20141229, sec'ty's motion to dismiss_final

8/10/2019 20141229, Sec'Ty's Motion to Dismiss_Final

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DISTRICT COURT, ADAMS COUNTY,

COLORADO

1100 Judicial Center Drive

Brighton, Colorado 80601

G. KAREN JAYNE SCHINDLER, JAMES

SCHINDLER, GARY MIKES, JOHN SAMPSON,

PHILLIP ELLSWORTH, and BEVERLY BERG,

individual residents of Colorado,

Plaintiffs,

v.

KAREN LONG, in her official capacity as Adams

County Clerk and Recorder, and SCOTT

GESSLER, in his official capacity as Colorado

Secretary of State,

Defendants. COURT USE ONLY

JOHN W. SUTHERS, Attorney General

LEEANN MORRILL, First Assistant Attorney

General, 38742*

MATTHEW D. GROVE, Assistant Solicitor

General, 34269*

SUEANNA P. JOHNSON, Assistant Attorney

General, 34840*

Ralph L. Carr Colorado Judicial Center

1300 Broadway, 6thFloor

Denver, CO 80203

Telephone: (720) 508-6159 / 6157 / 6155

FAX: (720) 508-6041

E-Mail: [email protected]

[email protected]

[email protected]*Counsel of Record

Case No. 2014 CV 32288

Div.: W

THE SECRETARYSMOTION TO DISMISS

PLAINTIFFSFIRST AND SECOND CLAIMS FOR RELIEF
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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SCOTT GESSLER, in his official capacity as Colorado Secretary of State (the

Secretary), by and through undersigned counsel, hereby submits this C.R.C.P.

12(b)(1) and 12(b)(5) Motion to Dismiss Plaintiffs First and Second Claims for

Relief, and as grounds therefore, states the following:

Certificate of Compliance under C.R.C.P. 121, 1-15(8)

Undersigned counsels have conferred with counsel for Plaintiffs, who oppose

the relief requested herein.

INTRODUCTION

Plaintiffs seek the extraordinary relief of voiding the Adams County 2014

general election results in their entirety. The basis for their challenge is purely

technical. Plaintiffs allege that the majority of mail ballots issued and voted in

Adams County were illegal votes because a unique number was erroneously printed

on the face of the ballots that could allowvoted ballots to be connected with

individual voters. They argue that the use of marked ballots violated the Colorado

Constitutions directive that elections be conducted in a manner whereby secrecy in

voting is preserved,and warrants setting aside the results of the election.1 And,

despite Plaintiffsfailure to allege that secrecy in voting was not, in fact, preserved

much less that any fraud, voter intimidation, voter suppression, or other

intentional misconduct occurredthey seek to not only disenfranchise everyAdams

1COLO.CONST.,Art. VII, 8.


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County voter who participated in the election, but also to deprive rightfully elected

candidates of the opportunity to take office.

Plaintiffs ground their claim in an asserted individual right to absolute ballot

secrecy that does not exist in Colorado. Our Supreme Court does not now, nor has

it ever, declared that Colorado voters have an unqualified individual right to an

absolutely secret ballot. And just as importantly, absent unusual circumstances

under which the outright denial of secrecy in voting permeates the election and

prevents electors from voting their conscience, our Supreme Court has never

determined that voiding an election is the appropriate remedy. Plaintiffs fail to

allegeand will be unable to provethat any such circumstances are present here.

PlaintiffsComplaint must be dismissed. First, and foremost, because it fails

to allege that secrecy in voting was not preserved in Adams County and, therefore,

fails to allege an injury in fact sufficient to confer standing. Second, because

Plaintiffs claims arejurisdictionally barred. This action, in all material respects, is

an election contest that was filed past the statutory deadline, involves contests over

which this Court lacks jurisdiction, or both. And finally, the Complaint fails to

state a claim upon which relief may be granted because it does not allege fraud or

other intentional misconduct that call into question the integrity of the election. As

a result, controlling Supreme Court precedent dictates that there is no factual basis

for this Court to even consider setting aside the results of the 2014 General Election

in Adams County.


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FACTUAL BACKGROUND

Colorado law required the 2014 General Election to be conducted by all-mail

ballot in each of the states 64 counties.2 The Secretary has the power to supervise

the conduct of elections, as administered and carried out by the various county

clerks.3 County clerks are the chief election officers in their particular jurisdictions,

and act as the designated election officials for all coordinated elections.4 A

designated election official is defined, in part, as the secretary of state, county

clerk and recorder, or other person designated by the governing body as the person

who is responsible for the running of an election. 5

In accordance with the Mail Ballot Election Act, mail ballots must be sent to

electors no sooner than twenty-two days and no later than eighteen days before the

date of the election.6 The 2014 General Election was held on Tuesday, November 4;

county clerks mailed ballots between October 14 and 17.7 Except for certain

overseas voters, every voter was required to return his or her mail ballot to the

2See 1-7.5-101 through 210, C.R.S. (Mail Ballot Election Act); 1-1-101

through 1-13-803, C.R.S. (Election Code); and 8 CCR 1501-1 (Election Rules); see

also Compl., at 21.

3 1-1-107(1)(a), C.R.S.; see also Compl., at 16.

4 1-1-110(3), C.R.S.; see also Compl., at 15, 38.

5 1-1-104(8), C.R.S.

6 1-7.5-107(3)(a)(I), C.R.S.; see also Election Rule 7.2.3.

7 1-7.5-103(3), C.R.S. (election day is defined as the date established by law or

determined by a governing body or political subdivision as the final day upon which

ballot must be received).


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appropriate county clerks office by 7 p.m. on November 4.8 Colorado also has early

voting, and county clerks are required to provide voter service and polling centers

(VSPC) for in-person voting or stand-alone drop-off box locations prior to Election

Day.9 County clerks may begin counting received mail ballots fifteen days before

Election Dayhere, October 20but may not disclose any results until after 7 p.m.

on Election Day.10

After processing and counting ballots is completed, county clerks and the

Secretary must follow fixed statutory deadlines for certifying the election results.

The eighth day after the electionNovember 12was the last day for voters to cure

signature discrepancies on mail ballot return envelopes or to provide missing

identification; it was also the last day for clerks to resolve household swaps ( i.e., a

husband mistakenly placing his ballot in his wifes return envelope).11 The

fourteenth day after the electionNovember 18was the last day for clerks to

verify and count provisional ballots.12 The county canvass boards, comprised of the

county clerk and members appointed by the county chairpersons for the major

8 1-7.5-107(4)(b)(II), C.R.S.; see also Election Rule 7.5 (governing procedures for

receipt and processing of ballots).

9 1-5-102.9(2), C.R.S. VSPCs open from October 20 to November 4); see also

Election Rule 7.9 (rules governing VSPCs); 1-5-102.9(4)(b)(I)(B), C.R.S. (drop-offboxes in large counties available starting November 1.

10 1-7.5-107.5, C.R.S.

11 1-7.5-107(3.5)(d); 1-7.5-107.3(2)(a); 1-8.5-105(3)(a), C.R.S.; Election Rule 7.6.1.

12 1-8.5-105(5), C.R.S.; Election Rule 17.


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political parties, must meet and certify the election results for the county by the

seventeenth day after the electionNovember 21.13 The county canvass boards

duties are ministerial in nature, as they: (1) confirm that the number of ballots

received does not exceed the number of ballots cast; (2) reconcile the ballots casts in

individual precincts to confirm that the number of ballots cast does not exceed the

number of registered electors; and (3) certify the abstract of votes cast, or if the

majority of the canvass board cannot certify the results for any reason, it must

nonetheless send the noncertified abstract of votes with a report detailing the

reasons for the non-certification to the Secretary.14 Even if the canvass board

determines that the method for certifying the returns does not conform to the

requirements of law, the returns shall neverthelessbe canvassed if they are

sufficiently explicit in showing how many votes were cast for each candidate, ballot

question or ballot issue.15 Here, the Adams County Canvass Board met and

certified the Adams County abstract of votes cast on November 19, 2014.16

The Secretary must compile election returns from all counties no later than

the thirtieth day following the electionDecember 4and announce the official

13 1-10-102(1), C.R.S.; see also Election Rule 10; Compl., at 22, 31.

14 1-1-101.5(a) through (c), C.R.S.; see also Compl., at 23-28.

15 1-10-104(1), C.R.S. (emphasis added); see also Compl., at 24.

16Compl.,at 51, 57. The official abstract of votes cast for Adams County is dated

November 19, 2014 and is available at

http://adcogov.org/DocumentCenter/View/6163(last accessed December 24, 2014).
http://adcogov.org/DocumentCenter/View/6163http://adcogov.org/DocumentCenter/View/6163http://adcogov.org/DocumentCenter/View/6163


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statewide abstract of votes cast.17 An interested party must seek a recount of the

election results by the thirty-first day after Election Day here, December 5.18 If a

person seeks to contest the election results, the provisions of Sections 1-11-201

through 311 of the Election Code govern such actions.

Following the preparation of the official statewide abstract of votes cast, the

Secretary must transmit certificates of election to the national, state, and district

offices of state concern, as well as transmit to the speaker of the house a certified

list of candidates elected to each office.19 The Secretary transmitted a certified list

of: candidates elected to the U.S. Senate and House of Representatives on

December 8; candidates elected to state executive offices and passing statewide

ballot questions/issues on December 5; candidates elected to the office of University

of Colorado Regent, the Colorado Board of Education, and the Regional

Transportation District on December 9; candidates elected to the Colorado Senate

and House of Representatives on December 10; and candidates elected for judicial

retention on December 9. Additionally, the 114thUnited States Congress must

convene by January 6, 2015, the Colorado General Assembly must convene by

17 1-10-103(2), C.R.S.; see also 1-10-102(1), C.R.S.; Compl., at 63.

18 1-10.5-106(2), C.R.S.

19 1-11-105, C.R.S. (national, statewide, and district offices); 1-11-106, C.R.S.

(list of elected members of the General Assembly).


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January 14, 2015, and new statewide officials must assume office commencing on

January 13, 2015.20

On December 11, 2014, Clerk and Recorder Karen Long (Clerk Long)issued

a press release notifying the public for the first time that, during the processing and

counting of mail ballots, she discovered that a unique number mistakenly printed

on the ballots by the countys vendor couldpotentiallybe connected to a voters

identity.21 The press release indicated that Clerk Long first learned of this printing

error four days into the counting processaround October 24but decided not to

publicly announce the error until ballots would be accessible under the Colorado

Open Records Act, 24-72-200.1 through 206, C.R.S. (CORA).22 She also did not

immediately report the printing error to the Secretary as required by Election

20See U.S. CONST. amend. XX, 2; COLO.CONST. Art. V, 7; COLO.CONST. Art. IV,

1. The various national officers, statewide officers, judicial officers, and statewide

ballot questions/issues appearing on the 2014 General Election ballot for Adams

County included the following: (i) United States Senator and United States

Representatives for the 4th, 6thand 7thCongressional Districts; (ii) Governor,

Secretary of State, Treasurer, and Attorney General; (iii) State Senate District 24,

State Representatives for Districts 30, 31, 32, 34, 35, and 56; (iv) State Board of

Education for District 7 and Regents for the University of Colorado Congressional

Districts 6 and 7; (v) Retention for Justices Brian Boatright and Monica Marquez,

Court of Appeals Judges Terry Fox and Alan Loeb, and 17th

Judicial District CourtJudges Robert W. Kiesnowski, Jr., Ted C. Tow, Francis C. Wasserman, John E.

Popovich, Mark D. Warner, and Craig Welling; and (vi) Amendments 67 and 68 and

Propositions 104 and 105.

21Compl., atExhibit 1; Compl., at 66.

22Compl., at 67-70; Compl., at Exhibit 1.


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Rule 4.8.5.23 Clerk Long further stated in the press release: At no timeduring the

counting process was the identity of any Adams County voter compromised.24 She

also assured voters that she had implemented a solution with the vendor to redact

the unique number from each mail ballot before any ballot would be publicly

disclosed through a CORA request.25

Plaintiffs initiated this action against the Secretary and Clerk Long on

December 16, 201426, alleging, inter alia, that the permanent printing of a unique

number on mail ballots in Adams County violated the secrecy in voting provision of

COLO.CONST., Art. VII, 8.27 The Plaintiffs are six registered electors from Adams

County, all of whom voted in the 2014 General Election, four of whom were

members of the Adams County Canvass Board (Mr. Mikes, Mr. Sampson, Mr.

Ellsworth, and Ms. Berg), and two of whom voted by mail ballot (Mr. and Ms.

Schindler).28 Plaintiffs further allege that had the four canvass board members

23Compl., at 72.

24Compl., atExhibit 1 (emphasis added).

25

Id.26Plaintiffs filed their First Amended Complaint on December 26, 2014. All

references and citations to the Complaint in this motion are to the First Amended

Complaint.

27Compl., at 77.

28Compl., at 9-14.


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known about the printing error at the time they met, they would not have certified

the Adams County election results.29

Plaintiffs assert five claims for relief: (1) violation of secrecy in voting against

Clerk Long30along with a request that the Court declare the results of all races in

Adams void ab initio, including the results for statewide officers, statewide ballot

questions and issues, General Assembly officers, and national officers for which the

Secretary has the sole duty and authority to certify; (2) a request for writs of

mandamus under C.R.C.P. 106(a)(2) against Clerk Long and the Secretary, which

seek to enjoin Clerk Long and the Secretary from certifying of the abstract of votes

cast and issuing certificates of election to newly elected officers31; and (3) three

claims under 42 U.S.C. 1983 for violation of their federally secured rights against

only Clerk Long.32 Despite the pending deadlines for numerous county, statewide,

and national officers to assume office, Plaintiffs have failed to request any expedited

29Compl.at 78-79.

30Although the first claim is asserted against only Clerk Long, Plaintiffs ask this

Court to void election results for races that only the Secretary has the authority and

duty to certify under the Election Code, see 1-10-105(1), C.R.S., and to order new

elections for statewide officers, statewide ballot questions and issues, General

Assembly officers, and national officers. As a result, it is appropriateand

necessaryfor the Secretary to respond to the first claim for relief.

31It is not entirely clear to the Secretary the effect or necessity of the second claim

for relief, given that if this Court were to declare the results of the Adams County

General Election void ab initio, any certifications of the abstract of votes cast issued

by Clerk Long and the Secretary and certificates of election ostensibly would be void

as well.32Id.at 84-114.


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relief or hearing, or take any action that would fast-track this matter on the Courts

docket.33

ARGUMENT

I. This case should be dismissed for lack of jurisdiction under

C.R.C.P. 12(b)(1).

A. Plaintiffs lack standing because they failed to allege an

injury in fact to a legally protected interest.

Plaintiffs claim that their right to secrecy in voting under the Colorado

Constitution was violated by the use of mail ballots that bore a permanently

printed number that allows each such marked mail ballot to be connected to an

individual voter. Compl.,at 2. 66-70, 77; Compl., atExhibit 1. To constitute a

cognizable injury in fact, Colorado law requires Plaintiffs to have suffered an injury

that is actual and concrete, not hypothetical or conjectural. Plaintiffs alleged injury

here is based solely on the mere potential that a violation of secrecy in voting could

have occurred, which is too indirect and speculative to confer standing. Indeed,

none of the factual allegations contend that Plaintiffs secrecy in voting was actually

violated.

33On December 18, 2014, Judge Mark D. Warner issued an order recusing from this

matter, as he was on the ballot for retention as a state district court judge in Adams

County. Based on discussions that undersigned counsel had with an Adams County

clerk, this matter is to be re-assigned to a senior judge on December 29.

Contemporaneous with this Motion, the Secretary files a Motion for Expedited

Briefing Schedule and Forthwith Oral Argument on Motion to Dismiss, which seeks

expedited consideration of this motion, and/or alternatively, an immediate case

management conference to set deadlines for the expedited resolution of this matter.


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The Complaint also failed to allege an injury in fact to a legally protected

interest because the constitutional mandate that secrecy in voting be preserved

does not equate to an individual right to absolute ballot secrecy. The Colorado

Constitution acknowledges as much by virtue of its prohibition on the revelation of

information discovered by election officials during the conduct of an election. COLO.

CONST.,Art. VII, 8 (The election officers shall be sworn or affirmed not to inquire

or disclose how any elector shall have voted.). This acknowledgement balances the

need for election officials to play an integral part in the administration of elections

with the need to preserve secrecy in voting. Furthermore, the constitutional

directive to preserve secrecy in voting is intended to guard against the public

disclosure of how electors voted.

i. Standard of Review.

To establish standing under Colorado law, Plaintiffs must demonstrate that

they: (1) suffered an injury in fact; and (2) the injury in fact was to a legally

protected interest as contemplated by statutory or constitutional provisions.

Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77 (November 24,

2014) (FFRF); see also Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977). This

two-prong test has become the general test for standing in Colorado because of its

application to a variety of contexts. See FFRF2014 CO 77 at 8; see also Brotman

v. East Lake Creek Ranch, LLP, 31 P.3d 886, 890 (Colo. 2001). If a court determines

that standing does not exist, it must dismiss the case. FFRF, 2014 CO 77 at 7.


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To satisfy the first prong, the alleged injury must be direct, palpable, and

tangible. See Olson v. City of Golden, 53 P.3d 747, 752 (Colo. App. 2002); see also

Mt. Emmons Mining Co. v. Crested Butte, 690 P.2d 231, 240 (Colo. 1984). Although

tangible and intangible injuries may satisfy the injury-in-fact requirement, an

injury that is overly indirect and incidental, or the remote possibility of a future

injury are insufficient to confer standing. FFRF,2014 CO 77 at 9; see also

Brotman, 31 P.3d at 891.

ii. Plaintiffs own factual allegations establish that

secrecy in voting waspreserved in Adams County.

Article VII of the Colorado Constitution governs suffrage and elections, and

Section 8 of same specifically governs elections by ballot or voting machine. The

constitution does prohibit paper ballots from being marked in any way whereby the

ballot can be identified as the ballot of the person casting it. COLO.CONST.,Art.

VII, 8. Likewise, it directs that secrecy in voting must be preserved. Id.

Plaintiffs factual allegations, which must be accepted as true at this stage,

establish that a printing errorcaused Adams County mail ballots to be marked

with unique identifiers that could allow voted ballots to be connected with

individual voters. Compl., at 66, 68. They further allege that the printing error

was first discovered by Clerk Long on or about October 24, 2014, but was not

publicly disclosed by Clerk Long until December 10, 2014. Compl., at 68-69, 66,

70; Compl., atExhibit 1.


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Notably, however, the two Plaintiffs who voted by mail ballot in the 2014

General ElectionMs. and Mr. Schindlerdid not allege that the unique numbers

marked on their mail bail ballots were actually used by anyone to connect them

with their voted ballots and that how they voted has been publicly disclosed. As a

result, neither mail ballot Plaintiff has alleged that their secrecy in voting was not

preserved. Similarly, neither mail ballot Plaintiff has alleged that anyone other

than Adams County election officialswho are sworn and affirmednot to inquire

or disclose how any elector shall have votedhas access to the information needed

to connect the unique numbers marked on their ballots with them as the individuals

who cast the ballots. Finally, neither mail ballot Plaintiff has alleged that anyone

with access to such information has threatened to use it to connect them with their

voted mail ballots and to publicly disclose how they voted. Instead, the mail ballot

Plaintiffs rely solely on the allegation that the unique numbers marked on Adams

County mail ballots could allowvoted ballots to be connected with individual

voters. Compl., at 66 (emphasis added). The mere potential for a violation of

secrecy in voting, without more, is simply too speculative to confer standing. FFRF,

2014 CO 77 at 9.

In a factually analogous case, Citizen Center v. Gessler et al., 770 F.3d 900

(10th Cir. 2014), an organizational plaintiff brought various federal and Colorado

constitutional claims alleging that its members right to secrecy in voting was

violated because a uniquely identifying barcode was printed on ballots in six


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Colorado counties during the 2012 General Election. Citizen Center argued that

the barcodes created the theoretical potentialfor clerks or other election officials to

trace voted ballots back to individual voters. Id., at 911. The plaintiff also argued

that the constitutional safeguards forbidding election officials from inquiring or

disclosing how an elector voted were insufficient because the prohibition might be

ignored. Id. In rejecting the mere potential for the built-in safeguards to be ignored

as a sufficient basis for standing, the Tenth Circuit reasoned that such a possibility

is speculative, and noted that Citizen Center did not allege that (1) any of its

members voted ballots had actually been traced back to them using the barcodes; or

(2) election officials were likely to trace any of its members voted ballots. Id.

Citizen Center also argued that it had standing because it was inevitable

that its members voted ballots would be traced. Id., at 912. The Tenth Circuit

likewise rejected this contention stating that its members can only speculate about

this possibility, which may never take place, and found the injury too remote to

confer standing because the following steps would be needed before it would occur:

(1) at least one member of Citizen Center voted; (2) one of the clerks traced that

members ballot; and (3) the clerk inquired into (and possibly revealed) the electoral

choices after tracing the ballot. Id. As a result, the Tenth Circuit upheld the

district courts dismissal of Citizen Centersfederal claims involving members


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rights to vote, free speech and association, and substantive due process for lack of

standing. Id. at 904.34

Like the plaintiff in Citizen Center, Plaintiffs alleged injury in this case

hinges on two purely speculative words, could allow,and not on any actual or

concrete injury particular to themselves as Adams County voters. For this Court to

accept such a speculative basis for standing in a case where the results of Adams

Countys election hang in the balance, is to subscribe to a strict liability theory of

the constitutional prohibition on marked ballots even where, as here, Plaintiffs have

utterly failed to allege that their secrecy in voting was not, in fact, preserved.

There is, however, no basis under Colorado law for this Court to waive the injury in

fact requirement and, therefore, Plaintiffs first and second claims must be

dismissed for lack of standing.

iii.

The directive that secrecy in voting bepreserved does not guarantee secrecy with

respect to election officials.

COLO.CONST. art VII, 8, states: All elections by the people shall be by

ballot, and in case paper ballots are required to be used, no ballots shall be marked

in any way whereby the ballot can be identified as the ballot of the person casting

it. Section 8 further states: The election officers shall be swornnot to inquire or

disclose how any elector shall have voted. Id.(emphasis added). The

34One of Citizen Centers claims is still pending, but it is not one that is at issue

here.


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constitutional prohibition on disclosure of how an elector voted expressly

contemplates the possibility that election officials may discover how a particular

elector voted in carrying out their duties and expressly safeguards against the

disclosure of same. As a result, the directive that secrecy in voting be preserved

cannot be absolute and Plaintiffs have failed to allege an injury in fact to a legally

protected interest.

The built-in safeguard is also supported by implementing legislation that

requires election officials to swear an oath that is consistent with the constitution.

See 1-6-114(1), C.R.S. (oath requires election judges to attest that they will not

attempt to discern how an individual voted or disclose the same except to a court

competent jurisdiction). The Election Code also criminalizes the act of disclosing

how any other person voted. See 1-13-712(4), C.R.S. (violation of this provision is

considered a misdemeanor); see also 1-13-111, C.R.S. (violation of 1-13-712(3)

may be punishable by imposition of a fine of not more than one thousand dollars,

imprisonment in county jail for no longer than one year, or both). Because the

Colorado Constitution and Colorado statutes governing elections expressly

contemplate that election officials may discover how an individual voter voted, the

directive that secrecy in voting be preserved cannot be absolute.

Furthermore, thepotentialfor an election official to discover how an

individual voted is present in every mail ballot election. For example, mail ballots

may include detachable stubs that contain unique identifying numbers, but they are


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not required to be used. 1-5-407(1.6), C.R.S. Ballots may also contain printed or

distinguishing marks, so long as secrecy in voting is protected. Id. Before a mail

ballot is separated from the return envelope, the election officials tasked with

handling the ballot have access to all of the information necessary to discern how

the elector voted because each return envelope must be signed by the person who

voted the enclosed ballot. 1-7.5-107(3)(b.5)(1) and (II), C.R.S. Additionally, a

return envelope is not required to include a flap shielding the voters signature from

plain sight. 1-7.5-107.5(3)(b.5)(III), C.R.S.

Therefore, once the mail ballot is marked and the elector signs the envelope,

thepotentialis present for an election official to discover how that person voted.

And, although both statute and the Secretarys Election Rules provide procedural

safeguards for signature verification and the separation of ballots from return

envelopes and secrecy sleeves, thepotentialfor an election official or watcher to

discern how an individual votedwhether inadvertently or unintentionallystill

exists. See 1-7.5-107.3, C.R.S. (governing signature verification); see alsoElection

Rule 7.8 (governing signature verification and separating mail ballots from the

return envelopes).

Likewise, other statutory provisions designed to assist certain voters with

casting their ballots create thepotentialfor election officials to discern how those

electors voted. For example, under the Uniform Military and Overseas Voters Act,

a covered voter may return a voted ballot by regular mail or electronic transmission,


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without the benefit of the secrecy sleeve or other procedural protections, and must

expressly waive his or her right to secrecy in voting to do so. 1-8.3-113, C.R.S.;

Election Rule 16.2.3. Voters who need assistance in filling out their ballots also

typically reveal their choices to the assisting election official. See 1-7-113, C.R.S.

(individuals who require assistance due to disability, inability to read or write, or

difficulties with English may request an election judge or any person of that

electors choosing to assist in voting); Election Rule 7.12 (requiring that notice is

posted at all voter service and polling centers notifying voters of the assistance

available); 1-7.5-113, C.R.S. (if a group or residential facility does not have a direct

mail box, a representative of the clerk, and if available, a member appointed by

each of the major political parties may deliver ballots and return the voted ballots to

the county clerk).

Because there are numerous instances during the conduct of an election in

which election officials may discover how individuals voted, it is insufficient for

standing purposes to simply allege a violation of secrecy in voting based on the mere

potentialthat a number printed on the ballot maybe traced back to the voter. See

Nelson v. Miller, 170 F.3d 641, 653 (6th Cir. 1999) (upholding a state law that

permitted election officials to assist blind voters in marking ballots from a challenge

that it violated ballot secrecy); United States v. Exec. Comm. of the Democratic Party

of Greene County, 254 F. Supp. 543, 546-47 (N.D. Ala. 1996) (the right of ballot

secrecy is not violated when aid workers are allowed to assist individuals unable to


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mark their ballots);Peterson v. City of San Diego, 666 P.2d 975, 1983 (rejecting the

claim that mail ballots violates the right of ballot secrecy); Sawyer v. Chapman, 729

P.2d 1220, 1224 (Kan. 1986) (same).

Here, the Complaint is devoid of any allegation that election officials were

able to discernor in fact discovered or disclosed, or even intend to discover or

disclosehow any particular Adams County elector actually voted. Instead,

Plaintiffs allege that Clerk Long knew about the unique number printed in error on

the ballot and did not disclose the error to the canvass board, and that the canvass

board member Plaintiffs would have opposed certification if they had known.

Compl., at 69, 71, 74-75.

However, even accepting these allegations as true, they are immaterial to the

question of whether Plaintiffs have standing to pursue their first and second claims

for relief. As explained above, election returns must still be canvassed if they are

sufficiently explicit in showing how many votes were cast for each candidate, ballot

question or ballot issue,and regardless of whether, in the course of their duties,

the canvass boardfinds that the method of making or certifying returns from any

precinct, county, or district does not conform to the requirements of law[.] 1-10-

104(1), C.R.S. The canvass boards accounting function is, therefore, a ministerial

one that must be completed if original return tallies exist from which it may work.

If the canvass board can perform its accounting function and is able to reconcile the

original tallies with its tallies, then it must certify the abstract of votes cast in any


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election[.] 1-1-101.5(a) through (c), C.R.S.; see also Compl., at 23-28. Simply

put, the canvass board is not vested with statutory authority to refuse to certify the

results of county races based on the alleged violation of any constitutional or

statutory provision.

And, when the majority of the canvass board is unable to certify the abstract

of votes cast for any reason, the canvass board must still transmit the noncertified

abstract of votes to the secretary of state along with a written report detailing the

reason for noncertification. Id. Nowhere do Plaintiffs allegenor can they cite to

any legal authoritythat noncertified results for a particular county in any way

affect the Secretarys authority to certify the statewide abstract of votes cast. As

such, Plaintiffs lack standing because they failed to allege an injury in fact to a

legally protected interest.

iv.

The directive that secrecy in voting bepreservedprotects against thepublic disclosure

of how a particular individual voted.

While the directive that secrecy in voting be preserved does not guarantee

secrecy with respect to election officials, it is intended to protect against public

disclosure of how electors voted. Marks v. Koch, 284 P.3d 118, 122 (Colo. App.

2011), cert. denied as improvidently granted(June 21, 2012). InKoch, the Court of

Appeals analyzed the same constitutional provision raised by PlaintiffsArt. VII,

8and held: the phrase secrecy in votingprotects frompublic disclosurethe

identity of an individual voter and any content of the voter's ballot that could


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identify the voter. Id., (internal quotation omitted) (emphasis added). At issue in

Kochwas whether providing public access to voted ballots under CORA without also

providing identifying voter information was permissible. The appellate court held

that [t]he content of a ballot is notprotectedwhen the identity of the voter cannot

be discerned from the face of that ballot. Id.

FollowingKochin 2012, the General Assembly amended CORA to allow for

the public release of voted ballots provided that any identifying voter information is

first redacted by the county clerk. 24-72-205.5(4)(b)(II), C.R.S. (provisions for the

release and redaction of information on voted ballots before public disclosure); 24-

72-205.5(3)(a), C.R.S. (providing that voted ballots may not be publicly disclosed

between the forty-fifth day before an election and the last day on which a county

clerk must certify the abstract of votes cast, or following a recount, whichever

deadline is later). The CORA amendment balances the constitutional directive that

secrecy in voting be preserved with publics interest in access to voted ballots as

public records. The existing statutory scheme protects secrecy in voting because it

requires county clerks to review voted ballots to determine whether they contain

information that could result in the ballot being traceable and, if so, to redact that

information before public disclosure. The Secretary likewise promulgated rules that

require county clerks to redact any unique numbers or barcodes before producing

copies of ballots under CORA. See Election Rule 4.8.4(c).


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In Clerk Longs press release which was specifically incorporated into the

Complaint as Exhibit 1 to sameshe specifically invoked the statutory safeguard

where she stated that unique number printed on Adams County mail ballots due to

a printer error will be redacted before the production of any voted ballots in

response to a CORA request. Adams County electors secrecyin voting has been

and will continue to be preserved by operation of existing Colorado law, which

obviates the need for this Court to even consider whether to award the drastic

remedy of voiding the countys election results in their entirety. Once again,

Plaintiffs lack standing because they failed to allege an injury in fact to a legally

protected interest.

B. This action is jurisdictionally barred because it should

have been brought as an election contest.

Plaintiffs argue that this action could not have been brought under the

statutory provision for an election contest, as the printing of permanent identifying

markings on mail ballots is not included among the enumerated permissible

grounds for an election contest under C.R.S. 1-11-201. Compl.at 88. Plaintiffs

further argue that any statutory deadline to file an election contest is inapplicable

here, as this cause of action did not begin to accrue under 13-80-108(8), C.R.S.,

until December 10, 2014 when Clerk Long ceased to conceal the secrecy violation at

issue in this case. Compl.at 89. Plaintiffs contentions are without merit. The


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Complaint is jurisdictionally time barred; moreover, the district court has no

jurisdiction to adjudicate election contests for certain races.

i. Plaintiffs are contesting the results ofallraces in

Adams County, which requires them to initiate

multiple election contests, several of which are

time barred.

For candidate contests, a person may challenge the election results on the

following grounds:

a.

The candidate elected is not eligible to hold the office for which he orshe was elected;

b. Illegal votes were received or legal votes rejected at the polls in

sufficient numbers to change the result of the election;

c. An election judge or canvass board made an error in counting or

declaring the result of an election that changed the outcome of the

election;

d. An election judge, canvass board, or member of a canvass board has

committed malconduct, fraud, or corruption that changed the results ofthe election; or

e. For any reason, another candidate was legally elected to the office.

1-11-201(1)(a) through (e), C.R.S. Except for (a) and (e) above, those same

challenges are available for ballot issues or questions. 1-11-201(3)(a-c), C.R.S.

Plaintiffs first and second claims fall under the broadly worded provisions of

1-11-201(1)(b) and (c), and 11-1-201(3)(a) and (b), C.R.S. Plaintiffs claim that

secrecy in voting was violated because the majority of mail ballots issued to voters

was marked with a theoretically traceable unique number and, therefore, all of the


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marked ballots cast in Adams County were illegal votes received at the polls in

sufficient numbers to change the results of the election. Compl., at 66,74-75,84-

86; 1-11-201(2)(b) and (3)(a), C.R.S. Plaintiffs also contend that election judges

and canvass board members made an error indeclaring the result of each Adams

County race because they did so based on the acceptance and counting of illegal

mail ballots that had been marked with unique numbers that could allow voted

ballots to be connected with individual voters. Compl., at 54, 56, 71-72, 78-79,

84-86; 1-11-201(2)(c) and (3)(b), C.R.S.

In Jones v. Samora,318 P.3d 462 (Colo. 2014)a case cited with approval by

Plaintiffs in their Complaint and discussed more thoroughly below in Section II

the Supreme Court considered a challenge that was substantively identical to

Plaintiffs first claim here. The Samora plaintiffs alleged that unique numbers

were mistakenly left attached to voted ballots at the time they were counted by

election officials that could have been used to trace a voted ballot to the person who

cast it, and that secrecy in voting was violated as a result. Unlike the Plaintiffs

here, the Samora plaintiffs brought their action as an election contest under the

Municipal Election Code in 31-10-1301, C.R.S., which provides substantially

similar grounds to contest an election as those in 1-11-201, C.R.S. The Samora

election contest complaint alleged that illegal votes were counted, that errors and

mistakes were made by election judges, and there was misconduct by the Town

Clerk. 318 P.3d at 466. Although the challenge in Samoraeventually failed for


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the reasons discussed below, both the district court and Supreme Court viewed it as

an appropriately filed election contest. And, notably, counsel of record for Plaintiffs

in this case also was counsel of record for the contestor-plaintiffs in Samora.

Plaintiffs seek identical relief here and, therefore, the instant case should have been

initiated and prosecuted in accordance with the statutory procedures for election

contests.

In a tacit admission that their claims fit squarely within the bases for

bringing an election contest, the Complaint goes on the defensive where it argues

that, to the extent the statute of limitations for election contests applies to their

claims, it was tolled until December 10, 2014, the date that Clerk Long ceased to

conceal the secrecy violations in this case. Compl., at 89. Plaintiffsreliance on

Section 13-80-108(8) as support for this contention is misplaced for several reasons.

First, by its express terms, that section applies only to [a]cause of actionfor losses

or damagesnot otherwise enumerated in this article, which governs limitations on

personal actions and not election contests. As such, this provision is not intended to

toll the statutory deadline for election contests because such actions are not

personal actions, generally, or actions for losses or damages, specifically.

Second, Section 13-80-108(8) is, at best, a statutory provision of general

applicability, which does not control over the more specific statutory deadline for

district court election contests established by Section 1-11-213(4). See 2-4-205;

Gessler v. Doty, 272 P.3d. 1131 (Colo. App. 2012) (statute requiring the costs of


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conducting an election to be borne by a county prevails over a more general statute

pertaining to reimbursement of county expenditures generally). And, third,

malconduct, fraud, or corruption by an election judge, canvass board, or canvass

board member specifically constitutes grounds for an election contest under

Sections 1-11-201(1)(d) and (3)(c), yet the procedures for district court contests do

not toll the statutory filing deadline for contests based on one or more of those

grounds, even though such grounds are likely to have been concealed from the

electorate by the perpetrators for as long after the election as possible. If the

General Assembly made no provision to toll the filing deadline for contests based on

intentional misconduct by election officials, then it is highly unlikely that they

intended to toll the deadline for contests based on unintentional third-party errors.

Because the instant case is an election contest masquerading as a declaratory

judgment action, the timing requirements for election contests should apply.

Contests for county officers, nonpartisan officers, ballot issues or questions, and

district attorney races are to be tried in the district court in which county the

contest arises (or in either county if a political subdivision is located in more than

one county). 1-11-211 and 212, C.R.S. The Election Code requires that a

statement of intent to contest an election must be filed in the district court within

ten days from when the official abstract of votes cast is filed with the designated

election official. 1-11-213(4), C.R.S.; Vigil v. Garcia, 87 P. 543, 545 (Colo. 1906)

(election contest must be filed within ten days after the date on which the canvass


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of votes is completed). The Adams County official abstract of votes cast was

finalized on November 19, 2014. Compl., at 51, 57. Plaintiffs Complaint was

not filed until December 16. For the county officers, nonpartisan officers, ballot

questions or issues, and district attorney races, Plaintiffs filed this contest well

after the December 1 statutory deadline had passed. The General Assembly

established a jurisdictional deadline for all election contests in district court to

ensure that Coloradans are afforded certainty and finality in the election process.

SeeVailes v. Brown, 27 P. 945, 945-46 (Colo. 1891) (In holding that the ten-day

contest deadline was a statute of limitations that could not be enlarged, the

Supreme Court stated: Whenever recourse to the courts becomes necessary to

determine the result of an election, public and individual interests alike require

that the proceeding should be commenced and prosecuted promptly.).

Furthermore, Plaintiffs have failed to comply with the statutory

requirements for initiating an election contest. Before this Court is required to

take jurisdiction of the contest, the contestor shall file with the clerk of the court a

bond with sureties, running to the contestee and conditioned to pay all costs in case

of failure to maintain the contest. 1-11-213(3), C.R.S. A verified statement of

the contestors intention to contest the election must be filed with the clerk of the

district court that sets forth the name of the contestee[s] and the grounds for the

contest. 1-11-213(4), C.R.S. Only after the receipt of same will the clerk of the

district court issue a summons naming the contestee[s] as defendant[s], to which


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the contesteesas highly interested parties in the outcome of the contest must

file an answer with the clerk of court. 1-11-213(5-6), C.R.S. Plaintiffs failure to

comply with the notice provisions for election contests is especially disturbing given

that they expressly ask this Court to [o]rder that new elections be ordered for those

contests that were on the Adams County general election ballot during the Election,

using the general principles that apply to a special legislative election, see C.R.S.

1-11-301 to 311. Compl., at Prayer for Relief, (j). If this Court is inclined to even

consider awarding Plaintiffs such relief, thenall of Adams Countys newly elected

representatives are entitled to notice and an opportunity to be heard in this matter

as contestees.

For these reasons, this Court lacks jurisdiction over Plaintiffschallenges to

the results for county officers, nonpartisan officers, ballot issues or questions, and

district attorney races in Adams County.

ii. Jurisdiction over contests of statewide officers,

General Assembly officers, and national officers

does not rest with this Court.

Contests to challenge statewide offices must be filed with the Secretary of the

Colorado Senate within the sixth and tenth day of the legislative session following

the election. Section 1-11-205(1), C.R.S. states the following:

Proceedings to contest the election of any person declared elected

governor, lieutenant governor, secretary of state, state treasurer,

attorney general, member of the state board of education, or

regent of the university of Coloradomay be commenced by filing

with the secretary of the senate, between the sixth and tenth


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legislative days of the first session of the general assemblyafter

the day of the election, a notice of intention to contest the

election, specifying the particular grounds on which the

contestor means to rely.

(emphasis added). The Secretary of the Colorado Senate determines the bond, and

the General Assembly determines when a joint session of both houses must

convene. 1-11-205(2) and (3), C.R.S. The rules governing contests in and before

the General Assembly are set forth in 1-11-206 and 207. Similarly, any contest

challenging the election of any state representative or senator is likewise handled

by the General Assembly. 1-11-208, C.R.S. The rules governing an election

contest concerning a state representative or senator are set forth in 1-11-208.5.,

209, and 210, C.R.S.

As explained above, the Election Code expressly authorizes and provides

procedures for contests of county officers, nonpartisan officers, ballot issues or

questions, and district attorney races, as well as for statewide officers, state

representatives, and state senators. It even authorizes and provides procedures for

election contests of presidential electors. 1-11-204, C.R.S. But, notably, it does

not contain anyprovision that authorizes or governs the procedures for contests of

national officers. See, 1-11-201 through 218, C.R.S. This statutory omission is

significant in light of the U.S. Constitutions mandate that [e]ach house shall be

the judge of the elections, returns and qualifications of its own members[.] U.S.

CONST.,Art. 1, 5.


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Indeed, in Rogers v. Barnes, 474 P.2d 610 (Colo. 1970), the Supreme Court

considered whether it had jurisdiction to preside over an election contest of a

candidate elected to the U.S. House of Representatives. In concluding that it did

not, the court stated: Quite clearly, then, section 5 [of Article 1 of the U.S.

Constitution] empowers Congress, and Congress alone, to determine charges of

voting irregularity, for example, stemming from a general election and concerning

the offices of United States Senator and member of the United States House of

Representatives. Id., at p. 612, citing, for example, Laxalt v. Cannon, 80 Nev. 588,

397 P.2d 466;Keogh v. Horner, 8 F. Supp. 933; and Odegard v. Olson, 264 Minn.

439, 119 N.W. 2d 717. As a result, the Supreme Court held that, [s]uch

jurisdiction being exclusive, no other body, including this Court, has the jurisdiction

to hear and determine an election contest arising out of a general election for those

two national offices. Id. In doing so, the court specifically reasoned, [t]hat such is

the case is demonstrated by the fact that though the legislature has enacted a series

of statutes relating to general election contests, there is no statute providing for

contesting the election of one to the United States Senate or the House of

Representatives, such right having been reserved by the Constitution to Congress.

Id.; see also 2 U.S.C. 381 through 396 (the Federal Contested Election Act, which

governs the rules for contesting the election of a U.S. Representative).


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As such, this Court lacks jurisdiction to consider Plaintiffs challenge to the

Adams County election results for statewide officers, members of the General

Assembly, and members of Congress.

II. Alternatively, this action should be dismissed for failure to

state a claim upon which relief can be granted under C.R.C.P.

12(b)(5).

A. Standard of Review.

In resolving a motion to dismiss under Rule 12(b)(5), a court considers only

the facts alleged in the complaint, documents attached to or referenced in the

complaint, and matters of which the court can take judicial notice. Walker v. Van

Laningham, 148 P.3d 391, 397 (Colo. App. 2006). A motion to dismiss under

12(b)(5) is properly granted where the allegations, viewed in the light most

favorable to the plaintiff and accepted as true, cannot support a claim for relief as a

matter of law. Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1099 (Colo.

1995). A court is not required to accept as true legal conclusions that are couched

as factual allegations. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo.

2011), citing Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo.

App. 2008). Although motions to dismiss under 12(b)(5) are generally disfavored,

dismissal is appropriate where, as here, the complaint contains no allegations that

would support relief upon any theory of law. See Walsenburg Sand & Gravel Co. v.

City Council of Walsenburg, 160 P.3d 297, 298 (Colo. App. 2007); see also Barnes v.

Westminster, 723 P.2d 164, 165 (Colo. App. 1986).


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B. The Complaint contains no allegations that call into

question the fundamental integrity of the election so as

to warrant voiding the results.

Plaintiffs rely on Samora,318 P.3d 462 and Taylor v. Pile, 391 P.2d 670

(1964), to support their claims in this case. Id.at 84-85. The Complaint asserts

legal conclusions where it states that, [b]ecause there was not a secret ballot at the

time the voters voted, the fundamental integrity of the Election is irredeemably

tainted. Compl.at 78 (citation omitted). Not only do Plaintiffs misquote Samora,

see 318 P.3d at 471 (Because there was a secret ballot at the time the voters voted

in this case, we find that nothing in Taylor requires the recall election to be

voided.), but more importantly, their Complaint utterly lacks a non-conclusory

factual basis for why the integrity ofAdams Countys election results should be

called into question by this Court; as such, dismissal is warranted.

Colorado courts have narrowly interpreted the constitutional directive that

secrecy in votingbe preserved. Indeed, when given the opportunity to set aside

an election as void on grounds that secrecy in voting was violated, the Supreme

Court in Samoraspecifically declined to do so, and narrowed the circumstances in

which a district court should entertain such an extraordinary remedy under Taylor,

391 P.2d at 471-72; see also Koch, 284 P.3d at 122 (secrecy in voting is preserved

when electors identifying marks are removed); cf. Citizen Center, 770 F.3d 917

(dismissing under federal Rule 12(b)(6) a procedural due process claim based on the


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allegation that secrecy in voting was violated because the Colorado Constitution

does not recognize a liberty interest in protecting against traceable ballots).

The facts in Samoraare analogous to the situation here. In Samora,

detachable stubs were mistakenly left attached to absentee ballots cast in a

municipal recall election. 318 P.3d at 465. The stubs contained a unique number

that couldpotentiallybe traced back to individual voters, and remained affixed to

the ballots during the counting process. Id. The contestors verified complaint

alleged intentional misconduct on the part of the municipal clerk. Id., at 466.

Evidence presented at trial, however, revealed that, despite the election judges

access to the voter lists that could allow them to trace a voted ballot to a particular

voter based on the corresponding number on the stub, the district court erred in

voiding the election results. Id.at 471.

The holding in Samoranarrowed the circumstances that were first outlined

in dictafrom Taylorin which courts should set aside election results as void. In

Taylor, 391 P.2d at 672,an election judge knowingly and willfully refused to remove

uniquely identifying numbers from the ballots as they were cast. Id. As the

SamoraCourt noted, Taylor did not expressly consider whether the ballots were

permanently marked with a number in a way that would run afoul of [Colo. Const.

ArtVII] Section 8s prohibition on marked ballots[.] 381 P.3d at 471. Instead,

Samorastated: voiding an election may be appropriate where thefundamental

integrity of the election is compromised by the lack of a secret ballot. Id. (emphasis


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added).35 Allegations that may call into question the fundamental integrity of the

election include: (1) voters were not allowed to vote in secret; or (2) voters were not

free to vote as they wished or were intimidated. Id., at471 (citing McIntyre v. Ohio

Elections Commn, 514 U.S. 334, 343 (1995) (a secret ballot ensures the right to

vote ones conscience without fear of retaliation.)).

Here, similar to Samora, the electors in Adams County voted with unique

numbers printed on their mail ballots that potentially could be used to trace those

ballots back to individual voters. That the stubs in Samorawere technically

detachableunlike here, where the number was inadvertently printed on the ballot

does not change the analysis of why secrecy in voting was preserved in Adams

County. The electors in both situations cast ballots with potentially traceable

numbers. Likewise, electors in both situations had their ballots processed and

counted with the number included. As such, Samorasfinding that it is undisputed

that the ballot was secret at the time both the in-person and absentee Town of

Center voters voted, 318 P.3d at 471, is equally true here. Samora further stated:

35Although Samoradeclined to import the standard of substantial compliance to

the constitutional right of ballot secrecy, see 318 P.3d at 471, n. 6, its requirement

that a showing must first be made that the fundamental integrity of the election

was compromised before the results of an election may be voided demonstrates that

the mere potentialof traceability does not give rise to a cognizable violation of Colo.

Const., Art. VII, 8.; see Erickson v. Blair, 670 P.2d 749, 754-55 (Colo. 1983)

(adopting a standard of substantial compliance, as strict compliance with election

laws by election officials, absent fraud, undue influence or intentional misconduct

results in the needless disenfranchisement of. . . voters for unintended and

insubstantial irregularities without any demonstrable social benefit.).


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Because there was a secret ballot at the time the votes were cast in this case, we

find nothing that nothing in Taylor requires the recall election to be voided. Id. In

short, Plaintiffs here have failed to allege that voting was not conducted in secret in

Adams County.

Similarly, the Complaint does not allege that the mail ballot Plaintiffs were

not free to vote their conscience or that election officials engaged in intentional

misconduct, such as tracing or refusing to count their ballots. To the contrary, the

Complaint attributes the printing of unique numbers on Adams County mail ballots

to a printing error. Compl., at 68, 70-73. Clerk Longsdecision not to publicly

disclose the printing error during the voting or ballot counting period ensured that

voters were free to vote their conscience. And, with respect to the integrity of the

election, the Complaint alleges only that [u]pon information and belief, at or about

the time when they voted in the Election, multiple Adams County mail-ballot voters

realized or suspected, on the basis of observing the permanent markings on their

individual ballots and ballot stubs, that the mail ballots were identifiably associated

with their individual voters. Compl., at 80. Even accepting this nebulous

allegation as true, the Complaint fails to allege that multiple Adams County mail -

ballot voters either refused to vote or refrained from voting their conscience as a

result of their realizations or suspicions.

Finally, Plaintiffs contention that four of the seven canvass board members

would not have certified the election results is simply irrelevant to determining


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whether they properly alleged that the fundamental integrity of the election was

tainted. As explained above, the canvass board performs only a ministerial

accounting function, and is not vested with statutory authority to refuse to certify

the results of county races based on the alleged violation of any constitutional or

statutory provision. The lack of any factual allegations from which this Court could

conclude that the fundamental integrity of the entire election in Adams County was

tainted by the lack of a secret ballot warrants dismissal of claims one and two for

failure to state a claim.

CONCLUSION

Based on the above reason and authorities, the Secretary respectfully

requests that this Court dismiss the first and second claims for lack of jurisdiction.

Alternatively, the first and second claims should be dismissed for failure to state a

claim.

DATED: December 29, 2014.

JOHN W. SUTHERS

Attorney General

/s/Sueanna P. Johnson

LEEANN MORRILL, 38742*

First Assistant Attorney General

MATTHEW D. GROVE, 34269*Assistant Solicitor General

SUEANNA P. JOHNSON, 34840*

Assistant Attorney General

Public Officials Unit

Attorneys for the Colorado Secretary of State

*Counsel of Record


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CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of December, 2014, a true and accurate

copy of the foregoing THE SECRETARY MOTION TO DISMISS PLAINTIFFS

FIRST AND SECOND CLAIMS FOR RELIEF was served electronically via

ICCES upon the following:

Robert A McGuire, Esq.

Robert McGuire Law Firm

9233 Park Meadows Drive

Lone Tree, Colorado 80124

Attorney for Plaintiffs

Mark Grueskin, Esq.Heather Hanneman, Esq.

Recht Kornfeld, P.C.

1600 Stout Street, Suite 1000

Denver, Colorado 80202

Attorneys for Defendant Karen Long

/s/ Sueanna P. Johnson

20141229, sec'ty's motion to dismiss_final

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