Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 12-cv CMA-MJW CITIZEN CENTER, a Colorado nonprofit corporation, Plaintiff, v. SCOTT GESSLER, in his official capacity as Colorado Secretary of State; SHEILA REINER, in her official capacity as Mesa County Clerk and Recorder; SCOTT DOYLE, in his official capacity as Larimer County Clerk and Recorder; PAM ANDERSON, in her official capacity as Jefferson County Clerk and Recorder; HILLARY HALL, in her official capacity as Boulder County Clerk and Recorder; JOYCE RENO, in her official capacity as Chaffee County Clerk and Recorder; TEAK SIMONTON, in her official capacity as Eagle County Clerk and Recorder; Defendants. SECRETARY OF STATE'S RESPONSE TO CITIZEN CENTER'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AGAINST DEFENDANTS RENO, SIMONTON, HALL AND GESSLER Scott Gessler, in his official capacity as Colorado Secretary of State (hereinafter Secretary, hereby submits his Response to Citizen Center s Motion for a Temporary Restraining Order against Defendants Reno, Simonton, Hall and Gessler. For the following reasons, the Court must deny the Motion. FACTUAL BACKGROUND Plaintiff attached affidavits purporting to show that ballots used by Boulder, Chaffee and Eagle counties during the 2012 primary election could be traced to individual voters. Plaintiff contends that the Secretary approved the use of ballots that are traceable. (Doc. 100, p.8). Plaintiff asks that the Court enjoin the Secretary from providing further authorization and encouragement to county clerk and recorders to print

2 Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 2 of 9 unique identifiers on ballots for the upcoming general election because such county officers are required to defer to the Secretary of State. (Doc. 100, p. 9) The Secretary disagrees with Plaintiff s allegations regarding his actions and authority. However, in response to policy (as opposed to legal) concerns raised in Plaintiff s allegations, the Secretary enacted Emergency Rule 10.8, which provides: 10.8 Use of serial numbers on ballots Except for ballots sent to military or overseas electors by electronic transmission under Rule , no county may print a ballot for use in a state or federal election that either has a unique or sequential number, or a barcode containing a unique or sequential number, except on the removable stub After election judges have disassociated a voted ballot from its envelope and the stub removed, the county may write or print unique or sequential numbers on the voted ballot for auditing and accounting purposes, including duplication of damaged ballots and risk limiting audits For any election held on or before August 20, 2012, the county must redact any unique or sequential numbers, or barcodes containing unique or sequential numbers, before providing ballots in response to a request for inspection under CORA (Section (4)(b)(II), C.R.S.) (Exhibit A). In the Statement of Basis and Purpose, the Secretary explained: The Secretary has received credible evidence that a unique number or bar code containing a unique serial number, printed on the face of a ballot can be used to trace the ballot to the voter who cast it. The purpose of this rule is to ensure that no ballot is printed with a number that can be used for this purpose. While there may be technological means of randomizing the numbers, it is essential that all Colorado voters have confidence in the processes and procedures for the upcoming Presidential election. 2

3 Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 3 of 9 After voted ballots have been separated from return envelopes and the ballot stubs are removed, unique numbers may be used for accounting and auditing purposes, including risk limited auditing and duplication of damaged ballots. The rule also requires that counties redact unique numbers or barcodes containing unique numbers from any ballots printed before the adoption of the rule that are provided in response to a request under the Colorado Open Records Act. (Ex. A) Rule 10.8 is an emergency rule that is effective for one hundred twenty days after its enactment. Section (6), C.R.S. (2012) In addition, the Secretary issued an order, which provides, in pertinent part: 2. In accordance with Election Rule 10.8 and section (7), C.R.S., no county may print any unique or sequential number, or a barcode containing a unique or sequential number, on a ballot except on the removable stub. 4. If the voting system requires the printing of a barcode with a unique or sequential number, the barcode may contain only zeros. 6. Any county that has printed either unique or sequential numbers, or barcodes containing a unique or sequential number, on ballots from prior elections must redact the numbers or barcodes before providing those ballots in response to a request for inspection under CORA (Section (4)(b)(II), C.R.S.) PRELIMINARY INJUNCTION STANDARD Plaintiff must show four factors weigh in his favor: (1) it is substantially likely to succeed on the merits; (2) it will suffer irreparable injury if the injunction is denied; (3) the threatened injury outweighs the injury the opposing party will suffer under the 3

4 Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 4 of 9 injunction; and (4) the injunction will not be adverse to the public interest. Beltronics USA, Inc. v Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10 th Cir. 2009). Injunctive relief should be granted only when the moving party clearly and unequivocally demonstrates its necessity. Schrier v. University of Colorado, 427 F.3d 1253, 1258 (10 th Cir. 2005). The purpose of a preliminary injunction is to preserve the status quo until a trial on the merits can be held. Due to the limited intended scope of preliminary injunctions, the Tenth Circuit has identified three types of disfavored injunctions: (1) preliminary injunctions that seek to change the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford all the relief Plaintiff could recover at a full trial on the merits. Id. at The paramount purpose of a preliminary injunction is to preserve the availability of meaningful relief while preventing or reducing the risk of irreparable harm. Bray v. QFA Royalties LLC, 486 F. Supp. 2d 1237, 1245 (D.Colo. 2007) IRREPARABLE HARM The demonstration of irreparable harm in the absence of relief is the single most important prerequisite for obtaining a preliminary injunction and must be established first. Id., 486 F.Supp.2d, at To meet the irreparable injury requirement, the injury must be both certain and great, and not merely serious or substantial. Dominion Video Satellite Inc. v. Echostar Satellite Corp. 356 F.3d 1256, (10 th Cir. 2004)(quoting Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10 th Cir. 2001). The movant must suffer the injury. Valley Cmty Pres. Commission v. Mineta, 373 F.3d 1078, 1083 (10 th Cir. 2004). 4

5 Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 5 of 9 Plaintiff s motion to preliminary injunction focuses on the November 2012 election. Plaintiff contends that the alleged use of the unique bar code will deprive them of their constitutional right to a secret ballot for the upcoming November election and that the November election in Chaffee, Eagle and Boulder counties are in jeopardy of being voided ab initio by the courts. (Doc. 100, p.3). An injunction is necessary, according to Plaintiff, because county clerks will initiate the printing of ballots within in a matter of mere weeks. (Doc. 100, p. 11) Rule 10.8 removes the alleged defect by preventing any connection between the voter and the ballot cast by that voter. Given the enactment of Rule 10.8, Plaintiff cannot demonstrate that the injury is certain and great. The Rule speaks directly to Plaintiff s concern and obviates any need proclaimed by Plaintiff for a preliminary injunction in general and against the Secretary in particular. Although the emergency rule may expire in four months if the Secretary does not enact it as a permanent rule, its impact will effectively preclude the disclosure of any votes for the November 2012 election because the ballots will be printed in a manner that precludes attribution of a ballot to a particular voter. Thus, the expiration of the rule will not impact the traceability of any ballot in the November 2012 election. Plaintiff s members will not be injured at all, let alone suffer irreparable injury. SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS Plaintiff has failed to address in any manner the substantial likelihood of success on the merits. Instead, it alleges it is likely to succeed on the merits [a]ssuming that at least one of Citizen Center s seven claims against the Defendant county clerk and 5

6 Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 6 of 9 recorders states a legally sufficient claim for relief. However, it does not allege that it is likely to succeed on the merits of its claims against the Secretary. Plaintiff also incorporates statements it makes in other pleadings and response to motions to dismiss. (Doc. 100, p.4, n. 1) These documents encompass approximately 100 pages. The incorporation is inappropriate for two reasons. First, it effectively abrogates this Court s fifteen page limitation on motions. CMA Civ. Practice Standards, III.A.1. Second, it is inconsistent with F.R.C.P. 10(c). The references to allegations in other pleadings must be direct and explicit, (footnote omitted) in order to enable the responding party to ascertain the nature and extent of the incorporation. Wright & Miller, Federal Practice and Procedure: Civil 3d, A failure to specifically identify the passages Plaintiff intends to incorporate makes it impossible for the Defendants or the Court to identify exactly what is being incorporated and to respond accordingly. United States v. International Longshoremen s Ass n, 518 F. Supp. 2d 422, 462 (E.D.N.Y. 2007). Therefore, the court must reject the attempt at incorporation. The documents to which Plaintiff refers are the First Amended Complaint, the First Supplemental Complaint for Declaratory and Injunctive Relief and Plaintiff s Response to Motions to Dismiss the First Amended Complaint. These documents are bereft of any arguments about likelihood of success on the merits. They do not include any cases that purport to support Plaintiff s fundamental argument: the federal constitution encompasses a right to a secret ballot. Instead, they include only Plaintiff s summary allegations or reasons why the Court should not dismiss this action. 6

7 Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 7 of 9 THE PUBLIC INTEREST AND THE BALANCE OF INTEREST BETWEEN THE PLAINTIFF AND THE SECRETARY. Plaintiff makes cursory claims regarding the public interest and the balance of interests. Plaintiff accuses the Secretary of authorizing and encouraging the actions of use of unique barcodes. 1 Even assuming that the Secretary did not enact Rule 10.8, the public interest and Plaintiff s interest would not be served by an injunction preventing the Secretary from authorizing and encouraging county clerks to print unique identifiers. The issuance of an injunction against the Secretary will not advance Plaintiff s goal of enhancing ballot secrecy. The Secretary does not control the day-to-day elections activities within the counties. This responsibility rests with the county clerks. The Secretary does supervise the conduct of general elections. Section (1)(a), C.R.S. (2011) Although the Secretary may promulgate rules and issue orders, (2)(a), C.R.S., the Secretary has been forced to seek injunctions to require compliance with statutes, rules or orders when counties have refused to comply voluntarily with rules or orders. Gessler v. Doty, 272 P.3d 1131, 1132 (Colo. App. 2012). Even if the Secretary contests the activities of county clerks, he cannot unilaterally require and obtain compliance by the clerks. Under these circumstances, an injunction against the Secretary preventing him from authorizing and encouraging the printing of ballots will not serve the public interest or the interests of Plaintiff. 1 It must be noted that the letter issued by the Elections director did not authorize unique barcodes that disclosed the identity of individual voters. 7

8 Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 8 of 9 CONCLUSION For the reasons stated, the Court must deny Plaintiff s request for a temporary restraining order and a preliminary injunction against Secretary Gessler. JOHN W. SUTHERS Attorney General s/maurice G. Knaizer MAURICE G. KNAIZER* Deputy Attorney General LEEANN MORRILL* Assistant Attorney General MELODY MIRBABA* Assistant Attorney General MATTHEW GROVE* Assistant Attorney General Public Officials State Services Section Attorneys for Secretary Gessler 1525 Sherman Street, 7th Floor Denver, Colorado Telephone: (303) FAX: (303) maurie.knaizer@state.co.us leeann.morrill@state.co.us melody.mirbaba@state.co.us matthew.grove@state.co.us *Counsel of Record 8

9 Case 1:12-cv CMA-MJW Document 106 Filed 08/24/12 USDC Colorado Page 9 of 9 CERTIFICATE OF SERVICE I certify that on August 24, 2012, I served a true and complete copy of the foregoing SECRETARY OF STATE'S RESPONSE TO CITIZEN CENTER'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AGAINST DEFENDANTS RENO, SIMONTON, HALL AND GESSLER upon all counsel of record listed below via the CM/ECF system for the United States District Court for the District of Colorado: Andrea Nina Atencio nina.atencio@mesacounty.us David Patrick Ayraud dayraud@larimer.org, jpettus@larimer.org Linda Kathleen Connors lconnors@larimer.org, tstillwell@larimer.org, jpettus@larimer.org, krittwager@larimer.org Gillian Dale daleg@hallevans.com, gutierrezd@hallevans.com Jennifer Ann Davis jdavis@chaffeecounty.org, btidd@chaffeecounty.org Maurice L. Dechant lyle.dechant@mesacounty.us, mcatty@mesacounty.us David Robert Frankel david.frankel@mesacounty.us David Evan Hughes dhughes@bouldercounty.org, jhamilton@bouldercounty.org, cwilliams@bouldercounty.org, kgnelson@bouldercounty.org, kcoxriede@bouldercounty.org Thomas J. Lyons lyonst@hallevans.com, mandisc@hallevans.com, cmecf@hallevans.com, witts@hallevans.com, wilsonm@hallevans.com Robert A. McGuire ram@mcguirebaines.com Writer Mott wmott@jeffco.us, dhokanso@jeffco.us William Glenn Ressue wressue@larimer.org, ghass@larimer.org, tstillwell@larimer.org, jpettus@larimer.org, jeanninehaag@larimer.org, btotten@larimer.org, krittwager@larimer.org Bryan R. Treu bryan.treu@eaglecounty.us David Ryan Wunderlich dwunderl@jeffco.us, dhokanso@jeffco.us 9 s/ Debbie Bendell

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Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case 1:12-cv-00370-CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:12-cv-00370-CMA-MJW CITIZEN CENTER,