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.
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, 6th Floor
Denver, CO 80203
Telephone: (720) 508-6159 / 6157 / 6155
FAX: (720) 508-6041
E-Mail: Leeann.Morrill@state.co.us
Matt.Grove@state.co.us
Sueanna.Johnson@state.co.us
*Counsel of Record

COURT USE ONLY

Case No. 2014 CV 32288
Div.: W

THE SECRETARYS MOTION TO DISMISS

PLAINTIFFS FIRST AND SECOND CLAIMS FOR RELIEF

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 allow voted 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 Plaintiffs failure to allege that secrecy in voting was not, in fact, preserved
much less that any fraud, voter intimidation, voter suppression, or other
intentional misconduct occurred they seek to not only disenfranchise every Adams

COLO. CONST., Art. VII, 8.

2

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
allege and will be unable to prove that any such circumstances are present here.
Plaintiffs Complaint 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 are jurisdictionally 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.
3

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.

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
See 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.
2

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

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

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

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

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).
7

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 Day here, October 20 but 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 election November 12 was 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 election November 18 was 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
1-7.5-107(4)(b)(II), C.R.S.; see also Election Rule 7.5 (governing procedures for
receipt and processing of ballots).
8

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-off
boxes in large counties available starting November 1.
9

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.

5

political parties, must meet and certify the election results for the county by the
seventeenth day after the election November 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 nevertheless be 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 election December 4 and 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.

Compl., 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).
16

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 114th United 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.

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).
19

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 could potentially be connected to a voters
identity.21 The press release indicated that Clerk Long first learned of this printing
error four days into the counting process around October 24 but 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

See 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, 6th and 7th Congressional 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 Court
Judges 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.
20

21

Compl., at Exhibit 1; Compl., at 66.

22

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

8

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

23

Compl., at 72.

24

Compl., at Exhibit 1 (emphasis added).

25

Id.

Plaintiffs 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.
26

27

Compl., at 77.

28

Compl., at 9-14.
9

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 Long30 along 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
29

Compl. at 78-79.

Although 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 appropriate and
necessary for the Secretary to respond to the first claim for relief.
30

It 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.
32 Id. at 84-114.
10
31

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., at Exhibit 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.
On 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.
33

11

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 FFRF 2014 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.
12

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 was preserved 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 error caused 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., at Exhibit 1.
13

Notably, however, the two Plaintiffs who voted by mail ballot in the 2014
General Election Ms. and Mr. Schindler did 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 officials who are sworn and affirmed not to inquire
or disclose how any elector shall have voted has 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 allow voted 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
14

Colorado counties during the 2012 General Election. Citizen Center argued that
the barcodes created the theoretical potential for 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 Centers federal claims involving members

15

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 be

preserved 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 sworn not to inquire or
disclose how any elector shall have voted. Id. (emphasis added). The
One of Citizen Centers claims is still pending, but it is not one that is at issue
here.
34

16

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, the potential for 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
17

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,
the potential is 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, the potential for an election official or watcher to
discern how an individual voted whether inadvertently or unintentionally still
exists. See 1-7.5-107.3, C.R.S. (governing signature verification); see also Election
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 the potential for 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,
18

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
potential that a number printed on the ballot may be 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
19

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 discern or in fact discovered or disclosed, or even intend to discover or
disclose how 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[.] 1-10104(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
20

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 allege nor can they cite to
any legal authority that 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 be

preserved protects against the public 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). In Koch, the Court of
Appeals analyzed the same constitutional provision raised by Plaintiffs Art. VII,
8 and held: the phrase secrecy in votingprotects from public disclosure the
identity of an individual voter and any content of the voter's ballot that could
21

identify the voter. Id., (internal quotation omitted) (emphasis added). At issue in
Koch was 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 not protectedwhen the identity of the voter cannot
be discerned from the face of that ballot. Id.
Following Koch in 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); 2472-205.5(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).

22

In Clerk Longs press release which was specifically incorporated into the
Complaint as Exhibit 1 to same she 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 secrecy in 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

23

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 of all races 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 or
she 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 of
the 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
24

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, 8486; 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 Samora eventually failed for
25

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. Plaintiffs reliance 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 action for losses
or damages not 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
26

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
27

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.
See Vailes 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
28

the contestees as 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, then all 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 Plaintiffs challenges 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 Colorado may be commenced by filing
with the secretary of the senate, between the sixth and tenth
29

legislative days of the first session of the general assembly after

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 any provision 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.
30

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).

31

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).
32

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 of Adams 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 voting be 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 Samora specifically 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

33

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 Samora are 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 could potentially be 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 Samora narrowed the circumstances that were first outlined
in dicta from Taylor in 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
Samora Court 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.
Art VII] Section 8s prohibition on marked ballots[.] 381 P.3d at 471. Instead,
Samora stated: voiding an election may be appropriate where the fundamental
integrity of the election is compromised by the lack of a secret ballot. Id. (emphasis
34

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., at 471 (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 Samora were technically
detachable unlike 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, Samoras finding 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:
Although Samora declined 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 potential of 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.).
35

35

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 Longs decision 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 mailballot 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
36

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
37

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