McSally Motion To Dismiss

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 1 of 18
1
2
3
4
5
6
7
Brett W. Johnson (#021527)

Eric H. Spencer (#022707)
SNELL & WILMER L.L.P.
One Arizona Center
400 E. Van Buren St., Suite 1900
Phoenix, AZ 85004-2202
Telephone: 602.382.6000
Facsimile: 602.382.6070
E-Mail:
bwjohnson@swlaw.com
espencer@swlaw.com
Attorneys for Martha McSally and McSally for
Congress
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
10
Snell & Wilmer
L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000
11
12
Ron Barber for Congress; Lea GoodwineCesarec; Laura Alessandra Breckenridge;

Josh Adam Cohen,
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs,
v.
Ken Bennett, in his official capacity as
Secretary of State of the State of Arizona;
Pima County Board of Supervisors, a body
politic; Ally Miller, in her official capacity
as a member of the Pima County Board of
Supervisors; Ramn Valadez, in his official
capacity as a member of the Pima County
Board of Supervisors; Sharon Bronson, in
her official capacity as a member of the
Pima County Board of Supervisors; Ray
Carroll, in his official capacity as a member
of the Pima County Board of Supervisors;
Richard Elas, in his official capacity as a
member of the Pima County Board of
Supervisors; the Cochise County Board of
Supervisors, a body politic; Patrick Call, in
his official capacity as a member of the
Cochise County Board of Supervisors; Ann
English, in her official capacity as a
member of the Cochise County Board of
Supervisors; Richard Searle, in his official
capacity as a member of the Cochise
County Board of Supervisors,
Defendants.
Case No. CV-14-2489-TUC-CKJ
INTERVENORS MARTHA MCSALLY

AND MCSALLY FOR CONGRESS
MOTION TO DISMISS VERIFIED
COMPLAINT
Before the Honorable Cindy K. Jorgenson
(ORAL ARGUMENT REQUESTED)
(EXPEDITED RULING REQUESTED)
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
Intervenors Martha McSally and McSally for Congress move to dismiss Plaintiffs
Verified Complaint for Injunctive and Declaratory Relief, pursuant to Rule 12(b)(1) and
(6), Fed. R. Civ. P. This Court lacks jurisdiction to hear Plaintiffs claims. Fed. R. Civ. P.
12(b)(1). Even if jurisdiction had attached, Plaintiffs fail to state claims for which this
Court can grant relief. Fed. R. Civ. P. 12(b)(6).
I.
THE COURT LACKS JURISDICTION TO HEAR THIS MATTER.
A.
Before this Court can consider the merits of [Plaintiffs] claims or the propriety of
the relief requested, they must show they are entitled to invoke the judicial process.
10
See Linda R.S. v. Richard D., 410 U.S. 614, 616 (1973). One of the many requirements
11
Plaintiffs must meet is that, for each claim set forth in their Complaint, there must be a
12
plaintiff with standing. See Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 39
13
(1976) (applying standing analysis to test the allegations of each of the individual
14
respondents and the respondent organizations . . . for sufficiency). For Article III
15
standing, a plaintiff must adequately establish: (1) an injury in fact (i.e., a concrete and
16
particularized invasion of a legally protected interest); (2) causation (i.e., a fairly . . .
17
trace[able] connection between the alleged injury in fact and the alleged conduct of the
18
defendant); and (3) redressability (i.e., it is likely and not merely speculative that the
19
plaintiffs injury will be remedied by the relief plaintiff seeks in bringing suit). Sprint
20
Commcns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273-74 (2008) (internal citations
21
and some quotation marks omitted). Plaintiffs come up short on many fronts, particularly
22
on injury-in-fact and redressability.
Plaintiffs Lack Standing to Invoke the Courts Jurisdiction.
23
The redressability prong of the standing doctrine requires that [a] plaintiff who
24
seeks to invoke judicial power stand to profit in some personal interest. Simon, 426 U.S.
25
at 39. The only non-individual plaintiff in this case, Ron Barber for Congress, does not
26
stand to benefit from a successful prosecution of this lawsuit. The lawsuit alleges that
27
Defendants have disenfranchised only 133 eligible voters. (Compl., Doc. 1, at 2.) But
28
Congressman Barber is down 161 ballots. So even if Plaintiffs allegations were true, the
-2-
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
campaign still comes up more than two dozen votes shy of victory. Not only is this
insufficient to invoke the Courts jurisdiction, but it means, as discussed below, Plaintiff
Ron Barber for Congress claims are futile and, like the remainder of the Plaintiffs
claims, insufficient to state a claim for which this Court can grant relief.
B.
Plaintiffs claims are all untimely, either brought too late or too early, as a matter
of law. Only missing votes can be cause to halt a canvass. Arizona election law requires
electors to bring issues concerning missing votes to county election officials attention
prior to certification of the official canvass. A.R.S. 16-642(A), (C). The county boards
10
of supervisors must otherwise canvass the official results between six and twenty days
11
following the general election, A.R.S. 16-642(A). An elector who fails to timely raise
12
ballot tabulation issues may only thereafter challenge the election outcome through an
13
election contest. See A.R.S. 16-672. Plaintiffs were, therefore, required to bring Counts
14
One through Five of the complaint prior to certification of the official canvass by the
15
counties. On the other hand, Count Six is premature because it represents an unripe
16
election contest brought in the improper forum.
Untimely and Inapposite Claims Do Not Command Jurisdiction.
17
C.
18
The sole form of action to challenge an election outcome in Arizona is an election
19
contest. See A.R.S. 16-672(A) (providing grounds for election contests); Donaghey v.
20
Attorney Gen., 120 Ariz. 93, 95, 584 P.2d 557, 559 (1978) (holding that a partys failure
21
to bring a legal challenge to the conduct of an election as an election contest precluded
22
any other civil relief). A contestant may only bring an election contest by filing a
23
statement of contest with the appropriate state court within five days after the Secretary of
24
State certifies the final canvass pursuant to A.R.S. 16-648(A). See A.R.S. 16-673(A).
25
No court has jurisdiction to hear an election contest that fails to strictly comply with
26
statutory timing provisions. Hunsaker v. Deal, 135 Ariz. 616, 617, 663 P.2d 608, 609 (Ct.
27
App. 1983) (Time elements in election statutes are jurisdictional and the time
28
requirements for filing an election contest will be strictly construed.) (citation omitted).
An Election Contest is Premature and Not Proper in this Court.
-3-
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
Plaintiffs claims challenging the conduct of this election under Arizona law are
essentially a premature election contest. See Donaghey, 120 Ariz. at 95, 584 P.2d at 559.
Such contests do not ripen until the Secretary of State certifies the final canvass. A.R.S.
16-673(A). No Arizona court has jurisdiction over these claims until that date. See
Hunsaker, 135 Ariz. at 617, 663 P.2d at 609. This court should, therefore, dismiss Count
Six.
D.
Abstention counsels that this Court should dismiss this action. See generally
Younger v. Harris, 401 U.S. 37 (1971). The Ninth Circuit has long recognized that federal
10
courts must abstain under Younger if four requirements are met: (1) a state-initiated
11
proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the
12
federal plaintiff is not barred from litigating federal constitutional issues in the state
13
proceeding; and (4) the federal court action would enjoin the proceeding or have the
14
practical effect of doing so, i.e., would interfere with the state proceeding in a way that
15
Younger disapproves. San Jose Silicon Valley Chamber of Commerce Political Action
16
Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
The Court Should Abstain, As Ongoing State Processes Go Forward.
17
All four Younger factors are present. First, there is an ongoing state proceeding.
18
The canvass awaits certification by the Secretary of State on December 1, 2014. A.R.S.
19
16-648. Given the close count in this race, the Secretary of State must then move for a
20
recount pursuant to A.R.S. 16-661662. Administrative proceedings like the one at
21
issue in this case fall under the Younger doctrine. See, e.g., Ohio Civil Rights Commn v.
22
Dayton Christian Schools, Inc., 477 U.S. 619 (1986) (upholding the district courts
23
decision to abstain from equitable proceedings against an on-going sex discrimination
24
proceeding before the state civil rights commission); Middlesex County Ethics Commn v.
25
Garden State Bar Assn, 457 U.S. 423 (1982) (applying Younger to an state administrative
26
proceeding). Furthermore, administrative proceedings that provide for state court review,
27
as in this case, are treated as one unitary proceeding for purposes of abstention. See San
28
Jose, 546 F.3d 1087, 1093-94 (see cases cited therein). In this case, the Arizona election
-4-
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
certification is ongoing and for a federal court to disrupt its integrity by intervening in
mid-process would demonstrate a lack of respect for the State as sovereign. New Orleans
Public Serv. v. Council of New Orleans, 491 U.S. 350, 369 (1989) (NOPSI) (citation
omitted).
Second, Plaintiffs suit implicates an important state interest. Election law, as it
pertains to state and local election, is for the most part a preserve that lies within the
exclusive competence of the state courts. Vallejo v. City of Tucson, No. CV 08-500 TUC
DCB, 2009 WL 1835115, at *2 (D. Ariz. June 26, 2009). The procedures for counting
votes, certifying the election, and contesting the results are all the providence of the state
10
of Arizona. A.R.S. 16-101 et seq. The State has an interest in enacting reasonable
11
regulations of parties, elections, and ballots. Indeed the government must play an active
12
role in structuring elections. Ariz. Libertarian Party v. Bennett, CV-11-856-TUC-CKJ,
13
2013 WL 1149808, at *8 (D. Ariz. March 19, 2013).
14
Third, in this case, the state court proceedings provide the Plaintiffs with an
15
adequate opportunity to litigate their federal claims. Any procedural challenge to the
16
election could have been brought prior to election day (Kerby v. Griffin, 48 Ariz. 434,
17
444, 62 P.2d 1131, 1135 (1936)) and any contest of the election results can be brought
18
within five days after the election is certified (A.R.S. 16-673(A)).
19
Fourth, there is no question that this case would enjoin the ongoing state
20
proceeding or have the practical effect of doing sothe Secretary of State has already
21
responded to a letter from Plaintiffs counsel and indicated that the Secretary is
22
monitoring this case. See Exhibit A, Ltr. from K. Bennett to Plaintiffs counsel, dated
23
11/24/2014. For these reasons, the Court should abstain from hearing this case under the
24
Younger doctrine.
25
Finally, Younger abstention is warranted here because this case presents the type of
26
exceptional circumstances identified by the Supreme Court in NOPSI.
27
Commc'ns, Inc. v. Jacobs, 134 S. Ct. 584, 593-94 (2013) (Younger extends to the three
28
exceptional circumstances identified in NOPSI, but no further.). These exceptional

-5-
Sprint
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
circumstances exist when the federal court is asked to intervene in one of three types of
proceedings: (1) ongoing state criminal prosecutions, (2) certain civil enforcement
proceedings that are akin to criminal prosecutions, and (3) pending civil proceedings
involving certain orders . . . uniquely in furtherance of the state courts ability to perform
their judicial functions. Sprint, 134 S. Ct. at 591.
The present action falls into the category of exceptional circumstance cases that
strike at the core of the states judicial process. See ReadyLink Healthcare, Inc. v. State
Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014) (citing several examples of core
orders). In this case, the Plaintiffs are asking this Court to enjoin officers and boards of the
10
state of Arizona, Pima County, and Cochise County from engaging in duties mandated by
11
law that are central to the function of their office. Plaintiffs requested injunction would
12
also prevent the state court from initiating and supervising a recount and presiding over an
13
election contest. Enjoining the core orders and functions of these officers presents the type
14
of exceptional circumstances identified by the Supreme Court in NOPSI and make this
15
case appropriate for abstention under the Younger doctrine.
16
This Court should also abstain from exercising jurisdiction in this case pursuant to
17
the Burford doctrine. See Burford v. Sun Oil Co., 319 U.S. 315, 334 (1943). Under the
18
Burford abstention doctrine, a federal court sitting in equity must decline to interfere
19
with the proceedings or orders of state administrative agencies: (1) when there are
20
difficult questions of state law bearing on policy problems of substantial public import
21
whose importance transcends the result in the case then at bar; or (2) where the exercise
22
of federal review of the question in a case and in similar cases would be disruptive of state
23
efforts to establish a coherent policy with respect to a matter of substantial public
24
concern. NOPSI, 491 U.S. at 361 (citation omitted).1 The State of Arizona, like every
25
26
27
28
In particular, the Burford doctrine is appropriate when the state has created a highly
controlled and regulated system to administrate an enterprise of statewide import,
especially where the state has permitted expeditious and adequate review of any
administrative decisions in state court. Burford, 319 U.S. at 334; see also Alabama Pub.
Serv. Comm'n v. Southern R. Co., 341 U.S. 341, 348 (1951) (abstention appropriate
because there was an absolute right to appeal the Alabama Public Service Commission
order in state court).
-6-
state, has constructed a highly regulated system for administering its elections, which is
tailored to the unique needs, requirements, and limitations of the state and its electorate.
A.R.S. 16-101 et seq. Given the size and complexity of the state and municipal agencies
overseeing the election process, and the ability of the electors to contest the action in state
court, this Court should abstain from exercising jurisdiction in this case. See also Purcell
v. Gonzalez, 549 U.S. 1, 6 (2006) (per curiam) (Stevens, J., concurring) (noting that
allowing state election process to proceed to its conclusion also yields a better record for
judicial review).
II.
10
PLAINTIFFS DO NOT STATE CLAIMS FOR RELIEF.

A.
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
11
Plaintiffs Fail to State Claims for Violations of Equal Protection and

Due Process of Law (Counts One, Two, Three).
The Constitution provides that States may prescribe [t]he Times, Places, and
12
Manner of holding Elections for Senators and Representatives, Art. I, 4, cl. 1, and the
13
[Supreme] Court therefore has recognized that States retain the power to regulate their
14
own elections. Burdick v. Takushi, 504 U.S. 428, 433 (1992). As relevant here, the Equal
15
Protection Clause imposes two narrow constraints on a states broad power to regulate
16
elections:
17
First, the State may not, by . . . arbitrary and disparate treatment, value one
18
persons vote over that of another. Bush v. Gore, 531 U.S. 98, 104-05 (2000) (emphasis
19
added). But this is a very difficult standard for a plaintiff to meet, which explains why the
20
Supreme Court in Bush v. Gore admonished that its holding was limited to the present
21
circumstances. Id. at 109. A plaintiff cannot demonstrate disparate treatment unless the
22
individual can show that he or she is similarly situated to other individuals whose votes
23
were counted. See, e.g., Northeast Ohio Coalition for the Homeless v. Husted, 696 F.3d
24
580, 598 (6th Cir. 2012). Moreover, even disparate treatment of similarly situated parties
25
may not be arbitrary where local entities, in the exercise of their expertise, . . . develop
26
different systems for implementing elections. See Bush, 531 U.S. at 109 (emphasizing
27
that arbitrariness arose from a statewide remedy ordered by a state court); see also Husted,
28
-7-
696 F.3d at 598. Indeed, this Court has previously held that even disparate treatment
within a jurisdiction does not rise to the level of an equal protection violation where the
disparity is not intentional, but merely a garden variety election irregularity. See
Vallejo v. City of Tucson, No. CV 08-500 TUC DCB, 2009 WL 1835115, *2-3 (D. Ariz.
June 26, 2009).
Second, election regulations cannot unduly burden the right to vote, when the
character and magnitude of the asserted injury is weighed against the precise interests
put forward by the State as justifications for the burden imposed by its rule. Burdick, 504
U.S. at 434. But very few election regulations flunk this flexible standard. See Dudum v.
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
10
Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011).
11
The Equal Protection Clause allows the States considerable leeway to enact
12
legislation that may appear to affect similarly situated people differently. Clements v.
13
Fashing, 457 U.S. 957, 962 (1982). There is an assumption that state laws are
14
constitutional unless they are based solely on reasons totally unrelated to the pursuit of
15
the State's goals and only if no grounds can be conceived to justify them. Id. at 963.
16
There only needs to be a rational relationship between the states law and a legitimate end.
17
Id.
18
Contrary to Plaintiffs assertions, the determination of whether to count or reject
19
ballots is based in law rather than being arbitrary. In addition, the voters claimed to be
20
identically situated are in fact not similarly situated. An early ballot is not the same as a
21
provisional ballot, and unsigned early ballots are not the same as an early ballot with a
22
mismatched signature. See generally, Miller v. Picacho Elementary Sch. Dist. No. 33, 179
23
Ariz. 178, 180, 877 P.2d 277, 279 (1994) (At first blush, mailing versus hand delivery
24
may seem unimportant. But in the context of absentee voting, it is very important.).
25
Early voting is governed by an entirely different article of the Arizona Revised Statutes
26
than provisional ballots. These procedures are governed by A.R.S. Tit. 16 art. 8, and art. 6,
27
respectively. The different treatment of these groups of voters is directly related to
28
Arizonas vital interest in establishing procedural safeguards to prevent undue influence,

-8-
1
2
Pima and Cochise counties handling of early and provisional ballots, even if
irregular, does not violate equal protection. Mere garden variety election irregularities,
meaning irregularities that do not constitute pervasive error[s] that undermine[] the
integrity of the vote . . . should be resolved through state-law remedies, regardless of
whether they control the outcome of the vote or election. Krieger v. City of Peoria,
2014 WL 4187500 at *3 (D. Ariz., Aug. 22, 2014); Bennett v. Yoshina, 140 F.3d 1218
(9th Cir. 1998). Garden variety election irregularities include human errors, negligence,
or even arbitrariness in counting or rejecting votes or an inadequate state response to
L.L.P.
LAW OFFICES
602.382.6000
10
Snell & Wilmer
fraud, ballot tampering, and voter intimidation. Ariz. Const. ar. VII 1.
illegal votes. Bennett, 140 F.3d 1218 at 1226.
11
In the third count of their complaint, Plaintiffs also allege violations of the Due
12
Process Clause. This count appears to be redundant with their equal protection counts, in
13
that it focuses exclusively on alleged denial of disparate treatment. (See Compl., Doc. 1,
14
at 91-92.) But insofar as Plaintiffs purport to raise a due process claim that is
15
independent of their equal protection claims, they face an even greater burden. As this
16
Court has recognized, a State does not violate the due process clause unless its action
17
was so willfully malicious as to interfere with the fairness of the election: the plaintiff
18
must demonstrate a pervasive error that undermines the integrity of the vote, not mere
19
garden variety election irregularities. See Vallejo, 2009 WL 1835115, *2.
20
In any event, public policy favors exhausting state law remedies first. Plaintiffs
21
Application represents an effort by the principal Plaintiff (Campaign for Ron Barber) to
22
bring what has been termed a sore loser law suit in federal court under 1983, which is
23
an attempt to obtain relief under a theory of federal law when the candidate does not
24
prevail, or does not believe he will prevail, under fair and adequate state-law remedies.
25
See Soules v. Kauaians for Nukolii Campaign Committee, 849 F.2d 1176, 1182 (9th Cir.
26
1988). This is a door federal courts refuse to risk opening, as it would only prolong the
27
election process and allow the elaborate state election contest procedures, designed to
28
assure speedy and orderly disposition or the multitudinous questions that may arise in the
-9-
electoral process to be superseded by a Section 1983 gloss. Id. at 1182-83. Thus, in
the spirit of restraint, federal courts have declined to hear cases of this nature, even in the
fact of equal protection and due process claims. Id.
B.
The Arizona Constitution Does Not Provide Plaintiffs with a Claim

(Count Four).
Plaintiffs seize on Ariz. Const. art. II, 21, to argue that the free exercise of their
6
right of suffrage has been infringed. As discussed above, there is no showing that
7
Plaintiffs were treated differently from, or not equally to, those similarly situated. Further,
8
they may only be entitled to injunctive relief if they can establish that a significant
9
number of votes cast were not properly recorded or counted. See Chavez v. Brewer,
10
222 Ariz. 309, 320, 214 P.3d 397, 408 (App. 2009). And only then if they were a special
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
11
class of voters for whose specific benefit provisions of the election code were enacted.
12
See McNamara v. Citizens Protecting Tax Payers, --- P.3d ----, 2014 WL 5486632, at *2
13
(Ariz. App. Oct. 30, 2014). These they do not establish.
14
Plaintiffs shifting counts of the actual number of votes they claim are at issue do
15
not yield confidence that they can do so, and, in any event, do not reach the significant
16
number threshold in this election, as they would not change its result. Plaintiffs further
17
fail to show that they are not simply members of the electorate, but instead are a special
18
class whose free exercise has been substantially infringed. See id.
19
A principle of Arizona election law that precedes statehood but remains true today
20
is that a court may not go behind the certificate of the board of canvassers, and contest
21
the election. See Territory ex rel. Sherman v. Bd. of Suprs of Mohave Cnty., 2 Ariz. 248,
22
253, 12 P. 730 (Terr. 1887). Plaintiffs Count Four asks the Court to do just that; it should
23
not be countenanced.
24
25
C.
The Help America Vote Act (HAVA) Does Not Forestall Dismissal
(Count Five).
26
HAVAs requirement that provisional ballots be provided does not impose a
27
requirement to count provisional ballots in any specific manner. Instead, HAVA requires
28
voters who are challenged or do not appear on the rolls at the polling place be provided
- 10 -
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
the ability to vote a provisional ballot on election day. See 52 U.S.C. 21082. Regarding
whether a provisional ballot should be counted as a valid ballot, however, HAVA
conspicuously leaves that determination to the States. Sandusky Co. Democratic Party
v. Blackwell, 387 F.3d 565, 577 (6th Cir. 2004). Specifically, HAVA provides that
provisional votes shall be counted [i]f the appropriate State or local election official . . .
determines that the individual is eligible under State law, the individuals provisional
ballot shall be counted as a vote in that election in accordance with State law. 52 U.S.C.
21082(a)(4) (emphasis added). The conditional if plainly rests on a determination by a
State official that a vote has been cast in accordance with State law. Despite Plaintiffs
10
insistence otherwise, HAVA, in plain language and application, does not disturb Arizona
11
state law concerning the determination of validity and counting of provisional ballots.2
12
D.
13
Arizona Election Law and Manuals Do Not Support Plaintiffs Claims

(Count Six).
As discussed above, the sole form of challenge to an election outcome in Arizona

14
is a state contest within the jurisdiction of the superior court. Arizona law does not
15
provide for an election contest on grounds that votes were inappropriately disqualified
16
from the official canvass. Compare A.R.S. 16-672(A) with Fla. Stat. Ann. 102.168(c)
17
(providing for an election contest premised on receipt of illegal votes and rejection of
18
legal votes.). Even assuming arguendo that Arizonas election code would permit court
19
review and rehabilitation of disqualified ballots, the Equal Protection Clause prohibits a
20
court from rehabilitating votes in an arbitrary manner. See Bush v. Gore, 531 U.S. 98,
21
104-06 (2000) (citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966)).
22
23
24
25
26
27
28
The Sixth Circuit, in an examination of HAVAs legislative history, has also concluded
that the statutes history fails to provide any indication that the federal law was intended
to require that ballots cast in the wrong precinct be counted. Sandusky at 578 (quoting
Senator Bond, ballots will be counted according to state law, and Senator Dodd
[w]hether a provisional ballot is counted or not depends solely on State law[;] nothing
in this compromise usurps the state or local election officials sole authority to make the
final determination with respect to . . . whether that vote is duly counted. 148 Cong. Rec.
at S10491, 10510, & 10504).
- 11 -
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
The selective vote rehabilitation sought here is closely analogous to a partial
recount rejected in Bush v. Gore. At issue there was whether the Florida Supreme Court
violated the Equal Protection Clause by ordering a review of disqualified ballots from the
2000 presidential election that resulted in an unequal opportunity for all such ballots to be
rehabilitated. Id. Because the state court in Bush v. Gore failed to ensure that every ballot
that may have been rehabilitated actually had an equal chance to be reviewed by election
officials, the Supreme Court struck down the entire corrective recount as a violation of the
Equal Protection Clause. Id. at 109-10. Plaintiffs request that this court provide an unequal
opportunity for voters whose ballots were disqualified to have votes reviewed and
10
rehabilitated. Arbitrary and imbalanced treatment of a class of voters is precisely what the
11
Supreme Court forbade in Bush v. Gore.
12
Furthermore, Arizona law does not empower courts to contradict election officials
13
judgment to disqualify ballots from inclusion in an official canvass. Election contests are
14
purely statutory, meaning that courts have no jurisdiction to deviate from the election
15
code. See, e.g., Grounds v. Lawe, 67 Ariz. 176, 186, 193 P.2d 447, 453 (1948)
16
([E]lection contests are not governed by the general rules of chancery practice but rather
17
are considered to be purely statutory.). Courts are not at liberty to construe the election
18
code to provide for legal remedies state lawmakers did not enact. Cf. McNamara v.
19
Citizens Protecting Tax Payers, No. 1 CA-CV 13-0551, 2014 WL 5486632, at *1 (Ariz.
20
Ct. App. Oct. 30, 2014) (holding courts could not imply a private cause of action to
21
enforce provisions of state campaign finance law).
22
Courts in election contests share concurrent authority with election officials to
23
disqualify illegal votes, see A.R.S. 16-672(A)(4), but only the counties may add legal
24
ones to the canvass. There are rigorous procedural safeguards in place to govern vote
25
tabulation.
26
Procedures Manual (Election Manual)3 at 171-88. And the county has sole discretion to
See, e.g., A.R.S. 16-531(A)-(G); Arizona Secretary of State Election
27
28
Available at http://www.azsos.gov/election/Electronic_Voting_System/manual.pdf.
- 12 -
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
review and rehabilitate disqualified votes, but may only do so prior to certifying the
official canvass. See Election Manual at 166 (noting the County Recorder may attempt to
contact voters whose early ballots appear to contain invalid signatures if time permits.).
It would contravene the legislatures intent for the court to do-over that process.
For example, neither the Secretary of State, nor the Court has authority to
rehabilitate unsigned early ballots. If the affidavit is insufficient, the vote shall not be
allowed. A.R.S. 16-552(B); see also, Reyes v. Cuming, 191 Ariz. 91, 94, 952 P.2d 329,
332 (Ct. App. 1997) (Without the proper signature of a registered elector on the outside,
an absentee ballot is void and may not be counted.). [E]lection statutes are mandatory,
10
not advisory, or else they would not be law at all. If a statute expressly provides that
11
non-compliance invalidates a vote, then the vote is invalid. Miller v. Picacho
12
Elementary Sch. Dist. No. 33, 179 Ariz. 178, 180, 877 P.2d 277, 279 (1994).
13
Finally, the government is not bound by the unauthorized acts of its agents.
14
Saulque v. United States, 663 F.2d 968, 974 (9th Cir. 1981) (citing Fed. Crop Ins. Corp. v.
15
Merrill, 332 U.S. 380 (1947)). Arizona law indicates that election officials should direct
16
voters who have moved to the polling place for the new address. A.R.S. 16-583(A).
17
Ballots cannot be counted if the voter is in the wrong precinct/voting area. Elections
18
Manual at 185. Thus, poll workers and other election officials were not permitted to tell
19
voters to cast provisional ballots in a place where the voter was not permitted to vote. To
20
the extent this occurred, the County cannot be bound by any poll workers isolated
21
mistakes. Even if the State and the Counties could arguably be bound by the poll workers
22
alleged inadvertent errors, this is not a valid reason for forcing the County Recorders to
23
validate votes that were cast in violation of state law. See United States v. Nez Perce Cnty,
24
16 F. Supp. 267, 269 (D. Idaho 1936) (stating, the [government] is not bound or estopped
25
by the acts of its agents in doing what the law does not sanction or permit.).
26
E.
27
Courts must deny injunctive relief in the context of elections where a partys
28
unreasonable delay in bringing its claim prejudices the opposing party or the
The Doctrine of Laches Applies to Bar Plaintiffs Claims.
- 13 -
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
administration of justice. Arizona Pub. Integrity Alliance Inc. v. Bennett, No. CV-14-
01044-PHX-NVW, 2014 WL 3715130, at *2 (D. Ariz. June 23, 2014) (citation omitted)
(holding laches barred a constitutional challenge to state nomination petition statute filed
two weeks before the state began signature validation). A plaintiffs delay in bringing a
last-minute legal challenge to an election procedure is patently unreasonable where the
plaintiff knew of the grounds for the challenge well in advance. Harris v. Purcell, 193
Ariz. 409, 412-13, 973 P.2d 1166, 1169-70 (1998) ([T]o wait until the last moment to
challenge an election matter places the court in a position of having to steamroll through
the delicate legal issues in order to meet [statutory deadlines].) (internal quotes and
10
brackets omitted); Tilson v. Mofford, 153 Ariz. 468, 470-71, 737 P.2d 1367, 1369-70
11
(1987) ([T]he procedures leading up to an election cannot be questioned after the people
12
have voted, but instead the procedures must be challenged before the election is held.)..
13
The requisite prejudice to trigger laches is present where granting the requested relief
14
would place an unfair burden on state election officials. Sotomayor v. Burns, 199 Ariz. 81,
15
83, 13 P.3d 1198, 1200 (2000) (holding laches barred action to force major revisions to
16
official analysis of a state ballot initiative on the eve of the printing deadline).
17
Plaintiffs claims are barred by laches because they unreasonably delayed bringing
18
this action until just before the Secretary of State must certify the final canvass. Plaintiffs
19
were all aware of their alleged disenfranchisement well in advance of bringing this action.
20
Plaintiffs claiming disenfranchisement based on rejection of their ballot for a missing or
21
invalid signature, (Compl., Doc. 1, at 13-14), could have challenged Arizonas election
22
procedure on this point prior to Election Day. Plaintiffs whose provisional ballots were
23
disqualified were on notice as of November 14, 2014 the statutory deadline for counties
24
to complete provisional ballot processing. See A.R.S. 16-584(E), Election Manual at 186
25
(discussing directions for tracking provisional ballot processing). Yet rather than proceed
26
to court immediately, plaintiffs held this action until the last possible moment.
27
The resulting timing of this litigation mere days before the Secretary of State must
28
certify the canvass is entirely unreasonable. This delay also results in substantial prejudice
- 14 -
because this Court must now decide on an expedited basis whether state officials must
undertake a massive and unprecedented review of rejected ballots on the eve of certifying
the election and triggering almost certain recount and election contest proceedings. Cf.
Sotomayor, 199 Ariz. at 83, 13 P.3d at 1200. Laches must bar Plaintiffs from derailing
Arizonas election procedures on grounds that could have been addressed by a court some
time ago.
F.
Plaintiffs Are Estopped from Bringing a Challenge to Long-Set Election

Procedures.
In Arizona, it has been frequently determined that if parties allow an election to

9
proceed in violation of the law which prescribes the manner in which it shall be held, they
10
may not, after the people have voted, then question the procedure. Kerby v. Griffin, 48
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
11
Ariz. 434, 444, 62 P.2d 1131, 1135 (1936). This principle limits a courts authority to
12
enjoin election proceedings to the time before the results are certified. See Tilson, 153
13
Ariz. at 470-71, 737 P.2d at 1369-70.
14
Plaintiffs are estopped to raise challenges to Arizona election procedures that
15
require rejection of ballots with insufficient signatures. State election procedure on this
16
point is clear and was available to plaintiffs well in advance of the election. Tilson, 153
17
Ariz. at 470-71, 737 P.2d at 1369-70. Plaintiffs did not raise any legal challenge to these
18
procedures prior to the election and therefore cannot do so now. Id.
19
20
G.
Plaintiff Ron Barber for Congress Claims are Futile and Should Be
Dismissed.
21
Any irregularity alleged in an election contest must reach enough votes to call the
22
outcome of the election into doubt. Miller v. Picacho Elementary Sch. Dist. No. 33, 179
23
Ariz. 178, 180, 877 P.2d 277, 279 (1994) (holding irregularity in delivering absentee
24
ballots was pervasive enough to set election aside).
25
Even if Count Six were properly before a an Arizona court as an election contest,
26
there could be no relief because Plaintiffs do not allege that county officials failed to
27
direct a sufficient number of electors to the correct polling places to call the outcome of
28
the election into question. See Miller, 179 Ariz. at 180. 877 P.2d at 279. Because this
- 15 -
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
deficiency would be fatal to an election contest in state court at this stage, this court
should dismiss Count Six for failure to state a claim.
Even if allegedly false statements by elections workers could cause votes not to be
counted, Plaintiffs do not allege that this occurred often enough to affect the results of the
election in CD-2. Plaintiffs allege that [t]he ballots of at least 31 voters were rejected in
similar circumstances. (Compl., Doc. 1, at 67.) Even if each and every one of those 31
ballots was cast for Congressman Barber and even if each of those voters were actually
Plaintiffs in this matter, the outcome of the election would not change. Simply, election
officials alleged errors do not have the force of law and cannot affect the outcome of the
10
election.
11
III.
CONCLUSION
12
For the foregoing reasons, Intervenors Martha McSally and McSally for Congress
13
respectfully request that this action be dismissed. Plaintiffs claims should be dismissed
14
for lack of standing and because they are untimely and inapposite (Counts One through
15
Five should have been brought prior to certification of the canvass by the counties; Count
16
Six is a premature, misplaced election contest). This Court should abstain from exercising
17
jurisdiction in this matter as the ongoing state election processes go forward.
18
In addition, Plaintiffs Counts One, Two and Three fail to state claims for
19
violations of equal protection and due process. The Arizona Constitution does not
20
provide Plaintiffs with a cognizable claim in their Count Four, nor does HAVA do that in
21
their Count Five. Finally, Arizonas election law and administrative manuals do not give
22
life to Plaintiffs Count Six. Plaintiffs claims are further barred by laches, estoppel, and
23
futility.
24
25
In sum, the statute-provided processes here must be permitted to advance to their

rightful endsthe law provides for nothing less, and nothing else.
26
27
28
- 16 -
DATED this 25th day of November, 2014.
2
SNELL & WILMER L.L.P.
3
4
By:
5
6
7
8
9
10
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 17 -
s/ Brett W. Johnson
Brett W. Johnson
Eric H. Spencer
One Arizona Center
400 E. Van Buren Street, Suite 1900
Attorneys for Martha McSally and
McSally for Congress
CERTIFICATE OF SERVICE
2
3
I hereby certify that on the 25th day of November, 2014, I electronically
transmitted the attached document to the Clerks Office using the CM/ECF system for
filing and transmittal of a Notice of Electronic Filing to the following CM/ECF
registrants:
7
8
9
Daniel Clayton Barr

Perkins Coie LLP
P.O. Box 400
Attorney for Plaintiffs
10
Snell & Wilmer
L.L.P.
LAW OFFICES
602.382.6000
11
s/ Tracy Hobbs
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 18 -

McSally Motion To Dismiss

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

McSally Motion To Dismiss

Hochgeladen von

Copyright:

Verfügbare Formate

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 1 of 18

Brett W. Johnson (#021527)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Snell & Wilmer

Ron Barber for Congress; Lea GoodwineCesarec; Laura Alessandra Breckenridge;

Case No. CV-14-2489-TUC-CKJ

INTERVENORS MARTHA MCSALLY

Before the Honorable Cindy K. Jorgenson

(ORAL ARGUMENT REQUESTED)

(EXPEDITED RULING REQUESTED)

Snell & Wilmer

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 2 of 18

Court can grant relief. Fed. R. Civ. P. 12(b)(6).

THE COURT LACKS JURISDICTION TO HEAR THIS MATTER.

particularized invasion of a legally protected interest); (2) causation (i.e., a fairly . . .

on injury-in-fact and redressability.

Plaintiffs Lack Standing to Invoke the Courts Jurisdiction.

Snell & Wilmer

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 3 of 18

election contest brought in the improper forum.

Untimely and Inapposite Claims Do Not Command Jurisdiction.

The sole form of action to challenge an election outcome in Arizona is an election

to bring a legal challenge to the conduct of an election as an election contest precluded

An Election Contest is Premature and Not Proper in this Court.

Snell & Wilmer

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 4 of 18

The Court Should Abstain, As Ongoing State Processes Go Forward.

recount pursuant to A.R.S. 16-661662. Administrative proceedings like the one at

decision to abstain from equitable proceedings against an on-going sex discrimination

Snell & Wilmer

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 5 of 18

Second, Plaintiffs suit implicates an important state interest. Election law, as it

role in structuring elections. Ariz. Libertarian Party v. Bennett, CV-11-856-TUC-CKJ,

2013 WL 1149808, at *8 (D. Ariz. March 19, 2013).

within five days after the election is certified (A.R.S. 16-673(A)).

exceptional circumstances identified by the Supreme Court in NOPSI.

exceptional circumstances identified in NOPSI, but no further.). These exceptional

Snell & Wilmer

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 6 of 18

their judicial functions. Sprint, 134 S. Ct. at 591.

case appropriate for abstention under the Younger doctrine.

efforts to establish a coherent policy with respect to a matter of substantial public

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 7 of 18

PLAINTIFFS DO NOT STATE CLAIMS FOR RELIEF.

Snell & Wilmer

Plaintiffs Fail to State Claims for Violations of Equal Protection and

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 8 of 18

June 26, 2009).

Snell & Wilmer

Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011).

Contrary to Plaintiffs assertions, the determination of whether to count or reject

respectively. The different treatment of these groups of voters is directly related to

Arizonas vital interest in establishing procedural safeguards to prevent undue influence,

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 9 of 18

integrity of the vote . . . should be resolved through state-law remedies, regardless of

or even arbitrariness in counting or rejecting votes or an inadequate state response to

Snell & Wilmer

illegal votes. Bennett, 140 F.3d 1218 at 1226.

garden variety election irregularities. See Vallejo, 2009 WL 1835115, *2.

Case 4:14-cv-02489-CKJ Document 13 Filed 11/25/14 Page 10 of 18

electoral process to be superseded by a Section 1983 gloss. Id. at 1182-83. Thus, in

fact of equal protection and due process claims. Id.

The Arizona Constitution Does Not Provide Plaintiffs with a Claim