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Hill v. Williams

United States District Court, D. Colorado

November 4, 2016

OWEN HILL, SCOTT ROMANO, and COLIN PHIPPS Plaintiffs,
v.
WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State, CYNTHIA H. COFFMAN, in her official capacity as Colorado Attorney General, and MITCH MORRISSEY, in his official capacity as Denver District Attorney, Defendants. AND CARYN ANN HARLOS KIYOMI BOLICK ANDREW MADSON, and Plaintiffs,
v.
MITCH MORRISSEY, in his official capacity as Denver District Attorney, WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State, and CYNTHIA H. COFFMAN, in her official capacity as Colorado Attorney General,

          ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR PRELIMINARY INJUNCTION

          CHRISTINE M. ARGUELLO, United States District Judge.

         On October 24, 2016, Plaintiffs Owen Hill and Scott Romano filed a Verified Complaint for Declaratory and Injunctive Relief and Motion for Preliminary Injunction against Defendants Wayne W. Williams, Colorado Secretary of State, and Cynthia H. Coffman, Colorado Attorney General, both in their official capacities. (Action No. 16-cv-02627, Doc. ## 1, 7, respectively.) On November 1, 2016, Plaintiffs amended their complaint to add Colin Phipps as an additional Plaintiff and Mitchell R. Morrissey, Denver District Attorney, in his official capacity, as an additional Defendant. (Action No. 16-cv-02627, Doc. # 22.) On October 25, 2016, Plaintiffs Caryn Ann Harlos, Kiyomi Bolick, and Andrew Madson filed a Verified Complaint for Declaratory and Injunctive Relief and a Motion for a Temporary Restraining Order and Preliminary Injunction against the same three defendants. (Action No. 16-cv-02649, Doc. ## 1, 6, respectively.)

         Currently before the Court are Plaintiffs Hill, Romano and Phipps' and Plaintiffs Harlos, Bolick and Madson's Motions for Preliminary Injunction. On October 31, 2016, Defendants filed responses to both motions (Action No. 16-cv-02627, Doc. # 21; Action No. 16-02649, Doc. ## 22, 23) and on November 1, 2016, Plaintiffs filed replies in both actions (Action No. 16-cv-02627, Doc. # 26; Action No. 16-02649, Doc. # 26.)

         On November 3 and 4, 2016, the Court held a two-day evidentiary hearing on the motions. The Court heard argument from counsel and testimony from witnesses for both Plaintiffs and Defendants. For the reasons outlined below, the Court grants in part and denies in part the motions.

         I. BACKGROUND

         In Civil Action No. 16-cv-02627 (hereinafter the “2627 Action”), Plaintiffs seek a preliminary injunction “enjoining Defendants Wayne Williams and Cynthia Coffman from enforcing Colo. Rev. Stat. § 1-13-712(1) against the photographing of one's own ballot and display of such photographs outside of polling places.” (Doc. # 7-2.) In Civil Action No. 16-cv-02649 (hereinafter the “2649 Action”), Plaintiffs seek a preliminary injunction “prohibiting Defendants from having Plaintiffs arrested, having Plaintiffs summonsed, or prosecuting Plaintiffs or any similarly situated individuals for engaging in constitutionally-protected conduct that violates Colorado Revised Statute § 1-13-712.” (Doc. # 6 at 1.)[2]

         Colorado Revised Statute § 1-13-712(1) prohibits a voter from “show[ing] his ballot after it is prepared for voting to any person in such a way as to reveal its contents.” Section § 1-13-712 was passed in 1891 and most recently amended in 1980. Any person who violates this statute is guilty of a misdemeanor and can be punished by a fine of not more than one thousand dollars, and/or by imprisonment in the country jail for not more than one year. Colo. Rev. Stat. § 1-13-712(4); Colo. Rev. Stat. § 1-13-111.

         Colorado uses an all mail-in ballot election. Every registered voter who registered to vote on or before October 31, 2016, has received a mail-in ballot to complete at home. Individuals who did not register by that date are allowed to register at the polling places and vote up to, and including, Election Day. Moreover, voters who have obtained ballots in the mail are still allowed to vote in person on Election Day.

         The Deputy Secretary of State testified that in 2012, Colorado did not have an all mail-in ballot system, but rather a system where voters could request a mail-in ballot. In 2012, seventy-five percent of voters signed up to receive a mail-in ballot for that election and all future elections. In 2012, 2.9 million Coloradans voted, of which 750, 000 voted in person. In 2014, 2.1 million Coloradans voted, of which 100, 000 voted in person. The Deputy Secretary of State testified that she anticipates between 100, 000 and 750, 000 Coloradans will vote in person on November 8, 2016.

         It appears that these lawsuits were both precipitated by the following news release issued by the Denver District Attorney on October 20, 2016:

         REMINDER: BALLOT SELFIES ARE ILLEGAL IN COLORADO

Denver District Attorney Mitch Morrissey is reminding voters that there is a state law prohibiting voters from showing their completed ballot to others. This would include posting your completed ballot on social media.
Colorado is one of many states that ban a ballot selfie. The law, found at § 1-13-712 in the Colorado Revised Statutes, states that, “No voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents.” It is a misdemeanor violation.
The prohibition on sharing completed ballot results is an effort to guard against potential voter fraud.

http://www.denverda.org/NewsRelease/Releases/2016%20Release/Ballot%20s elfies.pdf.

         Plaintiffs wish to take photographs of their completed ballots and post them on social media but believe they are prevented by § 1-13-712 from doing so. Specifically, Plaintiff Owen Hill, a State Senator from Colorado Springs, testified that he intends to vote in person on Election Day, take a photograph of himself and his children with his completed ballot, and post it on social media. His intent in posting this picture is to encourage his supporters to vote. Plaintiff Caryn Ann Harlos, the Communications Director for the Libertarian party, testified that she wishes to post a video showing her completing her ballot. However, she is afraid of being prosecuted under § 1-13-712. Plaintiff Scott Romano is an eighteen-year-old, first time voter, who is registered to vote in Littleton. He testified that he would like to use Snapchat to reveal the contents of his vote. He notes that individuals in his age group have the lowest voter turnout, and he believes that Snapchat is an important tool to encourage young people to vote. Plaintiff Colin Phipps is a Colorado resident who currently lives in Denver and intends to vote by mail prior to the general election. Mr. Phipps would like to engage in “ballot selfie” activity in the upcoming election and future elections. Plaintiff Kiyomi Bolick is a voter in Denver County and a Public Defender in Adams County. She testified that she posted a photograph of her ballot on Facebook, and after being called a “criminal” on Facebook by an attorney employed in the Colorado Attorney General's Office, she removed her post. Plaintiff Andrew Madson is a voter in Denver County. He took a photograph of himself with his ballot, sent the photograph to a few family members, and had planned to post it on social media until he learned about the existence of the law.

         Each of the Plaintiffs testified that they are registered to vote and receive mail-in ballots. Plaintiff Hill testified that he plans to vote at his local polling place. The remaining Plaintiffs intend to vote at home using their mail-in ballots and do not intend to take a “selfie” at the polling place.

         In response to Plaintiffs' Motions for Preliminary Injunction, Defendants submitted the following affidavits and declarations from representatives of the Colorado Attorney General's Office and several district attorneys' offices, which encompass the jurisdictions in which each of the Plaintiffs lives:

1. A declaration from Joseph Morales, the Chief Deputy District Attorney in the Economic Crimes United with the District Attorney's Office for the Second Judicial District, in which he declares that District Attorney Morrissey will not charge anyone with an offense under § 1-13-712(1) unless there is evidence that the act was in connection with a violation of another elections code provision. (Action No. 16-cv-02649, Doc. ## 23-6, 22-1.)
2. An affidavit from Scott Turner, the Deputy Attorney General for the Criminal Justice Section of the Colorado Department of Law, in which he attests that, to his knowledge, the Colorado Department of Law has never charged anyone for taking a photograph or video of a completed ballot and posting it on social media. He also avers that his office would not charge any such activity unless it were accompanied by evidence of vote buying, vote selling, coercion, or other type of undue influence. Finally, he avers that his office will not initiate criminal charges for citizens voluntarily posting photographs of their completed mail-in ballots on the internet, showing them to others, or otherwise disclosing them. (Action No. 16-cv-2649 Doc. # 23-3.)
3. An affidavit from Richard Orman, the Chief Elections Law Prosecutor for the Eighteenth Judicial District, in which he avers that, as a matter of policy, the District Attorney for the Eighteenth Judicial District will not charge anyone with an offense of C.R.S. § 1-13-712(1) for taking a photograph or video of a completed mail-in ballot and making public or otherwise revealing that photograph, or the ballot itself, unless there is evidence that the act was in connection with a violation of another elections code offense. (Action No. 16-cv-2627, Doc. # 23-4.)
4. An affidavit from Dan May, the District Attorney for the Fourth Judicial District, in which he confirms that his office has never charged anyone under C.R.S. § 1-13-712(1) for taking a photograph or video of a completed ballot and posting it on social media or otherwise publicizing it. He also attests that his office would not charge any such activity unless it were accompanied by some aggravating factor such as vote buying, vote selling, coercion or any other type of undue influence and that his office will not initiate criminal charges for citizens voluntarily posting photographs of their completed mail-in ballots on the internet, showing them to others, or otherwise disclosing them. (Action No. 16-cv-2627 Doc. # 23-5.)
5. An affidavit from Dave Young, the District Attorney for the Seventeenth Judicial District, in which he avers that, to his knowledge, his office has never charged anyone under § 1-13-712 for taking a photograph or video of a completed ballot and posting it on social media or otherwise publicizing it. He avers that, absent evidence of vote buying, vote selling, coercion, or any other type of undue influence, his office would not initiate criminal charges for citizens voluntarily posting photographs of their completed main-in ballots on the internet, showing them to others, or otherwise disclosing them. (Action No. 16-cv-2649 Doc. # 28.)

         II. STANDING AND MOOTNESS

         A. Standing

         Defendants contend that Plaintiffs lack standing to pursue this case. This Court disagrees. Because Plaintiffs facially challenge § 1-13-712(1) as being overly broad in violation of the First Amendment, standing requirements are more lenient. Indeed, “[i]t is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992). The Supreme Court has recognized that this leniency is “based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court.” Id.

         To establish Article III standing, a plaintiff must show that he has (1) suffered an injury in fact that is (2) traceable to the defendants and (3) redressable by a favorable ruling. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “In freedom of expression cases, injury in fact can be shown by alleging (1) an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and (2) a credible threat of prosecution.” Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007). “To satisfy the injury in fact requirement, the plaintiff must demonstrate that expressive activities will be inhibited by an objectively justified ...


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