Citizen Center v. Gessler
2014 U.S. App. LEXIS 20144
| 10th Cir. | 2014Background
- In 2012 six Colorado counties used ballots with identifiers (unique numbers/barcodes, machine-unique ballots, or small batched mail ballots) that Citizen Center alleged made individual votes traceable.
- Citizen Center sued county clerks and the Colorado Secretary of State asserting federal (voting, free speech/association, substantive and procedural due process, equal protection) and Colorado constitutional claims.
- Defendants moved to dismiss for lack of standing; clerks also moved under Rule 12(b)(6). The district court dismissed for lack of standing; this appeal followed.
- While litigation proceeded the Secretary of State adopted regulations banning printed unique numbers/barcodes, requiring printing multiples of each numbered style, and requiring dissociation of batch identifiers before final certification.
- The Tenth Circuit held some claims moot by the new regulations, found partial standing (equal protection and procedural due process) but dismissed other constitutional theories for lack of standing, and reviewed the clerks’ 12(b)(6) arguments for the surviving claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of challenges after new regulations | Regulations are insufficient; voluntary changes shouldn’t moot live controversy | New regs eliminate practices challenged and thus moot parts of suit | Partially moot: challenges to unique numbers/barcodes and post-certification batch traceability are moot; machine-unique ballots and pre-certification batching remain live |
| Standing to seek relief for risk of ballot tracing (vote, speech, substantive due process) | Members fear ballots may be traced, chilling voting and speech | Risk is speculative; no certainly impending injury | No standing: alleged risk/chill is too speculative to constitute injury in fact |
| Standing for unequal treatment (equal protection) | Voters in some counties face greater traceability risk than others | Each county is a separate jurisdiction; voters within a county are treated alike | Standing: unequal treatment across counties suffices at pleading stage to allege injury in fact |
| Standing and redressability for procedural due process claims based on Colorado constitutional secrecy provision | Members have a liberty interest in an untraceable ballot under state law; federal courts can redress | No protected liberty interest because Colorado law protects against actual disclosure, not traceability alone; defendants can comply and Secretary has approval authority | Standing and redressability found for procedural due process claims (state interest alleged) against clerks and Secretary; but on the merits the federal procedural due process claim fails because Colorado law does not create a liberty interest in an untraceable ballot |
| Rule 12(b)(6) validity of procedural due process claim against clerks | Use of traceable ballots violates state-protected secrecy and thus procedural due process | Colorado constitutional text and precedent do not forbid traceability absent actual disclosure; no cognizable liberty interest | Dismissed on the merits: Colorado Constitution does not protect against traceability alone, so procedural due process claim fails |
| Rule 12(b)(6) validity of equal protection claim against clerks | Inter-county disparities in ballot secrecy violate equal protection | Equal protection requires similarly situated treatment within the same jurisdiction; clerks act only within counties | Dismissed on the merits against county clerks: no intra-county discrimination alleged; inter-county disparities insufficient to state claim against individual county clerks |
Key Cases Cited
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (courts may choose among threshold jurisdictional grounds)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing: injury, causation, redressability)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (threatened injury must be certainly impending; speculative harms insufficient)
- Lyons v. City of Los Angeles, 461 U.S. 95 (1983) (speculative future injury cannot support standing)
- O’Shea v. Littleton, 414 U.S. 488 (1974) (past exposure to illegal conduct does not establish a live controversy for injunctive relief without continuing effects)
- Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (for standing, assume legal validity of asserted right but require concrete allegations of harm)
- American Civil Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313 (10th Cir. 2008) (unequal treatment between classes of voters can constitute injury in fact)
- Jones v. Samora, 318 P.3d 462 (Colo. 2014) (Colorado Supreme Court: traceable ballots did not violate state constitution absent actual disclosure)