Date: 10-22-2014

Case Style: Citizen Center v. Scott Gessler

Case Number: 12-1414

Judge: Bachrach

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Colorado (Denver County)

Plaintiff's Attorney: Robert A. McGuire, III, McGuire Bains LLC, Lone Tree, CO (Jeffrey David Baines, McGuire Baines LLC, Denver, CO, on the briefs), for Plaintiff-Appellant.

Defendant's Attorney: David Hughes, Boulder County Attorney, Boulder, CO, and LeeAnn Morrill, First
Assistant Attorney General, Office of the Attorney General for the State of
Colorado, Denver, CO (Writer Mott and David Wunderlich, Assistant Jefferson
County Attorneys, Golden, CO, David Ayraud and William G. Ressue, Larimer
County Attorney’s Office, Fort Collins, CO, Gillian Dale and Tom Lyons, Hall &
Evans, Denver, CO, Bryan Treu, Eagle County Attorney, Eagle, CO, and Jennifer
Davis, Chaffee County Attorney, Salida, CO, and John W. Suthers, Attorney
General, with them on the briefs) for Defendants-Appellees.

Description: In May 2012, election officials in six Colorado counties (Larimer,
Jefferson, Boulder, Chafee, Eagle, and Mesa) had the theoretical ability to
learn how individuals voted because the ballots were traceable. Citizen
Center, a Colorado non-profit organization, sued the Secretary of State and
the clerks for five of the six counties, contending that the use of traceable
ballots violates members’ federal constitutional rights involving: (1)
voting, (2) free speech and association, (3) substantive due process, (4)
equal protection, and (5) procedural due process.1 In addition, Citizen
Center has sued five of the clerks for violation of the Colorado
Constitution.2
1 The suit was brought against the clerks for all of the six counties.
But the Clerk for Mesa County (Ms. Sheila Reiner) settled with Citizen
Center.
2 Initially, the claims under the state constitution were also asserted
against the Secretary of State. But, Citizen Center withdrew the state
claims against the Secretary of State, admitting that they should have been
3
All defendants moved to dismiss for lack of standing, and the clerks
included an alternative argument for dismissal under Federal Rule of Civil
Procedure 12(b)(6). The district court dismissed the complaint on standing
grounds without reaching the merits of the clerks’ argument under Rule
12(b)(6). R. vol. 3, at 497.
This appeal presents three types of issues: (1) mootness, (2)
standing, and (3) sufficiency of the allegations against the clerks under
Rule 12(b)(6). We conclude:
● The claims are partially moot because the Secretary of State
has adopted new regulations banning some of the challenged
practices.
● Citizen Center has standing on the “live” parts of the claims
involving denial of equal protection and procedural due
process, but Citizen Center’s alleged injury in fact is too
speculative for standing on the “live” parts of the claims
involving the right to vote, engage in free speech and
association, and enjoy substantive due process.
● The first amended complaint failed to state a valid claim
against the clerks for denial of equal protection or procedural
due process.
These conclusions result in termination of all claims except the federal
claims against the Secretary of State for denial of equal protection and
procedural due process.
asserted only against the clerks. R. vol. 1, at 118; see R. vol. 3, at 496
(district court’s acknowledgment that Citizen Center had conceded that the
claims under the state constitution could not be maintained against the
Secretary of State).
4
I. Traceable Ballots
Analysis of the claims requires an understanding of the balloting
practices in the six Colorado counties, Citizen Center’s theories, and the
Secretary of State’s regulatory changes designed to enhance ballot secrecy.
A. Challenged Balloting Practices
Citizen Center complains of the potential for election officials in six
Colorado counties to trace ballots to individual voters. This potential
allegedly exists because:
(1) each ballot has a unique number or barcode,
(2) some ballots may be unique among the ballots cast on an
electronic voting machine, and
(3) some ballots may be unique within a batch of ballots.3
R. vol. 1, at 25, 27-31, 33-34.
According to Citizen Center, ballots are traceable when they bear
unique numbers or barcodes. Unique numbers or barcodes are used in
3 The clerks state that traceable ballots are used to: “(1) prevent[]
election fraud by ensuring that ballots are not duplicated or double
counted; (2) prevent[] human error by establishing an electronic means of
preventing double counting; (3) ensure[] that problematic ballots (such as
those with improper marks, under-votes, and over-votes) can be quickly
reviewed by bi-partisan election judges to determine the intent of the
voter; (4) allow[] the processing of the [voluminous number of] ballots…
submitted in a general election in a timely and orderly fashion; (5) allow[]
a thorough and accurate post-election audit to help ensure that every vote[]
[has] been properly counted; (6) and conduct[] an accurate canvass,
required by law, in which election staff must execute a very detailed
reconciliation of the election and ensure accurate accounting of ballots
printed, received, and counted.” R. vol. 3, at 362; see id. at 351, 356.
5
three of the counties. Id. at 31, 33-34. In these counties, ballots are
traceable because an election official who identifies a voter with a unique
ballot can later identify the ballot as belonging to that particular voter. Id.
at 27-34.
Citizen Center also contends that election officials can trace ballots
that are unique among those cast on an electronic-voting machine. In each
of the six counties, officials record the date of voting, the machine’s
unique identifier, and the precinct number or ballot style used by the voter.
Id. at 27, 29-30, 32-33, 35. By comparing this information with available
data, Citizen Center argues, election officials can trace a ballot whenever
it is unique among the ballots cast on a particular voting machine. See id.
at 27-30, 32-35.
The potential for tracing also allegedly exists because some ballots
may be unique within a single batch. Four of the counties (Mesa, Larimer,
Jefferson, and Boulder) process and store mail-in (absentee) ballots in
discrete batches. Id. at 25, 27, 29, 32. Each batch is associated with a
batch sheet listing the names, voter identification numbers, precinct
numbers, ballot styles, and other information for the voters whose ballots
are included in the batch. Id. at 25, 27, 30, 32. Because batches are
relatively small, some ballots may be unique within the batch. Thus,
Citizen Center alleges that election officials will sometimes be able to
6
trace a ballot by comparing the content to information in the batch sheet.
Id. at 25-26, 28, 30, 32.
B. Citizen Center’s Theories
Citizen Center’s members include voters from the six counties who
intend to “freely vote their conscience[s]” in upcoming elections. Id. at
38. But the members allegedly fear that their ballots will be traced and
that votes are “subject to being identified by government officials and
others at any time after an election.” Id. at 41. Thus, Citizens Center
fears that members may not “freely exercise their fundamental right to
vote” because of the possibility of tracing. Id. at 42, 44.
Citizen Center contends that the counties’ election procedures
“substantially burden, infringe and chill” members’ constitutional rights
to: (1) vote, (2) engage in free speech and association, (3) enjoy
substantive and procedural due process, and (4) enjoy equal protection. Id.
at 42, 44-48, 51, 53.
C. Actual Tracing of Ballots
Colorado election officials must swear “not to inquire or disclose
how any elector shall have voted.” Colo. Const. art. VII, § 8. Thus, all
mail ballots are provided to voters with a secrecy envelope or sleeve to
prevent officials from learning how a citizen voted. Colo. Rev. Stat. § 1-
7.5-103(5).
7
Citizen Center alleges that election officials in three counties have
either traced individual ballots or failed to adequately safeguard the
secrecy of voters’ ballots. According to Citizen Center, officials in Mesa
and Larimer counties traced the ballots of identified public officials and
publicized the ability to trace ballots. R. vol. 1, at 26, 28. And Jefferson
County allegedly published the electoral choices of 30 identifiable voters
for nearly a year and a half. Id. at 30-31; R. vol. 2, at 210.
D. The Secretary of State’s Regulatory Changes
The Secretary of State bears responsibility for regulating election
procedures for each Colorado county. Colo. Rev. Stat. § 1-1-110(1) (“The
county clerk and recorder . . . shall . . . follow the rules and orders
promulgated by the secretary of state pursuant to this code.”); see 8 Colo.
Code Regs. § 1505-1:7.1 (requiring approval by the Secretary of State on
all mail ballot plans).
Citizen Center challenges the constitutionality of voting procedures
in the 2012 election. R. vol. 1, at 41. But the Secretary of State has
revised its election regulations. See 8 Colo. Code Regs. § 1505-1. The
current regulations: (1) prohibit counties from printing ballots with unique
numbers or barcodes, (2) require counties using rotating numbers to “print
at least ten ballots of each ballot style for each number,” and (3) direct
county clerks to “dissociate any batch number that could trace a ballot
back to the specific voter who cast it from the counted ballots no later than
8
the final certification of the abstract of votes cast.” Id. §§ 1505-1:4.8.4(a),
1505-1:7.5.8.
II. Mootness
The Defendants contend that the action is moot because: (1) Citizen
Center challenged only the 2012 election procedures and the election has
passed, (2) the Secretary of State has adopted new regulations superseding
the procedures being challenged, and (3) the action is prudentially moot.
Clerks’ Br. at 8-14; Sec’y’s Br. at 30-34. We reject the Defendants’ first
and third arguments. But the new regulations moot the challenges to some
of the balloting practices.
A. The Choice Between Jurisdictional Issues
Mootness and standing are jurisdictional. WildEarth Guardians v.
Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012). Because
“[t]here is no mandatory ‘sequencing of nonmerits issues,’” we have
“leeway ‘to choose among threshold grounds for denying audience to a
case on the merits.’” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 584, 585 (1999)). We begin by addressing mootness.
B. The Requirement of a Live Controversy
“[T]he existence of a live case or controversy is a constitutional
prerequisite to federal court jurisdiction.” McClendon v. City of
Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). A federal court must
9
order dismissal for mootness if the controversy ends prior to a decision
even if a justiciable controversy existed when the suit began. Jordan v.
Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011). Because Citizen Center seeks
only prospective equitable relief, past exposure to illegal conduct would
not establish a live controversy in the absence of continuing ill effects.
See Beattie v. United States, 949 F.2d 1092, 1093-94 (10th Cir. 1991)
(“‘[P]ast exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief . . . if unaccompanied by any
continuing, present adverse effects.’” (quoting O’Shea v. Littleton, 414
U.S. 488, 495-96 (1974))).
C. The Defendants’ Burden
Because the Defendants argue that there is no longer a live case or
controversy, they must demonstrate mootness. In re Paige, 584 F.3d 1327,
1336 (10th Cir. 2009).
D. The 2012 Election
The clerks argue that the action is moot in part because: (1) Citizen
Center challenged only the procedures in the 2012 presidential election,
and (2) this election has come and gone. Clerks’ Br. at 8-9. This
argument misconceives the nature of the relief sought.
Generally, a claim for prospective injunction becomes moot once the
event to be enjoined has come and gone. See Utah Animal Rights Coal. v.
Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir. 2004) (holding that
10
the plaintiff’s application to protest during the Olympics was moot because
the Olympics had already taken place). But Citizen Center sought to
enjoin the use of traceable ballots for all future elections. See R. vol. 1, at
39-40 (noting Citizen Center’s members face injury in “other future
elections”). Thus, the passing of the 2012 election did not render the
action moot. See Consumer Party v. Davis, 778 F.2d 140, 146 n.12 (3d
Cir. 1985) (noting that a request for a preliminary injunction, growing out
of elections, did not become moot after the elections passed because the
requested relief would apply to future elections).
E. New Regulations
The Defendants also assert that the Secretary of State’s new
regulations4 render the case moot on constitutional and prudential grounds.
In response, Citizen Center urges us to apply the voluntary-cessation
exception. We conclude:
● The new regulations partially moot the case.
● Neither the voluntary-cessation exception nor the prudential
mootness doctrine applies.
1. Partial Mootness
Citizen Center challenges three types of county balloting practices:
(1) use of a unique number or barcode; (2) use of a unique ballot among
the ballots cast on a voting machine; and (3) use of a unique ballot within a
4 We analyze the current regulations, which took effect on December
30, 2013.
11
batch. R. vol. 1, at 25, 27-31, 33-34. Generally, an action becomes moot
when someone challenges a regulation and it is repealed. Citizens for
Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d
1174, 1182 (10th Cir. 2000). But, a repeal does not moot the case when
the remaining regulations allow continuation of the conduct being
challenged. See id. Some of Citizen Center’s challenges became moot
with the new regulations.
The new regulations address some of the disputed practices by: (1)
barring counties from printing ballots with unique numbers or barcodes,
and (2) requiring counties to dissociate batch numbers from ballots before
final certification of the vote. 8 Colo. Code Regs. §§ 1505-1:4.8.4(a),
1505-1:7.5.8.
These regulations moot Citizen Center’s challenges to:
(1) the use of unique numbers and barcodes, and
(2) the use of a unique ballot within a batch after final certification
of the vote.
But the new regulations do not moot the remaining challenges.
The clerks point out that the new regulations require counties to print
at least ten ballots of each ballot style for each number. Id. § 1505-
1:4.8.4; see Clerks’ Br. at 11. But this requirement does not moot the
claims. Though the counties will use ten copies of every ballot style, some
ballots may remain traceable because they will be unique among the ballots
12
cast on a single voting machine or within a batch before certification.
Therefore, Citizen Center’s challenges are not moot with respect to the use
of a unique ballot among the ballots cast on a voting machine and use of a
unique ballot within a batch before final certification of the vote.
2. The Voluntary-Cessation Exception
Citizen Center argues that we should apply the voluntary-cessation
exception to the mootness doctrine. Citizen Ctr.’s Reply Br. at 8-11. This
exception does not apply.
A defendant’s voluntary cessation of a challenged practice rarely
moots a federal case because a “‘party should not be able to evade judicial
review, or to defeat a judgment, by temporarily altering questionable
behavior.’” Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan.,
491 F.3d 1143, 1149 (10th Cir. 2007) (quoting City News & Novelty, Inc. v.
City of Waukesha, 531 U.S. 278, 284 n.1 (2001)). Nonetheless, a
defendant’s voluntary cessation moots a case when a challenged regulation
is repealed and the government does not openly express intent to reenact it.
Camfield v. City of Okla. City, 248 F.3d 1214, 1223-24 (10th Cir. 2001).
But a case is not moot if a challenged regulation is repealed and there are
“‘clear showings of reluctant submission [by government actors] and a
desire to return to the old ways.’” Rio Grande Silvery Minnow v. Bureau
of Reclamation, 601 F.3d 1096, 1117 (10th Cir. 2010) (alteration in
13
original) (quoting 13C Charles Alan Wright, Arthur M. Miller & Edward
H. Cooper, Federal Practice and Procedure § 3533.6, at 311 (3d ed. 2008)).
Citizen Center makes two arguments:
(1) The Secretary of State has revised its regulations multiple
times during this litigation, allowing emergency regulations to
lapse.
(2) The clerks have expected some regulations to be “overturned or
modified.”
Citizen Ctr.’s Reply Br. at 10-11. We reject both arguments.
First, the Secretary of State’s revisions do not indicate a desire to
return to old ways. With each revision, the Secretary has enacted stricter
or substantively similar regulations, and Citizen Center does not suggest
that the new regulations will be watered down.5
Second, the clerks have not threatened to defy the Secretary’s new
regulations. Disagreeing with a regulation is not the same as refusing to
follow it, especially when the clerks’ ballot plans require approval by the
Secretary of State. Thus, the voluntary-cessation exception does not apply
and Citizen Center’s challenges are moot with respect to the use of unique
numbers and batching after certification of the vote.
5 Although the Secretary of State allowed the emergency regulations to
lapse between December 2012 and May 2013, Citizen Center does not
claim that any elections took place during that time. See Citizen Ctr.’s
Reply Br. at 4.
14
3. Prudential Mootness
Finally, the clerks urge us to apply the prudential mootness doctrine
to the portion of the case that would otherwise survive. Clerks’ Br. at 13.
The doctrine of prudential mootness does not apply.
A case is prudentially moot if “circumstances [have] changed since
the beginning of litigation that forestall any occasion for meaningful
relief.” S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.
1997). We may decline to grant relief when the “government . . . has
already changed or is in the process of changing its policies or where it
appears that any repeat of the actions in question is otherwise highly
unlikely.” Bldg. & Const. Dep’t v. Rockwell Int’l Corp., 7 F.3d 1487, 1492
(10th Cir. 1993).
The regulatory changes would not halt the threat of traceable ballots
when voters use unique numbers or barcodes and the ballots are unique
within a batch prior to final certification of the vote. Thus, a judgment for
Citizen Center could provide meaningful relief. In these circumstances,
the prudential mootness doctrine does not apply.
F. Conclusion
Enactment of the current regulations moots the claims involving:
(1) the use of unique numbers and barcodes on ballots, and
(2) the use of a unique ballot within a batch after certification of
the vote.
15
But the new regulations continue to allow use of unique ballots on an
electronic voting machine and batching practices before final certification.
Thus, Citizen Center’s challenges to these practices are not moot.
III. Standing
As discussed above, a live controversy remains on the use of a
unique ballot on a single voting machine and pre-certification batching
practices. We therefore address Citizen Center’s standing to challenge
these procedures. In doing so, we conclude that Citizen Center lacks
standing on the claims involving members’ rights to vote, engage in free
speech and association, and enjoy substantive due process.
A. Standard of Review
The district court dismissed the entire complaint for lack of standing.
R. vol. 3, at 497. We review that decision de novo. United States v. Colo.
Supreme Court, 87 F.3d 1161, 1164 (10th Cir. 1996). In conducting de
novo review, however, we must assume that the amended complaint is true
and construe the allegations in favor of Citizen Center. Cressman v.
Thompson, 719 F.3d 1139, 1144 (10th Cir. 2013).
B. Elements of Constitutional Standing
Constitutional standing involves three elements: (1) injury in fact;
(2) causation; and (3) redressability. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992). Citizen Center can pursue its claims only if its
members would have standing to sue in their own right. Hunt v. Wash.
16
State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). Thus, we must
consider whether the members could sue on their own.
1. Identification of Members
The Secretary of State challenges the ability of any members to sue,
arguing that Citizen Center failed to identify a single member who was
harmed. Sec’y of State’s Br. at 20. The district court did not address this
challenge. Nonetheless, we can affirm the dismissal on any ground
supported by the record. See Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1178 n.4 (10th Cir. 2007). Thus, we will address the Secretary
of State’s challenge involving identification of the Citizen Center
members.
For purposes of argument, we can assume that Citizen Center bore an
obligation to identify at least some of the members who were harmed. See
Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). Even with this
assumption, we would conclude that Citizen Center has satisfied its
obligation by identifying members being harmed.
In addressing this issue, we can review the entire record to assess
Citizen Center’s standing. See N.H. Right to Life Political Action Comm.
v. Gardner, 99 F.3d 8, 16 (1st Cir. 1996). In the record on appeal, Citizen
Center presented affidavits identifying eleven individuals harmed by the
use of traceable ballots. R. vol. 2, at 250-57; R. vol. 3, at 394-415. And
these affidavits were in the district court’s record at the time of the ruling
17
on the motion to dismiss. Thus, we conclude that Citizen Center has
sufficiently identified its individual members for purposes of standing.
Because the affected members are sufficiently identified, we address
whether Citizen Center has adequately alleged the constitutional elements
of standing: injury in fact, causation, and redressability.
2. Injury in Fact
Injury in fact involves invasion of a legally protected interest that is
concrete, particularized, and actual or imminent. Lujan v. Defenders of
Wildlife, 504 U.S, 555, 560-61 (1992); Clapper v. Amnesty Int’l USA, ___
U.S. ___, 133 S. Ct. 1138, 1147 (2013). An imminent or “threatened injury
must be certainly impending to constitute injury in fact, and . . .
allegations of possible future injury are not sufficient.” Clapper, ___ U.S.
___, 133 S. Ct. at 1147 (internal quotation marks omitted).
The district court determined that no injury in fact existed because
absolute anonymity in voting is not a “legally protected federal interest.”
R. vol. 3, at 474-75. The clerks defend this conclusion. Clerks’ Br. at 16
(quoting R. vol. 3, at 472).
We reject the court’s rationale because it conflates standing with the
merits. “For purposes of standing, the question cannot be whether the
Constitution, properly interpreted, extends protection to the plaintiff’s
asserted right or interest. If that were the test, every losing claim would
be dismissed for want of standing.” Initiative & Referendum Inst. v.
18
Walker, 450 F.3d 1082, 1092 (10th Cir. 2006) (en banc). Rather, we must
assume for purposes of the standing inquiry that each claim is legally
valid. Id.
Though we do not consider the merits in connection with standing,
we do consider whether the plaintiffs have a legal right to do what is
allegedly being impeded. Id. at 1093. For example, a plaintiff lacks
standing to complain about his inability to commit crimes because no one
has a right to commit a crime. Id.
We must apply these principles to Citizen Center’s theories of injury,
analyzing the allegations in the amended complaint to determine if they
would constitute a concrete, particularized invasion of a right held by
members.
a. Citizen Center’s General Theories of Injury
Citizen Center alleges injury to members based on their
● desire to freely vote their consciences and
● fears that government officials might learn how members voted
by tracing their ballots.
R. vol. 1, at 38-45.
This claim suggests two potential injuries:
1. the risk that election officials might determine how a member
voted; and
2. a chilling effect on the members considering whether to vote.
19
Citizen Ctr.’s Opening Br. at 16-19. These alleged injuries do not support
standing.
i. Risk that Election Officials Might Determine How a Member
Voted
Citizen Center alleges an injury in fact from the risk that election
officials could determine how a member voted. Id. at 18. This allegation
does not involve an injury in fact.
To address this allegation, we must consider how this risk would be
affected by the use of traceable ballots. Citizen Center does not assert an
“abstract, freestanding right” to an untraceable ballot. Instead, Citizen
Center claims that the clerks’ use of traceable ballots burdens other rights
(the right to vote, engage in free speech, exercise the right to a secret
ballot, enjoy equal protection, and enjoy due process). Each of these rights
would allegedly be affected because of the risk that an election official
might trace a ballot and discover how a member voted.
But that risk is speculative because of existing safeguards in the
Colorado Constitution. For example, that constitution forbids election
officials from inquiring about how a person voted. Colo. Const. art. VII,
§ 8.
Citizen Center alleges that these safeguards might not prevent
election officials from tracing ballots and learning how members voted.
See R. vol. 1, at 28-31, 33-34. According to Citizen Center, this
20
possibility is real because election officials occasionally traced the ballots
of public officials and the Jefferson County Clerk once disclosed the
electoral choices of 30 unnamed, but identifiable, voters. Id. at 26, 28, 30-
31.
This possibility is speculative, for Citizen Center does not allege that
● its members were among those whose ballots were traced, or
● election officials are likely to trace any of the members’
ballots.
In the absence of these allegations, Citizen Center simply suggests that
election officials might trace ballots and violate the Colorado Constitution
by investigating the electoral choices of particular individuals. This sort
of speculation does not suffice for standing. See City of Los Angeles v.
Lyons, 461 U.S. 95, 105 (1983) (standing cannot be based on speculation
that the plaintiff might be subjected to an illegal chokehold by a police
officer); O’Shea v. Littleton, 414 U.S. 488, 496-97 (1974) (speculative risk
of arrest is not an injury in fact). Thus, an injury in fact cannot come from
the risk that officials might trace a ballot.
Relying on two cases from other circuits, Citizen Center argues that
an injury in fact arises from the risk that election officials might trace
ballots and disclose how a member voted. Citizen Ctr.’s Opening Br. at
16; see Stewart v. Blackwell, 444 F.3d 843, 854 (6th Cir. 2006), vacated,
21
473 F.3d 692 (6th Cir. 2007) (en banc) (per curiam); Greidinger v. Davis,
988 F.2d 1344, 1352 (4th Cir. 1993). The two cases are distinguishable.
In Greidinger v. Davis, the state conditioned registration to vote on
disclosure of the voter’s social security number. Id. at 1345. The court
did not expressly address standing, and the burden on the Greidinger
plaintiff differs from the burden on Citizen Center’s members.
The Greidinger plaintiff refused to supply his social security number
to election officials, who then denied his application for voter registration.
988 F.3d at 1345-46. The Fourth Circuit Court of Appeals concluded that
the state’s requirement provided a condition on the plaintiff’s right to vote.
Id. at 1352.
Our case is different. In Greidinger, the plaintiff was not allowed to
vote. Id. at 1345-46. Here, none of the Citizen Center members have been
told that they cannot vote. Instead, Citizen Center argues only that the use
of traceable ballots discourages voting. With the difference in
circumstances and absence of any discussion of standing, Greidinger
provides little guidance for our determination of standing.
The injury in Stewart v. Blackwell stemmed from deficiencies in
voting equipment. Stewart, 444 F.3d at 846. A Sixth Circuit Court panel
concluded that the plaintiffs had standing because the deficiencies made it
22
“inevitable” that mistakes had taken place and would continue. Id.6 Here,
the Citizen Center members cannot plausibly argue that their votes will
inevitably be traced. Instead, the members can only speculate about this
possibility.
Unlike the injuries at issue in Greidinger and Stewart, the alleged
injury here may never take place. For this risk of injury to take place,
three things would need to occur:
1. At least one member would vote.
2. One of the clerks would trace that member’s ballot.
3. The clerk would inquire into (and possibly reveal) the electoral
choices after tracing the ballot.
This series of possibilities is too speculative to confer Article III standing.
See Clapper v. Amnesty Int’l USA, ___ U.S. ___, 133 S. Ct. 1138, 1147
(2013) (“[W]e have repeatedly reiterated that ‘threatened injury must be
certainly impending to constitute injury in fact,’ and that ‘[a]llegations of
possible future injury’ are not sufficient.” (second alteration in original)
(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))). Consequently,
Citizen Center lacks standing based on the potential for election officials
to determine how a member voted.
6 The Sixth Circuit Court of Appeals later vacated the panel opinion
because the case had become moot. Stewart v. Blackwell, 473 F.3d 692
(6th Cir. 2007) (en banc) (per curiam).
23
ii. The Chilling Effect on Members
Citizen Center also alleges injury in part from the risk that traceable
ballots might chill members from freely voting their consciences. Citizen
Ctr.’s Opening Br. at 18-19. This alleged injury is not sufficiently
concrete to justify standing.
The Supreme Court has never upheld standing based solely on a
governmental policy lacking compulsion, regulation, or constraints on
individual action. See Clapper v. Amnesty Int’l USA, ___ U.S. ___, 133 S.
Ct. 1138, 1153 (2013) (stating that the Supreme Court has never held that
“plaintiffs can establish standing simply by claiming that they experienced
a ‘chilling effect’ that resulted from a governmental policy that does not
regulate, constrain, or compel any action on their part”).
To the contrary, the Supreme Court held in Laird v. Tatum, 408 U.S.
1, 13-14 (1972), that a chilling effect does not suffice as an injury in fact.
There, the plaintiffs invoked the First Amendment, alleging a chilling
effect from the existence of investigative activity. Laird, 408 U.S. at 10.
The Supreme Court rejected this argument: “Allegations of a subjective
‘chill’ are not an adequate substitute for a claim of specific present
objective harm or a threat of specific future harm.” Id. at 13-14.
We interpreted Laird in Initiative and Referendum Institute v.
Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc). In Initiative and
Referendum Institute, we addressed a first amendment challenge to a state
24
constitutional provision. Initiative & Referendum Inst., 450 F.3d at 1085.
Based on Laird, we required the plaintiffs to present evidence that they had
intended to refrain from the desired activity because of a credible threat
that the government would enforce the restriction. Id. at 1089.
This requirement is missing here because Citizen Center does not
provide plausible allegations that members intend to refrain from voting
because of the possibility that their ballots might be traced. Instead, the
members indicate in the amended complaint that they do intend to vote
despite the possibility of tracing. R. vol. 1, at 38. There Citizen Center
alleges that its members include electors who “intend to freely vote their
conscience in the 2012 primary and general, special district, municipal and
coordinated elections, and elections held thereafter in their respective
counties.” Id.7
Citizen Center’s alleged chill is too conjectural to establish an injury
in fact. See Laird, 408 U.S. at 13-14 n.7 (“Even assuming a justiciable
controversy, if respondents themselves are not chilled . . . [they] clearly
lack that ‘personal stake in the outcome of the controversy’ essential to
standing.” (quoting Baker v. Carr, 369 U.S. 186, 204 (1962))).
7 Later, Citizen Center appeared to retreat from this allegation. For
example, at a hearing, Citizen Center’s counsel stated that whether
members would refrain from voting was “open to question” and that some
members were “considering not voting.” R. vol. 3, at 441. And at oral
argument in our appeal, Citizen Center’s counsel stated that members were
“concerned” and might not vote their consciences. Oral Argument at
11:34-13:57.
25
Accordingly, Citizen Center lacks standing to pursue a claim that members
suffer a chilling effect.
b. The Equal Protection Claims
For the federal and state equal protection claims, Citizen Center
alleges an additional injury in fact: the unequal imposition of the risk of a
traceable ballot and related ability to discover how a member voted,
depending on the location of the voter’s residence. Citizen Ctr.’s Opening
Br. at 17. At the pleading stage, this allegation is sufficient for an injury
in fact on the equal protection claims.
Unequal treatment can serve as an injury in fact. Petrella v.
Brownback, 697 F.3d 1285, 1293 (10th Cir. 2012); see also 13A Charles
Alan Wright, Arthur R. Miller, & Edward C. Cooper, Federal Practice and
Procedure § 3531.6, at 454 (2008) (“The inequality itself is an injury that
is remedied by restoring equality.”). We applied this principle to voters in
American Civil Liberties Union of New Mexico v. Santillanes, 546 F.3d
1313 (10th Cir. 2008). There we held that in-person voters had standing to
challenge a photo identification requirement placed on individuals who
voted in person, but not by absentee ballot. Santillanes, 546 F.3d at 1318-
19. The injury in fact consisted of the unequal treatment between inperson
and absentee voters. Id. at 1319.
Like the in-person voters in Santillanes, Citizen Center alleges an
injury in fact based on the difference in treatment. Members who live in
26
counties that use traceable ballots are treated differently than voters living
in counties that use untraceable ballots. See R. vol. 1, at 37 (alleging that
Pitkin County protects secrecy in voting). Through these allegations,
Citizen Center has sufficiently pleaded an injury in fact from the unequal
treatment between individuals living in counties that use traceable ballots
and counties that use untraceable ballots. See Santillanes, 546 F.3d at
1319 (stating that “[s]tanding is not a proxy for ruling on the merits” and
that the “unequal treatment of in-person voters vis-à-vis absentee voters is
sufficient injury to confer standing” at the summary-judgment stage).
c. The Claims Involving Procedural Due Process
Citizen Center claims denial of procedural due process under the
federal and state constitutions, relying on the alleged loss of ballot secrecy
as protected in the Colorado Constitution. Colo. Const. art. VII, § 8; R.
vol. 1, at 45-46, 50, 55. For the procedural due process claims, Citizen
Center relies on an additional injury in fact consisting of the violation of
members’ state constitutional rights (art. VII, § 8 and art. II, § 25).
These claims are based on the absence of safeguards to protect the
liberty interest in secrecy of the ballot secured in the Colorado
Constitution. R. vol. 1, at 45-46, 55-56. This injury is concrete and
cognizable.
27
3. Causation
The clerks argue that Citizen Center cannot show causation because
it lacks an injury in fact. Clerks’ Br. at 38. This argument conflates
causation with injury in fact. The two are independent elements of
constitutional standing. Club Italia Soccer & Sports Org., Inc. v. Charter
Twp. of Shelby, Mich., 470 F.3d 286, 291 (6th Cir. 2006). Citizen Center
has sufficiently alleged causation.
4. Redressability
An injury is redressable if it is likely to be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The
clerks and the Secretary of State argue that Citizen Center has not shown
redressability. We disagree.
a. The Clerks’ Arguments
The clerks separately challenge redressability on the claims
involving procedural due process and equal protection.
i. Procedural Due Process
On the claims involving procedural due process, the clerks argue that
Citizen Center cannot show redressability because
● it is asking for an injunction on practices no longer in place,
and
● Citizen Center has not explained how the clerks “could satisfy
their constitutional or statutory obligations” without the
challenged practices.
28
Clerks’ Br. at 38-39. We reject both contentions.
The clerks’ first contention is, in substance, one of mootness. We
rejected that argument above because the clerks continue to implement
some of the challenged practices.
We assume, for the sake of argument, that the clerks’ second
contention is potentially viable as a redressability argument. But the
amended complaint does not support the clerks’ argument: There Citizen
Center alleges that another Colorado county uses untraceable ballots and
manages to comply with the state constitution. See R. vol. 1, at 37
(alleging that Pitkin County has complied with the Colorado Constitution
without violating secrecy in voting). Through this allegation, Citizen
Center has adequately pleaded facts indicating that the clerks could avoid
using traceable ballots.
With this allegation, the proposed injunction would be likely to
provide redress because an injunction against the use of traceable ballots
would remedy the alleged denial of procedural due process. Thus, we
conclude that the claims involving procedural due process are redressable
against the clerks.
ii. Equal Protection
On the equal protection claims, the clerks argue that they lack the
power to redress the alleged injury. We disagree.
29
The alleged injury involves inequality in the ballot processes for
voters in Pitkin County and voters in five other Colorado counties. The
court could remedy this injury by enjoining the clerks in the five counties
from conducting elections in a manner that would allow the use of
traceable ballots. See Heckler v. Mathews, 465 U.S. 728, 740 (1984)
(stating that a denial of equal treatment can be remedied by extending
benefits to the disfavored class). If judicial relief would prevent the five
counties from using traceable ballots, the alleged inequality would
disappear. Thus, the equal protection claims are redressable against the
clerks.
b. The Secretary of State’s Argument
The Secretary of State denies authority to remedy the alleged
infirmities. Sec’y’s Br. at 27-30. We reject this argument.
Under Colorado law, the clerks must consult with the Secretary of
State, whose approval is required for any ballot plan. Colo. Rev. Stat. § 1-
1-110(1); 8 Colo. Code Regs. § 1505-1:7. Because the Secretary of State’s
approval is required before the clerks can implement a ballot plan, the
federal claim for denial of procedural due process is redressable against
the Secretary of State. See Great Basin Mine Watch v. Hankins, 456 F.3d
955, 967 (10th Cir. 2006) (holding that the plaintiffs had shown a
redressable injury because the court could enjoin the defendant from
approving a project that would otherwise cause an injury). Despite the
30
Secretary’s arguments, we cannot assume the clerks will proceed without
the required approval. See Int’l Union Auto., Aerospace & Agr. Implement
Workers of Am. v. Brock, 477 U.S. 274, 291-92 (1986) (refusing to assume
that agencies would disobey a directive by the Secretary of Labor).
C. Vagueness or Generality of the Request for a Secret Ballot
The clerks argue that Citizen Center’s request for a “secret ballot” is
too “vague” or “generalized” for constitutional standing.8 Clerks’ Br. at
39-40. This argument, consisting only of a single sentence and string-cite,
is invalid.
Citizen Center identified the right being invoked (a secret ballot);
thus, the claim is sufficiently specific for constitutional standing. See FEC
v. Akins, 524 U.S. 11, 24-25 (1998) (holding that the inability to obtain
information, in relation to voting, is “sufficiently concrete and specific”
for constitutional standing); see also Bishop v. Bartlett, 575 F.3d 419, 425
(4th Cir. 2009) (“The deprivation of the right to vote is . . . a concrete
harm, and thus its widely shared nature does not preclude a finding that
[one of the plaintiffs] has suffered an injury in fact.” (citations omitted)).
And the widely shared nature of the injury would not preclude
8 We assume, for purposes of argument, that the generalized nature of
a request could affect constitutional standing (as opposed to prudential
standing). Cf. Sac & Fox Nation of Mo. v. Pierce, 213 F.3d 566, 573 n.4
(10th Cir. 2000) (noting the tension in Supreme Court case law on whether
the generalized nature of a grievance affects constitutional standing or
prudential standing).
31
constitutional standing. See Akins, 524 U.S. at 23. Thus, we reject the
clerks’ argument based on the vagueness or generality of the request for a
secret ballot.
IV. The Clerks’ Motion to Dismiss for Failure to State a Valid Claim
As discussed above, Citizen Center has standing on the claims
against the clerks and Secretary of State for denial of equal protection and
procedural due process.
Invoking Rule 12(b)(6), the clerks moved in the alternative for
dismissal based on the failure to state a valid claim. Thus, we may affirm
the dismissal in favor of the clerks if the denial of procedural due process
and equal protection claims was deficient under Rule 12(b)(6).9 Aguilera
v. Kirkpatrick, 241 F.3d 1286, 1290 (10th Cir. 2001). In applying Rule
12(b)(6), we accept all well-pleaded allegations in the amended complaint
and view them in the light most favorable to Citizen Center. SEC v.
Shields, 744 F.3d 633, 640 (10th Cir. 2014). We conclude that Citizen
Center’s allegations failed to state a valid claim for denial of procedural
due process or equal protection.
A. Procedural Due Process
The claim involving procedural due process is facially deficient.
9 The Secretary of State did not move for dismissal under Rule
12(b)(6). Thus, we need not address whether the claims against the
Secretary of State would have survived a motion to dismiss under Rule
12(b)(6). See Lawyer v. Hilton Head Pub. Serv. Dist. No. 1, 220 F.3d 298,
304 n.6 (4th Cir. 2000).
32
Citizen Center must satisfy two elements on the claim involving
procedural due process: (1) a constitutionally protected liberty or property
interest, and (2) a governmental failure to provide an appropriate level of
process. Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243,
1256 (10th Cir. 2008); Colo. Dep’t of Pub. Health v. Bethell, 60 P.3d 779,
786 (Colo. App. 2002). Because Citizen Center claims a liberty interest
under the state constitution, we determine the scope of that liberty interest
by reference to the state constitution. Montero v. Meyer, 13 F.3d 1444,
1447 (10th Cir. 1994). Doing so, we hold that Citizen Center lacks a
liberty interest in an untraceable ballot.
Citizen Center has two live types of traceability claims: (1) the use
of potentially unique ballots; and (2) the use of potentially unique ballots
within a batch before certification. These uses would not implicate a right
safeguarded by the Colorado Constitution, for it prohibits only the use of
unique numbers to identify a voter in the event of an election contest.
The Colorado Constitution provides:
All elections by the people shall be by ballot, and
in case paper ballots are required to be used, no
ballots shall be marked in any way whereby the
ballot can be identified as the ballot of the person
casting it. The election officers shall be sworn or
affirmed not to inquire or disclose how any elector
shall have voted. In all cases of contested election
in which paper ballots are required to be used, the
ballots cast may be counted and compared with the
list of voters, and examined under such safeguards
and regulations as may be provided by law.
33
Colo. Const. art. VII, § 8.
Colorado courts have narrowly interpreted this language. See Jones
v. Samora, 318 P.3d 462, 470 (Colo. 2014); see also Marks v. Koch, 284
P.3d 118, 122 (Colo. Ct. App. 2011) (determining that secrecy in voting
was preserved when the elector’s identifying marks are kept secret). Under
this interpretation, voter secrecy is preserved when election officials do
not actually learn how an individual voted. See Marks, 284 P.3d at 122
(“[W]e conclude that the phrase ‘secrecy in voting’ . . . protects from
public disclosure of the identity of an individual voter and any content of
the voter’s ballot that could identify the voter.”). And the provision
against unmarked ballots simply bars election officials from marking
ballots with unique numbers. See Jones, 318 P.3d at 470. Thus,
traceability alone does not violate Colorado’s guarantee of ballot secrecy.
In Jones v. Samora, the Colorado Supreme Court held that election
officials’ use of traceable ballots did not violate the Colorado Constitution.
Id. Jones involved election officials’ failure to remove ballot stubs from
absentee ballots. Id. at 465. With the stubs intact, the ballots became
traceable because election officials had access to a list of ballot stub
numbers that corresponded to the names and addresses of the voters. Id.
But “no one actually took this opportunity to violate voter secrecy.” Id. at
466. Thus, although the ballots in Jones were traceable, the Colorado
34
Supreme Court held that the Colorado Constitution was not violated. Id. at
470.
Because the Colorado Constitution does not protect against traceable
ballots, Citizen Center lacks a protected liberty interest. See Blake v.
Papadakos, 953 F.2d 68, 73 n.5 (3d Cir. 1992) (noting that a procedural
due process claim, based on a deprivation of a state property or liberty
interest, must fail when the state supreme court determined that no such
state interest exists). And without a protected liberty interest, the federal
and state claims for denial of procedural due process fail as a matter of
law. See, e.g., Curtis Ambulance of Fla., Inc. v. Bd. of Cnty. Comm’rs of
Shawnee Cnty., Kan., 811 F.2d 1371, 1375 (10th Cir. 1987) (federal right
to procedural due process); People, ex rel. A.W.R., a Child, 17 P.3d 192,
195 (Colo. App. 2000) (Colorado’s right to procedural due process under
art. II, § 25 of the state constitution); cf. People v. Zinn, 843 P.3d 1351,
1353 n.3 (Colo. 1993) (“In view of the circumstances of this case, the due
process guarantees of the Fifth and Fourteenth Amendments to the United
States Constitution and of article II, section 25 of the Colorado
Constitution may be deemed co-extensive.”).
B. Equal Protection
The equal protection claims are based on inequality between the
balloting processes in different Colorado counties. Because Citizen Center
has not alleged that a county clerk discriminated between voters in the
35
same county, the amended complaint does not suggest an equal protection
violation by any of the county clerks.
“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its jurisdiction
the equal protection of the laws,’ which is essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). In the context of
voting, the Supreme Court held in Dunn v. Blumstein that citizens enjoy “a
constitutionally protected right to participate in elections on an equal basis
with other citizens in the jurisdiction.” 405 U.S. 330, 336 (1972).
“The crucial phrase in Dunn is ‘in the jurisdiction,’”10 for each
Colorado county is its own “jurisdiction.”11 Thus, in our case, the Equal
10 Duncan v. Coffee Cnty., 69 F.3d 88, 93 (6th Cir. 1995).
11 We have not addressed in a published decision whether each
Colorado county constitutes its own jurisdiction for purposes of the Equal
Protection Clause. On this issue, however, we are swayed by numerous
authorities reflecting the common-sense notion that counties operate as
independent jurisdictions or political subdivisions. See 6 West’s
Encyclopedia of American Law 293 (1998) (“[C]ounties . . . are separate
jurisdictions to the extent that they have powers independent of the federal
and state governments.”); Hobock v. Grant Cnty., No. 99-2194, 2000 WL
807225, at *2 (10th Cir. June 23, 2000) (unpublished) (“Counties in New
Mexico operate as independent political subdivisions.”); Coral Constr. Co.
v. King Cnty., 941 F.2d 910, 917 (9th Cir. 1991) (stating that two adjacent
counties constituted “separate jurisdiction[s]”); Hutto v. S.C. Ret. Sys., 899
F. Supp. 2d 457, 467 (D.S.C. 2012) (referring to counties as “independent
political subdivisions”); Mochizuki v. King Cnty., 548 P.2d 578, 580
(Wash. App. 1976) (per curiam) (“Counties are considered separate
political subdivisions” and are not “considered [agencies] of the state.”).
36
Protection Clause requires only that each county treat similarly situated
voters the same.
That took place here because in each jurisdiction (county), every
voter was treated alike. Thus, the allegations in the amended complaint
would not suggest a violation of the right to electoral participation equally
with others in the same jurisdiction. See Duncan v. Coffee Cnty., 69 F.3d
88, 93 (6th Cir. 1995) (rejecting an equal protection claim because each
voter in the school district was treated alike; disparities with electoral
processes in other school districts in the county were immaterial); Angel v.
City of Fairfield, 793 F.2d 737, 740 (5th Cir. 1986) (holding that an equal
protection claim was facially deficient because all qualified voters in the
city were treated alike).
Citizen Center would expand the right to include equal participation
between counties, arguing that voters in different counties must be treated
alike. As discussed above, Citizen Center’s theory would go beyond the
right to intra-jurisdictional equality recognized in Dunn v. Blumstein, 405
U.S. 330, 336 (1972).
Even if we were to accept Citizen Center’s theory in the abstract, it
would fail here against the county clerks. For the claims against the clerks
to succeed, Citizen Center would need to allege a basis to hold a county
clerk liable for inter-county disparities. See Cordi-Allen v. Conlon, 494
F.3d 245, 251 (1st Cir. 2007) (“[T]he proponent of the equal protection
37
violation must show that the parties with whom he seeks to be compared
have engaged in the same activity vis-a-vis the government entity without
such distinguishing or mitigating circumstances as would render the
comparison inutile.”). No such basis exists in the amended complaint.
Rather, Citizen Center argues that the different treatment resulted
from the actions of different county clerks, each a distinct governmental
entity. But each county clerk had power only within his or her county.
See Colo. Rev. Stat. § 1-1-110(1); see also Union Pac. R. Co. v. Alexander,
113 F. 347, 352-53 (D. Colo. 1901) (holding that the Colorado Constitution
did not authorize a county assessor “to perform the duties of his office
outside the county for which he was elected”). With this limitation of
authority, none of the county clerks could have violated the Equal
Protection Clause by failing to match what another clerk had done in a
different county.
In the absence of an allegation that a county clerk treated voters in a
single county differently, Citizen Center failed to state a valid equal
protection claim against any of the county clerks.12
12 We are considering only the equal protection claims against the five
county clerks, not the Secretary of State. See League of Women Voters of
Ohio v. Brunner, 548 F.3d 463, 471 (6th Cir. 2008) (distinguishing
between a potential claim against county officials and a claim asserted
against the Secretary of State for discrepancies in the statewide voting
system).

Outcome: On the standing issues, we conclude that Citizen Center:

● lacks standing on its claims regarding denial of substantive due
process and the rights to vote and to free speech,

● has standing on the federal claims against the Secretary of
State and the clerks for denial of procedural due process and
equal protection, and

● has standing on the state claims against the clerks for denial of
procedural due process and equal protection.

Thus, we affirm dismissal of the claims involving denial of substantive due
process, the right to vote, and the right to free speech.

These conclusions would leave the claims involving denial of
procedural due process and equal protection. For these claims, we agree
with the clerks’ alternative argument for affirmance under Rule 12(b)(6).

But the Secretary of State did not move for dismissal under Rule
12(b)(6). Thus, we reverse the dismissal of the federal claims against the
Secretary of State for denial of procedural due process and equal
protection. On these claims, we remand for further proceedings.

Plaintiff's Experts:

Defendant's Experts:

Comments: