Marilyn Marks v. Gessler, Colorado Secretary of State and Judd Choate, [Director of Elections], 2013COA115 (Aug. 1, 2013)

“Nobody will ever deprive the American people of the right to vote except the American people themselves and the only way they could do this is by not voting.” – FDR. Marks filed a complaint with Gessler claiming violations of federal election laws (HAVA). Gessler dismissed the complaint without a hearing for lack of standing. Marks appealed to the district court and won. In a complex ruling, the court of appeals affirmed because 1) the state’s APA provides for judicial review of administrative HAVA determinations; 2) federal and state HAVA laws conflict regarding standing, so the federal rule controls; and 3) HAVA did not create a privately enforceable federal civil right. Procedurally, the court 1) identified the final appealable order; 2) affirmed sua sponte entry of summary judgment; and 3) held state and federal courts have subject matter jurisdiction to review HAVA appeals.
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Filed under Administrative, Appellate Review Challenged, Constitutional, Government

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