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

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