1437 Bannock St . Denver , Colorado 80202 - Brennan Center for ...
1437 Bannock St . Denver , Colorado 80202 - Brennan Center for ... 1437 Bannock St . Denver , Colorado 80202 - Brennan Center for ...
must be treated equally. If Boulder and Denver choose to use mail ballots, then inactive-failed tovote electors in both counties are entitled to be treated in a similar manner.Clerk Johnson contends that the Secretary uses uniformity to exclude eligible voters.(Clerk’s Motion for Summary Judgment, p. 25) This argument implies that the Secretaryprevents “inactive-failed to vote” electors from voting. This argument is without merit. Theseindividuals are notified long before the election. In addition, they may cast ballots. The onlydifference is that they are required to vote at a polling place.Next, Clerk Johnson states that the Secretary contributed to lack of uniformity because hefailed to monitor the statewide voter registration system in changes from inactive-failed to voteto active voter in El Paso county. (Clerk’s Motion for Summary Judgment, p. 26) She implies,without an iota of proof, that they El Paso county officials unilaterally changed the informationwithout a request from the elector.Clerk Johnson argues that the Secretary claimed injury to the voter registration list.(Clerk’s Motion for Summary Judgment, p. 26) This statement is incorrect. The Secretary citeda case that discussed registration lists for the proposition that the state has the power to changethe status of voters who did not vote in the previous general election.Clerk Johnson also cites Judge Whitney’s ruling with respect to irreparable injury. JudgeWhitney’s ruling was based almost entirely on his rejection of the state’s uniformity argument.He stated:But when I look at irreparable injury and how uniformity comesinto this, I’m also advised that the law that just sunset (sic),itallowed Denver to do exactly what it just did, and it sunset, andthere was a reason for that law, and there was a reason for thesunset of it. But if it was good for five years, I can’t imagine howit’s going to create an irreparable injury if it’s done one more time.And between now and the next election it’s reparable.34
You go back to the legislature. You have them change the statute.You implement a rule from the Secretary of State’s Office and thenyou litigate that issue before the next election. All of theuniformity questions that came out here are reparable(Exhibit 15, p. 89, ll.12-24 Clerk Johnson’s Motion for Summary Judgment). Judge Whitneyseemingly held that a violation of the uniform application of the law is not irreparable becausethe Secretary can return to the legislature for clarification or go to court. This ruling results in anon sequitur. A violation of existing law is not irreparable because the existing law can bechanged. Moreover, Judge Whitney did not address in any detail the Secretary’s concerns aboutpotential fraud.Balance of harms This factor favors the Secretary. Section 1-7.5-106(2), C.R.S. (2012) makesclerks agents of the Secretary to carry out the provisions of the Mail Ballot Election Act. Assuch, clerks do not have the authority to act in a manner inconsistent with the rules or orders ofthe Secretary for purposes of implementing the statute.Public Interest This factor also favors the Secretary. The public interest lies in ensuring thatpublic officials comply with statutes and that the Election Code is applied uniformly throughoutthe state.CONCLUSIONFor the aforementioned reasons, the Court must enter summary judgment as follows:Declare that Clerk Johnson must obey the rules, orders and directives of the Secretary,even if she believes them to be illegal or unconstitutional;Declare that the Election Laws must be applied uniformly throughout the State;Declare that Clerk Johnson does not have discretion to mail ballots under the Mail BallotAct to voters who are designated as “inactive-failed to vote”;35
- Page 1 and 2: DISTRICT COURT, CITY AND COUNTY OF
- Page 3 and 4: • Clerk Johnson contests the Secr
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- 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
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- 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
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- 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
- Page 53 and 54: 1742EFILED DocumentEFILED CO Denver
- Page 55 and 56: 1744 Elections Cb. 374PRECINCT BOUN
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- Page 67 and 68: STATE OFCOLORADODepartment of State
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- Page 75 and 76: WITH THE DEADLINES IN SECTION 1-8.3
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- Page 79 and 80: (L)(M)A VALID VETERAN IDENTIFICATIO
- Page 81 and 82: (C)REQUESTING NEW LOGS OR REPORTS T
- Page 83 and 84: 41.68.2 The CANVASS BOARD MUST USE
must be treated equally. If Boulder and <strong>Denver</strong> choose to use mail ballots, then inactive-failed tovote electors in both counties are entitled to be treated in a similar manner.Clerk Johnson contends that the Secretary uses uni<strong>for</strong>mity to exclude eligible voters.(Clerk’s Motion <strong>for</strong> Summary Judgment, p. 25) This argument implies that the Secretaryprevents “inactive-failed to vote” electors from voting. This argument is without merit. Theseindividuals are notified long be<strong>for</strong>e the election. In addition, they may cast ballots. The onlydifference is that they are required to vote at a polling place.Next, Clerk Johnson states that the Secretary contributed to lack of uni<strong>for</strong>mity because hefailed to monitor the statewide voter registration system in changes from inactive-failed to voteto active voter in El Paso county. (Clerk’s Motion <strong>for</strong> Summary Judgment, p. 26) She implies,without an iota of proof, that they El Paso county officials unilaterally changed the in<strong>for</strong>mationwithout a request from the elector.Clerk Johnson argues that the Secretary claimed injury to the voter registration list.(Clerk’s Motion <strong>for</strong> Summary Judgment, p. 26) This statement is incorrect. The Secretary citeda case that discussed registration lists <strong>for</strong> the proposition that the state has the power to changethe status of voters who did not vote in the previous general election.Clerk Johnson also cites Judge Whitney’s ruling with respect to irreparable injury. JudgeWhitney’s ruling was based almost entirely on his rejection of the state’s uni<strong>for</strong>mity argument.He stated:But when I look at irreparable injury and how uni<strong>for</strong>mity comesinto this, I’m also advised that the law that just sunset (sic),itallowed <strong>Denver</strong> to do exactly what it just did, and it sunset, andthere was a reason <strong>for</strong> that law, and there was a reason <strong>for</strong> thesunset of it. But if it was good <strong>for</strong> five years, I can’t imagine howit’s going to create an irreparable injury if it’s done one more time.And between now and the next election it’s reparable.34
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