NO.

In the Supreme Court of the United States

CITIZEN CENTER,
v.

Petitioner,

SECRETARY OF STATE OF THE

STATE OF COLORADO, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Robert A. McGuire, III

Counsel of Record
ROBERT MCGUIRE LAW FIRM
9233 Park Meadows Drive
Lone Tree, Colorado 80124
(303) 952-5077
ram@lawram.com
Counsel for Petitioner

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

i
QUESTIONS PRESENTED
1. Whether voters show an injury-in-fact at the
motion-to-dismiss stage by alleging that certain
challenged election processes produce ballots that are
traceable to individual voters after voting, which
burdens the fundamental right to vote by depriving
voters of a secret ballot.
2. Whether voters state a proper claim for relief
against a county under the Equal Protection Clause by
alleging that the county treats its resident voters
differently than another county in the same State
treats similarly situated voters.

ii
RULE 14.1(b) LIST
Citizen Center was the plaintiff-appellant below
and is the petitioner in this Court.
The defendants-appellees below who are
respondents in this Court are: the Secretary of State of
the State of Colorado; the Clerk and Recorder of
Larimer County, Colorado; the Clerk and Recorder of
Jefferson County, Colorado; the Clerk and Recorder of
Boulder County, Colorado; the Clerk and Recorder of
Chaffee County, Colorado; and the Clerk and Recorder
of Eagle County, Colorado.
The Clerk and Recorder of Mesa County, Colorado,
was a defendant-appellee below, but was dismissed
from this case while it was pending before the court of
appeals and is not a party in this Court.
RULE 29.6 NOTATION
The petitioner has no parent, and there are no
publicly held companies that hold any stock of the
petitioner.

iii
TABLE OF CONTENTS
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i
RULE 14.1(b) LIST . . . . . . . . . . . . . . . . . . . . . . . . . . ii
RULE 29.6 NOTATION . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi
PETITION FOR A WRIT OF CERTIORARI . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL
AND
REGULATORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 2
A. Constitutional Provisions . . . . . . . . . . . . . . . . . . 2
B. Regulatory Provisions . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3
A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 5
B. Proceedings In The District Court . . . . . . . . . . 11
C. The Decision Of The Court Of Appeals . . . . . . . 13
REASONS FOR GRANTING THE WRIT . . . . . . . 16
A. The Decision Of The Court Of Appeals Conflicts
With Precedent Of This Court . . . . . . . . . . . . . . 16
B. The Decision Of The Court Of Appeals Is Wrong
On The Merits . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iv
1. The Right To Vote Is Infringed At The
Moment When A Voter Expresses Her
Electoral Preferences Using A Ballot That
She Knows May Afterward Be Identified As
Hers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2. Counties Remain Subject To The Equal
Protection Clause Even If They Treat All
Of Their Own Residents Uniformly . . . . . . . 23
C. This Case Is An Ideal Vehicle For Clarifying
That The Right To Vote Entails The Right To
Use A Secret Ballot . . . . . . . . . . . . . . . . . . . . . . 25
D. None Of The Issues Raised By The Questions
Presented Are Moot In This Case . . . . . . . . . . . 27
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
APPENDIX
Appendix A Opinion And Judgment In The United
States Court Of Appeals For The
Tenth Circuit
(October 21, 2014) . . . . . . . . . . . App. 1a
Appendix B Final Judgment In The United States
District Court For The District Of
Colorado
(September 25, 2012) . . . . . . . . App. 40a
Appendix C Reporters
Transcript (Motions
Hearing) In The United States District
Court For The District Of Colorado
(September 21, 2012) . . . . . . . . App. 42a

v
Appendix D Minute Entry In The United States
District Court For The District Of
Colorado
(September 21, 2012) . . . . . . . . App. 70a
Appendix E Order Denying Petition For Rehearing
And Rehearing En Banc In The
United States Court Of Appeals For
The Tenth Circuit
(November 17, 2014) . . . . . . . . App. 72a
Appendix F Order Granting Plaintiffs Motion To
Clarify In The United States District
Court For The District Of Colorado
(November 27, 2012) . . . . . . . . App. 74a
Appendix G First Supplemental Complaint For
Declaratory And Injunctive Relief In
The United States District Court For
The District Of Colorado
(July 27, 2012) . . . . . . . . . . . . . App. 77a
Appendix H First Amended Complaint For
Declaratory And Injunctive Relief In
The United States District Court For
The District Of Colorado
(May 10, 2012) . . . . . . . . . . . . . App. 89a

vi
TABLE OF AUTHORITIES
CASES
Anderson v. Mills,
664 F.2d 600 (6th Cir. 1981) . . . . . . . . . . . . . . . 27
Barsky v. United States,
167 F.2d 241 (D.C. Cir. 1948) . . . . . . . . . . . . . . 27
Buckley v. Valeo,
424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 26
Burson v. Freeman,
504 U.S. 191 (1992) . . . . . . . . . . . . . . . . . . . 19, 26
Bush v. Gore,
531 U.S. 98 (2000) . . . . . . . . . . . . . . . . . . . . . . . 24
Citizen Center v. Gessler,
770 F.3d 900 (10th Cir. 2014) . . . . . . . . . . . . . . . 1
City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . 23
Duke Power Co. v. Carolina Envtl. Study Grp., Inc.,
438 U.S. 59 (1978) . . . . . . . . . . . . . . . . . . . . 16, 18
Dunn v. Blumstein,
405 U.S. 330 (1972) . . . . . . . . . . . . . . . . . . . 16, 24
Friends of the Earth, Inc. v. Laidlaw Envtl. Svcs.
(TOC), Inc.,
528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . 27
John Doe No. 1 v. Reed,
561 U.S. 186 (2010) . . . . . . . . . . . . . . . . . . . . . . 26
McIntyre v. Ohio Elections Commn,
514 U.S. 334 (1995) . . . . . . . . . . . . . . . . . . . 19, 26

vii
Reynolds v. Sims,
377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . . . . . 19
Rogers v. Lodge,
458 U.S. 613 (1982) . . . . . . . . . . . . . . . . . . . 19, 26
Taylor v. Beckham,
178 U.S. 548 (1900) . . . . . . . . . . . . . . . . . . . . . . 26
Wesberry v. Sanders,
376 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . 19
Wood v. Moss,
134 S. Ct. 2056 (2014) . . . . . . . . . . . . . . . . . . . . . 5
CONSTITUTION
U.S. Const. amend. XIV, 1 . . . . . . . . . . . . . . . . . . . 2
U.S. Const. art. III, 2 . . . . . . . . . . . . . . . . . . . . . . . 2
STATUTES, REGULATIONS, AND RULES
8 Colo. Code Regs. 1505-1 (Election Rule 4.8.4)
(Oct. 30, 2014) . . . . . . . . . . . . . . . . . . . . . . . . 3, 14
8 Colo. Code Regs. 1505-1 (Election Rule 7.5.9)
(Oct. 30, 2014) . . . . . . . . . . . . . . . . . . . . . . . . 3, 14
8 Colo. Code Regs. 1505-1 (Election Rule 10.8)
(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
8 Colo. Code Regs. 1505-1 (Election Rule 10.9)
(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
22 U.S.C. 8203(6)(B) . . . . . . . . . . . . . . . . . . . . . . . 20
28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

viii
28 U.S.C. 1343(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 4
28 U.S.C. 1343(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 4
28 U.S.C. 1357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Colo. Rev. Stat. 1-13-712 (2014) . . . . . . . . . . . . . . . 9
Colo. Rev. Stat. 24-72-200.1 to -206 (2012) . . . . . 7
Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . 13
Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . 13

1
PETITION FOR A WRIT OF CERTIORARI
Citizen Center respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Tenth Circuit in this case.
OPINIONS BELOW
The published opinion of the United States Court of
Appeals for the Tenth Circuit is reported at Citizen
Center v. Gessler, 770 F.3d 900 (10th Cir. 2014), and is
reproduced at Appendix A, infra, 1a39a. The Order of
the court of appeals denying Citizen Centers timely
petition for rehearing (App. E, infra, 72a73a) is not
reported.
The opinion of the United States District Court for
the District of Colorado (App. C, infra, 42a69a) is not
reported. The district courts minute order (App. D,
infra, 70a71a) and final judgment (App. B, infra,
40a41a) are not reported.
JURISDICTION
The judgment of the United States Court of Appeals
for the Tenth Circuit was entered on October 21, 2014.
The court of appeals denied Citizen Centers timely
petition for rehearing on November 17, 2014. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

2
CONSTITUTIONAL AND REGULATORY
PROVISIONS INVOLVED
A. Constitutional Provisions
The judicial power shall extend to all cases, in law
and equity, arising under this Constitution [and] the
laws of the United States. U.S. Const. art. III, 2.
[N]or shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1.
B. Regulatory Provisions
Colorado Election Rule 4.8.4 provides:
Use of unique numbers on ballots
(a) Except for ballots sent to military or overseas
electors by electronic transmission under Rule
16.2, a county may not print a ballot for use in a
state or federal election that has a unique
number, or a barcode containing a unique
number, that is specific to a single ballot.
(1) A county that uses rotating numbers
must print at least ten ballots of each ballot
style for each number.
(2) Nothing in this Rule prohibits a county
from printing a unique number or barcode on
a removable stub.
(b) After an election official dissociates a voted
ballot from its envelope and removes the stub, if
any, the county may write or print unique
numbers on the voted ballot for auditing and

3
accounting purposes, including duplication of
damaged ballots and risk limiting audits.
(c) For ballots printed before the adoption of this
Rule that are in a countys possession, the
county must redact unique numbers, or barcodes
containing unique numbers, before providing
ballots in response to a request for inspection
under the Colorado Open Records Act (Section
24-72-205.5(4)(b)(II), C.R.S.).
8 Colo. Code Regs. 1505-1 (Election Rule 4.8.4) (Oct.
30, 2014).
The county clerk must dissociate any batch number
that could trace a ballot back to the specific voter who
cast it from the counted ballots or any reports
generated by the tabulation software no later than the
final certification of the abstract of votes cast. 8 Colo.
Code Regs. 1505-1 (Election Rule 7.5.9) (Oct. 30,
2014).
STATEMENT OF THE CASE
In February 2012, Citizen Centera Colorado
nonprofit corporation and membership
organizationfiled this civil rights lawsuit against the
Colorado Secretary of State (the Secretary) and six
Colorado county clerk and recorders (the Clerks)1 in
their official capacities, seeking declaratory and
injunctive relief on behalf of Citizen Centers individual
1

The clerk and recorder of Mesa County, Colorado, who was the
sixth county defendant in the district court and the sixth county
defendant-appellee in the court of appeals, settled with Citizen
Center and was dismissed from this case while it was pending
before the court of appeals. Accordingly, the Mesa Clerk is not a
party to this case.

4
members. Citizen Center invoked the jurisdiction of
the district court under 28 U.S.C. 1343(a)(3)(4), 28
U.S.C. 1357, 42 U.S.C. 1983, and 28 U.S.C. 1331.
Citizen Centers action alleged that the Secretary
had authorized, and the Clerks had adopted and
planned to continue using, voting systems and
practices (including uniquely marked paper ballots)
that gave election officials, workers, and other insiders
the ability to gain access at will to the private electoral
preferences of their fellow citizens. Citizen Center
challenged these systems and practices as violating its
members federal constitutional rights to vote, to
exercise freedom of speech and association through the
ballot, to enjoy substantive and procedural due process,
and to enjoy equal protection.2
The district court ultimately dismissed Citizen
Centers entire case at the motion-to-dismiss stage for
lack of associational standing after concluding that
Citizen Center had not stated a legally cognizable
injury-in-fact to any of its individual members.
Because the case was resolved at the motion-to-dismiss
stage, the only facts that are material to this Courts
consideration of the questions presented by this
petition are the factual allegations made in Citizen
Centers first amended complaint (App. H, infra,
89a130a) and first supplemental complaint (App. G,
infra, 77a88a). For purposes of resolving a motion to
dismiss, Citizen Centers factual allegations are

Citizen Center also challenged these practices as violating certain

of its members rights under the Colorado Constitution. Those
state claims are not at issue in this petition.

5
required to be accepted as true. See Wood v. Moss, 134
S. Ct. 2056, 2065 n.5 (2014).
A. Factual Background
The essence of Citizen Centers factual allegations
is that certain state and county election officials have
unconstitutionally arrogated to themselves the
authority to create, compile, and maintain, during and
after an election, information that permits voted ballots
to be traced to the individual voters who cast them.
In its initial complaint, which was subsequently
superseded by the first amended complaint, Citizen
Center alleged that the Clerks, with the authorization
and approval of the Secretary, utilized voting systems
and processes, including unique markings on paper
ballots, which render voted ballots traceable to
individual voters through three distinct mechanisms.
First, several of the Clerks permanently print a
unique distinguishing bar code and unique set of
numerals on the paper ballots that they assign to the
individual voters in their counties when ballots are
issued. The association between a voter and the
unique number printed on her ballot is recorded in the
election records of the Clerks for the vast majority of
ballots issued, which are paper ballots mailed out to
voters. Any person who comes into knowledge of the
distinguishing identifier printed on a uniquely marked
ballot provided to a particular voter, including the
voter herself, can identify with certainty the specific
paper ballot bearing that unique identifier as the ballot
of that particular voter. The same Clerks who print
distinguishing identifiers on their ballots also utilize
election procedures that make it possible for their own

6
elections administration staff, polling place workers,
election watchers, political party chairs, and ballot
mailing vendors, among others, both to observe the
unique identifiers printed on ballots and to associate
those identifiers with the identities of voters. Even long
after an election is over, all ballots that are
permanently marked with unique identifiers remain
capable of being located, either in original form or as
scanned electronic files, and identified with certainty
as the ballot of a particular voter.
Second, after voters return their voted paper
ballots, several of the Clerks utilize a batching
process under which sets of voted ballots are stored in
discrete batches, together with a batch cover sheet or
batch log that identifies each of the voters whose
ballots are included in the corresponding batch.
Comparison of the voter information printed on the
batch cover sheet or log (or obtainable from the State of
Colorados voter database) against the corresponding
batch of voted ballots readily enables any ballots within
the subject batch that have a unique precinct number
or ballot style within the batch to be identified with
certainty as the ballot cast by a particular voter.
Moreover, some of the Clerks take the additional step
of maintaining all of the voted ballots within a batch in
the exact same order as the names of the voters listed
on the corresponding batch cover sheet or batch log, a
practice that necessarily makes every ballot stored in
such batches identifiable as the ballot of a particular
voter.
Third, for electronic ballots cast by voters on direct
recording electronic (DRE) voting machines, several of
the Clerks record information that includes the time of

7
voting (including hour, minute, and second), date of
voting, the DRE machines unique identifier, and the
precinct number or ballot style used by each voter.
Comparison of this information against the publicly
available individual voter participation information
maintained for each voter in the State of Colorados
voter database enables any electronic ballots that have
a unique precinct number or ballot style within the
small universe of ballots cast on the same DRE
machine to be identified with certainty as the electronic
ballot cast by a particular, known voter. Moreover, any
review of the Voter Verified Paper Audit Trail (a paper
tape created by each DRE machine) reveals each
voters ballot content in the same order that voters
voted on the DRE machine, making every set of
electoral choices expressed on the machine traceable to
a particular voter.
Citizen Centers allegations show that these
traceability mechanisms not only permit a particular
voters ballot to be located and identified in the
abstract, but have actually been utilized for these very
purposes in practice. For example, Citizen Center
alleged that some of the Clerks used their batching
records to locate voted ballots in furtherance of a
legislative agenda aimed at restricting the publics
access to inspect election records under the Colorado
Open Records Act, Colo. Rev. Stat. 24-72-200.1 to
-206 (2012). Specifically, two of the Clerks produced
and publicized Powerpoint presentations that
explained the ease with which they had used their
ballot batching records to physically locate the voted
ballots of their own counties resident legislators in the
Colorado General Assembly. App., infra, 96a, 32; id.
at 98a99a, 4344; C.A. App. 15368, 16981.

8
Another Clerk publicized her performance of the same
exercise in which she located her own individual ballot
within a batch of voted ballots. App., infra, 100a, 52;
C.A. App. 174. When Citizen Center filed its first
supplemental complaint, its additional allegations
showed that disclosures of traceable ballots to the
public had also occurred. For example, dozens of
individually identifiable Jefferson County voters who
had voted on DRE machines in the November 2010
election saw their individual voting preferences
published to the world for nearly a year and a half on
a county elections website. App., infra, 101a, 55.
Citizen Centers allegations also show that the
existence of the Clerks mechanisms for creating ballot
traceability was a matter of public knowledge. For
example, one of the Clerks went so far as to publicly
tout the Governments ability to trace ballots back to
voters by publishing an editorial in the Denver Post
that told readers, it is disturbingly uncomplicated to
identify votes, and that, we are required to track your
ballot. App., infra, 79a, 55.2. In its papers moving
for a preliminary injunction, further discussed infra,
Citizen Center placed an affidavit before the district
court that revealed how a Citizen Center member had
used publicly available information to deduce and
explain to a Chaffee County commissioner how anyone
could identify a particular individuals voted ballot
from among all othersand then proceeded to prove it
by successfully locating the commissioners own ballot,
to the commissioners surprise. C.A. App. 253, 20; id.
at 328.

9
Citizen Centers allegations show that the list of
people who have access to traceable voted ballots is
startlingly long and includes:
the county clerk and recorder (a partisan elected
official), county elections staff, official observers
from the Secretary of States office and the U.S.
Department of Justice, county election system
vendors, the county canvass board (whose
members are often designees of county political
parties), the countys public resolution and
duplication board, county election
commissioners, volunteer election judges,
student election judges, election watchers
(appointed directly by partisan candidates and
issue committees), media observers, election
contestants and their experts, lawyers and
witnesses, observers of public recounts, court
officials, public prosecutors and any others who
may from time to time lawfully view unredacted
voted ballots.
App., infra, 108a, 93.
While Colorado law makes it a misdemeanor
election offense for anyone to reveal how a person
voted, see, e.g., Colo. Rev. Stat. 1-13-712 (2014), many
of the people who have lawful access to traceable voted
ballots take no oath either to keep secret what they
may discover about individual voter preferences or to
avoid acting on whatever knowledge they do come
across; and Colorado law does not specifically prohibit
a person from making private use of such knowledge,
should it be obtained.

10
In its first supplemental complaint, Citizen Center
alleged that the list of people with access to traceable
voted ballots had been expanded by Colorados adoption
of a bill that allowed interested parties to an election
recount, such as candidates, to inspect and, without
restriction, receive and retain copies of voted ballots
under the Colorado Open Records Act. App., infra,
80a81a, 93.2.
With all of these circumstances as background,
Citizen Center alleged that its members in the
defendant counties wished to freely exercise their
fundamental right to vote in upcoming elections
without fear of retaliation or fear of ever being called
upon to explain to anyone for whom or for what reason
their votes were cast, (App., infra, 111a112a, 104),
but that
some or all of them will not do so because of the
fear that their individual voted ballot will not be
a secret ballot, but will instead be traceable to
them personally and thus will remain subject to
being identified by government officials and
others at any time after an election as the
particular ballot cast by that voter personally.
App., infra, 113a, 108 (emphasis added). In its
papers moving for a preliminary injunction, further
discussed infra, Citizen Center amplified upon these
factual allegations by submitting an affidavit that
showed the district court that at least one Citizen
Center member did, in fact, refrain from voting
altogether during the June 2012 primary election,
avowedly due in part to her aversion to having [her]
private political choices known to election workers and
others. C.A. App. 303, 7.

11
In addition to its allegations directed at stating an
injury-in-fact to its members free exercise of their
fundamental right to vote, Citizen Center also alleged
differential treatment of its members relative to other
similarly situated persons both within counties and in
different counties in the form of disparate likelihoods
of their ballots being made identifiable as a result of
the Clerks adopted voting systems and procedures.
App., infra, 124a125a, 15556.
Finally, Citizen Center alleged that the voting
systems and procedures adopted by another Colorado
countyPitkinshow that a lawful Colorado election
may be conducted without any need for the
Government to compile and maintain information that
violates secrecy in voting by permitting voted ballots to
be traceable to individual voters. App., infra, 108a,
92.
B. Proceedings In The District Court
Citizen Centers first amended complaint was filed
in the district court on May 10, 2012, and its first
supplemental complaint was filed on July 27, 2012. On
June 4, 2012, the Secretary and the Clerks moved to
dismiss all of Citizen Centers claims. The Secretary
argued that Citizen Center lacked standing, while the
Clerks claimed both that Citizen Center lacked
standing and that Citizen Center had failed to state a
claim for relief.
On August 17, 2012, seven week prior to the 2012
general election, while the two motions to dismiss were
still pending, Citizen Center moved for a preliminary
injunction to prevent the Clerks of Boulder, Chaffee,
and Eagle counties from using, and to prevent the

12
Secretary from authorizing, uniquely marked ballots in
that upcoming election. In support of its injunction
motion, Citizen Center provided the district court with
declarations that showed the ballots used by Boulder,
Chaffee, and Eagle counties in the immediately
preceding primary election had been traceable back to
identifiable individual voters in those counties on a
vast scale. C.A. App. 250329, 394415.
The
declarations showed that fully 99.9% of Boulder
Countys 110,500 primary-election ballots contained the
kinds of permanent unique and distinguishing
numbers and characters that made tracing possible.
C.A. App. 396, 15. Citizen Center also produced a
declaration showing that at least one of its members
had not voted in the June 2012 primary election due in
part to her aversion to having my private political
choices known to election workers and others. C.A.
App. 303, 7.
In response to Citizen Centers motion for injunctive
relief and supporting declarations, the Secretary,
within seventy-two hours, adopted an emergency
election rule that purported to ban all Colorado county
clerks from marking ballots with uniquely identifiable
serial numbers and bar codes. C.A. App. 364, 37180.
Despite this obvious concession by the Secretary, a
party-opponent, that Citizen Centers allegations of
ballot traceabilityand of injury to voterswere valid,
the district court commenced its injunction hearing by
taking argument on the issue of jurisdiction and
concluded the hearing by ruling from the bench that
Citizen Center had not alleged a judicially cognizable
injury-in-fact to its membersand thus lacked
associational standingbecause absolute anonymity
in voting is not a legally protected interest under the

13
federal theories that plaintiff has pursued.
infra, 66a.

App.,

The district court dismissed the case by orally

granting the Secretarys Rule 12(b)(1) motion and that
part of the Clerks motion to dismiss that was based on
Rule 12(b)(1). The district court denied as moot that
part of the Clerks motion which asserted under Rule
12(b)(6) that Citizen Center had failed to state a claim
for relief. Finally, the district court denied Citizen
Center leave to amend. App., infra, 68a.
At Citizen Centers request, the district court
clarified in a subsequent order that its oral order of
dismissal (App. CD, infra, 42a71a) and final
judgment (App. B, infra, 40a41a) had dismissed
Citizen Centers entire case, including the first
supplemental complaint. App. F, infra, 74a76a.
C. The Decision Of The Court Of Appeals
Citizen Center timely appealed. On appeal, Citizen
Center argued that it had alleged an injury-in-fact.
The Clerks and Secretary opposed this argument on
the merits, while also asserting that the (evolving)
election rules adopted by the Secretary during the
pendency of this case had mooted Citizen Centers
claims by preventing the future creation of traceable
ballots. Citizen Center disputed the claimed scope,
permanency, and effectiveness of the Secretarys new
rules.
The Tenth Circuit affirmed in part and reversed in
part. First, the court of appeals agreed with the
Secretary and the Clerks that Citizen Centers claims
were partially rendered moot by the Secretarys
adoption of Election Rules 10.8 and 10.9 during the

14
appeal.3 The court of appeals understood these new
rules to prohibit the unique numbering of paper ballots
and the post-certification maintenance of batches that
contain identifiable voted ballots. App., infra, 10a14a.
Second, with respect to the remaining live
practicesthe use of a unique ballot on a single DRE
voting machine and the Clerks pre-certification
batching practicesthe court of appeals held that
Citizen Centers alleged injury-in-fact was too
speculative to confer standing to challenge
infringement of the rights to vote, to engage in free
speech and association, and to enjoy substantive due
process. App., infra, 18a24a. Specifically, the court of
appeals held that the risk that election officials could
determine how a member voted was speculative
because Colorado law prohibits election officials from
inquiring how a person voted. App., infra, 19a. The
court of appeals discounted Citizen Centers allegations
and other facts of record showing that such safeguards
had failed to prevent the Clerks from locating and
revealing particular voters ballots in the past because
the court of appeals perceived that none of the
identified lapses had directly affected Citizen Centers
members. App., infra, 20a. Accordingly, the court of
appeals concluded that Citizen Centers members only

Elections Rules 10.8 (Use of unique numbers on ballots) and 10.9

(Tracking ballot batches), 8 Colo. Code Regs. 1505-1 (2012),
which the Secretary and Clerks briefed to the court of appeals as
mooting Citizen Centers claims, have since been modified and
superseded by Election Rules 4.8.4 and 7.5.9, respectively. See 8
Colo. Code Regs. 1505-1 (Oct. 30, 2014). The renumbered
versions of the rules are substantively the same as the versions
that were before the court of appeals.

15
stood to be injured by ballot traceability when and if
their ballots were actually traced in the future, and
that such a possibility remained speculative. App.,
infra, 20a. The court of appeals also rejected the
possibility of a sufficiently concrete injury-in-fact
arising from the risk that traceable ballots might chill
members from freely voting their consciences. App.,
infra, 22a. The court of appeals held that such a
subjective chill was too conjectural and, otherwise,
Citizen Center does not provide plausible allegations
that members intend to refrain from voting because of
the possibility that their ballots might be traced. App.,
infra, 23a, 24a.
Third, the court of appeals held that Citizen Center
did allege an injury-in-fact for purposes of its equal
protection and procedural due process claims, (App.,
infra, 24a26a), but that the dismissal of these equal
protection and procedural due process claims against
the Clerks should be affirmed on the alternate ground
of failure to state a claim, (App., infra, 30a36a). With
respect to Citizen Centers equal protection claims
against the Clerks, in particular, the court of appeals
affirmed the district courts dismissal of those claims
[b]ecause Citizen Center has not alleged that a county
clerk discriminated between voters in the same
county. App., infra, 33a. The court of appeals held
that, For the [equal protection] claims against the
clerks to succeed, Citizen Center would need to allege
a basis to hold a county clerk liable for inter-county
disparities. App., infra, 35a. The court of appeals
noted that equal protection in the voting context
protects the right to participate in elections on an
equal basis with other citizens in the jurisdiction,
(App. 65a (citing Dunn v. Blumstein, 405 U.S. 330, 336

16
(1972)) (emphasis added)), and reasoned that the
county itselfnot the State or any multicounty
political districtwas the proper unit of jurisdiction
for purposes of analyzing an equal protection claim
brought against a county in connection with voting
practices. App., infra, 34a35a.
Finally, the court of appeals held that the district
court had erred by dismissing the equal protection and
procedural due process claims against the Secretary
and that those claims should be allowed to proceed.
App., infra, 37a. Accordingly, the court of appeals
reversed the district courts dismissal of those two
claims with respect to the Secretary.
REASONS FOR GRANTING THE WRIT
The decision below creates serious obstacles to the
vindication of voting rights that are unsupported by
this Courts case law on standing and equal protection.
Review of the decision below on writ of certiorari is
thus warranted for a number of reasons.
A. The Decision Of The Court Of Appeals
Conflicts With Precedent Of This Court
The Tenth Circuits analysis of Citizen Centers
claims conflicts with this Courts precedent, which
rejects any requirement that a plaintiff must
demonstrate a subject-matter nexus between the right
asserted and the injury alleged. Duke Power Co. v.
Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 79
(1978). Instead of following Duke Power, the court of
appeals improperly required a nexus between Citizen
Centers alleged injuries-in-fact and each of Citizen
Centers particular legal theories.

17
On one hand, the court of appeals held that the
potential for ballots to be traced to individual voters, by
itself, was too speculative a basis to establish injury-infact to Citizen Centers members, for Citizen Center
simply suggests that election officials might trace
ballots. App., infra, 20a, 22a (emphasis added). The
court of appeals also held that Citizen Centers
allegation that its members would be burdened in the
act of freely voting their consciences by their
concerns about the nonsecret character of their ballots
was not sufficiently concrete to justify standing and
was too conjectural to establish an injury in fact.
App., infra, 22a, 24a. Based on these conclusions, the
court of appeals held that Citizen Center did not state
a valid injury-in-fact for purposes of Citizen Centers
claims involving its members rights to vote, to engage
in free speech and association, and to enjoy substantive
due process. App., infra, 15a.
On the other hand, the court of appeals affirmed
both that Citizen Centers allegation of [u]nequal
treatment can serve as an injury in fact, and that
Citizen Centers allegation of
the violation of
members state constitutional rights was concrete and
cognizable. App., infra, 24a26a. Based on these
conclusions, the court of appeals held that Citizen
Center did state valid injuries-in-fact for purposes of
its equal protection and procedural due process claims.
The selective determination by the court of appeals
that Citizen Center had stated injuries-in-fact that
were sufficient to confer standing to bring claims under
some legal theories but not others was erroneous
because all of Citizen Centers claims were based on
the very same conduct by the Secretary and the Clerks.

18
Establishing a causal connection between a defendants
conduct and a redressable injury is all that Citizen
Center was required to show in order to demonstrate
standing with respect to all of its claims arising from
the same conduct by the defendants. As this Court has
plainly held, plaintiffs need not go beyond showing a
redressable injury to have standing; there is no
requirement that they must also go a step further and
demonstrate a connection between the injuries they
claim and the constitutional rights being asserted.
Duke Power Co., 438 U.S. at 78.
Injuries-in-fact to Citizen Centers members that
were effective to establish Citizen Centers standing for
purposes of its equal protection and procedural due
process claims should have been recognized as injuriesin-fact that also conferred standing with respect to
Citizen Centers other claims arising from the
defendants same conduct. In other words, once the
court of appeals found that Citizen Center had stated
injuries-in-fact under the equal protection and
procedural due process claims, it should have held that
those acknowledged injuries-in-fact sufficed also to
establish Citizen Centers standing with respect to its
remaining claims involving members rights to vote, to
engage in free speech and association, and to enjoy
substantive due process. The court of appeals departed
from this Courts precedent by holding otherwise.
B. The Decision Of The Court Of Appeals Is
Wrong On The Merits
The decision below was also wrong, with respect to
the questions presented by this petition, for two
additional reasons.
First, the court of appeals
misapprehended the nature of the injury suffered by

19
voters when they are deprived of a secret ballot.
Second, the court of appeals erred by concluding that
an equal protection claim cannot lie against a county
that treats all of its own voters uniformly.
1. The Right To Vote Is Infringed At The
Moment When A Voter Expresses Her
Electoral Preferences Using A Ballot That
She Knows May Afterward Be Identified As
Hers.
The fundamental right to vote is not the bare right
to cast a ballot. As articulated by this Court, it is the
right to vote freely for the candidate of ones choice.
Reynolds v. Sims, 377 U.S. 533, 555 (1964) (emphasis
added). This right to vote freely for the candidate of
one's choice is of the essence of a democratic society,
and any restrictions on that right strike at the heart of
representative government. Id. Other rights, even
the most basic, are illusory if the right to vote is
undermined. Wesberry v. Sanders, 376 U.S. 1, 17
(1964).
To serve its fundamental purpose as a right at the
heart of our democracy, Burson v. Freeman, 504 U.S.
191 (1992), the right to vote ones conscience without
fear of retaliation, McIntyre v. Ohio Elections Commn,
514 U.S. 334, 343 (1995), inherently requires that
individuals must be at liberty to cast votes without the
burden of risking that they may later be called upon to
explain[] to anyone for whom, or for what reason, the
vote is cast. Rogers v. Lodge, 458 U.S. 613, 647 n.30
(1982).
The foregoing statements from decisions of this
Court show that absolute secrecy of the ballot is well

20
understood to be an intrinsic prerequisite to the free
exercise of the right to vote. To say so is by no means
controversialballot secrecy, after all, is so universally
and unexceptionally acknowledged as essential to the
free exercise of the right to suffrage in a democracy that
the United States, by law, does not even recognize
foreign states as being democracies unless they provide
for voting by secret ballot. 22 U.S.C. 8203(6)(B).
Because a voters confidence in the secrecy of her
ballot is a prerequisite to the free exercise of her
fundamental right to vote, the right to vote must
necessarily be understood to be burdened whenever a
voter who relies upon anonymity in voting knows that
the assurance of ballot secrecy is only a hope, rather
than a guarantee. Importantly, the burden on such a
voters right to vote is imposed, and the relevant injuryin-fact thus occurs, not at the momentperhaps long
after an electionwhen the voters choices are actually
investigated or discovered, but rather at the very
moment of voting itself. It is at the moment when the
voter engages in the act of completing her voting
selections that she must consider whether the choices
she is about to express on her ballot will one day return
to haunt her. It is in the very act of choosing whether
or not to express her genuine electoral preferences on
a ballot that she knows may, for all practical purposes,
have her name attached to it, that the voter is
concretely deprived of her ability freely to vote her
conscience.
The court of appeals incorrectly focused on a
different harm that may or may not arise later, after a
ballot is cast. But every voter who knows that her
ballot may be traceable, and who harbors a concern

21
about one day being called upon to explain for whom,
or for what reason, the vote is cast, is certain to suffer
an actual burden on her exercise of the fundamental
right to vote at the moment when she actually votes.
That burden on the right to vote, which is borne at the
actual moment of voting, is the injury to its members
that Citizen Center has alleged in this case. App.,
infra, 113a, 108. This alleged burden is neither
speculative nor conjectural, but is rather a concrete
injury-in-fact that Citizen Centers members are
certain to suffer each time they vote, regardless of
whether their individual ballots are ever actually
investigated at some later hour.
The Tenth Circuits misconception of the true
injury-in-fact inflicted upon the voting rights of Citizen
Centers members led it to mistake Citizen Centers
allegations of injury as speculative and non-concrete
and thus to conclude erroneously that Citizen Center
lacked associational standing. The opposite conclusion
was warranted by at least three facts present in the
record.
First, Citizen Center affirmatively alleged that its
members want to freely exercise their fundamental
right to vote but that some or all of them will not do
so because of the fear that their individual voted ballot
will not be a secret ballot. App., infra, 113a, 108
(emphasis added). This straightforward allegation
states an injury that the district court and court of
appeals should have accepted as true at the motion-todismiss stage.
Second, the plausibility of the foregoing allegation
was substantiated by actual facts in the record. The
court of appeals stated that, Citizen Center does not

22
provide plausible allegations that members intend to
refrain from voting because of the possibility that their
ballots might be traced. App., infra, 23a. But the
declarations provided in support of Citizen Centers
motion for a preliminary injunction showed, to the
contrary, that at least one identified member of Citizen
Center did actually refrain from voting in the June
2012 primary election for reasons that included her
aversion to having [her] private political choices
known to election workers and others. C.A. App. 303,
7.
Third, Citizen Centers allegations show that
members fears for the anonymity of their own ballots
were valid both because ballot traceability was real and
because the Clerks had shown that the Government
had made use of such traceability in the past. As
previously noted, one of the Clerks had written in the
Denver Post that, it is disturbingly uncomplicated to
identify votes, and we are required to track your
ballot. App., infra, 79a, 55.2. Other Clerks had
publicized their ability to locate ballots cast by
identifiable individuals within batches of voted ballots
from past elections. C.A. App. 15368, 16981.
Identifiable ballots of individual voters had been
publicized for more than a year and a half on a county
website. App., infra, 101a, 55. And Citizen Centers
own members had shown that they could themselves
trace voted ballots back to identifiable public officials.
C.A. App. 253, 20; C.A. App. 328.
Because all of the foregoing matters were in the
record before the courts below, Citizen Centers
allegations were clearly sufficient, at the motion-todismiss stage, to state an injury-in-fact to Citizen

23
Centers individual members and thus to establish
Citizen Centers associational standing.
2. Counties Remain Subject To The Equal
Protection Clause Even If They Treat All
Of Their Own Residents Uniformly
The equal protection holding below is mistaken for
several reasons. First, a claim under the Equal
Protection Clause is validly stated merely by alleging
that similarly situated persons have not been treated
alike. See City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985). Nothing in this
formulation requires that the similarly situated
persons must all receive their differing treatments at
the hands of the same governmental actor.
Second, it is entirely proper for the Clerks to answer
Citizen Centers equal protection claims, even if each of
them treats her own voters uniformly, because the
court of appeals explicitly found the alleged equal
protection violations would be redressable by an order
entered against the Clerks. 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.
App., infra, 28a
(emphasis added). Particularly in cases involving only
prospective relief, claims that seek to prevent
constitutional violations that are redressable by a
judicial order directed to a particular defendant should
be capable of being brought against that defendant.
Third, the court of appeals appears to have
overlooked that counties are components of larger
political districts, such as judicial districts and state
senate districts. Even if a county treats all of its own

24
voting residents uniformly, it may still be treating
them differently than voters from other counties in a
common, multicounty political district are treated by
other county governments. In such a case, the
appropriate jurisdiction for purposes of equal
protection must necessarily be the common political
district, not its constituent counties. Each of the
Clerks here conducts elections that involve multicounty
political contests in both general and primary elections.
It is properly a matter for judicial notice that every
county in Colorado is part of a multicounty
congressional district.
It may also properly be
judicially noticed that all Colorado counties are part of
a single, statewide district for purposes of electing
state-level officers and U.S. Senators. County lines
alone thus do not define the proper unit of
jurisdiction when analyzing equal protection
questions in the voting context under Dunn v.
Blumstein, 405 U.S. at 336. Under the Tenth Circuits
understanding of equal protection, all of the voters in
one county of a multicounty congressional district may
be uniformly deprived of their voting rights, without
having any recourse against their county clerk under
the Equal Protection Clause. Such a result would be
manifestly incorrect.
Fourth, the equal protection holding below is
inconsistent with the reasoning in Bush v. Gore, 531
U.S. 98 (2000), in which this Court found an equal
protection violation based on different counting
methodologies that were applied to ballots by different
counties in a statewide recount, notwithstanding that
each county apparently treated all of its own voters
ballots the same.

25
The Tenth Circuits rationale for upholding the
dismissal of Citizen Centers equal protection claim
against the Clerks promises to have very significant
ramifications. The decision will effectively immunize
counties against otherwise redressable claims for equal
protection violations wherever the unequal treatment
occurs across different counties rather than within
counties. Given the typically varied makeup of voting
populations found across different counties within
common political districts, the decision below seems
likely to invite a host of thorny, unforeseen
consequences.
C. This Case Is An Ideal Vehicle For Clarifying
That The Right To Vote Entails The Right To
Use A Secret Ballot
The secret ballot is a protection for voters that
exists to guarantee that no oneincluding the
Governmentis ever in a position to know how a
particular person voted. When secrecy in voting is
jeopardized, not only is the fundamental right to vote
naturally burdened, but so too are all of a voters other
rights which are exercised through the act of voting.
This case presents this Court with an ideal vehicle to
recognize that the United States Constitution
mandates a strong form of ballot secrecy for all voters,
by clarifying that the free exercise of the right to vote
inherently requires that voters be permitted to vote
using a ballot and voting system that are designed to
preserve the anonymity of voters individual electoral
preferences, including from the Government itself.
This Court has never directly addressed whether
the Constitution requires that voters must be
permitted to vote by secret ballot in public elections.

26
But the Court has explicitly used the language of rights
when discussing the secret ballot. See McIntyre, 514
U.S. at 343 (calling the secret ballot the hard-won
right to vote ones conscience without fear of
retaliation) (emphasis added). And this Court has
explicitly noted that secrecy of the ballot is necessary
to serve the compelling interest of protecting voters
from intimidation during the act of voting itself. See
Burson, 504 U.S. at 206.
Certain Justices of this Court have observed that
secrecy of the ballot is fundamental to our system of
government. See Rogers, 458 U.S. at 647 n.30 (Stevens,
J., dissenting) ([T]he very purpose of the secret ballot
is to protect the individuals right to cast a vote without
explaining to anyone for whom, or for what reason, the
vote is cast.); Buckley v. Valeo, 424 U.S. 1, 237 (1976)
(Burger, J., concurring in part and dissenting in part)
([S]ecrecy and privacy as to political preferences and
convictions are fundamental in a free society. For
example, one of the great political reforms was the
advent of the secret ballot as a universal practice.).
Other Justices have individually expressed doubt
that the Constitution requires voting by means of a
secret ballot. See John Doe No. 1 v. Reed, 561 U.S. 186,
224 (2010) (Scalia, J., concurring) (stating that the
history of voting in the United States completely
undermines the claim that the acknowledged First
Amendment interest in voting includes the right to vote
anonymously); Taylor v. Beckham, 178 U.S. 548, 595
(1900) (Harlan, J., dissenting) (stating that the U.S.
government cannot interfere with States decisions
whether to hold elections by open or secret ballot).

27
Lower courts, to the extent they have addressed
whether the Constitution mandates secrecy in voting,
have likewise come to opposite conclusions. Compare
Barsky v. United States, 167 F.2d 241, 252 (D.C. Cir.
1948) ([I]t was never thought, or suggested, that
public voting violated constitutional rights.), with
Anderson v. Mills, 664 F.2d 600, 608 (6th Cir. 1981)
(Although the US Constitution does not specifically
guarantee that a person has a right to a secret ballot,
such a right has been recognized as one of the
fundamental civil liberties of our democracy.).
This case affords an opportunity for this Court, in
light of the mixture of views collected in the foregoing
judicial pronouncements, to clarify that a voters free
exercise of the fundamental right to vote, which is
protected by the U.S. Constitution, inherently entails
the right to cast votes by means of a secret ballot.
D. None Of The Issues Raised By The Questions
Presented Are Moot In This Case
Citizen Center disagreed with the Secretary and the
Clerks below over whether the Secretarys election
rules, adopted in response to Citizen Centers
preliminary injunction motion, mooted any of Citizen
Centers claims. Citizen Center argued that the
Secretarys rules did not moot any claims because the
new rules do not effectively prohibit the creation of
traceable ballots and that the voluntary cessation
exception to the mootness doctrine applied, in any
event. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Svcs. (TOC), Inc., 528 U.S. 167, 190 (2000).
The court of appeals held that the Secretarys rules
had mooted Citizen Centers claims by prohibiting the

28
unique numbering of paper ballots and the postcertification maintenance of batches containing
identifiable ballots. App., infra, 10a14a. But the
court of appeals held that Citizen Centers claims were
not moot with respect to the creation of traceable
ballots cast on DRE machines and with respect to the
Clerks batching of traceable voted ballots before the
final certification of an election. App., infra, 14a15a.
Based on the decision below with respect to
mootness and the current state of the Secretarys
regulations, the issues presented by this petition are
very much live controversies. Final certification of an
election can take months, particularly in case of
recounts, election contests, and other election
litigation. Accordingly, this Court should grant the
writ and proceed to address the questions presented.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Robert A. McGuire, III
Counsel of Record
ROBERT MCGUIRE LAW FIRM
9233 Park Meadows Drive
Lone Tree, Colorado 80124
(303) 952-5077
ram@lawram.com
Counsel for Petitioner
FEBRUARY 2015

APPENDIX

i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion And Judgment In The United
States Court Of Appeals For The
Tenth Circuit
(October 21, 2014) . . . . . . . . . . . App. 1a
Appendix B Final Judgment In The United States
District Court For The District Of
Colorado
(September 25, 2012) . . . . . . . . App. 40a
Appendix C Reporters
Transcript (Motions
Hearing) In The United States District
Court For The District Of Colorado
(September 21, 2012) . . . . . . . . App. 42a
Appendix D Minute Entry In The United States
District Court For The District Of
Colorado
(September 21, 2012) . . . . . . . . App. 70a
Appendix E Order Denying Petition For Rehearing
And Rehearing En Banc In The
United States Court Of Appeals For
The Tenth Circuit
(November 17, 2014) . . . . . . . . App. 72a
Appendix F Order Granting Plaintiffs Motion To
Clarify In The United States District
Court For The District Of Colorado
(November 27, 2012) . . . . . . . . App. 74a

ii
Appendix G First Supplemental Complaint For
Declaratory And Injunctive Relief In
The United States District Court For
The District Of Colorado
(July 27, 2012) . . . . . . . . . . . . . App. 77a
Appendix H First Amended Complaint For
Declaratory And Injunctive Relief In
The United States District Court For
The District Of Colorado
(May 10, 2012) . . . . . . . . . . . . . App. 89a

App. 1a

APPENDIX A
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 12-1414
[Filed October 21, 2014]
___________________________________
CITIZEN CENTER,
)
Plaintiff-Appellant,
)
)
v.
)
)
SCOTT GESSLER, in his official
)
capacity as Colorado Secretary of
)
State; ANGELA MYERS, in her
)
official capacity as Larimer County
)
Clerk & Recorder; PAM
)
ANDERSON, in her official
)
capacity as Jefferson County Clerk
)
& Recorder; HILLARY HALL, in
)
her official capacity as Boulder
)
County Clerk & Recorder; JOYCE
)
RENO, in her official capacity as
)
Chaffee County Clerk & Recorder;
)
and TEAK SIMONTON, in her
)
official capacity as Eagle County
)
Clerk & Recorder,
)
Defendants-Appellees.
)
___________________________________ )

App. 2a
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:12-CV-00370-CMA-MJW)
Robert A. McGuire, III, McGuire Bains LLC, Lone
Tree, CO (Jeffrey David Baines, McGuire Baines LLC,
Denver, CO, on the briefs), for Plaintiff-Appellant.
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 Attorneys 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.
Before HOLMES, McKAY, and BACHARACH,
Circuit Judges.
BACHARACH, Circuit Judge.
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

App. 3a
(5) procedural due process.1 In addition, Citizen Center
has sued five of the clerks for violation of the Colorado
Constitution.2
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 Centers

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 asserted only against the
clerks. R. vol. 1, at 118; see R. vol. 3, at 496 (district courts
acknowledgment that Citizen Center had conceded that the claims
under the state constitution could not be maintained against the
Secretary of State).

App. 4a
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.
I.

Traceable Ballots

Analysis of the claims requires an understanding of

the balloting practices in the six Colorado counties,
Citizen Centers theories, and the Secretary of States
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

App. 5a
(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 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
machines 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

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 overvotes) 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.

App. 6a
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 trace a ballot by comparing the content to
information in the batch sheet. Id. at 25-26, 28, 30, 32.
B. Citizen Centers Theories
Citizen Centers 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

App. 7a
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).
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 States 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.

App. 8a
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 the final
certification of the abstract of votes cast. Id. 15051:4.8.4(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;
Secys 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
Intl Co. v. Malaysia Intl Shipping Corp., 549 U.S. 422,
431 (2007) (quoting Ruhrgas AG v. Marathon Oil Co.,

App. 9a
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
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 OShea 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.

App. 10a
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 the plaintiffs 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
Centers 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
States new regulations4 render the case moot on
constitutional and prudential grounds. In response,
Citizen Center urges us to apply the voluntarycessation exception. We conclude:
! The new regulations partially moot the case.
! Neither the voluntary-cessation exception nor
the prudential mootness doctrine applies.

We analyze the current regulations, which took effect on

December 30, 2013.

App. 11a
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 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
Govt 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 Centers 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.
to:

These regulations moot Citizen Centers challenges

(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

App. 12a
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 cast on
a single voting machine or within a batch before
certification. Therefore, Citizen Centers 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 defendants 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 defendants 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 original) (quoting 13C Charles Alan

App. 13a
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 States 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
Secretarys 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 Centers 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.

App. 14a
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. Dept v. Rockwell Intl 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.

App. 15a
But the new regulations continue to allow use of
unique ballots on an electronic voting machine and
batching practices before final certification. Thus,
Citizen Centers 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 Centers 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. State Apple Adver. Commn, 432

App. 16a
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. Secy of
States 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
States 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 Centers 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 courts record at the time
of the ruling on the motion to dismiss. Thus, we
conclude that Citizen Center has sufficiently identified
its individual members for purposes of standing.

App. 17a
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 Intl 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 courts 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
plaintiffs asserted right or interest. If that were the
test, every losing claim would be dismissed for want of
standing. Initiative & Referendum Inst. v. 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

App. 18a
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 Centers
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 Centers 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.
Citizen Ctr.s Opening Br. at 16-19. These alleged
injuries do not support standing.

App. 19a
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 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.

App. 20a
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); OShea 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 voters social
security number. Id. at 1345. The court did not
expressly address standing, and the burden on the

App. 21a
Greidinger plaintiff differs from the burden on Citizen
Centers 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 134546. The Fourth Circuit Court of Appeals concluded that
the states requirement provided a condition on the
plaintiffs 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 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.

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).

App. 22a
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 members
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 Intl 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.
ii. The
Chilling
Members

Effect

on

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 Intl USA, ___ U.S. ___,

App. 23a
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
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

App. 24a
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 Centers 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))). 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 voters 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.

Later, Citizen Center appeared to retreat from this allegation.

For example, at a hearing, Citizen Centers 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
Centers counsel stated that members were concerned and might
not vote their consciences. Oral Argument at 11:34-13:57.

App. 25a
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 in-person 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 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 inperson voters vis--vis absentee voters is sufficient
injury to confer standing at the summary-judgment
stage).

App. 26a
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 4546, 55-56. This injury is concrete and cognizable.
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.

App. 27a
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.
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.

App. 28a
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.
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 States Argument
The Secretary of State denies authority to remedy
the alleged infirmities. Secys 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 States
approval is required before the clerks can implement a

App. 29a
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 Secretarys arguments, we cannot assume the
clerks will proceed without the required approval. See
Intl 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 Centers 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
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).

App. 30a
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
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 Centers allegations

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).

App. 31a
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.
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. Dept 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

App. 32a
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.
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 electors 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
voters 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 Colorados 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

App. 33a
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 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. Commrs 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) (Colorados 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
same county, the amended complaint does not suggest

App. 34a
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 Protection

10

11

Duncan v. Coffee Cnty., 69 F.3d 88, 93 (6th Cir. 1995).

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 Wests 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. 35a
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 Centers 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 Centers 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)

App. 1976) (per curiam) (Counties are considered separate

political subdivisions and are not considered [agencies] of the
state.).

App. 36a
([T]he proponent of the equal protection 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).

App. 37a
V. Conclusion
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.

App. 38a
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 12-1414
(D.C. No. 1:12-CV-00370-CMA-MJW)
[Filed October 21, 2014]
___________________________________
CITIZEN CENTER,
)
Plaintiff-Appellant,
)
)
v.
)
)
SCOTT GESSLER, in his official
)
capacity as Colorado Secretary of
)
State; ANGELA MYERS, in her
)
official capacity as Larimer County
)
Clerk & Recorder; PAM
)
ANDERSON, in her official
)
capacity as Jefferson County Clerk
)
& Recorder; HILLARY HALL, in
)
her official capacity as Boulder
)
County Clerk & Recorder; JOYCE
)
RENO, in her official capacity as
)
Chaffee County Clerk & Recorder;
)
and TEAK SIMONTON, in her
)
official capacity as Eagle County
)
Clerk & Recorder,
)
Defendants-Appellees.
)
___________________________________ )
JUDGMENT
Before HOLMES, McKAY, and BACHARACH,
Circuit Judges.

App. 39a
This case originated in the District of Colorado and
was argued by counsel.
The judgment of that court is affirmed in part and
reversed in part. The case is remanded to the United
States District Court for the District of Colorado for
further proceedings in accordance with the opinion of
this court.
Entered for the Court
/s/_____________________________________
ELISABETH A. SHUMAKER, Clerk

App. 40a

APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00370-CMA-MJW
[Filed September 25, 2012]
___________________________________
CITIZEN CENTER,
)
Plaintiff,
)
)
v.
)
)
SCOTT GESSLER, in his official
)
capacity as Colorado Secretary of
)
State, SHEILA REINER, in her
)
official capacity as Mesa County
)
Clerk & Recorder, SCOTT DOYLE,
)
in his official capacity as Larimer
)
County Clerk & Recorder, PAM
)
ANDERSON, in her official
)
capacity as Jefferson County Clerk
)
& Recorder, HILLARY HALL, in
)
her official capacity as Boulder
)
County Clerk & Recorder, JOYCE
)
RENO, in her official capacity as
)
Chaffee County Clerk & Recorder,
)
TEAK SIMONTON, in her
)
official capacity as Eagle County
)
Clerk & Recorder,
)
Defendants.
)
___________________________________ )

App. 41a
FINAL JUDGMENT
In accordance with the orders filed during the
pendency of this case, and pursuant to Fed. R. Civ. P.
58(a), the following Final Judgment is hereby entered.
Pursuant to the Order of the court at the motions
hearing held before the Honorable Christine M.
Arguello on September 21, 2012, and as reflected in the
text-only Minute Entry for Proceedings, it is
ORDERED the case is dismissed due to lack of
standing. Each party shall bear its own attorney fees.
Defendants are awarded their costs and shall file a bill
of costs within ten days after the entry of judgment.
DATED at Denver, Colorado this September 25th,
2012.
FOR THE COURT:
JEFFREY P. COLWELL, CLERK
By: s/ Edward P. Butler___________
Edward P. Butler, Deputy Clerk

App. 42a

APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00370-CMA-MJW
[Dated September 21, 2012]
____________________________________________
CITIZEN CENTER, a Colorado
)
nonprofit corporation,
)
)
Plaintiff,
)
)
v.
)
)
SCOTT GESSLER, a Colorado Secretary
)
of State; SHEILA REINER, Mesa County
)
Clerk & Recorder; SCOTT DOYLE,
)
Larimer County Clerk & Recorder; PAM
)
ANDERSON, Jefferson County Clerk &
)
Recorder; HILLARY HALL, Boulder County
)
Clerk & Recorder; JOYCE RENO, Chaffee
)
County Clerk & Recorder; and TEAK
)
SIMONTON, Eagle County Clerk & Recorder, )
)
Defendants.
)
____________________________________________ )
_________________________________________________
REPORTERS TRANSCRIPT
(Motions Hearing)
__________________________________________________

App. 43a
Proceedings before the HONORABLE CHRISTINE
M. ARGUELLO, Judge, United States District Court,
for the District of Colorado, commencing at 9:21 a.m.
on the 21st day of September, 2012, Alfred A. Arraj
United States Courthouse, Denver, Colorado.
DARLENE M. MARTINEZ, RMR, CRR
United States District Court
For the District of Colorado
[p.2]
APPEARANCES
FOR THE PLAINTIFF:
ROBERT A. MCGUIRE, III and JEFFREY D. BAINES,
McGuire Baines, LLC, 1624 Market Street, Suite 202,
Denver, CO 80202
FOR DEFENDANT SIMONTON:
GILLIAN DALE and THOMAS J. LYONS, Hall &
Evans, LLC, 1125 17th Street, Suite 600, Denver, CO
80202
BRYAN R. TREU, Eagle County Attorneys Office, P.O.
Box 850, 500 Broadway, Eagle, CO 81631
FOR DEFENDANT RENO:
JENNIFER A. DAVIS, Chaffee County Attorneys
Office , P.O. Box 699, 104 Crestone Avenue, Salida, CO
81202
FOR DEFENDANT HALL:
DAVID E. HUGHES, Boulder County Attorneys Office,
P.O. Box 471, 1325 Pearl St., 5th Floor, Boulder, CO
80306
FOR DEFENDANT GESSLER:
MAURICE G. KNAIZER, MELODY MIRBABA and
LEEANN MORRILL Colorado Attorney Generals

App. 44a
Office-State Sevices, 1525 Sherman Street, Denver, CO
80203
FOR DEFENDANT PAM ANDERSON:
WRITER MOTT, Jefferson County Attorneys Office
100 Jefferson County Parkway, #5500, Golden, CO
80401
[p.3]
SEPTEMBER 21, 2012
(Requested proceedings.)
THE COURT: All right. Well, I will tell you, this is
my concern. As a threshold matter, standing and
jurisdiction is a prerequisite to this Courts jurisdiction.
And my concern is, Im not sure that the plaintiff is
going to be able to demonstrate that it has standing.
Federal courts are courts of limited jurisdiction.
And my jurisdiction stems from Article III of the
United States Constitution. That Article allows me to
hear only cases or controversies, and that means
that there has to be standing in this particular case.
Now, in this case, there are several varieties of
standing that have been argued; Article III, declaratory
judgment, prudential standing, organizational
standing, associational standing.
I am going to begin, I guess, to let you know my
thoughts with associational standing, both because it
appears to be the most applicable in this case, where
Citizen Center is representing the interest of its
members, and also because it effectively incorporates
the relevant inquiry for Article III standing.

App. 45a
An organization has associational standing to bring
suit on behalf of its members when its members would
[p.4]
otherwise have standing to sue in their own right; the
interests that the organization seeks to protect are
germane to the organizations purpose; and neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.
Now, to show that the members would otherwise
have standing to sue in their own right, the
organization must show that its member could
demonstrate the injury, causation and redressability
requirements derived from Article III.
The first step is that the organization must show
that its member suffered an injury in fact, which is
defined as the invasion of a legally-protected interest,
which is concrete and particularized and actual or
imminent, not merely conjectural or hypothetical.
Stewart v. Kempthorne, K-E-M-P-T-H-O-R-N-E, 554
F.3d 535, Tenth Circuit 2009.
Next, the organization must demonstrate a causal
connection between the injury and the conduct.
And, finally, the organization must establish that it
is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision. And it
is the burden of the party invoking jurisdiction to
clearly allege facts demonstrating its standing. Warth
v. Seldin, 422 U.S. 490, 1975.

App. 46a
[p.5]
Now, to a certain extent, I am going to have to get
into the merits of the case to try to determine the
injury-in-fact elements, because this is one those cases,
as Justice Brennan noted, matters relevant to the
merits will be touched during the standing
determination. That is Association of Data Processing
Service Organizations, Inc. v. Camp, 397 U.S. 159,
1970 case.
To determine whether the lack of absolute
anonymity in voting is a legally protected interest, such
that its invasion or violation could constitute an injury
in fact, the Court is going to have to look at each of the
different legal theories offered by the plaintiff. And I
am going to begin with plaintiffs federal claims. There
are essentially five federal claims posed by the
defendants.
The first claim is substantive due process,
infringement of fundamental right to vote. Second is
substantive due process, infringement of the First
Amendment rights to freedom of speech and
association. Third is the substantive due process,
infringement of fundamental right to secret ballot.
Fourth is a procedural due process claim, infringement
of a state-created liberty interest in voting by secret
ballot. And the fifth is an equal protection argument,
infringement of fundamental right to vote and rights to
[p.6]
freedom of speech and association.
Now, at the outset, it is necessary to clarify what is
the nature of the plaintiffs first three claims, because

App. 47a
theyre all styled as substantive due process claims.
Plaintiff asserts that the due process clause is
referenced in the first two of those claims because
substantive due process incorporates the underlying
federal constitutional rights against deprivation by the
states.
Plaintiff thus argues that Claims One and Two are
properly analyzed under the current framework
applicable to constitutional challenges to election laws
set out in Burdick v. Takushi 504 U.S. 428, 1992 and
Anderson v. Celebrezze, 460 U.S. 780, 1983. And, thus,
really are not due process claims.
Burdick cites Anderson for the appropriate
standard for evaluating a claim that a state law
burdens the right to vote. However, the Court in
Anderson acknowledged that it relied on the analysis
in a number of prior election cases applying the
fundamental rights strand of equal protection
analysis. So its doing it in the context of equal
protection analysis, not due process.
Therefore, the Court understands plaintiff to be
relying on a fundamental rights equal protection
analysis for these claims and to have effectively
[p.7]
withdrawn the asserted basis of substantive due
process with respect to these claims.
The Clerks point out that plaintiffs analysis
effectively leapfrogs over the first step, which is what
I came into this hearing with, that we first have to
determine whether a fundamental constitutional right

App. 48a
is implicated by the use of ballots in which it is possible
to trace the ballot to the person who completed it.
Plaintiff just assumes that a fundamental
constitutional right is implicated, and then dives
straight into the discussion of how the infringement of
such a right is to be weighed or evaluated under
Anderson. And proceeding in that way begs the
question of whether the deprivation the plaintiff
complains of is a legally protected federal interest to
begin with.
In its First Amended Complaint, the plaintiff
asserts that a procedure that does not guarantee
absolute anonymity in voting violates the fundamental
right to vote because, effectively, some members of its
organization may end up not voting because of the fear
that their individual voted ballot will not be a secret
ballot, but will instead be traceable to them personally
and thus will remain subject to being identified by
government officials and others at any time after an
election as the particular ballot cast by the voter
personally. That is in Document
[p.8]
No. 37, at page 23.
But, that outcome, even if it were to come to pass, is
a far cry from the fundamental rights claims that arise
in situations in which limitations have been placed on
the right to vote, and which have been found to be
violations of the fundamental right to vote, and that is
an infringement on the ability to cast a vote, such as
was in Harper v. Virginia Board of Elections, 383 U.S.
663, 1966, which held the poll tax unconstitutional, or
when determination has to be made as to whether an

App. 49a
individuals vote should be counted at all. And that was
Bush v. Gore, 531 U.S. 98, 2000.
In this case, Im not convinced that the facts of this
case as alleged in the Plaintiffs Amended Complaint,
rises to the level of infringing upon the federal
fundamental right to vote. The facts of this case fall far
short of demonstrating problems with ballot box access,
disenfranchisement, or any other restriction of the
right to vote.
States are afforded a wide latitude in determining
how to manage election procedures, ACLU v. NM v.
Santillanes, S-A-N-T-I-L-L-A-N-E-S, 546 F.3d 1313,
Tenth Circuit, 2008. The Tenth Circuit has stated
common sense, as well as constitutional law, compels
the conclusion that government must play an active
role in
[p.9]
structuring elections. American Constitutional Law
Foundation, Inc. v. Meyer, 120 F.3d 1092, on pages
1097 through -98, Tenth Circuit, 1997. Indeed, the
power of the States to regulate their own elections
has been well established. Burdick, 504 U.S. at 433.
In this case, the regulation or the actions of the
Secretary of State and the Clerks does not appear to
overstep federal constitutional protections of the right
to vote. And, if not, there is no invasion of a legally
protected interest. And, accordingly, on Claim One, it
seems to me that the plaintiff has failed to establish a
jurisdictional prerequisite of standing to bring that
claim.

App. 50a
With respect to its second claim, the infringement
of First Amendment rights to freedom of speech and
association, the Court doesnt see that that fares much
better. Plaintiff notes that the Supreme Court and,
correctly -- that the Supreme Court has never
addressed whether the First Amendment protects the
right to vote anonymously. Thompson v. Dorchester
County Sheriffs Department, 280 Fed. Appx. 328. On
page 329, note 2, Fourth Circuit, 2008, stated the
Supreme Court has never recognized secrecy in voting
as a constitutionally guaranteed right.
Plaintiff also correctly points out that, in a
[p.10]
concurrence a 2010 free speech case, Justice Scalia
gave a well-reasoned explanation for his position that
the First Amendment does not protect the right to vote
anonymously. Doe v. Reed, 130 S. Ct. 2811, page 2834,
2010, with Justice Scalia concurring.
After making these concessions, plaintiff then pivots
and asserts other courts have perceived the First
Amendment does protect the right to vote
anonymously. However, the cases plaintiff cites only
indicate that a person has a right to vote by secret
ballot. And, more specifically, that such ballot not be
publicly disclosed. See, for example, Anderson v. Mills,
664 F.2d 600, at page 608, Sixth Circuit, 1981 case.
But the issue the plaintiff raises in this suit is not
whether there is a right to vote by secret ballot, but,
rather, whether there is a right to vote by a ballot that
cannot be traceable to the voter even by the County
Clerk that records that vote.

App. 51a
And, perhaps, as the Clerks have suggested, the
problem is that the plaintiff and defendants simply
disagree on what constitutes a secret ballot.
Plaintiffs position is that a ballot voted in private, and
never publicly disclosed, is not a secret ballot,
because the County Clerk could potentially trace it
back to the voter. That does not sufficiently convey an
injury
[p.11]
in fact, because it fails to demonstrate that plaintiffs
position is a legally protected one.
Perhaps, more problematic for plaintiff, is that it
fails to convince this Court that the defendants
production or use of traceable ballots regulates or
impinges the right to speech or the right to association
at all. See Initiative & Referendum Institution v.
Walker, 450 F.3d 1082, Tenth Circuit, 2006, holding
that an initiative requirement which deterred wildlife
advocates from threatening to launch a petition and
cowed proponents of initiatives on other subjects did
not regulate speech.
Accordingly, the plaintiff has failed to meet its
burden of demonstrating that it has experienced, or
soon will experience, an injury in fact based on its
freedom of speech rights, the Court is without
jurisdiction to adjudicate this claim.
Plaintiff stipulates that, as titled in its First
Amended Complaint, at its third claim, which is
premised on the infringement of the fundamental
right to secret ballot, is actually a substantive due
process claim.

App. 52a
The Supreme Court has described two types of
substantive due process protections. One, protects an
individuals fundamental liberty interests, while the
other protects against the exercise of governmental
power
[p.12]
that shocks the conscience. Seegmiller v. Laverkin
City, 528 F.3d 762, page 767, Tenth Circuit, 2008.
Plaintiffs First Amended Complaint clearly raises
the first type of substantive due process protection. For
such a claim, the Clerks assert, and plaintiff does not
dispute, and this Court agrees, that the analysis
requires two steps. First, the Court must carefully
describe the asserted fundamental liberty interest.
That is from Seegmiller, at page 769.
Second, the Court must decide whether the
asserted liberty interest, once described, is objectively,
deep rooted in this Nations history and tradition, and
implicit in the concept of ordered liberty, such that
neither liberty nor justice would exist if they were
sacrificed. That is also taken from Seegmiller, at page
769.
As to the first step, the Court agrees with the
Clerks that the interest Citizen Center asserts is a
future election process that makes it impossible for an
elected clerk to determine how a particular voter cast
his or her vote.
As to the second step, plaintiff asserts that it validly
pled that the right to use a secret ballot is deeply
rooted in this Nations history and traditions and
implicit in the concept of ordered liberty. But

App. 53a
[p.13]
plaintiffs pleading burden is that it must plead facts
that could plausibly entitle it to relief under the
prevailing law.
Even under the very favorable review that a
plaintiffs complaint receives at the motion to dismiss
stage, the Court is not bound to accept as true a legal
conclusion couched as a factual allegation. Bell
Atlantic Corp v. Twombly, 550 U.S. 554, 2007. The fact
that plaintiff alleges there to be a fundamental right to
a secret ballot at the federal level does not make it so.
As with its previous claim, plaintiff encounters a
definitional problem in its claim for infringement to the
fundamental right to a secret ballot. Plaintiff cites
cases that it asserts stand for the right, or at least a
mention, if it is in dicta, to use a secret ballot. But even
if those cases support such a proposition, the Clerks
correctly observe that the parties disagree on what
constitutes a secret ballot.
Regardless, the Court agrees with the Clerks that
the applicable law demonstrates that there is no
fundamental interest in an election procedure that
makes it impossible for an elected clerk to determine
how a particular voter cast his or her vote.
Whatever difficulties there might be in reconciling
constitutional cases in this area, it is clear to the
[p.14]
Court that plaintiffs position is not supported by
adequate authority and, thus, the right it argues for is
not a fundamental federal right.

App. 54a
Indeed, the way in which plaintiff phrases its
statement that it identifies this fundamental right for
recognition is somewhat telling. To find that plaintiff
suffers an invasion of a legally protected interest on
this claim would require the Court to recognize a new
fundamental right. This Court declines to do so,
heeding the Supreme Courts admonition to use the
utmost care when breaking new ground in the area
of fundamental rights. Especially in the absence of
more persuasive authority, this Court is not inclined to
extend the federal Constitutions substantive due
process protection to cover the right asserted here.
In addition, plaintiffs claim faces a problem brought
about by tension it creates within the injury-in-fact
analysis. On the one hand, plaintiff is understandably
hesitant to plead its claim as alleging that the ballots
of its members might be actually traced by someone at
some point in time, because such pleading would
connect better with the cases plaintiff cites, many of
which deal with the actual and public disclosure of
identifying information on a ballot.
That sort of pleading, however, runs squarely into
[p.15]
the problem of asserting an interest that is conjectural
or hypothetical and not actual or imminent. Plaintiffs
First Amended Complaint contains no allegations that
any of its members have had their votes publicly
disclosed, only that such disclosure is possible.
In order to assert something that is more actual or
imminent; in other words, that the creation of ballots
which can, but may very well not, be traced, plaintiff
ends up pleading facts to which there is no

App. 55a
corresponding legal protection under a fundamental
rights analysis.
Therefore, again, without any legal protection for
the injury asserted, plaintiff has not established
standing for this particular claim.
Plaintiffs fourth claim is that it has experienced an
infringement of a state-created liberty interest in
voting by secret ballot. A determination of whether
plaintiff has articulated an invasion of a legally
protected interest for this claim, requires a brief
discussion of the Colorado Constitution and related
state law.
The analysis concerning the identification of a
State-created liberty interest parallels the accepted
due process analysis as to property. Wolff v.
McDonnell, M-C-D-O-N-N-E-L-L, 418 U.S. 539, 557,
1974.
Whether an interest created by state law rises to
[p.16]
the level of a liberty interest protected by the due
process clause of the Fourteenth Amendment is a
matter of federal law. Montero v. Meyer, 13 F.3d 1444,
Tenth Circuit, 1994. However, the scope of a claimed
state-created liberty interest is determined by
reference to state law. Bishop v. Wood, 426 U.S. 341,
1976.
To determine whether or not the due process
requirements apply, the Court looks not to the weight,
but to the nature of the interest at stake. Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 1972.

App. 56a
In OBannon v. Town Court Nursing Center, 447 U.S.
773, at page 800, 1980 case, the Supreme Court stated:
When governmental action affects more than a few
individuals, concerns beyond economy, efficiency, and
expedition tip the balance against finding that due
process attaches. We may expect that as the sweep of
governmental action broadens, so too does the power of
the affected group to protect its interest outside rigid
constitutionally imposed procedures.
Moreover, although a liberty interest is of course a
substantive interest of an individual, it cannot be the
right to demand needless formality. Shango v. Jurich,
681 F.2d 1091, on pages 1100-1101, Seventh Circuit
1982.
Where a rule of conduct applies to more than a few
people, it is impracticable that everyone should have a
[p.17]
direct voice in its adoption. The Constitution does not
require all public acts to be done in a town meeting or
an assembly of the whole. There must be a limit to
individual argument in such matters if the
Government is to go on. Bi-Metallic Investment
Company v. State Board of Equalization, 239 U.S. 441,
page 445, a 1915, U.S. Supreme Court case.
Beyond this recognition that due process is less
likely to attach as the Governments action, as here,
affects increasingly more people, the Supreme Court
has further narrowed this analysis. To have a liberty
interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have
more than a unilateral expectation of it, he must,

App. 57a
instead, have a legitimate claim of entitlement to it.
Roth, 408 U.S., at 577.
The Tenth Circuit in Montero gave some examples
that are instructive. First, when a state creates in its
citizens the right to operate a vehicle on the highway
by issuing drivers licenses, it also creates in the driver
a legitimate expectation to continue to operate the
vehicle, and the state may not withdraw this right from
an individual without giving him due process. That is
Bell v. Burson, 40 U.S. 535, 1971.
Similarly, if a state gives a parolee the right to
[p.18]
be at liberty as long as he complies with the
requirements of his parole, the state has created in the
individual a legitimate right to his freedom, and the
state may not withdraw the conditions of his parole
without affording him procedural due process.
Morrissey v. Brewer, 408 U.S. 471, 1972.
In those cases, a legitimate right to an entitlement
created by state law was terminated by state action. As
the Tenth Circuit stated in Montero, it is this
termination of a right previously afforded by the state
and in which there is a legitimate claim of entitlement
which invokes the procedural guarantees contained in
the Due Process Clause of the Fourteenth
Amendment. 13 F.3d at 1447 through -48.
The fact which distinguishes why certain state
provisions have been found to create liberty interests
entitled to due process protection while others have not
is based upon the language of the provisions
themselves. Kentucky Department of Corrections v.

App. 58a
Thompson, 490 U.S. 454, 1989. Thus, this Court must
examine the relevant Colorado constitutional provision
to determine whether plaintiff has a legitimate claim
of entitlement to absolute anonymity in voting.
Article VII, Section 8 of the Colorado Constitution
provides, in pertinent part, that: All elections by the
[p.19]
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.
However, that section also goes on to state that:
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. Nothing in this section, however, shall
be construed to prevent the use of any machine or
mechanical contrivance for the purpose of receiving and
registering the votes cast at any election, provided that
secrecy in voting is preserved.
Plaintiffs assert that this provision of the Colorado
Constitution provides for absolute anonymity of voted
ballots. The Clerks, on the other hand, assert that the
provision only prohibits the public disclosure of
traceable ballots.
In interpreting a constitutional provision, the Court
employs the same set of construction rules applicable

App. 59a
to statutes. The Court starts with the plain meaning of
the language of the relevant provision. But
[p.20]
the Court also reads applicable provisions as a whole.
This method of interpretation is employed by
Colorado state courts. Garcia-Martinez v. City &
County of Denver, 392 F.3d 1187, Tenth Circuit, 2004.
In re Midpoint Development, LLC, 466 F.3d 1201,
Tenth Circuit, 2006. And Danielson v. Dennis, 139 F.3d
688, Colorado, 2006. I start with the words, giving
them their plain and commonsense meaning, and then
I read the applicable provisions as a whole,
harmonizing them if possible.
In this case, Section 8 begins by stating that no
ballots shall be marked in any way whereby the ballot
can be identified as the ballot of the person casting it.
The provision does not, however, specify who is
prohibited from identifying the ballot.
There would perhaps be no issue with the failure of
the provision to identify who is prohibited from
identifying the ballot as the ballot of the person casting
it, except that subsequent provisions, which the Court
seeks to harmonize with this provision, indicate that
the election officers are not prohibited from identifying
the ballot.
The Clerks argue, and the Court agrees, that the
provision the election officers shall be sworn or
affirmed not to inquire or disclose how any elector shall
have voted, presumes that, and thereby implicitly

App. 60a
[p.21]
approves of, the election officers in at least some
situations knowing how a person voted.
Otherwise, such disclosure would not need to be
prohibited and, indeed, the sworn and affirmed
requirement would be mere surplusage. EEOC v.
Continental Oil Company, 548 F.2d 884, the Tenth
Circuit, in 1977, said interpretation which would
render terms surplusage should be avoided.
Accordingly, the better interpretation is that the
proscription on identification is meant to apply to
public identification.
This analysis is supported by the recent Colorado
Court of Appeals decision in Marks v. Koch, 2011 West
Law 4487753, September 29, 2011, Colorado appellate
decision. In Marks, a Division of the Court of Appeals,
addressed the phrase secrecy in voting, as used in
Section 8. In its decision, the Division noted that, under
the Colorado Constitution:
The identity of an individual voter, and any
markings on the ballot that could identify that voter,
are to be kept secret. An individual voters identity is
to be protected from public disclosure, because this
clause -- referring to the sworn or affirmed clause -coincides with the election officials viewing of the
marked ballots.
The Court of Appeals actually held that the phrase
[p.22]
secrecy in voting, when read in conjunction with the
sections other clauses, protects from public disclosure

App. 61a
the identity of an individual voter and any content of
the voters ballot that could identify the voter.
After the Marks opinion came down, the Colorado
Supreme Court granted cert. Ordinarily, such an
occurrence would cause this Court to exercise Pullman
abstention, which is a doctrine borne out of comity and
federalism concerns and based on the principle that
unsettled questions of state law should be resolved by
the state court before a substantial federal question
can be decided.
But, after granting cert, the State Supreme Court
withdrew it as having been improvidently granted. As
such, Marks is now binding precedent on Colorado trial
courts. This Court agrees with the analysis and
conclusion in Marks and follows them here.
In further support of the Clerks position is the
reason why the Colorado Supreme Court withdrew its
cert in Marks. On June 7, 2012, Colorado House Bill
12-1036 was signed into law. The bill addresses how to
preserve secrecy in voting while also allowing the
inspection of ballots as public records under the
Colorado Open Records Act.
The new language is codified at Colorado Revised
[p.23]
Statutes 24-72-205.5. Among other things, the new
provision requires County Clerks to, one, review all
ballots to determine if they are individually
identifiable. And, two, withhold from public inspection,
or redact those ballots that may be identifiable.

App. 62a
Such language conveys to the Court recognition by
the Colorado General Assembly that the Colorado
Constitution does not prohibit ballots from being
individually identifiable but, rather, prohibits
individually identifiable ballots from being publicly
disclosed.
Moreover, the other cases plaintiff cites to support
its argument that the Colorado Constitution provides
for absolute anonymity in voting does not substantiate
the proposition. Both Mahaffey v. Barnhill, 855 P.2d
847, Colorado, 1993, and Taylor v. Pile, 391 P.2d 670,
Colorado, 1964, addressed the right not to be compelled
to publicly disclose how one voted. People ex rel. Barton
v. Londoner, 22 P. 764, Colorado, 1889, involved a
constitutional provision that required the numbering of
ballots.
Accordingly, the Colorado Constitution does not
create a legitimate entitlement to absolute anonymity
in voting. Thus, the desire for absolute anonymity in
voting does not rise to the level of a liberty interest
under
[p.24]
federal law.
Without a liberty interest to which due process
protections are applicable, the Court has no occasion to
consider the level of process offered by the plaintiff.
Couture v. Board of Education, 535 F.3d 1243, Tenth
Circuit, 2008.
As such, federal due process law does not recognize
an invasion of a legally protected interest in the Clerks
usage of traceable ballots. Thus, plaintiff has not met

App. 63a
its burden of establishing the jurisdictional
requirement of standing for this claim.
Plaintiffs fifth claim is brought under the Equal
Protection Clause, and is for the infringement of the
fundamental right to vote and rights to freedom of
speech and association.
As of the 1950s, and beginning with Brown v. Board
of Education, 347 U.S. 483, 1954, which held
unconstitutional public school segregation. The
Supreme Court has used the Equal Protection Clause
in both the area of fundamental rights, and also to
address laws that discriminate as to who can exercise
a given right.
It is well settled that a law may violate the Equal
Protection Clause if the law infringes upon a
fundamental right. However, if a right is fundamental,
the Supreme Court generally treats it as such for both
due process and
[p.25]
equal protection purposes.
As the great Erwin Chemerinsky has said,
relatively little depends on whether the Court uses
due process or equal protection as the basis for
protecting a fundamental right. That is from his
Constitutional Law, 793, Aspen, 2006 publication. The
reason is that under either doctrine, a fundamental
right, if it is found to exist, merits strict scrutiny
review.
Additionally, when a challenge under one doctrine
is successful, a challenge under the other one will likely

App. 64a
be, as well. See Carey v. Population Services
International, 431 U.S. 678, 681, 1997, which
invalidated a contraception ban on due process
grounds. Eisenstadt v. Baird, 405 U.S. 438, 1972,
invalidating contraception ban on equal protection
grounds.
Conversely, if one fails, generally so does the other.
A prime example of this eventuality is illustrated by
two cases cited by plaintiff: Washington v. Glucksberg,
G-L-U-C-K-S-B-E-R-G, 521 U.S. 702, 1997, and its
companion case and Vacco, V-A-C-C-O, v. Quill 521
U.S. 793, 1997.
In Glucksberg, the Supreme Court upheld a state
ban on physician-assisted suicide on due process
grounds. And in Quill the Court upheld the same ban
on equal protection grounds.
[p.26]
Plaintiffs first two claims, for the infringement of
the fundamental right to vote, claim one, and for rights
to freedom of speech and association, claim two,
respectively, mirror the fifth claim, except that the
former ones were brought as due process claims,
whereas this claim is brought under the Equal
Protection Clause.
Given the substantially similar treatment of
fundamental rights, as between these two theories, and
especially given plaintiffs heavy reliance on its first
two claims on cases applying the fundamental rights
strand of equal protection analysis, there is no reason
for the Court to walk through its analysis again.

App. 65a
For the reasons previously given, absolute
anonymity in voting is not a fundamental right under
the United States Constitution and, therefore, it is not
a legally protected interest, the invasion of which could
provide for plaintiffs standing under this claim.
Plaintiffs claims really fare no better under a
traditional equal protection analysis. As the Clerks
observe, the touchstone inquiry under a classic equal
protection analysis is whether similarly-situated
persons were treated differently. Bruner v. Baker, 506
F.3d, 1021, Tenth Circuit, 2007 case.
In this case, plaintiff does not identify any voter
that is treated differently than any other voter, because
[p.27]
all voters within a given county are, as the clerk put it,
exposed to a uniform set of choices regarding when to
vote, where to vote, what methodology they will use to
vote, and how votes will be tabulated.
Plaintiff responds that voters residing in altogether
different counties may still reside in a common district
with one another. And that a citizen has a
constitutionally protected right to participate in
elections on an equal basis with citizens in the
jurisdiction. Citing to Dunn v. Blumstein, 405 U.S.
330, 1972.
But if plaintiff means to equate district with
jurisdiction, it provides no authority for so asserting.
And nor is this Court aware of any case which equates
the two. Given that plaintiffs complaint is aimed at the
ballot designs put in place by County Clerks, the

App. 66a
county appears to be the relevant jurisdiction for
plaintiffs equal protection claim.
Further, the residency requirement that was at
issue in Dunn was established by state law. In the
instant case, plaintiff targets a procedure set up by
counties. Whereas in Dunn, voters within the state
were treated differently than each other based on
whether they had met the residency requirement. In
this case, voters within a county are treated the same
as far as the
[p.28]
traceability of their ballots go.
In any event, the underlying concern in the cases
plaintiff cites is that there be assurance that the
rudimentary requirements of equal protection and
fundamental fairness are satisfied. Bush v. Gore, 531
U.S. 98, 2000. Here, as previously stated, there is no
actual or imminent restriction on voter access by virtue
of a countys ballot being potentially traceable and,
thus, no invasion of a legally protected interest.
Based on this analysis, the Court finds that plaintiff
has failed to meet its burden of demonstrating it has
associational standing. Its members would not have
standing to sue in their own right because they cannot
satisfy Article IIIs injury-in-fact requirement. Put
simply, absolute anonymity in voting is not a legally
protected interest under the federal theories that
plaintiff has pursued.
As a result, the Court need not address the causal
connection and redressability requirements for
Article III standing, nor the other standing doctrines or

App. 67a
the Clerks arguments on the merits of the case,
including its assertion that plaintiff has failed to state
a claim for declaratory or injunctive relief.
Without plaintiff having established standing, this
Court lacks jurisdiction to proceed on plaintiffs federal
[p.29]
claims, and inquires no further into plaintiffs
likelihood of success on the merits of such claims or
whether the remaining preliminary injunction factors
are satisfied.
Accordingly, as to the Secretary of State, no claims
remain in light of plaintiffs concession that its
state-law claims against him are barred by the
Eleventh Amendment. Further, because the Courts
disposition of the standing issue means, essentially,
that there is no Article III case or controversy, the
Court cannot exercise supplemental jurisdiction, under
28 U.S.C. Section 1367(a), over plaintiffs remaining
state-law claims against the Clerks.
Now, as I indicated, analysis of plaintiffs
procedural due process claim did require this Court to
discuss the Colorado Constitution case law and the
recently passed House Bill. However, that analysis was
only for purposes of attempting to identify a
state-created liberty interest in absolute anonymity in
voting, and whether such an interest exists is a matter
of federal law, not state law.
Further, whether Colorado courts would offer
plaintiff greater due process or equal protection under
the Colorado Constitution than is available to it under

App. 68a
the Federal Constitution is a question that, for reasons
I
[p.30]
have already stated, this Court cannot answer.
The Court notes that, despite the often co-extensive
coverage of the United States and Colorado
Constitutions, Colorados Due Process and Equal
Protection Clauses have been interpreted more broadly
than their federal analogs on other occasions. And that
will be a matter, if plaintiff wishes to take this up in
state court.
For these reasons, it is ordered that Plaintiffs
Motion for a Temporary Retraining Order and
Preliminary Injunction against Defendants Reno,
Simonton, Hall and Gessler are denied as moot,
because this Court has no jurisdiction.
The Secretarys Rule 12(b)(1) Motion to Dismiss is
granted.
The County Clerks Joint Motion to Dismiss is
granted in part, to the extent that it seeks dismissal
under Rule 12(b)(1), and otherwise denied as moot.
Any other matters that are currently pending are
denied as moot.
Plaintiffs request for leave to amended is denied.
Although each party shall bear their own attorney
fees, defendant shall have their costs by the filing of a
Bill of Costs with the Clerk of the Court within 10 days
after entry of Judgment. And this case is dismissed.

App. 69a
[p.31]
Is there anything further?
MR. MCGUIRE: Nothing from us, Your Honor.
MR. HUGHES: No, Your Honor.
THE COURT: All right. Court will be in recess.
(Court is in recess at 10:05 a.m.)
REPORTERSCERTIFICATE
I, Darlene M. Martinez, Official Certified shorthand
Reporter for the United States District Court, District
of Colorado, do hereby certify that the foregoing is a
true and accurate transcript of the proceedings had as
taken stenographically by me at the time and place
aforementioned.
Dated this 6th day of October, 2012.
_____________________________
s/Darlene M. Martinez
RMR, CRR

App. 70a

APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00370-CMA-MJW
[Filed September 21, 2012]
___________________________________
CITIZEN CENTER,
)
Plaintiff,
)
)
v.
)
)
SCOTT GESSLER, in his official
)
capacity as Colorado Secretary of
)
State, SHEILA REINER, in her
)
official capacity as Mesa County
)
Clerk & Recorder, SCOTT DOYLE,
)
in his official capacity as Larimer
)
County Clerk & Recorder, PAM
)
ANDERSON, in her official
)
capacity as Jefferson County Clerk
)
& Recorder, HILLARY HALL, in
)
her official capacity as Boulder
)
County Clerk & Recorder, JOYCE
)
RENO, in her official capacity as
)
Chaffee County Clerk & Recorder,
)
TEAK SIMONTON, in her
)
official capacity as Eagle County
)
Clerk & Recorder,
)
Defendants.
)
___________________________________ )

App. 71a
MINUTE ENTRY
[Docket No. 117]
MINUTE ENTRY for proceedings held before Judge
Christine M. Arguello: Motion Hearing held on
9/21/2012. MOTIONS: Denying as moot 100 Plaintiff's
Motion for Temporary Restraining Order and
Preliminary Injunction against Defendants Reno,
Simonton, Hall and Gessler; granting in part and
denying in part as moot 44 County Clerks Joint Motion
to Dismiss First Amended Complaint. Any other
matters that are currently pending are denied as moot.
Plaintiffs request for leave to amend the complaint is
denied. Each party shall bear its own attorney fees.
Defendants are awarded their costs and shall file a bill
of costs within ten days after the entry of judgment.
Case is dismissed. (Total time: 1:33, Hearing time:
8:32-10:05)
APPEARANCES: Robert McGuire, Jeffrey Baines on
behalf of the plaintiff, Writer Mott on behalf of Pam
Anderson, David Hughes on behalf of Hillary Hall, Lee
Ann Morrill, Melody Mirbaba, Hilary Rudy on behalf of
the defendant. ALSO PRESENT: Marilyn Marks,
Hillary Hall. Court Reporter: Darlene Martinez.
(cmacd) Text Only (Entered: 09/24/2012)

App. 72a

APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 12-1414
[Filed November 17, 2014]
___________________________________
CITIZEN CENTER, a Colorado
)
nonprofit corporation,
)
Plaintiff-Appellant,
)
)
v.
)
)
SCOTT GESSLER, in his official
)
capacity as Colorado Secretary of
)
State, et al.,
)
Defendants-Appellees.
)
___________________________________ )
ORDER
Before HOLMES, McKAY, and BACHARACH,
Circuit Judges.
Appellants petition for rehearing is denied.
The petition for rehearing en banc was transmitted
to all of the judges of the court who are in regular
active service. As no member of the panel and no judge
in regular active service on the court requested that the
court be polled, that petition is also denied.

App. 73a
Entered for the Court
/s/_____________________________________
ELISABETH A. SHUMAKER, Clerk

App. 74a

APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-00370-CMA-MJW
[Filed November 27, 2012]
___________________________________
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 & Recorder, SCOTT DOYLE,
)
in his official capacity as Larimer
)
County Clerk & Recorder, PAM
)
ANDERSON, in her official
)
capacity as Jefferson County Clerk
)
& Recorder, HILLARY HALL, in
)
her official capacity as Boulder
)
County Clerk & Recorder, JOYCE
)
RENO, in her official capacity as
)
Chaffee County Clerk & Recorder,
)
TEAK SIMONTON, in her
)
official capacity as Eagle County
)

App. 75a
Clerk & Recorder,
)
Defendants.
)
___________________________________ )
ORDER GRANTING
PLAINTIFFS MOTION TO CLARIFY
This matter is before the Court on Plaintiffs Motion
for Clarification of Final Judgment. (Doc. # 141.)
Essentially, Plaintiff seeks assurance from this Court
that the Final Judgment (Doc. # 118) entered in this
case is, in fact, a final judgment subject to the
appellate jurisdiction of the United States Court of
Appeals for the Tenth Circuit. (Doc. # 141 at 4.)
Plaintiffs concern stems from the absence of an explicit
mention of its First Supplemental Complaint for
Declaratory and Injunctive Relief (Doc. # 88) in: this
Courts September 21, 2012 oral ruling (see Doc. # 125
at 30); the minute entry that followed the Courts
ruling (Doc. # 117); or the Final Judgment entered on
September 25, 2012 (Doc. # 118). As Plaintiff notes,
however, all three docket entries state that the case
was dismissed in its entirety. Moreover, and to quell
Plaintiffs lingering concern, the Court notes that its
ruling and, thus, the subsequent docket entries
encompass Plaintiffs First Supplemental Complaint,
which the Court considered, along with all of the other
filings in this case, before issuing its ruling.
Accordingly, Plaintiffs Motion for Clarification of
Final Judgment (Doc. # 141) is GRANTED, and the
Final Judgment is hereby CLARIFIED so that the
parties, and the Tenth Circuit Court of Appeals, are
aware that this case truly has been DISMISSED IN
ITS ENTIRETY.

App. 76a
DATED: November 27 , 2012
BY THE COURT:
/s/___________________________
CHRISTINE M. ARGUELLO
United States District Judge

App. 77a

APPENDIX G
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.:
[Filed July 27, 2012]
_________________________________________
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 & Recorder, SCOTT
)
DOYLE, in his official capacity as
)
Larimer County Clerk & Recorder, PAM
)
ANDERSON, in her official capacity as
)
Jefferson County Clerk & Recorder,
)
HILLARY HALL, in her official capacity
)
as Boulder County Clerk & Recorder,
)
JOYCE RENO, in her official capacity
)
as Chaffee County Clerk & Recorder,
)
TEAK SIMONTON, in her official capacity )
as Eagle County Clerk & Recorder,
)
)
Defendants.
)
_________________________________________ )

App. 78a

FIRST SUPPLEMENTAL COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF
Citizen Center complains and alleges as follows:
PRELIMINARY STATEMENT
1.
Paragraphs 1 through 4 of the First Amended
Complaint for Declaratory and Injunctive Relief, [Dkt.
#37], (the FAC), with paragraph numbers, are
adopted here pursuant to Fed. R. Civ. P. 10(b) and
10(c).
PARTIES
5.
Paragraphs 5 through 16 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
JURISDICTION
17.
Paragraphs 17 through 22 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
VENUE
23.
Paragraph 23 of the FAC, with its paragraph
number, is adopted here pursuant to Fed. R. Civ. P.
10(b) and 10(c).

App. 79a
GENERAL ALLEGATIONS
Defendants Conduct
Mesa County
24.
Paragraphs 24 through 34 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
Larimer County
35.
Paragraphs 35 through 45 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
Jefferson County
46.
Paragraphs 46 through 55 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
55.1 During March 2012, Defendant Anderson
conceded in court testimony that she published cast
vote records on a publicly accessible Internet site from
the November 2010 election that revealed the electoral
choices of more than thirty individually identifiable
Jefferson County voters who had voted using DRE
voting machines.
55.2 On November 5, 2011, the Denver Post
carried an editorial authored by Defendant Anderson
in which she stated, in her capacity as Vice President
of the Colorado County Clerks Association and
Jefferson County Clerk and Recorder, that, it is
disturbingly uncomplicated to identify votes and we
are required to track your ballot.

App. 80a
Boulder County
56.
Paragraphs 56 through 60 and 62 through 67
of the FAC, with paragraph numbers, are adopted here
pursuant to Fed. R. Civ. P. 10(b) and 10(c).
Chaffee County
68.
Paragraphs 68 through 74 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
Eagle County
75.
Paragraphs 75 through 81 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
81.1 During the June 2012 primary election,
Defendant Simonton or her staff and/or election judges
acting under her direction scanned voted paper ballots
without first removing ballot stubs that contain unique
printed identifiers assigned to individual voters,
thereby creating a digital image of identifiable voted
ballots.
Secretary of State
82.
Paragraphs 82 through 93 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
93.1 Most of the people described in Paragraph 93
are not election officers within the meaning of that
term as used in Article VII, Section 8, of the Colorado
Constitution.
93.2 On or about June 7, 2012, Governor John
Hickenlooper signed into law House Bill 12-1036,

App. 81a
which allows candidates, petition representatives,
governing bodies that refer ballot questions and agents
of certain issue committees, as unsworn interested
parties to a recount, to inspect and without restriction
receive and retain copies of voted ballots. See 24-72205.5, C.R.S. (2012).
93.3 On or about June 22, 2012, Defendant
Gessler issued to County Clerk and Recorders certain
guidelines entitled, Handling Ballot Batches and
Reporting Election Results. This guidance authorizes
the improper practice by County Clerk and Recorders,
over an extended period of time during the conduct of
an election, of associating batch reports, which contain
information about voter identity, with matching
batches of voted ballots. The association of voters to
ballots using a batch number assigned by the statewide
voter registration database allows election staff,
election judges, workers, canvass board members,
interested parties in a recount and others, many of
whom operate under no oath of confidentiality,
throughout the entire period during which the
association is maintained, to trace at least some voted
ballots to individual voters who are identifiable from
the associated batch reports.
Injuries to Members of Citizen Center
94.
Paragraphs 94 through 102 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
Infringement of the Fundamental Right to Vote
103. Paragraph 103 of the FAC, with its
paragraph number, is adopted here pursuant to Fed. R.
Civ. P. 10(b) and 10(c).

App. 82a
103.1 The United States Code contains pervasive
references to secrecy of the ballot in the context of
voting. See, e.g. 29 U.S.C. 402(k) (defining secret
ballot in context of labor law); 22 USC 8203(6)(B)
(describing voting by secret ballot as a characteristic
of a foreign democracy in the context of foreign
relations); 25 U.S.C. 715G (requiring vote of Indian
tribe to be conducted by secret ballot for purpose of
adopting tribal constitution); 7 U.S.C. 1336 (requiring
referendum of farmers voting by secret ballot to
approve marketing quotas proposed under the
Agricultural Adjustment Act of 1938); 42 U.S.C.
15382(a)(2)(B) (requiring Secretary of Defense under
the Help America Vote Act of 2002 to study ways to
facilitate voting by overseas service members while
maintaining the right of such voters to cast a secret
ballot).
103.2 The United States Code, together with
publications of federal agencies involved with voting
issues, suggests that secrecy of the ballot entails
secrecy from government vote counters, not just secrecy
from fellow members of the public. See, e.g., 42 USC
1973ff-2(a)(1) (requiring provision of secrecy
envelopes to service members for returning their
ballots); FEDERAL VOTING ASSISTANCE PROGRAM, 201213 VOTING ASSISTANCE GUIDE 12 (cautioning overseas
citizens and service members transmitting their voted
ballot by fax or email to their City/County Board of
Elections that they are waiving their right to a secret
ballot by doing so).
103.3 The United States Supreme Court has held
that securing the states compelling interest in
protecting the right to vote requires preservation of

App. 83a
secrecy of the ballot. Burson v. Freeman, 504 U.S.
191, 207-08 (1992) (Contrary to the dissents
contention, the link between ballot secrecy and some
restricted zone surrounding the voting area is not
merely timingit is common sense. The only way to
preserve the secrecy of the ballot is to limit access to
the area around the voter.).
104. Paragraphs 104 through 110 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
Infringement
of
Amendment Rights

Fundamental

First

111. Paragraphs 111 through 121 of the FAC, with

paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
Infringement of the Colorado Constitutions
Right to Secrecy in Voting
122. Paragraph 122 of the FAC, with its
paragraph number, is adopted here pursuant to Fed. R.
Civ. P. 10(b) and 10(c).
122.1 Colorado election laws and regulations show
that secrecy of the ballot under the Colorado
Constitution, like federal law, is directed at
government vote counters as well as at fellow members
of the public. See, e.g., 1-13-712(3), C.R.S. (2011)
(criminalizing election officials revelation of a persons
vote to any other person including other election
officials); 8 CCR 1505-1 (Election Rules 12.4.1(a)(19)
and 12.4.2(a)(15)) (requiring use of secrecy sleeve or
secrecy envelope in mail ballot elections so receiving
judges cannot tell how the elector voted); 8 CCR 1505-

App. 84a
1 (Election Rules 11.6.2.1 to .4) (requiring measures to
assure anonymity of voters voting on DRE machines).
123. Paragraphs 123 through 124 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
FIRST CLAIM FOR RELIEF
Denial of Substantive Due Process
Fourteenth Amendment
Infringement of Fundamental Right to
Vote; 42 U.S.C. 1983
(against all Defendants)
125. Plaintiff realleges paragraphs 1 through 124
as if the same were fully stated here.
126. Paragraphs 126 through 131 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
SECOND CLAIM FOR RELIEF
Denial of Substantive Due Process
Fourteenth Amendment
Infringement of First Amendment Rights to
Freedom of Speech and Association;
42 U.S.C. 1983
(against all Defendants)
132. Plaintiff realleges paragraphs 1 through 131
as if the same were fully stated here.
133. Paragraphs 133 through 137 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).

App. 85a
THIRD CLAIM FOR RELIEF
Denial of Substantive Due Process
Fourteenth Amendment
Infringement of Fundamental Right to
Secret Ballot; 42 U.S.C. 1983
(against all Defendants)
138. Plaintiff realleges paragraphs 1 through 137
as if the same were fully stated here.
139. Paragraphs 139 through 144 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
FOURTH CLAIM FOR RELIEF
Denial of Procedural Due Process
Fourteenth Amendment
Infringement of State-Created Liberty Interest
in Voting by Secret Ballot;
42 U.S.C. 1983
(against all Defendants)
145. Plaintiff realleges paragraphs 1 through 144
as if the same were fully stated here.
146. Paragraphs 146 through 152 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).

App. 86a
FIFTH CLAIM FOR RELIEF
Denial of Equal Protection
Fourteenth Amendment
Infringement of Fundamental Right to Vote
and Rights to Freedom of Speech and
Association; 42 U.S.C. 1983
(against all Defendants)
153. Plaintiff realleges paragraphs 1 through 152
as if the same were fully stated here.
154. Paragraphs 154 through 161 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
SIXTH CLAIM FOR RELIEF
Violation of State Secrecy in Voting
Colo. Const. art VII, 8
(against all Defendants)
162. Plaintiff realleges paragraphs 1 through 161
as if the same were fully stated here.
163. Paragraphs 163 through 165 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
SEVENTH CLAIM FOR RELIEF
Violation of State Due Process and State Equal
Protection
Colo. Const. art II, 25
(against all Defendants)
166. Plaintiff realleges paragraphs 1 through 165
as if the same were fully stated here.

App. 87a
167. Paragraphs 167 through 170 of the FAC, with
paragraph numbers, are adopted here pursuant to Fed.
R. Civ. P. 10(b) and 10(c).
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that
the Court:
a. Enter judgment declaring unconstitutional the
foregoing described systems, practices, policies and
procedures of Defendant clerk and recorders that
permit voted ballots to be individually identifiable as
the ballots of the persons casting them;
b. Enter preliminary and permanent injunctions
against the Defendant county clerk and recorders
prohibiting their prospective application of the
foregoing described systems, practices, policies and
procedures that permit voted ballots to be individually
identifiable as the ballots of the persons casting them;
c. Enter preliminary and permanent injunctions
against the Defendant Secretary of State prohibiting
his prospective approval of the foregoing described
systems, practices, policies and procedures that permit
voted ballots to be individually identifiable as the
ballots of the persons casting them;
d. Grant Plaintiff an award of its reasonable
attorneys fees, costs, and expenses incurred in this
action pursuant to 42 U.S.C. 1988; and
e. Grant Plaintiff such other relief as the Court
deems just and proper.

App. 88a
Dated: July 10th, 2012
Respectfully submitted,
ROBERT A. MCGUIRE, ATTORNEY AT LAW, LLC
By:

s/ Robert A. McGuire
Robert A. McGuire
1624 Market Street, Suite 202
Denver, Colorado 80202
Telephone: (303) 734-7175
Fax: (303) 734-7166
Email: ram@lawram.com
Attorney for Plaintiff
***

[Certificate of Service Omitted in the

Printing of this Appendix.]

App. 89a

APPENDIX H
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.:
[Filed May 10, 2012]
_________________________________________
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 & Recorder, SCOTT
)
DOYLE, in his official capacity as
)
Larimer County Clerk & Recorder, PAM
)
ANDERSON, in her official capacity as
)
Jefferson County Clerk & Recorder,
)
HILLARY HALL, in her official capacity
)
as Boulder County Clerk & Recorder,
)
JOYCE RENO, in her official capacity
)
as Chaffee County Clerk & Recorder,
)
TEAK SIMONTON, in her official capacity )
as Eagle County Clerk & Recorder,
)
)
Defendants.
)
_________________________________________ )

App. 90a

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF
Citizen Center complains and alleges as follows:
PRELIMINARY STATEMENT
1.
This is a civil rights action for declaratory
and injunctive relief brought against seven Colorado
elections officials who have unconstitutionally
arrogated to the government the authority to create,
compile and maintain after an election information
that permits voted ballots to be traced to the individual
voters who cast those ballots, thereby depriving
Colorado citizens on both a random and a systematic
basis of constitutional rights exercised through the
secret ballot.
2.
The right to vote freely for the candidate of
ones choice is of the essence of a democratic society,
and any restrictions on that right strike at the heart of
representative government. Reynolds v. Sims, 377
U.S. 533, 555 (1964). The secret ballot the hard-won
right to vote ones conscience without fear of
retaliation is a cornerstone of this right to freely vote
for ones electoral choices. Am. Constitutional Law
Found., Inc. v. Meyer, 120 F.3d 1092, 1102 (10th Cir.
1997) (quoting McIntyre v. Ohio Elections Commn, 514
U.S. 334, 343 (1995)), affd sub nom. Buckley v. Am.
Constitutional Law Found., Inc., 525 U.S. 182 (1999).
3.
Because the very purpose of the secret ballot
is to protect the individuals right to cast a vote without
explaining to anyone for whom, or for what reason, the

App. 91a
vote is cast, Rogers v. Lodge, 458 U.S. 613, 647 n.30
(1982), any violation of secrecy in voting is necessarily
destructive of the secret ballots object and burdens
those constitutional rights that are furthered by
secrecy in voting and that are exercised during the act
of voting by means of a secret ballot.
4.
The secret ballot exists to guarantee that no
one including especially the government is ever in
a position to know how a particular person voted.
When, as here, secrecy in voting has been and will be
arbitrarily violated by policies and procedures
deliberately adopted and implemented by government
officials, not only is the citizens fundamental right to
vote itself substantially and unconstitutionally
infringed, but so too are the citizens First and
Fourteenth Amendment rights to freedom of speech, to
freedom of association, to equal protection of the laws
and to substantive and procedural due process.
PARTIES
5.
Plaintiff the Citizen Center is a non-profit
membership organization with standing to vindicate
the interests of its members whose rights, status or
other legal relations are affected by the Defendants
actions. Among its organizational purposes, Citizen
Center works to protect the constitutional rights of its
members and of all American citizens, including the
fundamental right to vote, the fundamental right to
freedom of speech, the fundamental right to freedom of
association and those substantial liberty interests
created by state law that warrant federal constitutional
protection, such as the right to secrecy in voting under
the Colorado Constitution.

App. 92a
6.
Citizen Center is an organization composed
of members who would have standing to sue in their
individual right for the allegations set forth in this
Complaint.
7.
The interests that the Citizen Center seeks to
protect in this action are germane to the organizations
purposes.
8.
Neither the claims asserted nor the relief
requested by Citizen Center in this action requires
participation by each of the individual members of
Citizen Center.
9.
Defendant Scott Gessler is the elected
Secretary of State of the State of Colorado. The
Secretary is the public officer responsible for
supervising the conduct of primary, general,
congressional vacancy and statewide ballot issue
elections in the State of Colorado. The Secretary is
responsible for enforcing the election laws and for
promulgating rules necessary for the proper
administration and enforcement of those laws. The
Secretary is responsible for inspecting and reviewing
the practices and procedures of county clerk and
recorders. At all times material to this Complaint, the
Secretary has acted or will act under color of state law.
The Secretary is sued in his official capacity.
10.
Defendant Sheila Reiner is the elected Clerk
& Recorder of Mesa County, Colorado. Reiner is the
public officer responsible for the conduct of elections in
Mesa County. At all times material to this Complaint,
Reiner has acted or will act under color of state law.
Reiner is sued in her official capacity.

App. 93a
11.
Defendant Scott Doyle is the elected Clerk &
Recorder of Larimer County, Colorado. Doyle is the
public officer responsible for the conduct of elections in
Larimer County. At all times material to this
Complaint, Doyle has acted or will act under color of
state law. Doyle is sued in his official capacity.
12.
Defendant Pam Anderson is the elected Clerk
& Recorder of Jefferson County, Colorado. Anderson is
the public officer responsible for the conduct of
elections in Jefferson County. At all times material to
this Complaint, Anderson has acted or will act under
color of state law. Anderson is sued in her official
capacity.
13.
Defendant Hillary Hall is the elected Clerk &
Recorder of Boulder County, Colorado. Hall is the
public officer responsible for the conduct of elections in
Boulder County. At all times material to this
Complaint, Hall has acted or will act under color of
state law. Hall is sued in her official capacity.
14.
Defendant Joyce Reno is the elected Clerk &
Recorder of Chaffee County, Colorado. Reno is the
public officer responsible for the conduct of elections in
Chaffee County. At all times material to this
Complaint, Reno has acted or will act under color of
state law. Reno is sued in her official capacity.
15.
Defendant Teak Simonton is the elected
Clerk & Recorder of Eagle County, Colorado. Simonton
is the public officer responsible for the conduct of
elections in Eagle County. At all times material to this
Complaint, Simonton has acted or will act under color
of state law. Simonton is sued in her official capacity.

App. 94a
16.
Plaintiff seeks only prospective declaratory
and injunctive relief against each of the Defendants in
this action.
JURISDICTION
17.
This civil rights lawsuit arises under 42
U.S.C.
1983 and the First and Fourteenth
Amendments to the United States Constitution.
18.
This Court has original subject-matter
jurisdiction over Plaintiffs federal claims pursuant to
U.S. Const. art. III, 2, cl. 1; 28 U.S.C. 1331,
1343(a)(3)-(4) and 1357; and 42 U.S.C. 1983.
19.
This case also arises under Article II, 25
and Article VII, 8 of the Colorado Constitution.
20.
This Court has supplemental jurisdiction over
Plaintiffs state constitutional claims pursuant to 28
U.S.C. 1367(a).
21.
This Court may grant Plaintiffs requested
declaratory relief pursuant to 28 U.S.C. 2201 and
Fed. R. Civ. P. 57.
22.
This Court may grant Plaintiffs requested
injunctive relief on a preliminary basis pursuant to
Fed. R. Civ. P. 65.
VENUE
23.
Venue lies in this Court pursuant to 28
U.S.C. 1391(b) because Defendants perform their
official duties in the District of Colorado and the facts
that form the basis for this complaint are all based in
this district.

App. 95a
GENERAL ALLEGATIONS
Defendants Conduct
Mesa County
24.
Defendant Reiner uses systems, practices,
policies and procedures for the conduct of elections in
Mesa County that allow voted ballots in her custody
and control to be traced to individual voters in Mesa
County.
25.
Reiner processes and stores mail-in paper
ballots in organized, numbered and discrete batches of
approximately fifty or fewer ballots.
26.
Each batch of ballots is associated with a
batch sheet (or batch log or audit log) that is
created by querying the Statewide Colorado
Registration and Election (SCORE) database of
registered electors using information contained on the
voter-signed mail ballot return envelopes for each
ballot included in the batch.
27.
The resulting completed and printed batch
sheet, which is stored with and attached to the related
ballots, lists the names, voter identification numbers,
precinct number/ballot styles and other information for
the voters whose ballots are included in the batch.
28.
Comparison of information contained on the
batch sheet (or maintained in the SCORE database)
against the associated ballots enables those ballots
within that batch that have a unique precinct
number/ballot style to be identified with certainty as
the ballot cast by a particular, known voter.

App. 96a
29.
In addition, it is Reiners practice to ensure
that the voted ballots within each batch, the list of
names on the associated batch sheet and the empty
returned mail ballot envelopes, which are separately
batched, are all maintained in the same order as the
ballots were counted and thus correspond to one
another.
30.
On information and belief, Reiners practice
of maintaining ballots in an order that corresponds to
the order of voter names on an associated batch sheet
permits every voted ballot within a batch of mail
ballots to be identified as the ballot cast by a
particular, identifiable voter.
31.
On or before November 22, 2011, Reiner
actually used her batching practices to search out and
identify the location, within batches of voted ballots in
her custody and control, of particular ballots that had
been cast by named individual voters in Mesa County
at a previous election.
32.
On or before November 22, 2011, Reiner or
her staff authored a PowerPoint presentation that
publicized her ability to locate the individual ballots
voted and cast in a recent election by several
identifiable Mesa County voters, including Mesa
County Commissioner Craig Meis, Mesa County
Commissioner Janet Rowland, Mesa County
Commissioner Steve Acquafresca, State Senator Steve
King, State Representative Laura Bradford and State
Representative Ray Scott.
33.
Defendant Reiner also records, for all
electronic ballots cast by voters on direct recording
electronic (DRE) voting machines, information that

App. 97a
includes the date of voting, the DRE machines unique
identifier and the precinct number/ballot style used by
the voter.
34.
Comparison of this information against
publicly available individual voter participation
information for each voter maintained by Defendants
Gessler and Reiner in the SCORE database enables
any electronic ballots cast on a DRE machine that have
a unique precinct number/ballot style out of all
electronic ballots cast on that DRE machine to be
identified with certainty as the electronic ballot cast by
a particular, known voter.
Larimer County
35.
Defendant Doyle uses systems, practices,
policies and procedures for the conduct of elections in
Larimer County that allow voted ballots in his custody
and control to be traced to individual voters in Larimer
County.
36.
Doyle processes and stores mail-in paper
ballots in organized, numbered and discrete batches of
approximately fifty or fewer ballots.
37.
Each batch of ballots is associated by Doyle
with a batch sheet (or batch log or audit log) that
is created by querying the SCORE database of
registered electors using information contained on the
voter-signed mail ballot return envelopes for each
ballot included in the batch.
38.
The resulting completed batch log, lists the
names, voter identification numbers, precinct
number/ballot styles and other information for the

App. 98a
voters whose ballots are included in the discrete
numbered batch.
39.
Comparison of information contained on the
batch log (or maintained in the SCORE database)
against the associated ballots enables those ballots
within that batch that have a unique precinct
number/ballot style to be identified with certainty as
the ballot cast by a particular, known voter.
40.
In addition, it is Doyles practice to ensure
that the voted ballots within each batch, the list of
names on the associated batch log and the empty
returned mail ballot envelopes, which are separately
batched, are all maintained in the same order as the
ballots were counted and thus correspond to one
another.
41.
On information and belief, Doyles practice of
maintaining ballots in an order that corresponds to the
order of voter names on an associated batch sheet
permits every voted ballot within a batch of mail
ballots to be identified as the ballot cast by a
particular, identifiable voter.
42.
On or before January 5, 2012, Doyle actually
used his batching practices to search out and identify
the location, within batches of voted ballots in her
custody and control, of particular ballots that had been
cast by named individual voters in Larimer County at
a previous election.
43.
On or before January 5, 2012, Doyle or his
staff authored a PowerPoint presentation that that
publicized his ability to locate the individual ballots
voted and cast in a recent election by several
identifiable Larimer County voters, including State

App. 99a
Senator Bob Bacon, State Senator Kevin Lundberg,
State Representative B.J. Nikkel, State Representative
Brian DelGrosso, State Representative John Kefalas
and State Representative Randy Fischer.
44.
Defendant Doyle records, for all electronic
ballots cast by voters on DRE voting machines,
information that includes the date of voting, the DRE
machines unique identifier and the precinct
number/ballot style used by the voter.
45.
Comparison of this information against
publicly available individual voter participation
information for each voter maintained by Defendants
Gessler and Doyle in the SCORE database enables any
electronic ballots cast on a DRE machine that have a
unique precinct number/ballot style out of all electronic
ballots cast on that DRE machine to be identified with
certainty as the electronic ballot cast by a particular,
personally identifiable voter.
Jefferson County
46.
Defendant Anderson uses systems, practices,
policies and procedures for the conduct of elections in
Jefferson County that allow voted ballots in her
custody and control to be traced to individual voters in
Jefferson County.
47.
Anderson uses systems, practices, policies
and procedures for the conduct of elections in Jefferson
County that allow voted ballots in her custody and
control to be traced to individual voters in Jefferson
County.
48.
Anderson processes and stores mail-in paper
ballots in discrete batches.

App. 100a
49.
Each batch of ballots is associated by
Anderson with a batch report that is created by
querying the SCORE database of registered electors
using information contained on the voter-signed mail
ballot return envelopes for each ballot included in the
batch.
50.
The resulting batch reports contain the
names, voter identification numbers, precinct
number/ballot styles and other information for the
voters whose ballots are included in the batch.
51.
Comparison of information contained on the
batch report (or maintained in the SCORE database)
against the associated ballots enables those ballots
within that batch that have a unique precinct
number/ballot style to be identified with certainty as
the ballot cast by a particular, known voter.
52.
On or before October 16, 2011, Anderson
actually used her batching practices to search out and
identify the location, within batches of voted ballots in
her custody and control, of her own personal ballot that
had been cast in Jefferson County at a previous
election.
53.
Anderson records, for all electronic ballots
cast by voters on DRE voting machines, information
that includes the date of voting, the DRE machines
unique identifier and the precinct number/ballot style
used by the voter.
54.
Comparison of this information against
publicly available individual voter participation
information for each voter maintained by Defendants
Gessler and Anderson in the SCORE database enables
any electronic ballots cast on a DRE machine that have

App. 101a
a unique precinct number/ballot style out of all
electronic ballots cast on that DRE machine to be
identified with certainty as the electronic ballot cast by
a particular, personally identifiable voter.
55.
After the 2010 general election, Defendant
Anderson actually revealed the personal electoral
choices of at least thirty identifiable individual voters
who cast votes by direct recording (DRE) electronic
voting machine by exposing their choices on Jefferson
Countys public election reporting website for nearly a
year and a half.
Boulder County
56.
Defendant Hall uses systems, practices,
policies and procedures for the conduct of elections in
Boulder County that allow voted ballots in her custody
and control to be traced to individual voters in Boulder
County.
57.
Hall uses the Hart voting system, which
prints a unique distinguishing bar code and unique set
of numerals on each paper ballot.
58.
Any person who comes into knowledge of the
unique identifier printed by Hall on a ballot provided
to a particular voter, including the voter himself, can
later identify the paper ballot bearing that unique
identifier with certainty as the ballot of that particular
voter.
59.
Halls election procedures permit elections
administration staff, polling place workers and mailing
services vendors, among others, occasion to observe the
unique identifiers printed on ballots and opportunity to

App. 102a
associate those unique identifiers with the identities of
voters who are the recipients of those ballots.
60.
Simple examination of the unique identifiers
on voted ballots of voters in Boulder County after an
election then enables ballots cast by particular, known
voters to be located and identified with certainty.
61.
Hall uses systems, practices, policies and
procedures for the conduct of elections in Boulder
County that allow voted ballots in her custody and
control to be traced to individual voters in Boulder
County.
62.
Hall processes and stores mail-in paper
ballots in discrete batches.
63.
Each batch of ballots is associated by Hall
with a batch report that is created by querying the
SCORE database of registered electors using
information contained on the voter-signed mail ballot
return envelopes for each ballot included in the batch.
64.
The resulting batch reports contain the
names, voter identification numbers, precinct
number/ballot styles and other information for the
voters whose ballots are included in the batch.
65.
Comparison of information contained on the
batch report (or maintained in the SCORE database)
against the associated ballots enables those ballots
within that batch that have a unique precinct
number/ballot style to be identified with certainty as
the ballot cast by a particular, known voter.
66.
Hall records, for all electronic ballots cast by
voters on DRE voting machines, information that

App. 103a
includes the date of voting, the DRE machines unique
identifier and the precinct number/ballot style used by
the voter.
67.
Comparison of this information against
publicly available individual voter participation
information for each voter maintained by Defendants
Gessler and Hall in the SCORE database enables any
electronic ballots cast on a DRE machine that have a
unique precinct number/ballot style out of all electronic
ballots cast on that DRE machine to be identified with
certainty as the electronic ballot cast by a particular,
personally identifiable voter.
Chaffee County
68.
Defendant Reno uses systems, practices,
policies and procedures for the conduct of elections in
Chaffee County that allow voted ballots in her custody
and control to be traced to individual voters in Chaffee
County.
69.
Reno uses the Hart voting system, which
prints a unique distinguishing bar code and unique set
of numerals on each paper ballot.
70.
Any person who comes into knowledge of the
unique identifier printed by Reno on a ballot provided
to a particular voter, including the voter himself, can
later identify the paper ballot bearing that unique
identifier with certainty as the ballot of that particular
voter.
71.
Renos election procedures permit elections
administration staff, polling place workers and mailing
services vendors, among others, occasion to observe the
unique identifiers printed on ballots and opportunity to

App. 104a
associate those unique identifiers with the identities of
voters who are the recipients of those ballots.
72.
Simple examination of the unique identifiers
on voted ballots of voters in Chaffee County after an
election then enables ballots cast by particular, known
voters to be located and identified with certainty.
73.
Reno records, for all electronic ballots cast by
voters on DRE voting machines, information that
includes the date of voting, the DRE machines unique
identifier and the precinct number/ballot style used by
the voter.
74.
Comparison of this information against
publicly available individual voter participation
information for each voter maintained by Defendants
Gessler and Reno in the SCORE database enables any
electronic ballots cast on a DRE machine that have a
unique precinct number/ballot style out of all electronic
ballots cast on that DRE machine to be identified with
certainty as the electronic ballot cast by a particular,
personally identifiable voter.
Eagle County
75.
Defendant Simonton uses systems, practices,
policies and procedures for the conduct of elections in
Eagle County that allow voted ballots in her custody
and control to be traced to individual voters in Eagle
County.
76.
Simonton uses the Hart voting system, which
prints a unique distinguishing bar code and unique set
of numerals on each paper ballot.

App. 105a
77.
Any person who comes into knowledge of the
unique identifier printed by Simonton on a ballot
provided to a particular voter, including the voter
himself, can later identify the paper ballot bearing that
unique identifier with certainty as the ballot of that
particular voter.
78.
Simontons election procedures permit
elections administration staff, polling place workers
and mailing services vendors, among others, occasion
to observe the unique identifiers printed on ballots and
opportunity to associate those unique identifiers with
the identities of voters who are the recipients of those
ballots.
79.
Simple examination of the unique identifiers
on voted ballots of voters in Eagle County after an
election then enables ballots cast by particular, known
voters to be located and identified with certainty.
80.
Simonton records, for all electronic ballots
cast by voters on DRE voting machines, information
that includes the date of voting, the DRE machines
unique identifier and the precinct number/ballot style
used by the voter.
81.
Comparison of this information against
publicly available individual voter participation
information for each voter maintained by Defendants
Gessler and Simonton in the SCORE database enables
any electronic ballots cast on a DRE machine that have
a unique precinct number/ballot style out of all
electronic ballots cast on that DRE machine to be
identified with certainty as the electronic ballot cast by
a particular, personally identifiable voter.

App. 106a
Secretary of State
82.
All Colorado county clerk and recorders,
including Defendant county clerk and recorders, are
required by Colorado law to consult with Defendant
Secretary of State Gessler and follow the rules and
orders promulgated by the Secretary in relation to
elections. See 1-1-110(1), C.R.S. (2011).
83.
Defendant Gessler has statutory duties as
Colorados Secretary of State to supervise the conduct
of Colorado elections carried out by Colorado county
clerk and recorders, including Defendant county clerk
and recorders, and to enforce the provisions of the
Uniform Election Code of 1992, 1-1-101 to -13-803,
C.R.S. (2011). See 1-1-107(1)(a), (c), C.R.S. (2011);
84.
Defendant Gessler also has powers to
promulgate such rules as he finds necessary for the
proper administration and enforcement of the election
laws and to inspect and review the practices and
procedures of Colorados county clerk and recorders.
See 1-1-107(2)(a)-(b), C.R.S. (2011).
85.
Defendant Gesslers specific duties also
include prescribing the form of materials to be used in
the conduct of mail ballot elections, establishing
procedures for conducting mail ballot elections and
supervising the conduct of mail ballot elections. See
1-7.5-106(1)(a)-(c), C.R.S. (2011).
86.
Defendant Gessler is aware and has been
aware since at least the 2010 election cycle that
numerous county clerk and recorders in Colorado,
including Defendant county clerk and recorders, are
using batching practices and batch tracking reports

App. 107a
that allow voted ballots to be traced to individual
voters.
87.
Gessler stated on November 30, 2011, that
his office is considering rules or statutory changes to
restrict the publics access to reports that could be used
to track a ballot to a specific voter. But Gessler and his
office have no publicly announced plans to propose any
rules or statutory changes that would prevent
Colorados county clerk and recorders, including
Defendant county clerk and recorders, from continuing
to compile and maintain information from batching,
including tracking reports, that permits the
government to trace voted mail ballots to individual
voters.
88.
Section 1-5-407 of the Uniform Election Code
of 1992 requires that No printing or distinguishing
marks shall be on the ballot except as specifically
provided by this code. See 1-5-407(7), C.R.S. (2011).
89.
Defendant Gessler is aware that numerous
county clerk and recorders in Colorado, including
Defendants Hall, Reno and Simonton, are using
printing or distinguishing marks on their ballots that
are not specifically provided for by the Uniform
Election Code of 1992.
90.
Defendant Gessler is responsible for
approving all changes to the form of the ballot from the
requirements set out in 1-5-407 of the Uniform Election
Code of 1992. See 1-5-407(8), C.R.S. (2011).
91.
Defendant Gessler has approved the use by
Defendants Hall, Reno and Simonton of printing or
distinguishing marks on ballots for past and upcoming

App. 108a
elections in Boulder, Chaffee and Eagle counties,
respectively.
92.
Systems, practices, policies and procedures
implemented for the conduct of elections in other
Colorado counties, including Pitkin County, show that
a lawful Colorado election may be conducted without
any need for the government to compile and maintain
information that violates secrecy in voting by
permitting voted ballots to be traced to individual
voters.
93.
Voted ballots in the custody and control of
Colorado county clerk and recorders, including
Defendant county clerk and recorders, are generally
accessible to a large number of people, including: the
county clerk and recorder (a partisan elected official),
county elections staff, official observers from the
Secretary of States office and the U.S. Department of
Justice, county election system vendors, the county
canvass board (whose members are often designees of
county political parties), the countys public resolution
and duplication board, county election commissioners,
volunteer election judges, student election judges,
election watchers (appointed directly by partisan
candidates and issue committees), media observers,
election contestants and their experts, lawyers and
witnesses, observers of public recounts, court officials,
public prosecutors and any others who may from time
to time lawfully view unredacted voted ballots. Many of
these people are bound by no statutorily prescribed
oath of secrecy or confidentiality when acting in the
capacities that afford them access to view and
potentially inspect and handle unredacted voted
ballots.

App. 109a
Injuries to Members of Citizen Center
94.
Members of Citizen Center include United
States citizens who are Colorado electors registered
and eligible to vote in Mesa, Larimer, Jefferson,
Boulder, Chaffee and Eagle counties, respectively, and
who individually want and 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.
95.
Colorados 2012 primary elections in Mesa,
Larimer, Jefferson, Boulder, Chaffee and Eagle
counties will be conducted as mail-ballot-only elections.
96.
Citizen Center has at least one member who
is a registered elector in Mesa County who wants and
intends to freely vote his conscience in the 2012
primary, 2012 general and other future elections there.
The Mesa County member intends to vote by mail
ballot in the 2012 primary election and by mail ballot
or by DRE in subsequent elections and thus stands to
suffer direct, imminent injury to his rights due to the
application of Defendant Reiners unlawful procedures
in the 2012 primary election, the 2012 general election
and other future elections.
97.
Citizen Center has at least one member who
is a registered elector in Larimer County who wants
and intends to freely vote his conscience in the 2012
primary, 2012 general and other future elections there.
The Larimer County member intends to vote by mail
ballot in the 2012 primary election and by mail ballot
or by DRE in subsequent elections and thus stands to
suffer direct, imminent injury to his rights due to the
application of Defendant Doyles unlawful procedures

App. 110a
in the 2012 primary election, the 2012 general election
and other future elections.
98.
Citizen Center has at least one member who
is a registered elector in Jefferson County who wants
and intends to freely vote her conscience in the 2012
primary, 2012 general and other future elections there.
The Jefferson County member intends to vote by mail
ballot in the 2012 primary election and by mail ballot
or by DRE in subsequent elections and thus stands to
suffer direct, imminent injury to her rights due to the
application of Defendant Andersons unlawful
procedures in the 2012 primary election, the 2012
general election and other future elections.
99.
Citizen Center has at least one member who
is a registered elector in Boulder County who wants
and intends to freely vote her conscience in the 2012
primary, 2012 general and other future elections there.
The Boulder County member intends to vote by mail
ballot in the 2012 primary election and by mail ballot,
by DRE or by paper ballot at a polling place in
subsequent elections and thus stands to suffer direct,
imminent injury to her rights due to the application of
Defendant Halls unlawful procedures in the 2012
primary election, the 2012 general election and other
future elections.
100. Citizen Center has at least one member who
is a registered elector in Chaffee County who wants
and intends to freely vote her conscience in the 2012
primary, 2012 general and other future elections there.
The Chaffee County member intends to vote by mail
ballot in the 2012 primary election and by mail ballot,
by DRE or by paper ballot at a polling place in
subsequent elections and thus stands to suffer direct,

App. 111a
imminent injury to her rights due to the application of
Defendant Renos unlawful procedures in the 2012
primary election, the 2012 general election and other
future elections.
101. Citizen Center has at least one member who
is a registered elector in Eagle County who wants and
intends to freely vote his conscience in the 2012
primary, 2012 general and other future elections there.
The Eagle County member intends to vote by mail
ballot in the 2012 primary election and by mail ballot,
by DRE or by paper ballot at a polling place in
subsequent elections and thus stands to suffer direct,
imminent injury to his rights due to the application of
Defendant Simontons unlawful procedures in the 2012
primary election, the 2012 general election and other
future elections.
102. All of the foregoing members of Citizen
Center stand to suffer direct, imminent injury due to
the failures of Defendant Gessler to perform his
statutory duties that, if performed, would prevent
Defendants Reiner, Doyle, Anderson, Hall, Reno,
Simonton, and other Colorado county clerks &
recorders from applying the foregoing unlawful
procedures in the 2012 primary election, the 2012
general election and other future elections.
Infringement of the Fundamental Right to Vote
103. The right of all eligible citizens to vote in a
public election is a fundamental right protected by the
United States Constitution.
104. Members of Citizen Center want and intend
to freely exercise their fundamental right to vote in the
2012 primary and general, special district, municipal

App. 112a
and coordinated elections, and elections held thereafter
in their respective counties and want and intend to do
so by voting their conscience for the candidates and
issues of their choice without fear of retaliation or fear
of ever being called upon to explain to anyone for whom
or for what reason their votes were cast.
105. The systems, practices, policies and
procedures of Defendant county clerk and recorders
implemented under the supervision and by the
approval of Defendant Gessler expose members of
Citizen Center and others to the constant threat that
each voters ballot will not be a secret ballot, but will
instead be traceable to the voter personally and will
thus remain subject to being identified by government
officials and others at any time after an election as the
particular ballot cast by that individual voter.
106. The systems, practices, policies and
procedures of Defendant county clerk and recorders
implemented under the supervision and by the
approval of Defendant Gessler condition the exercise of
the fundamental right to vote by members of Citizen
Center upon their acceptance and toleration of the risk
that secrecy in voting will be violated and that their
voted ballots will not be secret, but will instead be
traceable to the voter personally and thus subject to
being identified by government officials and others at
any time after an election as the particular ballot cast
by the individual voter.
107. By conducting elections using systems,
practices, policies and procedures that permit voted
ballots to be traced to individual voters, Defendant
county clerk and recorders compel members of Citizen
Center and others to choose between preserving the

App. 113a
privacy of their personal electoral preferences, on one
hand, and exercising their fundamental right to cast a
ballot expressing those preferences, on the other hand.
108. While members of Citizen Center want to
freely exercise their fundamental right to vote, some or
all of them will not do so because of the fear that their
individual voted ballot will not be a secret ballot, but
will instead be traceable to them personally and thus
will remain subject to being identified by government
officials and others at any time after an election as the
particular ballot cast by that voter personally.
109. The systems, practices, policies and
procedures of Defendant county clerk and recorders
implemented under the supervision and by the
approval of Defendant Gessler severely and
substantially burden, infringe and chill members of
Citizen Center and others in the exercise of their
fundamental right to vote.
110. Members of Citizen Center would like to
exercise their fundamental right to vote without being
subject to the constant threat that their voted ballot
will be traceable to them individually or will be subject
to being identified by government officials and others
at any time after an election as the particular ballot
cast by the voter personally.
Infringement
of
Amendment Rights

Fundamental

First

111. The act of voting in a public election is an

exercise of an eligible citizens First Amendment right
to freedom of speech and political expression.

App. 114a
112. The act of voting by means of a secret ballot
in a public election is an exercise of an eligible citizens
First Amendment right to engage specifically in
anonymous speech and political expression.
113. The act of voting in a public election is an
exercise of an eligible citizens First Amendment right
to freedom of political association.
114. The act of voting by means of a secret ballot
in a public election is an exercise of an eligible citizens
First Amendment right to engage specifically in
anonymous political association.
115. Members of Citizen Center want to use their
vote in 2012 primary and general, special district,
municipal and coordinated elections, and elections held
thereafter in their respective counties to express their
political preferences and thereby engage in the exercise
of their fundamental First Amendment rights to
freedom of speech and political expression, including
anonymous speech and political expression, and to
freedom of political association, including anonymous
political association.
116. The systems, practices, policies and
procedures of Defendant county clerk and recorders
implemented under the supervision and by the
approval of Defendant Gessler expose members of
Citizen Center and others to the constant threat that
each such persons electoral preferences expressed
through the voted ballot will not be secret and
anonymous.
117. The systems, practices, policies and
procedures of Defendant county clerk and recorders
implemented under the supervision and by the

App. 115a
approval of Defendant Gessler condition Plaintiffs
members exercise of their fundamental First
Amendment rights to freedom of speech and political
expression, anonymous speech and political expression
and political association upon acceptance by members
of Citizen Center of the risk that secrecy of their
electoral preferences will be violated and that their
voted ballots will or may be identifiable to government
officials.
118. By conducting elections using systems,
practices, policies and procedures that permit voted
ballots to be traced to individual voters, Defendant
county clerk and recorders compel members of Citizen
Center and others to choose between preserving the
privacy of their personal electoral preferences, on one
hand, and exercising the fundamental First
Amendment freedoms of speech and political
expression, including anonymous speech and political
expression, and freedoms of political association,
including anonymous political association, on the other
hand.
119. While members of Citizen Center want to use
their vote to freely exercise their fundamental First
Amendment rights to freedom of speech and political
expression, including anonymous speech and political
expression, and to freedom of political association,
including anonymous political association, some or all
of them will not do so because of the fear that their
individual voted ballot will not be a secret ballot, but
will instead be traceable to the voter personally and
will thus remain subject to being identified by
government officials and others at any time after an

App. 116a
election as the particular ballot cast by that individual
voter.
120. The systems, practices, policies and
procedures of Defendant county clerk and recorders
implemented under the supervision and by the
approval of Defendant Gessler severely and
substantially burden, infringe and chill members of
Citizen Center and others in the exercise of their
fundamental First Amendment rights to freedom of
speech and political expression, to anonymous speech
and political expression, and to freedom of political
association.
121. Members of Citizen Center would like to use
their vote in the 2012 primary and general, special
district, municipal and coordinated elections, and
elections held thereafter in their respective counties to
exercise their fundamental First Amendment rights to
freedom of speech and political expression, including
anonymous speech and political expression, and to
freedom of political association, including anonymous
political association, without being subject to the
constant threat that their voted ballots will be
traceable to them and will remain subject to being
identified by government officials and others at any
time after an election as the particular ballots cast by
them personally.
Infringement of the Colorado Constitutions
Right to Secrecy in Voting
122. The Colorado Constitutions establishes the
right of Colorado citizens to preservation of secrecy in
voting. See Colo. Const. art. VII, 8.

App. 117a
123. Members of Citizen Center want to exercise
their right to vote in the 2012 primary and general,
special district, municipal and coordinated elections,
and elections held thereafter in their respective
counties secure in the guarantee provided by the
Colorado Constitution that their state constitutional
right to secrecy in voting will be preserved.
124. By adopting and implementing systems,
practices, policies and procedures for the conduct of
elections that allow voted ballots to be traced to
individual voters, Defendant county clerk and
recorders, with the acquiescence of Defendant Gessler,
have directly violated and will directly violate
Plaintiffs members right to secrecy in voting.
FIRST CLAIM FOR RELIEF
Denial of Substantive Due Process
Fourteenth Amendment
Infringement of Fundamental
Right to Vote; 42 U.S.C. 1983
(against all Defendants)
125. Plaintiff realleges paragraphs 1 through 124
as if the same were fully stated here.
126. The Due Process Clause of the Fourteenth
Amendment declares that no State shall ... deprive
any person of life, liberty, or property, without due
process of law. U.S. Const. amend. XIV, 1.
127. The systems, practices, policies and
procedures adopted and implemented by Defendant
county clerk and recorders for the conduct of elections
in their respective counties under the supervision and
by the approval of Defendant Gessler severely,

App. 118a
substantially and unduly burden, chill and infringe
upon the fundamental right to vote.
128. These burdens and infringements are neither
justified by, nor necessary to promote, a substantial
and compelling state interest that cannot be
accomplished by other, less restrictive means.
129. The systems, practices, policies and
procedures adopted and implemented by the Defendant
county clerk and recorders under the supervision and
by the approval of Defendant Gessler have deprived
and will deprive the members of Citizen Center of their
fundamental constitutional right to vote in violation of
the substantive protections of the Due Process Clause
of the Fourteenth Amendment.
130. As a direct and proximate result of the
continuing toleration, implementation and enforcement
of systems, practices, policies and procedures by the
Defendants that make ballots cast by some voters
individually identifiable, members of Citizen Center
and others similarly situated have suffered and will
suffer deprivation of and irreparable harm to their
fundamental constitutional right to vote. Members of
Citizen Center have no adequate legal, administrative,
or other remedy by which to prevent or minimize this
harm. Unless Defendants are enjoined from applying
and approving systems, practices, policies and
procedures that make ballots cast by some voters
individually identifiable, members of Citizen Center
and others similarly situated will continue to suffer
great and irreparable harm.

App. 119a
131. The foregoing deprivations of federal
constitutional rights have been and will be effected by
Defendants acting under color of state law.
SECOND CLAIM FOR RELIEF
Denial of Substantive Due Process
Fourteenth Amendment
Infringement of First Amendment Rights to
Freedom of Speech and Association;
42 U.S.C. 1983
(against all Defendants)
132. Plaintiff realleges paragraphs 1 through 131
as if the same were fully stated here.
133. The systems, practices, policies and
procedures adopted and implemented by the Defendant
county clerk and recorders for the conduct of elections
in their respective counties under the supervision and
by the approval of Defendant Gessler severely,
substantially and unduly burden, chill and infringe
upon the fundamental First Amendment rights to
freedom of speech and association, including the rights
to anonymous speech and association.
134. These burdens and infringements are neither
justified by, nor necessary to promote, a substantial
and compelling state interest that cannot be
accomplished by other, less restrictive means.
135. The systems, practices, policies and
procedures adopted and implemented by the Defendant
county clerk and recorders under the supervision and
by the approval of Defendant Gessler have deprived
and will deprive the members of Citizen Center of their
fundamental First Amendment rights in violation of

App. 120a
the substantive protections of the Due Process Clause
of the Fourteenth Amendment.
136. As a direct and proximate result of the
continuing toleration, implementation and enforcement
of systems, practices, policies and procedures by the
Defendants that make ballots cast by some voters
individually identifiable, members of Citizen Center
and others similarly situated have suffered and will
suffer deprivation of and irreparable harm to their
fundamental First and Fourteenth Amendment rights.
Members of Citizen Center have no adequate legal,
administrative, or other remedy by which to prevent or
minimize this harm. Unless Defendants are enjoined
from applying and approving systems, practices,
policies and procedures that make ballots cast by some
voters individually identifiable, members of Citizen
Center and others similarly situated will continue to
suffer great and irreparable harm.
137. The foregoing deprivations of federal
constitutional rights have been and will be effected by
Defendants acting under color of state law.
THIRD CLAIM FOR RELIEF
Denial of Substantive Due Process
Fourteenth Amendment
Infringement of Fundamental Right to Secret
Ballot; 42 U.S.C. 1983
(against all Defendants)
138. Plaintiff realleges paragraphs 1 through 137
as if the same were fully stated here.
139. The right of citizens to vote using a secret
ballot in public elections is a liberty that is now so
deeply rooted in our history and traditions and so

App. 121a
fundamental to our concept of constitutionally ordered
liberty that it ranks among the fundamental rights
and liberty interests that warrant substantive
protection under the Due Process Clause of the
Fourteenth Amendment. Cf. Washington v.
Glucksberg, 521 U.S. 702, 727 (1997).
140. The systems, practices, policies and
procedures adopted and implemented by the Defendant
county clerk and recorders for the conduct of elections
in their respective counties under the supervision and
by the approval of Defendant Gessler severely,
substantially and unduly burden, chill and infringe
upon the fundamental right to vote using a secret
ballot in public elections.
141. These burdens and infringements are neither
justified by, nor necessary to promote, a substantial
and compelling state interest that cannot be
accomplished by other, less restrictive means.
142. The systems, practices, policies and
procedures adopted and implemented by the Defendant
county clerk and recorders under the supervision and
by the approval of Defendant Gessler have deprived
and will deprive the members of Citizen Center of their
fundamental right to vote using a secret ballot in public
elections in violation of the substantive protections of
the Due Process Clause of the Fourteenth Amendment.
143. As a direct and proximate result of the
continuing toleration, implementation and enforcement
of systems, practices, policies and procedures by the
Defendants that make ballots cast by some voters
individually identifiable, members of Citizen Center
and others similarly situated have suffered and will

App. 122a
suffer deprivation of and irreparable harm to their
constitutional right to vote using a secret ballot in
public elections. Members of Citizen Center have no
adequate legal, administrative, or other remedy by
which to prevent or minimize this harm. Unless
Defendants are enjoined from applying and approving
systems, practices, policies and procedures that make
ballots cast by some voters individually identifiable,
members of Citizen Center and others similarly
situated will continue to suffer great and irreparable
harm.
144. The foregoing deprivations of federal
constitutional rights have been and will be effected by
Defendants acting under color of state law.
FOURTH CLAIM FOR RELIEF
Denial of Procedural Due Process
Fourteenth Amendment
Infringement of State-Created Liberty
Interest in Voting by Secret Ballot;
42 U.S.C. 1983
(against all Defendants)
145. Plaintiff realleges paragraphs 1 through 144
as if the same were fully stated here.
146. The right to secrecy in voting is a substantive
liberty interest created by state law in Article VII, 8
of the Colorado Constitution.
147. This state-created substantive right to
secrecy in voting is entitled to the procedural
protections of the Due Process Clause of the Fourteenth
Amendment.

App. 123a
148. The systems, practices, policies and
procedures adopted and implemented by the Defendant
county clerk and recorders under the supervision and
by the approval of Defendant Gessler have deprived
and will deprive the members of Citizen Center of their
substantive state-created liberty interest in secrecy in
voting.
149. Defendants have no lawful substantive
discretion under Colorado law to deprive voters of their
state-created liberty interest in secrecy in voting, as
Colorado law provides no procedure whereby such
deprivation may lawfully be accomplished.
150. The actual procedures utilized by the
Defendant county clerk and recorders under the
supervision and by the approval of Defendant Gessler
to deprive members of Citizen Center and others of
their substantive state constitutional right to secrecy in
voting either are non-existent or else are wholly
arbitrary and capricious and without rational basis,
and in either case such procedures do not afford the
degree of constitutionally adequate process required by
the Due Process Clause of the Fourteenth Amendment
to the United States Constitution.
151. As a direct and proximate result of the
continuing toleration, implementation and enforcement
of systems, practices, policies and procedures by the
Defendants that make ballots cast by some voters
individually identifiable without affording those voters
any constitutionally adequate procedure for contesting
the deprivation of their substantive right to secrecy in
voting, members of Citizen Center and others similarly
situated have suffered and will suffer deprivation of
and irreparable harm to their constitutional rights.

App. 124a
Members of Citizen Center have no adequate legal,
administrative, or other remedy by which to prevent or
minimize this harm. Unless Defendants are enjoined
from acting without any procedure, or with
constitutionally deficient procedures, in the course of
depriving members of Citizen Center and others of
their state constitutional right to secrecy in voting,
members of Citizen Center and others similarly
situated will continue to suffer great and irreparable
harm.
152. The foregoing deprivations of federal
constitutional rights have been and will be effected by
Defendants acting under color of state law.
FIFTH CLAIM FOR RELIEF
Denial of Equal Protection Fourteenth Amendment
Infringement of Fundamental Right to Vote
and Rights to Freedom of Speech and
Association; 42 U.S.C. 1983
(against all Defendants)
153. Plaintiff realleges paragraphs 1 through 152
as if the same were fully stated here.
154. The Equal Protection Clause of the
Fourteenth Amendment mandates that [n]o State
shall ... deny to any person within its jurisdiction the
equal protection of the laws. U.S. Const. amend. XIV
1.
155. Members of Citizen Center are, in all
material respects, similarly situated to each other and
to other persons who have voted and will vote in
elections conducted by the Defendant county clerk and
recorders under the supervision and by the approval of
Defendant Gessler.

App. 125a
156. The systems, practices, policies and
procedures adopted and implemented by the Defendant
county clerk and recorders under the supervision and
by the approval of Defendant Gessler treat members of
Citizen Center and other similarly situated persons
differently, by exposing voters within counties and in
different counties to disparate likelihoods of their
ballots being made identifiable, based on such arbitrary
and random vagaries as the randomized assortment of
voted ballots into tabulation batches, the choice of
voting method or machine and time of voting selected
by the voter and the physical residence of voters at
varying locations within intersecting district
boundaries that cause those voters to be assigned to
relatively more- or less-unique ballot styles.
157. The systems, practices, policies and
procedures adopted and implemented by the Defendant
county clerk and recorders under the supervision and
by the approval of Defendant Gessler severely,
substantially and unduly burden, chill and infringe
upon both the fundamental right to vote and the
fundamental First Amendment rights to freedom of
speech and association of members of Citizen Center
and others.
158. The burdens and infringements imposed on
these fundamental rights are differentially imposed
upon members of Citizen Center and others without
justification by any substantial or compelling state
interest that cannot be accomplished by other, less
restrictive means.
159. The systems, practices, policies and
procedures adopted and implemented by the Defendant
county clerk and recorders under the supervision and

App. 126a
by the approval of Defendant Gessler have deprived
and will deprive the members of Citizen Center of their
right to equal protection of the laws in violation of the
Equal Protection Clause of the Fourteenth
Amendment.
160. As a direct and proximate result of the
continuing toleration, implementation and enforcement
of systems, practices, policies and procedures by the
Defendants that expose similarly situated voters to
disparate likelihoods of their ballots being individually
identifiable, members of Citizen Center and others
similarly situated have suffered and will suffer
deprivation of and irreparable harm to their
constitutional rights in the form of unequal protection
of their fundamental right to vote and their
fundamental First and Fourteenth Amendment rights.
Members of Citizen Center have no adequate legal,
administrative, or other remedy by which to prevent or
minimize this harm. Unless Defendants are enjoined
from applying and approving systems, practices,
policies and procedures that deprive members of
Citizens Center and others of equal protection of the
laws, members of Citizen Center and others similarly
situated will continue to suffer great and irreparable
harm.
161. The foregoing deprivations of federal
constitutional rights have been and will be effected by
Defendants acting under color of state law.

App. 127a
SIXTH CLAIM FOR RELIEF
Violation of State Secrecy in Voting
Colo. Const. art VII, 8
(against all Defendants)
162. Plaintiff realleges paragraphs 1 through 161
as if the same were fully stated here.
163. The Colorado Constitution prohibits the
marking of paper ballots whereby the ballot can be
identified as the ballot of the person casting it and
requires preservation of secrecy in voting in all
elections in which machines are used to receive and
register the votes cast. See Colo. Const. art. VII, 8.
164. By adopting and implementing systems,
practices, policies and procedures for the conduct of
elections that allow voted ballots to be traced to
individual voters, Defendant county clerk and
recorders under the supervision and by the approval of
Defendant Gessler have directly violated and will
directly violate the state constitutional right of
Plaintiffs members and others to secrecy in voting.
165. As a direct and proximate result of their
conduct that deprives some voters of secrecy in voting,
members of Citizen Center and others similarly
situated have suffered and will suffer deprivation of
and irreparable harm to their state constitutional
rights. Members of Citizen Center have no adequate
legal, administrative, or other remedy by which to
prevent or minimize this harm. Unless Defendants are
enjoined applying and approving systems, practices,
policies and procedures that cause these state
constitutional violations to occur, members of Citizen

App. 128a
Center and others similarly situated will continue to
suffer great and irreparable harm.
SEVENTH CLAIM FOR RELIEF
Violation of State Due Process and
State Equal Protection
Colo. Const. art II, 25
(against all Defendants)
166. Plaintiff realleges paragraphs 1 through 165
as if fully stated here.
167. The Colorado Constitution guarantees rights
to due process and equal protection of the laws under
state law. See Colo. Const. art. II, 25.
168. By treating similarly situated persons
differently and arbitrarily depriving some voters but
not others of the state constitutional right to secrecy in
voting, Defendant county clerk and recorders under the
supervision and by the approval of Defendant Gessler
have deprived and will deprive members of Citizen
Center and others of state constitutional guarantees to
due process and equal protection of the laws.
169. The deprivations are without justification by
any substantial or compelling state interest that cannot
be accomplished by other, less restrictive means.
170. As a direct and proximate result of their
conduct that exposes and will expose voters to
disparate likelihoods of their ballots being individually
identifiable and that deprives and will deprive some
voters of secrecy in voting without due process under
state law, members of Citizen Center and others
similarly situated have suffered and will suffer
deprivation of and irreparable harm to their state

App. 129a
constitutional rights. Members of Citizen Center have
no adequate legal, administrative, or other remedy by
which to prevent or minimize this harm. Unless
Defendants are enjoined applying and approving
systems, practices, policies and procedures that cause
these state constitutional violations to occur, members
of Citizen Center and others similarly situated will
continue to suffer great and irreparable harm.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that
the Court:
a. Enter judgment declaring unconstitutional the
foregoing described systems, practices, policies and
procedures of Defendant clerk and recorders that
permit voted ballots to be individually identifiable as
the ballots of the persons casting them;
b. Enter preliminary and permanent injunctions
against the Defendant county clerk and recorders
prohibiting their prospective application of the
foregoing described systems, practices, policies and
procedures that permit voted ballots to be individually
identifiable as the ballots of the persons casting them;
c. Enter preliminary and permanent injunctions
against the Defendant Secretary of State prohibiting
his prospective approval of the foregoing described
systems, practices, policies and procedures that permit
voted ballots to be individually identifiable as the
ballots of the persons casting them;
d. Grant Plaintiff an award of its reasonable
attorneys fees, costs, and expenses incurred in this
action pursuant to 42 U.S.C. 1988; and

App. 130a
e. Grant Plaintiff such other relief as the Court
deems just and proper.
Dated: May 10th, 2012
Respectfully submitted,
ROBERT A. MCGUIRE, ATTORNEY AT LAW, LLC
By:

s/ Robert A. McGuire
Robert A. McGuire
1624 Market Street, Suite 202
Denver, Colorado 80202
Telephone: (303) 734-7175
Fax: (303) 734-7166
Email: ram@lawram.com
Attorney for Plaintiff
***

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