Judicial Watch, Inc. v. Griswold

• Decision Date: 16 August 2021
• Docket Number: Civil Action No. 20-cv-02992-PAB-KMT
• Citation: 554 F.Supp.3d 1091
• Parties: JUDICIAL WATCH, INC., Elizabeth Miller, Lorri Hovey, and Mark Sutfin, Plaintiffs, v. Jena GRISWOLD, Colorado Secretary of State, in her official capacities, State of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

554 F.Supp.3d 1091

JUDICIAL WATCH, INC., Elizabeth Miller, Lorri Hovey, and Mark Sutfin, Plaintiffs,

v.Jena GRISWOLD, Colorado Secretary of State, in her official capacities, State of Colorado, Defendants.

Civil Action No. 20-cv-02992-PAB-KMT

United States District Court, D. Colorado.

Signed August 16, 2021

T. Russell Nobile, Eric William Payne Lee, Judicial Watch, Inc., Washington, DC, Eric Robert Holway, John Stuart Zakhem, Jackson Kelly PLLC, Denver, CO, for Plaintiffs.

Grant T. Sullivan, Peter G. Baumann, Colorado Attorney General's Office, Denver, CO, for Defendant Jena Griswold.

ORDER

PHILIP A. BRIMMER, Chief United States District Judge

This matter is before the Court on the Motion to Dismiss [Docket No. 34] filed by defendants Colorado Secretary of State Jena Griswold (the "Secretary") and the State of Colorado ("Colorado"). Plaintiffs responded, Docket No. 35, and defendants replied. Docket No. 44. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND¹

Plaintiff Judicial Watch, Inc. ("Judicial Watch") is a nonprofit, educational organization with the mission of promoting "transparency, integrity, and accountability in government and fidelity to the rule of law." Docket No. 1 at 4, ¶ 16. Judicial Watch is supported by individuals who become "members" through financial contributions, and Judicial Watch represents its members’ interests. Id. , ¶ 17. Plaintiffs Elizabeth Miller, Lorri Hovey, and Mark Sutfin are Colorado voters, and Ms. Miller is also a member of Judicial Watch.² Id. at 2, ¶¶ 4–7.

Judicial Watch and its members have become increasingly concerned about the nation's voter registration rolls, including whether state and local election officials are complying with the voter list maintenance obligations of the National Voter Registration Act ("NVRA"). Id. at 4, ¶ 18. Members worry that officials’ failure to comply with NVRA undermines election integrity by increasing "the opportunity of ineligible voters or voters intent on fraud to cast ballots." Id. at 5, ¶ 19. In response to these concerns, Judicial Watch began to monitor state and local officials’ compliance with the NVRA requirements by "utiliz[ing] public records laws to request and receive records" about voter list maintenance efforts and then publishing the results of the findings. Id. at 5, ¶ 20.

Section 8 of the NVRA requires states to "conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters" by reason of death or a change in residence. 52 U.S.C. § 20507(a)(4). States may meet this requirement by using the National Change of Address ("NCOA") database to identify registrants who may have moved, 52 U.S.C. § 20507(c)(1)(A), and, if the NCOA database suggests that a registrant has moved, the local election official is to send the registrant a notice ("Confirmation Notice") explaining how the registrant can confirm the address change, but the state may only remove the registrant if he or she does not respond to the notice and also fails to vote in two general elections. 52 U.S.C. § 20507(d)(1)(B). This process, the "NCOA Process," is referred to as the "safe-harbor." Docket No. 34 at 2; Docket No. 35 at 12; see also A. Philip Randolph Inst. v. Husted , 838 F.3d 699, 703 n.2 (6th Cir. 2016) ("Because that subsection describes the NCOA Process as one way in which states ‘may’ comply with their obligation under the NVRA to identify and remove voters who are no longer eligible due to a change of residence, the NCOA Process is sometimes referred to in this litigation as the ‘Safe-Harbor Process.’ " (citation omitted)), rev'd on other grounds , ––– U.S. ––––, 138 S. Ct. 1833, 201 L.Ed.2d 141 (2018).

Judicial Watch's analysis of data from the U.S. Election Assistance Commission ("EAC"), Colorado, and the U.S. Census Bureau "shows that Colorado has failed to make a reasonable effort to remove ineligible registrants from the rolls." Docket No. 1 at 6, ¶ 25. In summer 2019, Judicial Watch compared the voter registration numbers in each Colorado county reported to the EAC with the "then-most-recent five-year [American Community Survey ("ACS")] estimates of citizen voting-age population for 2013 to 2017," which led Judicial Watch to conclude that "[f]orty of Colorado's 64 counties ... had registration rates exceeding 100%." Id. at 6–7, ¶ 28. According to Judicial Watch, the percentage of Colorado counties with registration rates exceeding 100% "was the highest in the nation. " Id. at 7, ¶ 29. In September 2020, Judicial Watch "compared the most recent five-year ACS data released by the Census Bureau," from 2014 through 2018, "with the contemporaneous 60 months of registration data," which showed that, in an average month, 20 counties had registration rates exceeding 100%, and 39 counties had rates exceeding 100% during a single month of that period. Id. , ¶¶ 30–32.

Judicial Watch insists that, if a jurisdiction removes an insufficient number of registration records for voters who do not respond to the address confirmation notice and then fail to vote in two consecutive federal elections, that jurisdiction is not in compliance with Section 8 of the NVRA. Id. at 8, ¶ 36. According to Judicial Watch's review of EAC data, 30 Colorado counties reported removing fewer than 3% of the registration list, even though Census data shows that 18% of Colorado residents are living in a different house as a year ago. Id. , ¶ 38–39. In addition, Judicial Watch's review of the EAC data shows that 25 Colorado counties reported sending address confirmation notices to fewer than 2% of their registrants during the time period, even though approximately 13% of Coloradans in these counties were not living in the same house as a year ago. Id. at 9–10, ¶ 45–46.

Furthermore, based on data posted on the Secretary's website, Judicial Watch has determined that Colorado has a high "inactive registration rate," which Judicial Watch concluded by dividing the number of inactive³ registrations by the total number of registrations. Id. at 10, ¶ 50–52. While the median inactive registration rate nationwide was 8.3%, 60 of Colorado's 64 counties exceeded that rate and, in eight counties, the rate was 17%. Id. at 11, ¶¶ 53–55.

The individual plaintiffs, and other Judicial Watch members registered to vote in Colorado, are "burden[ed]" because defendants failure to comply with NVRA "undermin[es] their confidence in the integrity of the electoral process, discourag[es] their participation in the democratic process, and instill[s] in them the fear that their legitimate votes will be nullified or diluted." Id. at 12–13, ¶ 65. Defendants’ noncompliance, they allege, also "infringes the federal and state statutory rights [of the individual plaintiffs and other Judicial Watch members registered in Colorado] to vote in elections for federal office that comply with the procedures and protections required by the NVRA." Id. at 13, ¶ 66.

On December 7, 2020, defendants filed a motion to dismiss. Defendants argue that plaintiffs "[A] lack of Article III standing, [B] fail[ ] to allege that statutory notice was provided or excused, [C] fail[ ] to plausibly allege that Colorado is not conducting a ‘reasonable’ list maintenance program, and [D] [ ] the State is immune from suit under the Eleventh Amendment."⁴ Docket No. 34 at 1.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff's "claim to relief ... plausible on its face." Khalik v. United Air Lines , 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "The ‘plausibility’ standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible." RE/MAX, LLC v. Quicken Loans Inc. , 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales , 534 F.3d 1282, 1286 (10th Cir. 2008) ). Generally, "[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.’ " Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ) (alterations omitted). However, a plaintiff still must provide "supporting factual averments" with her allegations. Cory v. Allstate Ins. , 583 F.3d 1240, 1244 (10th Cir. 2009) ("[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." (citation omitted)). Otherwise, the Court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc. , 291 F.3d 1227, 1232 (10th Cir. 2002). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotations and alterations omitted); see also Khalik , 671 F.3d at 1190 ("A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss." (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 )). If a complaint's allegations are "so general that they encompass a wide swath of conduct, much of it innocent," then plaintiff has not stated a plausible claim. Khalik , 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson , 534 F.3d at 1286 (alterations omitted).

The parties heavily rely on an EAC report, the Election Administration and Voting Survey: 2018 Comprehensive Report ("2018...