In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

CITIZEN CENTER,Petitioner,

v.

SECRETARY OF STATE OF THESTATE OF COLORADO, et al.,

Respondents.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Robert A. McGuire, III Counsel of RecordROBERT MCGUIRE LAW FIRM9233 Park Meadows DriveLone Tree, Colorado 80124(303) 952-5077ram@lawram.com

Counsel for Petitioner

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

NO.

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QUESTIONS PRESENTED

1. Whether voters show an injury-in-fact at themotion-to-dismiss stage by alleging that certainchallenged election processes produce ballots that aretraceable to individual voters after voting, whichburdens the fundamental right to vote by deprivingvoters of a secret ballot.

2. Whether voters state a proper claim for reliefagainst a county under the Equal Protection Clause byalleging that the county treats its resident votersdifferently than another county in the same Statetreats similarly situated voters.

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RULE 14.1(b) LIST

Citizen Center was the plaintiff-appellant belowand is the petitioner in this Court.

The defendants-appellees below who arerespondents in this Court are: the Secretary of State ofthe State of Colorado; the Clerk and Recorder ofLarimer County, Colorado; the Clerk and Recorder ofJefferson County, Colorado; the Clerk and Recorder ofBoulder County, Colorado; the Clerk and Recorder ofChaffee County, Colorado; and the Clerk and Recorderof Eagle County, Colorado.

The Clerk and Recorder of Mesa County, Colorado,was a defendant-appellee below, but was dismissedfrom this case while it was pending before the court ofappeals and is not a party in this Court.

RULE 29.6 NOTATION

The petitioner has no parent, and there are nopublicly held companies that hold any stock of thepetitioner.

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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

RULE 14.1(b) LIST . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RULE 29.6 NOTATION . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND REGULATORYPROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 2

A. Constitutional Provisions . . . . . . . . . . . . . . . . . . 2

B. Regulatory Provisions . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 5

B. Proceedings In The District Court . . . . . . . . . . 11

C. The Decision Of The Court Of Appeals . . . . . . . 13

REASONS FOR GRANTING THE WRIT . . . . . . . 16

A. The Decision Of The Court Of Appeals ConflictsWith Precedent Of This Court . . . . . . . . . . . . . . 16

B. The Decision Of The Court Of Appeals Is WrongOn The Merits . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iv

1. The Right To Vote Is Infringed At TheMoment When A Voter Expresses HerElectoral Preferences Using A Ballot ThatShe Knows May Afterward Be Identified AsHers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2. Counties Remain Subject To The EqualProtection Clause Even If They Treat AllOf Their Own Residents Uniformly . . . . . . . 23

C. This Case Is An Ideal Vehicle For ClarifyingThat The Right To Vote Entails The Right ToUse A Secret Ballot . . . . . . . . . . . . . . . . . . . . . . 25

D. None Of The Issues Raised By The QuestionsPresented Are Moot In This Case . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

APPENDIX

Appendix A Opinion And Judgment In The UnitedStates Court Of Appeals For TheTenth Circuit (October 21, 2014) . . . . . . . . . . . App. 1a

Appendix B Final Judgment In The United StatesDistrict Court For The District OfColorado (September 25, 2012) . . . . . . . . App. 40a

Appendix C Reporters Transcript (MotionsHearing) In The United States DistrictCourt For The District Of Colorado(September 21, 2012) . . . . . . . . App. 42a

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Appendix D Minute Entry In The United StatesDistrict Court For The District OfColorado (September 21, 2012) . . . . . . . . App. 70a

Appendix E Order Denying Petition For RehearingAnd Rehearing En Banc In TheUnited States Court Of Appeals ForThe Tenth Circuit (November 17, 2014) . . . . . . . . App. 72a

Appendix F Order Granting Plaintiffs Motion ToClarify In The United States DistrictCourt For The District Of Colorado(November 27, 2012) . . . . . . . . App. 74a

Appendix G First Supplemental Complaint ForDeclaratory And Injunctive Relief InThe United States District Court ForThe District Of Colorado(July 27, 2012) . . . . . . . . . . . . . App. 77a

Appendix H First Amended Complaint ForDeclaratory And Injunctive Relief InThe United States District Court ForThe District Of Colorado(May 10, 2012) . . . . . . . . . . . . . App. 89a

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TABLE OF AUTHORITIES

CASES

Anderson v. Mills, 664 F.2d 600 (6th Cir. 1981) . . . . . . . . . . . . . . . 27

Barsky v. United States, 167 F.2d 241 (D.C. Cir. 1948) . . . . . . . . . . . . . . 27

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 26

Burson v. Freeman, 504 U.S. 191 (1992) . . . . . . . . . . . . . . . . . . . 19, 26

Bush v. Gore, 531 U.S. 98 (2000) . . . . . . . . . . . . . . . . . . . . . . . 24

Citizen Center v. Gessler, 770 F.3d 900 (10th Cir. 2014) . . . . . . . . . . . . . . . 1

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . 23

Duke Power Co. v. Carolina Envtl. Study Grp., Inc.,438 U.S. 59 (1978) . . . . . . . . . . . . . . . . . . . . 16, 18

Dunn v. Blumstein, 405 U.S. 330 (1972) . . . . . . . . . . . . . . . . . . . 16, 24

Friends of the Earth, Inc. v. Laidlaw Envtl. Svcs.(TOC), Inc., 528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . 27

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) . . . . . . . . . . . . . . . . . . . . . . 26

McIntyre v. Ohio Elections Commn, 514 U.S. 334 (1995) . . . . . . . . . . . . . . . . . . . 19, 26

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Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . . . . . 19

Rogers v. Lodge, 458 U.S. 613 (1982) . . . . . . . . . . . . . . . . . . . 19, 26

Taylor v. Beckham, 178 U.S. 548 (1900) . . . . . . . . . . . . . . . . . . . . . . 26

Wesberry v. Sanders, 376 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . 19

Wood v. Moss, 134 S. Ct. 2056 (2014) . . . . . . . . . . . . . . . . . . . . . 5

CONSTITUTION

U.S. Const. amend. XIV, 1 . . . . . . . . . . . . . . . . . . . 2

U.S. Const. art. III, 2 . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTES, REGULATIONS, AND RULES

8 Colo. Code Regs. 1505-1 (Election Rule 4.8.4)(Oct. 30, 2014) . . . . . . . . . . . . . . . . . . . . . . . . 3, 14

8 Colo. Code Regs. 1505-1 (Election Rule 7.5.9)(Oct. 30, 2014) . . . . . . . . . . . . . . . . . . . . . . . . 3, 14

8 Colo. Code Regs. 1505-1 (Election Rule 10.8)(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

8 Colo. Code Regs. 1505-1 (Election Rule 10.9)(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

22 U.S.C. 8203(6)(B) . . . . . . . . . . . . . . . . . . . . . . . 20

28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

viii

28 U.S.C. 1343(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. 1343(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. 1357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Colo. Rev. Stat. 1-13-712 (2014) . . . . . . . . . . . . . . . 9

Colo. Rev. Stat. 24-72-200.1 to -206 (2012) . . . . . 7

Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . 13

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . 13

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PETITION FOR A WRIT OF CERTIORARI

Citizen Center respectfully petitions for a writ ofcertiorari to review the judgment of the United StatesCourt of Appeals for the Tenth Circuit in this case.

OPINIONS BELOW

The published opinion of the United States Court ofAppeals for the Tenth Circuit is reported at CitizenCenter v. Gessler, 770 F.3d 900 (10th Cir. 2014), and isreproduced at Appendix A, infra, 1a39a. The Order ofthe court of appeals denying Citizen Centers timelypetition for rehearing (App. E, infra, 72a73a) is notreported.

The opinion of the United States District Court forthe District of Colorado (App. C, infra, 42a69a) is notreported. The district courts minute order (App. D,infra, 70a71a) and final judgment (App. B, infra,40a41a) are not reported.

JURISDICTION

The judgment of the United States Court of Appealsfor the Tenth Circuit was entered on October 21, 2014. The court of appeals denied Citizen Centers timelypetition for rehearing on November 17, 2014. Thejurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

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CONSTITUTIONAL AND REGULATORYPROVISIONS INVOLVED

A. Constitutional Provisions

The judicial power shall extend to all cases, in lawand equity, arising under this Constitution [and] thelaws of the United States. U.S. Const. art. III, 2.

[N]or shall any State deprive any person of life,liberty, or property, without due process of law; nordeny to any person within its jurisdiction the equalprotection of the laws. U.S. Const. amend. XIV, 1.

B. Regulatory Provisions

Colorado Election Rule 4.8.4 provides:

Use of unique numbers on ballots

(a) Except for ballots sent to military or overseaselectors by electronic transmission under Rule16.2, a county may not print a ballot for use in astate or federal election that has a uniquenumber, or a barcode containing a uniquenumber, that is specific to a single ballot.

(1) A county that uses rotating numbersmust print at least ten ballots of each ballotstyle for each number.

(2) Nothing in this Rule prohibits a countyfrom printing a unique number or barcode ona removable stub.

(b) After an election official dissociates a votedballot from its envelope and removes the stub, ifany, the county may write or print uniquenumbers on the voted ballot for auditing and

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accounting purposes, including duplication ofdamaged ballots and risk limiting audits.

(c) For ballots printed before the adoption of thisRule that are in a countys possession, thecounty must redact unique numbers, or barcodescontaining unique numbers, before providingballots in response to a request for inspectionunder the Colorado Open Records Act (Section24-72-205.5(4)(b)(II), C.R.S.).

8 Colo. Code Regs. 1505-1 (Election Rule 4.8.4) (Oct.30, 2014).

The county clerk must dissociate any batch numberthat could trace a ballot back to the specific voter whocast it from the counted ballots or any reportsgenerated by the tabulation software no later than thefinal certification of the abstract of votes cast. 8 Colo.Code Regs. 1505-1 (Election Rule 7.5.9) (Oct. 30,2014).

STATEMENT OF THE CASE

In February 2012, Citizen Centera Coloradononpro f i t corporat ion and membershiporganizationfiled this civil rights lawsuit against theColorado Secretary of State (the Secretary) and sixColorado county clerk and recorders (the Clerks)1 intheir official capacities, seeking declaratory andinjunctive relief on behalf of Citizen Centers individual

1 The clerk and recorder of Mesa County, Colorado, who was thesixth county defendant in the district court and the sixth countydefendant-appellee in the court of appeals, settled with CitizenCenter and was dismissed from this case while it was pendingbefore the court of appeals. Accordingly, the Mesa Clerk is not aparty to this case.

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members. Citizen Center invoked the jurisdiction ofthe district court under 28 U.S.C. 1343(a)(3)(4), 28U.S.C. 1357, 42 U.S.C. 1983, and 28 U.S.C. 1331.

Citizen Centers action alleged that the Secretaryhad authorized, and the Clerks had adopted andplanned to continue using, voting systems andpractices (including uniquely marked paper ballots)that gave election officials, workers, and other insidersthe ability to gain access at will to the private electoralpreferences of their fellow citizens. Citizen Centerchallenged these systems and practices as violating itsmembers federal constitutional rights to vote, toexercise freedom of speech and association through theballot, to enjoy substantive and procedural due process,and to enjoy equal protection.2

The district court ultimately dismissed CitizenCenters entire case at the motion-to-dismiss stage forlack of associational standing after concluding thatCitizen Center had not stated a legally cognizableinjury-in-fact to any of its individual members. Because the case was resolved at the motion-to-dismissstage, the only facts that are material to this Courtsconsideration of the questions presented by thispetition are the factual allegations made in CitizenCenters first amended complaint (App. H, infra,89a130a) and first supplemental complaint (App. G,infra, 77a88a). For purposes of resolving a motion todismiss, Citizen Centers factual allegations are

2 Citizen Center also challenged these practices as violating certainof its members rights under the Colorado Constitution. Thosestate claims are not at issue in this petition.

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required to be accepted as true. See Wood v. Moss, 134S. Ct. 2056, 2065 n.5 (2014).

A. Factual Background

The essence of Citizen Centers factual allegationsis that certain state and county election officials haveunconstitutionally arrogated to themselves theauthority to create, compile, and maintain, during andafter an election, information that permits voted ballotsto be traced to the individual voters who cast them.

In its initial complaint, which was subsequentlysuperseded by the first amended complaint, CitizenCenter alleged that the Clerks, with the authorizationand approval of the Secretary, utilized voting systemsand processes, including unique markings on paperballots, which render voted ballots traceable toindividual voters through three distinct mechanisms.

First, several of the Clerks permanently print aunique distinguishing bar code and unique set ofnumerals on the paper ballots that they assign to theindividual voters in their counties when ballots areissued. The association between a voter and theunique number printed on her ballot is recorded in theelection records of the Clerks for the vast majority ofballots issued, which are paper ballots mailed out tovoters. Any person who comes into knowledge of thedistinguishing identifier printed on a uniquely markedballot provided to a particular voter, including thevoter herself, can identify with certainty the specificpaper ballot bearing that unique identifier as the ballotof that particular voter. The same Clerks who printdistinguishing identifiers on their ballots also utilizeelection procedures that make it possible for their own

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elections administration staff, polling place workers,election watchers, political party chairs, and ballotmailing vendors, among others, both to observe theunique identifiers printed on ballots and to associatethose identifiers with the identities of voters. Even longafter an election is over, all ballots that arepermanently marked with unique identifiers remaincapable of being located, either in original form or asscanned electronic files, and identified with certaintyas the ballot of a particular voter.

Second, after voters return their voted paperballots, several of the Clerks utilize a batchingprocess under which sets of voted ballots are stored indiscrete batches, together with a batch cover sheet orbatch log that identifies each of the voters whoseballots are included in the corresponding batch. Comparison of the voter information printed on thebatch cover sheet or log (or obtainable from the State ofColorados voter database) against the correspondingbatch of voted ballots readily enables any ballots withinthe subject batch that have a unique precinct numberor ballot style within the batch to be identified withcertainty as the ballot cast by a particular voter. Moreover, some of the Clerks take the additional stepof maintaining all of the voted ballots within a batch inthe exact same order as the names of the voters listedon the corresponding batch cover sheet or batch log, apractice that necessarily makes every ballot stored insuch batches identifiable as the ballot of a particularvoter.

Third, for electronic ballots cast by voters on directrecording electronic (DRE) voting machines, several ofthe Clerks record information that includes the time of

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voting (including hour, minute, and second), date ofvoting, the DRE machines unique identifier, and theprecinct number or ballot style used by each voter. Comparison of this information against the publiclyavailable individual voter participation informationmaintained for each voter in the State of Coloradosvoter database enables any electronic ballots that havea unique precinct number or ballot style within thesmall universe of ballots cast on the same DREmachine to be identified with certainty as the electronicballot cast by a particular, known voter. Moreover, anyreview of the Voter Verified Paper Audit Trail (a papertape created by each DRE machine) reveals eachvoters ballot content in the same order that votersvoted on the DRE machine, making every set ofelectoral choices expressed on the machine traceable toa particular voter.

Citizen Centers allegations show that thesetraceability mechanisms not only permit a particularvoters ballot to be located and identified in theabstract, but have actually been utilized for these verypurposes in practice. For example, Citizen Centeralleged that some of the Clerks used their batchingrecords to locate voted ballots in furtherance of alegislative agenda aimed at restricting the publicsaccess to inspect election records under the ColoradoOpen Records Act, Colo. Rev. Stat. 24-72-200.1 to-206 (2012). Specifically, two of the Clerks producedand publicized Powerpoint presentations thatexplained the ease with which they had used theirballot batching records to physically locate the votedballots of their own counties resident legislators in theColorado General Assembly. App., infra, 96a, 32; id.at 98a99a, 4344; C.A. App. 15368, 16981.

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Another Clerk publicized her performance of the sameexercise in which she located her own individual ballotwithin a batch of voted ballots. App., infra, 100a, 52;C.A. App. 174. When Citizen Center filed its firstsupplemental complaint, its additional allegationsshowed that disclosures of traceable ballots to thepublic had also occurred. For example, dozens ofindividually identifiable Jefferson County voters whohad voted on DRE machines in the November 2010election saw their individual voting preferencespublished to the world for nearly a year and a half ona county elections website. App., infra, 101a, 55.

Citizen Centers allegations also show that theexistence of the Clerks mechanisms for creating ballottraceability was a matter of public knowledge. Forexample, one of the Clerks went so far as to publiclytout the Governments ability to trace ballots back tovoters by publishing an editorial in the Denver Postthat told readers, it is disturbingly uncomplicated toidentify votes, and that, we are required to track yourballot. App., infra, 79a, 55.2. In its papers movingfor a preliminary injunction, further discussed infra,Citizen Center placed an affidavit before the districtcourt that revealed how a Citizen Center member hadused publicly available information to deduce andexplain to a Chaffee County commissioner how anyonecould identify a particular individuals voted ballotfrom among all othersand then proceeded to prove itby successfully locating the commissioners own ballot,to the commissioners surprise. C.A. App. 253, 20; id.at 328.

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Citizen Centers allegations show that the list ofpeople who have access to traceable voted ballots isstartlingly long and includes:

the county clerk and recorder (a partisan electedofficial), county elections staff, official observersfrom the Secretary of States office and the U.S.Department of Justice, county election systemvendors, the county canvass board (whosemembers are often designees of county politicalparties), the countys public resolution andduplication board, county elect ioncommissioners, volunteer election judges,student election judges, election watchers(appointed directly by partisan candidates andissue committees), media observers, electioncontestants and their experts, lawyers andwitnesses, observers of public recounts, courtofficials, public prosecutors and any others whomay from time to time lawfully view unredactedvoted ballots.

App., infra, 108a, 93.

While Colorado law makes it a misdemeanorelection offense for anyone to reveal how a personvoted, see, e.g., Colo. Rev. Stat. 1-13-712 (2014), manyof the people who have lawful access to traceable votedballots take no oath either to keep secret what theymay discover about individual voter preferences or toavoid acting on whatever knowledge they do comeacross; and Colorado law does not specifically prohibita person from making private use of such knowledge,should it be obtained.

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In its first supplemental complaint, Citizen Centeralleged that the list of people with access to traceablevoted ballots had been expanded by Colorados adoptionof a bill that allowed interested parties to an electionrecount, such as candidates, to inspect and, withoutrestriction, receive and retain copies of voted ballotsunder the Colorado Open Records Act. App., infra,80a81a, 93.2.

With all of these circumstances as background,Citizen Center alleged that its members in thedefendant counties wished to freely exercise theirfundamental right to vote in upcoming electionswithout fear of retaliation or fear of ever being calledupon to explain to anyone for whom or for what reasontheir votes were cast, (App., infra, 111a112a, 104),but that

some or all of them will not do so because of thefear that their individual voted ballot will not bea secret ballot, but will instead be traceable tothem personally and thus will remain subject tobeing identified by government officials andothers at any time after an election as theparticular ballot cast by that voter personally.

App., infra, 113a, 108 (emphasis added). In itspapers moving for a preliminary injunction, furtherdiscussed infra, Citizen Center amplified upon thesefactual allegations by submitting an affidavit thatshowed the district court that at least one CitizenCenter member did, in fact, refrain from votingaltogether during the June 2012 primary election,avowedly due in part to her aversion to having [her]private political choices known to election workers andothers. C.A. App. 303, 7.

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In addition to its allegations directed at stating aninjury-in-fact to its members free exercise of theirfundamental right to vote, Citizen Center also allegeddifferential treatment of its members relative to othersimilarly situated persons both within counties and indifferent counties in the form of disparate likelihoodsof their ballots being made identifiable as a result ofthe Clerks adopted voting systems and procedures. App., infra, 124a125a, 15556.

Finally, Citizen Center alleged that the votingsystems and procedures adopted by another ColoradocountyPitkinshow that a lawful Colorado electionmay be conducted without any need for theGovernment to compile and maintain information thatviolates secrecy in voting by permitting voted ballots tobe traceable to individual voters. App., infra, 108a, 92.

B. Proceedings In The District Court

Citizen Centers first amended complaint was filedin the district court on May 10, 2012, and its firstsupplemental complaint was filed on July 27, 2012. OnJune 4, 2012, the Secretary and the Clerks moved todismiss all of Citizen Centers claims. The Secretaryargued that Citizen Center lacked standing, while theClerks claimed both that Citizen Center lackedstanding and that Citizen Center had failed to state aclaim for relief.

On August 17, 2012, seven week prior to the 2012general election, while the two motions to dismiss werestill pending, Citizen Center moved for a preliminaryinjunction to prevent the Clerks of Boulder, Chaffee,and Eagle counties from using, and to prevent the

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Secretary from authorizing, uniquely marked ballots inthat upcoming election. In support of its injunctionmotion, Citizen Center provided the district court withdeclarations that showed the ballots used by Boulder,Chaffee, and Eagle counties in the immediatelypreceding primary election had been traceable back toidentifiable individual voters in those counties on avast scale. C.A. App. 250329, 394415. Thedeclarations showed that fully 99.9% of BoulderCountys 110,500 primary-election ballots contained thekinds of permanent unique and distinguishingnumbers and characters that made tracing possible. C.A. App. 396, 15. Citizen Center also produced adeclaration showing that at least one of its membershad not voted in the June 2012 primary election due inpart to her aversion to having my private politicalchoices known to election workers and others. C.A.App. 303, 7.

In response to Citizen Centers motion for injunctiverelief and supporting declarations, the Secretary,within seventy-two hours, adopted an emergencyelection rule that purported to ban all Colorado countyclerks from marking ballots with uniquely identifiableserial numbers and bar codes. C.A. App. 364, 37180. Despite this obvious concession by the Secretary, aparty-opponent, that Citizen Centers allegations ofballot traceabilityand of injury to voterswere valid,the district court commenced its injunction hearing bytaking argument on the issue of jurisdiction andconcluded the hearing by ruling from the bench thatCitizen Center had not alleged a judicially cognizableinjury-in-fact to its membersand thus lackedassociational standingbecause absolute anonymityin voting is not a legally protected interest under the

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federal theories that plaintiff has pursued. App.,infra, 66a.

The district court dismissed the case by orallygranting the Secretarys Rule 12(b)(1) motion and thatpart of the Clerks motion to dismiss that was based onRule 12(b)(1). The district court denied as moot thatpart of the Clerks motion which asserted under Rule12(b)(6) that Citizen Center had failed to state a claimfor relief. Finally, the district court denied CitizenCenter leave to amend. App., infra, 68a.

At Citizen Centers request, the district courtclarified in a subsequent order that its oral order ofdismissal (App. CD, infra, 42a71a) and finaljudgment (App. B, infra, 40a41a) had dismissedCitizen Centers entire case, including the firstsupplemental complaint. App. F, infra, 74a76a.

C. The Decision Of The Court Of Appeals

Citizen Center timely appealed. On appeal, CitizenCenter argued that it had alleged an injury-in-fact. The Clerks and Secretary opposed this argument onthe merits, while also asserting that the (evolving)election rules adopted by the Secretary during thependency of this case had mooted Citizen Centersclaims by preventing the future creation of traceableballots. Citizen Center disputed the claimed scope,permanency, and effectiveness of the Secretarys newrules.

The Tenth Circuit affirmed in part and reversed inpart. First, the court of appeals agreed with theSecretary and the Clerks that Citizen Centers claimswere partially rendered moot by the Secretarysadoption of Election Rules 10.8 and 10.9 during the

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appeal.3 The court of appeals understood these newrules to prohibit the unique numbering of paper ballotsand the post-certification maintenance of batches thatcontain identifiable voted ballots. App., infra, 10a14a.

Second, with respect to the remaining livepracticesthe use of a unique ballot on a single DREvoting machine and the Clerks pre-certificationbatching practicesthe court of appeals held thatCitizen Centers alleged injury-in-fact was toospeculative to confer standing to challengeinfringement of the rights to vote, to engage in freespeech and association, and to enjoy substantive dueprocess. App., infra, 18a24a. Specifically, the court ofappeals held that the risk that election officials coulddetermine how a member voted was speculativebecause Colorado law prohibits election officials frominquiring how a person voted. App., infra, 19a. Thecourt of appeals discounted Citizen Centers allegationsand other facts of record showing that such safeguardshad failed to prevent the Clerks from locating andrevealing particular voters ballots in the past becausethe court of appeals perceived that none of theidentified lapses had directly affected Citizen Centersmembers. App., infra, 20a. Accordingly, the court ofappeals concluded that Citizen Centers members only

3 Elections Rules 10.8 (Use of unique numbers on ballots) and 10.9(Tracking ballot batches), 8 Colo. Code Regs. 1505-1 (2012),which the Secretary and Clerks briefed to the court of appeals asmooting Citizen Centers claims, have since been modified andsuperseded by Election Rules 4.8.4 and 7.5.9, respectively. See 8Colo. Code Regs. 1505-1 (Oct. 30, 2014). The renumberedversions of the rules are substantively the same as the versionsthat were before the court of appeals.

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stood to be injured by ballot traceability when and iftheir ballots were actually traced in the future, andthat such a possibility remained speculative. App.,infra, 20a. The court of appeals also rejected thepossibility of a sufficiently concrete injury-in-factarising from the risk that traceable ballots might chillmembers from freely voting their consciences. App.,infra, 22a. The court of appeals held that such asubjective chill was too conjectural and, otherwise,Citizen Center does not provide plausible allegationsthat members intend to refrain from voting because ofthe possibility that their ballots might be traced. App.,infra, 23a, 24a.

Third, the court of appeals held that Citizen Centerdid allege an injury-in-fact for purposes of its equalprotection and procedural due process claims, (App.,infra, 24a26a), but that the dismissal of these equalprotection and procedural due process claims againstthe Clerks should be affirmed on the alternate groundof failure to state a claim, (App., infra, 30a36a). Withrespect to Citizen Centers equal protection claimsagainst the Clerks, in particular, the court of appealsaffirmed the district courts dismissal of those claims[b]ecause Citizen Center has not alleged that a countyclerk discriminated between voters in the samecounty. App., infra, 33a. The court of appeals heldthat, For the [equal protection] claims against theclerks to succeed, Citizen Center would need to allegea basis to hold a county clerk liable for inter-countydisparities. App., infra, 35a. The court of appealsnoted that equal protection in the voting contextprotects the right to participate in elections on anequal basis with other citizens in the jurisdiction,(App. 65a (citing Dunn v. Blumstein, 405 U.S. 330, 336

16

(1972)) (emphasis added)), and reasoned that thecounty itselfnot the State or any multicountypolitical districtwas the proper unit of jurisdictionfor purposes of analyzing an equal protection claimbrought against a county in connection with votingpractices. App., infra, 34a35a.

Finally, the court of appeals held that the districtcourt had erred by dismissing the equal protection andprocedural due process claims against the Secretaryand that those claims should be allowed to proceed. App., infra, 37a. Accordingly, the court of appealsreversed the district courts dismissal of those twoclaims with respect to the Secretary.

REASONS FOR GRANTING THE WRIT

The decision below creates serious obstacles to thevindication of voting rights that are unsupported bythis Courts case law on standing and equal protection. Review of the decision below on writ of certiorari isthus warranted for a number of reasons.

A. The Decision Of The Court Of AppealsConflicts With Precedent Of This Court

The Tenth Circuits analysis of Citizen Centersclaims conflicts with this Courts precedent, whichrejects any requirement that a plaintiff mustdemonstrate a subject-matter nexus between the rightasserted and the injury alleged. Duke Power Co. v.Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 79(1978). Instead of following Duke Power, the court ofappeals improperly required a nexus between CitizenCenters alleged injuries-in-fact and each of CitizenCenters particular legal theories.

17

On one hand, the court of appeals held that thepotential for ballots to be traced to individual voters, byitself, was too speculative a basis to establish injury-in-fact to Citizen Centers members, for Citizen Centersimply suggests that election officials might traceballots. App., infra, 20a, 22a (emphasis added). Thecourt of appeals also held that Citizen Centersallegation that its members would be burdened in theact of freely voting their consciences by theirconcerns about the nonsecret character of their ballotswas not sufficiently concrete to justify standing andwas too conjectural to establish an injury in fact. App., infra, 22a, 24a. Based on these conclusions, thecourt of appeals held that Citizen Center did not statea valid injury-in-fact for purposes of Citizen Centersclaims involving its members rights to vote, to engagein free speech and association, and to enjoy substantivedue process. App., infra, 15a.

On the other hand, the court of appeals affirmedboth that Citizen Centers allegation of [u]nequaltreatment can serve as an injury in fact, and thatCitizen Centers allegation of the violation ofmembers state constitutional rights was concrete andcognizable. App., infra, 24a26a. Based on theseconclusions, the court of appeals held that CitizenCenter did state valid injuries-in-fact for purposes ofits equal protection and procedural due process claims.

The selective determination by the court of appealsthat Citizen Center had stated injuries-in-fact thatwere sufficient to confer standing to bring claims undersome legal theories but not others was erroneousbecause all of Citizen Centers claims were based onthe very same conduct by the Secretary and the Clerks.

18

Establishing a causal connection between a defendantsconduct and a redressable injury is all that CitizenCenter was required to show in order to demonstratestanding with respect to all of its claims arising fromthe same conduct by the defendants. As this Court hasplainly held, plaintiffs need not go beyond showing aredressable injury to have standing; there is norequirement that they must also go a step further anddemonstrate a connection between the injuries theyclaim and the constitutional rights being asserted. Duke Power Co., 438 U.S. at 78.

Injuries-in-fact to Citizen Centers members thatwere effective to establish Citizen Centers standing forpurposes of its equal protection and procedural dueprocess claims should have been recognized as injuries-in-fact that also conferred standing with respect toCitizen Centers other claims arising from thedefendants same conduct. In other words, once thecourt of appeals found that Citizen Center had statedinjuries-in-fact under the equal protection andprocedural due process claims, it should have held thatthose acknowledged injuries-in-fact sufficed also toestablish Citizen Centers standing with respect to itsremaining claims involving members rights to vote, toengage in free speech and association, and to enjoysubstantive due process. The court of appeals departedfrom this Courts precedent by holding otherwise.

B. The Decision Of The Court Of Appeals IsWrong On The Merits

The decision below was also wrong, with respect tothe questions presented by this petition, for twoadditional reasons. First, the court of appealsmisapprehended the nature of the injury suffered by

19

voters when they are deprived of a secret ballot. Second, the court of appeals erred by concluding thatan equal protection claim cannot lie against a countythat treats all of its own voters uniformly.

1. The Right To Vote Is Infringed At TheMoment When A Voter Expresses HerElectoral Preferences Using A Ballot ThatShe Knows May Afterward Be Identified AsHers.

The fundamental right to vote is not the bare rightto cast a ballot. As articulated by this Court, it is theright to vote freely for the candidate of ones choice. Reynolds v. Sims, 377 U.S. 533, 555 (1964) (emphasisadded). This right to vote freely for the candidate ofone's choice is of the essence of a democratic society,and any restrictions on that right strike at the heart ofrepresentative government. Id. Other rights, eventhe most basic, are illusory if the right to vote isundermined. Wesberry v. Sanders, 376 U.S. 1, 17(1964).

To serve its fundamental purpose as a right at theheart of our democracy, Burson v. Freeman, 504 U.S.191 (1992), the right to vote ones conscience withoutfear of retaliation, McIntyre v. Ohio Elections Commn,514 U.S. 334, 343 (1995), inherently requires thatindividuals must be at liberty to cast votes without theburden of risking that they may later be called upon toexplain[] to anyone for whom, or for what reason, thevote is cast. Rogers v. Lodge, 458 U.S. 613, 647 n.30(1982).

The foregoing statements from decisions of thisCourt show that absolute secrecy of the ballot is well

20

understood to be an intrinsic prerequisite to the freeexercise of the right to vote. To say so is by no meanscontroversialballot secrecy, after all, is so universallyand unexceptionally acknowledged as essential to thefree exercise of the right to suffrage in a democracy thatthe United States, by law, does not even recognizeforeign states as being democracies unless they providefor voting by secret ballot. 22 U.S.C. 8203(6)(B).

Because a voters confidence in the secrecy of herballot is a prerequisite to the free exercise of herfundamental right to vote, the right to vote mustnecessarily be understood to be burdened whenever avoter who relies upon anonymity in voting knows thatthe assurance of ballot secrecy is only a hope, ratherthan a guarantee. Importantly, the burden on such avoters right to vote is imposed, and the relevant injury-in-fact thus occurs, not at the momentperhaps longafter an electionwhen the voters choices are actuallyinvestigated or discovered, but rather at the verymoment of voting itself. It is at the moment when thevoter engages in the act of completing her votingselections that she must consider whether the choicesshe is about to express on her ballot will one day returnto haunt her. It is in the very act of choosing whetheror not to express her genuine electoral preferences ona ballot that she knows may, for all practical purposes,have her name attached to it, that the voter isconcretely deprived of her ability freely to vote herconscience.

The court of appeals incorrectly focused on adifferent harm that may or may not arise later, after aballot is cast. But every voter who knows that herballot may be traceable, and who harbors a concern

21

about one day being called upon to explain for whom,or for what reason, the vote is cast, is certain to sufferan actual burden on her exercise of the fundamentalright to vote at the moment when she actually votes. That burden on the right to vote, which is borne at theactual moment of voting, is the injury to its membersthat Citizen Center has alleged in this case. App.,infra, 113a, 108. This alleged burden is neitherspeculative nor conjectural, but is rather a concreteinjury-in-fact that Citizen Centers members arecertain to suffer each time they vote, regardless ofwhether their individual ballots are ever actuallyinvestigated at some later hour.

The Tenth Circuits misconception of the trueinjury-in-fact inflicted upon the voting rights of CitizenCenters members led it to mistake Citizen Centersallegations of injury as speculative and non-concreteand thus to conclude erroneously that Citizen Centerlacked associational standing. The opposite conclusionwas warranted by at least three facts present in therecord.

First, Citizen Center affirmatively alleged that itsmembers want to freely exercise their fundamentalright to vote but that some or all of them will not doso because of the fear that their individual voted ballotwill not be a secret ballot. App., infra, 113a, 108(emphasis added). This straightforward allegationstates an injury that the district court and court ofappeals should have accepted as true at the motion-to-dismiss stage.

Second, the plausibility of the foregoing allegationwas substantiated by actual facts in the record. Thecourt of appeals stated that, Citizen Center does not

22

provide plausible allegations that members intend torefrain from voting because of the possibility that theirballots might be traced. App., infra, 23a. But thedeclarations provided in support of Citizen Centersmotion for a preliminary injunction showed, to thecontrary, that at least one identified member of CitizenCenter did actually refrain from voting in the June2012 primary election for reasons that included heraversion to having [her] private political choicesknown to election workers and others. C.A. App. 303, 7.

Third, Citizen Centers allegations show thatmembers fears for the anonymity of their own ballotswere valid both because ballot traceability was real andbecause the Clerks had shown that the Governmenthad made use of such traceability in the past. Aspreviously noted, one of the Clerks had written in theDenver Post that, it is disturbingly uncomplicated toidentify votes, and we are required to track yourballot. App., infra, 79a, 55.2. Other Clerks hadpublicized their ability to locate ballots cast byidentifiable individuals within batches of voted ballotsfrom past elections. C.A. App. 15368, 16981. Identifiable ballots of individual voters had beenpublicized for more than a year and a half on a countywebsite. App., infra, 101a, 55. And Citizen Centers own members had shown that they could themselvestrace voted ballots back to identifiable public officials. C.A. App. 253, 20; C.A. App. 328.

Because all of the foregoing matters were in therecord before the courts below, Citizen Centersallegations were clearly sufficient, at the motion-to-dismiss stage, to state an injury-in-fact to Citizen

23

Centers individual members and thus to establishCitizen Centers associational standing.

2. Counties Remain Subject To The EqualProtection Clause Even If They Treat AllOf Their Own Residents Uniformly

The equal protection holding below is mistaken forseveral reasons. First, a claim under the EqualProtection Clause is validly stated merely by allegingthat similarly situated persons have not been treatedalike. See City of Cleburne, Tex. v. Cleburne LivingCtr., 473 U.S. 432, 439 (1985). Nothing in thisformulation requires that the similarly situatedpersons must all receive their differing treatments atthe hands of the same governmental actor.

Second, it is entirely proper for the Clerks to answerCitizen Centers equal protection claims, even if each ofthem treats her own voters uniformly, because thecourt of appeals explicitly found the alleged equalprotection violations would be redressable by an orderentered against the Clerks. The court could remedythis injury by enjoining the clerks in the five countiesfrom conducting elections in a manner that would allowthe use of traceable ballots. App., infra, 28a(emphasis added). Particularly in cases involving onlyprospective relief, claims that seek to preventconstitutional violations that are redressable by ajudicial order directed to a particular defendant shouldbe capable of being brought against that defendant.

Third, the court of appeals appears to haveoverlooked that counties are components of largerpolitical districts, such as judicial districts and statesenate districts. Even if a county treats all of its own

24

voting residents uniformly, it may still be treatingthem differently than voters from other counties in acommon, multicounty political district are treated byother county governments. In such a case, theappropriate jurisdiction for purposes of equalprotection must necessarily be the common politicaldistrict, not its constituent counties. Each of theClerks here conducts elections that involve multicountypolitical contests in both general and primary elections. It is properly a matter for judicial notice that everycounty in Colorado is part of a multicountycongressional district. It may also properly bejudicially noticed that all Colorado counties are part ofa single, statewide district for purposes of electingstate-level officers and U.S. Senators. County linesalone thus do not define the proper unit ofjurisdiction when analyzing equal protectionquestions in the voting context under Dunn v.Blumstein, 405 U.S. at 336. Under the Tenth Circuitsunderstanding of equal protection, all of the voters inone county of a multicounty congressional district maybe uniformly deprived of their voting rights, withouthaving any recourse against their county clerk underthe Equal Protection Clause. Such a result would bemanifestly incorrect.

Fourth, the equal protection holding below isinconsistent with the reasoning in Bush v. Gore, 531U.S. 98 (2000), in which this Court found an equalprotection violation based on different countingmethodologies that were applied to ballots by differentcounties in a statewide recount, notwithstanding thateach county apparently treated all of its own votersballots the same.

25

The Tenth Circuits rationale for upholding thedismissal of Citizen Centers equal protection claimagainst the Clerks promises to have very significantramifications. The decision will effectively immunizecounties against otherwise redressable claims for equalprotection violations wherever the unequal treatmentoccurs across different counties rather than withincounties. Given the typically varied makeup of votingpopulations found across different counties withincommon political districts, the decision below seemslikely to invite a host of thorny, unforeseenconsequences.

C. This Case Is An Ideal Vehicle For ClarifyingThat The Right To Vote Entails The Right ToUse A Secret Ballot

The secret ballot is a protection for voters thatexists to guarantee that no oneincluding theGovernmentis ever in a position to know how aparticular person voted. When secrecy in voting isjeopardized, not only is the fundamental right to votenaturally burdened, but so too are all of a voters otherrights which are exercised through the act of voting. This case presents this Court with an ideal vehicle torecognize that the United States Constitutionmandates a strong form of ballot secrecy for all voters,by clarifying that the free exercise of the right to voteinherently requires that voters be permitted to voteusing a ballot and voting system that are designed topreserve the anonymity of voters individual electoralpreferences, including from the Government itself.

This Court has never directly addressed whetherthe Constitution requires that voters must bepermitted to vote by secret ballot in public elections.

26

But the Court has explicitly used the language of rightswhen discussing the secret ballot. See McIntyre, 514U.S. at 343 (calling the secret ballot the hard-wonright to vote ones conscience without fear ofretaliation) (emphasis added). And this Court hasexplicitly noted that secrecy of the ballot is necessaryto serve the compelling interest of protecting votersfrom intimidation during the act of voting itself. SeeBurson, 504 U.S. at 206.

Certain Justices of this Court have observed thatsecrecy of the ballot is fundamental to our system ofgovernment. See Rogers, 458 U.S. at 647 n.30 (Stevens,J., dissenting) ([T]he very purpose of the secret ballotis to protect the individuals right to cast a vote withoutexplaining to anyone for whom, or for what reason, thevote is cast.); Buckley v. Valeo, 424 U.S. 1, 237 (1976)(Burger, J., concurring in part and dissenting in part)([S]ecrecy and privacy as to political preferences andconvictions are fundamental in a free society. Forexample, one of the great political reforms was theadvent of the secret ballot as a universal practice.).

Other Justices have individually expressed doubtthat the Constitution requires voting by means of asecret ballot. See John Doe No. 1 v. Reed, 561 U.S. 186,224 (2010) (Scalia, J., concurring) (stating that thehistory of voting in the United States completelyundermines the claim that the acknowledged FirstAmendment interest in voting includes the right to voteanonymously); Taylor v. Beckham, 178 U.S. 548, 595(1900) (Harlan, J., dissenting) (stating that the U.S.government cannot interfere with States decisionswhether to hold elections by open or secret ballot).

27

Lower courts, to the extent they have addressedwhether the Constitution mandates secrecy in voting,have likewise come to opposite conclusions. CompareBarsky v. United States, 167 F.2d 241, 252 (D.C. Cir.1948) ([I]t was never thought, or suggested, thatpublic voting violated constitutional rights.), withAnderson v. Mills, 664 F.2d 600, 608 (6th Cir. 1981)(Although the US Constitution does not specificallyguarantee that a person has a right to a secret ballot,such a right has been recognized as one of thefundamental civil liberties of our democracy.).

This case affords an opportunity for this Court, inlight of the mixture of views collected in the foregoingjudicial pronouncements, to clarify that a voters freeexercise of the fundamental right to vote, which isprotected by the U.S. Constitution, inherently entailsthe right to cast votes by means of a secret ballot.

D. None Of The Issues Raised By The QuestionsPresented Are Moot In This Case

Citizen Center disagreed with the Secretary and theClerks below over whether the Secretarys electionrules, adopted in response to Citizen Centerspreliminary injunction motion, mooted any of CitizenCenters claims. Citizen Center argued that theSecretarys rules did not moot any claims because thenew rules do not effectively prohibit the creation oftraceable ballots and that the voluntary cessationexception to the mootness doctrine applied, in anyevent. See Friends of the Earth, Inc. v. Laidlaw Envtl.Svcs. (TOC), Inc., 528 U.S. 167, 190 (2000).

The court of appeals held that the Secretarys ruleshad mooted Citizen Centers claims by prohibiting the

28

unique numbering of paper ballots and the post-certification maintenance of batches containingidentifiable ballots. App., infra, 10a14a. But thecourt of appeals held that Citizen Centers claims werenot moot with respect to the creation of traceableballots cast on DRE machines and with respect to theClerks batching of traceable voted ballots before thefinal certification of an election. App., infra, 14a15a.

Based on the decision below with respect tomootness and the current state of the Secretarysregulations, the issues presented by this petition arevery much live controversies. Final certification of anelection can take months, particularly in case ofrecounts, election contests, and other electionlitigation. Accordingly, this Court should grant thewrit and proceed to address the questions presented.

CONCLUSION

The petition for a writ of certiorari should begranted.

Respectfully submitted,

Robert A. McGuire, III Counsel of RecordROBERT MCGUIRE LAW FIRM9233 Park Meadows DriveLone Tree, Colorado 80124(303) 952-5077ram@lawram.com

Counsel for Petitioner

FEBRUARY 2015

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion And Judgment In The UnitedStates Court Of Appeals For TheTenth Circuit (October 21, 2014) . . . . . . . . . . . App. 1a

Appendix B Final Judgment In The United StatesDistrict Court For The District OfColorado (September 25, 2012) . . . . . . . . App. 40a

Appendix C Reporters Transcript (MotionsHearing) In The United States DistrictCourt For The District Of Colorado(September 21, 2012) . . . . . . . . App. 42a

Appendix D Minute Entry In The United StatesDistrict Court For The District OfColorado (September 21, 2012) . . . . . . . . App. 70a

Appendix E Order Denying Petition For RehearingAnd Rehearing En Banc In TheUnited States Court Of Appeals ForThe Tenth Circuit (November 17, 2014) . . . . . . . . App. 72a

Appendix F Order Granting Plaintiffs Motion ToClarify In The United States DistrictCourt For The District Of Colorado(November 27, 2012) . . . . . . . . App. 74a

ii

Appendix G First Supplemental Complaint ForDeclaratory And Injunctive Relief InThe United States District Court ForThe District Of Colorado(July 27, 2012) . . . . . . . . . . . . . App. 77a

Appendix H First Amended Complaint ForDeclaratory And Injunctive Relief InThe United States District Court ForThe District Of Colorado(May 10, 2012) . . . . . . . . . . . . . App. 89a

App. 1a

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALSTENTH CIRCUIT

No. 12-1414

[Filed October 21, 2014]___________________________________CITIZEN CENTER, )

Plaintiff-Appellant, ))

v. ))

SCOTT GESSLER, in his official )capacity as Colorado Secretary of )State; ANGELA MYERS, in her )official capacity as Larimer County )Clerk & Recorder; PAM )ANDERSON, in her official )capacity as Jefferson County Clerk )& Recorder; HILLARY HALL, in )her official capacity as Boulder )County Clerk & Recorder; JOYCE )RENO, in her official capacity as )Chaffee County Clerk & Recorder; )and TEAK SIMONTON, in her )official capacity as Eagle County )Clerk & Recorder, )

Defendants-Appellees. )___________________________________ )

App. 2a

Appeal from the United States District Courtfor the District of Colorado

(D.C. No. 1:12-CV-00370-CMA-MJW)

Robert A. McGuire, III, McGuire Bains LLC, LoneTree, CO (Jeffrey David Baines, McGuire Baines LLC,Denver, CO, on the briefs), for Plaintiff-Appellant.

David Hughes, Boulder County Attorney, Boulder, CO,and LeeAnn Morrill, First Assistant Attorney General,Office of the Attorney General for the State ofColorado, Denver, CO (Writer Mott and DavidWunderlich, Assistant Jefferson County Attorneys,Golden, CO, David Ayraud and William G. Ressue,Larimer County Attorneys Office, Fort Collins, CO,Gillian Dale and Tom Lyons, Hall & Evans, Denver,CO, Bryan Treu, Eagle County Attorney, Eagle, CO,and Jennifer Davis, Chaffee County Attorney, Salida,CO, and John W. Suthers, Attorney General, with themon the briefs) for Defendants-Appellees.

Before HOLMES, McKAY, and BACHARACH,Circuit Judges.

BACHARACH, Circuit Judge.

In May 2012, election officials in six Coloradocounties (Larimer, Jefferson, Boulder, Chafee, Eagle,and Mesa) had the theoretical ability to learn howindividuals voted because the ballots were traceable.Citizen Center, a Colorado non-profit organization,sued the Secretary of State and the clerks for five of thesix counties, contending that the use of traceableballots violates members federal constitutional rightsinvolving: (1) voting, (2) free speech and association,(3) substantive due process, (4) equal protection, and

App. 3a

(5) procedural due process.1 In addition, Citizen Centerhas sued five of the clerks for violation of the ColoradoConstitution.2

All defendants moved to dismiss for lack ofstanding, and the clerks included an alternativeargument for dismissal under Federal Rule of CivilProcedure 12(b)(6). The district court dismissed thecomplaint on standing grounds without reaching themerits of the clerks argument under Rule 12(b)(6). R.vol. 3, at 497.

This appeal presents three types of issues:(1) mootness, (2) standing, and (3) sufficiency of theallegations against the clerks under Rule 12(b)(6). Weconclude:

! The claims are partially moot because theSecretary of State has adopted new regulationsbanning some of the challenged practices.

! Citizen Center has standing on the live partsof the claims involving denial of equal protectionand procedural due process, but Citizen Centers

1 The suit was brought against the clerks for all of the six counties.But the Clerk for Mesa County (Ms. Sheila Reiner) settled withCitizen Center.

2 Initially, the claims under the state constitution were alsoasserted against the Secretary of State. But, Citizen Centerwithdrew the state claims against the Secretary of State,admitting that they should have been asserted only against theclerks. R. vol. 1, at 118; see R. vol. 3, at 496 (district courtsacknowledgment that Citizen Center had conceded that the claimsunder the state constitution could not be maintained against theSecretary of State).

App. 4a

alleged injury in fact is too speculative forstanding on the live parts of the claimsinvolving the right to vote, engage in free speechand association, and enjoy substantive dueprocess.

! The first amended complaint failed to state avalid claim against the clerks for denial of equalprotection or procedural due process.

These conclusions result in termination of all claimsexcept the federal claims against the Secretary of Statefor denial of equal protection and procedural dueprocess.

I. Traceable Ballots

Analysis of the claims requires an understanding ofthe balloting practices in the six Colorado counties,Citizen Centers theories, and the Secretary of Statesregulatory changes designed to enhance ballot secrecy.

A. Challenged Balloting Practices

Citizen Center complains of the potential forelection officials in six Colorado counties to traceballots to individual voters. This potential allegedlyexists because:

(1) each ballot has a unique number or barcode,

(2) some ballots may be unique among theballots cast on an electronic voting machine,and

App. 5a

(3) some ballots may be unique within a batch ofballots.3

R. vol. 1, at 25, 27-31, 33-34.

According to Citizen Center, ballots are traceablewhen they bear unique numbers or barcodes. Uniquenumbers or barcodes are used in three of the counties.Id. at 31, 33-34. In these counties, ballots are traceablebecause an election official who identifies a voter witha unique ballot can later identify the ballot asbelonging to that particular voter. Id. at 27-34.

Citizen Center also contends that election officialscan trace ballots that are unique among those cast onan electronic-voting machine. In each of the sixcounties, officials record the date of voting, themachines unique identifier, and the precinct numberor ballot style used by the voter. Id. at 27, 29-30, 32-33,35. By comparing this information with available data,Citizen Center argues, election officials can trace a

3 The clerks state that traceable ballots are used to: (1) prevent[]election fraud by ensuring that ballots are not duplicated or doublecounted; (2) prevent[] human error by establishing an electronicmeans of preventing double counting; (3) ensure[] that problematicballots (such as those with improper marks, under-votes, and over-votes) can be quickly reviewed by bi-partisan election judges todetermine the intent of the voter; (4) allow[] the processing of the[voluminous number of] ballots submitted in a general electionin a timely and orderly fashion; (5) allow[] a thorough and accuratepost-election audit to help ensure that every vote[] [has] beenproperly counted; (6) and conduct[] an accurate canvass, requiredby law, in which election staff must execute a very detailedreconciliation of the election and ensure accurate accounting ofballots printed, received, and counted. R. vol. 3, at 362; see id. at351, 356.

App. 6a

ballot whenever it is unique among the ballots cast ona particular voting machine. See id. at 27-30, 32-35.

The potential for tracing also allegedly existsbecause some ballots may be unique within a singlebatch. Four of the counties (Mesa, Larimer, Jefferson,and Boulder) process and store mail-in (absentee)ballots in discrete batches. Id. at 25, 27, 29, 32. Eachbatch is associated with a batch sheet listing thenames, voter identification numbers, precinct numbers,ballot styles, and other information for the voterswhose ballots are included in the batch. Id. at 25, 27,30, 32. Because batches are relatively small, someballots may be unique within the batch. Thus, CitizenCenter alleges that election officials will sometimes beable to trace a ballot by comparing the content toinformation in the batch sheet. Id. at 25-26, 28, 30, 32.

B. Citizen Centers Theories

Citizen Centers members include voters from thesix counties who intend to freely vote theirconscience[s] in upcoming elections. Id. at 38. But themembers allegedly fear that their ballots will be tracedand that votes are subject to being identified bygovernment officials and others at any time after anelection. Id. at 41. Thus, Citizens Center fears thatmembers may not freely exercise their fundamentalright to vote because of the possibility of tracing. Id. at42, 44.

Citizen Center contends that the counties electionprocedures substantially burden, infringe and chillmembers constitutional rights to: (1) vote, (2) engagein free speech and association, (3) enjoy substantive

App. 7a

and procedural due process, and (4) enjoy equalprotection. Id. at 42, 44-48, 51, 53.

C. Actual Tracing of Ballots

Colorado election officials must swear not toinquire or disclose how any elector shall have voted.Colo. Const. art. VII, 8. Thus, all mail ballots areprovided to voters with a secrecy envelope or sleeve toprevent officials from learning how a citizen voted.Colo. Rev. Stat. 1- 7.5-103(5).

Citizen Center alleges that election officials in threecounties have either traced individual ballots or failedto adequately safeguard the secrecy of voters ballots.According to Citizen Center, officials in Mesa andLarimer counties traced the ballots of identified publicofficials and publicized the ability to trace ballots. R.vol. 1, at 26, 28. And Jefferson County allegedlypublished the electoral choices of 30 identifiable votersfor nearly a year and a half. Id. at 30-31; R. vol. 2, at210.

D. The Secretary of States RegulatoryChanges

The Secretary of State bears responsibility forregulating election procedures for each Coloradocounty. Colo. Rev. Stat. 1-1-110(1) (The county clerkand recorder . . . shall . . . follow the rules and orderspromulgated by the secretary of state pursuant to thiscode.); see 8 Colo. Code Regs. 1505-1:7.1 (requiringapproval by the Secretary of State on all mail ballotplans).

Citizen Center challenges the constitutionality ofvoting procedures in the 2012 election. R. vol. 1, at 41.

App. 8a

But the Secretary of State has revised its electionregulations. See 8 Colo. Code Regs. 1505-1. Thecurrent regulations: (1) prohibit counties from printingballots with unique numbers or barcodes, (2) requirecounties using rotating numbers to print at least tenballots of each ballot style for each number, and(3) direct county clerks to dissociate any batch numberthat could trace a ballot back to the specific voter whocast it from the counted ballots no later than the finalcertification of the abstract of votes cast. Id. 1505-1:4.8.4(a), 1505-1:7.5.8.

II. Mootness

The Defendants contend that the action is mootbecause: (1) Citizen Center challenged only the 2012election procedures and the election has passed, (2) theSecretary of State has adopted new regulationssuperseding the procedures being challenged, and(3) the action is prudentially moot. Clerks Br. at 8-14;Secys Br. at 30-34. We reject the Defendants first andthird arguments. But the new regulations moot thechallenges to some of the balloting practices.

A. The Choice Between JurisdictionalIssues

Mootness and standing are jurisdictional.WildEarth Guardians v. Pub. Serv. Co. of Colo., 690F.3d 1174, 1182 (10th Cir. 2012). Because [t]here is nomandatory sequencing of nonmerits issues, we haveleeway to choose among threshold grounds fordenying audience to a case on the merits. SinochemIntl Co. v. Malaysia Intl Shipping Corp., 549 U.S. 422,431 (2007) (quoting Ruhrgas AG v. Marathon Oil Co.,

App. 9a

526 U.S. 574, 584, 585 (1999)). We begin by addressingmootness.

B. The Requirement of a Live Controversy

[T]he existence of a live case or controversy is aconstitutional prerequisite to federal courtjurisdiction. McClendon v. City of Albuquerque, 100F.3d 863, 867 (10th Cir. 1996). A federal court mustorder dismissal for mootness if the controversy endsprior to a decision even if a justiciable controversyexisted when the suit began. Jordan v. Sosa, 654 F.3d1012, 1023 (10th Cir. 2011). Because Citizen Centerseeks only prospective equitable relief, past exposure toillegal conduct would not establish a live controversy inthe absence of continuing ill effects. See Beattie v.United States, 949 F.2d 1092, 1093-94 (10th Cir. 1991)([P]ast exposure to illegal conduct does not in itselfshow a present case or controversy regarding injunctiverelief . . . if unaccompanied by any continuing, presentadverse effects. (quoting OShea v. Littleton, 414 U.S.488, 495-96 (1974))).

C. The Defendants Burden

Because the Defendants argue that there is nolonger a live case or controversy, they mustdemonstrate mootness. In re Paige, 584 F.3d 1327,1336 (10th Cir. 2009).

D. The 2012 Election

The clerks argue that the action is moot in partbecause: (1) Citizen Center challenged only theprocedures in the 2012 presidential election, and(2) this election has come and gone. Clerks Br. at 8-9.

App. 10a

This argument misconceives the nature of the reliefsought.

Generally, a claim for prospective injunctionbecomes moot once the event to be enjoined has comeand gone. See Utah Animal Rights Coal. v. Salt LakeCity Corp., 371 F.3d 1248, 1257 (10th Cir. 2004)(holding that the plaintiffs application to protestduring the Olympics was moot because the Olympicshad already taken place). But Citizen Center sought toenjoin the use of traceable ballots for all futureelections. See R. vol. 1, at 39-40 (noting CitizenCenters members face injury in other futureelections). Thus, the passing of the 2012 election didnot render the action moot. See Consumer Party v.Davis, 778 F.2d 140, 146 n.12 (3d Cir. 1985) (notingthat a request for a preliminary injunction, growing outof elections, did not become moot after the electionspassed because the requested relief would apply tofuture elections).

E. New Regulations

The Defendants also assert that the Secretary ofStates new regulations4 render the case moot onconstitutional and prudential grounds. In response,Citizen Center urges us to apply the voluntary-cessation exception. We conclude:

! The new regulations partially moot the case.

! Neither the voluntary-cessation exception northe prudential mootness doctrine applies.

4 We analyze the current regulations, which took effect onDecember 30, 2013.

App. 11a

1. Partial Mootness

Citizen Center challenges three types of countyballoting practices: (1) use of a unique number orbarcode; (2) use of a unique ballot among the ballotscast on a voting machine; and (3) use of a unique ballotwithin a batch. R. vol. 1, at 25, 27-31, 33-34. Generally,an action becomes moot when someone challenges aregulation and it is repealed. Citizens for ResponsibleGovt State Political Action Comm. v. Davidson, 236F.3d 1174, 1182 (10th Cir. 2000). But, a repeal does notmoot the case when the remaining regulations allowcontinuation of the conduct being challenged. See id.Some of Citizen Centers challenges became moot withthe new regulations.

The new regulations address some of the disputedpractices by: (1) barring counties from printing ballotswith unique numbers or barcodes, and (2) requiringcounties to dissociate batch numbers from ballotsbefore final certification of the vote. 8 Colo. Code Regs. 1505-1:4.8.4(a), 1505-1:7.5.8.

These regulations moot Citizen Centers challengesto:

(1) the use of unique numbers and barcodes, and

(2) the use of a unique ballot within a batchafter final certification of the vote.

But the new regulations do not moot the remainingchallenges.

The clerks point out that the new regulationsrequire counties to print at least ten ballots of eachballot style for each number. Id. 1505- 1:4.8.4; see

App. 12a

Clerks Br. at 11. But this requirement does not mootthe claims. Though the counties will use ten copies ofevery ballot style, some ballots may remain traceablebecause they will be unique among the ballots cast ona single voting machine or within a batch beforecertification. Therefore, Citizen Centers challenges arenot moot with respect to the use of a unique ballotamong the ballots cast on a voting machine and use ofa unique ballot within a batch before final certificationof the vote.

2. The Voluntary-Cessation Exception

Citizen Center argues that we should apply thevoluntary-cessation exception to the mootness doctrine.Citizen Ctr.s Reply Br. at 8-11. This exception does notapply.

A defendants voluntary cessation of a challengedpractice rarely moots a federal case because a partyshould not be able to evade judicial review, or to defeata judgment, by temporarily altering questionablebehavior. Unified Sch. Dist. No. 259 v. DisabilityRights Ctr. of Kan., 491 F.3d 1143, 1149 (10th Cir.2007) (quoting City News & Novelty, Inc. v. City ofWaukesha, 531 U.S. 278, 284 n.1 (2001)). Nonetheless,a defendants voluntary cessation moots a case when achallenged regulation is repealed and the governmentdoes not openly express intent to reenact it. Camfieldv. City of Okla. City, 248 F.3d 1214, 1223-24 (10th Cir.2001). But a case is not moot if a challenged regulationis repealed and there are clear showings of reluctantsubmission [by government actors] and a desire toreturn to the old ways. Rio Grande Silvery Minnow v.Bureau of Reclamation, 601 F.3d 1096, 1117 (10th Cir.2010) (alteration in original) (quoting 13C Charles Alan

App. 13a

Wright, Arthur M. Miller & Edward H. Cooper, FederalPractice and Procedure 3533.6, at 311 (3d ed. 2008)).

Citizen Center makes two arguments:

(1) The Secretary of State has revised itsregulations multiple times during thislitigation, allowing emergency regulations tolapse.

(2) The clerks have expected some regulations tobe overturned or modified.

Citizen Ctr.s Reply Br. at 10-11. We reject botharguments.

First, the Secretary of States revisions do notindicate a desire to return to old ways. With eachrevision, the Secretary has enacted stricter orsubstantively similar regulations, and Citizen Centerdoes not suggest that the new regulations will bewatered down.5

Second, the clerks have not threatened to defy theSecretarys new regulations. Disagreeing with aregulation is not the same as refusing to follow it,especially when the clerks ballot plans requireapproval by the Secretary of State. Thus, thevoluntary-cessation exception does not apply andCitizen Centers challenges are moot with respect tothe use of unique numbers and batching aftercertification of the vote.

5 Although the Secretary of State allowed the emergencyregulations to lapse between December 2012 and May 2013,Citizen Center does not claim that any elections took place duringthat time. See Citizen Ctr.s Reply Br. at 4.

App. 14a

3. Prudential Mootness

Finally, the clerks urge us to apply the prudentialmootness doctrine to the portion of the case that wouldotherwise survive. Clerks Br. at 13. The doctrine ofprudential mootness does not apply.

A case is prudentially moot if circumstances [have]changed since the beginning of litigation that forestallany occasion for meaningful relief. S. Utah WildernessAlliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997).We may decline to grant relief when the government. . . has already changed or is in the process of changingits policies or where it appears that any repeat of theactions in question is otherwise highly unlikely. Bldg.& Const. Dept v. Rockwell Intl Corp., 7 F.3d 1487,1492 (10th Cir. 1993).

The regulatory changes would not halt the threat oftraceable ballots when voters use unique numbers orbarcodes and the ballots are unique within a batchprior to final certification of the vote. Thus, a judgmentfor Citizen Center could provide meaningful relief. Inthese circumstances, the prudential mootness doctrinedoes not apply.

F. Conclusion

Enactment of the current regulations moots theclaims involving:

(1) the use of unique numbers and barcodes onballots, and

(2) the use of a unique ballot within a batchafter certification of the vote.

App. 15a

But the new regulations continue to allow use ofunique ballots on an electronic voting machine andbatching practices before final certification. Thus,Citizen Centers challenges to these practices are notmoot.

III. Standing

As discussed above, a live controversy remains onthe use of a unique ballot on a single voting machineand pre-certification batching practices. We thereforeaddress Citizen Centers standing to challenge theseprocedures. In doing so, we conclude that CitizenCenter lacks standing on the claims involvingmembers rights to vote, engage in free speech andassociation, and enjoy substantive due process.

A. Standard of Review

The district court dismissed the entire complaint forlack of standing. R. vol. 3, at 497. We review thatdecision de novo. United States v. Colo. Supreme Court,87 F.3d 1161, 1164 (10th Cir. 1996). In conducting denovo review, however, we must assume that theamended complaint is true and construe the allegationsin favor of Citizen Center. Cressman v. Thompson, 719F.3d 1139, 1144 (10th Cir. 2013).

B. Elements of Constitutional Standing

Constitutional standing involves three elements:(1) injury in fact; (2) causation; and (3) redressability.Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61(1992). Citizen Center can pursue its claims only if itsmembers would have standing to sue in their ownright. Hunt v. Wash. State Apple Adver. Commn, 432

App. 16a

U.S. 333, 343 (1977). Thus, we must consider whetherthe members could sue on their own.

1. Identification of Members

The Secretary of State challenges the ability of anymembers to sue, arguing that Citizen Center failed toidentify a single member who was harmed. Secy ofStates Br. at 20. The district court did not address thischallenge. Nonetheless, we can affirm the dismissal onany ground supported by the record. See Ridge at RedHawk, L.L.C. v. Schneider, 493 F.3d 1174, 1178 n.4(10th Cir. 2007). Thus, we will address the Secretary ofStates challenge involving identification of the CitizenCenter members.

For purposes of argument, we can assume thatCitizen Center bore an obligation to identify at leastsome of the members who were harmed. See Summersv. Earth Island Inst., 555 U.S. 488, 498 (2009). Evenwith this assumption, we would conclude that CitizenCenter has satisfied its obligation by identifyingmembers being harmed.

In addressing this issue, we can review the entirerecord to assess Citizen Centers standing. See N.H.Right to Life Political Action Comm. v. Gardner, 99F.3d 8, 16 (1st Cir. 1996). In the record on appeal,Citizen Center presented affidavits identifying elevenindividuals harmed by the use of traceable ballots. R.vol. 2, at 250-57; R. vol. 3, at 394-415. And theseaffidavits were in the district courts record at the timeof the ruling on the motion to dismiss. Thus, weconclude that Citizen Center has sufficiently identifiedits individual members for purposes of standing.

App. 17a

Because the affected members are sufficientlyidentified, we address whether Citizen Center hasadequately alleged the constitutional elements ofstanding: injury in fact, causation, and redressability.

2. Injury in Fact

Injury in fact involves invasion of a legally protectedinterest that is concrete, particularized, and actual orimminent. Lujan v. Defenders of Wildlife, 504 U.S, 555,560-61 (1992); Clapper v. Amnesty Intl USA, ___ U.S.___, 133 S. Ct. 1138, 1147 (2013). An imminent orthreatened injury must be certainly impending toconstitute injury in fact, and . . . allegations of possiblefuture injury are not sufficient. Clapper, ___ U.S. ___,133 S. Ct. at 1147 (internal quotation marks omitted).

The district court determined that no injury in factexisted because absolute anonymity in voting is not alegally protected federal interest. R. vol. 3, at 474-75.The clerks defend this conclusion. Clerks Br. at 16(quoting R. vol. 3, at 472).

We reject the courts rationale because it conflatesstanding with the merits. For purposes of standing,the question cannot be whether the Constitution,properly interpreted, extends protection to theplaintiffs asserted right or interest. If that were thetest, every losing claim would be dismissed for want ofstanding. Initiative & Referendum Inst. v. Walker, 450F.3d 1082, 1092 (10th Cir. 2006) (en banc). Rather, wemust assume for purposes of the standing inquiry thateach claim is legally valid. Id.

Though we do not consider the merits in connectionwith standing, we do consider whether the plaintiffshave a legal right to do what is allegedly being

App. 18a

impeded. Id. at 1093. For example, a plaintiff lacksstanding to complain about his inability to commitcrimes because no one has a right to commit a crime.Id.

We must apply these principles to Citizen Centerstheories of injury, analyzing the allegations in theamended complaint to determine if they wouldconstitute a concrete, particularized invasion of a rightheld by members.

a. Citizen Centers General Theoriesof Injury

Citizen Center alleges injury to members based ontheir

! desire to freely vote their consciences and

! fears that government officials might learn howmembers voted by tracing their ballots.

R. vol. 1, at 38-45.

This claim suggests two potential injuries:

1. the risk that election officials might determinehow a member voted; and

2. a chilling effect on the members consideringwhether to vote.

Citizen Ctr.s Opening Br. at 16-19. These allegedinjuries do not support standing.

App. 19a

i. Risk that Election OfficialsMight Determine How aMember Voted

Citizen Center alleges an injury in fact from therisk that election officials could determine how amember voted. Id. at 18. This allegation does notinvolve an injury in fact.

To address this allegation, we must consider howthis risk would be affected by the use of traceableballots. Citizen Center does not assert an abstract,freestanding right to an untraceable ballot. Instead,Citizen Center claims that the clerks use of traceableballots burdens other rights (the right to vote, engagein free speech, exercise the right to a secret ballot,enjoy equal protection, and enjoy due process). Each ofthese rights would allegedly be affected because of therisk that an election official might trace a ballot anddiscover how a member voted.

But that risk is speculative because of existingsafeguards in the Colorado Constitution. For example,that constitution forbids election officials frominquiring about how a person voted. Colo. Const. art.VII, 8.

Citizen Center alleges that these safeguards mightnot prevent election officials from tracing ballots andlearning how members voted. See R. vol. 1, at 28-31,33-34. According to Citizen Center, this possibility isreal because election officials occasionally traced theballots of public officials and the Jefferson CountyClerk once disclosed the electoral choices of 30unnamed, but identifiable, voters. Id. at 26, 28, 30- 31.

App. 20a

This possibility is speculative, for Citizen Centerdoes not allege that

! its members were among those whose ballotswere traced, or

! election officials are likely to trace any of themembers ballots.

In the absence of these allegations, Citizen Centersimply suggests that election officials might traceballots and violate the Colorado Constitution byinvestigating the electoral choices of particularindividuals. This sort of speculation does not suffice forstanding. See City of Los Angeles v. Lyons, 461 U.S. 95,105 (1983) (standing cannot be based on speculationthat the plaintiff might be subjected to an illegalchokehold by a police officer); OShea v. Littleton, 414U.S. 488, 496-97 (1974) (speculative risk of arrest is notan injury in fact). Thus, an injury in fact cannot comefrom the risk that officials might trace a ballot.

Relying on two cases from other circuits, CitizenCenter argues that an injury in fact arises from therisk that election officials might trace ballots anddisclose how a member voted. Citizen Ctr.s OpeningBr. at 16; see Stewart v. Blackwell, 444 F.3d 843, 854(6th Cir. 2006), vacated, 21 473 F.3d 692 (6th Cir. 2007)(en banc) (per curiam); Greidinger v. Davis, 988 F.2d1344, 1352 (4th Cir. 1993). The two cases aredistinguishable.

In Greidinger v. Davis, the state conditionedregistration to vote on disclosure of the voters socialsecurity number. Id. at 1345. The court did notexpressly address standing, and the burden on the

App. 21a

Greidinger plaintiff differs from the burden on CitizenCenters members.

The Greidinger plaintiff refused to supply his socialsecurity number to election officials, who then deniedhis application for voter registration. 988 F.3d at 1345-46. The Fourth Circuit Court of Appeals concluded thatthe states requirement provided a condition on theplaintiffs right to vote. Id. at 1352.

Our case is different. In Greidinger, the plaintiffwas not allowed to vote. Id. at 1345-46. Here, none ofthe Citizen Center members have been told that theycannot vote. Instead, Citizen Center argues only thatthe use of traceable ballots discourages voting. Withthe difference in circumstances and absence of anydiscussion of standing, Greidinger provides littleguidance for our determination of standing.

The injury in Stewart v. Blackwell stemmed fromdeficiencies in voting equipment. Stewart, 444 F.3d at846. A Sixth Circuit Court panel concluded that theplaintiffs had standing because the deficiencies madeit inevitable that mistakes had taken place and wouldcontinue. Id.6 Here, the Citizen Center members cannotplausibly argue that their votes will inevitably betraced. Instead, the members can only speculate aboutthis possibility.

Unlike the injuries at issue in Greidinger andStewart, the alleged injury here may never take place.

6 The Sixth Circuit Court of Appeals later vacated the panelopinion because the case had become moot. Stewart v. Blackwell,473 F.3d 692 (6th Cir. 2007) (en banc) (per curiam).

App. 22a

For this risk of injury to take place, three things wouldneed to occur:

1. At least one member would vote.

2. One of the clerks would trace that membersballot.

3. The clerk would inquire into (and possiblyreveal) the electoral choices after tracing theballot.

This series of possibilities is too speculative to conferArticle III standing. See Clapper v. Amnesty Intl USA,___ U.S. ___, 133 S. Ct. 1138, 1147 (2013) ([W]e haverepeatedly reiterated that threatened injury must becertainly impending to constitute injury in fact, andthat [a]llegations of possible future injury are notsufficient. (second alteration in original) (quotingWhitmore v. Arkansas, 495 U.S. 149, 158 (1990))).Consequently, Citizen Center lacks standing based onthe potential for election officials to determine how amember voted.

ii. The Chilling Effect onMembers

Citizen Center also alleges injury in part from therisk that traceable ballots might chill members fromfreely voting their consciences. Citizen Ctr.s OpeningBr. at 18-19. This alleged injury is not sufficientlyconcrete to justify standing.

The Supreme Court has never upheld standingbased solely on a governmental policy lackingcompulsion, regulation, or constraints on individualaction. See Clapper v. Amnesty Intl USA, ___ U.S. ___,

App. 23a

133 S. Ct. 1138, 1153 (2013) (stating that the SupremeCourt has never held that plaintiffs can establishstanding simply by claiming that they experienced achilling effect that resulted from a governmentalpolicy that does not regulate, constrain, or compel anyaction on their part).

To the contrary, the Supreme Court held in Laird v.Tatum, 408 U.S. 1, 13-14 (1972), that a chilling effectdoes not suffice as an injury in fact. There, theplaintiffs invoked the First Amendment, alleging achilling effect from the existence of investigativeactivity. Laird, 408 U.S. at 10. The Supreme Courtrejected this argument: Allegations of a subjectivechill are not an adequate substitute for a claim ofspecific present objective harm or a threat of specificfuture harm. Id. at 13-14.

We interpreted Laird in Initiative and ReferendumInstitute v. Walker, 450 F.3d 1082, 1089 (10th Cir.2006) (en banc). In Initiative and Referendum Institute,we addressed a first amendment challenge to a stateconstitutional provision. Initiative & Referendum Inst.,450 F.3d at 1085. Based on Laird, we required theplaintiffs to present evidence that they had intended torefrain from the desired activity because of a crediblethreat that the government would enforce therestriction. Id. at 1089.

This requirement is missing here because CitizenCenter does not provide plausible allegations thatmembers intend to refrain from voting because of thepossibility that their ballots might be traced. Instead,the members indicate in the amended complaint thatthey do intend to vote despite the possibility of tracing.R. vol. 1, at 38. There Citizen Center alleges that its

App. 24a

members include electors who intend to freely votetheir conscience in the 2012 primary and general,special district, municipal and coordinated elections,and elections held thereafter in their respectivecounties. Id.7

Citizen Centers alleged chill is too conjectural toestablish an injury in fact. See Laird, 408 U.S. at 13-14n.7 (Even assuming a justiciable controversy, ifrespondents themselves are not chilled . . . [they]clearly lack that personal stake in the outcome of thecontroversy essential to standing. (quoting Baker v.Carr, 369 U.S. 186, 204 (1962))). Accordingly, CitizenCenter lacks standing to pursue a claim that memberssuffer a chilling effect.

b. The Equal Protection Claims

For the federal and state equal protection claims,Citizen Center alleges an additional injury in fact: theunequal imposition of the risk of a traceable ballot andrelated ability to discover how a member voted,depending on the location of the voters residence.Citizen Ctr.s Opening Br. at 17. At the pleading stage,this allegation is sufficient for an injury in fact on theequal protection claims.

7 Later, Citizen Center appeared to retreat from th