1437 Bannock St . Denver , Colorado 80202 - Brennan Center for ...

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Summary judgment is appropriate if no genuine issues of material fact exist and themoving party is entitled to judgment as a matter of law. In re Tonko, 154 P.3d 397, 402 (Colo.2007). A fact is material if it will affect the outcome of the case. Bankruptcy Estate of Morris v.COPIC Ins. Co., 192 P.3d 519, 523 (Colo. App. 2008) The nonmoving party is entitled to thebenefit of all favorable inferences reasonably drawn from the undisputed facts and all doubts areresolved against the moving party. A.C. Excavating v. Yacht Club II Homeowners Ass’n, 114P.3d 862, 865 (Colo. 2005). Issues of statutory interpretation are particularly appropriate forresolution via summary judgment, Cook v. City and County of Denver, 68 P.3d 586, 588 (Colo.App. 2003), because statutory interpretation is a pure question of law. Board of County Comm’rsv. Hygiene Fire Protection Dist., 221 P.3d 1063, 1066 (Colo. 2009)II. STATEMENT OF FACTSIn her motion for summary judgment, Debra Johnson, Clerk and Recorder for the Cityand County of Denver (hereinafter “Clerk Johnson”), sets forth facts that she argues are pertinentto the issues in this case. Most of the facts listed in Clerk Johnson’s motion pertain to activitiessurrounding the November 2011 election and, in particular, to her allegations regarding theSecretary’s alleged approval of Denver’s 2011 mail ballot plan. These allegations present factsthat are unique to the November 2011 election and were pertinent to the Secretary’s motion forpreliminary injunction. They are not material to the broader, ongoing allegations in theSecretary’s complaint. Six material and undisputed facts remain:• The Secretary is the duly elected Secretary of State for the State of Colorado.• Clerk Johnson is the duly elected Clerk and Recorder for the City and County of Denver.• Pursuant to the Denver Charter and ordinances, Clerk Johnson supervises electionswithin the City and County of Denver.2
• Clerk Johnson contests the Secretary’s assertion that the Clerk Johnson does not have thelegal authority to challenge the Secretary’s legal interpretations, rules and orders undercircumstances in which Denver is subject to the Uniform Election Code.• Clerk Johnson contests the Secretary’s assertion that Clerks cannot send mail ballots tovoters designated as “inactive-failed to vote” in mail ballot elections conducted pursuantto § § 1-7.5-101 et seq.• Clerk Johnson contests the Secretary’s assertion that Clerks cannot send ballots tooverseas voters who have not submitted applications pursuant to § 1-8.3-101 et seq.without submitting an application.• Clerk Johnson will continue to send ballots to voters who are designated as “inactivefailedto vote” and to overseas voters who do not submit an application.For purposes of clarifying the record with respect to the allegations in Clerk Johnson’s motion,the Secretary responds to Clerk Johnson’s statement of facts in the order presented in ClerkJohnson’s Motion for Summary Judgment:1. The preparation of a budget is immaterial.2. The Secretary agrees that the Denver Clerk conducted Denver’s elections on May 3,2011 and June 7, 2011. This fact is immaterial to the issues that remain.3. County clerks must use the SCORE system. However, this factual allegationregarding the option to include IFTV voters is not specific to election in which mailballot packets may not be sent to “inactive-failed to vote” electors.4. The statement that there were no changes to the SCORE system for the November,2011 election is not material to the ongoing dispute. A statement about changes to theSCORE system does not affect the legal authority to send mail packets to “inactive-3
Page 1: DISTRICT COURT, CITY AND COUNTY OF
Page 5 and 6: 11. The fact that the form included
Page 7 and 8: 26. The Secretary does not dispute
Page 9 and 10: Colo. Const. art. XX, § 6(d).The p
Page 11 and 12: Code. Section 1-1-107(1)(a)-(c), C.
Page 13 and 14: county. Absent evidence of State Bo
Page 15 and 16: federal law “includes not only a
Page 17 and 18: County Commissioners v. Fifty-first
Page 19 and 20: Election officials must mail a vote
Page 21 and 22: Electors who are designated as “i
Page 23 and 24: voter information card to a registe
Page 25 and 26: the history of election laws plainl
Page 27 and 28: stated, “‘An inference drawn fr
Page 29 and 30: ules because Denver has adopted the
Page 31 and 32: THE SECRETARY IS ENTITLED TO AN INJ
Page 33 and 34: purging procedure and in our view i
Page 35 and 36: You go back to the legislature. You
Page 37 and 38: CERTIFICATE OF SERVICEThis is to ce
Page 39 and 40: :.INTERROGATORY N0.1: Identify the
Page 41 and 42: (.electors would be mailed ballots
Page 43 and 44: INTERROGATORY NO.lO: Describe all c
Page 45 and 46: INTERROGATORY N0.12: State the date
Page 47 and 48: I, Judd Choate, hereby certify that
Page 49 and 50: I. Hilary Rudy, hereby certify that
Page 51 and 52: I, Ben Schier, hereby certify that
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1742EFILED DocumentEFILED CO Denver
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1744 Elections Cb. 374PRECINCT BOUN
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a political subdivision must use a
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1 the genClal election. In the cass
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s1 eligible eleetot. except an elec
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SECTION L In Colorado Revised Statu
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t;nr·'•1'I~ .,2345678910II121314
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STATE OFCOLORADODepartment of State
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MAY NOT HAVE ACCESS TO CONFIDENTIAL
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must complete a VOTER ASSISTANCE FO
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Amendments to Rule 12.4.l(b)(2):New
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WITH THE DEADLINES IN SECTION 1-8.3
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26.13.2 THE COUNTY CLERK. AND RECOR
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(L)(M)A VALID VETERAN IDENTIFICATIO
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(C)REQUESTING NEW LOGS OR REPORTS T
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41.68.2 The CANVASS BOARD MUST USE
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42.1 1 .2 If the designated electio
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STATE OFCOLORADODepartment of State
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inactive - failed to vote electors
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4. Section l-8-115(5)(d), C.RS., (2
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