Citizen Ctr. v. Gessler, No. 12–1414.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBACHARACH, Circuit Judge.
Citation770 F.3d 900
PartiesCITIZEN 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.
Docket NumberNo. 12–1414.
Decision Date21 October 2014

770 F.3d 900

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.

No. 12–1414.

United States Court of Appeals, Tenth Circuit.

Oct. 21, 2014.


770 F.3d 903

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 Attorney's Office, Fort Collins, CO, Gillian Dale and Tom Lyons, Hall & Evans, Denver, CO, Bryan Treu, Eagle County Attorney, Eagle, CO, and Jennifer Davis, Chaffee County Attorney, Salida, CO, and John W. Suthers, Attorney General, with them on the briefs) for Defendants–Appellees.

Before HOLMES, McKAY, and BACHARACH, Circuit Judges.

Opinion

770 F.3d 904

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 (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 Center's alleged injury in fact is too speculative for standing on the “live” parts of the claims involving the right to vote, engage in free speech and association, and enjoy substantive due process.
• The first amended complaint failed to state a valid claim against the clerks for denial of equal protection or procedural due process.

These conclusions result in termination of all claims except the federal claims against the Secretary of State for denial of equal protection and procedural due process.

I. Traceable Ballots

Analysis of the claims requires an understanding of the balloting practices in the six Colorado counties, Citizen Center's theories, and the Secretary of State's regulatory changes designed to enhance ballot secrecy.

A. Challenged Balloting Practices

Citizen Center complains of the potential for election officials in six Colorado counties to trace ballots to individual voters. This potential allegedly exists because:

(1) each ballot has a unique number or barcode,
(2) some ballots may be unique among the ballots cast on an electronic voting machine, and
(3) some ballots may be unique within a batch of ballots.3

R. vol. 1, at 25, 27–31, 33–34.

According to Citizen Center, ballots are traceable when they bear unique numbers

770 F.3d 905

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 machine's unique identifier, and the precinct number or ballot style used by the voter. Id. at 27, 29–30, 32–33, 35. By comparing this information with available data, Citizen Center argues, election officials can trace a ballot whenever it is unique among the ballots cast on a particular voting machine. See id. at 27–30, 32–35.

The potential for tracing also allegedly exists because some ballots may be unique within a single batch. Four of the counties (Mesa, Larimer, Jefferson, and Boulder) process and store mail-in (absentee) ballots in discrete batches. Id. at 25, 27, 29, 32. Each batch is associated with a batch sheet listing the names, voter identification numbers, precinct numbers, ballot styles, and other information for the voters whose ballots are included in the batch. Id. at 25, 27, 30, 32. Because batches are relatively small, some ballots may be unique within the batch. Thus, Citizen Center alleges that election officials will sometimes be able to trace a ballot by comparing the content to information in the batch sheet. Id. at 25–26, 28, 30, 32.

B. Citizen Center's Theories

Citizen Center's members include voters from the six counties who intend to “freely vote their conscience[s]” in upcoming elections. Id. at 38. But the members allegedly fear that their ballots will be traced and that votes are “subject to being identified by government officials and others at any time after an election.” Id. at 41. Thus, Citizens Center fears that members may not “freely exercise their fundamental right to vote” because of the possibility of tracing. Id. at 42, 44.

Citizen Center contends that the counties' election procedures “substantially burden, infringe and chill” members' constitutional rights to: (1) vote, (2) engage in free speech and association, (3) enjoy substantive and procedural due process, and (4) enjoy equal protection. Id. at 42, 44–48, 51, 53.

C. Actual Tracing of Ballots

Colorado election officials must swear “not to inquire or disclose how any elector shall have voted.” Colo. Const. art. VII, § 8. Thus, all mail ballots are provided to voters with a secrecy envelope or sleeve to prevent officials from learning how a citizen voted. Colo.Rev.Stat. § 1–7.5–103(5).

Citizen Center alleges that election officials in three counties have either traced individual ballots or failed to adequately safeguard the secrecy of voters' ballots.

770 F.3d 906

According to Citizen Center, officials in Mesa and Larimer counties traced the ballots of identified public officials and publicized the ability to trace ballots. R. vol. 1, at 26, 28. And Jefferson County allegedly published the electoral choices of 30 identifiable voters for nearly a year and a half. Id. at 30–31; R. vol. 2, at 210.

D. The Secretary of State's Regulatory Changes

The Secretary of State bears responsibility for regulating election procedures for each Colorado county. Colo.Rev.Stat. § 1–1–110(1) (“The county clerk and recorder ... shall ... follow the rules and orders promulgated by the secretary of state pursuant to this code.”); see 8 Colo.Code Regs. § 1505–1:7.1 (requiring approval by the Secretary of State on all mail ballot plans).

Citizen Center challenges the constitutionality of voting procedures in the 2012 election. R. vol. 1, at 41. But the Secretary of State has revised its election regulations. See 8 Colo.Code Regs. § 1505–1. The current regulations: (1) prohibit counties from printing ballots with unique numbers or barcodes, (2) require counties using rotating numbers to “print at least ten ballots of each ballot style for each number,” and (3) direct county clerks to “dissociate any batch number that could trace a ballot back to the specific voter who cast it from the counted ballots no later than the final certification of the abstract of votes cast.” Id. §§ 1505–1:4.8.4(a), 1505–1:7.5.8.

II. Mootness

The Defendants contend that the action is moot because: (1) Citizen Center challenged only the 2012 election procedures and the election has passed, (2) the...

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