Federal judge declines to reopen case against Jena Griswold over voter registration discrepancy

Judicial Watch pointed out Griswold's office gave them incorrect numbers prior to settlement, and cited the error as grounds for reopening their lawsuit

from Judicial Watch press release March 30, 2023 (headline photo)

• Michael Karlik michael.karlik@coloradopolitics.com

• Feb 29, 2024 Updated Mar 1, 2024

• From Colorado Politics A federal judge on Tuesday declined to reopen a conservative group's lawsuit against Colorado Secretary of State Jena Griswold, following revelations that her office misstated the number of voters recently removed from the state's registration lists due to address changes. Initially, Washington, D.C.-based Judicial Watch filed suit against Griswold, joined by the American Constitution Party and Libertarian Party in Colorado, plus three Colorado voters. The plaintiffs alleged her office was failing to discontinue the registrations of people who neither voted nor responded to inquiries about their change of address, as required by the National Voter Registration Act. Specifically, they calculated the number of registered voters in several low-population counties exceeded the number of voting-age citizens. In August 2021, U.S. District Court Chief Judge Philip A. Brimmer rejected the state's request to dismiss the lawsuit, finding the plaintiffs had alleged a legitimate injury: undermined confidence in the integrity of Colorado's elections. "While it may ultimately be proven that Colorado’s figures are reasonable when compared to other states’ figures, making such a determination at the motion to dismiss stage would be improper," he wrote at the time. After the parties exchanged evidence, they informed Brimmer in March 2023 they had reached a settlement. Griswold's office, on April 1 of each year, would provide Judicial Watch with the latest data on discontinued voter registrations stemming from address changes. Although the parties asked Brimmer to retain jurisdiction of the case so he could potentially enforce the settlement, Brimmer noted such a request only applies to "extraordinary circumstances." Because the parties did not identify any such circumstances, Brimmer dismissed the case outright. Then in June 2023, the plaintiffs filed a motion with Brimmer alerting him to "new evidence." Prior to settling, Griswold's office shared that it had removed 306,303 voter registrations between November 2020 and November 2022. However, its first post-settlement data disclosure revised the number down to 161,607 — roughly half the previous amount. "Defendant’s error was egregious," wrote the plaintiffs' attorneys. The incorrect data "was submitted, moreover, under oath in discovery, and in circumstances where the Defendant actually possessed the correct data." The plaintiffs added that Griswold's initial disclosure of 306,303 registrations removed suggested the state was taking its obligation seriously to cull invalid voter registrations. Now, the plaintiffs were rethinking the settlement. Griswold's office responded by acknowledging its mistake, saying its earlier number reflected all discontinued voter registrations, not just those at issue in the lawsuit. "The Secretary’s office regrets the error that was made in discovery, but is committed to fully performing its obligations under the Parties’ Agreement," wrote the Colorado Attorney General's Office, noting Colorado state courts were the proper venue for enforcing a settlement agreement. In a Feb. 27 order, Brimmer, a George W. Bush appointee, rejected the plaintiffs' request to reopen the case. "Here, the Court explicitly declined to retain jurisdiction over the settlement agreement because the parties did not identify any exceptional reason why the Court should retain jurisdiction over the settlement agreement," he reminded them. "Moreover, plaintiffs do not now identify any exceptional reason why the Court should retain jurisdiction over the settlement agreement." Griswold's office also informed Brimmer it was providing Judicial Watch with "additional data above what was required" by the settlement, which Judicial Watch did not dispute. Griswold, a Democrat in her second term, is currently overseeing the state's March 5 presidential primary election and the upcoming primary elections for other offices in June. She recently announced $3.5 million in grant funding for Colorado counties to improve their election security. The case is Judicial Watch, Inc. et al. v. Griswold.