Case 1:21-cv-03384 Document 1 Filed 12/16/21 USDC Colorado Page 1 of 14

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO
PUBLIC INTEREST LEGAL FOUNDATION, INC.,
Plaintiff,v.
JENA GRISWOLD, in her official capacity as
Secretary of State for the State of Colorado,

Civil Case No. ______________

Defendant.
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Plaintiff Public Interest Legal Foundation, Inc., by and through counsel, brings this action
for declaratory and injunctive relief against Defendant for violations of the Public Disclosure
Provision of the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20507(i)(1).
JURISDICTION AND VENUE
1.

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, because

the action arises under the laws of the United States. This Court also has jurisdiction under 52
U.S.C. § 20510(b), because the action seeks injunctive and declaratory relief under the NVRA.
2.

This Court also has jurisdiction because Plaintiff complied the NVRA’s pre-litigation notice requirements and Defendant failed to cure her violation of law in the time the
NVRA affords. See 52 U.S.C. § 20510(b)(1)-(2).
3.

Venue in this Court is proper under 28 U.S.C. § 1391(b)(1), because the

Defendant resides in this district, and under 28 U.S.C. § 1391(b)(2), because a substantial part ofthe events or omissions giving rise to the claim occurred in this district.

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PARTIES
4.

The Public Interest Legal Foundation, Inc., (“Foundation”) is a non-partisan,

501(c)(3) public interest organization incorporated and based in Indianapolis, Indiana. The
Foundation promotes the integrity of elections nationwide through research, education, remedial
programs, and litigation. The Foundation regularly utilizes the NVRA’s Public Disclosure
Provision and state and federal open records laws that require government records be madeavailable to the public. Using records and data compiled through these open records laws, theFoundation analyzes the programs and activities of state and local election officials in order todetermine whether lawful efforts are being made to keep voter rolls current and accurate inaccordance with federal and state law, and to determine whether eligible registrants have been
improperly removed from voter rolls. The Foundation also uses records and data to produce anddisseminate reports, articles, blog and social media posts, and newsletters in order to advance thepublic education aspect of its organizational mission.
5.

Defendant Jena Griswold is the Secretary of State for the State of Colorado.

Defendant has been designated Colorado’s chief election official “[t]o coordinate theresponsibilities of the state of Colorado under the federal ‘National Voter Registration Act of
1993.’” C.R.S. 1-1-107(1)(d); 52 U.S.C. § 20509. Defendant is sued in her official capacity only.
BACKGROUND
The NVRA
6.

The NVRA provides, in relevant part, “Each State shall maintain for at least 2

years and shall make available for public inspection and, where available, photocopying at areasonable cost, all records concerning the implementation of programs and activities conducted2

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for the purpose of ensuring the accuracy and currency of official lists of eligible voters[.]” 52
U.S.C. § 20507(i)(1) (hereafter, the “Public Disclosure Provision”). 1
7.

The Public Disclosure Provision “embodies Congress’s conviction that Americans

who are eligible under law to vote have every right to exercise their franchise, a right that mustnot be sacrificed to administrative chicanery, oversights, or inefficiencies.” Project Vote/Voting
for Am., Inc. v. Long, 682 F.3d 331, 334-35 (4th Cir. 2012).
8.

The Public Disclosure Provision is designed to “ensure that election officials are

fulfilling their list maintenance duties” and is “available to any member of the public.” Bellitto v.
Snipes, No. 16-cv-61474, 2018 U.S. Dist. LEXIS 103617, at *12 (S.D. Fla. Mar. 30, 2018). The
Public Disclosure Provision “convey[s] Congress’s intention that the public should bemonitoring the state of the voter rolls and the adequacy of election officials’ list maintenanceprograms. Accordingly, election officials must provide full public access to all records related totheir list maintenance activities, including their voter rolls.” Id. at *12-13.
The Electronic Registration Information Center
9.

The Electronic Registration Information Center (“ERIC”) “is a non-profit

organization with the sole mission of assisting states to improve the accuracy of America’s voter
rolls and increase access to voter registration for all eligible citizens.” Home,
https://ericstates.org/.
10.

ERIC is “is managed by a Board of Directors comprised of a representative fromeach member state – either its chief election official or their designee.” ERIC: Summary ofMembership Guidelines and Procedures, https://ericstates.org/wp-

The records described by the Public Disclosure Provision are common referred to as “voter list maintenancerecords.”

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content/uploads/2019/06/ERIC-Membership-Summary-v20190603.pdf (last accessed Dec. 16,2021) (hereafter, “ERIC Membership Guidelines”).
11.

ERIC “[m]embers pay a one-time membership fee of $25,000” and “annual

dues.” Id.
Colorado has been a member of ERIC since 2012. 2 See ERIC 2017 Annual

12.

Report at 9, https://ericstates.org/wpcontent/uploads/2019/01/FINAL_ERIC_2017_Annual_Report.pdf (last accessed Dec. 16, 2021)(hereafter, “ERIC Annual Report”).
13.

All members of ERIC, including Colorado, signed the ERIC “Membership

Agreement,” which “sets forth the terms and conditions of membership” in ERIC. ERIC Bylaws,
Article II, Section 3 (PDF page 4), https://ericstates.org/wpcontent/uploads/2020/02/ERIC_Bylaws_01-2020.pdf (hereafter, “ERIC Bylaws”) (last accessed
Dec. 16, 2021).
14.

Per the ERIC Membership Agreement, Colorado provides the following to ERIC

“every sixty (60) days”:•“(1) all inactive and active voter files” and,•“(2) all licensing or identification contained in the motor vehicles database.”

ERIC Bylaws, Exhibit A (Membership Agreement) at Section 2(b) (PDF page 17).
15.

Colorado must also and does “use its best efforts to transmit, on a regular basis,

data relating to individuals that exists in the records of other agencies within its jurisdiction that

According to ERIC’s website, as of October 2021, the following are members of ERIC: “Alabama, Alaska,
Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland,Michigan, Minnesota, Missouri, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina,
Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin. The District of Columbia is also amember. (31 states plus D.C.).” FAQs, Which States Are Members of ERIC?, https://ericstates.org/.

2

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perform any voter registration functions, including, but not limited to, those required to perform
voter registration pursuant to the National Voter Registration Act[.]” ERIC Bylaws, Exhibit A(Membership Agreement) at Section 3 (PDF page 17).
16.

ERIC “process[es] data that relates to the maintenance of [Members’] voter

registration lists and provide[s] regular (at least on a monthly basis) reports to [each] Member.”
ERIC Bylaws, Exhibit A (Membership Agreement) at Preamble (PDF page 16).
17.

From ERIC, Colorado and “[e]ach member state receives reports that show voters

who have moved within their state, voters who have moved out of state, voters who have died,
duplicate registrations in the same state and individuals who are potentially eligible to vote but
are not yet registered.” FAQs, What Reports Do States Receive From ERIC,
https://ericstates.org/ (emphasis added).
18.

“The Social Security Death Master File, sometimes referred to as the ‘Social

Security Death Index,’ is used by ERIC to identify voters who have died so that they can beremoved from ERIC states’ voter rolls.” ERIC Annual Report at 6.
19.

Colorado receives data from ERIC showing registrants who are deceased or likely

deceased (hereafter “ERIC Deceased Data”).
20.

When Colorado receives ERIC Deceased Data showing deceased registrants,

Colorado is required to, “at a minimum, initiate[s] contact with th[ose] voter[s] in order tocorrect the inaccuracy or obtain information sufficient to inactivate or update the voter[s’]record[s].” Id. at 5(b) (PDF page 20).
21.

The ERIC Membership Agreement provides that Colorado “has ninety (90) days

after the data was sent to initiate contact with at least 95% of the voters on whom data indicatinga record was inaccurate or out-of-date … was provided.” Id.

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22.

The ERIC Membership Agreement provides further, “Within ten (10) businessdays of the ninetieth day, [Colorado] shall provide a written certification to the Executive
Director of ERIC that Member has complied or not complied with” the requirements described inparagraphs 20 and 21. Id.
23.

“All voter registration list maintenance activity based on information provided by

ERIC must be conducted under the strict guidelines of the National Voter Registration Act(NVRA).” ERIC Membership Guidelines, “Membership Requirements.”
24.

Colorado uses ERIC Deceased Data to conduct list maintenance programs andactivities required by state law and the NVRA, including cancellation of registrations belonging
to deceased individuals. See 52 U.S.C. § 20507(a)(4)(A); see Exhibit D, infra.
Criticism of ERIC25.

The accuracy of ERIC reports, on which Colorado and other member states rely toremove registrants from the voter rolls, has been criticized. Barbara Arnwine, the former
executive director of the Lawyers’ Committee for Civil Rights Under Law, stated, “ERIC should
be called ERROR because it’s that erroneous and that full of flaws.” Palast, ERIC Crow, Jim
Crow’s liberal twin (July 15, 2020), https://www.nationofchange.org/2020/07/15/eric-crow-jimcrows-liberal-twin/.
26.

The Brennan Center for Justice reported the following in a 2019 report:

Wisconsin … reported that although ERIC was helpful in updating more than
25,000 registration addresses in 2017 and 2018, it also resulted in more than 1,300
voters signing ‘supplemental poll lists’ at a spring 2018 election, indicating thatthey had not in fact moved and were wrongly flagged.
Brater et al., Purges: A Growing Threat to the Right to Vote at 9 (2019),
https://www.brennancenter.org/sites/default/files/2019-08/Report_Purges_Growing_Threat.pdf(last accessed Dec.9, 2021).
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27.

Marc Meredith, an associate professor in the Department of Political

Science at the University of Pennsylvania, stated,
While ERIC is usually correct, sometimes they’re wrong, and it turns out they’remore likely to be wrong in the case where the registrant is a racial or ethnic minority
as opposed to a white registrant[.]
Kristen de Groot, Penn Today, The racial burden of cleaning voter rolls (Feb. 24, 2021),
https://penntoday.upenn.edu/news/racial-burden-cleaning-voter-rolls (last accessed Dec. 9,2021).
28.

A Yale University-led study of ERIC in Wisconsin

found that at least 4% of people listed as suspected ‘movers’ cast ballots in 2018
elections using addresses that were wrongly flagged as out of date. Minority voterswere twice as likely as white voters to cast their ballot with their original addressof registration after the state marked them as having moved, the study showed.
Yale University, Study uncovers flaws in process for maintaining state voter rolls (Feb. 26,2021), https://phys.org/news/2021-02-uncovers-flaws-state-voter.html (last accessed Dec. 9,2021).
29.

The Yale study’s lead author, political scientist Gregory A. Huber, stated,

The process of maintaining states’ voter-registration files cries out for greatertransparency[.] … Our work shows that significant numbers of people are at risk ofbeing disenfranchised, particularly those from minority groups. Unfortunately, we
don’t know enough about the process used to prune voter rolls nationwide tounderstand why mistakes occur and how to prevent them.
Id.

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Reported Instances of Voting in the Names of the Deceased30.

In 2005, a Colorado man was reportedly “charged with one count offorgery” after he was “accused of sending in a 2005 general-election ballot for his mother… although she died in July” of that year. 3
31.

In 2016, approximately four years after Colorado joined ERIC, a Colorado

woman reportedly “attempted to vote in the 2016 primary election using a deceased man’s
ballot.” 4 She “attempted to use the ballot of [a man] who died in 2012.” 5 She reportedly“pleaded guilty in the case.” 632.

In 2017, a Colorado woman reportedly “pleaded guilty to casting a vote inher deceased mother’s name in 2013.” 7
Defendant is Denying the Foundation Access to Voter List Maintenance Records
33.

On June 24, 2021, the Foundation emailed a letter to the Colorado Secretary ofState (“COSOS”). The letter requested the following records, pursuant to the NVRA’s Public
Disclosure Provision:
1. All “ERIC Data” 8 received from ERIC during the years 2019, 2020, and 2021
concerning registered voters identified as deceased or potentially deceased.
2. All reports and/or statewide-voter-registration-system-generated lists showing
all registrants removed from the list of eligible voters for reason of death for theyears 2019, 2020, and 2021. Such lists will optimally include unique voter
Pankratz, Mom was dead but still cast ballot, Denver Post (Dec. 14, 2005), available athttps://www.denverpost.com/2005/12/14/mom-was-dead-but-still-cast-ballot/ (last accessed Dec. 16, 2021).

3

Nicholson, Woman pleads guilty in El Paso County voter fraud case, used dead man’s ballot, Denver Post (March
8, 2017), available at https://www.denverpost.com/2017/03/08/woman-el-paso-county-voter-fraud-ballot/ (lastaccessed Dec. 16, 2021).
4

5

Id.

6

Id.

AP, Colorado Springs woman admits voting her deceased mother’s ballot, Denver Post (Sept. 14, 2017), available
at https://www.denverpost.com/2017/09/13/colorado-springs-voter-fraud-guilty-plea/ (last accessed Dec. 16, 2021).

7

The Foundation defined “ERIC Data” as the “‘data included in reports provided by ERIC’ to member statesconcerning deceased and relocated registrants, and other information related to voter registration list maintenance.”
Exhibit A at 1 (quoting ERIC Bylaws, Exhibit A (Membership Agreement) at Section 4(a) (PDF page 18)).

8

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identification numbers, county or locality, full names, addresses, and dates ofbirth.
Exhibit A (hereafter, the “Request”).
34.

When no response was received, the Foundation wrote to COSOS via email on

July 16, 2021, to ask for an update on the Request.
35.

When no response was received, the Foundation again wrote to COSOS via email

on August 18, 2021, to ask for an update on the Request.
36.

On August 18, 2021, COSOS denied via email the Foundation’s request for ERIC

Deceased Data for the years 2019, 2020, and 2021. Exhibit B (hereafter, the “Denial Letter”).
37.

The Denial Letter cited “C.R.S. 24-72-204(1)” by operation of “18 U.S.C. 2721,

the Driver’s Privacy Protection Act (DPPA).” Exhibit B.
38.

The Denial Letter also stated, “In addition, to the extent this query requests

Limited Access Death Master File (LADMF) data, we are precluded from releasing that data
under 15 CFR Part 1110.” Exhibit B.
39.

The Denial Letter further stated, “[W]e are not denying this request based on the

ERIC Membership Agreement.” Exhibit B.
40.

The ERIC Membership Agreement appears to prohibit members from disclosing

records they are otherwise legally required to disclose without first obtaining a court order. ERIC
Bylaws, Exhibit A (Membership Agreement) at Section 4(a) (PDF page 15) (“Should a Member
receive a request to disclose ERIC Data and determines that it is legally obligated, in whole or inpart, to comply with such request, it shall not make the disclosure without first obtaining a court
order compelling it to do so, a copy of which shall be provided to ERIC.”).
41.

COSOS granted in part and denied in part the Foundation’s second request.

COSOS provided a list of former registrants removed from Colorado’s voter roll for the reason
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of death during the period between 2019 and 2021. COSOS denied the Foundation’s request for“birth days or months” on the grounds that “C.R.S. 24-72-204(8)(a)” prohibits disclosure of that
information. Exhibit B.
The Foundation Notified Defendant that She is Violating the NVRA
42.

On August 20, 2021, the Foundation notified Defendant that she is in violation of

the NVRA for failure to permit inspection of voter list maintenance records as required by 52
U.S.C. § 20507(i). Exhibit C at 1 (hereafter, the “Notice Letter”).
43.

The Foundation sent the Notice Letter to Defendant via email and certified mailthrough the United States Postal Service.
44.

The Notice Letter further notified Defendant that the requested records fall within

the scope of the NVRA’s Public Disclosure Provision. Exhibit C at 2.
45.

The Notice Letter further notified Defendant that litigation may commence

against her if the violation about which she was notified was not cured within 90 days of her
receipt of the letter. Exhibit C at 3 (citing 52 U.S.C. § 20510(b)(2)).
46.

By sending the Notice Letter to Defendant, the Foundation complied with the

NVRA’s pre-litigation notice requirements. See 52 U.S.C. § 20510(b)(1)-(2).
47.

In the Notice Letter, the Foundation offered to satisfy its request on the following

terms:
1. CO SOS shall provide to the Foundation the requested ‘ERIC Data’ reports withunique voter identification numbers. The Foundation will consent, in thisinstance, to the redaction of all data elements contained in the Limited Access
Death Master File (“LADMF”) and protected by 15 C.F.R. § 1110 et seq., such
as SSN dates of birth, SSN dates of death, SSN death locations, and full/partial
SSN numbers.
Exhibit C at 3.

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On November 18, 2021, COSOS sent a letter to the Foundation via email. Exhibit

D. The letter confirmed the denial of the Foundation’s Request.
49.

The letter also explained that “[e]ach month” the Colorado Department of State“receives a deceased voter list created by ERIC based on a comparison of data sources that ERIC
obtains from a variety of sources, including but not limited to the state voter registration list andthe LAMDF created by the Social Security Administration[.]” Exhibit D at 2.
50.

The letter also explained that “ERIC sends a file to CDOS listing those registrantsthat ERIC believes are deceased and therefore eligible for cancellation.” Exhibit D at 2.
51.

The letter also explained that “[t]hese data, in conjunction with data imported into

SCORE from other sources, make up the list maintenance record that CDOS relies on.” ExhibitD.
52.

In other words, Colorado “relies on” the “deceased voter list created by ERIC” toperform voter list maintenance.
53.

The NVRA requires election officials to maintain “all” voter list maintenancerecords for at least two (2) years. 52 U.S.C. § 20507(i)(1).
54.

However, COSOS’s letter admits that it does not comply with the NVRA’s two-year retention requirement. Instead, “CDOS only maintain copies of the deceased voter lists
received from ERIC for a few months.” Exhibit D at 2.
55.

On December 3, 2021, the Foundation notified Defendant via email that her

failure to maintain the “deceased voter lists received from ERIC” for at least two years violates
the NVRA. Exhibit E. The notice letter was also sent to Defendant via USPS certified mail.

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The Foundation plans to amend this complaint in the event Defendant does not

cure her violation of the NVRA’s record retention requirement in the time the NVRA affords.
See 52 U.S.C. § 20510(b).
Defendant Did Not Cure Her Violation in the Time the NVRA Affords
57.

Defendant received notice of her NVRA violation via email on August 20, 2021.

58.

According to the electronic return receipt information provided by USPS,

Defendant received notice of her NVRA violation via USPS certified mail on August 30, 2021.
59.

The NVRA afforded Defendant 90 days to cure her NVRA violation, 52 U.S.C. §20510(b)(2), a period that expired on November 18, 2021 (email), and, at the latest, on
November 28, 2021 (certified mail).
60.

Defendant did not cure her NVRA violation within 90 days of her receipt of the

Notice Letter, and as of the date of this pleading, has still not cured her NVRA violation. Thisaction is therefore ripe.
Colorado Law and Defendant’s Actions Are Harming the Foundation
61.

The requested records are records within the scope of the NVRA’s Public

Disclosure Provision.
62.

The Public Disclosure Provision authorizes and entitles the Foundation to inspectand duplicate, or otherwise receive the requested records.
63.

Defendant’s violations of the NVRA are causing the Foundation to suffer aconcrete informational injury because the Foundation does not have records and information towhich it is entitled under federal law. FEC v. Akins, 524 U.S. 11, 21 (1998) (“[A] plaintiff
suffers an ‘injury in fact’ when the plaintiff fails to obtain information which must be publicly
disclosed pursuant to a statute.”).

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64.

By denying the Foundation the ability to obtain the requested voter list

maintenance records, Defendant is also impairing the Foundation’s ability to, inter alia, (1)assess compliance by Colorado with state and federal voter list maintenance obligations and (2)aid Colorado in carrying out its voter list maintenance programs and activities.
65.

Defendant’s violation of the NVRA is thus frustrating, impeding, and harming theFoundation’s efforts to carry out its organizational mission and thereby injuring the Foundation.
66.

The Foundation intends to request similar records from Defendant in the future.
COUNT I
Violation of Section 8(i) of the NVRA, 52 U.S.C. § 20507(i)67.

The Foundation realleges the preceding paragraphs as if fully stated herein.

68.

The requested record(s) are in the possession, custody, and control of Defendant.

69.

Defendant is denying the Foundation access to records within the scope of the

NVRA’s Public Disclosure Provision and thereby violating the NVRA’s Public Disclosure
Provision.
70.

Neither other federal laws nor federal regulations override the NVRA’s Public

Disclosure Provision as a matter of law.
71.

C.R.S. § 24-72-204(1) and any other Colorado statute, code, regulation, practice,or policy that conflicts with, overrides, or burdens the NVRA, a federal statute, is preempted andsuperseded under the Supremacy Clause and the Elections Clause of the Constitution of theUnited States. Arizona v. Inter Tribal Council of Arizona, 570 U.S. 1, 9 (2013). Such preempted
laws are invalid and unenforceable.
72.

The Foundation is entitled to relief but has no adequate remedy at law.
PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for a judgment:
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1.

Declaring that Defendant is in violation of Section 8(i) of the NVRA for denying

the Foundation the opportunity to inspect and copy the ERIC Deceased Data.
2.

Declaring that Defendant is in violation of Section 8(i) of the NVRA for denying

the Foundation the opportunity to inspect and copy deceased cancellation reports with voter
identification numbers.
3.

Declaring that Section 8(i) of the NVRA preempts and supersedes C.R.S. § 24-

72-204(1) and any Colorado statute, code, regulation, practice, or policy that prevents theFoundation from inspecting and copying the requested records.
4.

Ordering Defendant to provide the requested records to the Foundation.

5.

Permanently enjoining Defendant from denying similar requests in the future.

6.

Ordering Defendant to pay the Foundation’s reasonable attorney’s fees, including

litigation expenses and costs, pursuant to 52 U.S.C. § 20510(c); and,
7.

Granting the Foundation further relief that this Court deems just and proper.

Dated: December 16, 2021.
For the Plaintiff Public Interest Legal Foundation:/s/ Noel H. Johnson
Noel H. Johnson*
Kaylan L. Phillips*
PUBLIC INTEREST LEGAL FOUNDATION
32 E. Washington St., Ste. 1675
Indianapolis, IN 46204
Tel: (317) 203-5599
Fax: (888) 815-5641
njohnson@PublicInterestLegal.org
kphillips@PublicInterestLegal.org* Admitted to the bar of the U.S. District Court for
the District of Colorado
Attorneys for Plaintiff Public Interest Legal
Foundation

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