SOS , SOS ; SOS , , , ). b. The elector submitted a state Voter Registration application on April 3, 2008 to Douglas County and requested a mail-in ballot. This application triggered the mailing of a voter information card. The voter information card was returned as undeliverable on April 22, 2008 with a forwarding address in New Mexico. Based on this, Douglas County marked the record cancelled- failed 20-day. Douglas County mailed a forwardable letter on April 29, 2008 requesting that the elector update her information. (Ex. M-1, bates label numbers SOS , SOS , and SOS ). c. The elector responded to the letter on May 13, 2008 clarifying that the New Mexico address was the elector s mailing address. Douglas County did not update the cancelled- failed 20-day period record, but instead created a duplicate registration. The county mailed the elector a ballot for the November 2008 election through this registration. (Ex. M-1, bates label numbers SOS , SOS , SOS ). d. The elector cast the ballot and returned it to the county. (Ex. M-1, bates label numbers SOS ). e. The elector is registered to vote. 61

62 f. The elector s records will be consolidated into one record as a part of the VoICE process. The cancelled- failed-20 day period application will become a part of the history for this elector, as well as the rest of the elector s records. The most recent status will be controlling for registration purposes, that is, the active record. 14. The following information relates to Plaintiffs paragraph 172 concerning Luke Jesser. (Ex. N-1, bates label numbers SOS through SOS ; SOS SOS006441). a. The elector has two records in SCORE one cancelled- failed 20-day period in Larimer county and one cancelled-moved in Weld County (Ex. N-1 SOS005504; SOS006435). b. The elector submitted an Emergency Registration application in Larimer County on November 2, This triggered the mailing of a voter information card to the address on the emergency registration. The voter information card was returned as undeliverable. Based on this, Larimer county marked the elector s record cancelled- failed 20-day on December 28, (Ex. N-1, bates label numbers SOS ). c. When the record was marked cancelled- failed 20-day period, the SCORE system was not in place. Larimer County s system at the time is called the legacy system. 62

63 d. When the record migrated into the SCORE system, the status incorrectly migrated as a pending status. On May 21, 2009 the county corrected the status to cancelled- failed 20-day to reflect the accurate registration history. e. The elector has not attempted to vote or otherwise update his registration since the November 2004 application. (Ex. N-1, bates label numbers SOS ). SUMMARY OF THE ARGUMENT With respect to standing, the Plaintiffs have failed to demonstrate that Colorado s policies have prevented any of their members or VRD registrants from exercising the right to vote. Plaintiffs therefore lack associational standing to act on behalf of their members. Organizational standing is likewise unavailable for two reasons. First, the NVRA did not create an organizational cause of action, but instead limited enforcement of its provisions to aggrieved individual voters and/or the United States Attorney General. Second, even assuming that the NVRA contemplates organizational enforcement actions, the Plaintiffs have failed to show sufficient impairment of their organizational goals to qualify for standing under Article III. Plaintiffs legal analysis labors under the misconception that (3) Colorado s 20-day rule operates to remove registrants from the official list of eligible voters in violation of 6(a) of the NVRA. This argument suffers from a fundamental flaw: Colorado electors whose applications fail the 20-day rule are not registrants under Colorado law and, as such, are never part of Colorado s official list of eligible voters. Rather than removing registrants from the voting rolls, (3) instead ensures elector eligibility prior to finalizing registration. Because the NVRA places strict limitations on the removal of registrations after they are finalized, confirmation of eligibility prior to registration is an essential element of 63

64 accurate list maintenance. Colorado s treatment of electors who fail the 20-day rule as ineligible ab initio is thus entirely consistent with the obligations imposed by the NVRA. The NVRA requires states to enhance[] the participation of eligible citizens as voters in elections for Federal office, while at the same time ensuring that accurate and current voter registration rolls are maintained. 42 U.S.C. 1973gg(b)(2), (4). The Colorado General Assembly and the Secretary have made policy choices designed to effectuate these goals in a manner specifically contemplated by the legislative history of the NVRA. Section (3) is designed to ensure that only eligible electors are admitted to Colorado s voting rolls, while at the same time minimizing the impact of mistakes by both applicants and election officials that will inevitably occur. As with any system that relies on human input for literally millions of data points, errors are unavoidable. The discovery process in this case, however, has shown that the chances of the 20-day rule erroneously preventing an eligible elector from having his vote counted are vanishingly small. The benefits of the 20-day rule, on the other hand, are substantial. Section (3) prevents fraud, ensures that applicants are eligible to vote before admitting them to state s official list of registrants, and allows election officials to make certain that the voter rolls are as accurate and as current as possible. Colorado s policy choices effectively balance the competing requirements of the NVRA, and for that reason should be upheld. ARGUMENT The Plaintiffs allege that they have standing to pursue their claims, and also urge the Court to conclude as a matter of law that Colorado electors whose registrations fail due to applicant ineligibility are in fact registrants within the meaning of the NVRA. Questions of 64

65 standing aside, whether or not such electors qualify as registrants is, in reality, the only issue before the Court. If they do, then the NVRA prohibits their removal from the list of official voters unless certain specific conditions (that have not been met here) are satisfied. If an elector does not qualify as a registrant, however, the NVRA does not require the Secretary to ignore his ineligibility and admit him to the state s current voter registration rolls. The NVRA does not extend so far as to preempt the authority of states to manage their own processes for eligibility determination and registration. I. Standard of review Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the suit under the governing law. Pelt v. Utah, 539 F.3d 1271, 1280 (10 th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue is one for which the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Pelt, 539 F.3d at 1280 (quoting Liberty Lobby, 477 U.S. at 248). Tenth Circuit caselaw provides that [t]he moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment. Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10 th Cir. 2002) (internal quotation omitted). When the moving party carries the burden of persuasion at trial, a more stringent summary judgment standard applies. Pelt, 539 F.3d at Under these circumstances, to prevail on summary judgment the moving party cannot force the nonmoving party to come forward with specific 65

66 facts showing there is a genuine issue for trial by pointing to parts of the record that it believes illustrate the absence of a genuine issue of material fact. Id. (internal quotation omitted). To the contrary, the nonmoving party is not obligated to bring forward any specific facts to rebut the movant s case unless and until the moving party has established, as a matter of law, all essential elements of the issue. Id. As discussed above, the Secretary disputes many of the Undisputed Facts alleged in the Plaintiffs motion for summary judgment, and objects to virtually all of the characterizations masquerading as Undisputed Facts. The Secretary maintains, however, that virtually none of the facts alleged by Plaintiffs are material to resolving the legal issues underlying Count I of the Amended Complaint because the question whether Colorado s 20-day rule violates the NVRA is a pure question of law. II. Plaintiffs have not demonstrated that they have organizational or associational standing to pursue their claims. It is well-settled that the Plaintiff bears the burden of establishing standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992), and that to do so the Plaintiff must demonstrate (1) an injury in fact, (2) causation, and (3) redressability. Id. To satisfy the injury in fact prong, 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 (10th Cir.2009) (quotation omitted). Causation requires 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). The redressability prong is met when it is likely, as opposed to merely speculative, that the injury will be redressed by a 66

67 favorable decision. Id. at 181. The Secretary challenged the Plaintiffs standing in detail in his own motion for summary judgment, at pages 12-29, arguing that the Plaintiffs lack organizational standing on two grounds and associational standing on one. In lieu of repeating those arguments in this brief, they are briefly summarized below and incorporated herein by reference. The import of the factual assertions made by the Plaintiffs in support of their own motion for summary judgment is addressed in more detail. A. Independent organizational standing does not exist under the NVRA. First, the NVRA does not confer independent standing on organizations to file enforcement actions on behalf of themselves. To the contrary, Congress, when passing the NVRA, explicitly limited its enforcement to: 1) private individuals aggrieved by violations of the Act, and 2) the United States Attorney 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 ). As explained in detail in the Secretary s motion for summary judgment, the Act s legislative history and intent strongly support this position. Accordingly, the Court should exercise its power of prudential standing to dismiss Plaintiffs claims for lack of organizational standing. 67

68 B. Even assuming that organizational standing exists under the NVRA, the Plaintiffs did not suffer sufficient organizational injury to qualify for standing under Article III. Second, even if independent organizational standing does exist under the NVRA, the facts asserted by Plaintiffs, even assuming their truth, do not establish sufficient harm or impairment of their organizational goals to qualify. The discovery process has shown that the Plaintiffs planned to be heavily involved in the 2008 election from the beginning. The Secretary s list maintenance activities did nothing to change that, and did not perceptibly impair the Plaintiffs organizational goals. Moreover, as noted in the Secretary s Response to Plaintiffs Statement of Undisputed Material Facts, supra, the record simply does not support many of the Plaintiffs factual assertions concerning the extent to which their organizational interests were harmed by the Secretary s list maintenance activities. Mi Familia Vota The Plaintiffs assert that the Secretary s list maintenance procedures interfered with the alleged plans of Mi Familia Vota ( MFV ) to devote all of its resources in the weeks preceding Election Day to an outreach effort to contact new, first-time or low-propensity voters, encourage them to vote, and educate them on the voting process. Plaintiffs Motion for Partial Summary Judgment, p. 16, 66. The record clearly establishes, however, that MFV had also planned to establish a voter hotline intended to answer any questions whatsoever about voting that year. Pltfs Ex. 27, Lopez dep. 46:18-25; Like the Plaintiffs in their summary judgment motion, MFV s deponents alleged that call volume increased as a result of the media attention instigated by the New York Times article published on October 9, Plaintiffs Motion for Partial Summary Judgment, p. 30, There are at least two problems with this 68

69 assertion. First, it is very likely that a great deal of the increased call volume was attributable simply to the fact that the election was rapidly approaching, and was not necessarily caused by the media attention. Second, beyond making vague claims that MFV received multiple and large numbers of calls regarding the illegal purges, Plaintiffs are unable to credibly quantify the injury that MFV allegedly suffered. While the Secretary does not dispute that MFV received some calls as a result of the media attention, he does maintain that MFV s vague assertions of injury are insufficient to demonstrate a concrete and particularized invasion of a legally protected interest. Stewart, 554 F.3d at SEIU Like MFV, SEIU alleges that the increased call volume that allegedly resulted from the media attention forced a diversion of resources away from planned activities such as setting up poll monitoring teams. Laurel Webb, an SEIU law fellow, testified that SEIU s representatives on the Voter Protection Hotline received a significant number of calls related to the Secretary s list maintenance policies. Pltfs. Ex. 38, p Ms. Webb explained that SEIU devoted a notable portion of its call center training sessions to explaining issues associated with the Secretary s list maintenance activities, and went on to testify that the greater-than-anticipated call volume interfered with her ability to organize and dispatch monitoring teams on election day. Id., p. 55: :1-25. Common Cause Common Cause has been heavily involved in both the Colorado legislative and electoral processes for some time. It is a large organization during the electoral cycle. In 2008, it employed five paid staff members and up to a dozen volunteers in the weeks leading up to 69

70 Election Day. Pltfs. Ex. 34, part 1, 33: On Election Day itself, Common Cause employed volunteers at its call center, along with more than 200 additional volunteers in the field. Id. Jenny Flanagan, the organization s executive director, regularly participates in legislative and rulemaking hearings, and monitors the progress of proposed bills and election rules throughout the year. Pltfs. Ex. 34, pp. 15: :1-22. Common Cause is a founding member of Just Vote Colorado, a coalition whose goals Ms. Flanagan described as follows: to monitor and document the elections, just try to watch and see what's happening and document what's happening with the elections in the state of Colorado; and then also to provide assistance to the voting public, to understand what the laws are, and to ensure that they have the tools that they need in order to vote. Id., p. 43:1-9. As it did during the 2004 and 2006 election cycles, Common Cause maintained a voter hotline in the weeks leading up to the 2008 general election. Id., p. 62:5-10. Although the hotline received approximately 20,000 calls during each of the previous two general elections, in 2008 Common Cause documented only 1,800 calls. Id., p. 76: Eighty to ninety percent of these involved questions concerning the basics of where, when, and how to vote, including questions about mail ballots. Id., p. 82:24-25; 82:1-13. Ms. Flanagan stated that the remaining ten percent of calls were related to the Secretary s disputed actions. As with MFV, Common Cause alleges that call volume picked up following the publication of the New York Times article on October 9, 2008, and that it was forced to supplement its training materials for call center staff to better prepare them for calls related to the article. Plaintiffs Motion for Partial Summary Judgment, p. 24, 109, 110, The Secretary does not dispute that Common Cause staff spent time researching the list maintenance 70

71 activities and responding to calls. However, all parties agree that one of Common Cause s primary activities was providing a hotline intended to answer questions about voter registration. The fact that approximately ten percent of those calls may have been prompted by outside media attention brought to bear on the Secretary s list maintenance activities does not represent a concrete and particularized injury to Common Cause s organizational goals. The focus of media attention The Plaintiffs motion for partial summary judgment addresses the only claim remaining: Colorado s requirement that an elector s address be confirmed prior to his admission to the voting rolls. See (3), C.R.S. (2009). In order to establish organizational standing to pursue this claim, the Plaintiffs must detail the diversion of resources that were specifically directed to counteracting Colorado s application of the allegedly unlawful 20-day rule. The Plaintiffs have provided no specific evidence on this point. Indeed, the Plaintiffs have made only general assertions that their increased call volume was the direct result of the media attention instigated by the October 9, 2008, New York Times article. That this increased call volume forced a diversion of resources is the Plaintiffs only cognizable assertion of organizational harm. The connection that the Plaintiffs attempt to draw between the media attention and their increased call volume is important because the media attention focused exclusively on the timing of the Secretary s list maintenance activities, and did not even mention his application of the 20- day rule. The New York Times article in particular claimed that Michigan and Colorado are removing voters from the rolls within 90 days of a federal election, and made no mention of the 20-day rule. Pltfs. Ex. 39, at p. 1. If, as the Plaintiffs claim, the New York Times article caused of a flood of phone calls, it logically follows that those callers were inquiring about the list 71

72 maintenance activities that the article actually discussed. It is telling that the Plaintiffs have made no allegations to the contrary. However, given that (3) has been on the books in substantially the same form since 1995, it is perhaps unsurprising that the calls received by the Plaintiff organizations appear to have been focused elsewhere. Accordingly, even if the Plaintiffs are able to show that the Secretary s list maintenance activities were the genesis of any increased call volume, they have presented no evidence specific to the diversion of resources necessitated by the Secretary s compliance with (3). Given that the media attention that the Plaintiffs rely upon was focused on the Secretary s other alleged violations of the NVRA (which are no longer at issue), it seems unlikely that any significant amount of the call volume was focused on the 20-day issue. The Plaintiffs failure to demonstrate that their alleged injuries are fairly traceable to the Secretary s conduct is fatal to their claim of organizational standing, and the Secretary respectfully requests that their remaining claim therefore be dismissed. C. Associational standing is unavailable since not one of the Plaintiffs members or VRD registrants was deprived of the right to have his or her vote counted. Third, thus far, the Plaintiffs have been categorically unable to demonstrate that any of their members or VRD registrants suffered disenfranchisement the harm alleged in the Complaint and Amended Complaint as a result of Colorado state law and/or the Secretary s policies and procedures. To the contrary, more than a year of discovery has proven just the opposite. Every one of Plaintiffs members and VRD registrants who attempted to vote was able to do so successfully. In short, Colorado s effort to balance the competing goals of the NVRA worked remarkably well in the 2008 elections. The Plaintiffs are unable to demonstrate any 72

73 harm to either themselves or their members, and as such do not have standing to pursue their claims here. III. Applicable provisions of the NVRA and Colorado law The National Voter Registration Act of 1993 The NVRA has several straightforward goals: to increase the number of eligible citizens registered to vote in federal elections; to enhance the participation of eligible citizens as voters in federal elections; to protect the integrity of the electoral process; and to ensure that accurate and current voter registration rolls are maintained. 42 U.S.C. 1973gg(5)(b). To further the first two of these goals, Section 8 of the NVRA establishes several basic requirements with respect to administration of voter registration, including a general prohibition on the removal of registrants from the official list of eligible voters except under certain circumstances not implicated by the 20-day rule. 42 U.S.C. 1973gg-(6)(a)(3), (4). Section 8 effectuates the NVRA s third and fourth goals by requiring states to conduct regular list maintenance designed to ensure that the voting rolls remain populated by eligible electors only. The NVRA preempts state laws that are inconsistent with it, but it does not occupy the field of state voter registration. See Charles H. Wesley Educ. Foundation, Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir.2005) (NVRA overrides all state laws inconsistent with its specific mandates). State law thus remains in force to the extent that it does not: 1) contradict the terms of the NVRA; and 2) interfere with the NVRA s purposes. Id. at (striking down state registration law prohibiting bundling of registration forms as inconsistent with express requirements of NVRA); American Ass n of People with Disabilities v. Herrera, 580 F.Supp.2d 1195, 1242 (D.N.M. 2008) (holding that New Mexico statute regulating third-party registration 73

74 agents does not interfere with NVRA s purposes). Given that the NVRA already intrudes deeply into the operation of state government, Association of Community Organizations for Reform Now v. Edgar, 56 F.3d 791, (7 th Cir. 1995), broad interpretations of the Act have typically been disfavored. Id. at (striking down portion of district court s decree issued under the NVRA that failed to exhibit an adequate sensitivity to the principle of federalism ); see also Voting Rights Coalition v. Wilson, 60 F.3d 1411, 1416 (9 th Cir. 1995) (directing district court to impose no burdens on the state not authorized by the Act which would impair the State of California s retained power to conduct its state elections as it sees fit ). Although the NVRA preempts certain aspects of state government s traditional control over voter registration and list maintenance, Congress limited the depth of its intrusion into state electoral management with respect to eligibility determinations. The Act neither defines registrant nor preempts state laws setting minimum requirements for eligibility. To the contrary, aside from setting minimum guidelines for the registration process, the NVRA leaves questions of eligibility and confirmation of that eligibility entirely to the states. This conclusion finds support in both the language of the NVRA itself, which clearly distinguishes between applicants and registrants, as well as the Act s legislative history, which clarified that [s]tates may adopt whichever procedure they deem best suited to provide notice to the applicant and to provide the registrar with verification of the accuracy of the information provided by the applicant. Congress likewise acknowledged that most States utilize the U.S. 74

75 Mail for this process, as a means of detecting the possibility of fraud in voting registration. 7 Ex. R-1. Colorado law Like the NVRA, Colorado law clearly distinguishes between applicants and registrants. This distinction allows state election officials to confirm an elector s eligibility before adding him to the official rolls, where, pursuant to the NVRA, even ineligible registrants must languish for at least four years. Colorado achieves this goal by adding electors to the official rolls only after confirming their eligibility to vote in Colorado. Confirmation requires two steps. First, [u]pon receipt of an application, the county clerk shall notify that the application is complete and accurate (2), C.R.S. (2009). Second, if the application is complete and accurate, the county clerk sends a notice of disposition that is intended to confirm the address information provided by the applicant (3), C.R.S. (2009). The mailing of the notice of disposition has several possible outcomes: o If the notice of disposition is not returned as undeliverable within 20 days, then the elector is added to Colorado s official list of eligible voters. Id. o If the notice of disposition is returned as undeliverable within 20 days, however, the elector is deemed not registered pursuant to (3), 7 The NVRA s legislative history is discussed in more detail in the Secretary s Motion for Summary Judgment, at pp That argument will not be repeated here, but is incorporated by this reference. 75

76 and the county clerk must follow up with a forwardable confirmation card that will follow the elector to his new address. 8 C.C.R (Rule 2.17). o Electors whose original notice of disposition is returned as undeliverable may confirm their registration by either responding to the forwardable confirmation card or visiting the county clerk s office and filling out a certificate of registration. To ensure full compliance with the NVRA, the Secretary has adopted election rules designed to minimize the impact of postal errors while simultaneously maximizing the chances that an eligible elector will have his vote counted. Between the time that the notice of disposition is mailed and the expiration of the 20-day period, an elector is classified as Active 20-day, which means that he may vote a regular ballot so long as he confirms the accuracy of the address under which he registered. Ex. A-1, 15. This confirmation may be done either on a mail ballot or in person at a polling place. An elector deemed not registered due to a returned notice of disposition may still cast a provisional ballot at the polls. 8 C.C.R (Rule ). This ballot will be counted if the elector s affidavit substantially confirms the address on the original registration form (this is the address to which the notice of disposition would have been mailed). Id. Once the affidavit is compared to the information in SCORE, the elector s registration would relate back to the original date that he completed the registration application. Id. 76

77 IV. Colorado s procedures for confirming eligibility of electors do not conflict with, and are thus not preempted by, the NVRA. Plaintiffs position that Colorado s 20-day rule violates the NVRA hinges on their contention that the federal law defines registrant. The Plaintiffs cannot prevail on this claim unless they are able to show that: 1) the NVRA defines registrant, and 2) that the federal definition conflicts with Colorado s approach to confirming elector eligibility. A. Determination of elector eligibility is controlled by state law, not the NVRA In U.S. Student Association Foundation v. Land, 546 F.3d 373 (6 th Cir. 2008), a divided panel of the Sixth Circuit Court of Appeals concluded that the NVRA defines registrant, thus preempting the states from legislating in this area. The Land dissent, relying in part on district court precedent from the same circuit, sharply disagreed, concluding that elector eligibility is a question of state law, and is not controlled by the NVRA. Land, 546 F.3d at (Vinson, J., dissenting); citing Association for Community Organizations for Reform Now v. Miller, 912 F.Supp. 976 (W.D. Mich 1995) (holding that the NVRA does not regulate qualifications of voters, and upholding address confirmation method similar to Colorado s 20-day rule), aff d 129 F.3d 833 (6 th Cir. 1997). The dissenting judge in Land, together with the district court s decision in Miller, represents the better-reasoned approach to defining the relationship between the NVRA and related state law. Although there are several crucial differences between the two, the Michigan statute at issue in Land has a number of similarities to (3), C.R.S. (2009). As in Colorado, the 77

78 Michigan law at issue provided for address confirmation via nonforwardable mail. 8 Once an elector s application was processed and the confirmation card sent, the elector was eligible to vote unless and until the card was returned as undeliverable. The Land majority held that this practice was incompatible with the NVRA s limitations on the removal of electors from official lists of eligible voters. Untroubled by the fact that the NVRA does not contain a definition of registrant, the Land majority simply supplied its own: Because the ultimate goal of registering to vote is to permit a person actually to vote, we think that, at the very least, a person becomes a registrant, for the 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. Land, 546 F.3d at 383. Given the amount of exacting detail found throughout the NVRA, it is exceedingly unlikely that Congress simply forgot to define registrant. This omission is crucial because the NVRA s prohibitions on the removal of eligible voters apply, by definition, only to those electors found on a state s official lists. Rather than representing a drafting error, Congress decision not to define registrant reflects a conscious choice to limit the depth of its intrusion into areas that are better managed by the states. Put differently, Congress, in passing the NVRA, recognized that state and local election officials are best-equipped to determine exactly who and who is not eligible to register in a particular jurisdiction. And, as noted above, the legislative history acknowledges the fact that the U.S. Mail is perhaps the best way to confirm an elector s residence address. 8 In contrast to (3), the Michigan statute does not appear to have set a time limit on the period for returned mail. Land, 546 F.3d at

79 As the dissenting judge in Land pointed out, in passing the NVRA 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. Id. at (quoting Bell v. Marinko, 367 F.3d 588, 591 (6 th Cir. 2004)). Indeed, in light of the strict limitations that the NVRA places on the removal of registrants from a state s official lists, eliminating the ability of states to confirm an elector s eligibility before finalizing his registration would be at cross-purposes with the NVRA s stated goals of preventing fraud and ensuring the maintenance of accurate voter rolls. Thus, as the dissenting judge argued, a registrant must be a qualified voter who is legitimately on the voting rolls. 546 F.3d at 393. The majority simply skipped over the importance of determining eligibility, and appeared to take the position that everyone who is entered in the database is per se qualified. Id. at 393. Adopting this conclusion ignores the possibility indeed, the likelihood of voter fraud. As the dissent put it: [t]here is a presumption that if your mail is not delivered to you then you do not reside at the listed address. That presumption is used in the law and in business every single day. Id. Plaintiffs argument thus boils down to whether or not Congress intended to preempt the ability of the states to determine the eligibility of their own electors. The legislative history clearly indicates otherwise, and clarifies that, in addition to notifying the elector of his registration, the notice of disposition could also be used as a means of detecting the possibility of voter fraud (i.e. eligibility verification). 9 To hold otherwise would emasculate the ability of the state to confirm an elector s eligibility before placing him on the voting rolls. 9 The relevant legislative history is cited in full in the Secretary s Memorandum of Law in Support of Motion for Summary Judgment, at pp , incorporated herein by reference. 79

80 B. The differences between Michigan and Colorado law render the majority holding in Land inapplicable Colorado s procedures for confirming the eligibility of its electors further highlight the deficiencies in the reasoning of the Land majority. As noted above, in the absence of a key statutory definition, the Land simply created its own, holding that a person becomes a registrant under the NVRA from the first moment that he or she is actually able to go to the polls and cast a regular ballot. 546 F.3d at 383. Even assuming that this conclusion were correct, it would not impact Colorado law because Active 20-day electors may not go to the polls and cast a regular ballot without also confirming their eligibility to vote. Indeed, although electors in Active 20-day status may go to the polls, they must confirm the registration information provided on the application form before they are permitted to cast a regular ballot. Ex. A-1, 15. This stands in contrast to Michigan law, under which [a]ctive is the default label which allows an individual to vote without further action or verification. Land, 546 F.3d at 377 (emphasis added). Accordingly, even if the Land majority accurately concluded that the NVRA preempts conflicting state law, its holding does not apply here because Active 20-day electors in Colorado may not cast a regular ballot absent confirmation that their registration address is correct. Even under the Land majority s approach, a Colorado elector in Active-20 day status is not a registrant that is, actually able to go to the polls and cast a regular ballot unless and until he takes the extra step of verifying his address, and thus his eligibility to vote. Colorado s narrow exception to the 20-day rule applies when an applicant seeks to register close to the registration deadline. In that instance, the election may occur before the passage of the 20 business days. In light of that possibility, the state has chosen to err on the side 80

81 of protecting those applicants by allowing them to request a mail ballot and to simply confirm the address in that process or in person at a polling place. The fact that Colorado has recognized this narrow exception for applicants during the actual election period does not negate the purpose of the 20-day provision, nor is Colorado s effort to protect last-minute applicants illogical or absurd. States may make different public policy choices in their efforts to strike a balance between protecting the right to vote and protecting against voter fraud. In Colorado, the legislature has made the public policy choice to use the 20-day procedure to ensure that applications for voter registration contain valid addresses. An applicant is therefore not deemed registered under Colorado law until the final eligibility criterion the elector s address has been confirmed. This approach is entirely consistent with the NVRA s implicit delegation of eligibility determinations to state election officials. To the extent that Land holds otherwise, it is incorrectly decided and its reasoning should be rejected. V. Colorado s approach to confirming applicant eligibility does not establish that electors in 20-day active status are registrants under the NVRA. Colorado statutes distinguish between applicants and registrants in precisely the same manner contemplated by the NVRA s legislative history. The Secretary s rules follow this approach to the letter, providing that, under Colorado law, an applicant does not become a registrant (and thus is not added to the state s official voting rolls) until the conclusion of the 20-day period. 8 C.C.R (2.17). This interpretation and implementation of Colorado statutes is entitled to substantial deference. Tivolino Teller House, Inc. v. Fagan, 926 P.2d 1208, 1215 (Colo.1996) ( courts generally give deference to administrative interpretations of statutes 81

82 by the agencies charged with their administration and enforcement ); see also E.R. Southtech, Ltd. v. Arapahoe County Bd. of Equalization, 972 P.2d 1057, 1059 (Colo. App. 1998) (agency interpretations are given deference unless those interpretations are clearly in error ). The Plaintiffs interpretation of Colorado law should therefore be rejected. Upon receipt of completed voter registration forms, county clerks are required to notify each applicant of the disposition of the application by nonforwardable mail (3), C.R.S. (2009) (emphasis added). If the application is incomplete or inaccurate, the county clerk notifies the applicant of this status, stating the additional information required (2), C.R.S. (2009). If that applicant provides the additional information required at any time prior to casting a vote, the applicant shall be deemed registered as of the date of the application (3). If the application is complete and accurate, the county clerk shall notify the applicant of the registration (2) (emphasis added). At the time of this notification, the applicant s status in the SCORE system is reflected as: Active 20 day. If, within 20 business days after receiving the application the notification letter is returned to the county clerk as undeliverable, the applicant shall not be registered (3). However, if the notification is not returned within twenty business days as undeliverable, then the applicant shall be deemed registered as of the date of the application.... Id. At that point, the individual s status within the SCORE system becomes simply Active, and the 20-day notation is removed. If the county clerk receives information indicating that the address provided on an application is invalid because the notification card is returned as undeliverable then Colorado law states that the applicant shall not be registered (3). The fact that an applicant 82

83 temporarily appears in the system as Active- 20 day while confirmation is awaited does not change this analysis, because Colorado law is clear that where the notice is returned as undeliverable, such persons never become registered voters. Amendments made to in 1995 confirm the Secretary s interpretation of this provision. Prior to 1995, section (2) stated in relevant part: If the application is complete and accurate, the applicant shall be deemed registered as of the date of the application, and the county clerk and recorder shall notify the applicant of the registration. However, House Bill specifically deleted the above-italicized language from that provision Colo. Gen. Sess. Laws ch. 187, 22. It is reasonable to infer from the 1995 amendment that the legislature intended to clarify that an applicant does not become a registrant unless and until the State receives confirmation of the validity of the applicant s address. Such confirmation is simply presumed where the notification letter is not returned as undeliverable within 20 business days. Colo. Rev. Stat (3). Confirmation can also occur if the applicant casts a vote by mail-in ballot during that 20-day window and confirms his address by signing the accompanying affirmation on the return envelope. Colo. Rev. Stat (1). Finally, confirmation can occur when the applicant appears in person to vote during that 20-day window and confirms his address on the required signature card. Colo. Rev. Stat (2) & (1). Under no circumstance can the applicant vote a regular ballot (by mail or in person) without first confirming his address (and thus his eligibility to vote). In sum, Colorado law consistently refers to such individuals as applicants throughout the process, which accurately describes individuals status during the 20-day window in which 83

84 the State awaits confirmation of that applicant s address. Contrary to Plaintiffs suggestion, this provision does not operate to cancel any registered voter s registration in violation of the NVRA. Rather, as a matter of state law, such individuals are applicants who are not ever actually registered. Plaintiffs rely heavily on their Undisputed Facts to argue that as a practical matter electors in 20-day active status have the same rights as registrants, and thus should be treated as such under the NVRA. First, as previously noted, the Secretary disputes the majority of the Plaintiffs Undisputed Facts, and objects particularly to the characterizations scattered throughout. Just as important, however, is the fact that none of the Undisputed Facts are material to determining whether the electors in Active 20-day status are registrants for the purposes of the NVRA. Under the standard articulated in Pelt, supra, a material fact is one that might affect the outcome of the suit under the governing law. 539 F.3d at Even if they were true, Plaintiffs allegations about Colorado s implementation of the 20-day rule would have no bearing on whether the statutes and rules at issue violate the NVRA. Indeed, Plaintiffs Undisputed Facts do nothing but muddy the waters on what is clearly a pure question of law Paragraph 15 of the Plaintiffs Undisputed Facts, for example, asserts that an individual whose information is posted on the Secretary s website is registered, the obvious implication being that this designation indicates admittance to the state s official list of registered electors. The Secretary s website is simply not designed to provide electors with a final verdict on the status of their application and/or registration. To do so would involve a much more complicated interface that would likely cause more confusion than it resolved, and would lead to absurd results if, as follows as a logical corollary to the Plaintiffs argument, website errors were to supersede an elector s actual status as reflected in SCORE. Plaintiffs reliance on ancillary factual issues such as this are a distraction from the legal questions that this Court must resolve: whether or not registration is a question of state or federal law and, if not, whether the Secretary has properly interpreted Colorado state law to conclude that electors are not 84

85 Colorado s practices and procedures clearly have no impact on whether the NVRA preempts Colorado law and, if so, how the NVRA should be interpreted. Likewise, Colorado s efforts to minimize the impact of human error committed by applicants, data clerks, and the U.S. Postal service do nothing to change the statutory definitions of applicant and registrant. Plaintiffs Undisputed Facts are immaterial, and as such not be taken into consideration. The foregoing demonstrates Colorado s commitment to fulfilling the two primary goals of the NVRA: to increase voter registration and participation while simultaneously guarding against voter fraud. There can be little doubt that the NVRA was designed to prevent states from manipulating their lists of official voters, but the statute was never intended to interfere with the states authority to determine exactly who belongs on those lists in the first place. To hold otherwise would be flatly contrary to the NVRA s directive that states work to maintain accurate and current lists of registered electors. Colorado s method of confirming elector eligibility violates neither the NVRA nor the Constitution, and for that reason, Plaintiffs motion for summary judgment should be denied. CONCLUSION Based on the foregoing reasoning and authorities, the Secretary respectfully requests that this Court deny the Plaintiffs motion for summary judgment. Submitted this 22 nd day of January, registered until their eligibility has been confirmed by the passage of the 20-day period articulated in (3). 85

86 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 86

87 CERTIFICATE OF SERVICE I HEREBY CERTIFY by my signature below that on the 22nd day of January, 2010, I electronically filed the foregoing Brief in Opposition to Plaintiff s Motion for Partial 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 (without Exhibits B-1, through O-1, which were filed under seal) 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 Additionally, on this same date, I sent true and accurate copies of Exhibits B-1, C-1, D-1, E-1, F-1, G-1, H-1, I-1, J-1, K-1, L-1, M-1, N-1, and O-1(which were filed under seal) by firstclass U.S. mail to the following persons at the addresses listed below. 87

88 Name(s) of Addressee(s) James E. Johnson S. Gale Dick Richard Rosenblatt Penda D. Hair Elizabeth S. Westfall Bradley Heard Wendy Weiser Myrna Perez Stephen P. Berzon Stacey M. Leyton Barbara J. Chisholm James Finberg Karen Neuman Sarah Brannon Address 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 th Floor New York, NY 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/thomas R. Bovee THOMAS R. BOVEE Legal Assistant Public Officials Unit State Services Section 88

89 Exhibit A-1

90 AFFIDAVIT OF HILARY RUDY IN RESPONSE TO PLAINTIFFS' PARTIAL MOTION FOR SUMMARY JUDGMENT STATE OF COLORADO ) ) SS. CITY AND COUNTY OF DENVER ) I, Hilary Rudy, being duly sworn, hereby state the following: 1. I am over the age of I have personal knowledge of the matters set forth herein and am able to testify to these matters if called upon to do so. 3. I am employed at the Colorado Department of State as a legal specialist. My job duties include interpreting and analyzing federal and state election laws to assist with the development of programs and rules consistent with those laws. I provide guidance and advise to Colorado's 64 county clerks ("counties") with regard to the Secretary of State's ("Secretary") interpretation of those laws. I am specifically involved with the State of Colorado's Registration and Election system ("SCORE") to ensure that the development and implementation of the system is consistent with federal and state election law. I also help develop processes for the counties to follow in using this system and provide guidance to the counties in following those processes consistent with the Secretary's interpretation of state and federal election law. In my role, I have developed a strong knowledge of SCORE, which includes the ability to conduct thorough research of registration records maintained in the SCORE system. Based upon the research I am able to conduct in the SCORE system, I am able to determine whether an individual has a record in SCORE, whether an elector's registration has been cancelled, transferred, re-designated or otherwise modified, the meaning of status designations, updates and modifications on records, whether multiple registration records exist in SCORE for one elector, whether an elector voted in an election, the method by which the elector voted (e.g., on Election 1

91 Day, mail-in, early voting), whether the elector received voting credit. 4. As a part of my job duties, I have also become familiar with election day processes at the counties during an election, including emergency registration and provisional ballots. I provide support to the Elections Customer Support Unit and respond to specific county inquiries, as well as collaborate in the development and presentation of policy and training materials. In addition, I assist with responding to inquiries and election day complaints submitted by electors, political parties, poll watchers, and voting advocacy groups. 5. I have had an opportunity to review Plaintiffs' Brief in Support of Motion for Partial Summary Judgment, all declarations and attachments thereto. This Affidavit is intended to provide information in response to Plaintiffs' assertions of "Undisputed Fact" in order to provide a complete and accurate picture of certain facts alleged by Plaintiffs. 6. Under the Secretary's interpretation of relevant Colorado law, the completion of a voter registration form is only the first step in successfully registering to vote. Registration is not "achieved" by filling out a registration form. To the contrary, an elector is deemed registered under Colorado law only after the application is completed, the voter information card is not returned within 20 days of the date of the application, or, if the application is submitted within 20 business days of an election, when the elector confirms his address at the time of voting. Colorado does not "purge" registrations in any sense. Whether active, inactive or cancelled, the records are never eliminated from the SCORE database, and are therefore, never "purged." 7. The Secretary commonly refers to the requirements of (3), Colo. Rev. Stat. as "the 20 day rule." The "20 day rule" is not a rule; it is a statute. (This information is provided in response to Plaintiffs' paragraph 3). 8. A registration application is entered into SCORE regardless of whether it is 2

92 "complete" so long as there is sufficient information to identify the applicant by name and contact them. For example, if the application contains only the elector's signature, the application will not be entered into SCORE. If the application does not contain all of the statutorily required information it is placed into an "incomplete" status and the elector is notified of the additional information needed to complete the application. (This information is provided in response to Plaintiffs' paragraphs 6 and 7). 9. When a registration application is in an "active 20-day" status, 20 business days have not elapsed since the date the application was submitted. (This information is provided in response to Plaintiffs' paragraph 7). 10. By operation of the 20 day statute, every complete registration application is input into SCORE and is initially designated as "active-20 day" status. The county clerk sends a voter information card to every individual who has submitted a complete application. If the voter information card is delivered to the voter, it serves as a notice of disposition of the registration application. 1t does not serve as a notice of disposition if the voter information card is returned to the county clerk as undeliverable because it is never delivered to the applicant. In those situations, the applicants are deemed not registered under the Secretary's interpretation of State and federal law. The "Date Registered" listed on the voter information card will become the effective registration date so long as the voter information card is not returned as undeliverable within 20 business of the date of the application. (This information is provided in response to Plaintiffs' paragraphs 9, 10, 11). 11. If the voter information card is not returned as undeliverable, no other notice of disposition of the application is sent to the elector. However, if the voter information card is returned as undeliverable, another mailing is sent to the elector by forwardable mail. (This 3

93 information is provided in response to Plaintiffs' paragraph 12). 12. The Secretary's website allows any individual to search for the registration records of any elector. The individual conducting the search is not limited to searching for her own record so long as she provides the information required for the search. (This information is provided in response to Plaintiffs' paragraph 13). 13. The Secretary's website does not currently distinguish "active" from "active 20- day" status. However, the Secretary is planning to update the design to provide electors with more comprehensive information regarding the status of their application or record and advise then of any steps required to make their record "active." (This information is provided in response to Plaintiffs' paragraph] 4). 14. During the 20 business days after the elector's application is received, an individual is not registered to vote under the Secretary's interpretation of (3) (20-day statute). When an application fails pursuant to the 20 day statute, the election official for the county in which the applicant attempted to register updates the status of an application, to "Failed-20 day" and the application is cancelled. (This information is provided in response Plaintiffs' paragraph 15 and 19). 15. Electors in "active 20-day" status at the time of voting may cast a regular or mail-in ballot in federal elections so long as they confirm their address at the polling place or on the mail-in ballot affidavit. (This information is provided in response to Plaintiffs' paragraph 17). 16. Once cast, a regular ballot counts. No additional review is required. Once the regular ballot is cast, it is forever separated from the identity of the elector casting it. There is no ability to tie the regular ballot to the elector that cast it. However, before a person is permitted to 4

94 cast a regular ballot, she must confirm her address. By virtue of the elector's address confirmation at the time of voting, an elector then in a "active-20-day" status will become "active." If a voter information card is returned as undeliverable after an elector has cast a regular ballot while in an "active- 20-day" status, the elector's "active" status will not be changed to "cancelled- failed 20-day period" because the elector provided the required address confirmation at the time of voting. (This information is provided in response to Plaintiffs' paragraph 18). 17. The Secretary's interpretation of the 20 day statute to permit electors to cast a regular ballot while in "active- 20-day" status and to require a status change to "active" after address confirmation at the time of voting is intended to maximize the number of people able to cast a ballot that will count while also complying with the intent of the 20-day statute to obtain address confirmation. Moreover, the Secretary's interpretation of the 20-day statute to strictly require that only those applications whose voter information cards are returned within 20 business days of the application is also intended to maximize electoral participation, while also complying with the plain language of the statute. Both interpretations are intended to to apply Colorado law of "substantial compliance" as set forth in section (3), C.R.S. ("Substantial compliance with the provisions or intent of this code shall be all that is required for the proper conduct of an election to which this code applies."). (This information is provided in response to Plaintiffs' paragraphs 17 and 18.). 18. The Secretary's office has used the terms "cancellation" and "cancelled" to describe the act of rejecting a registration application for failing the 20-day statute. The Secretary's use of the word "cancellation and "cancelled" has never been intended to carry any special meaning beyond the fact that this is the word used by the SCORE software. The SCORE 5

95 software also specifically provides for a reason for the "cancellation" as "failed 20-day period." (This information is provided in response to Plaintiffs' paragraph 20). 19. Electors are not required to orally recite their address to a poll worker at the time of voting. When I answered a question during the preliminary injunction hearing about this, I was not positive that an elector would be required to orally recite their address; I specifically said that I believed that was correct. PItfs' Ex. 1,76: 22. However, irrespective of the manner chosen, all electors must confirm their address prior to voting a regular or a provisional ballot. (This information is provided in response to Plaintiffs' paragraph 20). 20. All electors must confirm their address either at the polling location at the time of voting or on the mail-in ballot affidavit prior to casting a ballot that will count. For address confirmation purposes, the difference between mail-in (regular) ballots and voting a regular ballot at a polling location is that at a polling location, prior to receiving a regular ballot, the individual must first confirm her address. For mail-in ballots, address confirmation is done on the mail-in ballot affidavit. When voting a provisional ballot, the elector confirms his address on the provisional ballot affidavit. (This information is provided in response to Plaintiffs' paragraphs 21, 22, and 23.). 21. Address confirmation at the time of voting may occur in several ways. The counties have discretion to determine which method they chose for an elector to confirm her address. The following options are available for address confirmation prior to voting: (l) signing the signature card containing that contains the elector's address; (2) signing the poll book containing the elector's address; (3) writing down the current address on the signature card (and signing the card); (4) completing and signing the mail-in ballot affidavit containing the elector's address; and (5) completing and signing the provisional ballot affidavit after writing the address 6

96 on it. (This infonnation is provided in response to Plaintiffs' paragraph 23.). 22. On January 2009, the Secretary adopted temporary new rule 8 CCR (Rule 2.17), "to clarify statutory language and to provide clear guidance regarding treatment of undeliverable new voter registration notifications pursuant to section (3), CR.S., until a legislative clarification may be proposed." Among the Secretary's bases for adopting the temporary rule was a finding that "in order to protect applicants from being possibly disenfranchised due to postal or other error, applicants who are deemed 'not registered' in accordance with section (3), C.R.S., because their new voter infonnation card was returned as undeliverable must be afforded an opportunity to confirm their address." The Secretary did not make any finding that section , C.R.S. creates a risk that individuals will be disenfranchised. This rule is now permanent. (This information is provided in response to Plaintiffs' paragraph 28.). 23. Rule 2.17 requires counties to mail a confirmation card by forwardabl to any applicant who is deemed not registered undcr the 20 day statute. The confirmation card provides the individual with notice (prior to the time of voting) that the county has received information indicating the elector has either moved or has not voted in a recent election and asks the elector to update his or her information with county. Ex. P-l. The card provides a space for the elector to update their address (and therefore, confirm their most recent residential address). Ex. P-l. If the individual confirms his address or otherwise updates his infonnation, the individual is registered as of the date of the original application. If, however, the individual does not respond to the confirmation card, and nevertheless appears to vote, he will be offered a provisional ballot, or he may complete an emergency registration application. On the provisional ballot affidavit, the individual will have another opportunity to confinn his address. (This 7

97 infonnation is provided in response to Plaintiffs' paragraphs 28 and 29). 24. The Secretary's review of county decisions regarding provisional ballots following the 2008 general election was done pursuant to the heightened standard of review outlined in the Stipulated Preliminary Injunction signed on or about October 29,2008. The Secretary agreed to the heightened standard in the best interests of the Colorado citizens because the request for an injunction was brought by these Plaintiffs after early voting had begun and only days before the November 2008 election; the Secretary believed it was more important not to disrupt the smooth function of the election by virtue of an injunction entered by the Court without the Secretary's input. Thus, the Secretary agreed to a heightened standard of review as a compromise in order to reach an agreement that would ensure that any actions taken regarding the relevant cancelled registrations and rejected applications would be post-election, and not during the course of the election itself. As provided in the Stipulation itself, the Secretary did not make any admissions by virtue of entering into it. (This information is provided in response to Plaintiffs' paragraph ). 25. On occasion, incorrect information is entered into the SCORE database or other errors are made. Like any other system that requires human input, management of the SCORE database carries the risk of typographical problems and other human error. The impact of any given clerical error on an elector's registration application varies from case to case, and often does not result in the failure of an elector's application. (This infonnation is provided in response to Plaintiffs' paragraph 30.). 26. Following the 2008 general election, and pursuant to the Stipulation signed a few days before the election, the Secretary ordered certain counties to count fifty-one provisional ballots that the counties had rejected. The Secretary's reversal of the county decisions was based 8

98 on the heightened standard of review contained in the Stipulation. It was not the equivalent of an admission that the counties "erroneously" rejected such ballots. On December 8, 2009, the Secretary adopted rules outlining the factors that counties should consider in assessing whether a particular provisional ballot should count. No elections have taken place since December 8, 2009, and thus no provisional ballots have been reviewed under these rules. (This information is provided in response to Plaintiffs' paragraph 31, 32, 57). 27. Voting by provisional ballot or completing an emergency registration is not always more time consuming and less convenient than casting a regular ballot. Depending on the circumstances, it may take very little additional time to complete a provisional ballot application or an emergency registration. For instance, if a polling location permits emergency registration at that location, the time to complete an emergency registration may also be insubstantially more than the time required to vote a regular ballot. Moreover, individuals may also require assistance when voting their regular ballot. so the time to vote a regular ballot is not always less than the time to vote a provisional ballot or to complete an emergency registration. (This information is provided in response to Plaintiffs' paragraph 34, 35 and 45.). 28. It is not true that in all circumstances a voter is required to wait in line before learning that his name is not in the pollbook. In some circumstances there may be no line at all. An elector whose name is not on the pollbook will be informed of this fact by the poll worker, and all options (provisional ballot or contact the county office for emergency registration) will be explained to the elector. The poll worker is not always able to inform the elector of his "status," because poll workers often are unable to determine the elector's registration or application status at the time of voting. (This information is provided in response to Plaintiffs' paragraph 34 and 35.). 9

99 29. The physical arrangement of each polling place is a matter left to the counties' discretion. Counties assign their polling locations based upon a number of factors including whether they are a vote center or precinct polling county, the number of registered electors in each precinct, the availability of physically accessible locations, natural boundaries or barriers, etc. County clerks may, with the approval of the county commissioners, choose to utilize vote centers or combine precinct polling locations to meet the needs of their electors. (section , C.R.S., Election Rule 7). (This information is provided in response to Plaintiffs' section II( C), pages 10-13). 30. The layout and setup of each polling location is determined by the county based upon the space available, number of voting booths and machines, number of electors, security concerns, etc. In designing the layout, the county is provided some general guidelines in statute and rules regarding privacy and accessibility. (sections , , C.R.S.). However, they ultimately have discretion in setting up the locations to meet their particular needs. Although a security plan must be filed the counties are not required to submit any plan regarding the layout or specific additional services provided at a polling location. (This information is provided in response to Plaintiffs' section II(C), pages 10-13). 31. A county clerk may set up as many or few authorized locations for emergency registration as he or she deems appropriate. (section , C.R.S.) In some cases, the county clerk will authorize the county vote center locations to serve as emergency registration sites because these locations frequently have the necessary access to SCORE. However, there are currently only 16 of 64 counties that utilize the vote center model and not all of these counties authorize voter registration activities at every vote center location. (This information is provided in response to Plaintiffs' section II(C), pages 10-13). 10

100 32. It is common that polling locations set up a separate table for provisional ballot processing, but it is not necessarily true that all counties and polling locations will operate in this fashion. Whether there is a line for either regular or provisional balloting depends on the circumstances. In some circumstances, an elector who is not on the pollbook may have to do no more than walk a few steps to begin resolving the issue. (This infoffilation is provided in response to Plaintiffs' paragraph 34,35,37). 33. If an election judge or poll worker is able to attempt to resolve a problem with an elector's registration at the time of voting, the elector must wait for the election judge to do so. See Pltfs' Ex. 1,52: The amount oftime that requires depends on the circumstances. There may be occasions when an election judge or poil worker does not have the ability to take the time to attempt to resolve the question. See Pltfs' Ex. 1,53: 3-9. It entirely depends on the circumstances of the election. The Secretary of State provides guidance that election judges and poll workers should attempt to resolve an elector's absence from the poil book. If they are able to do so, the elector may cast a regular ballot. If not, the elector may vote provisionally, or emergency register. (This information is provided in response to Plaintiffs' paragraph 36). 34. An elector casting a provisional ballot must confirm her residence and eligibility to vote on the provisional ballot affidavit. The provisional ballot affidavit is attached to the outside of the sealed envelope that contains the provisional ballot until it is determined that it should count. At that time, the provisional ballot affidavit is forever separated from the provisional ballot and there is no ability to tie the ballot back to the elector that cast it. The provisional ballot affidavit requires all of the same information required by a standard Colorado voter registration application, but may not be completely identical. (This information is provided in response to Plaintiffs' paragraph 38). 11

101 35. The only "paperwork" that an elector must complete to cast a provisional ballot is the provisional ballot affidavit. If the elector requires assistance in filling out the provisional ballot affidavit, the poll worker or election judge is available to provide that assistance. Poll workers and election judges also provide assistance to voters who have questions when casting their regular ballot. (This information is provided in response to Plaintiffs' paragraph 39). 36. An individual that casts a provisional ballot is able to confirm whether the provisional ballot was counted after the election. (This information is provided in response to Plaintiffs' paragraph 41). 37. Election Rule referenced in Plaintiffs' paragraph 42 is out-dated. The new Rule is Rule Voting by provisional ballots is not required because an elector whose name does not appear on the poll book has the option of emergency registration. (This information is provided in response to Plaintiffs' paragraph 43). 39. It is the Secretary's policy to require poll workers to assist electors such that they will only have to cast a provisional ballot when it is necessary to do so. The policy is not based on "burdens" to the elector. Whether and to what extent additional steps will be required of an individual whose name does not appear on the poll book will depend on the circumstances. (This information is provided in response to Plaintiffs' paragraph 44.) 40. On election day, an elector whose name does not appear on the poll book will follow the exact same procedures in order to learn this information as she would if she decided to vote provisionally. Whether the elector votes provisionally or opts to emergency register has no impact on the steps taken to learn those options. Once a poll worker determines the elector is not on the poll books, the worker will explain both the option of provisional voting and of 12

102 emergency registering at the same time. (This information is provided in response to Plaintiffs' paragraph 45.) 41. Electors with registration status of "Inactive," regardless of the type of inactive status (e.g., "inactive-returned mail" "inactive-undeliverable ballot" "inactive-failed to vote") are registered and eligible to vote a regular ballot at State and Federal elections in Colorado. Additional Information Concerning Persons Identified by Mi Familia Vota 42. The following information relates to Plaintiffs' paragraphs 147 and 148, concerning Marion Anderson. (Ex. B-1, bates labels SOS through SOS ; SOS ). a. The elector has one record in SCORE in Arapahoe County and the current status is "inactive-returned mail." The elector does not have a record that is presently in a "cancelled- failed-20 day period" status. Ex. B-1, bates label number SOS ; SOS b. The elector submitted a Voter Registration Drive application on July 29, 2008 through Mi Familia Vota ("MFV"). Ex. B-1, bates label numbers SOS , SOS c. The application submitted by MFV triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 15,2008. Ex. B-1, bates label number SOS and SOS The county mailed a forwardable confirmation card. This confirmation card was returned as undeliverable on September 22, Ex. B-1, bates label number SOS- 13

103 On October 15, 2009, the county marked the record as "cancelled- failed 20-day period" and mailed another forwardable contirmation card to the elector. Ex. B-1, bates label number SOS d. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Ex. B-1, bates label number SOS Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On October 15, 2009, the county took corrective action on the status of the application by changing the status from "cancelled- failed 20-day" to "inactive-returned mail." Ex. B-1, bates label numbers SOS and SOS e. The elector is registered to vote. f. The status change to "inactive-returned mail" is the correct status for this record because (1) it should have been placed in "active" status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in "inactive-returned mail" status when the confirmation card was returned. g. Since July 29,2008, the elector has not attempted to vote, and has not updated her registration record. Ex. B-1, bates label number SOS The following information relates to Plaintiffs' paragraphs 147 and 148, concerning Janine Lagare Low. (Ex. C-l, bates labels SOS S0S004727; SOS SOS-6384). 14

104 a. The elector has two records in SCORE, one that is presently in "active" status in Denver County and one that is "cancelled- moved" in Arapahoe County. The elector has no record currently in a "cancelled- failed 20-day" status. (Ex. C-l, bates numbers SOS and SOS ). b. The elector submitted a Voter Registration Drive application on July 29,2008 through MFV. The application submitted by MFV triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 17,2008 with a forwarding address in Denver County. (Ex. C-l, bates numbers SOS and SOS004725). c. The county marked the record "cancelled-failed 20-day" on September 23, 2008 and mailed a forwardable confirmation card on September 30, On October 10,2008 the elector submitted a change of address to Denver County through Department of Motor Vehicles ("DMV"). Based on the DMV update, the county marked the status "active" and transferred to Denver county on April 14,2009. The elector did not attempt to vote in the November 2008 election. (Ex. C-l, bates numbers SOS , SOS004726, and SOS004727). 44. The following information relates to Plaintiffs' paragraphs 147 and 148, concerning Zayatona Ahmed. (Ex. D-l, bates label numbers SOS ; SOS ). a. The elector has one record in SCORE in Arapahoe County and the current status is "inactive-returned mail." The elector does not have a record that is 15

105 presently in a "cancelled- failed-20 day" status. (Ex. D-1, bates label numbers SOS-6360.). b. The elector submitted a Voter Registration Drive application on August 8, 2008 through MFV. (Ex. D-l, bates label numbers SOS and SOS ). c. The application submitted by MFV triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 22,2008. On September 25, 2008, the county marked the application "cancelled-failed 20-day." (Ex. D-l, bates label numbers SOS and SOS ). d. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Ex. D-l, bates label number SOS Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On January 19,2010, the county took corrective action on the status of the application by changing the status from "cancelled- failed 20-day" to "inactive-returned mail." Ex. D-1, bates label number SOS and SOS e. The elector is registered to vote. f. The status change to "inactive-returned mail" is the correct status for this record because (1) it should have been placed in "active" status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in "inactivereturned mail" status when the voter information card was returned. 16

106 g. Since the date that the application was submitted, the elector has not attempted to vote, and has not updated her registration record. Ex. D-l, bates label number SOS The following information relates to Plaintiffs' paragraphs 147 and 148, concerning Ian A. Valverde. (Ex. E-l, bates numbers SOS through 6168.) a. The elector has one record in SCORE and the current status is "cancelledfailed 20-day." (Ex. E-l, bates label number SOS-00616l.). b. The elector submitted a Voter Registration Drive application on March 28, 2008 through MFV. The application submitted by MFV triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on April 11, Based on this, the county marked the record "cancelled- failed 20-day period" on May 28, (Ex. E-I, bates label numbers SOS , SOS , and SOS ). c. The elector did not attempt to vote during the 2008 election. (Ex. E-l, bates label number SOS ). Additional Information Concerning Persons For Whom SEIU Submitted Registration Applications 46. The following information relates to Plaintiffs' paragraphs 157 and 158, concerning Jean Blaylock. (Ex. F-l, bates label numbers SOS through SOS ). a. The elector has one record in SCORE and the current status is "cancelledfailed 20-day." (Ex. F-l, bates label number SOS ). b. The elector submitted a Voter Registration Drive application on August 25, 2008 through SEIU. The application submitted by SEIU triggered the mailing 17

107 of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 19, 2008 with a forwarding address in Adams County. (Ex. F-l, bates label numbers SOS , SOS , SOS ). c. On September 30, 2008, the county marked the record "cancelled- failed 20- day." The county sent a forwardable confirmation card on September 30, (Ex. F-l, bates label numbers SOS ). d. The elector did not attempt to vote during the November 2008 election and has not updated her record since. 47. The following information relates to PlaintifIs' paragraphs 157 to 160, concerning Aura Gomez. (Ex. F-l, bates label numbers SOS through SOS ; SOS ). a. The elector has one record in SCORE and the current status is "inactivereturned mail." The elector has no record presently in "cancelled- failed 20- day period" status. (Ex. F-l, bates label numbers SOS and SOS ). b. The elector submitted a Voter Registration Drive application on August 7, 2008 through SEIU. The application submitted by SEIU triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 15,2008. Based on this, the county marked the record "cancelled- failed 20-day" on September 17,2008. (Ex. F-l, bates label numbers SOS and SOS ). 18

108 c. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Ex. F -1, bates label number SOS Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On January 19,2010, the county took corrective action on the status of the application by changing the status from "cancelled- failed 20-day period" to "inactive-returned mail." Ex. F-l, bates label number SOS d. The elector is registered to vote. e. The status change to "inactive-returned mail" is the correct status for this record because (1) it should have been placed in "active" status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in "inactivereturned mail" status when the voter information card was returned. 48. The following information relates to Plaintiffs' paragraphs 157 and 158, concerning Vonray Little. (Ex. G-l, bates label numbers SOS through SOS ; SOS ). a. The elector has two records in SCORE one that is currently in a "cancelledfailed 20-day" status and one "cancelled- inactive to cancelled." (Ex. G-l, bates label numbers SOS and SOS ). b. The elector submitted a Voter Registration Drive application on August 25, 2008 through SEIU. The application submitted by SEIU triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on September 21,

109 Based on this, the county marked the record "cancelled- failed 20-day period" on September 30, (Ex. G-l, bates label numbers SOS and SOS ). c. The elector did not attempt to vote during the November 2008 election and has not updated his record. 49. The following information relates to Plaintiffs' paragraphs 157 and 158, concerning 10hnita Taylor (Ex. H-l, bates label numbers SOS through SOS-00471O). a. The elector has two records in SCORE- one in a status of "inactiveundeliverable ballot" and one in a "cancelled- failed 20-day period." (Ex. H-l, bates label numbers SOS-4690 and SOS ). b. The elector submitted a Voter Registration Drive application on September 11, 2008 through SEIU. The application submitted by SEIU triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on October 2,2008. Based on this, the county marked the record "cancelled- failed 20-day period" on October 9, The elector did not attempt to vote or update her registration during the November 2008 election. (Ex. H-l, bates label numbers SOS , SOS , and SOS ). c. On February 6, 2009, the elector submitted a new application at the same address but provided a new apartment number. The application was not submitted through any of the Plaintiffs' voter registration drives. (Ex. H-l, bates label numbers SOS ). 20

110 d. When the county processed the February 2009 application, they did not identify the new application as belonging to Taylor's "cancelled failed 20- day" record and did not update the cancelled record with the new information provided on the new application. Instead, the county created a duplicate registration; the "cancelled- failed-20 day" record remains. (Ex. H-I, bates label numbers SOS and SOS ). e. The February 6, 2009 application triggered the mailing of a voter information card to the address provided on the application. The voter information card was not returned as undeliverable. The February 6, 2009 application resulted in an active registration for this elector. f. During the 2009 coordinated election, the county sent the elector a ballot through the February 6, 2009 registration to the address provided on that application. The ballot mailed to the elector in the 2009 coordinated election was returned undeliverable. Based on this, the county marked the status to "inactive- undeliverable ballot." (Ex. H-l, bates label numbers SOS l.). g. The elector is eligible to vote a regular ballot based on her "inactiveundeliverable ballot" registration. h. The elector's two records will be consolidated into one record as a part of the VoICE process. The "cancelled- failed-20 day period" application will become a part of the history for this individual elector. The most recent status will be controlling for registration purposes, that is, the "inactiveundeliverable ballot" record. 21

111 50. The following information relates to Plaintiffs' paragraphs 157 and 158, concerning Tameka Thompson (Ex. 1-1, bates label numbers SOS through SOS ). a. The elector has one record in SCORE and the current status is "cancelledfailed 20-day." (Ex. 1-1, bates label numbers SOS ). b. The elector submitted a Voter Registration Drive application on August 15, 2008 through SEIU. This application triggered the mailing of a voter information to the address provided on the application. The voter information card was returned as undeliverable on September 15,2008. The returned voter information card provided a new address for elector in Denver. On September] 7,2008 the county sent a forwardable confirmation card to the address on the application. (Ex. I-I, bates label numbers SOS , SOS , and SOS ). c. The elector did not attempt to vote during the November 2008 election and has not attempted to vote or otherwise updated her record since. (Ex. 1-1, bates label numbers SOS ) Information Concerning Identified Members of SEIU 51. The following information relates to Plaintiffs' paragraph 165 concerning Rudy Puente. (Ex. 1-1, bates label numbers SOS through SOS , SOS through SOS-4656). a. The elector has one record in SCORE and the current status is "inactivereturned mail." (Ex. 1-1, bates label numbers SOS ). 22

112 b. The elector submitted a Voter Registration Drive application on February 22, This application triggered the mailing of a voter information card to the address on the application. The voter information card was returned as undeliverable on March 27, Based on this, the county marked the application as "cancelled- failed 20-day period" on May 7, Ex. J-1, bates label numbers SOS , SOS , and SOS ). c. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On January 19,2010, the county took corrective action on the status of the application by changing the status from "cancelled- failed 20-day period" to "inactive-returned mail." (Ex. J-l, bates label numbers SOS ). d. The elector is registered to vote. e. The status change to "inactive-returned mail" is the correct status for this record because (l) it should have been placed in "active" status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in "inactivereturned mail" status when the voter information card was returned. f. The elector did not attempt to vote in the 2008 November election and has not updated his record since. (Ex. J-1, bates label numbers SOS The following information relates to Plaintiffs' paragraph 166 concerning Diana Bain. (Ex. K-1, bates label numbers SOS through SOS ; SOS ). 23

113 a. The elector has three records in SCORE - (1) one "active" in Adams County (2) one "cancelled- failed 20- day period" in Arapahoe County and (3) one "cancelled -moved" in Moffat County. (Ex. K-l, bates label numbers SOS , SOS , and SOS ). b. The elector is registered to vote. c. The elector submitted a Federal Mail Registration application on August 14, 2008 to Arapahoe County. That application triggered the mailing of a voter information card to the address provided on the application. The voter information card was returned as undeliverable on September 15,2008 with a forwarding address in Adams County. Based on the returned voter information card, the county marked the record "cancelled- failed 20 -day period" on September 17,2008. On that same day, the county mailed a forwardable confirmation card to the address on the application.. (Ex. K -1, bates label numbers SOS , SOS , and SOS ). d. On October 1, 2008, the elector returned the confirmation card and verified the move to Adams County; at that same time, she requested a mail-in ballot for the November 2008 election. (Ex. K-l, bates label numbers SOS and SOS ). e. Adams County processed the application as a new application for registration and created a new record. Adams County mailed the elector a ballot for the November 2008 election. The elector cast that ballot and returned it to Adams County. (Ex. K-l, bates label numbers SOS and SOS ). 24

114 f. The elector's records will be consolidated into one record as a part of the VoICE process. The "cancelled- failed-20 day period" application will become a part of the history for this elector, as well as the "cancelled-moved" record. The most recent status will be controlling for registration purposes, that is, the "active" record. 53. The following information relates to Plaintiffs' paragraph 167 concerning Timnit Twolde. (Ex. L-I, bates label numbers SOS through SOS ; SOS ). a. The elector has one record in SCORE and the current status is "inactivereturned mail." The elector has no record presently in a "cancelled- failed 20- day period" status. (Ex. L-I, bates label numbers SOS ). b. On Election Day, November 4,2008, the elector appeared in person to vote in Arapahoe County. As of November 4,2008, there was no record in SCORE indicating that Twolde had submitted a registration application in any county in Colorado. (Ex. L-I, bates label numbers SOS and SOS ). c. At the November 2008 election, Twolde cast a provisional ballot and as a part of that, he completed a provisional ballot affidavit. The name provided on the affidavit is Timnit Twolde. Ex. L-l, SOS The provisional ballot affidavit was treated as a registration application. d. The November 2008 application triggered the mailing of a voter information card. The voter information card was returned as undeliverable on February 26,2009 with a forwarding address in Arapahoe County. Based on this, the county marked the record "cancelled- failed 20-day period" on March 10, The county mailed a forwardable confirmation card to the elector on 25

115 March 17, (Ex. L-l, bates label numbers SOS , SOS , and SOS ). e. The voter information card was returned as undeliverable after 20 business days passed from the date of application submission. Because it was returned outside the 20 day window, the application did not fail the 20 day statute. On January 19, 2010, the county took corrective action on the status of the application by changing the status from "cancelled- failed 20-day period" to "inactive-returned mail." (Ex. L-l, bates label numbers SOS ). f. The elector is registered to vote. g. The status change to "inactive-returned mail" is the conect status for this record because (1) it should have been placed in "active" status after the passage of 20 business days without the return of the voter information card; and (2) had it been in that status, it would have been placed in "inactivereturned mail" status when the voter information card was returned. h. The elector did not attempt to vote in the 2008 November election and has not updated his record since. (Ex. L-l, bates label numbers SOS ). Information Concerning Identified Common Cause Members: 54. The following information relates to Plaintiffs' paragraph 170 concerning Gail Dubas. (Ex. M-l, bates label numbers SOS through SOS ; SOS ). a. This elector has six records in SCORE - (1) one active in Douglas County; (2) one "cancelled- failed 20-day" in Douglas County; (3) one "cancelledconversion" in Douglas County; (4) one "cancelled- withdrawn" in Douglas County (5) one "cancelled- conversion" in Denver county and (6) one 26

116 "cancelled- withdrawn" in Douglas County. (Ex. M-1, bates label numbers SOS , SOS ; SOS , , , ). b. The elector submitted a state Voter Registration application on April 3,2008 to Douglas County and requested a mail-in ballot. This application triggered the mailing of a voter information card. The voter information card was returned as undeliverable on April 22, 2008 with a forwarding address in New Mexico. Based on this, Douglas County marked the record "cancelled- failed 20-day." Douglas County_mailed a forwardable letter on April 29, 2008 requesting that the elector update her information. (Ex. M-l, bates label numbers SOS , SOS , and SOS ). c. The elector responded to the letter on May 13,2008 clarifying that the New Mexico address was the elector's mailing address. Douglas County did not update the "cancelled- failed 20-day period" record, but instead created a duplicate registration. The county mailed the elector a ballot for the November 2008 election through this registration. (Ex. M-l, bates label numbers SOS , SOS , SOS ). d. The elector cast the ballot and returned it to the county. (Ex. M-l, bates label numbers SOS ). e. The elector is registered to vote. f. The elector's records will be consolidated into one record as a part of the VoICE process. The "cancelled- failed-20 day period" application will become a part of the history for this elector, as well as the rest of the elector's 27

117 records. The most recent status will be controlling for registration purposes, that is, the "active" record. 55. The following information relates to Plaintiffs' paragraph 172 concerning Luke Jesser. (Ex. N-I, bates label numbers SOS through SOS ; SOS SOS ). a. The elector has two records in SCORE one "cancelled- failed 20-day period" in Larimer county and one "cancelled-moved" in Weld County (Ex. N-l SOS005504; SOS006435). b. The elector submitted an Emergency Registration application in Larimer County on November 2, This triggered the mailing of a voter information card to the address on the emergency registration. The voter information card was returned as undeliverable. Based on this, Larimer county marked the elector's record "cancelled- failed 20-day" on December 28,2004. (Ex. N-I, bates label numbers SOS ). c. When the record was marked "cancelled- failed 20-day period," the SCORE system was not in place. Larimer County's system at the time is called the "legacy" system. d. When the record migrated into the SCORE system, the status incorrectly migrated as a "pending" status. On May 21, 2009 the county corrected the status to "cancelled- failed 20-day" to reflect the accurate registration history. e. The elector has not attempted to vote or otherwise update his registration since the November 2004 application. (Ex. N-I, bates label numbers SOS ). 28

118 I, Hilary Rudy, hereby certify that the foregoing Declaration is true and complete to the best of my knowledge, information and belief. Dated: January 22,2010 \, lary R. Rudy 'Eegal Specialist Colorado Department of State Elections Division 1700 Broadway, Ste 270 Denver, CO Subscribed and sworn before me by Hilary Rudy on this 22nd day of January, County ) ) [S State of Colorado ) ~=:~~~--Jl Notary My Commission Expires: ~ 29

119 Exhibit B-1 [FILED UNDER SEAL]

120 Exhibit C-1 [FILED UNDER SEAL]

121 Exhibit D-1 [FILED UNDER SEAL]

122 Exhibit E-1 [FILED UNDER SEAL]

123 Exhibit F-1 [FILED UNDER SEAL]

124 Exhibit G-1 [FILED UNDER SEAL]

125 Exhibit H-1 [FILED UNDER SEAL]

126 Exhibit I-1 [FILED UNDER SEAL]

127 Exhibit J-1 [FILED UNDER SEAL]

128 Exhibit K-1 [FILED UNDER SEAL]

129 Exhibit L-1 [FILED UNDER SEAL]

130 Exhibit M-1 [FILED UNDER SEAL]

131 Exhibit N-1 [FILED UNDER SEAL]

132 Exhibit O-1 [FILED UNDER SEAL]

133 Exhibit P-1

134 <<County Clerk Name>> <<County Name>> County Clerk & Recorder <<County Return Address Line 1>> <<County Return Address Line 2>> <<City>>, CO <<Zip Code>> FORWARDING SERVICE REQUESTED OFFICIAL VOTER INFORMATION NOTICE <<County Name>> County records indicate either that you have changed your address and mail was undeliverable at your voter registration address or that you failed to vote in the last November election. Please complete the information below and promptly return it to our office so that we can update your voter registration records. When submitting the form, please fold and tape it closed so that your personal information is on the inside and our mailing address with pre-paid postage is on the outside. If you have questions, please call <<County Phone Number>>. *<<Voter ID>>* IMPORTANT VOTER CONFIRMATION <<Voter Name with Suffix>> <<Mailing Address Line 1>> <<Mailing Address Line 2>> <<Mailing Address Line 3>> <<Mailing Address Line 4>> <<Mailing City>>, <<State>> <<Zip>> 1 Last Name (Required) First Name (Required) Middle Suffix For Official Use Only <<Voter ID # and/or Barcode>> 2 Residence Address (Required No PO Boxes) Apt. No. City State Zip Code County 3 Date of Birth (Required) Mailing Address (If different from above) CO Driver s License # or Dept. of Revenue ID # (Required) Gender (Required) Male Female If you do not have a Colorado Driver s License or Dept. of Revenue ID #, then provide the last four digits of your Social Security Number. I do not have a Colorado Driver s License or Dept. of Revenue ID #. I do not have a Social Security Number. Are you a Citizen of Previous Name Previous Residence Address Apt. No. City State Zip Code Previous County the United States? 8 (Required) Yes Permanent Mail-In Ballot List: Place an (X) in the box to be added or removed from the list. (Optional) No Add my name to the list. Remove my name from the list. 9 Mailing Address for your Permanent Mail-in Ballot (If different from your Mailing or Residential Address) Will you be 18 years of age on or before Election Day? (Required) Yes No If you checked No to either of these questions, do not complete this form. Telephone (Optional) Party Affiliation (Required to vote in a party s primary) Street Address Apt. No. City State Zip Code WARNING: It is a crime to swear or affirm falsely as to your qualifications to register to vote. Self-Affirmation: I do solemnly affirm that I am a citizen of the United States and that on the date of the next election I shall have attained the age of eighteen years and shall have resided in the state of Colorado at least 30 days and in my present precinct at least 30 days before the election. I further affirm that the present address I listed herein is my sole legal place of residence and that I claim no other place as my legal residence. Witness Signature (Optional) The Mail-In Ballot Application must be personally Signature or Mark (Required) signed by the applicant; or, in case of the applicant s inability to sign, the applicant s mark must be witnessed by another person. 12 Yes, I want to be an Election Judge. (Optional) X Signature (Required) Date (Required) X SOS Witness Signature (Optional) Date

135 Tape Here Tape Here <<NAME OF COUNTY CLERK>> <<COUNTY NAME CLERK AND RECORDER>> <<STREET ADDRESS>> <<CITY>>, << STATE>> <<ZIP CODE>> NO POSTAGE STAMP NECESSARY POSTAGE HAS BEEN PREPAID BY <<NAME OF COUNTY CLERK>> <<COUNTY NAME CLERK AND RECORDER>> <<STREET ADDRESS>> <<CITY>>, <<STATE>> <<ZIP CODE>> Fold Here Fold Here SOS