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
REPLY IN SUPPORT OF MOTION
TO DISMISS VERIFIED COMPLAINT

Before the Honorable Cindy K. Jorgenson

(ORAL ARGUMENT REQUESTED)

(EXPEDITED RULING REQUESTED)

Through the hyperbole of Plaintiffs Response to Intervenors Martha McSally and

McSally for Congress Motion to Dismiss, the glaring holes in Plaintiffs case cannot be

missed: (1) four Plaintiffs do not have standing to bring specific claims on behalf of more

than 130 non-parties who chose not to bring suit in this matter, (2) Plaintiffs should have

sought equitable relief before the county boards of supervisors acted to ensure any

missing votes were counted, (3) the alleged specific unintentional isolated technical

errors were in no way pervasive to now justify selectively counting ballots, and (4) the

state processes are underway. Plaintiffs have failed to show why the Court should not

allow the state system to address Plaintiffs concerns. Instead, Plaintiffs request that the

Snell & Wilmer

L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

10

Court issue an injunction based on a number of votes that would still require a recount.

11

Despite Plaintiffs sensational and speculative arguments, this Court lacks

12

jurisdiction to hear Plaintiffs claims. Fed. R. Civ. P. 12(b)(1). And, even if jurisdiction

13

had attached, Plaintiffs fail to state claims for which this Court can grant relief. Fed. R.

14

Civ. P. 12(b)(6). Plaintiffs must show grounds for relief beyond the formulaic labels and

15

conclusions theyve put before the Court; their factual allegations must be enough for

16

them to raise a right to relief above the speculative level. See Bell Atl. Corp. v. Twombly,

17

550 U.S. 544, 555 (2007). This they do not do.

18

Lacking jurisdictional basis and standing to bring their claims in this Court,

19

Plaintiffs seek to delay the Secretary of State from certifying the canvass and, in this case,

20

from referring the matter to the Maricopa County Superior Court to order a recount. The

21

Secretarys duties are non-discretionary. (Doc. 18, at 4.) It would be contrary to legislative

22

intent and futile for this Court to attempt to intervene and insert its discretion in an arena

23

where state law provides none, and Plaintiffs have not, and cannot, claim pervasive errors

24

sufficient to give rise to a 1983 claim.

25

Glaringly missing from Plaintiffs Response (Doc. 21) is any standing argument

26

allowing them to bring claims on behalf of the other 129 (or 130 or 156 as referenced in

27

various iterations) alleged voters who allegedly did not have their vote counted. This is

28

simple Black Letter law. See Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 39
-2-

L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

Snell & Wilmer

(1976) (applying standing analysis to test the allegations of each of the individual

respondents and the respondent organizations . . . for sufficiency); Sprint Commcns Co.,

L.P. v. APCC Servs., Inc., 554 U.S. 269, 273-74 (2008) (internal citations and some

quotation marks omitted). Therefore, Plaintiffs do not dispute that they have no standing

on behalf of the non-appearing declarants or that they lack allegations of pervasive errors

sufficient for a candidate to object on behalf of an entire class of affected voters. Also

missing is any showing that Ron Barber for Congress interests here are more than

speculative. Speculative claims are insufficient to show redressability. See Sprint

Commcns Co., 554 U.S. at 273-74.

10

Although irrelevant due to the lack of jurisdictional basis and the lack of any

11

allegation of pervasive violations, Plaintiffs continual references to 133 alleged votes that

12

were allegedly not counted gloss over a missing essential element: Plaintiffs Complaint

13

does not show any poll worker conduct was intended to deprive Plaintiffs (or the

14

missing 130 other non-parties) of Constitutional rights. See Vallejo v. City of Tucson, No.

15

CV 08-500 TUC DCB, 2009 WL 1835115, *2-3 (D. Ariz. June 26, 2009). Isolated

16

technical issues on the part of election workers processing more than 200,000 voters do

17

not justify halting the electoral process. See id.

18

Certainly, the votes of qualified voters are constitutionally protected. Plaintiffs,

19

however, do not proffer validly cast, qualified votes for rehabilitation. Instead, they

20

request inclusion of votes in violation of state election law, merely because the voters are

21

eligible to vote in the general election for the second district. (Doc. 22, at 3.) In

22

construing these ballots as constitutionally protected (Doc. 22, at 2, 7), Plaintiffs ignore

23

multiple provisions of Arizona election law, as well as extensive federal case law in

24

support of the application of those laws. See, e.g., Krieger v. City of Peoria, 2014 WL

25

4187500 at *3 (D. Ariz., Aug. 22, 2014) (noting the existence of state law remedies for

26

claims like those Plaintiffs bring); Bennett v. Yoshina, 140 F.3d 1218 (9th Cir. 1998).

27

Further, contrary to Plaintiffs protestations, abstention is warranted. The automatic

28

recount provided for under state law is a core process bearing on the States interest in
-3-

L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

Snell & Wilmer

enforcing the orders and judgments of its courts. See ReadyLink Healthcare, Inc. v. State

Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014); see also Ariz. Libertarian Party v.

Bennett, CV-11-856-TUC-CKJ, 2013 WL 1149808, at *8 (D. Ariz. March 19, 2013)

(describing States interest in enacting reasonable election regulations). Plaintiffs

without providing any reasonable criteria for this Courts use in evaluating non-appearing

voters individual claimsadvocate for throwing the state process away and for counting

every vote, regardless of the standards provided by state law. (Doc. 21, at 8-10.)

The Court should abstain from replacing the trained judgment of election officials

with its own. See Vallejo, 2009 WL 1835115, *3-4. Similarly, it should abstain from

10

intervening where Plaintiffs have not allowed the states processes to exhaust. See Soules

11

v. Kauaians for Nukolii Campaign Committee, 849 F.2d 1176, 1182 (9th Cir. 1988).

12

Arizona has an orderly process, which should be allowed to run its course, especially

13

because Plaintiffs have failed to show any pervasive violations of Constitutional rights. If

14

every state election irregularity were considered a federal constitutional deprivation,

15

federal courts would adjudicate every state election dispute, and the elaborate state

16

election contest procedures would be rendered superfluous. Soules, 849 F.2d at 1183.

17

The U.S. Supreme Court noted in Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam)

18

that federal courts should abstain from interfering with state processes in the run-up to

19

elections. This should apply a fortiori to emergency injunctive relief sought in the midst

20

of post-election certification and counting processes. Especially where so many of

21

Plaintiffs complaints (e.g., those regarding the process for signature matching, statutory

22

bar to counting wrong-precinct votes) could have been brought well prior to now.

23

Plaintiffs spend a great deal of time chastising alleged actions of the poll workers

24

and election department.1 Their claims regarding this conduct fail to recognize that it is

25

26
27
28

In proceedings earlier this month before the Pima County Superior Court, Plaintiffs
counsel Mr. Barr argued that all the parties had to do was rely upon what elections
officials have said here, about processes used to determine whether votes were valid.
(Exhibit A, pertinent portions of transcript of proceedings in Rawson v. Nelson, No. C20145865, dated November 10, 2014, at 94:2095:9.) Yet now Plaintiffs claim that
elections officials sensible determinations that certain votes are invalid should not be
countenanced.
-4-

L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

Snell & Wilmer

the right to vote as the legislature has prescribed [that] is fundamental. See Bush v.

Gore, 531 U.S. 98, 104 (2000). It is necessary for the Legislature to establish voting

standards to protect the States indisputably compelling interest in preserving the

integrity of its election process. Eu v. San Francisco Cnty. Democratic Cent. Comm., 489

U.S. 214, 231 (1989). Ballots that violate the Legislatures reasonable prescriptions

should not be counted, regardless of the arbitrary case-by-case standards that Plaintiffs

want to apply after the fact. In any event, this Court is not the forum in which to claim that

they should be.

For example, Plaintiffs cite the failure of poll workers to direct voters who moved

10

to a different precinct. (Doc. 21, at 12.) A.R.S. 16-583(A) requires this of a poll

11

worker only when someone appears who is on the inactive voter list. Id. Yet Plaintiffs

12

bring no claims as to people who were actually on that list. The law imposes additional

13

obligations with respect to those voters who the counties have put on the inactive voter

14

list, to ensure that they have the opportunity to cast a ballot if that determination was in

15

error. See A.R.S. 16-583(A). The law does not impose this obligation with respect to all

16

voters who have moved at any time.

17

Plaintiffs attempts to contort Chavez v. Brewer, 222 Ariz. 309, 320, 214 P.3d 397,

18

408 (App. 2009) to support their claims are similarly unavailing. No authority has

19

interpreted Chavez to provide a private right of action after an election to enjoin

20

certification of election results because the ballots were not properly counted. As with

21

most of the cases cited by Plaintiffs, Chavez concerned a pre-election challenge to the use

22

of non-HAVA compliant voting machines. See id. In Arizona, after an election, votes are

23

presumed properly counted by state election officials, unless a contestant can show an

24

error in vote tabulation that calls the entire outcome of the election into

25

doubt. See A.R.S. 16-672(A)(5). Again, as in Chavez, a pervasive failure must exist,

26

which it does not here. Simply, Plaintiffs own declarations reflect that votes were

27

unlawfully cast, disqualified, and then not timely rehabilitated.

28
-5-

L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

Snell & Wilmer

This Court may not rehabilitate a narrow selection of individual votes within

several different categories now, absent a greater showing of pervasive and intentional

misconduct on the part of election officials as to each of those categories, which showing

simply does not exist here. As the Secretary of State points out in his joinder, these voters

had remedies in different places and at different times. (Doc. 19, at 2.) Just because

Plaintiffs are without recourse at this point in this Court does not mean they were without

recourse at all. For example, voters can report knowing misapplications of Arizona law or

knowing failures to comply with Arizona law by election officials to the county attorney

for criminal investigation and possible criminal prosecution. See A.R.S. 16-1009

10

(public officer who knowingly fails or refuses to perform duty prescribed by election law

11

guilty of class 3 misdemeanor); 16-1010 (any person charged with duty under election law

12

who knowingly refuses to perform it, and knowingly acts in violation of election law,

13

guilty of class 6 felony).

14

Plaintiffs discount the sensible and time-tested edict that violations of Arizona state

15

election law affecting the outcome of an election should be resolved in an election

16

contest. (Doc. 21, at 15.) If Plaintiffs claims were of pervasive error, which they are not,

17

such serious errors and omissions in ballot tabulation could be challenged under A.R.S.

18

16-672(A)(4) and (5) and, thus meet the high standard required by the legal authorities

19

cited by Plaintiffs. Instead, Plaintiffs appear to understand their claims are futile, but hope

20

that this Court will vindicate them in contradiction of Arizona law.

21

Three electors and one candidates effort to perform an end-run around Arizona

22

law should be rejected. If Plaintiffs did not like the orderly process upon which this

23

election was administered, their time to object was prior to the election. Kerby v. Griffin,

24

48 Ariz. 434, 444, 62 P.2d 1131, 1135 (1936); Tilson v. Mofford, 153 Ariz. 468, 470-71

25

(1987).

26
27

For the foregoing reasons, Intervenors Martha McSally and McSally for Congress
respectfully request that this action be dismissed.

28
-6-

DATED this 26th 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
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-

s/ Brett W. Johnson
Brett W. Johnson
Eric H. Spencer
One Arizona Center
400 E. Van Buren Street, Suite 1900
Phoenix, AZ 85004-2202
Attorneys for Martha McSally and
McSally for Congress

CERTIFICATE OF SERVICE

2
3

I hereby certify that on the 26th 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:

Daniel Clayton Barr

Perkins Coie LLP
P.O. Box 400
Phoenix, AZ 85001-0400
Attorney for Plaintiffs

8
9
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

s/ Tracy Hobbs
20530599

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-8-