November 18, 2018

Tenth Circuit: No Constitutional Violation for Potentially Traceable Ballots in 2012 Election

The Tenth Circuit Court of Appeals issued its opinion in Citizen Center v. Gessler on Tuesday, October 21, 2014.

After the 2012 election, election officials in six Colorado counties — Larimer, Jefferson, Boulder, Chaffee, Eagle, and Mesa — theoretically had the ability to trace votes to individual voters because each ballot had a unique barcode or number, some ballots may have been unique among ballots cast on an electronic voting machine, and some ballots may have been unique within a batch of ballots. Citizen Center, a Colorado nonprofit, sued the secretary of state and the county clerks for the six counties (collectively, “clerks”), asserting that the use of traceable ballots violated its members’ constitutional rights, including the rights to (1) vote, (2) free speech and association, (3) substantive due process, (4) equal protection, and (5) procedural due process. One of the clerks settled with Citizen Center. All clerks moved to dismiss for lack of standing, and the clerks included an alternative argument for dismissal under F.R.C.P. 12(b)(6). The district court dismissed the claims on standing without reaching the 12(b)(6) argument. Citizen Center appealed.

The Tenth Circuit first addressed the clerks’ argument that Citizen Centers’ appeal was moot because the election had already passed, and also because the secretary of state had adopted new regulations banning the challenged practices. The Tenth Circuit found that although the 2012 election had passed, and although the secretary of state had promulgated rules to prevent future traceable ballots, not every harm had been redressed. Next, the Tenth Circuit found that Citizen Center had standing on the parts of the claim related to denial of equal protection and procedural due process, but its alleged injury was too speculative to provide standing. Finally, the Tenth Circuit held that the first amendment complaint failed to state a valid claim against the clerks. These findings resulted in termination of all claims except those against the secretary of state for denial of equal protection and procedural due process.

Addressing the procedural due process claim first, the Tenth Circuit determined that Citizen Center’s claim was facially deficient. Citizen Center lacked a liberty interest in an untraceable ballot. Citizen Center claimed that the use of potentially unique ballots and the use of potentially unique ballots within a batch violated the Colorado Constitution. However, the Constitution only prohibits the use of unique numbers on ballots, and the use of batch numbers is not prohibited, so the secretary of state’s rules requiring numbers to be used on at least 10 ballots within a batch did not violate the Constitution. Because Citizen Center lacked a protected liberty interest, its claims for due process failed as a matter of law.

Next, the Tenth Circuit turned to the Equal Protection claims, which were based on different voting practices in different counties. The Tenth Circuit quickly disposed of this claim as well, finding that clerks within counties were allowed to develop different voting practices, and as long as there was no discrimination between voters in the same county, there was no Equal Protection violation.

The Tenth Circuit affirmed dismissal of the claims involving denial of substantive due process, the right to vote, and the right to free speech. For the claims involving procedural due process and equal protection, the Tenth Circuit affirmed on the clerks’ alternate ground under F.R.C.P. 12(b)(6). However, the secretary of state did not move for dismissal under 12(b)(6), so for the claims against the secretary of state, the Tenth Circuit reversed and remanded for further proceedings.

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