1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT ... · MONICA MARIE MARQUEZ, ESQ. 15...

1

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2 Civil Action No. 08-cv-2321-WYD

3 COMMON CAUSE OF COLORADO, et al.,

4 Plaintiffs,

5 vs.

6 MICHAEL COFFMAN, in his official capacity as Secretary of State

7 for the State of Colorado,

8 Defendant.

9 _______________________________________________________________

10 REPORTER'S TRANSCRIPT HEARING ON PRELIMINARY INJUNCTION

11 _______________________________________________________________

12 Proceedings before the HONORABLE JOHN L. KANE, JR.,

13 SENIOR JUDGE,, United States District Court for the District of Colorado, commencing at 1:16 p.m., on the 29th day of October,

14 2008, in Courtroom A802, United States Courthouse, Denver, Colorado.

15

16

17

18

19

20

21

22

23 THERESE LINDBLOM, Official Reporter

24 901 19th Street, Denver, Colorado 80294 Proceedings Reported by Mechanical Stenography

25 Transcription Produced via Computer

2

1 APPEARANCES

2 For the Plaintiffs STEPHEN GALE DICK, ESQ. Debevoise & Plimpton

3 919 Third Avenue New York , New York

4 RICHARD ROSENBLATT, ESQ. Richard Rosenblatt & Associates

5 8085 East Prentice Avenue Greenwood Village, Colorado

6 PENDA D. HAIR, ESQ. JESSIE ALLEN, ESQ.

7 Advancement Project 1730 M Street, NW #910

8 Washington, D.C. MYRNA PÉREZ, ESQ.

9 Brennan Center for Justice NYU School of Law

10 161 Avenue of the Americas New York, New York

11 BARBARA J. CHISHOLM, ESQ. Altshuler Berzon

12 177 Post Street, Suite 300 San Francisco, California

13 For the Defendant MAURICE KNAIZER, ESQ.

14 MELODY MIRBABA, ESQ. MONICA MARIE MARQUEZ, ESQ.

15 Colorado Atty General's Office Department of Law

16 1525 Sherman Street Denver, Colorado

17

18

19 P R O C E E D I N G S

20 THE COURT: I'm going to make some preliminary remarks

21 before proceeding.

22 But are the plaintiffs ready?

23 MS. ALLEN: We are, Your Honor.

24 THE COURT: Thank you.

25 Defendants ready?

3

1 MR. KNAIZER: Yes, Your Honor.


3 This matter is before me on the application of

4 plaintiffs Common Cause of Colorado, Mi Familia Vota Education

5 Fund and Service Employees International Union for a

6 preliminary injunction filed October 25, 2008 against the

7 Colorado Secretary of State, Michael Coffman.

8 The original request was for a temporary restraining

9 order. But by agreement of the parties at the October 27

10 hearing, this application and motion will be considered and

11 decided today as a motion for preliminary injunction.

12 The purpose of today's hearing is to hear argument and

13 testimony regarding this request for preliminary injunctive

14 relief.

15 We will do that, and I will then take a brief recess

16 to collect my thoughts and return for a bench ruling. I am,

17 however, reserving because of the exigencies of time, the right

18 to issue a written order at a later time. But I think because

19 of the compelling public interest involved, I will make a bench

20 ruling today.

21 In their complaint and motion, the plaintiffs allege

22 the Secretary has violated the National Voter Registration Act

23 in two ways. One, by unlawfully removing registered voters

24 from Colorado's official voter registration list within 90 days

25 of a federal primary or general election; and, two, by

4

1 cancelling the registrations of eligible voters when a notice

2 sent to the new registrant by non-forwardable mail was returned

3 as undeliverable within 20 days.

4 In their motion, plaintiffs estimate that as many as

5 31,000 eligible voters were removed from the Colorado voter

6 rolls through these allegedly unlawful practices.

7 As relief for these alleged violations, plaintiffs

8 request that I, one, reinstate the names of any and all voters

9 whose registration records were removed, canceled, updated or

10 otherwise changed through these allegedly unlawful practices in

11 a manner that will permit such voters who appear at the polls

12 during early voting and on election day to vote by regular

13 ballot and permit such voters who mail in a timely ballot to

14 have that ballot counted.

15 And, two, preliminarily enjoin and restrain the State

16 from removing, canceling, updating or otherwise changing the

17 registration records or status of any voter in Colorado

18 statewide voter registration database between now and

19 November 4, pursuant to these allegedly unlawful practices, in

20 any way that would cause a voter who presented himself to vote

21 to be prohibited from casting a regular ballot or cause the

22 ballot of a voter who mailed in a timely and complete ballot

23 not to be counted.

24 Both parties have submitted written briefs addressing

25 the issues presented by plaintiffs' motion and request for

5

1 preliminary injunction -- injunctive relief. And I have spent

2 the time since receipt of those moving papers studying them.

3 The briefs indicate that the parties' dispute arises

4 from an honest disagreement regarding the time and process by

5 which changes to a state voter registration roll can be made

6 under the federal statute. There is no indication in the

7 record to date that the practices challenged here were

8 motivated by anything other than the State's desire to

9 efficiently manage the voter rolls in accordance with

10 applicable law.

11 There is no implication of invidiously based or

12 motivated action discriminating upon the basis of race, gender

13 or national origin, or for that matter, political affiliation,

14 such as to warrant heightened scrutiny.

15 Whether the State succeeded in complying with the

16 applicable federal law under the National Voting Rights Act is

17 the primary question presented by plaintiffs' motion.

18 A preliminary injunction is extraordinary relief. And

19 plaintiffs must make a clear and unequivocal showing that the

20 injunction they seek is warranted.

21 Specifically, in order to prevail on their motion for

22 preliminary injunction, plaintiffs must establish that, one,

23 they have a substantial likelihood of success on the merits;

24 two, they will suffer irreparable harm unless the injunction

25 issues; three, the threatened injury outweighs any injury the

6

1 relief would cause to the State; and, four, the injunction is

2 not adverse to the public interest.

3 Because part of the relief plaintiffs seek is

4 mandatory, that is, the reinstatement of voters purged from the

5 Colorado voter roll, they must make a strong showing with

6 regard to both likelihood of success on the merits and the

7 balance of harms.

8 As a threshold matter, the plaintiff organizations

9 must also demonstrate that they are likely to succeed in

10 demonstrating that they have standing to bring this action. An

11 organization may have standing to sue in its own right and/or

12 on behalf of its members. All three plaintiffs assert standing

13 on their own behalf and Common Cause and SEIU also claim

14 associational standing to sue on behalf of their respective

15 members.

16 The State disputes that plaintiffs have standing on

17 either basis.

18 I want to hear from both parties on the standing

19 issue, which goes to the subject matter jurisdiction of the

20 Court. The focus of counsel's argument with respect to the

21 plaintiffs' standing to sue on their own behalf should be on

22 the injury or injuries asserted by plaintiffs and whether they

23 are sufficient under the law to establish standing for the

24 organization to sue on its own behalf.

25 With respect to the alternate of associational

7

1 standing, the parties should address whether plaintiffs are

2 required to identify specific members who have already been

3 harmed in order to establish standing on this basis and,

4 assuming this is the case, whether plaintiffs can meet this

5 test.

6 Because a preliminary injunction is an extraordinary

7 proceeding and all are pressed for time, consideration of

8 specific standing issues may be deferred in order to hear the

9 rest of the evidence.

10 With respect to the four preliminary injunction

11 factors, I want to hear argument regarding the following:

12 First, the likelihood of success on the merits.

13 Subject to certain exceptions, the NVRA, the Act in question,

14 prohibits the State from engaging in, quote, any program, the

15 purpose of which is to systematically remove the names of

16 ineligible voters from the official lists of eligible voters

17 within 90 days of a federal primary or general election.

18 The exceptions to this federal rule are removals made

19 at the request of the registered voter upon the death of the

20 registered voter, by reason of the voter's criminal conviction

21 or mental incapacity.

22 Correction of registration records pursuant to the

23 NVRA are also permitted during the 90-day pre-election period.

24 Applying the 90-day rule to the federal primary election held

25 in Colorado on August 4 and the November 4 general election

8

1 yields cutoff date of May 13, 2008 for any removal of voter

2 names from the Colorado voter lists for reasons not

3 specifically authorized by the federal statute.

4 According to plaintiffs' brief, the State has removed

5 names from the Colorado voter roll on ten different bases

6 during this period. Three of these asserted bases, deceased,

7 convicted felon and withdrawn, are permitted by statute as

8 described above and are not challenged by plaintiff. With

9 respect to the remaining categories of removed voters, I want

10 to hear from the parties as follows:

11 First, conversion. The parties should address the

12 State's contention that removal of these names does not fall

13 within the 90-day statutory prohibition because it only

14 reflects an adjustment for voter records that county officials

15 tagged as canceled before county records were merged into a

16 single state database in the spring of 2008.

17 Next, moved. The State asserts that voter records in

18 this category were purged as a result of either, one, the voter

19 submitting a new voter registration form stating that he or she

20 had changed residence within Colorado or, two, the State

21 receiving information from election officials in another state

22 that the voter had registered to vote there.

23 The parties should address the State's contention that

24 removal based on both of these bases is permitted under the

25 NVRA as a, quote, correction of registration records.

9

1 Next is duplicated. The parties should address the

2 State's contention that all cancellations of voter records on

3 the basis of duplicate entries qualifies as a correction of

4 registration records permitted by the NVRA within the 90-day

5 pre-election period.

6 The next is failed 20-day, in quotes. This category

7 of removals is based on Colorado Revised Statute Section 1,

8 Article 2, Section 509(3), which provides that an otherwise

9 properly registered voter is not deemed registered if the

10 voter's non-forwardable notification of registration is

11 returned as undeliverable within 20 days.

12 As both parties acknowledge, whether removal on this

13 basis is lawful within the 90-day pre-election period or at

14 all, turns on when a voter applicant becomes a voter registrant

15 under the state statute or the federal NVRA. The parties shall

16 focus their arguments on this point.

17 Next is inactive citizen. Approximately 1.5 percent

18 of the voter removals that reportedly occurred during the

19 NVRA's 90-day pre-election window are attributed by the State

20 to this category, but it is not addressed by the State in its

21 brief.

22 The next is not a citizen or voter fraud. Only a

23 handful of removals were attributed to these two categories

24 according to state records. The parties shall address whether

25 all of some of these removals were made on some sort of

10

1 individual basis, and if so, whether the removals would be

2 excluded from the NVRA's prohibition on any program to

3 systematically remove the names of ineligible voters in the

4 90-day period before an election.

5 Next is the issue of irreparable harm. The State

6 contends that the provisional ballot system alleviates any

7 concern that eligible voters will be disenfranchised as a

8 result of the removal of their names from Colorado voter roll

9 through the challenged practices. The parties shall address

10 the degree to which the provisional ballot system affords this

11 protection.

12 And I must say this, I realize that we're all under a

13 great deal of pressure, and I admire the attorneys in this case

14 greatly. But frankly, this, I think, is the lacuna in my

15 understanding. The provisional ballot system is just not

16 dwelled upon by anybody to date, and I need more information on

17 it, especially how or if the removal of the voter from the

18 State's records affects the determination of whether he or she

19 is eligible to vote such that the provisional ballot is

20 counted.

21 If the reason for removal affects this determination,

22 that is whether the voter record was removed as a duplicate or

23 because the voter reportedly moved out of state rather than

24 within Colorado, then the parties should address this as well.

25 And finally, I have to consider the two elements of

11

1 the injunctive criteria. The parties shall address the State's

2 concern that a change in the State's computerized voter roll so

3 close to the election could adversely affect the voting process

4 as a whole and whether there are other means of providing the

5 requested relief that would not create this risk.

6 I hope that those preliminary remarks assist you in

7 focusing on this. We are under a great pressure of time, and

8 so I want to cut to the chase as quickly as possible.

9 You have testimony. I think we should hear the

10 testimony first, and then we can go on.

11 And since the matter has been briefed, I'm not sure

12 that any further opening statement from you is necessary at

13 this point. But if you want to make a brief statement, go

14 ahead.

15 MS. ALLEN: Thank you, Your Honor. I'll be extremely

16 brief.

17 THE COURT: Good afternoon.

18 MS. ALLEN: May it please the Court. We're here

19 because less than a month before the coming national election

20 the Colorado Secretary of State announced publicly that the

21 state was removing voter records in the way that we feel

22 violates federal law. The evidence that will show here today

23 will support those claims. Thank you.


25 MR. KNAIZER: Your Honor, we'll waive opening

12

1 statement.

2 THE COURT: Thank you, sir.

3 Call your first witness, please.

4 And because there are so many of you, Ms. Allen was

5 the first to speak, then Mr. Knaizer, when you do go to the

6 lectern, for the benefit of the reporter, state your name.

7 MS. ALLEN: Your Honor, may I first move into evidence

8 some exhibits --

9 THE COURT: Yes.

10 MS. ALLEN: -- that we've stipulated.

11 I move into evidence Exhibits 1 through 18, with the

12 exceptions of Exhibit 5, 6, 7 and 17, as stipulated.

13 THE COURT: Stipulated?

14 MR. KNAIZER: Correct, Your Honor.

15 THE COURT: They're admitted.

16 (Exhibits 1-4, 8-16 and 18 admitted.)

17 MS. ALLEN: Thank you.

18 MR. KNAIZER: And, Your Honor, I believe that we would

19 like our Exhibits A through I admitted. And I believe that we

20 have stipulated to the admission of all of our exhibits.

21 THE COURT: All right. They're admitted by

22 stipulation.

23 (Exhibits A-I admitted.)

24 MS. PEREZ: Thank you, Your Honor. Myrna Perez,

25 counsel for the plaintiffs.

13

1 THE COURT: Good afternoon.

2 MS. PEREZ: Before we begin with my witnesses, I'd

3 like to do one minor piece of housekeeping. And that is with

4 respect to Exhibit 13, which has been stipulated to and is in

5 the record, there needs to be a correction to paragraph 3. It

6 is missing a word.

7 It should read, "Colorado state voter identification

8 card." This is with respect to the declaration of Linda

9 Townsend Johnson. Counsel was informed of this. And after the

10 hearing we will provide a revised declaration.

11 THE COURT: Okay. Thank you.

12 MS. PEREZ: And if I may call my first witness.

13 THE COURT: Yes.

14 MS. PEREZ: That's Ms. Linda Townsend Johnson.

15 THE COURT: If you'll come forward and face the

16 courtroom deputy, she'll administer an oath to you.

17 (LINDA TOWNSEND JOHNSON, PLAINTIFFS' WITNESS, SWORN)

18 COURTROOM DEPUTY: Please be seated.

19 State your full name for the record and spell your

20 last name.

21 THE WITNESS: My full name is Linda Townsend Johnson.

22 My last name is spelled J-O-H-N-S-O-N.

23 MS. PEREZ: May I approach the witness, Your Honor?

24 THE COURT: Yes, you may. And you needn't ask for

25 further permission to do so.

14

1 MS. PEREZ: Thank you, sir.

2 THE COURT: Applies to all counsel, of course.

3 MS. PEREZ: Do you need a copy, sir? This is the

4 declaration.

5 THE COURT: Thanks.

6 DIRECT EXAMINATION

7 BY MS. PEREZ:

8 Q. Good afternoon, Ms. Johnson.

9 A. Good afternoon.

10 Q. You stated your name and spelled it for the record. Would

11 you please tell me where you live.

12 A. I live at 2615 Verde Drive, Apartment 330. That's in

13 Colorado Springs, Colorado.

14 Q. And you missed school to be here with us today?

15 A. Yes, ma'am, I did.

16 Q. Where are you currently in school?

17 A. I'm in school at Everest College. I'm in the MA program,

18 medical assistant.

19 Q. When did you move to Colorado?

20 A. I came here in January. My daughter has three kids, and

21 her husband was deployed. She was living on base here, and I

22 came -- she had gotten ill, and I came to help her out with the

23 kids. And I decided I'd liked to stay here.

24 Q. And where did you move from, Ms. Johnson?

25 A. Me and my husband moved here from Mississippi.

Linda Townsend Johnson - Direct 15

1 Q. Were you registered to vote in Mississippi, Mrs. Johnson?

2 A. Yes, I was.

3 Q. When did you first register to vote?

4 A. I registered when I was 18 years old. I -- I usually vote,

5 most every election.

6 Q. Do -- did you register to -- did you attempt to register to

7 vote in Colorado?

8 A. I registered to vote in the mall, in the month of March.

9 We and my husband -- we had intended on registering here,

10 but -- we have two cars, we left them in Mississippi with my

11 other two kids who were in college. So we came here, we didn't

12 have real good transportation, we were taking the bus. And we

13 had problems with finding out where the place to register, so

14 in the mall they had set up a booth, and we registered there.

15 We filled out our registration application.

16 Q. I'm sorry, did you say you registered to vote in May?

17 A. In May, yes, ma'am.

18 Q. And the booth that you are referring to, is that a booth

19 that was operated by a county clerk's representative?

20 A. Yes, it had the clerk's office sign on it.

21 MS. PEREZ: Can I have those exhibits?

22 For the record, Your Honor, I have submitted to the

23 witness what I believe is Exhibit E and F of defendant's

24 exhibits.

25 THE COURT: Yes.


1 BY MS. PEREZ:

2 Q. Ms. Johnson, will you please look at the document that is

3 labeled Exhibit E. And will you please tell me what it is

4 that -- do you remember seeing this document before,

5 Ms. Johnson?

6 A. Would that be this one?

7 Q. Yes, ma'am.

8 A. Okay. It looks like the one I filled out to vote.

9 Q. Let me just make sure that you have both that I want you to

10 have.

11 MR. KNAIZER: Your Honor, if it would be easier, we

12 actually have this in a notebook. Perhaps I could give it to

13 the witness so we wouldn't have --

14 THE COURT: Sure. That would be great. Thanks.

15 MR. KNAIZER: Perhaps she has it.

16 MS. PEREZ: Let me make sure they're the same ones.

17 BY MS. PEREZ:

18 Q. If you don't mind, Ms. Johnson, will you please look at the

19 document entitled Exhibit E. And can you tell me, is that your

20 handwriting, Mrs. Johnson?

21 A. Yes.

22 Q. And can you please tell me if that is how you generally

23 write your name in a formal setting.

24 A. Yes.

25 Q. And you generally write Linda Townsend Johnson; is that


1 correct?

2 A. Correct. Townsend is my maiden name, and I use it.

3 Q. And is that your correct address, Ms. Johnson?

4 A. Yes.

5 Q. And if you look on the date at the bottom, does that appear

6 to be a date that conforms with your recollection of -- as to

7 when you registered to vote?

8 A. No.

9 Q. I'm sorry?

10 A. Which date?

11 Q. Let me show you.

12 A. That's not the date I registered.

13 Q. No, but that is the date that you wrote down that you lived

14 in Colorado?

15 A. Oh, yes. I thought you asked the date that I registered.

16 Q. Thank you.

17 And Ms. Johnson, is that your signature?

18 A. Yes, ma'am.

19 Q. Okay. Thank you very much.

20 Can you move on to Exhibit F, please.

21 Have you seen this document before, Mrs. Johnson?

22 A. No.

23 Q. Does this appear to be written in your writing -- your

24 handwriting, Mrs. Johnson?

25 A. This is not my handwriting.


1 Q. You notice that it has a middle name being a "T." Do you

2 usually write your middle name as a "T" on formal documents?

3 A. Yes, I do. Mostly I write out my name.

4 Q. You write out Townsend, you don't write out "T"?

5 A. Yes.

6 Q. Will you please look at the address. Is that your correct

7 address?

8 A. It's not -- no, it's not my address.

9 Q. And if you'll please look at the signature.

10 A. That's not my signature.

11 Q. That's not your signature?

12 A. No, ma'am.

13 Q. On the bottom of the document it indicates that you

14 registered to -- the document is dated September 13, 2008. Do

15 you -- did you register to vote on September 13, 2008?

16 A. No, I did not.

17 Q. And you are positive that this is not your signature?

18 A. This is not my signature.

19 Q. Okay. I'm going to move on.

20 When you tried to register in Colorado, were you with

21 your husband?

22 A. Yes. We went to the mall. We registered in the mall.

23 Q. And can you tell me what happened after you registered in

24 the mall.

25 A. We did receive registration cards in the mail. I can't


1 remember how long it took. I think about two weeks. But we

2 received registration cards. Later on we received -- we signed

3 up for mail-in ballots, so we both received mail-in ballots in

4 the mail. And we didn't fill it out to vote yet because we

5 wanted to keep it because they have a lot of amendments that's

6 in that voting process. And we're new to this area. We didn't

7 know much about a lot of stuff, so we wanted to take the time

8 and read over everything and make sure we make the right

9 choices.

10 They also sent us a booklet that we could read

11 through, read up on judges and how to vote on things and

12 concern with some of the amendments. So we didn't send our

13 mail-in ballot right away. We held onto and took the time to

14 go through it.

15 Q. Okay. And at some point did you learn that there might

16 have been a problem with your voter registration record?

17 A. Well, I had no idea that there was a problem with my voter

18 registration until -- I was intending on mailing -- we

19 completed our ballot. We intended on mailing them in the next

20 day. That evening -- one evening I received a call from a lady

21 who said her name was Jennifer. She was a lawyer working with

22 the Brennan Center for Justice. And she stated that my name --

23 she asked me, did I know why my name and my husband's name had

24 been taken off the voters registration list.

25 And I didn't understand that. I said, you know -- she


1 told me -- she asked me why I thought -- why our name was taken

2 off and we weren't eligible to vote. And I told her we were,

3 that I had all of my information. We had our registration

4 card, we had our mail-in ballot and everything. And she said,

5 it appears your name has been taken off the list to vote.

6 And I didn't understand that, because we had went

7 through the procedure, we had everything. So I told her I

8 would check with the clerk's office because I didn't think that

9 was correct.

10 And the next day I called the clerk's office. And the

11 lady on the phone -- I asked for the status of my voting

12 registration, and she said I wasn't registered to vote. And

13 she told me I could go on the web -- she gave me a website. I

14 didn't write it down. And she gave me a website and told me to

15 fill out an application. And I told her we already filled out

16 an application. I told her we had registered to vote. I told

17 her we had received that information in the mail and that there

18 was an error.

19 And she said that there was nothing she could do. I

20 could go on the internet -- I mean, go on the website. And I

21 told her, no, we wanted -- we registered to vote for this

22 election, and if I did it over again, I thought that the date

23 was passed to register, so I didn't want to do that. I told

24 her I felt better if I could come down. She told me that would

25 be fine.


1 So I waited until my husband had time to take off --

2 have a day off work, because he works nights, sleeps during the

3 day. So I waited until his day off, and we went to the county

4 clerk's office. And when I got there, I said, well, since

5 we're down here, why don't we just vote, they're doing an early

6 vote. And I tried to vote, but they told me I was not

7 registered. So I told her we had registered and we had

8 received mail-in ballots. So she told me to speak to someone

9 else.

10 So I went around, and we talked to another lady. And

11 she said that we hadn't registered, and I told her we did. I

12 told her we received the information, so she proceeded to give

13 me forms to fill out, telling me to register. And I said the

14 election -- isn't the deadline for the election, you know to

15 register for the election is over? And I told her I didn't

16 understand, someone had made a mistake, that we had already

17 registered, we had received our mail-in ballot, we had received

18 our voter registration card.

19 And I kept all of it, so I took it all out, and I laid

20 it down. I gave her our Social Security card, our

21 identification. We just gave her everything. And she said she

22 didn't understand what happened, but she would fix it.

23 Q. And just to clarify, when you spoke to the woman over the

24 phone, did you ask her what would happen if you mailed in your

25 ballot?


1 A. Yeah. I told her, I said, well, we received -- we've

2 already received that information. We received a mail-in

3 ballot. If I mail that ballot in, is it counted? And she

4 said, no, you're not registered to vote. You know, you don't

5 have a completed registration. You have to complete a

6 registration to vote.

7 Q. Did she give you a reason as to why you weren't registered

8 when you asked her?

9 A. She just told me I wasn't, and I told her I was.

10 Q. And when you went and presented yourself to the clerk's

11 office, did you also ask them what would happen if you had

12 mailed in your ballot before you got reinstated?

13 A. Yes, ma'am. She said it wouldn't have been -- if I had

14 already given them my ballot, it wasn't counted.

15 Q. And when this was all done, after you showed them your

16 voter identification card with your correct address and you

17 showed them your mail-in ballot with your correct address and

18 they couldn't come up with a reason as to why you had been

19 removed, they ultimately reinstated you?

20 A. Yes, ma'am, she did.

21 Q. Would you have known that you would have had a problem with

22 your registration --

23 A. If I had not received a call -- like I said, we were

24 intending on mailing our ballot in. If I had not received a

25 call, my ballot -- I would have thought I voted on an election


1 that I didn't vote on. I would have thought I voted on issues

2 concerning Colorado that I didn't vote on. I would have

3 thought -- you know, the things that matter to me, I would have

4 thought I had did something concerning something important, but

5 I wouldn't have.

6 I didn't know that I was taken off. No one contacted

7 me. And that upset me, because if there was an issue or

8 problem, they should have contacted me and said, there is

9 something wrong with your -- I asked them that, I said why

10 wasn't I contacted and told there was something wrong? And she

11 said, we didn't have an address for you. That's what I was

12 told. And I said, that's impossible, because you mailed me

13 information. We received plenty of information from this

14 office.

15 And so I told her, you know -- if you all hadn't

16 contacted me, if someone hadn't contacted me and said, your

17 name is not on the list, you're not eligible to vote, I would

18 have thought I was voting. And I wouldn't have been voting.

19 Q. And can you tell me why you signed up to be an absentee --

20 permitted absentee?

21 A. I'm in school, and I do tutoring. I also -- I'm also a

22 member of the Ambassador Club at school, so I'm involved in a

23 lot of extracurricular activity, so I really don't have time.

24 And also, like I said, two kids have our cars, so

25 transportation is not real good with us right now.


1 Q. And can you tell me why you're here today.

2 A. I'm not here for myself, because I corrected the error.

3 I -- when we learned that our name was off and we -- our vote

4 wouldn't be counted, I thought about other people -- you know,

5 how many people that they've taken off and they don't know

6 about it? We would have mailed in our ballot thinking we were

7 voting, and we weren't.

8 I have always voted. This is my right. This is my

9 voice. I don't think it should be taken from me. And I am

10 concerned about the things that go on in this world. I am

11 concerned about the issues, and I think I have a voice. I

12 don't take for granted that the people -- I'm an African

13 American and a woman. I do not take for granted that people

14 suffered and did things for me so that I could have that right.

15 I don't take that for granted, and I use my right. And I do

16 think my voice matters, and I think every voice matters.

17 I know there are other people who have not done

18 anything -- I don't care what the mistake was, what the error

19 was, why was it taken from me? I didn't may a mistake. I did

20 everything by the law. I did everything right. And I am

21 concerned about issues. So why was my vote not going to be

22 counted? And what would have happened if this happened after,

23 you know, what would have happened if I didn't get a call?

24 What happens to the people who don't get the call?

25 Q. And after having spoken to more than two election officials


1 on two different occasions, one of which was in person, was

2 there ever any explanation given to you as to why --

3 A. I tried to get an explanation. No one would explain it to

4 me. And I even asked, what about people -- what about people

5 who don't know? What are they doing? Who is telling other

6 people, you know, make sure your vote is counted? Make sure

7 that there is no error. We don't know -- we won't know unless

8 someone contacts us. And no one told me anything -- there was

9 no problem, and no one knew why it happened, and I --

10 Q. And are you planning to vote in the general election?

11 A. Yes, ma'am. I still have my mail-in ballot. I didn't give

12 it to them that day because I thought it may be useful for

13 court purposes or something. I thought maybe someone would say

14 that, you know, well, maybe you still not registered to vote.

15 Maybe you're not eligible. I hold onto it. I wanted to make

16 sure my name has been added. I didn't give it to her. I

17 called to make sure I was added.

18 I don't know if I can trust the system. I want to be

19 able to trust it, but I kept it. And I told them that I will

20 cast my ballot in the morning since we won't be home in time

21 today.

22 Q. Thank you.

23 Your witness.

24 MR. KNAIZER: Your Honor, no questions.



1 Thank you, Mrs. Johnson.

2 MS. PEREZ: Plaintiffs would like to call our next

3 witness, Mr. James Johnson.

4 (JAMES JOHNSON, PLAINTIFFS' WITNESS, SWORN)



7 last name.

8 THE WITNESS: My name is James Edward Johnson,

9 J-O-H-N-S-O-N.

10 MS. PEREZ: I'm just giving you a copy of your

11 declaration, Mr. Johnson.



14 BY MS. PEREZ:

15 Q. Good afternoon, Mr. Johnson.


17 Q. You've already stated your name for the record. If you

18 don't mind telling me where you live, Mr. Johnson.

19 A. I live at 2615 Verde Drive, Apartment 330 in Colorado

20 Springs, Colorado.

21 Q. And you missed work today to be here; is that right?

22 A. Yes, I did.

23 Q. What -- where are you currently employed, Mr. Johnson?

24 A. I'm employed at Colorado Springs Utility as a security

25 officer.

James Johnson - Direct 27

1 Q. And when did you move to Colorado, Mr. Johnson?

2 A. Well, I moved here in January. And a little time later, I

3 went to Utah to truck driving school, but I decided after -- I

4 decided I didn't want to drive truck, so I went -- moved back

5 to Colorado -- I went back to Colorado Springs.

6 Q. And prior to Colorado Springs, did you live in -- were you

7 living in Mississippi?

8 A. Yes.

9 Q. And were you registered to vote in Mississippi?

10 A. Yes. I registered at the age of 18.

11 Q. And are you a frequent voter, Mr. Johnson?

12 A. Yes, I usually vote in every election.

13 Q. And when you were living in Mississippi, what was your

14 employment, Mr. Johnson?

15 A. I worked at the Mississippi State Penitentiary at Parchman,

16 Mississippi.

17 Q. Were you also involved in the ministry?

18 A. Yes. I was a minister at the Countywide Outreach Ministry.

19 Q. And have -- and you testified a moment earlier,

20 Mr. Johnson, that you missed work today. Have you ever missed

21 work since starting in your new employment?

22 A. This is my first day actually missing work.

23 Q. And can you describe why you're here, Mr. Johnson.

24 A. Well, I'm here today to give my -- to give my testimony

25 about what I -- about the statement that I made.


1 Q. Yes, Mr. Johnson. Thank you.

2 And you did testify that you voted frequently when you

3 lived in Mississippi. Did you try to register to vote in

4 Colorado?

5 A. Yes, I did. Yes. Me and my wife was walking through the

6 mall -- we was walking through the mall, and we decided it was

7 a good time that we register.

8 Q. And when you registered with your wife, did you register at

9 a booth that was on display?

10 A. Yes, it was a booth. Yeah, it was a booth, with the state

11 clerk's -- state clerk's offices.

12 Q. And you completed a voter registration card at that time?

13 A. Yes, I did.

14 Q. And what happened after -- I'm sorry, I'm going to stop

15 there.

16 I'm going to ask you to please open up the binder and

17 look at Exhibit G, please.

18 A. Right here?

19 Q. I believe so.


21 BY MS. PEREZ:

22 Q. Mr. Johnson, does this look like the application that you

23 completed in the mall?

24 A. Yes, it -- yes, it looks like the same application I

25 completed in the mall.


1 Q. Is your name listed correctly, Mr. Johnson?

2 A. Yes, it is.

3 Q. And you usually use the middle name Edward when you're

4 filling out formal documents like this, Mr. Johnson; is that

5 right?

6 A. Yes. I would either use Edward or I would, you know, put

7 an "E" in it for Edward.

8 Q. And Mr. Johnson, does this look like your handwriting?

9 A. Yes, it looks like my handwriting.

10 Q. And Mr. Johnson, does this have your correct address on it?

11 A. Yes, it does.

12 Q. And Mr. Johnson, does this look like your signature?

13 A. Yes, it does.

14 Q. Thank you. Can I have you move on to Exhibit H.

15 Have you seen this application before today,

16 Mr. Johnson?

17 A. No, I haven't.

18 Q. Does this look like your handwriting, Mr. Johnson?

19 A. No, this is not my handwriting.

20 Q. There is no listing for the middle name. Do you usually

21 write down a middle name when you are filling out formal

22 documents, Mr. Johnson?

23 A. Every time -- every time I fill out a document, I always

24 use my middle name, because -- I believe that it identifies,

25 you know, who I am, since James is a common name.


1 Q. Okay. And Mr. Johnson, is that your correct address on

2 this document?

3 A. No, this is not my address.

4 Q. And Mr. Johnson, is this your signature on the bottom of

5 the document?

6 A. No, this is not my signature.

7 Q. Mr. Johnson, there is a date listed on this document of

8 September 13, 2008. Did you register to vote on September 13,

9 2008?

10 A. No, I did not.

11 Q. You only registered that one time that we were -- that we

12 were discussing earlier in the mall?

13 A. Yeah, it was within the month of May.

14 Q. And you're sure of that, Mr. Johnson?

15 A. I'm positive.

16 Q. Okay. I'm now going to ask you to look at Exhibit I.

17 Is this your handwriting, Mr. Johnson?

18 A. Again, no, it's not my handwriting.

19 Q. I'm sorry, I needed to back up. Have you seen this

20 document before today, Mr. Johnson?

21 A. No, I haven't.

22 Q. And you just testified that this is not your handwriting;

23 is that correct, Mr. Johnson?

24 A. That's true.

25 Q. And Mr. Johnson, there is no middle name listed. And you


1 did testify earlier that you usually use your middle name,

2 Edward; is that correct?

3 A. Always.

4 Q. And Mr. Johnson, is that your signature at the bottom?

5 A. No, it's not my signature.

6 Q. There is a date listed of September 16, 2008. Do you

7 recall registering to vote on September 16, 2008?

8 A. No, I do not.

9 Q. So it is your testimony that you only registered that one

10 time in the mall that we discussed earlier on these two --

11 A. Yeah, that's true.

12 Q. Okay.

13 I'm going to move on, then.

14 After you registered at the mall with the county

15 clerk's office, will you tell me what happened. What kind of

16 documentation did you receive from the clerk's office?

17 A. Well, a few weeks later, I received a mail-in ballot and a

18 voter registration card.

19 Q. And did those documents -- was your name and address

20 spelled the way it is on your Colorado driver's license?

21 A. Yes, it -- identical.

22 Q. And why didn't you mail in your ballot when you got it?

23 A. Well, just like my wife stated, we had decided that we --

24 we wasn't familiar with the area, so we wanted to -- we wanted

25 to look and research some of the candidates and some of the


1 amendments that we was not familiar with. So we actually kept

2 our -- we actually was looking over the amendments before we

3 actually cast a vote.

4 Q. And at some point, Mr. Johnson, did you learn that there

5 might have been a problem with your registration records?

6 A. Excuse me? Repeat.

7 Q. Certainly. At some point after you received your mail-in

8 ballot and your voter identification card, did you learn that

9 you might have a problem with your registration records?

10 A. Well, I thought I did have -- I thought I didn't have a

11 problem with it, but you -- after we got a call, you know, it

12 was stated that -- it was stated that our name was removed from

13 the voting list. Yes, I thought somebody had made a mistake,

14 because everything we did -- everything I did was accurate.

15 Q. And so you and your wife decided to investigate your

16 registration record status; is that right?

17 A. That's true.

18 Q. And how did you all do that?

19 A. Well, my wife called the -- she called the county clerk,

20 and she asked the county clerk -- well, she told the county

21 clerk that our names was -- we was told that our name was

22 removed from the ballot. And my wife told me that -- whoever

23 she talked to, that she said, yes, our name was removed from

24 the ballot. So she told my wife that -- she told my wife that

25 we should -- that we should go to the computer and try to -- we


1 can go to the computer and cast our vote -- registration --

2 fill out a registration form.

3 Q. Uh-huh.

4 A. And my wife told her that we had already voted, and we had

5 already received information.

6 Q. You mean, you had already registered?

7 A. Yeah, we had already registered. And we had received our

8 mail-in ballot and our registration, so we didn't really have a

9 reason to fill out another registration form.

10 Q. And so when -- after your wife spoke to the election

11 official on the phone, what did you all do next?

12 A. Well, actually, the next day, we went down to the clerk's

13 office to ask -- you know, to see what was the problem. And we

14 went to the clerk, and we stated that we was here because we

15 was told that we was removed from the list, and we wanted to

16 know -- we wanted to know why, because we really didn't know

17 why we was removed from the list.

18 Q. And what -- what kind of documentation did you provide to

19 the clerk's office?

20 A. Well, she asked me, did I -- she asked me, did I have --

21 she asked me, did I have my Social Security number and did I

22 have my driver's license. And she -- and we showed her -- we

23 took some -- we took some bills there with our address on it.

24 And I showed her my license and my -- I showed her my license,

25 showed her my registration card, showed her my -- the official


1 mail-in ballot that they mailed us, and we showed her the

2 bills.

3 Q. But before you showed them all the documentation, they told

4 you that you weren't able to vote; is that right?

5 A. That's true.

6 Q. And they also told you that your mail-in ballot wouldn't

7 have counted; is that right?

8 A. Yeah, that's what they told us.

9 Q. And can you tell me and the Court, Mr. Johnson, why you

10 registered to vote absentee, why you permanently registered to

11 vote absentee?

12 A. Well, I work at night, I work the 2330-hour until 730 in

13 the morning. When I get off, I be too tired to do anything. I

14 thought it would be a good thing to do for me to, you know, to

15 mail in my ballot. You know, all I have to do is walk down the

16 stairs and put it in the box, so I thought that was the best

17 thing for me to do.

18 Q. And can you tell me why you think voting is important.

19 A. Well, I think voting is important because I'm a born U.S.

20 citizen, number one. And I feel like it's my responsibility,

21 and I feel that it's my duty to vote. And in voting I feel

22 like I can -- I feel like I can show my integrity and in making

23 a decision -- in making a decision on the issues and making a

24 decision on the candidates that I feel that is the best to hold

25 the position that I elected them for.


1 Q. And if you had not received a call from plaintiffs'

2 attorneys, would you have known that you had a problem with

3 your voter registration records?

4 A. I would have never known.

5 Q. And even though you've spoken to a number of election

6 officials, was anybody able to give you a reason as to why your

7 registration record was canceled?

8 A. No, there was never -- they never did give us really an

9 accurate reason. But they -- I think when we went down to the

10 office they did say something about our address was --

11 something about our address, but no other reason.

12 Q. And you did receive a voter identification card and a

13 mail-in ballot at that address?

14 A. Yes. Yes.

15 Q. And are you going to vote in the upcoming election?

16 A. Yes, I am.

17 MS. PEREZ: No further questions.

18 MR. KNAIZER: No questions, Your Honor.

19 THE COURT: Thank you, Mr. Johnson. You may stand

20 down.

21 MR. FINBERG: Your Honor, I'd like to introduce some

22 exhibits that address the standing issue.

23 THE COURT: Mr. Finberg?

24 MR. FINBERG: I'm sorry, Your Honor. Mr. Finberg.



1 MR. FINBERG: And the first document that we would

2 like to introduce is an exhibit that is taken from the

3 Secretary of State's website that confirms that Mi Familia Vota

4 is in fact an organization involved in voter registration.

5 Your Honor, on page 8 of this document, it says Mi

6 Familia Vota Educational Fund is the second organizational

7 name. And this is a list of organizations that are 2008

8 approved voter registration drive organizations.

9 THE COURT: All right. Thank you.

10 MR. FINBERG: Does counsel have any objection to me

11 moving in --

12 MR. KNAIZER: Your Honor, for that limited purpose, we

13 have no objection.

14 THE COURT: Okay. Fine. It's admitted.

15 MR. FINBERG: And then as to the standing issue as to

16 SEIU and the membership of the SEIU, after we had received

17 defendant's brief and saw that they were challenging the

18 standing issue, we did ask SEIU to do a comparison of its

19 membership to the persons on the list of people who had been

20 purged during the relevant time period. And I have been

21 informed that there were numerous matches between the SEIU

22 membership in Colorado and the number of persons purged.

23 I don't have a witness here at the moment, but we

24 should be able to submit documentary evidence to Your Honor.

25 B.J., when would we be able to submit --


1 By this evening, Your Honor.

2 THE COURT: That's fine. I don't take the -- I don't

3 take the objection on standing to be one of authenticity in

4 this matter. I think it's more a question -- a legal question

5 from the Ohio case as to whether this is one of their

6 fundamental purposes.

7 But the existence of the union and the fact that it

8 engages in this kind of activity I don't think is contested.

9 Is that fair?

10 MR. KNAIZER: Yes, certainly we don't contest the

11 existence of any of these organizations. I think with regard

12 to SEIU, Common Cause and Mi Familia, we are saying that as

13 organizations, they don't have standing.

14 With regard to SEIU and Common Cause, what we are

15 saying is that they haven't given us any proof of members who

16 are -- whom they would represent are in this position.

17 THE COURT: I understand.

18 MR. FINBERG: So, Your Honor, we're making two

19 arguments. One, that the organization itself has standing,

20 and, two, standing on behalf of its members.

21 THE COURT: I understand. I don't want to quibble

22 about it. I'm just saying that I think these are authentic

23 organizations. And the legal significance of it is what we're

24 going to argue, but not the bona fides, if you will, of the

25 organization.


1 MR. FINBERG: Proposed evidence goes to the second

2 point, not as to the organizational standing, but whether

3 members of the organization have standing. We can submit

4 evidence this afternoon showing in fact members of Colorado

5 SEIU were injured in fact because they were members of the

6 group that were purged.

7 THE COURT: I think we're on the same page.

8 MR. FINBERG: Thank you, Your Honor.

9 MR. KNAIZER: Your Honor, just one thing. I think

10 that we obviously need to see the list and at least perfunctory

11 analysis.

12 THE COURT: Sure. Right, I agree.

13 Next witness, please.

14 MS. ALLEN: Plaintiffs rest, Your Honor. We want to

15 save some time for rebuttal.


17 Mr. Knaizer, do you want to put your witness on now.

18 MS. MIRBABA: Ms. Mirbaba will be presenting our

19 witnesses on direct.

20 THE COURT: Okay.

21 MS. MIRBABA: Melody Mirbaba on behalf of the

22 Secretary.

23 The Secretary of State calls Hilary Rudy.

24 THE COURT: Your attention please.

25 COURTROOM DEPUTY: I need everyone's attention.


1 THE COURT: Let's not have anything being done while

2 an oath is being administered, please.

3 (HILARY RUDY, DEFENDANT'S WITNESS, SWORN)

4 COURTROOM DEPUTY: Please be seated. State your full

5 name for the record and spell your last name.

6 THE WITNESS: Hilary Rose Rudy, R-U-D-Y.


8 BY MS. MIRBABA:

9 Q. Ms. Rudy, for the record, how is your first name spelled?

10 A. H-I-L-A-R-Y.

11 Q. Ms. Rudy, what is your job title?

12 A. I'm a legal analyst for the Secretary of State's elections

13 division, assigned to the SCORE team.

14 Q. How long have you been working at the Secretary of State's

15 office?

16 A. For about two years.

17 Q. What -- what's your educational background for that

18 position?

19 A. I have a bachelor's in business administration and a juris

20 doctor.

21 Q. Let's talk about your job duties. Can you please explain

22 what your job duties are at the Secretary's office.

23 A. My job duties include interpreting and analyzing federal

24 and state election laws to assist with the development and

25 providing guidance and advice to the counties with regard to

Hilary Rudy - Direct 40

1 the Secretary's interpretation of those laws.

2 Q. And how are you specifically involved with the statewide

3 voter registration program?

4 A. I'm specifically involved with that program to ensure that

5 the development and implementation of the system is consistent

6 with federal and state election law. Also to provide guidance

7 and processes for the counties to follow in using the SCORE

8 system consistent with federal and state election law.

9 Q. As a part of the use of the SCORE system, how do

10 provisional ballot processes fit into that?

11 A. Provisional ballot processes fit in as a part of the

12 election law and the business process of the counties, but then

13 also in the functional use of the statewide voter registration

14 database.

15 Q. I'd like to start by clarifying one of the major

16 allegations we've been hearing from the plaintiffs, and that is

17 that the Secretary of State purged voter records. What really

18 happened?

19 A. The counties cancel voter registration records consistent

20 with state law and administrative rules.

21 Q. Does the Secretary cancel records?

22 A. No, the counties.

23 Q. All right. Now, let's take a step back and talk about the

24 voter registration system in Colorado. What is the name of

25 that system?


1 A. It's called SCORE.

2 Q. What does that stand for?

3 A. State of Colorado Registration and Election.

4 Q. What information is contained in terms of individuals

5 within that system?

6 A. It contains information relating to applications for

7 registration for individuals registering to vote in the state

8 of Colorado.

9 Q. Does it just contain active voter information?

10 A. No, it contains active voter information, canceled voter

11 information, information on incomplete applications.

12 Q. Approximately how far back does that information go?

13 A. It goes back maybe ten or twelve years to the first

14 electronic database.

15 Q. Before this system, what was the prior voter registration

16 system in Colorado?

17 A. There were 64 independent county voter registration

18 systems, and they submit their list to the Secretary of State.

19 Q. Under the old system, 64 separate counties, who was

20 responsible for those individual databases?

21 A. Each individual county was responsible for maintaining its

22 own database.

23 Q. And under that old system, how did Colorado prevent people

24 from voting, say, multiple times in different counties?

25 A. It was a process where the counties submitted a list to the


1 state, and then they were compared and submitted back to the

2 counties. It was a manual process.

3 Q. Did you say unmanageable?

4 A. It was inefficient. It was manual.

5 Q. Under the new system, how is that addressed?

6 A. Under the new system, since the database contains all of

7 the information about people who have registered to vote in the

8 state of Colorado, then all of that information is viewable by

9 each county. So the information includes their registration

10 details, any applications they've submitted, all of that

11 information is viewable in each county.

12 Q. When did this new system get deployed statewide?

13 A. That occurred over a series of months beginning prior to

14 the 2007 coordinated election and concluding in April of this

15 year.

16 Q. What was your role with that?

17 A. My role with that was really to ensure that the processes

18 that -- the business process that the counties were

19 implementing as they went live on the system and began using

20 the system were consistent with state and federal law and the

21 Secretary of State policies.

22 Q. Now I want to talk about processing applications to

23 register to vote in Colorado. What triggers the entry of an

24 applicant's information into the SCORE database?

25 A. The receipt of a voter registration application by the


1 county.

2 Q. Who processes the applications?

3 A. The counties process those applications.

4 Q. What happens if the Secretary receives an application?

5 A. It's forwarded on to the appropriate county for processing.

6 Q. Once the application is entered by the county, what does

7 SCORE do with that information?

8 A. SCORE looks -- performs a match to see if there are any

9 existing registrations for that applicant in the system.

10 Q. Why?

11 A. Because now that we're deployed on SCORE, each voter has

12 one registration record that follows them within the state.

13 Q. What information is the computer looking for in this

14 automatic search?

15 A. It's looking for a match of the name, date of birth,

16 driver's license, Social Security number provided.

17 Q. Within that SCORE system, what databases are available for

18 SCORE to cross-check?

19 A. The database contains interfaces to the Colorado Department

20 of Revenue list, the Colorado Department of Public Health and

21 Environment list, and the Colorado Department of Corrections

22 list.

23 Q. Why?

24 A. Each of those interfaces are both state and federally

25 mandated, and it's to ensure that applicants who are eligible


1 are registered and to ensure the timely transmission of

2 applications from the Department of Revenue and also to ensure

3 that applicants who are ineligible are not registered.

4 Q. So what does a county do with the information that that

5 automated system does?

6 A. The county reviews each match to determine if there is an

7 existing registration for that applicant. So they'll review

8 all of the information available, the information provided in

9 the match, as well as the application and any application

10 documents in each of those records.

11 Q. Just so that I'm clear, you said the county does this

12 review. Is it done by people, persons?

13 A. Yes.

14 Q. So when doing this individualized review, when there is a

15 doubt as to whether the person should be registered to vote,

16 how does that fall?

17 MS. HAIR: Objection, Your Honor. She's testifying

18 about what county officials do without a -- with a lack of

19 foundation.

20 THE COURT: Overruled.

21 BY MS. MIRBABA:

22 Q. Let me ask the question again. When the counties are doing

23 individual human review, in the instances where there is some

24 doubt as to whether the person should be registered, what does

25 the county do?


1 A. Well, the county determines all -- the county resolves all

2 questions in favor of the voter. So if additional information

3 is needed, they enter the application and request additional

4 information from the voter.

5 Q. Let's just go through that human review process. What is

6 the county looking for in trying to determine if there is a

7 match within the system?

8 A. Well, minimally, they're looking for a match of the

9 applicant's name, date of birth and prior residence. If the

10 prior residence isn't provided, then they need to find at least

11 a match of the name, date of birth, and either driver's license

12 or Social Security number.

13 Q. What if the county finds a match that is the name, address,

14 and year of birth?

15 A. Then they would not transfer the record. They would enter

16 the application as a new registration.

17 Q. Okay. For purposes of a duplicate, what does the canceled

18 and -- cancel mean?

19 A. The purpose of the duplicate means that the voter has

20 submitted an application in more than one county.

21 Q. So you're referring to transferring the record. Can you

22 explain how those two things fit together.

23 A. Sure. Under the prior system with 64 independent voter

24 registration systems, it was necessary for the voter to be

25 canceled in the previous county when they moved to a new


1 county. Now, under SCORE, rather than canceling that record in

2 the previous county, we just transfer it into the new county.

3 Q. So for all intents and purposes, if that person shows up in

4 the prior county, are they on the polls?

5 A. No, they're not.

6 Q. Why?

7 A. Because they -- because the system shows that they've moved

8 to a new county.

9 Q. Are they purged totally from the system?

10 A. No. They have a record in the system. It's viewable by

11 the previous county, but the new county has control over and

12 can modify the record.

13 Q. Where is that voter supposed to vote?

14 A. In the new county.

15 Q. Okay. So in the instance after the human search has been

16 completed and the county determines that there is an existing

17 registration, what does the county do with the current

18 application to vote in their county?

19 A. They'll update the voter's residence address, mailing

20 address, add any absentee ballot requests, and then they'll

21 update the voter's record, which then transfers the record into

22 the new county.

23 Q. All right. Now, in the instance where there is no

24 duplicate found, then what does the county do?

25 A. The county completes entering the information for the


1 application and enters it as a new registration and it is

2 assigned a unique identification number.

3 Q. What is the point of the unique identification number?

4 A. Each voter in the state is assigned a unique identification

5 number in the database. It's unique to them, and it's for

6 statewide uniformity.

7 Q. At what point is that unique identification number changed?

8 A. That identification number is not changed.

9 Q. And -- in the prior registration system, were there any

10 identification numbers assigned?

11 A. Each of the counties used an identification number

12 consistent with their county processes. That number is still

13 in the voter's record. However, the statewide identification

14 number is controlling.

15 Q. Now, going back to the point where a new applicant's

16 registration is entered, what is that person's status within --

17 let's just say, as a person who has applied to register to

18 vote?

19 A. The record is marked active 20-day.

20 Q. What does that mean?

21 A. That means that their information is entered into SCORE as

22 an applicant, and there is a condition upon their registration.

23 They're not registered.

24 Q. So once that information is entered and they're marked

25 active 20-day period, what action does that trigger the county


1 to take?

2 A. The county will send the voter information about the

3 disposition of their application. If it's complete, they'll

4 send them the voter information card. And if it's incomplete,

5 they'll send a letter advising the additional information

6 needed.

7 Q. Now, you just mentioned the voter information card. What

8 is the purpose of the voter information card specifically with

9 respect to this 20-day period?

10 A. It's to confirm that the address provided by the applicant

11 is their address.

12 Q. So if that voter information card is returned to the county

13 within the 20-day period, what is the assumption that the

14 county makes?

15 A. That the address is not valid and that the applicant is not

16 registered.

17 Q. If that 20 -- if that card doesn't come back in the 20

18 days, what happens to that person's application?

19 A. Then they're registered. The presumption is that the

20 address is confirmed, and the 20-day qualification is removed.

21 Q. So going back to the point of that 20-day, that

22 confirmation of the address, what are the other ways that

23 counties can receive that address confirmation to satisfy that

24 20-day period?

25 A. The voter voting, either in person or by mail.


1 Q. How does that resolve that?

2 A. Well, if the voter registers to vote close to the close of

3 registration, then they'll be on the poll book and if they

4 requested a mail-in ballot, they would be sent the ballot. So

5 if the ballot is returned as voted, the presumption would be

6 the address is correct.

7 Q. And in the situation where that voter goes in person, how

8 is their address confirmed, then?

9 A. Well, when the voter appears in person, they confirm the

10 address in the poll book with the signature card.

11 Q. Why would they be permitted to vote a regular ballot if

12 they were not registered to vote?

13 A. If a voter registers, again, close to the registration

14 deadline, we resolve all conflict in favor of the voter. So

15 the presumption is in favor of the voter that's a valid

16 address, unless it's confirmed otherwise.

17 Q. Just so that I'm clear, this whole 20-day period has to do

18 with confirmation of address?

19 A. That's correct.

20 Q. I want to talk about another registration option that

21 voters have available, the emergency registration option. Can

22 you please explain that.

23 A. The emergency registration is an option available for

24 voters who discover close to the election that they are not

25 registered to vote or there is a problem with their


1 registration.

2 Q. How does a person register to vote on an emergency basis?

3 A. They need to appear in person at the county clerk's office

4 and make an affirmation as to the manner of their attempted

5 timely registration and complete a voter registration form.

6 Q. Does the voter have to prove that they registered to vote?

7 A. No. The voter has to affirm as to the details.

8 Q. I just wanted to direct your attention to Exhibit C in our

9 notebook up there.

10 Is this the emergency registration form you were just

11 referring to?

12 A. Yes, it is.

13 Q. Now, in this situation of the Johnsons, who testified

14 earlier today, we heard them state that they -- when they went

15 in person, the clerk tried to make them fill out a form. If

16 that form was the emergency registration, how would that have

17 resolved their problem?

18 A. Well, they could have affirmed on here that they attempted

19 to timely register. And in fact, they had proof in that case

20 that they attempted to timely register. And this would have

21 ensured that they were registered effective as of that date.

22 Q. What about the deadline to register to vote?

23 A. The emergency registration is an exception to that

24 deadline.

25 Q. Ms. Rudy, if I can ask you to speak up a little. I'm


1 having a little difficulty hearing you.

2 All right. So in that situation, a person would have

3 to have some information there is a problem. How can a voter

4 find out if there is any issue with their registration?

5 A. They can log onto the state website at govoteColorado.com

6 or contact the county clerk directly.

7 Q. To your knowledge, have there been public notices about

8 that information?

9 A. Yes. Press releases, articles in the paper. In fact, I

10 believe the Secretary of State elections division number is

11 also published in the newspaper on a regular basis for that

12 purpose.

13 Q. Does the Secretary's office regularly encourage people to

14 check their voter registration?

15 A. Yes.

16 Q. Okay. Now let's move on and talk about provisional voting.

17 How does provisional voting generally provide a check

18 on the voter that may attempt to vote multiple times?

19 A. It ensures that the county has an opportunity to check

20 whether the voter has already attempted to vote within the

21 state prior to researching the voter's eligibility to vote in

22 that election.

23 Q. So if a voter votes provisional ballot and the county finds

24 out they voted in another county, what do they do?

25 A. Then they would not count that ballot.


1 Q. All right. How does provisional voting generally ensure

2 that voters who are eligible to vote can cast a vote that will

3 be counted?

4 A. It ensures that every voter who shows at the polls can cast

5 a ballot. And if they are eligible, then that vote will be

6 counted, because there is an opportunity to research their

7 eligibility after election day.

8 Q. Are people turned away?

9 A. No.

10 Q. All right. So let's now talk about the details of

11 provisional voting. Generally, how does a person end up having

12 to vote a provisional ballot?

13 A. Generally, it's when they appear at the polls, and their

14 name -- either on early voting or on election day is not listed

15 in the poll book. They may also have to vote provisionally if

16 they failed to bring ID or if the poll book said they were

17 going to vote by mail.

18 Q. All right. So let's talk about, the person appears on

19 election day and they don't appear in the poll book, what

20 happens?

21 A. Well, generally, the election judge will try to contact the

22 county election office by telephone. It's always preferable to

23 resolve that prior to moving to the provisional step if

24 possible. If the county election official can verify the

25 voter's eligibility at that point, they'll instruct the


1 election judge to include them on the poll book and issue a

2 regular ballot.

3 Q. What about the situation where the county just can't make

4 the call, they're too busy, or they're unable to resolve it by

5 the phone call, what happens?

6 A. They'll ask the voter to step over to the provisional

7 ballot table. And the voter will be given a provisional ballot

8 and asked to complete the affidavit, sign it, fill out the

9 ballot, and seal it and sign.

10 Q. All right. I'd like to direct your attention to Exhibit D

11 in the notebook. What is Exhibit D?

12 A. Exhibit D is a provisional ballot affidavit form.

13 Q. What is the point of this affidavit?

14 A. The point of this affidavit is to provide, first, a voter

15 registration form, and to allow the election official to

16 research the voter's eligibility following the election to find

17 out why their name was not on the poll book.

18 Q. So after a voter fills out the affidavit and the

19 provisional ballot, what happens next?

20 A. The election judge will ensure that everything is complete

21 and that the ballot is sealed inside the envelope, and then

22 they'll provide the voter with a receipt. And the receipt

23 advises the voter how they can find out whether their ballot

24 was counted or not.

25 Q. How can a voter who votes provisionally find out what


1 happens to their vote?

2 A. The counties are required by HAVA -- I'm sorry, the Help

3 America Vote Act and by state law to provide information either

4 on a website or by toll-free telephone number for each voter

5 who votes provisionally with regard to whether or not the

6 ballot was counted.

7 Also, in this general election, the Secretary of

8 State's office will provide that information on its website.

9 Q. As of what date?

10 A. As of November 19.

11 Q. How does the provisional ballot affidavit form track with

12 the sealed envelope holding the ballot?

13 A. The affidavit form is either printed on the envelope or

14 stapled to the envelope for the duration of the verification

15 process. Once it's determined that the ballot should be

16 counted, then the envelope and the ballot would be separated

17 for counting.

18 Q. All right. So let's move on to that second phase after the

19 election. How much time do county workers have to investigate

20 those provisional ballots?

21 A. They have 14 days following the general election.

22 Q. And in those situations when there is any doubt, when

23 they're doing those investigations, how does the county resolve

24 those doubts?

25 A. Again, all questions are resolved in favor of the voter, of


1 the ballot being counted.

2 Q. Now, earlier today the judge raised a question, and I'm

3 going to ask you this question right now.

4 When they are doing that provisional ballot review,

5 are there any assumptions made that just because a person

6 doesn't appear on the poll books, that they're not eligible to

7 vote?

8 A. No. Provisional ballot ensures that every voter who is

9 eligible gets a chance to vote and have that ballot be counted.

10 Q. All right. Let's get to the actual investigation process.

11 Who does these investigations?

12 A. It's an individual or team of individuals at each county.

13 Q. What information does the county use in the course of that

14 investigation?

15 A. They use the provisional ballot affidavit, and they look

16 the voter up in SCORE. So they use all of the information in

17 the voter's registration record, if there is one, scanned

18 images, details of the voter's registration, including voting

19 history.

20 Q. So, for instance, if the person -- their problem with the

21 registration had to do with their address, how does that

22 provisional ballot affidavit resolve it?

23 A. Well, the provisional ballot affidavit is a voter

24 registration form. And so if the county received the voter

25 card returned as undeliverable within 20 days, they would have


1 a scanned image of that returned card. And they could compare

2 the provisional ballot affidavit to the address provided in the

3 system along with the original application of the voter. And

4 if the information on the provisional ballot affidavit is the

5 same as the information provided at registration, then the

6 ballot will be counted.

7 Q. For all practical purposes at this stage, which record the

8 counties have access to are considered the most accurate?

9 A. At this stage, it would be the provisional ballot

10 affidavit.

11 Q. So if there is a mistake, say, on a voter registration card

12 that's scanned into the system, how is that resolved?

13 A. It's resolved in favor of the ballot being counted if the

14 voter is otherwise eligible.

15 Q. Now, let's talk about the specifics and specific situations

16 that have been brought up here.

17 I want to start with the 20-day period, those

18 particular cancellations. How does this process resolve that

19 issue?

20 A. Well, in that case, if the voter showed up to the polls and

21 they had been canceled for failing the 20-day period, they

22 would have the opportunity to cast a provisional ballot.

23 Again, if the address provided on the provisional ballot

24 affidavit was the same as that provided at registration, it

25 would be presumed that it was a postal error, and the voter


1 would be reinstated and the ballot counted.

2 Q. All right. Now let's talk about the duplicate issue,

3 people who had problems with their registration due to this

4 duplicate issue. How is that resolved?

5 A. Well, the county will, again, look the voter up in the

6 system and research the registration record. They'll also

7 verify that the voter has not already voted. And if the voter

8 should be voting in that county, the ballot will be counted.

9 Q. How -- generally speaking, how does a person who is

10 canceled because of this reason for duplicate, how does that

11 happen?

12 A. Well, generally speaking, that means that they have

13 registered in a new county, and so there are two registration

14 records in the system, in different counties, or sometimes

15 within the same county.

16 Q. Now, let's move on to the issue of people who are canceled

17 due to moving. Generally, how does that happen?

18 A. Generally, that happens because the voter submits a

19 registration form in the new jurisdiction, and that

20 jurisdiction notifies the previous county that the voter is

21 registered to vote there.

22 Q. What does the county do with that information?

23 A. They'll cancel the voter's record and scan the image into

24 the system.

25 Q. So in the case of that person, when they vote a provisional


1 ballot, how is that issue resolved?

2 A. Well, that issue is resolved, again, in favor of the voter

3 and based upon the information and the affirmations provided by

4 the voter on the provisional ballot affidavit, along with the

5 information in the system.

6 Q. You referred to the affirmation. Do they have to prove

7 what they're saying is true?

8 A. No.

9 Q. So in those last two instances, duplicate and moved, what

10 is the triggering factor that causes the cancellation or the

11 transfer?

12 A. In both of those cases, it's the voter submitting a

13 registration application in a new jurisdiction.

14 Q. Now, let's talk about cancellations due to inactivity. How

15 did that happen?

16 THE COURT: Can you wait just a moment. There is one

17 question on that topic I'd like to ask.

18 MS. MIRBABA: Sure.

19 THE COURT: What are the criteria you use for

20 determining whether the voter is eligible or not? What does

21 that mean specifically?

22 THE WITNESS: Specifically, that means whether the

23 voter has already voted within the state, whether the voter

24 meets the age, citizenship and basic requirements to vote, and

25 whether the voter provided an affirmation that they attempted


1 to timely register prior to the close of registration.

2 THE COURT: What if there is a wrong number on the zip

3 code or wrong number on the address, does that affect the

4 eligibility?

5 THE WITNESS: No, those errors are resolved in favor

6 of the voter.


8 You may proceed.

9 BY MS. MIRBABA:

10 Q. Well, since the judge brought it up --

11 THE COURT: Now you're going to blame me.

12 MS. MIRBABA: I just want to point out the document,

13 have my witness point out the document that has all of that

14 information.

15 THE COURT: Okay.

16 BY MS. MIRBABA:

17 Q. Let me direct your attention to -- sorry, I don't have it.

18 Exhibit A. What is Exhibit A?

19 A. Exhibit A is the state-approved voter registration and

20 mail-in ballot application.

21 Q. And within this form, are all of -- all of the information

22 that the county needs to determine if a person is eligible to

23 vote, is all of that information contained here, asking the

24 voter to fill it out?

25 A. Yes, it is.


1 Q. So of the voter fills all of that out, you have all you

2 need?


4 Q. All right. Let's go back to this inactive cancellation

5 issue. How does a voter get canceled for inactivity?

6 A. Generally speaking, it's under the NVRA provision that

7 provides if the voter fails to vote in two federal elections

8 and fails to respond to a confirmation mailing, they may be

9 removed from the list.

10 Q. So in the situation when a person votes provisionally and

11 it's later determined that they were canceled for inactivity,

12 what's the process for resolving that?

13 A. They're treated as any other provisional voter. So the

14 person resolving the -- verifying their provisional ballot

15 affidavit would take into account the statements made by the

16 voter as well as the information contained in their voter

17 registration record.

18 Q. So if the voter says in their provisional ballot

19 affirmation that they attempted to register to vote within the

20 time frame allowed, how is that resolved?

21 A. The affirmation controls, and the voter is registered, and

22 the ballot is counted.

23 Q. That registration is then considered retroactive?


25 Q. Now I want to move on to another category, and that is this


1 mysterious conversion category. Can you explain that?

2 A. Yes. Prior to SCORE, each of the 64 counties had their own

3 databases for which they were responsible. And they would have

4 had records that were canceled without a reason for that

5 cancellation. The SCORE system requires a reason for the

6 cancellation. So at the time those records were migrated into

7 the SCORE system, if there was not corresponding cancellation

8 reason, then conversion would have been assigned so that we

9 knew they were canceled when they migrated in.

10 Q. Earlier you mentioned that this actual conversion process

11 in general took place in May -- April of this year.

12 A. Uh-huh.

13 Q. So if that's the case, then, how is it that the plaintiffs

14 have this number of people that were listed as canceled for

15 conversion after May 13?

16 A. Well, all counties were migrated onto the SCORE system by

17 April. There was one county with an ongoing legal issue, and

18 we had a subsequent late data migration for that county in

19 June.

20 Q. Why did the legal issue affect migration?

21 A. They needed to maintain their database in its original

22 format in their legacy system in case they did in fact need to

23 defend a challenge.

24 Q. So for all practical purposes, those numbers, those people

25 that were canceled for conversion purposes, when were those


1 cancellations taking place?

2 A. At some point prior to April.

3 Q. So in the situation of a voter who comes in and has to vote

4 provisionally, and it's discovered that it was a conversion

5 cancellation, how -- how is that resolved?

6 A. Well, they're treated, again, as any other provisional

7 voter. So the person verifying the eligibility would look at

8 the affidavit and any affirmations provided by the voter, as

9 well as the information provided in the SCORE system and the

10 scanned images. And, again, if the voter makes an affirmation

11 that they attempted to timely register, the voter is registered

12 and the ballot is counted.

13 Q. What else do provisional ballots do for the voters?

14 A. Well, they ensure that every eligible voter is able to cast

15 a vote that will be counted. And they ensure that if the voter

16 is not eligible to vote in that election, it serves as a

17 registration for all future elections.

18 Q. Now, let's talk about the example of the Johnsons here

19 today. Earlier you were talking about emergency registration.

20 Just for clarity's sake, up until what point can a person do an

21 emergency registration?

22 A. At any point for the 29 days prior to and on election day.

23 Q. So up until 7:00 p.m. on election day?


25 Q. Did you have an opportunity to review the Johnsons'


1 affidavits?

2 A. I did.

3 Q. And you were here in the courtroom when they both

4 testified?

5 A. I was.

6 Q. Prior to coming in today, did you have an opportunity to

7 investigate what happened with their situation?

8 A. I did.

9 Q. What did you look at?

10 A. I looked at the applications that were scanned into the

11 SCORE system, as well as the actions taken in the SCORE system

12 by county staff.

13 Q. What did you discover?

14 A. I discovered that both the Johnsons registered to vote in

15 May of this year and that a subsequent registration form was

16 submitted in September of this year, which had a different

17 address than the form submitted in May.

18 Q. How did that different address impact their registration?

19 A. That different address would have changed their address,

20 their registration address. And a voter information card --

21 voter information card was sent, but they were canceled within

22 that period because the address could not be verified.

23 Q. Okay. So just to clarify, you said they registered in May.

24 That registration had a different address --

25 A. Uh-huh.


1 Q. -- than the second registration. When the voter

2 information card was sent, what address were they using to send

3 that card to?

4 A. The address submitted in September.

5 Q. Did you mean the address submitted earlier? You just

6 testified that the address submitted in September was the

7 incorrect address.


9 Q. Why don't we refer to these exhibits so we don't get

10 confused.

11 Let's refer to Exhibit E. As testified by Linda

12 Johnson, this was the correct address.


14 Q. Was this the information that was used to mail the voter

15 information card to?

16 A. There was a voter information card mailed to this address

17 at the time of registration in May.

18 Q. Is that the address that the ballot was mailed to?

19 A. Yes, it was.

20 Q. Why was the voter information card mailed and the ballot

21 mailed if the county received a later application with a

22 different address?

23 A. The later application with a different address was received

24 in September. At that point ballots were being prepared to be

25 mailed, and in fact, were mailed the beginning of October.


1 Q. Both the Johnsons testified that the second one, Exhibits F

2 and H, aren't their handwriting, that they didn't submit those.

3 In a situation like this, what is the County supposed to do

4 when they get a subsequent registration like this?

5 A. The county is required to enter the information and attempt

6 to register the voter if the information regarding the name,

7 date of birth, all matched, so the county registered the voter

8 in accordance with state law.

9 Q. What basic assumptions did the county make in terms of the

10 information that is provided on there?

11 A. That it's provided by the voter, or with their consent, and

12 that it's accurate.

13 Q. When you find out or when the county finds out in a

14 situation like this that there may be some sort of fraud that

15 took place, what is supposed to happen?

16 A. Then the county will turn it over to the district attorney

17 for investigation. They'll also contact our office and make us

18 aware, because our office consolidates with the counties.

19 Q. So otherwise for those voters, so that their vote can

20 count, what were their options?

21 A. Emergency registration, or contacting the county when they

22 discovered there was a problem with the registration, or

23 returning the mail-in ballot.

24 Q. So if they had returned the mail-in ballot, was that ballot

25 supposed to be counted?


1 A. It was.

2 Q. Why?

3 A. Because a returned mail-in ballot that was sent to the

4 correct address, even though the later form had the incorrect

5 address on it and they were canceled for failing the 20-day

6 period, it's presumed that that's an error either on the part

7 of the staff or the post office, and the ballot is counted.

8 Q. Well, how do you respond to the Johnsons saying they were

9 told their absentee ballot would not be counted?

10 A. It was incorrect.

11 Q. Prior to today, did you have any knowledge that there was a

12 voter fraud possibly taking place here?

13 A. I did not.

14 Q. Now, what action will be taken with respect to these two --

15 these registrations?

16 A. We'll be contacting the county to let them know there is a

17 potential problem, and we'll also be notifying the correct

18 person in our office so they can be turned over for

19 investigation.

20 Q. What about criminal proceedings?

21 A. It's a possibility.

22 Q. All right. Now, let's move on to after the investigation

23 and after the county reaches a determination on whether the

24 provisional ballot is counted. What do they do? What does the

25 county do once they make that decision?


1 A. Once they make the determination, they'll assign the

2 appropriate code to the provisional ballot to reflect why it

3 should or should not have been counted.

4 Q. Where does that information go? Where is that information

5 put?

6 A. That information is put into the SCORE system. And it's

7 also provided at the request of the voter to let them know

8 whether the ballot was counted, and if not, why.

9 Q. If a voter wants to dispute -- let's say in a situation, a

10 voter -- their ballot doesn't count, how do they dispute that?

11 A. They can file a HAVA complaint, the process set up under

12 the Help America Vote Act, and our state law.

13 Q. There have been some contentions that provisional voting

14 tarnishes the election process. How do you respond to that?

15 A. It's exactly the opposite. The provisional ballot process

16 enhances the voting process. It boosts voter participation.

17 It also ensures that every eligible voter can cast a ballot

18 that will be counted, while protecting against voter fraud and

19 people voting twice.

20 MS. MIRBABA: Just one moment.

21 BY MS. MIRBABA:

22 Q. I just want to quickly go back to the situation that

23 happened with the Johnsons. Is there any reason to believe

24 that this voter fraud had anything to do with actions on their

25 behalf, anything that they did?


1 A. No, it does not sound like it.

2 Q. So what would -- who would be investigated?

3 A. The voter registration drive whose number is listed at the

4 top of the form.

5 MS. MIRBABA: Thank you.

6 Your Honor, I'd pass the witness.

7 CROSS-EXAMINATION

8 BY MS. HAIR:

9 Q. Good afternoon. My name is Penda Hair.

10 Good afternoon, Ms. Rudy.

11 Give me a minute to get organized. You covered a lot

12 of material here.

13 I'd like to start with the process that you described

14 for identifying voters who may have moved from one county to

15 another county. Do you recall that testimony? You said that

16 the SCORE system performs a match.


18 Q. That's an automatic computerized system, correct?

19 A. The system creates a list of potential matches based upon

20 specific criteria.

21 Q. And what are those criteria?

22 A. Name, date of birth, Social Security number, driver's

23 license, address.

24 Q. And does the system require that all of those elements

25 match in every single way, or is there some flexibility?

Hilary Rudy - Cross 69

1 A. No. The list that is generated is ranked based upon the

2 confidence of the match, depending on the items that match.

3 Q. And then you said the counties conduct an individual

4 review. Do you have personal knowledge of all of the reviews

5 that the counties have conducted that have led to removal of

6 voter records from the SCORE system or cancellation of voters?

7 A. I do not.

8 Q. Now, when a record is identified as a duplicate, is that --

9 that's also on the basis of a computerized match of certain

10 criteria?

11 A. Again, a list is generated as a potential duplicate is

12 based upon the criteria provided and ranked on confidence based

13 upon which criteria matched.

14 Q. It's the same general process. It doesn't require an

15 exact, 100 percent match, but, rather, there is some

16 flexibility in how many of the elements match before it makes

17 it onto that list; is that correct?

18 A. That's correct, for the list.

19 Q. Now, you said that the voter when -- upon registration is

20 assigned a unique ID number. How are those ID numbers

21 selected? Do they -- are they issued in order, or does each

22 county have a set of numbers that it uses? Do you know how --

23 how each ID number is selected and assigned to each individual

24 new registrant?

25 A. I do not.


1 Q. Do you know how many digits are in the state ID number?

2 A. No.

3 Q. Now, the emergency registration option that you mentioned,

4 the voter cannot do that at their precinct, right? They have

5 to go to the clerk's office?

6 A. They do have to appear at the clerk's office or an

7 authorized branch location.

8 Q. And authorized branch location, just for the record, that's

9 different from the precinct. It's another location that you

10 would have to go to?


12 Q. And you would presumably have to go to that location after

13 you stood in line at the first location and found out that you

14 were not registered; is that correct?

15 A. If the voter chose to do that instead of voting a

16 provisional ballot, yes.

17 Q. And do you know how far it might be in many Colorado

18 counties from the voter's precinct to either the clerk's office

19 or one of these special locations?

20 A. I don't know.

21 Q. Now, do you have any knowledge, personal knowledge, whether

22 the document that the Johnsons were given when they went down

23 to their clerk's office was in fact an emergency registration?

24 A. No, I don't know what document they were given.

25 Q. I'd like to turn your attention, if I may, to Plaintiffs'


1 Exhibit 6. Do you have a copy of that in front of you?

2 A. No, I don't.

3 Q. Can we provide a copy?

4 Do you recognize this document?

5 A. I do.

6 Q. This is a news release that was issued by the Secretary of

7 State's office in response to an article in the New York Times;

8 is that correct?

9 A. Yes, it is.

10 Q. And this document lists cancellations of voter

11 registrations and the reason for such cancellations within the

12 period between July 21, 2008 and, I guess the date of the

13 release, October 9, 2008; is that correct?

14 A. Yes.

15 Q. And let me just start with the third -- in the chart, sort

16 of the bottom of the page, I'm going to look under "reason for

17 cancellation" and "totals." You have a category that's called

18 "withdrawn," and you have 203 cancellations for that reason,

19 correct?


21 Q. Now, would that be when a voter sends a letter to the

22 county asking to be withdrawn as a registered voter; is that

23 how that would happen?


25 Q. Okay. Then you have a different category at the top called


1 "moved out of county or out of state," and there you have 6,572

2 cancellations in the relevant time period, correct?


4 Q. And those people would have been canceled pursuant to the

5 process that you described, where you start with the automatic

6 computer matching process and identify a list of voters who are

7 then sent to the counties for further investigation; is that

8 correct?

9 A. No, that's not correct.

10 Q. Okay. Could you clarify, then, how does a voter get into

11 the category of moved out of county or state?

12 A. The voter submits a registration form in a new

13 jurisdiction, and then the new jurisdiction notifies the

14 previous county that the voter has registered to vote in the

15 new jurisdiction.

16 Q. And does the county do its own automatic matching process

17 to determine whether the voter who registered in the new

18 jurisdiction is the same as the voter who was registered in the

19 original jurisdiction?

20 A. In order to cancel that record, the county must at a

21 minimum match the voter's name, date of birth and prior

22 residence address. Or if that address is not provided, the

23 voter's name, date of birth and driver's license or Social

24 Security number.

25 Q. And how does the county find out that the voter potentially


1 was registered in a different county?

2 A. Again, that county or other state would provide information

3 to previous county that the voter registered to vote there.

4 Q. Okay. Suppose a voter fills out a voter registration form

5 in a new county or -- let's just say a voter fills out a voter

6 registration form, and the voter does not list any prior

7 address where they were registered, the county then could, I

8 believe, still cancel that voter by finding them in -- cancel a

9 voter that they find in another county, correct?

10 Let me rephrase that.

11 A voter registers in one county. That county does a

12 search to find out whether that voter is -- or somebody with a

13 similar name and other characteristics is already registered in

14 the state of Colorado; is that correct?


16 Q. And how -- is that search an automatic search, or is it the

17 county clerk going into the records of the other 63 counties to

18 look for people with similar names and other characteristics?

19 A. All registration records are contained within the database.

20 So the system does an automatic search looking for any existing

21 registration that have a match of the name, date of birth,

22 driver's license, Social Security number. The county would

23 then review each potential match to determine if there is an

24 existing registration elsewhere in the state.

25 If there is an existing registration with a match of


1 the name, date of birth and prior residence address or name,

2 date of birth and Social Security number or driver's license

3 number, the county will transfer that record into the new

4 county. Which means that the previous county can see the

5 record, but they can no longer modify it.

6 Q. Okay. So let's just suppose hypothetically that your

7 system makes a mistake or your county clerk makes a mistake,

8 and that it's really two people with similar names and other

9 characteristics. And so when the first -- when a voter

10 registers in the second county, it's a different person from

11 the voter who was registered in the first county. Under the

12 system that you've described, the existing voter in the first

13 county will be canceled?

14 A. Actually, under our current system, their record would be

15 transferred into the new county. So the previous county could

16 still see the information, but it would belong to the new

17 county.

18 Q. So the voter in the first county no longer exists as a

19 voter in that county?


21 Q. And then the category of duplicate, which is listed on this

22 news release as 4,434 cancellations, that also results from an

23 automatic matching process of registrations that SCORE does and

24 creates a list of potential duplicates, correct?

25 A. The system creates a list of potential duplicates, yes.


1 Q. And then this form also lists failed 20-day period as

2 reason for cancellation, 1,136 voters; is that correct?

3 A. Yes.

4 Q. And those are the voters that you previously described,

5 whose postcards are returned after they are entered into the

6 system?

7 A. Within 20 days of registration, yes.

8 Q. Within 20 business days of registration, correct?

9 A. 20 calendar days.

10 Q. Are you sure it's 20 calendar days?

11 A. I think it is, but -- no, not entirely.

12 Q. Okay. I just want to make sure I understood your testimony

13 about the voter who registers close to the end of the

14 registration period and whose form is returned as

15 undeliverable, the 20-day -- the voters who fail a 20-day rule

16 for the end of the period.

17 Let's say that the voter registers on the last day,

18 which I believe in Colorado is October 6; is that correct?

19 A. Yes, it is.

20 Q. And -- I'm sorry, I've just been handed a copy of Colorado

21 law that indicates that the 20-day period is actually 20

22 business days. I'm going to ask you to assume -- and we'll get

23 that to you later, but assume that it's 20 business days that

24 the cards have to be returned as undeliverable.

25 So the voter registers on October 6, they can mail it


1 in, it could be received on October 7 or October 8, and then

2 the voter will go into the system, but in fact, 20 business

3 days would fall past November 4, 2008. So that voter could end

4 up coming to vote on November 4, 2008 without you knowing

5 whether their postcard has come back; is that correct?


7 Q. And that person, if they come to vote in person, I believe

8 you testified they would vote a regular ballot at their polling

9 place?


11 Q. And if they vote early, they'll also vote a regular ballot;

12 is that correct?


14 Q. Now, isn't it true in Colorado that every voter is asked to

15 confirm his or her address when they check in at the polling

16 place?

17 A. Yes, it is.

18 Q. And actually, the poll workers are instructed not to -- not

19 to read the voter's address and say, are you registered at this

20 address? They're actually instructed to ask the voter to say

21 their address; is that correct?

22 A. I believe that's correct .

23 Q. And then they look and see if the address that the voter

24 says matches what is on record; is that your understanding?

25 A. Yes.


1 Q. Now, you talked a lot about the benefits of provisional

2 ballots. And I would just like to go over some of the maybe

3 less advantageous aspects of provisional ballots.

4 It clearly is better to cast a regular ballot than a

5 provisional ballot; isn't that correct?

6 A. I'm sure the voters would prefer to do so.

7 Q. And it's safer. You know your vote will be counted if you

8 cast a provisional ballot -- if you cast a regular ballot;

9 isn't that correct?


11 Q. Now, I believe in Colorado, that there are approximately 14

12 steps that the voter has to go through in order to fill out the

13 provisional ballot affidavit. Does that sound about right to

14 you?

15 A. I don't know how many steps there are.

16 Q. Okay. Would you -- I think Exhibit D, which you do have in

17 front of you and referred to in your direct examination, a copy

18 of the provisional ballot affidavit and envelope.

19 The voter needs to fill in all of these different

20 boxes and squares; is that correct?

21 A. Yes, the voter should complete the affidavit fully.

22 Q. Now, is the page 1 of this document, that's -- that's the

23 affidavit -- that's the affidavit; is that correct?


25 Q. And page 2 is the envelope -- where is the envelope?


1 A. The affidavit is either printed on or stapled to the

2 envelope.

3 Q. Okay. So all of this would be part of the envelope,

4 essentially?


6 Q. Okay. And what happens if you forget to sign the

7 affidavit?

8 A. The election judge who is reviewing the affidavit is

9 supposed to check that. If they do miss it, then the voter is

10 sent a letter and given the opportunity to come in and sign the

11 envelope.

12 Q. Now, are you aware that there has been quite a bit of

13 criticism of provisional -- the provisional ballot process

14 because many voters make small errors that have their ballot

15 thrown out and not counted because of those types of errors,

16 whereas if they had voted a regular ballot, their vote would

17 have been counted?

18 A. I'm aware of the criticism.

19 Q. And in fact, isn't it generally the policy of the office of

20 the Secretary of State to try to resolve issues so that a voter

21 can in fact vote a regular ballot and won't have to undertake

22 that additional risk that is -- occurs with a provisional

23 ballot?

24 A. It is the policy of the Secretary of State's office to try

25 to resolve those issues prior to voting.


1 Q. And it takes longer to do a provisional ballot than to do a

2 regular ballot when you're in the polling place; isn't that

3 correct?

4 A. Yes, it is.

5 Q. Do you have any estimate about how much longer it takes to

6 fill out this and go through the rest of the steps as compared

7 to filling out a regular ballot?

8 A. No, I do not.

9 Q. Would you think that 10 minutes might be an reasonable

10 estimate for going through the process of filling out a

11 provisional ballot and doing the other steps that are required?

12 A. I don't know.

13 Q. If there are long lines, which could very well be the case

14 with heavy turnout, having additional provisional ballots is

15 going to put additional stress on all aspects of the polling

16 place operation; isn't that correct?

17 A. Well, there will be more provisionals to verify, that's

18 true. But, again, that's why there is time after the election

19 to conduct that verification.

20 Q. But even at the precinct on election day, if you have a

21 large number of people who need to vote by provisional ballot,

22 rather than regular ballot, that's going to slow things down;

23 isn't that correct?

24 A. It may slow down the provisional ballot line, yes.

25 Q. Now, I believe you testified that in the situation of a


1 voter who your system has found to have moved, that that

2 voter -- let me see, how can I phrase this? A voter whose

3 record has been canceled in one county because you believe that

4 voter has moved to another county, votes in the first county,

5 but -- and I assume that if that voter shows up and tries to

6 vote in the first county, they'll have to vote by provisional

7 ballot because they won't be on the list; is that correct?


9 Q. Will that provisional ballot be counted?

10 A. That will depend upon verification of the ballot, depending

11 on the affirmations provided by the voter and the information

12 in the registration record. If the voter was properly voting

13 in that county, then, yes, it would.

14 Q. Well, if you determine that the voter is supposed to be

15 voting in another county, then isn't it true that the county

16 reviewing the provisional ballot is also going to find that

17 that voter is supposed to be voting in another county, so it

18 won't be counted in the original county?

19 MS. MIRBABA: Objection, compound.

20 THE COURT: Overruled. If you can answer, please do.

21 If not, ask to have it rephrased.

22 THE WITNESS: Can you please repeat or rephrase.

23 BY MS. HAIR:

24 Q. Yes. It has already been determined that that voter is

25 supposed to be voting in the new county, where you think that


1 the voter has moved. That's what happens when according to

2 your system voters are -- voter records are canceled because

3 you've determined that the voter has moved. Do you follow me

4 so far?

5 A. Yes.

6 Q. Okay. I'm asking you to assume that the voter did not

7 move, that we have two voters who both registered, and one of

8 them has had their registration canceled -- the one who

9 registered first has had their registration canceled. That

10 voter goes to vote on election day, is not on the roll and has

11 to vote by provisional ballot. Follow me so far?

12 A. Yes.

13 Q. That voter's -- that provisional ballot will not be counted

14 because your system has already determined that that person

15 should not be voting in that county; isn't that correct?

16 A. If the person doing the verification determines that that

17 was a transfer or cancellation made in error, that ballot will

18 be counted.

19 Q. How is that person doing that verification supposed to

20 figure out it was a transfer made in error?

21 A. Again, the voter will provide a full voter registration

22 form on the provisional ballot affidavit. They'll also affirm

23 as to why they think they should have been on the poll book in

24 the county where they're voting.

25 Q. I'd like to turn to voters who are inactive. I believe you


1 testified that -- about voters whose -- whose status was

2 changed from inactive to canceled within the period since

3 May 13, 2008. Do you recall those -- that set of voters?

4 A. I do.

5 Q. What would be the reason for canceling an inactive voter

6 during the period between May 13 and October 2008?

7 A. I don't know. Again, the cancellation status reason is

8 that the voter failed to vote in two general elections and

9 failed to respond to a confirmation mailing.

10 Q. And you're aware that under the National Voter Registration

11 Act, it specifically prohibits any type of purge relating to

12 inactive voters within 90 days prior to a federal election; is

13 that correct?

14 MS. MIRBABA: Objection, calls for a legal conclusion.

15 THE COURT: Sustained.

16 BY MS. HAIR:

17 Q. Let me turn to your testimony about conversion

18 registrations.

19 I believe you said that there was one county where --

20 that had a late migration. Do you recall that testimony?

21 A. Yes, I do.

22 Q. What county was that?

23 A. Adams County.

24 Q. So if there are any cancellations because of conversion

25 after May 13, 2008 in your system, they should only be from


1 Adams County; is that correct?

2 A. That's my understanding.

3 Q. And turn briefly to the Johnsons -- the situation of the

4 Johnsons. I believe you said that the registration that was

5 accomplished by them in May was canceled sometime in September

6 or October; is that correct?

7 A. Actually, there was a registration application submitted

8 for the Johnsons in September, and that application was

9 entered. And it changed the address on each of the Johnsons'

10 registration records. The records were subsequently canceled

11 for failing the 20-day period after that.

12 Q. The county clerks, when they look at the September

13 registrations that were purportedly submitted on behalf of the

14 Johnsons, do you know whether they compared the handwriting on

15 the September form to the handwriting on the May forms?

16 A. I don't believe so.

17 Q. I'd like to call your attention to Exhibit I, which I

18 believe is the purported September 16 application on behalf of

19 James Johnson. Do you have that in front of you?

20 A. I do.

21 Q. Now, it's my understanding that that purported application

22 on his behalf does have his correct address; is that your

23 understanding as well?


25 Q. Do you have any explanation as to why Mr. Johnson's May


1 registration would have been canceled because of a September

2 purported application with the same address?

3 MS. MIRBABA: Objection. Assumes facts not in

4 evidence. This witness has already testified that the May

5 registration was not canceled.

6 THE COURT: Overruled. She can correct if she wishes.

7 THE WITNESS: Based upon my research, again,

8 Mr. Johnson had an application in May and two subsequent

9 applications were submitted in September, one signed on the

10 16th and one signed on the 13th. It appears that the one

11 signed on the 16th was received by the office of the county

12 clerk first and entered into the system. And the one signed on

13 the 13th was received after that date.

14 And based upon the change of address made at that

15 time, that record was subsequently later canceled because that

16 address was not able to be confirmed.

17 BY MS. HAIR:

18 Q. When you say it appears that the September 16 was received

19 first, what -- on what basis do you draw that conclusion?

20 A. Based upon the actions taken by the county in voter

21 registration database, an application was entered on the -- I'm

22 sorry, I don't know the date. It was entered one day prior to

23 the application with the wrong address. The application

24 entered the day prior to the application with the wrong address

25 had the correct address. There is three scanned applications.


1 And the application signed the 16th and the 13th are date

2 time stamped the same day in the county office.

3 Q. So it's your testimony that if you have more than one

4 application on behalf of a voter, the one that the county

5 chooses to keep is the one that it enters into the system

6 later, not necessarily the one that is dated later; is that

7 correct?

8 A. The most recently received application from a voter is

9 their most current registration application.

10 MS. HAIR: I have nothing further.


12 Redirect.

13 MS. MIRBABA: Yes.

14 REDIRECT EXAMINATION

15 BY MS. MIRBABA:

16 Q. Ms. Rudy, you were asked some questions about the automatic

17 search that the SCORE system performs when information on an

18 applicant is entered into the system. Just for clarification

19 sake, when that list is generated, are those people

20 automatically canceled out of the system because of some other

21 reason?

22 A. No. The county personnel conducting -- entering the

23 application makes a determination whether to transfer the

24 record or to enter a new registration based on all of the

25 information provided.

Hilary Rudy - Redirect 86

1 Q. In terms of the emergency registration, in the situation of

2 vote centers, can a person do an emergency registration at the

3 vote center?

4 A. Many vote center counties do designate vote centers as

5 authorized branch locations for that purpose.

6 Q. And just to educate us, what's a vote center?

7 A. A vote center is a voting location in a county that's

8 determined they want the electors to be able to vote at any

9 voting location within the county. So depending upon where you

10 live, you could go to any vote center within the county to

11 vote.

12 Q. Plaintiffs directed you to Exhibit C, the press release

13 dated October 9. I want to touch upon that quickly.

14 What's the difference between people who are canceled

15 for withdrawn versus people canceled from moved?

16 A. The difference is that for withdrawn, the voter submits a

17 letter to the county clerk saying that they want to withdraw or

18 cancel their registration. Moved requires that the voter

19 submits an application for registration in a new jurisdiction

20 and that the new jurisdiction notify the previous county.

21 Q. Let's go back to the situation of duplicates, somebody who

22 has canceled as duplicate, but it's really two different

23 people.

24 What is the minimum amount of information that the

25 county has to match up in order for a person to be canceled as

Hilary Rudy - Redirect 87

1 duplicate?

2 A. A cancellation based upon duplicate requires at a minimum a

3 match of the name, date of birth and prior residence address.

4 Or if that address is not provided, it's the name, date of

5 birth, driver's license or Social Security number.

6 Q. So in order for the scenario to play out as plaintiffs

7 asked you, a person would have had to have the same name,

8 correct?

9 A. Correct.

10 Q. The same date of birth?

11 A. Correct.

12 Q. The same address?

13 A. Correct.

14 Q. And if they didn't provide an address, they would have to

15 have the same driver's license number?

16 A. Correct.

17 Q. Or the same Social Security number?


19 Q. You were also asked about risks of provisional ballot

20 voting. There is an indication that it's not safe. What are

21 the risks if we don't have provisional ballot voting?

22 A. The risk is voter fraud, that a voter could vote in more

23 than one county or even within the same county.

24 MS. MIRBABA: Pass the witness, Your Honor.

25 RECROSS-EXAMINATION

Hilary Rudy - Recross 88

1 BY MS. HAIR:

2 Q. Just a very brief follow-up. When you say that the minimum

3 amount of information that must be matched in order to cancel a

4 duplicate includes name, date of birth, prior residence,

5 driver's license or Social Security number, where -- where is

6 that written down? Is there some kind of directive that lists

7 that information?

8 A. Actually, there is a Secretary of State election rule that

9 clarifies that.

10 Q. And what's the number of that election rule?

11 A. I don't recall.

12 Q. Do you recall the day that it was issued?

13 A. No, I do not.

14 Q. You're aware that the statute does not have all of those

15 criteria, matching requirements; is that correct?

16 A. I am. The statute requires the name, date of birth, I

17 believe, and Social Security number.

18 MS. MIRBABA: Thank you.

19 THE COURT: Okay. Anything else, then?

20 MS. MIRBABA: No, Your Honor.

21 But I am going to ask that we take a short recess

22 before calling our next witness.

23 THE COURT: Okay. Thanks, Ms. Rudy. You may stand

24 down.

25 We'll be in recess.

Hilary Rudy - Recross 89

1 Now, counsel, if you want, there is a lot of you here,

2 you can use the jury room to confer with, and you can use the

3 lawyers' room right here to confer with.

4 (Recess from 3:28 p.m. to 3:50 p.m.)

5 Next, please.

6 MS. MIRBABA: Secretary calls Trevor Timmons.

7 (TREVOR TIMMONS, DEFENDANT'S WITNESS, SWORN)

8 COURTROOM DEPUTY: State your full name for the record

9 and spell your last name.

10 THE WITNESS: Trevor Adam Timmons, T-I-M-M-O-N-S.


12 BY MS. MIRBABA:

13 Q. May I call you Trevor?


15 Q. Who do you work for?

16 A. I work for the Colorado Secretary of State's office. I'm

17 the chief information officer for the Secretary. That's a

18 fancy way of saying, I'm the director of the IT division, the

19 information technology division.

20 Q. How long have you worked in the Secretary's office?

21 A. I've worked there about eight and a half years. My current

22 term of service for the last year and a half, I've been the

23 CIO. Prior to that, for about seven years, I was the software

24 development manager, and then eventually my title was changed

25 to deputy CIO, even though my job responsibilities were still

Trevor Timmons - Direct 90

1 very similar.

2 Q. Tell us your educational background.

3 A. Sure. I've got a bachelor's in mechanical engineering from

4 the Colorado School of Mines.

5 Q. Let's talk about your job duties. Would you please explain

6 specifically your job duties as it relates to the SCORE system.

7 A. Sure. With the SCORE system, my role is as project

8 director of the SCORE system. I've been delegated that

9 responsibility by the Secretary with the inception of this

10 project with Saber. It's been about 30 months altogether.

11 My role with respect to the SCORE system is really to

12 assist the state and the counties with the customization of the

13 system that was brought into Colorado through a request for

14 proposals process.

15 It started about -- again, about 30 months ago, with

16 the defining of requirements for a system needed for Colorado

17 to come into compliance with federal law. There was -- an RP

18 was issued, vendors applied, there was a selection made. And

19 we actually began this project in earnest with Saber in -- at

20 the end of October of 2006.

21 Q. Okay. So you just mentioned requirements for the SCORE

22 project. Is that essentially the minimum design that was

23 necessary for this project?

24 A. Essentially, that's true. One of the first stages is to

25 actually work with counties to define where customizations


1 would be needed to the base system.

2 Q. What has your role been with implementing the SCORE system

3 statewide?

4 A. As the system was customized to meet Colorado's needs, we

5 actually planned to bring on a set of pilot counties to use the

6 system, first in the November 2007 election. After that we

7 actually deployed the system over the course of about three and

8 a half months to the remaining of the 64 counties within the

9 state.

10 And my role was actually to bring the counties

11 together, to schedule the trainings, to make sure that the

12 training materials were appropriate, to make sure that the

13 system actually performed as designed and that the counties

14 were able to use it in that manner.

15 Q. What is your role as it relates to the SCORE system for

16 early voting?

17 A. Well, early voting is one of those areas where Colorado has

18 heavy participation, maybe a little different than some other

19 states.

20 What we do at the current time is we monitor

21 participation in early voting. We're seeing those daily voter

22 counts come in as voters actually cast their ballots on a daily

23 basis.

24 Q. What is your role as it relates to election day on the

25 SCORE system?


1 A. Again, Colorado is a little different on election day

2 because we have significant use of vote centers in some

3 counties in the state. Sixteen counties will be running vote

4 centers this year. We monitor the activity that is going on at

5 vote centers, as well as emergency registrations, as well as

6 absentee ballot processing that is taking place even on

7 election day.

8 Q. What about after election day?

9 A. Well, after the election, there is still activities that

10 counties must perform. Even though the -- even though the

11 television stations seem to get their numbers right and project

12 a winner, that's not actually the official totals. Those are

13 unofficial totals. Counties must still process provisional

14 ballots cast on election day. It isn't until after that is

15 complete that official totals are actually certified by the

16 counties and ultimately on up to the state.

17 Q. How are you involved? I want -- since it's already 4

18 o'clock, I want to try to be specific here. I'm sorry.

19 Probably my question, but how are you involved with all of the

20 post-election things that have to happen?

21 A. Sure. Again, the team that actually supports the counties

22 in their use of the system and the use of SCORE, they're all

23 directly accountable up the chain to me and then me onto the

24 Secretary. So we're monitoring the activities that are taking

25 place, how many provisional ballots have been input into the


1 system, how many votes have actually been cast, how many

2 emergency registrations have been processed, we watch that,

3 again, on a daily basis, and will after election day.

4 Q. What is your role as it relates to the SCORE system needing

5 programming changes?

6 A. I'm actually the one that authorizes those sorts of

7 changes. Those decisions are -- go through me. We may

8 actually bring counties in to recommend changes, but I'm the

9 one who actually authorizes our vendor, Saber, to actually make

10 those changes.

11 Q. All right. Let's talk about why we're here today.

12 I want to direct your attention to one of the

13 allegations that has been made that we have -- the Secretary

14 has been purging voter registration records. Is there ever a

15 true purge under the SCORE system?

16 A. No.

17 Q. Why?

18 A. Those records may move into canceled status, but the system

19 actually maintains the information about those voters. It

20 maintains the trail of documents that were submitted by those

21 voters as they were participating in election. The information

22 is not truly removed.

23 I always cringe a little when I hear the word purge,

24 because, to me, at least, that implies removal or something is

25 obscured or you can't see it anymore, and that's just simply


1 not the case.

2 Q. Why?

3 A. Because the system maintains that information on canceled

4 records.

5 Q. Why does it maintain the information on canceled records?

6 A. Well, it's needed. It may be needed to research

7 provisional ballots, for example. It's needed to respond to

8 requests from media and universities for information about past

9 elections in Colorado. That's -- that's one reason.

10 The other reason is, there is not a pressing need to

11 remove that information. You know, once upon a time, storage,

12 computer storage was expensive. That's not really the case

13 anymore. People in years past may have -- have to make

14 cost-based decisions on maintaining those historical records

15 for a long period of time, and that's not so true anymore.

16 Q. All right. Now I want to move on to a different subject.

17 THE COURT: Wait a second. I have a question, if I

18 may interrupt.

19 Mr. Timmons, are the provisional ballots -- you're

20 saying that all of them are examined to see if there is -- if

21 they are, indeed, valid, and if so, are all of those counted no

22 matter if it's after election day.

23 THE WITNESS: Well, I'm not a lawyer, and I'm not an

24 expert on election law, but I believe that all provisional

25 ballots that are cast must be reviewed.


1 THE COURT: I'm asking, but are they?

2 THE WITNESS: I believe they are.

3 THE COURT: Okay. Thank you.

4 Go ahead, please.

5 MS. MIRBABA: I can call Ms. Rudy to testify to that

6 if you would like, Your Honor.

7 THE COURT: Well, he's an engineer, so he should know

8 everything.

9 BY MS. MIRBABA:

10 Q. Mr. Timmons, earlier you testified that a part of your job

11 is to check the daily numbers throughout early voting to see

12 how many had voted. When was the last time you had checked

13 that?

14 A. Well, I checked overall daily totals last night, and then I

15 checked early voting totals up through 10:00 a.m. this morning

16 before I left the office earlier today.

17 Q. How many people have already voted in Colorado for this

18 general election?

19 A. Well, as of 7:30 p.m. last night -- and these numbers are

20 posted on our website, so anyone could review them there. As

21 of about 7:30 p.m. last night, nearly 960,000 individuals have

22 cast ballots this year in Colorado.

23 Q. And that doesn't include anybody who has cast a ballot

24 today?

25 A. That's true. When I left the office, I asked about early


1 voting that had taken place through 10:00 a.m. this morning,

2 and I believe that number was about 7,200.

3 Q. What does that number include, in terms of types, methods

4 of voting?

5 A. Well, it includes mail-in ballots that have been returned,

6 and it includes early votes. There are about 199,000 early

7 votes that had been cast through the end of the day yesterday

8 and then over 700,000 mail-in ballots had actually been

9 returned.

10 Q. Now I want to move on to another subject, and that is the

11 analysis that was done by the plaintiffs' purported expert,

12 Professor Nagler. Have you had an opportunity to review that

13 declaration that the expert provided?

14 A. Yes.

15 Q. And just for ease of reference, for the record, is that

16 Exhibit 4 in the notebook that is sitting there in front of

17 you, Plaintiffs' Exhibit 4?

18 A. Thank you.

19 Q. Is that the declaration that you reviewed?

20 A. Yes, it is.

21 Q. What other records did you review as a part of that

22 analysis?

23 A. We also reviewed the two lists, the statewide registered

24 voter list referred to by Professor Nagler in his declaration.

25 Q. What was Professor Nagler asked to do?


1 A. I believe he was asked to investigate whether purges

2 occurred within Colorado, and what types of purges were

3 occurring.

4 Q. So let's turn to his declaration.

5 How many incorrect assumptions were you able to

6 identify that Professor Nagler made?

7 A. Well, I believe we identified about eight.

8 Q. Before we go through those one by one, tell us generally

9 how those assumptions impact the accuracy of his conclusions.

10 A. I think they lead -- I think the assumptions lead to an

11 inaccurate conclusion.

12 Q. All right. So let's go through those assumptions.

13 What assumption did he make in terms of voter IDs?

14 A. He assumed that voter IDs present in August and missing in

15 October meant that there were individual voters who were

16 missing and whose eligibility had been taken away.

17 Q. Why was that a bad assumption to make?

18 A. It's not a fair assumption. It's not a good assumption.

19 Several of the reasons for cancellation are that there were

20 duplicate records for the same voter, sometimes within the same

21 county, sometimes across counties.

22 He did perform some analysis on the potential of

23 moves, even within the state, even though he ultimately did not

24 actually include those numbers in his conclusion.

25 Q. So you said that he made the assumption that ID numbers


1 that were on the August list and not on the October list were

2 people who were canceled. Does -- is that in fact true?

3 A. No, it's not. Actually, one of the very -- one of our

4 initial findings was that the August list, when it was created,

5 actually included registrations for some voters who requested

6 that their residence address be kept confidential. The October

7 list contained no records of Colorado voters, again, under

8 certain provisions of state law, had requested that their

9 information be confidential. That jumped out to us right away,

10 because it's over 3,100 individuals.

11 Q. And does the ID number necessarily always -- say, the

12 county ID number, does that follow the voter?

13 A. Within SCORE, the ID number should follow the voter. In

14 the future, as new registration forms come into a new county in

15 which a voter is registering, then the voter will actually be

16 transferred, as was testified to earlier today.

17 Q. What happens to their old voter ID numbers?

18 A. Their old voter ID numbers, they're preserved within the

19 audit trail of SCORE, but that old voter ID number is no longer

20 visible as a separate number. It's not associated with an

21 eligible voter or an independent voter.

22 Q. So is that level of detail part of what Professor Nagler

23 reviewed?

24 A. Well, I don't believe that Professor Nagler had access to

25 the level of detailed information that we do from the state,


1 looking onto the full system.

2 Q. All right. Now, let's move on to the next assumption.

3 What assumption did Professor Nagler make with respect to

4 postal -- the postal change of address database?

5 A. Well, he did include a paragraph, a section in his

6 declaration, assessing the number of address changes filed with

7 the Postal Service. But I think he assumed that every move

8 would be accompanied by such a filing. I don't believe that

9 that's a safe assumption to make.

10 Q. Let's ferret that out a little bit. You mean, he assumed

11 that everyone who was removed as moved filed a change of

12 address notification with the U.S. Postal Service, correct?

13 A. Well, that's the implication. But, again, in his

14 conclusion he did not actually account for the possibility the

15 voters had moved. That was one of those unexplained reasons,

16 according to his declaration.

17 Q. Well, let's talk about unexplained reasons. What

18 assumptions did he make about this term "unexplained reason"?

19 A. Well, unexplained reasons in his declaration appears to be

20 reasons other than death, reasons other than felony conviction

21 or reasons other than a voter withdrawing their registration.

22 Q. All right. What assumptions did Professor Nagler make with

23 respect to name changes?

24 A. Again, in his declaration, he made some calculations about

25 the possibility of people moving and reregistering under


1 another name. But he, again, included those preliminary

2 calculations, he did not consider them in his calculations.

3 There again, they're unexplained.

4 Q. In his conclusion?

5 A. In his conclusions.

6 Q. All right. What assumptions did he make about people who

7 were reinstated?

8 A. Well, he assumed that any records that were present in

9 August and missing in October had not subsequently actually

10 been reinstated. We know from having looked at those voter

11 IDs, that over 600 of the individuals have actually been

12 reinstated since the October 15 date, that he reviewed.

13 Again, that is not information to which he probably

14 had access.

15 Q. What assumption did Professor Nagler make with respect to

16 duplicates or people who have moved in terms of the criteria

17 that he used?

18 A. Well, in examining those possibilities, that people had

19 moved and reregistered, he assumed that he could identify

20 duplicates within a county by combining a name and a year of

21 birth and a zip code and a county. And then to identify

22 registrants who had moved to another county, he used name and

23 year of birth.

24 It's actually much less precise than the information

25 that's available to county clerks and their staff, as they're


1 actually reviewing moves between counties, or even duplicates

2 within the same county.

3 For example, he didn't have access to images of

4 registration cards, actually submitted as evidence of voter

5 moves.

6 Q. What was wrong with the assumption about year of --

7 matching people based on year of birth?

8 A. Well, the system actually does matches based on full date

9 of birth, not just year of birth. So it actually leads to a

10 little inflation in terms of the potential matches, I believe.

11 Q. What assumptions did he make about people who were -- may

12 have been canceled for the failed 20-day provision?

13 A. He assumed since they appeared in an August list, that

14 folks that were registered within that 20-day period were

15 actually active and registered, when they in fact are not under

16 Colorado law.

17 Q. All right. Now, I want to move on and talk about the

18 design of the SCORE system.

19 Plaintiffs have suggested that we just hit a few

20 buttons and do a programming fix and everything will be

21 resolved. How do you respond to that?

22 A. I think that approach is completely contrary to the

23 intrinsic design of the system.

24 Q. What is the intrinsic design of the system?

25 A. The design of the system is that the computer system


1 actually assists county individuals, officials, their staff in

2 making those sorts of determinations. The computer doesn't

3 make the decision. The individual makes the decision.

4 Q. So how does their request that -- the option of a

5 programming change on the state level, how is that

6 counterintuitive to the design of the system?

7 A. Because what they're asking, essentially, is that we write

8 a computer program to make a bunch of changes behind the scenes

9 to voter status without being reviewed by county personnel on a

10 one-by-one basis as they typically do and make those changes

11 suddenly reactivating voters.

12 The system supports individuals making determinations

13 about records. It does not perform mass changes without a

14 human being actually initiating that action.

15 Q. All right. Now, let's talk about another option, another

16 computer-related option, and that is, the counties reinstating

17 these individuals on an individual basis.

18 How many users is the SCORE system designed to

19 maintain?

20 A. It's designed for about 1,000 users.

21 Q. What are the -- please tell us what you mean by users.

22 A. A user is one individual that is -- has a computer screen

23 in front of them, they're logged in, they're performing

24 activities using a computer. So it's one individual.

25 Q. And using the SCORE system, yes?


1 A. Using the SCORE system.

2 Q. How many users do we currently have on the SCORE system?

3 A. We've been averaging just a little over a thousand each

4 day, going back to last Monday, which is when early voting

5 began.

6 Q. How do you know that?

7 A. We are actually monitoring this on a -- even an hourly

8 basis. We can see when individual users are actually logged

9 into the system by monitoring a system performance console. It

10 just shows the information on who is logged in and what county

11 they're in and what set of servers they're attached to.

12 Q. All right. Now, if we have to add more users to accomplish

13 that -- that option, what is the risk to the SCORE system, the

14 functioning of the SCORE system?

15 A. Well, it really depends on how many additional users you're

16 probably adding. Again, we're operating slightly beyond the

17 design capacity of the system today. It's designed for 1,000;

18 we're slightly above that. If we were to add, you know, a

19 large number of additional users, without diminishing the other

20 work that is taking place, early voting and absentee ballot

21 processing, it's possible the system -- you know, it could not

22 react well. It could start to operate more and more slowly.

23 It's possible in a catastrophe that it could crash. It depends

24 on how many users would be added to perform such an activity.

25 Q. This is the first general election this system has been


1 used?

2 A. Yes, it is.

3 Q. All right. Now, let's go through to the risks associated

4 with a programming fix.

5 What is the current status of SCORE for programming

6 changes to the system?

7 A. Well, we're really in lockdown mode as far as software

8 changes to the system.

9 Q. What does lockdown mode mean?

10 A. Lockdown means that we're not making changes to the

11 software. It's functioning as designed. It's helping. It's

12 assisting county individuals on conducting the election. When

13 things are running really well and you're not in a critical

14 period, then you don't make changes to the software. I mean,

15 you run significant risks of doing that.

16 Q. Specific to this election, why -- why are we in at this

17 time lockdown mode?

18 A. Well, early voting began a little over a week ago. Ballots

19 were being mailed out around a month ago. We're in a critical

20 period. We've had a million voters probably by now, it's after

21 4 o'clock, probably had a million voters that have cast their

22 vote. They've been granted credit for voting by mail or early

23 vote. We are in a critical stage right now.

24 Q. Let's go through the process for a programming change such

25 as this, what the actual process should be and the process that


1 you guys follow. Who makes those changes?

2 A. Well, Saber makes those changes. They're the vendor that

3 provided the system. They're the ones that make software

4 programming changes.

5 Q. How are those programming changes tested?

6 A. They go through a series of tests. Once software -- well,

7 actually, we're getting ahead of ourselves a little bit here.

8 Once the need for a change is actually discovered or

9 determined, then the requirements, what are -- what are the

10 details of the changes that need to be -- that need to be made,

11 what are those details? Those requirements must be defined.

12 Then Saber actually designs a software approach to

13 meeting those requirements. That includes not just the one

14 requirement on the table, but also making sure that the

15 interaction of the entire system will not be impacted by, you

16 know, what may be a relatively minor change.

17 Q. All right. Well, just take us through how that's

18 determined, what kind of tests are done to reach that

19 conclusion.

20 A. Sure. The initial set of testing is unit testing. That's

21 the most basic component of software testing. Whatever change

22 you are most currently working on, that will be put into a

23 testing mode, and you'll test that. And then you'll do what

24 they call integration testing. You actually test the

25 functioning of this little piece you just changed within the


1 greater whole. And then you move on to system test and make

2 sure, you know, across the board, not just this little change I

3 made and not just the module and the software it works in, but

4 that the whole thing actually still works, and works well.

5 It's at that point you move into regression testing.

6 That's where Saber, you know, over the course of about a week,

7 they actually test the software, you know, from start to finish

8 to make sure that the software still does what it's supposed to

9 do.

10 At that point, we get it. This has been the process.

11 We get it. We go through about two weeks of testing, you know,

12 with our own staff and with county folks actually involved in

13 doing the testing.

14 It's taken two weeks most every round we've done. We

15 do some regression testing, and then we also do user acceptance

16 testing, making sure that the software that Saber put together

17 and tested and delivered actually meets what we needed. They

18 call that user acceptance.

19 Q. From front to end, how long can that process take?

20 A. You know, usually takes between 6 and 12 weeks, depending

21 on the number of changes that are actually being considered.

22 Again, you know, two weeks on our end for testing, a week of

23 Saber's, you know, full system regression testing, and then all

24 the activities before that. It's usually taken a minimum of

25 six weeks or so.


1 Q. Is it possible to make a programming change now?

2 A. You know, I don't consider it to be an option.

3 Q. So let's say the Court orders the Secretary of State to do

4 this programming change, explain, what are the risks to all of

5 Colorado's voters?

6 A. Well, again, with asking -- with asking us to do something

7 that the system was not designed to do, mass changes done by

8 people in the state office rather than individual changes to

9 records performed by county staff, you know, I'm not sure that

10 we can really know what the full impact would be.

11 It's asking the system to do something that it really

12 hasn't done.

13 Q. Tell us the worst-case scenario.

14 A. Well, the worst-case scenario is we jeopardize, you know,

15 the voter -- credit that has been granted for the voters that

16 have already voted, vote credit for voters between when a

17 change is made or election day or even beyond election day.

18 MS. MIRBABA: That's all I have for right now.

19 CROSS-EXAMINATION

20 BY MR. FINBERG:

21 Q. Good afternoon, Mr. Timmons. Jim Finberg.


23 Q. Ms. Rudy talked about the SCORE system creating a list of

24 potential duplicates that's then sent out to the county. When

25 creating the list of potential duplicates, how many digits in a

Trevor Timmons - Cross 108

1 first name and a last name is used? Is it the full first name

2 and the full last name?

3 A. I believe it is. That's -- again, that's one of the

4 criteria that may be used. There are different confidence

5 levels, you know, how close a match is required.

6 Q. And so that means that if there isn't a perfect match of

7 the entire full name and the entire last name, it still may get

8 on that list, correct?

9 A. I believe that's true.

10 Q. And that's true, you know, even after -- let's say there is

11 not a match of middle initials, it would get on the list.

12 A. I believe that's true as well.

13 Q. If there is not a match of suffixes and prefixes, it will

14 get on the list.

15 A. It could be flagged as a potential match, yes.

16 Q. Does it also look at partial information with respect to

17 the other components, like address?

18 A. No, I don't believe so.

19 Q. What else is considered besides name in creating this

20 potential list?

21 A. Full date of birth, full driver's license number, last four

22 digits of SSN.

23 Q. Not address?

24 A. You know, there could be aspects of address. That's

25 actually -- it's a part of the system that is actually


1 configurable by the state.

2 Q. Uh-huh.

3 A. It may be that we've added one of those confidence

4 intervals that actually includes an element of residence

5 address.

6 Q. Do you know one way or the other?

7 A. I do not.

8 Q. Okay. So this list of potential duplicates, which could be

9 less than a full name, might not include middle initials, might

10 not include suffixes and prefixes, goes out to the county. Do

11 you ever monitor what the county does to see whether there is a

12 match?

13 A. We actually do. I think we've been running -- we can run

14 from the state those potential duplicate reports that the

15 counties can run for themselves. This is not -- it's not a

16 function that requires the state to run a potential duplicate

17 report. It's actually something that counties can do at their

18 level.

19 Q. My question was a slightly different one. You create a

20 list of potential duplicates, which is less than a full name.

21 So it could be inaccurate, if you look at the first couple of

22 letters of the name, you might be finding false positives. And

23 the county is supposed to look deeper than just the first few

24 letters to make sure in fact it's a complete duplicate before

25 taking it out of the system.


1 And my question is, does the Secretary of State's

2 office monitor what the county officials do when performing

3 that function?

4 A. In terms of whether they're actually looking at those lists

5 of potential duplicates?

6 Q. Correct. And what level of scrutiny they use before taking

7 a duplicate out.

8 A. You know, I'm not sure how closely we're monitoring that.

9 We are monitoring the level -- the number of records that are

10 actually showing up when counties run those records. One of

11 the options that a county can choose when they see something

12 that's flagged by the system as a potential duplicate, is they

13 can click a button and say, this is not a duplicate, and do not

14 show this to me the next time this report is actually run.

15 Q. But at the Secretary of State's office, you don't really

16 know what the people at the county level are doing to ascertain

17 whether two names on this potential list in fact are

18 duplicates?

19 A. Well, I believe that's a county function.

20 Q. All I'm saying is, at the state level you don't really know

21 how they're performing it, correct?

22 A. See, I don't individually know. There may be other

23 individuals in our office that are monitoring that. I know

24 that I do not individually monitor that.

25 Q. Okay. And similarly, you don't have personal knowledge of


1 the provisional ballot process, correct?

2 A. No.

3 Q. Now, you talked a little bit about Dr. Nagler's report.

4 I'd like to direct your attention to paragraph 18, because

5 paragraph 18 goes to a critical issue.

6 If in fact the only thing that was happening with

7 respect to duplicates is that duplicate records were taken out,

8 the voter should still be in the voter rolls, correct, for one

9 record?

10 A. For one record, true.

11 Q. So the duplicate records are out; the voter is still in.

12 Same with change of address, right? The old address comes out,

13 but the new address is still in, right?

14 A. Unless that move was out of state and we'd received

15 notification from a state the individual had moved to and they

16 reregistered.

17 Q. Fair enough. But within the state, the most recent address

18 would still be in the -- the voter would still be in?

19 A. Assuming that they filed a new registration in another

20 county and that record itself was active.

21 Q. Okay. Now, as I read paragraph 18, Dr. Nagler is testing

22 whether in fact voters are all still in and just duplicates

23 taken out or whether there are voters that are no longer on the

24 rolls and therefore when they go to the polling place, their

25 name isn't in there. Okay. Is that your understanding of


1 paragraph 18?

2 A. That's my understanding of what he was attempting to do,

3 yes.

4 Q. Okay. And he looked at the October 13 list, and he looked

5 for the names of the 14,859 people who he calls purged, but

6 we'll say put in canceled status, he looks at that group, but

7 he only finds 3,111 of them in the list on August 13. Doesn't

8 this indicate to you that in fact this process of winnowing out

9 duplicates and changes of addresses is in fact taking some

10 voters and putting them off the voting rolls?

11 A. Well, I think it needs to be considered with the other --

12 the other assumptions that underlie the declaration.

13 There were over 3,100 voter IDs, names in the August

14 list that were not in October at all. Those would not be

15 found.

16 There were moves of voters out of state that were,

17 again, considered to be unexplained.

18 There were actually duplicates within that set of

19 14,859 records that were duplicative of themselves. Two

20 records, same individual, that both were considered as part of

21 the 14,000 that he analyzed.

22 Q. Do you know how many people moved out of state?

23 A. I do not.

24 Q. Okay. So putting aside the group that moves out of state,

25 we have approximately 11,000 people who aren't showing up in


1 October -- the October voting list.

2 A. Uh-huh.

3 Q. You would concede that it's possible that some of these are

4 in fact valid voters who were taken off by mistake, correct?

5 A. I concede that's possible.

6 Q. Okay. And do you know how large that number is?

7 A. According to his analysis, or according to the review that

8 we did?

9 Q. Well, his analysis says it could be as high as 12,000

10 people; is that right?

11 A. Yes.

12 Q. Okay. How high do you think it is?

13 A. From our analysis, we believe that the number of canceled

14 records for various reasons is a little over 10,000.

15 Q. And --

16 A. And that includes death, felon, voter withdrawn, it

17 includes duplicates, moves, it includes all of those possible

18 reasons.

19 Q. Well, putting aside deaths, because the Secretary of

20 State's press release in terms of reason of cancellation for

21 deceased put that number -- if you look at Exhibit 6, put that

22 number at 1,145, correct?

23 A. Yes.

24 Q. So only 1,145 of your 10,000 would be attributed to

25 deceased, and only 544 of convicted felons, right?


1 A. Well, it's not entirely accurate. The press release is

2 dated October 9. The comparison that was done by Professor

3 Nagler was based on information through October 13, although

4 I'll concede that there is little possibility of a change with

5 those additional four days.

6 Q. Okay. So roughly accurate.

7 So taking out those two figures and your 10,000

8 number, that means that there is about 8,500 people who aren't

9 showing up in the October list, correct?

10 A. I don't think you accounted for voters that moved out of

11 state or moved within Colorado or changed their name when they

12 reregistered. His analysis on that is, you know, first name

13 and last name and year of birth.

14 Q. Okay. And how -- of the 8,500, how many of them moved out

15 of state?

16 A. I don't know that.

17 Q. Not all of them, right?

18 A. Certainly not.

19 Q. And certainly not all of them are accounted for by the

20 things that you just listed, right?

21 A. That's probably true.

22 Q. So there is a substantial number of people who no longer

23 are on the rolls on October 13 due to this procedure, correct?

24 A. I think that's accurate.

25 Q. Okay. In terms of -- you testified earlier that people


1 aren't purged, they're just given canceled status.

2 A. Right.

3 Q. That means that the Secretary of State knows who was taken

4 off during this 90-day period or the period going back to

5 May 12, correct?

6 A. That's true. I think we could discover that information,

7 yes.

8 Q. So you could create a list of such information by county

9 and provide it to the county officials, correct?

10 A. I think it's possible to do that, yes.

11 Q. Relatively inexpensive, right?

12 A. Inexpensive to create such a list?

13 Q. Yes.

14 A. Probably.

15 Q. Okay.

16 A. And you're talking about printed paper?

17 Q. You could do it by printed paper, right?

18 A. Spreadsheet, yes.

19 Q. You could create a separate website for that, that you

20 could give access to the county officials without doing it

21 through SCORE, right?

22 A. I think it's possible.

23 Q. Okay. And in terms of the hypothetical risks of doing it

24 through SCORE, you're not aware of any specific actual harm

25 that would occur from doing it through SCORE, are you?


1 A. The system is based on tracking individual voters and the

2 ballots that are issued to them.

3 I'm not sure what the -- what the consequences would

4 be by adding multiple names for the same individual into

5 printed paper poll books or in other ways the system is

6 designed. It's not designed to, you know, keep track of

7 information in that way.

8 Q. I understand you're not sure. But not sure is different

9 from saying that you are sure that there would be a serious

10 problem, correct?

11 A. It's the fear of the unknown. Again, we're in the middle

12 of individuals casting votes across the state. Changing the

13 software at this stage is just incredibly risky.

14 Q. And Ms. Rudy talked about one county, I think it was Adams

15 County, that was late in making the transition. Everybody else

16 had done it, I guess, in the spring of 2004. I believe she

17 testified Adams came in, in June of 2004. That wouldn't

18 explain cancellations that take place after August 15, would

19 it?

20 A. No, it wouldn't.

21 Q. And so to the extent that the state's own records show that

22 there are cancellations after August 15, those -- assuming the

23 relevant period goes back to August 4, those are cancellations

24 during the relevant period, right? Those aren't things that

25 happened before the relevant period that are just being


1 recorded?

2 A. True.

3 Q. Okay. And in terms of lockdown, authorized users are

4 authorized to make changes during lockdown, right?

5 A. Users of the systems?

6 Q. Authorized users of the system.

7 A. Of course. They need to receive mail ballots, they need to

8 verify signatures, they need to give credit for early voting.

9 That's a user experience. That's different from changing the

10 underlying software.

11 MR. FINBERG: Okay. I have no further questions.

12 Thank you.


14 BY MS. MIRBABA:

15 Q. I just want to clarify something.

16 There is a question that he just asked you that

17 implied that the SCORE system -- the SCORE system in 2004. Is

18 that correct?

19 A. Can you rephrase that?

20 Q. Sure. When did the state deploy the SCORE system?

21 A. It began in August of 2007, and it was completed in April

22 of 2008.

23 Q. So just now when he was referencing 2004, that wasn't

24 correct?

25 A. No.

Trevor Timmons - Redirect 118

1 MR. FINBERG: I apologize, I misspoke.

2 MS. MIRBABA: I have nothing further.

3 THE COURT: Thank you very much, sir.

4 Next, please.

5 MS. MIRBABA: Secretary calls Wayne Munster.

6 (WAYNE MUNSTER, DEFENDANT'S WITNESS, SWORN)



9 last name.

10 THE WITNESS: Gerald Wayne Munster, M-U-N-S-T-E-R.


12 BY MS. MIRBABA:

13 Q. Mr. Munster, who do you work for?

14 A. Colorado Department of State.

15 Q. How long have you worked there?

16 A. I've worked there for seven years.

17 Q. What is your current position?

18 A. Currently, I'm acting director of elections.

19 Q. Before that, what was your position?

20 A. Deputy director of elections for four years.

21 Q. How has your job changed since you've become acting

22 director?

23 A. It really hasn't changed.

24 Q. All right. Let's talk about what you do. Please describe

25 your job duties.

Wayne Munster - Direct 119

1 A. Well, during an election cycle like we're in right now, my

2 primary job duty is to assist the county clerk and recorders

3 conduct the election within -- within accordance with federal,

4 state law and Secretary of State rules. And that requires me

5 to be in constant contact with the county clerk and recorder

6 offices of the state of Colorado.

7 Q. All right. So in the last few days, how much contact have

8 you had with the 64 counties in Colorado?

9 A. Well, as a matter of fact, yesterday we had a conference

10 call with what I believe was all 64 counties for the most part,

11 and then one communication with probably 20 to 30 counties.

12 Each county has their own unique issues that we have to

13 address.

14 Q. How do you assist the counties with addressing issues?

15 A. It depends on the subject matter. But I make sure that the

16 Secretary of State resources are available to them, depending

17 on if it's an equipment matter, if it's a law matter, a SCORE

18 matter, a VRD matter. If it's not something I can handle, I

19 make sure I assign the appropriate personnel.

20 Q. How current is your information on the county election

21 workers resources right now?

22 A. Very current.

23 Q. Let's talk about that.

24 A. Okay.

25 Q. What are the counties trying to accomplish right now?


1 A. Right now they are trying to accomplish numerous things.

2 They're trying to get -- they're trying to get ready for the

3 election. They are receiving monumental amounts of mail-in

4 ballots. Nothing like we've ever seen before. They have to

5 scan all of those mail-in ballots. They have to signature

6 verify all of those mail-in ballots. They have to count those

7 mail-in ballots. They are trying to get ready for election

8 day, so they are going to start -- many counties have started

9 printing poll books at this time. Counties are trying to

10 handle all of the customer inquiries -- I should say elector

11 inquiries, where is my mail-in ballot? Where am I supposed to

12 vote? They are trying to get their technical people and

13 runners that will be out in the various polling places ready to

14 go. They're trying to get the supplies that the judges will

15 use in the polling place ready to go. Which means, you know,

16 they've got to print their poll books, they've got to get them

17 in the judges' bags so they're ready to go for deployment

18 Sunday or Monday.

19 So there are numerous things they're trying to

20 accomplish at this time.

21 Q. What kind of work are they having to do with the campaigns

22 and the candidates?

23 A. Yeah, that's a very good point. They have a lot of data

24 inquiries from the campaigns and various candidates across the

25 state, so that means they have to take out time to devote


1 personnel to running reports out of the SCORE system.

2 Q. Everybody knows that we're still in early voting. What are

3 the counties trying to accomplish with early voting?

4 A. Ma'am, that's true too. One of the major responsibilities

5 they have -- and that -- that's exactly right. Everybody says,

6 well, the election is coming up. No, the election is here, and

7 it has been for a week and a half. We started early voting,

8 and mail-in ballots coming in. The election is -- this is it.

9 And they're trying to conduct an election right now. So they

10 are trying to move voters through early voting, at the same

11 time they're trying to satisfy media inquiries, as we

12 discussed, you know, the inquiries from candidates. They're

13 trying to get voting equipment ready to go, tested, set up.

14 They've got to move that equipment to the polling places. So

15 they are very, very challenged right now.

16 Q. Did you just cover every last thing that the counties are

17 doing with relation to this election?

18 A. No. No. You know, I have been doing this for seven years,

19 and every single day something else comes up. For example, you

20 know, you've got a voter in Uganda. Well, what are we going to

21 do? We've got to get them a ballot. You know, those little

22 situations, every voter or elector is unique in their

23 situation, and they have to deal with all of them on a daily

24 basis, with our assistance many times.

25 Q. So given all of that, how busy are the counties right now?


1 A. They are the most amazing group of people I've ever seen,

2 because they are -- they are at critical mass right now. But

3 they're holding on, and they're doing a good job. But they're

4 almost to their limit.

5 Q. Do you know how many hours a day these people are working?

6 A. Well, you know, it's going to vary by county size. Well,

7 it's really not. Because you have a county the size of Denver,

8 they're working 12 to 14 hours a day, generally seven days a

9 week. Occasionally they will try to give staff a Sunday, you

10 know, to kind of rejuvenate.

11 But you have smaller counties -- as a matter of fact I

12 talked to one of them today, that has three people total in

13 their office, three, and I know of another county that has two.

14 And they are getting inundated with mail-in ballots. And

15 mail-in ballots have to be signature verified, opened, paper

16 flattened, you have to run it through optical scan. It is just

17 very, very time consuming. And if the signature doesn't match,

18 then you have to send out a letter telling the elector the

19 signature doesn't match, so they're doing that at the same

20 time. And then the elector comes in to verify their signature.

21 Q. Do you have a feel for the average age of the poll worker?

22 A. Wonderful people and desperately needed. I would say 65 to

23 70.

24 Q. How do you know that?

25 A. Actually, there are a lot of studies from -- I believe --


1 you know, I don't want to say a specific group, because I don't

2 want to be inaccurate, but there are several studies out about

3 that.

4 Q. All right. Let's talk about --

5 A. I'm getting -- something else, we talk about that a lot at

6 clerk conferences.

7 Q. The clerks tell you that?

8 A. Yeah, they often recite that to us.

9 Q. Okay. Let's move on to why we're here today. Plaintiffs

10 are asking to reinstate people who have been removed from the

11 polls -- not removed from the polls, I'm sorry, have been

12 canceled for whatever reason since May 13.

13 Setting aside whether they're right about that, let's

14 talk about whether that can be done by action of the counties

15 by paper prior to the election.

16 A. And by paper, we mean?

17 Q. So let's say we send out a list --

18 A. Okay.

19 Q. -- that has all of these people's names, and we give it to

20 the poll workers, and let's say we have to organize it by

21 precinct and by ballot style, how are they going to manage

22 that?

23 A. The only way I can think that that could be accomplished is

24 doing it manually, record by record, which means you're going

25 to have to -- and it's going to have to be experienced


1 personnel. You know, you can't bring temporaries in to try and

2 figure out, you know, what exactly does it mean.

3 Q. I think, you know, I probably wasn't very clear with my

4 question.

5 A. Sure.

6 Q. Because it sounds like what you're referring to is a

7 computer -- the counties going in and doing the change

8 individual on the computer.

9 A. Uh-huh.

10 Q. We're going to get to that in a minute. But right now I

11 want to talk about whether they can accomplish doing it by

12 paper lists being sent out to the poll workers in the precinct.

13 What is your assessment based on the resources for

14 them to do that?

15 A. So, the election judges would be required to have this

16 piece of paper?

17 Q. Yes.

18 A. In the polling place. Oh, no. That would be extremely

19 problematic.

20 One, judges training has already been performed. In

21 larger counties, you're talking about 2,000 people that have

22 been trained on the specific detail-oriented procedure. So

23 there is no way you're going to get 2,000 people back in a room

24 to try and train them, let alone is it going to be possible to

25 train the county clerks on what the procedure is, who then have


1 to train their staff on what the procedure is, then who have to

2 train the election judges.

3 Q. When does the election judge training usually take place?

4 A. It -- by statute, they can start training 45 days prior to

5 the election.

6 Q. How large are those training classes typically?

7 A. We try -- the county clerks try to keep them as small as --

8 as small as they can so they have really good interaction with

9 the judges. Since the introduction of voting equipment to the

10 election process, we have found that they need a lot more

11 hands-on training and interaction with the county experts.

12 Q. What level of detail are the poll workers trained on in

13 terms of what to do in early voting and election day?

14 A. Well, it's very detail specific. There are numerous

15 situations that arise at a polling place during early voting

16 and on election day and for that matter, on mail-in ballots.

17 But they -- you know, the county -- the judges have to set up,

18 you know, the 100-foot limit, so --

19 Let's just go through what they do. They show -- they

20 have to set up the 100-foot limit for electioneering purposes

21 outside the door of the building. They have to monitor voters

22 that come in to vote, to make sure they don't have on any

23 political paraphernalia. They have to process the voters.

24 They have to look on the poll book to see if they're there,

25 they have to review ID. If that person is not there, they have


1 to direct them to the provisional ballot area.

2 They have to issue ballots, which makes -- it's not

3 just handing somebody a piece of paper. You have to identify

4 what precinct and what ballot style this individual is supposed

5 to have, because you have numerous ballot styles -- not all the

6 time, but a lot of times within a specific precinct.

7 Then they have to decide if this -- so if he's not on

8 the ballot -- on the rolls, they have to vote provisionally.

9 They have a staff that handles that. Then you might also have

10 individuals that come in that need assistance. The election

11 desk can provide assistance, or the individual can bring

12 someone to provide assistance. You may have somebody that

13 comes in that is disabled that needs assistance. So -- if

14 lines are long, you're dealing with electors that are not very

15 pleasant.

16 So, you know, there is a lot of pressure on these

17 individuals that have, you know, training, you know, previously

18 that if they had another list put in front of them that they

19 hadn't been trained on, they are going to get extremely

20 confused, and they're not going to know what to do, and that's

21 going to hold up the voting process.

22 And now you're adding a whole other element in when

23 they're already at max capacity.

24 Q. So all of those things you just listed that election judges

25 and poll workers have to do on election day and early voting,


1 those are the things that they're trained on in advance, yes?


3 Q. Well before election -- voting begins?

4 A. Yes.

5 Q. Now let's just talk about another paper option. The paper

6 option that would have those same people who are checking

7 electors in, go through a list of questions with those electors

8 to see if, say, like a provisional ballot affirmation type

9 questions, to see if those people are eligible to vote. If you

10 added in the list in combination with a questioning process,

11 how would that affect the election?

12 A. Well, you might as well just let everybody know it's going

13 to be a really long night. Because now you're asking these

14 election judges not to only monitor everything that's going on

15 in the polling place and just find out if somebody is on the

16 poll book and getting them a ballot. They're going to say,

17 okay, well, you -- I need to verify your address, so let me see

18 your ID, let me verify -- oh, well, no, you didn't give Social

19 Security. You need to check that.

20 That would be an impossibility. To go through -- you

21 know, that's exactly why we have provisional ballots, and

22 that's why there is a process in place for those very questions

23 to be answered over at the provisional table. But I think that

24 would be a disaster.

25 Q. Now, you may have already answered this, so if you have,


1 I'll move on. But I just want to be clear, what types of

2 issues could an additional process be, be it a simple paper

3 process or this complicated paper process, what kind of

4 additional issues could that create on election day?

5 A. The additional issues -- and we're going to leave the

6 voters aside of this. I don't know how they're going to react

7 to a special class of people. But what it does, it adds

8 another component into an already very detailed process that

9 the judges have to be trained -- have to be trained on

10 because -- there is so many variables. If you add one more

11 variable to this process that the election judges, one, weren't

12 trained on and don't understand and may not have the resources

13 to handle, you are going to see the lines back up. And you're

14 going to start seeing people walk away from the polling place

15 because it's taking too long, and they'll be disenfranchised.

16 When county clerks order their ballots, they were

17 ordering ballots by looking at the voter registration lists.

18 So they order enough regular ballots for people that are active

19 on the roll, or inactive. And then they look at the other

20 people that says, well, canceled or whatever other reason, and

21 they order provisionals to be ready for those individuals. So

22 the stock is ordered by the status of voters.

23 Q. So if there is a huge increase in the number of regular

24 ballots, paper ballots, you were saying -- how could that

25 affect the resources the counties have in terms of that paper?


1 A. It may affect the resources, because they plan on being

2 prepared so nobody is turned away. Having these additional

3 provisionals, just in case there was some errors made, they

4 could correct them with provisional ballots.

5 Q. All right. Let's just go back to another option that has

6 been proposed, and that is one we started talking about in the

7 very beginning. And that's the option where the counties go in

8 individually and -- onto the SCORE system and change --

9 reinstate the voters that are identified by the plaintiffs.

10 In your assessment, how feasible is it for the

11 counties to accomplish that prior to the general election?

12 A. I don't believe it's feasible at all. Like I said

13 previously, they're at max capacity right now.

14 Q. What about hiring some temporary employees?

15 A. Well, there is two issues with that. One, you don't -- you

16 want some expertise when you're messing -- because you're going

17 to have people in the live voter registration database, and

18 you're going to want your experts in there so there is no

19 errors made by temporary employees -- personnel who are not

20 exactly up to speed on election law and the process and what

21 SCORE does.

22 The other issue is -- this is not throwing -- just

23 throwing bodies at a situation. These county clerks offices

24 are full. You would have to somehow find space to give more

25 desks, more computers and more people into these offices.


1 Right now they're full and hanging on.

2 To add that extra -- extra individuals, you would have

3 to find alternative space and equipment.

4 Q. So they would have to have new users --

5 A. You would have to have new users on SCORE, which I believe

6 Trevor covered.

7 Q. You touched a little bit earlier on the poll books, paper

8 poll books. When are those poll books delivered or -- I'm

9 sorry, when are they printed, first?

10 A. Well, it kind of varies, depending on the county. I know

11 some have started printing poll books today. I believe the

12 majority of them will print after the close of early voting,

13 which is Friday, into Sunday -- into Saturday, because they

14 have to get those into the election judges supply bag.

15 Q. Okay. So in order to accomplish the electronic change,

16 reinstating these people on the county level, by when would

17 they have to have that information changed in the computer

18 system in order for it to be on those -- those people to appear

19 on the poll books that the judges are actually using?

20 A. I mean, it would have to be done. If they haven't printed

21 their poll book -- you would have tomorrow to do it for those

22 who haven't started printing.

23 Q. Basically, immediately. It would have to be accomplished

24 like that?

25 A. Yeah.


1 Q. Given all of that, what is the best way to make sure that

2 people who are eligible to vote in Colorado get to cast a

3 ballot and that have that ballot counted?

4 A. What's the best way to ensure that?

5 Q. Yes.

6 A. To let the process as it has been trained to the election

7 judges, as the county clerks have laid it out for their

8 electors and advertised it, let it go forward as it is. That's

9 why we have provisional ballots, in case there are issues. So

10 if -- we worked two years to put on an election. So now, you

11 know, four days is not the time to change everything that we've

12 put into place, against law and rule.

13 MS. MIRBABA: Pass the witness, Your Honor.


15 BY MR. FINBERG:

16 Q. Good afternoon, Mr. Munster.


18 Q. The Secretary of State's office did a test of SCORE in

19 which they did a mock election, correct?

20 A. Yes, they did conduct a mock election.

21 Q. And in the mock election, the poll books were generated the

22 day before election day, correct?

23 A. You know, honestly, I wasn't part of the mock election.

24 The director was overseeing the SCORE project at the time.

25 Q. Let me turn your attention to page 734.

Wayne Munster - Cross 132

1 A. Okay.

2 Q. And there is a column that begins, "day," then there is one

3 that says "date," and then there is one that says "mock

4 election activity."

5 A. Uh-huh.

6 Q. And on Wednesday April 30, the activity is everyone

7 simultaneously run poll book signature cards at vote center

8 setup, small and medium county call in. The very next day,

9 Thursday, May 1, mock election day.

10 Does that refresh your recollection that poll books

11 were generated the day before election?

12 MS. MIRBABA: Your Honor, I'm going to object to

13 refresh recollection. This witness testified he doesn't know

14 any of this.

15 THE COURT: You have to ask him first if it does

16 refresh his recollection.

17 MS. MIRBABA: Correct.

18 THE COURT: The objection is overruled. He can ask

19 the question.

20 THE WITNESS: No, honestly, I can't -- because you're

21 looking at something where I don't know, was every county

22 participating? What kind of stress was on the system? Is it

23 like it is now, where we're doing all -- I'm sure we didn't

24 have -- I don't know this, but did we have 1,000 users? Were

25 we trying to push early voting? Were we trying to produce --


1 push through absentees. I don't know what the scenario was

2 when they ran those.

3 BY MR. FINBERG:

4 Q. Okay. Do you recognize Exhibit 25?

5 A. The what?

6 Q. Exhibit 25, do you recognize it?

7 A. I -- I think I -- I never saw the final draft.

8 Q. You saw a draft of it. What is it?

9 A. It -- I don't remember what it contained, to be honest with

10 you.

11 Q. What is it, though?

12 A. Colorado Department of State evaluation report by Jan

13 Kuhnen.

14 Q. About the mock election?

15 A. About the mock election.

16 MR. FINBERG: I'd like to move Exhibit 25 into

17 evidence.

18 THE COURT: It's an official publication. It's

19 admitted on that basis.

20 (Exhibit 25 admitted.)

21 BY MR. FINBERG:

22 Q. It's quite common for judges at polling centers to have

23 supplemental lists, isn't it?

24 A. Not -- it depends on when you run your poll book.

25 Q. During --


1 A. It's still going to be the same -- it's going to go into

2 the same folder, into the same binder.

3 Q. Okay. During your seven years, there have been

4 supplemental lists, right?

5 A. People that were registered to vote and on the polls, yes.

6 Q. And the judges are trained how to deal with that?

7 A. Well, they insert it into the list of other registered

8 electors.

9 Q. Uh-huh.

10 A. So they don't have to make any determination about whether

11 they're registered or they should be registered. They don't

12 have to make the decision. They look at that book. They get a

13 ballot. If they're not on that book, they get a provisional

14 ballot.

15 Q. Okay. And if as Mr. Timmons indicated that the Secretary

16 of State's office took the figures out who those people were

17 who were taken off during the relevant time period, creates a

18 website so that the counties can download that, they can

19 generate that hard copy list, and they can give it to all the

20 elections, and it's just like the process that you described,

21 where the election officials have that list of preapproved

22 voters. They're not making discretionary decisions. They just

23 look to see if the person is on the list, right?

24 A. I don't know what you mean by preapproved voters. It seems

25 to me you're providing a list of somebody that's not an


1 approved voter, correct?

2 Q. Well, if the Secretary of State goes and creates a list of

3 those people who are taken off during the relevant period,

4 let's take say it's May 13, and they don't fall within the

5 deceased or the felony or move out of state, Secretary of State

6 creates that list by county, puts it on a website, as

7 Mr. Timmons testified could be done, county officials can

8 download those lists, and they can insert those lists in the

9 poll books, correct?

10 A. I'm sure they could. Now you've really caused a problem,

11 because now we're going to have David Smith, who could possibly

12 have three different records. Which one -- which one is he

13 using? If he was canceled for a duplicate, which one are we

14 going to identify as the proper record? How do you instruct

15 the judge to give credit for voting or decide which one is

16 accurate?

17 Q. Well, given that -- as Mr. Timmons testified, that

18 Professor Nagler was correct, and in fact there are about 8,500

19 people who didn't show up on the October 15 list, October 13

20 list, it's not a question of them just being duplicates. The

21 voters were taken off. It's not going to create a problem,

22 correct? There is only going to be that one voter, right?

23 A. I don't know that. I don't know how you determine that.

24 Q. All right.

25 A. What you do, instead of trying to add more variables into


1 the polling place, you just go with your current trained

2 procedure and vote provisional ballot, and then go look at who

3 may have been removed.

4 Q. Well, who handles provisional ballots?

5 A. Who handles them?

6 Q. Yeah. If somebody comes in and they're not on the list and

7 they ask for a provisional ballot, what staff has to deal with

8 handling the provisional ballots?

9 A. I don't want to speak for every individual county, but they

10 generally have a provisional ballot table with specially

11 trained judges that know how the process works.

12 Q. Okay. And having lots of provisional ballots puts

13 increased work on the staff of the polling place, correct?

14 A. I don't -- it puts increased work on the staff after the

15 election.

16 Q. So even at the time -- because if somebody wants to fill it

17 out at the time, and they need to have somebody at the election

18 site assist them with the process, correct?

19 A. Yes, they do.

20 Q. And provisional ballots take longer to go through than just

21 a regular ballot, right?

22 A. They have to fill out an affidavit, but the amount of time

23 with the actual ballot would be the same.

24 Q. But since there is an extra requirement, added together, it

25 takes more time, right?



2 Q. Having lots of provisional ballots puts even more strain on

3 the election staff than actual ballots, right?

4 A. No, because your provisional ballots are few and far

5 between. It's actually great because you're keeping the line

6 moving, where you have people on registration and have a

7 separate area you are filling out provisionals so you don't

8 hamper the flow of electors. If you try to do that questioning

9 or figuring out if someone gets a regular ballot at the table,

10 that's where you have lines.

11 Q. All things being equal, increasing the number of

12 provisional ballots increases the work on the people at the

13 local elections site, correct?

14 A. I mean, any time you have more work, it increases work. I

15 don't know what the question is.

16 Q. Let me switch topics for a second.

17 Ms. Rudy said that if the Johnsons' mailed ballot had

18 been sent in, that because they were knocked off under the

19 20-day rule, that the fact that it had been mailed to their

20 address would have been confirming and it would have been

21 included. Do you agree with that?

22 A. Absolutely.

23 Q. All right. But that isn't the case, is it, with respect to

24 a mailed ballot of someone who is knocked off for some other

25 reason, such as duplication, correct?


1 A. They wouldn't get a mail ballot. They could request it,

2 but they have to be registered to get a mail-in ballot.

3 Q. Well, let's say they were registered, as the Johnsons had

4 been --

5 A. Uh-huh.

6 Q. -- early on, and then for some reason they're purged or

7 changed to canceled status after they're lawfully registered,

8 okay. Nobody tells them that that's happened to them.

9 A. Okay.

10 Q. They've requested the mail-in ballot, they send it in.

11 It's going to be rejected because they're not on the list,

12 correct?

13 A. No, that's incorrect. And it's actually, I think, in

14 Article 8 or maybe 8.5. So when the -- when the mail ballot

15 comes back, if they can't be concluded right there, then it

16 should be counted and it's treated as a provisional. And then

17 they would go back and do the research and say, you know what,

18 we canceled this, here is the person, here is the address,

19 signature matches, it counts.

20 Q. Even though you then have to ask the person to go through

21 the provisional process and fill out the affidavit?

22 A. No, they wouldn't have to. What it says, they just treat

23 it as a provisional. There is no more requirement on the

24 voter.

25 Q. What's the statute that provides for that?


1 A. It's in Article 8 or 8.5.

2 Q. And is that true with respect to every reason for which

3 someone might have been purged off the rolls, or is it only for

4 duplication?

5 A. I'm sorry, I don't understand.

6 Q. Are there some instances where somebody was purged for one

7 of the categories -- I mean, let's look at the categories in

8 Exhibit 6, the secretary's press release. So let's say they

9 moved.

10 A. Okay. The person moves.

11 Q. They send in the mail ballot. Does the mail ballot count?

12 A. So they moved --

13 Q. Within state.

14 A. Okay. The mail ballot --

15 Q. The mail ballot is for the old address according to the

16 state's records. The state says the person is no longer

17 eligible to vote at the old address, they're listed at a

18 different address. You get the mail ballot, does it count?

19 A. I'm still confused. If you don't mind if I ask a question.

20 It depends on the status of the voter. So the voter has moved,

21 what's their status in the new residence in your scenario?

22 Q. Well, let's say, according to the state's records, you

23 indicate that this person moved from place A to place B. As I

24 understand Ms. Rudy's testimony, they're no longer eligible to

25 vote in place A, correct?


1 A. Depending on the timing.

2 Q. Okay. So let's say the mail ballot that they mail in was

3 sent to place A. They fill it out.

4 A. Place A is the old place?

5 Q. The old address. They fill it out. They send it in. Does

6 that ballot count?

7 A. But they registered in another county, or we wouldn't

8 know --

9 Q. Well, the records indicate that they registered, but

10 perhaps it was one of these errors where it was somebody with a

11 similar name, and it wasn't really these people. Would their

12 ballot count?

13 A. I'm just -- I'm sorry, I'm not following you. So the voter

14 lives in county A, moves to county B --

15 Q. Well, the records of the state show that they live in

16 county B. Let's say they still live in county A.

17 A. So somehow county B got a voter registration form from

18 somebody and entered them.

19 Q. Whose name is similar to the person, maybe it's off by a

20 prefix or a middle initial or something. The state record

21 system says it's a potential duplicate.

22 A. Okay.

23 Q. Somebody at the county level wasn't looking all that

24 carefully, like the people who were looking at the Johnsons,

25 and didn't notice that the signatures were very different and


1 the names filled in were very different and that the addresses

2 were different. So that's what happens at the county. So the

3 state's records now say, this person lives in county B, not

4 county A, not allowed to vote in county A. The person sends in

5 the mail ballot that was sent to the address in county A, does

6 that vote count?

7 A. Why would they send it to the address in county A?

8 Q. Because they got it when they got registered.

9 A. I see, I'm sorry. Now I'm with you. I'm sorry. It

10 depends on the timing. If -- if they're registered -- it

11 depends on the timing. Because, you know, if you are

12 registered -- it comes down to that 29-day issue. If you do

13 not change your registration and -- I'm trying -- you know

14 what, I'm -- I know within the 30 days before voting, you are

15 eligible to vote in your previous precinct. So in that case,

16 I --

17 You know, I don't really want to answer, because I'm

18 not sure.

19 Q. Okay. So it's possible it wouldn't be counted if it came

20 in before the 30 days, right?

21 A. I really don't know, to be honest with you.

22 Q. Okay.

23 A. That's one of those questions I would take back to my legal

24 counsel, and we'd hash that out.

25 MR. FINBERG: Okay. I have no further questions.

Wayne Munster - Redirect 142


2 BY MS. MIRBABA:

3 Q. All right. So let's just touch upon mock election versus

4 real election. You said you weren't a part of the mock

5 election. But based on what you do know, what do you think the

6 differences are between the mock election and a real election?

7 A. Oh, it's just incredibly huge. The mock election was -- I

8 don't even -- you know, I picked up bits and pieces. Being in

9 the office, obviously I'm going to hear things, and we had some

10 discussions, but I wasn't a part of it.

11 I don't know this, but I don't believe every county

12 participated. And they were just doing small -- you know, I

13 really don't know. But I know for a fact it's nothing compared

14 to what we're going through right now.

15 Q. For instance, in terms of the number of people that would

16 have to run through on a mock election that come to vote, what

17 difference would you say that would be between, say, in a real

18 election?

19 A. You would -- well, yeah, I mean, they would have to go

20 out -- the counties would have had to go out and recruited all

21 kinds of people to perform certain functions. They would have

22 to have, you know, hired a whole truckload of election judges

23 to come in and, you know, start typing away to try and match

24 the current demand on the system. So I don't believe that any

25 of the counties went out and hired the number of election


1 judges they would have on election -- during the election cycle

2 for a mock election.

3 And you're not -- you just don't have the physical

4 stuff. You don't have the physical mail-in ballots. You don't

5 have people early voting. So it's more -- just can't replicate

6 it.

7 Q. All right. Now, let's move on to the questions -- the

8 issue of supplemental lists that are added into the poll book.

9 A. Uh-huh.

10 Q. For those counties that actually do supplemental printed

11 lists that you said earlier they put in the poll books, what

12 training have they already given those election judges on how

13 to handle that?

14 A. Well, see, the election judges don't have to handle that.

15 It's just like the other reports, they're just inserted into

16 the binder. So it looks exactly the same. There is no

17 difference.

18 Q. They made it sound like it would be really easy for the

19 counties just to download the information from a website, print

20 it out and distribute it. Can you answer how that -- that

21 assumption is incorrect.

22 A. First, trying to explain a new process to county clerks who

23 in many cases are, you know, working off 14, 15-hour days and

24 are maybe one of two people in the office, it's going to be

25 extremely difficult in the short amount of time. Then that


1 person has to communicate to the people below them on what this

2 new procedure is. And then it's got to filter down to the

3 judges, who are already struggling with this -- with what

4 they're required to do.

5 When I say struggling, they understand what they're

6 doing, but it's a lot to pay attention to at one time.

7 Q. And when you were asked some questions about resources and

8 stock of provisional ballots, there was an assumption that

9 where we're at right now would actually increase the number of

10 provisional ballots. Is that a correct assumption?

11 A. Could you rephrase that?

12 Q. Okay. Earlier you testified on direct examination that the

13 counties have already anticipated and planned for what they

14 would expect to be the number of provisional ballots they'd

15 need.


17 Q. So does any of this information change that?

18 A. No, they -- no. That's part of the -- that's part of their

19 analysis and part of their equation to order provisional

20 ballots. You go through and look at the possibility of how

21 many records, if they -- if this person shows up, how many

22 provisional ballots you would need to fill their need.

23 Q. So as of right now we believe the counties have already

24 accounted for and have the appropriate number of provisional

25 ballots for election day.


1 A. Yes. And I -- for another note, they actually have more.

2 Because we weren't quite sure -- and I say we, I mean, the

3 state and the county clerks -- how many permanent mail-in

4 voters would show up at the polling place. It's a new

5 procedure, you know, that was implemented, so we

6 overcompensated for that as well.

7 Q. At this stage, after early voting, days before the general

8 election, is it the right course of action in order to have a

9 smooth election to introduce any new steps for those poll

10 workers to follow?

11 A. In my opinion, if you want to introduce another step on the

12 front end of the election, in the polling place, with these

13 election judges and the amount of voters they're going to see,

14 you are setting yourself up for a recipe for disaster, and you

15 will increase the opportunity for disenfranchising voters.

16 We have a process in place to account for everyone

17 that needs to be accounted for.

18 Q. The disenfranchising aspect of that, how would that happen?

19 A. If you have long lines -- and I can speak to that from

20 2006 -- people will not wait, and they will go home, because

21 they have other responsibilities, if the line is too long.

22 Q. All right.

23 Pass the witness, Your Honor.

24 RECROSS-EXAMINATION

25 BY MR. FINBERG:

Wayne Munster - Recross 146

1 Q. Just two questions. Having lots of provisional ballots can

2 create long lines, correct?

3 A. It -- no, not really, because you have a separate station

4 for provisional ballots.

5 Are you talking about the lines at the provisional

6 ballot table?

7 Q. It's the same people at the polling site who are dealing

8 with both, correct?

9 A. No. You have the main line, where every voter comes

10 walking in. They say, here I am, they give them the signature

11 card or whatever. The judge says, okay, you're on the poll

12 book, here is your ballot, or go find a machine.

13 They say, you know, you're not on this poll book.

14 We're going to need you to step over to the other table, and

15 the provisional ballot judges will assist you there. Next

16 voter comes up, they're on the poll book, they go off to a

17 machine or grab a paper ballot.

18 Q. But when you come to the first judge and you're not on the

19 poll book, that first judge has to say, oh, you're not on the

20 poll book, you need a provisional ballot. I need to escort you

21 over to the provisional ballot table.

22 A. I don't want to speak to every polling place, usually there

23 is no escort needed.

24 Q. They need to inform them of the procedure for the

25 provisional ballot and turn them over to somebody else.


1 A. No, they just turn them over to the other table, and then

2 there are judges who are trained specifically to handle

3 provisional ballots.

4 Q. If there are no provisional ballot people there, the judges

5 at the provisional ballot table don't just sit there waiting

6 for provisional ballots, they do other stuff, right?

7 A. They do. But obviously if there is nobody that needs

8 assistance with provisionals, they would perform other duties.

9 But when somebody arrives at the table, I'm sure --

10 Q. Tying them up with lots of provisional ballots increases

11 the work at the polling places, right?

12 A. That's what we are prepared for. That's what we do.

13 That's what we order staff for.

14 Q. Although you have a generalized concern that something bad

15 might happen, you are not aware of any specific problem that

16 would occur if there were supplemental lists, correct?

17 A. I actually believe you are throwing another -- another --

18 you're putting in the polling place another variable that has

19 not been trained. It's not in state law. It's not in rule.

20 It's never been heard by the county clerk who has to then train

21 it to thousands of people. Have you ever --

22 Okay. So I think it's a real problem.

23 Q. I don't think you want me to testify.

24 A. I think you're going to cause long lines. And probably,

25 you know, once judges get -- I don't want to say probably.


1 Once judges get frustrated, they'll start turning to

2 provisional ballots anyway.

3 Q. You're concerned that it's a possibility. But as you sit

4 here today, you cannot say with any certainty that having a

5 supplemental list will cause any problem at all, correct?

6 A. We've never -- no, we have never done a list. But I can

7 tell you, we have introduced new procedures in the past that

8 have caused major problems for the polling places. One thing

9 is DREs.

10 Q. That's not a list, right?

11 A. What's that?

12 Q. You've had supplemental lists over the last seven years,

13 and they never created serious problems?

14 A. I don't know any supplemental list other than ones

15 generated by the county clerk that contained only registered

16 electors.

17 Q. And they didn't create serious problems?

18 A. No, because they are part of the original record.

19 MR. FINBERG: Okay. No questions.

20 THE COURT: Thank you, sir. You may stand down.

21 THE WITNESS: Thank you.

22 MS. MIRBABA: No further witnesses on behalf of the

23 State.

24 MS. ALLEN: Your Honor, we want to call a rebuttal

25 witness.


1 THE COURT: You do? Okay.

2 MS. ALLEN: Do you want to take a short break?

3 THE COURT: All right. We'll be in recess. Let me

4 know when.


6 THE COURT: Do you have a rebuttal witness?

7 MR. FINBERG: We do, Your Honor. We're calling

8 Christiane Citron, who has been -- she'll testify herself.

9 (CHRISTIANE CITRON, PLAINTIFFS' WITNESS, SWORN)



12 last name.

13 THE WITNESS: Christiane H. Citron, C-I-T-R-O-N.

14 THE COURT: I should advise you that we're well

15 acquainted, the witness and I are.


17 BY MR. FINBERG:

18 Q. Do you reside in the state of Colorado?

19 A. I've lived in Denver for 29 years.

20 Q. Have you ever had experience serving as an election judge?

21 A. I've been serving as an election judge for at least 24,

22 maybe 26 years.

23 Q. And --

24 A. And including this year.

25 Q. Okay. You've heard Mr. Munster's testimony.

Christiane Citron - Direct 150

1 A. Yes, I did.

2 Q. Based on your 20 years of experience as an election judge,

3 do you think you would be able to handle a supplemental list if

4 you were serving as an election judge this election year?

5 A. Yes, I do. I am serving as an election judge. And I'm

6 speaking only from myself, and not any system. But I am

7 serving as a supervisor election judge. And supervisor

8 election judges are meant to handle question, problem, cases

9 where there is some question and uncertainty in -- from the

10 poll book.

11 Q. Okay.

12 MR. FINBERG: I have no further questions.



15 BY MR. KNAIZER:

16 Q. Good evening. We know each other also.

17 A. Yes, we do.

18 Q. From a bit ago. It's old home week. Where are you an

19 election judge?

20 A. In Denver County.

21 Q. And have your election judge experiences for the 20 some

22 odd years always been in Denver County?

23 A. Yes. And I do want to say, I'm speaking strictly as an

24 individual and not for the system.

25 Q. Thank you. And so you haven't had any experience at all

Christiane Citron - Cross 151

1 in -- with election issues in smaller counties?

2 A. Correct.

3 Q. Okay. And in --

4 A. Although I've read -- I do a lot of reading. I care deeply

5 about the process.

6 Q. But I'm just talking about personal experience.

7 A. Yes.

8 Q. Okay. And were you in -- you were an election judge in

9 Denver in 2006; is that correct?

10 A. I was not in 2006.

11 Q. Okay. Are you aware of some of the problems that were --

12 existed --

13 A. Very.

14 Q. Okay. And was that part of your training, that is going

15 over some of the problems that existed in Denver in 2006?

16 A. I would say, yes. Perhaps more indirectly, but definitely

17 talking about all sorts of problems and learning about many,

18 many, many things that have been changed in response to

19 problems and even changes since the August primary.

20 I've been very impressed with the responsiveness of

21 the system, whereas before it seemed like there had been many

22 problems that didn't get -- that kept happening over and over.

23 Q. And in 2006, and again just speaking from your personal

24 knowledge, the problem in Denver arose because of a problem

25 with the voter registration system that Denver had?


1 A. That's not my recollection.

2 Q. Okay. But there were problems to your recollection that

3 arose as a result of -- on election day; is that correct?

4 A. The problems that I was aware of were computer problems.

5 Q. Okay. Which caused -- which caused -- it was a glitch in

6 the computer system that caused delays in Denver?

7 A. It was an entirely different system. I was -- my

8 observation --

9 Q. No, but I was just talking -- I understand it may have been

10 a different system. But I was just talking about the fact that

11 problems did arise on election day that caused long lines; is

12 that correct?

13 A. Yeah. This is a paper ballot system because of the

14 problems with the computers.

15 Q. Okay.

16 A. Last time.

17 Q. But we're talking here about -- Denver now has a paper

18 ballot system. But back then it had DREs, correct, electronic

19 voting machines?

20 A. Yes.

21 Q. And you're -- are you aware that other counties in the

22 state still use electronic voting machines?

23 A. I know that it varies. And we will have one machine -- I

24 mean, every polling place will have a machine because -- I

25 mean, it's required because of disability election laws.


1 Q. And finally, just tell the Court what your background --

2 what your educational background is.

3 A. I have a BA from Yale University and a law degree from New

4 York University.

5 Q. And --

6 A. I've never met any of the plaintiffs or plaintiffs' counsel

7 before today.

8 MR. KNAIZER: That's all I have, Your Honor.

9 THE COURT: We can have an alumni gathering.

10 Anything else?

11 MR. FINBERG: No, Your Honor.

12 THE COURT: Thank you very much.

13 Anything else?

14 MR. FINBERG: We do have the declaration from SEIU.

15 When do we expect it to arrive?

16 Within the next 10 minutes.

17 THE COURT: Any other evidence?

18 MR. FINBERG: That's it. Just argument left.

19 THE COURT: All right.

20 I think it makes sense to tell you where I am sitting

21 at this point so you can focus your argument and give you time

22 to prepare, in the interest of honing them down.

23 You know, the old saying is, the letter's too long, I

24 didn't have time to write a short one. I want to give you some

25 time to do that.

154

1 I am not at all certain whether I want to issue a

2 preliminary injunction at this moment. I want to listen to the

3 arguments first before I would make that decision. But I am

4 presently inclined to say this, that I would not be interested

5 in any kind of injunctive relief that would interfere with or

6 cause some kind of change in the system as Mr. Timmons has

7 testified to.

8 And secondly, I'm impressed by the testimony of

9 Mr. Munster that adding any kind of new things at the voting

10 places is very problematic.

11 And I'm looking to the idea that if I were to issue

12 some kind of injunction -- and I might -- that it would have to

13 be tailored intelligently so as not to throw chaos into this

14 election.

15 I don't think that the plaintiffs or the defendants

16 want to see that. And certainly, as a -- having a public

17 responsibility, that's the last thing I want to see, some kind

18 of chaos taking place.

19 But if a feasible kind of plan can obtain that would

20 relate my present thinking would be to the validation or --

21 subsequent validation or invalidation of the provisional

22 ballots, that this could be done so that the -- what is it now?

23 Started at 8,500, and now we're down to 79, about, as of today,

24 voters. We don't know how many are going to show up. We don't

25 know what is going to be done with them.

155

1 But I'm very concerned that the provisional ballots

2 have to be used, they have to be counted, they have to be

3 evaluated, irrespective of what the results are.

4 There is some kind of, I don't know, it's almost in

5 the air to say that, well, if the vote's in and the number of

6 provisional ballots don't affect the result, then they wouldn't

7 be counted. Well, that's not true. Those people who make

8 those votes are just as entitled as anyone else to have their

9 vote counted, no matter what the result is. So what I want to

10 make certain of is that we have a -- if, indeed, I'm going

11 to -- and where I'm focused is not so much on the -- at this

12 point, I think -- I think that there are places where the State

13 went out of bounds on the -- I'm sorry, not expungement, on the

14 removal of these names.

15 But at the same time, what I'm concerned with

16 primarily is trying to balance the equities so that the harm

17 isn't -- I'm not creating more harm than doing something

18 sensible.

19 So because of that, that's where I am now. That's

20 what I want to hear about. If you think I'm totally wrong, and

21 you want to argue, certainly you're free to. I'm not going to

22 interfere with the right of counsel to present whatever you

23 want. But that, I think, in candor is my present thinking.

24 And if that's the case, two things arise.

25 One is that I you want to make closing arguments. And

156

1 the second is, maybe -- I know you've conferred in the past,

2 maybe that presents something for you to talk about at this

3 point.

4 If it does, then do so. And we'll stand in recess for

5 about the next 30 minutes to give you a chance to do, either

6 prepare or figure out something else for me to do.

7 MR. KNAIZER: Yes, actually, I was hoping we could

8 confer because I think some of what you've outlined is

9 perhaps --

10 THE COURT: Why don't you use the jury room for that.

11 We'll be in recess.


13 THE COURT: Good evening. Be seated.

14 Some intrepid people here.

15 My understanding is that you've reached a stipulation.

16 I have it. I've read it. I'll approve it. I'll read it into

17 the record.

18 MS. ALLEN: Thank you.

19 THE COURT: The Secretary of State will generate a

20 list, hereafter, the list -- only lawyers do that -- of

21 individuals who were determined to have failed the 20-day rule

22 and all voters whose registrations were canceled for any reason

23 during the period beginning May 14, 2008 through November 4,

24 2008. The list will be transmitted electronically to each

25 clerk and counsel for plaintiffs by 9:00 a.m. November 5, 2008.

157

1 The Secretary will issue an order to clerk and

2 recorders stating at a minimum as follows:

3 A, voters on the list who voted by provisional ballot

4 shall be verified before other provisional ballots.

5 B, voters on the list shall be presumed to be eligible

6 and their ballots will be counted. Only upon a showing by

7 clear and convincing evidence the voter is not eligible shall a

8 provisional ballot be rejected by the county.

9 C, no ballot shall be rejected unless there is a

10 review of all of the applicable records in the SCORE database,

11 including but not limited to the scanned original registration

12 application, sources provided by the Colorado Secretary of

13 State or law enforcement agencies regarding individuals with

14 felony convictions serving a sentence of confinement or parole

15 in and the Division of Motor Vehicles motor voter database.

16 D, for any voter on the list whose provisional ballot

17 has been rejected at the county level, the clerk shall contact

18 the voter in writing by forwardable mail and by telephone where

19 provided, stating his or her ballot has been rejected at the

20 county level and the reason for the rejection and provide the

21 Secretary of State with a copy of the writing. Plaintiffs'

22 counsel will have input into the language of the written

23 notice.

24 E, for each ballot rejected at the county level of a

25 voter on the list, the clerk shall provide the Secretary of

158

1 State with a copy of the provisional ballot affidavit no later

2 than the end of the 14-day provisional ballot review period.

3 3, upon receipt of each such ballot affidavit, the

4 Secretary of State shall provide a copy of the ballot affidavit

5 to the designated representative of plaintiffs' counsel. The

6 parties will enter into a protective order to preserve the

7 confidentiality of any personally identifiable information.

8 4, the Secretary shall conduct an independent review

9 of each ballot rejected at the county level and order the clerk

10 to count the ballot of any voter whose ballot was incorrectly

11 rejected no later than two weeks prior to the certification of

12 the statewide results.

13 If the Secretary affirms the rejection, then the

14 Secretary shall inform the designated representative of

15 plaintiffs' counsel and provide access to the evidence upon

16 which the determination was made within two business days and

17 in no event later than two weeks prior to the certification of

18 the statewide results.

19 The parties agree that the Court shall retain

20 continuing jurisdiction over any disputes over voter

21 eligibility arising after the Secretary's review.

22 Six, by entering into this stipulation, the Secretary

23 does not admit to any of the allegations in the Complaint,

24 including any violation of law.

25 By entering into this stipulation, the plaintiffs do

159

1 not waive any claims.

2 Ms. Allen, that is the stipulation. Have I read it

3 correctly?

4 MS. ALLEN: Yes, it is, Your Honor.

5 THE COURT: And that's the agreement of the

6 plaintiffs; is that correct?

7 MS. ALLEN: Yes, it is.


9 Mr. Knaizer, is that correct?

10 MR. KNAIZER: That is correct, Your Honor.

11 THE COURT: All right. The stipulation is accepted by

12 the Court.

13 I want to commend you. Really, I think this is a much

14 more sensible way of handling this than for some grizzled old

15 judge to sit up here and act like he knows what he's doing with

16 these things. It's a good thing that you're working together

17 on this. And it's even more important that people are going to

18 be able to vote. I'm very pleased with what you've done, and I

19 commend all of you for it.

20 So with that, we'll be in recess.

21 MS. PEREZ: Your Honor, there is one more thing.

22 Mr. Johnson would like a letter from the Court

23 indicating where he was today. Is that possible from the

24 Court?

25 THE COURT: You betcha. Do you need it tonight?

160

1 MS. PEREZ: Can we get it tonight?

2 THE COURT: I'll go do it now if you want.

3 MS. PEREZ: Thank you. And Mrs. Johnson as well.

4 THE COURT: I charge extra for typing.

5 We'll get the letters for you right now.

6 Do you want me to address them to anybody in

7 particular?

8 MS. ALLEN: We'll find out.

9 THE COURT: Give it to me in writing, and I'll do it

10 right now.

11 (Hearing concluded at 9:06 p.m.)

12 INDEX

13 Item Page

14 WITNESSES

15 LINDA TOWNSEND JOHNSON Direct Examination By Ms. Perez 15

16 JAMES JOHNSON Direct Examination By Ms. Perez 27

17 HILARY RUDY Direct Examination By Ms. Mirbaba 40

18 Cross-examination By Ms. Hair 69 Redirect Examination By Ms. Mirbaba 86

19 Recross-examination By Ms. Hair 89 TREVOR TIMMONS

20 Direct Examination By Ms. Mirbaba 90 Cross-examination By Mr. Finberg 108

21 Redirect Examination By Ms. Mirbaba 118 WAYNE MUNSTER

22 Direct Examination By Ms. Mirbaba 119 Cross-examination By Mr. Finberg 132

23 Redirect Examination By Ms. Mirbaba 143 Recross-examination By Mr. Finberg 146

24 CHRISTIANE CITRON Direct Examination By Mr. Finberg 150

25 Cross-examination By Mr. Knaizer 151

161

1 PLAINTIFFS' EXHIBITS

2 Exhibit Offered Received Refused Reserved Withdrawn

3 1-4 13 13 8-16 13 13

4 18 13 13 25 134 134

5 DEFENDANT'S EXHIBITS

6 Exhibit Offered Received Refused Reserved Withdrawn

7 A-I 13 13

8 REPORTER'S CERTIFICATE

9

10 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.

11

12 Dated at Denver, Colorado, this 30th day of October,

13 2008.

14 s/Therese Lindblom

15 ______________________________ Therese Lindblom,CSR,RMR,CRR

16

17

18

19

20

21

22

23

24

25

1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT ... · MONICA MARIE MARQUEZ, ESQ. 15...

Documents

Transcript of 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT ... · MONICA MARIE MARQUEZ, ESQ. 15...