DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO

1437 Bannock Street, Room 256

Denver, Colorado 80202

Court Tel.: (720) 865-8301

Plaintiffs: DOMINICK MORENO; CHRISTINE LE LAIT; WILLIAM N. PATTERSON; RITA MAHONEY; ROGER CLARK; KRISTI MA TSUNAKA; and MIKEL WHITNEY

v.

Defendant: SCOTT GESSLER, in his official capacity as Secretary of State of the State of Colorado

• COURT USE ONLY'"

Attorneys for Plaintiffs:

Mark G. Grueskin Tamara F. Goodl ette

Rothgerber Johnson & Lyons LLP 1200 1 til Street, Suite 3000 Denver, Colorado 80202

Phone Number: (303) 623-9000 FAX Number: (303) 623-9222 E-mail: [email protected]; tgoodl [email protected]

Atty. Reg. ##: 14621,35775

Case Number:

Di vision/Courtroom:

COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF

Dominick Moreno, Christine Le Lait, William N. Patterson, Rita Mahoney, Roger Clark, Kristi Matsunaka, and Mikel Whitney (collectively "Plaintiffs"), by and through their attorneys, Rothgerber Johnson & Lyons LLP, allege as follows for their Complaint for Declaratory, Injunctive and Other Relief:

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JURISDICTION &- VENUE

1. This Court has jurisdiction over the subject matter of this action pursuant to

Colo. Const. art. VI, § 9 and 42 U.S.C. §§ 1983. Plaintiffs also seek declaratory relief pursuant to C.R.S. § 13-51-101 et seq" and C.R.S, § 13-51-106.

2. Venue is proper in this Court pursuant to Colo, R. Civ. P. 98(b)(2).

THE PARTIES

3. Plaintiff Kristi Matsunaka is a citizen of the United States, a citizen and

resident ofthe state of Colorado, and a registered voter in Colorado's First Congressional District.

4. Plaintiff Rita Mahoney is a citizen of the United States, a citizen and resident of

the state of Colorado, and a registered voter in Colorado's Second Congressional District.

5. Plaintiff William N. Patterson is a citizen of the United States, a citizen and

resident of the state of Colorado, and a registered voter in Colorado's Third Congressional District.

6. Plaintiff Roger Clark is a citizen of the United States, a citizen and resident of the

state of Colorado, and a registered voter in Colorado's Fourth Congressional District.

7. Plaintiff Christine Le Lait is a citizen of the United States, a citizen and resident of

the state of Colorado, and a registered voter in Colorado's Fifth Congressional District.

8. Plaintiff Mikel Whitney is a citizen of the United States, a citizen and resident of

the state of Colorado, and a registered voter in Colorado's Sixth Congressional District.

9. Plaintiff Dominick Moreno is a citizen of the United States, a citizen and

resident of the state of Colorado, and a registered voter in Colorado's Seventh Congressional

District. .

10. Plaintiffs have standing to pursue this action.

11. Defendant Scott Gessler ("Secretary Gessler") is Colorado's Secretary of State

and is responsible for administration and enforcement of the state's election laws.

F ACTUAL ALLEGATIONS

12, Under 2 U.S.C. § 2a, the President of the United States is required every ten years

to transmit to Congress a statement showing the number of persons in each state (as ascertained

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under the federal decennial census of population) and the number of representatives to which each state is entitled.

13. On or about December 21, 2010, the Secretary of Commerce of the United States

reported to the President of the United States the tabulation of population for each of the fifty states, including the state of Colorado, as determined in the 2010 federal decennial census.

14. Under 13 U.S.C. § 141, commonly referred to as "Public Law 94-171," the

Secretary of Commerce was required, by April 1, 2011, to complete, report, and transmit to each state the detailed tabulations of population for specific geographic areas within each state. States ordinarily use the P.L. 94-171 data to redraw their congressional districts.

15. The United States Bureau of the Census has delivered to Colorado Governor Bill

Ritter and the leaders of the Colorado legislature the official Census 2010 Redistricting Data Summary File pursuant to P.L. 94-171.

16. Because of the relative continuity in Colorado's proportional population as to

compared to the United States as a whole, the people of Colorado will continue to elect seven representatives to the United States for the next decade.

17. C.R.S. § 2-1-100.5 mandates that Colorado be divided into congressional

districts pursuant to the official figures of the most recent federal decennial census.

18. C.R,S. § 2-1-101 contains the current apportionment of Colorado's

congressional districts. Pursuant to § 2-1-101 (1), Colorado is currently divided into seven congressional districts for the election of representatives to the United States House of Representatives. Because there have been shifts in proportionate population among the state's congressional districts since the 2010 census, Colorado is malapportioned.

19. The 2000 federal decennial census showed the state to be inhabited by

4)01,262 people. In 2010, the federal census established the state's population to be 5,029,196 people. According to the "one person, one vote" requirement as set forth below, the ideal population of each of the seven districts to which Colorado is entitled is no longer 614,466 people, but 718,457 people.

20. The population of the six current congressional districts, and the population

deviation from the ideal population of 718,457 people per district, is set forth in the table below:

District

Present Population

Deviation From Ideal

% Deviation

1 2

662,039 733,805

(56,418) 15,348

(7.8%) 2.1%

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3 706,186 (12,271) (1.7%)
4 725,041 6,584 1.7%
5 725,902 7,445 1.0%
6 797,813 79,356 11.0%
7 678A10 (40,047) (5.6%) 21. The right to vote in congressional elections, and to have each vote be equally

weighted and not diluted, is a constitutionally protected right. U.S. Const. amend. XIV, § 2; see Colo. Const. art. 5, § 44. Plaintiffs, as citizens of the United States and as citizens and registered voters of the state of Colorado, are entitled to vote for members of the United States House of Representatives, and to have their votes be equally weighted with the votes of every other citizen of Colorado and the United States. U.S. Const. art. I, § 2; Colo. Const. art. V, § 44.

22. The United States Constitution requires that congressional districts be

apportioned according to the principal ofiione person, one vote." Baker v. Carr" 369 U.S. 186 (1962). Under this principal, equality of population in congressional districts is a constitutional requirement. Wesberry v. Sanders, 376 U.S. 1 (1964).

23. The current malapportionment of congressional districts in Colorado as set forth

in C.R.S. § 2-1-101 violates the United States Constitution and is illegal. Colorado requires redistricting to cure these infirmities.

24. Under the provisions of both federal and state law, the responsibility for drawing

new congressional districts initially lies with the Colorado legislature, subject to approval of the Governor. 2 U.S.C. § 2c; Colo. Const. art. V, § 44.

25. To allow for introduction, committee hearings, and second and third "readings"

in the State Senate and the State House of Representatives, the minimum amount of time that the Colorado General Assembly requires to enact any piece of legislation is three days. See Colo. Const., art. V, § 22.

26. The General Assembly meets for 120 calendar days each year. Colo. Const.,

art. V, § 7. Both bodies convened on January 12,2011 and thus are scheduled to adjourn no later than May 11,2011.

27. Prior to convening the 2011 session, the leadership of the General Assembly

appointed a Joint Select Committee on Redistricting. This Committee held no fewer than ten (10) statewide hearings to solicit citizen input on possible redistricting plans which gave rise to no fewer than eleven (11) alternative redistricting maps.

28. Two (2) redistricting plans have been actively considered during the 2011

legislative session, one beginning in the State House of Representatives and one beginning in

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the State Senate. Both plans have been legislatively considered; neither has been successful in obtaining the votes necessary for enactment.

29. Because the General Assembly cannot initiate a new bill that can completely

advance through the legislative process before sine die adjournment, there is no assurance that a redistricting plan will be validly enacted for the 2012 election. See Colo. Const., art. V, § 22.

30. Lacking a constitutional and legally valid congressional redistricting plan, this

Court, as part of the Colorado state judicial branch, has the primary duty and responsibility to create congressional districts that comply with both federal and state law. People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1232 (Colo. 2003).

31. Without the action of this Court, Secretary Gessler will be required to

apply the existing district boundaries, provided by C,R,S § 2-1-101, to Plaintiffs, even though those district lines are invalid based on the 2010 census. As such, Plaintiffs and other Coloradans will not have the benefit of constitutionally drawn districts for purposes of the 2012 precinct caucuses or primary and general elections held in that year.

32. If the congressional district lines are not reset promptly and constitutionally,

certain fundamental elements of the election process cannot be put in place for the 2012 election cycle. Those elements include, at a minimum, the timely redrawing of precinct lines by county commissioners throughout the state, the timely conduct of precinct caucuses for presidential and congressional candidates, the timely conduct of congressional nominating assemblies, and the timely mailing of accurate ballots for the primary election, which - for the first time - will be held in June rather than in August of an election year. The following schedule demonstrates why this Court must act promptly to redistrict the state of Colorado:

(a) January 9, 2012 - Last day for county commissioners to alter precinct boundaries for the 2012 caucuses and elections. C.R.S. § I-5- 103(1)(a).

(b) January 11, 2012 - The Colorado legislature will reconvene from its adjournment for the 2012 legislative session. Colo. Const. art. V, § 7,

(c) February 7, 2012 - Precinct caucus day which commences the electoral process for President and U.S. Representatives. C,R.S. § 1-3-102(1 )(a)(IlI).

(d) April 13, 2012 - Last day for each party's congressional assembly to designate candidates for primary election. C.R.S. § 1-4-601(1).

(e) May 11,2012 - Last day to send out mail-in ballots to voters for primary election. C.R.S. § 1-8-1 1 l(l)(b),

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(f) June 26,2012 - Congressional primary election. C.R.S. § 1-4- 101(1).

(g) November 6, 2012 - General election. C.R.S. § 1-1-104(31.5).

33. Because the General Assembly recently moved the state primary election date

from the second Tuesday in August to the last Tuesday in June, and because precinct lines must be redrawn before the General Assembly reconvenes for the next legislative session, the need for this Court to assert jurisdiction is pressing.

34. The February caucuses must occur on time and be attended by electors who are

ultimately able to vote in accord with those district lines at the primary and general elections. Caucuses are the first step for determining delegates to the county and state conventions, as well as the congressional assemblies - all of which nominate candidates for the primary election ballot.

35. This Court should proceed expeditiously to ensure that a congressional

redistricting plan is in place sufficiently early for candidates and voters alike to participate in a constitutional, fair and effective election. This Court must act to preserve the integrity of the people's constitutional rights and to assure the continued efficacy of the democratic process.

36. Plaintiffs' votes and the votes of other Colorado voters will be unequally

weighted if the redrawing of the state's congressional districts is not accomplished in a timely manner.

37. Plaintiffs have no adequate remedy at law and seek to invoke the equitable and

injunctive powers of this Court. The relief sought herein is in the public interest.

38. Pursuant to C.R.S. § 2-1-101(a), a redistricting plan must meet the threshold

constitutional requirements of precise mathematical population equality among districts and must likewise comply with the requirements of the Voting Rights Act of 1965 - specifically 42 U .S.C. § 1973 - which prohibits racial discrimination in the election context.

39. Pursuant to C.R.S. § 2-1-101(b), judicial considerations for a redistricting plan

include, without reference to order or weighting:

a. the preservation of political subdivisions such as counties, cities, and towns;

b. the preservation of communities of interest, including that are ethnic, cultural, economic, trade area, geographic, and demographic in nature;

c. compactness of each district; and

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d. the minimization of disruption of prior district lines.

40. The redistricting process should operate in a "thorough, inclusive, and non-

partisan" manner. People ex rel. Salazar, supra, 79 P.3d at 1227. The non-partisan nature of redistricting is evidenced by one or more competitive districts. See id.

41. The primary objective of an acceptable congressional redistricting plan is the

"fair and effective representation of all citizens." Reynolds v. Sims, 377 U.S. 533, 565-66 (1964).

FIRST CLAIM FOR RELIEF

(Article I, § 2 of the United States Constitution)

42. Plaintiffs incorporate and reallege the allegations of paragraphs 1-41 above.

43. The facts alleged herein constitute a denial or abridgement of Plaintiffs 1 right to

vote for their representative to the United States House of Representatives, in violation of Article I, § 2 ofthe United States Constitution, as amended by § 2 of the Fourteenth Amendment to the United States Constitution.

44. Plaintiffs are entitled to relief as set forth below.

SECOND CLAIM FOR RELIEF

(Equal Protection Clause of the Fourteenth Amendment)

45. Plaintiffs incorporate and reallege the allegations of paragraphs 1-44 above.

46. The facts alleged herein constitute a denial or abridgement to Plaintiffs of the

equal protection of the laws as guaranteed to them by the Equal Protection Clause of § 1 of the Fourteenth Amendment to the United States Constitution.

47. Plaintiffs are entitled to relief as set forth below.

THIRD CLAIM FOR RELIEF

(privileges and Immunities Clause of the Fourteenth Amendment)

48. Plaintiffs incorporate and reallege the allegations of paragraphs 1-47 above.

49. The facts alleged herein constitute a denial or abridgement of the privileges and

immunities of citizenship guaranteed to Plaintiffs by the Privileges and Immunities Clause of § 1 of the Fourteenth Amendment to the United States Constitution.

50. Plaintiffs are entitled to relief as set forth below.

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FOURTH CLAIM FOR RELIEF (Fifteenth Amendment to the United States Constitution)

51. Plaintiffs incorporate and reallege the allegations of paragraphs 1-50 above.

52. The facts alleged herein constitute a denial or abridgement of Plaintiffs' right to

vote as guaranteed by § 1 of the Fifteenth Amendment to the United States Constitution.

53. Plaintiffs are entitled to relief as set forth below.

FIFTH CLAIM FOR RELIEF (Declaratory Judgment - CRS. § 13-51-106)

54. Plaintiffs incorporate and reallege the allegations of paragraphs 1-53

above.

55. C.R.S. § 13-51-106 provides in pertinent part that "[a ]ny person .. whose

rights, status, or other legal relations are affected by a statute may have determined any

question of construction or validity arising under the ... statute and obtain a declaration of

rights, status, or other legal relations thereunder. n

56. As set forth above, Plaintiffs have suffered an injury in fact to their legally protected

interest of their right to vote for members of the United States House of Representatives.

57. As a matter of law and as applied to Plaintiffs, the existing seven

congressional districts in Colorado are illegal and unconstitutional as configured. Those existing districts must be redrawn to correct such illegality and unconstitutionality.

58. Declaratory relief is required, as there is a presently existing controversy regarding

the constitutionality of Colorado's congressional districting plan.

59. Pursuant to C.R.S. § 13-51-106 and Colo. R. Civ. P. 57, Plaintiffs request a

determination that the current apportionment of congressional districts in Colorado, as set forth in C.R.S. § 2-1-101, violates the United States Constitution.

60. Plaintiffs request an expedited determination pursuant to Colo. R. Civ. P. 57(m).

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs pray this Court order relief as follows:

1. Assume jurisdiction over this action;

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2, Declare pursuant to C.R.S. § 13-51-106 and Colo. R. Civ. P. 57, that the existing districting of the congressional districts for the state of Colorado; as set forth in C.R.S. § 2-1-101, is unconstitutional and invalid;

3. Prohibit; restrain, and enjoin Secretary Gessler from ordering or conducting either a primary election; or the general election scheduled to be held November 6, 2012; from certifying the ballots therefor; from publishing or circulating a proposed ballot therefor; from certifying the results of either election; and from taking any other steps with respect to the election of congressional representatives, including accepting petitions from unaffiliated party candidates and also from accepting acceptance of party designation until a constitutional and legal congressional redistricting plan is put in place;

4. Adopt a redistricting plan for the congressional districts of the state of Colorado which:

a. assigns an equal population in all of the districts;

b. complies with the Voting Rights Act of 1965, as amended, and does not discriminate against minority voters;

c. to the extent possible and consistent with the mandate to equalize population in all districts and comply with the Voting Rights Act, preserves significant communities of interest, attends to political subdivision boundaries, provides for geographically compact districts, and minimizes disruption of prior district lines; and

d. results in one or more competitive districts.

5. Award Plaintiffs their costs and reasonable attorneys fees in connection herewith; and

6 Enter such other and further relief as may be appropriate.

Respectfully submitted this 10th day of May, 2011.

ROTH GERBER J

L

slMark G. Grueski

Mark G. Grueskin, No. 14621 Tamara F. Goodlette, No. 35775

Attorneys for Plaintiffs

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Addresses of Plaintiffs:

Dominick Moreno 5821 Tichy Blvd.

Commerce City, Colo. 80022

Christine Le Lait 807 N. Corona

Colorado Springs, Colo. 80903

William N. Patterson 2796 Foxtail Way Montrose, Colo. 81401

Rita Mahoney

2102 Kalmia Circle Boulder, Colo. 80304

Roger Clark

1220 W. 6th Street Loveland, Colo. 80537

Kristi Matsunaka 4890 Fenton Street Denver, Colo. 80212

Mikel Whitney

532 Oakwood Dr., Apt. D208 Castle Rock, Colo. 80104

In accordance with C.R. c.P. 121 § 1-26(7), a printed copy of this document with original signatures is being maintained by the filing party and will be made available for inspection by other parties or the Court upon request.

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