Maurice C. Jones and Citizen Center, a Colorado nonprofit corporation, Plaintiffs-Appellants,
Christian R. Samora, in his official capacity as Clerk and Treasurer of the Town of Center, Colorado; and Town of Center, Colorado, a Colorado statutory town, Defendants-Appellees.
County District Court No. 13CV30009 Honorable Martin A.
Announced December 29, 2016 Robert A. McGuire, Lone Tree,
Colorado, for Plaintiffs-Appellants
Lasater & Martin, P.C., Peter H. Doherty, Highlands
Ranch, Colorado, for Defendant-Appellee Christian Samora
Nathan, Dumm & Mayer, P.C., Marni Nathan Kloster, Ashley
Hernandez-Schlagel, Denver, Colorado, for Defendant-Appellee
Town of Center
and Vogt [*] ,
1 Americans cherish their right to cast secret ballots in
elections of public officers. So what should a court do if it
learns that there was a flaw in handling ballots that created
the opportunity for election judges to learn the identities
of some voters who had mailed in their ballots? In this case,
although the flaw created such an opportunity, the trial
court found that the opportunity did not flower into a
reality. In other words, the election judges did not take
advantage of the opportunity to learn who had mailed in these
2 And the flaw did not change the final tally in the
election. It occurred after the ballots had been cast, and
there is no indication in the record that the flaw affected
the tallying of the votes. So the flaw did not change the
number of votes that any candidate received.
3 Maurice C. Jones, one of the plaintiffs in this case, lost
his seat as a trustee for the Town of Center, Colorado, after
a recall election. (Two other trustees also lost their seats,
but they are not parties to this appeal.) He then joined with
the other plaintiff in this case, Citizen Center, a nonprofit
group that focuses on "protect[ing] the rights of its
members, including the fundamental right to vote."
4 When we refer to the former trustee - Mr. Jones - and
Citizen Center together, we will call them "the
plaintiffs." But there are certain issues in this
appeal, such as standing, that require us to analyze their
positions separately. We will therefore refer to them
individually when we consider those issues.
5 As is pertinent to our analysis, the plaintiffs filed a
claim in state court against two defendants, the Town of
Center and its clerk, Christian R. Samora, relying in part on
42 U.S.C. § 1983 (2012). (The plaintiffs sued other
defendants, too, but those defendants are not part of this
appeal.) We will refer to the defendants jointly as "the
6 Both sides filed motions for summary judgment. The trial
court granted the Town's motion, but it denied the
plaintiffs' motion. The plaintiffs appeal. We affirm.
7 Concerned that the Town of Center's trustees, including
Mr. Jones, were planning to increase utility fees
unilaterally, the Town of Center's residents organized a
recall election to oust the trustees from their positions.
8 Voters in the recall election voted one of two ways. Some
of them received their ballots in the mail and returned them
by mail. Others voted in person at the polling place.
9 All of the ballots had two numbered stubs attached to them.
Based on those stubs, Mr. Samora had a list that showed which
voter had received which ballot. He used this list to ensure
that each voter had voted only once. He knew which voters had
returned their mail ballots, so he could compare that list
with the list of the voters who had voted in person.
10 The voting procedures were also designed to protect the
right each voter had to cast a secret ballot. They required
that election judges remove all the stubs from all the
ballots before they began to tally them.
11 These procedures were followed with regard to all the
in-person ballots that were cast in the recall election. The
judges removed all the stubs before these votes were tallied.
See § 31-10-607, C.R.S. 2016 (setting out
voting procedures for in-person voters with paper ballots).
So the election judges did not have any way to know which
voter had cast which in-person ballot.
But the procedures were not followed at all times with regard
to the mail-in ballots. See § 31-10-1007(1),
C.R.S. 2016 (noting that ballots for absentee voters - the
mail-in ballots in this case - "must . . . be cast and
counted in the same manner as if such absentee voter had been
present in person"). At some point during the process of
tallying the ballots, the election judges realized that they
had not removed the stubs from at least some of them. The
judges decided to continue tallying the ballots before they
removed the stubs. So the election judges could see the
identifying numbers on the stubs when they tallied the votes,
but they could not determine the identity of the voters
without consulting the voter list.
13 The plaintiffs included five state law claims and a §
1983 claim in their complaint. The trial court severed the
state law claims from the § 1983 claim. It then held a
bench trial on the state law claims. As is relevant to this
appeal, the court found the following:
• "The preponderance of the evidence at trial
establishes that no election judges or watchers accessed
voter lists during the counting of the ballots, none knew
which ballot numbers were assigned to which voter during the
counting process and no photographs or videos were taken of
• "[T]his was an election which was fundamentally
untainted by any substantive intentional error of procedure,
free of any fraud or intentional violation of voting
• "There is no credible evidence to find that any
improper use of the [voter] lists occurred. The preponderance
of the evidence fails to establish that any comparison of the
lists to the [mail-in] ballots[, ] with the stubs still
affixed, occurred at any time in the counting process."
• "The Court is satisfied that counting of
[mail-in] ballots occurred with stubs affixe[d] but that
this was not intentional nor is there any evidence that
anyone, including the election judges, took this opportunity
to in fact violate the secrecy of the ballot."
14 Despite these findings, the trial court concluded that the
tallying of the mail-in ballots had violated article VII,
section 8 of the Colorado Constitution, which states that
"no ballots shall be marked in any way whereby the
ballot can be identified as the ballot of the person casting
it." Although the court found that the election judges
had not compared the voter lists with the stubs, the court
decided that, because they had seen both the voter list and
the stub numbers of the mail-in ballots, they had had the
opportunity to compare the two. The court thought
that the existence of this opportunity meant that the Town
had violated "the state of Colorado's constitutional
and statutory guarantee of a secret ballot."
15 So the court concluded that the results of the recall
election were void, see Taylor v. Pile, 154 Colo.
516, 522-23, 391 P.2d 670, 673 (1964), and it ordered the
Town to hold a new recall election within thirty to ninety
days. In the meantime, the trustees who had been recalled
would remain in office.
Supreme Court Opinion
16 The Town appealed. Our supreme court reversed the trial
court's decision, and it reinstated the recall election
results. See Jones v. Samora, 2014 CO 4, ¶ 39.
Although the supreme court agreed that the Colorado Municipal
Election Code had been violated, see §§
31-10-607, -1007, it concluded that there had not been a
constitutional error because the ballots had not been
"marked" for the purposes of article VII, section
8. See Jones, ¶ 31. The election judges had not
marked the ballots so that the ballots could be linked to
particular voters. Instead, the stubs were on the ballots
because a statute required them to be there. See id.
And, because the election judges had not violated article
VII, section 8, the trial court erred when it concluded that
the election had been void. Id. at ¶¶
17 The supreme court then observed that
it is undisputed that the ballot was secret at the time both
the in-person and [mail-in] Town of Center voters voted.
There was no credible evidence presented that voters were not
free to vote as they wished or were intimidated in any way. .
. . In sum, there was no evidence that the secrecy or
integrity of this entire election was put in jeopardy by the
election judges' error in partially counting the
[mail-in] ballots with the numbered stubs still attached.
Id. at ¶ 35. ¶ 18 In reaching this result,
the supreme court relied on the trial court's factual
findings, including the trial court's finding that no
one, including the election judges, had "violate[d] the
secrecy of the ballot." Id. at ¶ 11.
§ 1983 Claim
19 The plaintiffs' § 1983 claim remained at issue
because the trial court had severed it from the state law
claims. So, after the supreme court's decision, the trial
court had to resolve it. Both sides of the case moved for
summary judgment. The trial court granted the Town's
motion, and it denied the plaintiffs' motion.
20 To begin, the Town asserts that the plaintiffs did not
have standing to file this case. We conclude that Citizen
Center has standing, but that the trustee does not.
21 We analyze the question whether a party has standing de
novo. Ainscough v. Owens, 90 P.3d 851, 856 (Colo.
2004). When deciding whether a party has standing, "all
averments of material fact in a complaint must be accepted as
true." State Bd. for Cmty. Colls. & Occupational
Educ. v. Olson, 687 P.2d 429, 434 (Colo. 1984). "A
party's standing is assessed at the time a ...