CHRIS DEROSE
Clerk of the Superior Court
fy Clarissa Cruzs Deputy
i
a Date 11/08/2018 Tine 15:24:00
Roopali H, Desai (Bar No. 024295) Descripti
D, Andrew Gaona (Bar No. 028414 ie age eat
COPPERSMITH BROCKELMAN PLC Sarit Rea
3800 North Central Avenue, Suite 1900 LECTION conte
Phoenix, Arizona 04
' TOTAL AMOUNT
6023246030 Receipt 26078135
lesai@eblawyers.com
agaona@eblawyers.com
Sambo (Bo) Dul he No, gn0313)
Sarah R, Gonski (Bar No. 032567
PERKINS COIE LLP
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: 602.351.8000
Facsimile; 602.648.7000
Email: $Dul@perkinseoie.com
SGonski@perkinscoie.com
Attorneys for Plaintiff
Arizona Democratic Party
ARIZONA SUPERIOR COURT
MARICOPA COUNTY
ARIZONA DEMOCRATIC PARTY, No.
CV 2018-013995
Plaintiff,
VERIFIED COMPLAINT FOR
a STATUTORY SPECIAL ACTION
ADRIAN FONTES, in his official capacity
as MARICOPA COUNTY RECORDER,
Defendant.
Plaintiff the Arizona Democratic Party (“ADP”) brings this special action against
Defendant Adrian Fontes, Maricopa County Recorder (“Recorder” or “Defendant”), to
compel compliance with the Atizona Public Records Law, ARS. § 39-121 ef seq.
Plaintiff alleges as follows:
INTRODUCTION
1. Plaintiff ADP brings ‘this action to compel the Recorder to immediately
provide previously requested public records, including conditional provisional ballots, out-
of-precinct ballots, and ballots not counted, relating to the November 6, 2018 election. The
majority of these records are sought to allow Plaintiff to notify and assist eligible Arizonans
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in curing any defects in their ballots before the deadline to cure in Maricopa County, which
is Wednesday, November 14th, so that such ballots are counted,
2. On October 30, 2018, Plaintiff ADP sent a written public records request to
the Recorder, seeking, inter alia, a list of conditional provisional ballots cast on Election
Day and a list of carly ballots cast in which the signature had not yet been verified, was in
question, was missing, or was otherwise rejected. See Ex. 1.
3. In response to the public records request, the Recorder made a commitment
to provide responsive documents “on or immediately after November 7, 2018.” See Ex. 2.
However, the Recorder did not provide such records on November 7, 2018 and has not yet
provided them,
4. Upon information and belief, the Recorder has created and is maintaining a
list (or lists) of ballots that need further action in order to be counted, as well as ballots that
have been rejected for one or more reasons. This list (or lists) constitute a public records
under Arizona’s public records statutes, A.R.S. § 39-121, et. seq.
5. Upon information and belief, the Recorder maintains a “needs packet,”
checklist, status document, or other record that tracks the status of the Recorder’s
communication(s) with a voter for each ballot that needs further action in order to be
counted. This checklist, status document, or other record constitutes a public records under
Arizona’s public records statutes, A.R.S. § 39-121, ed, seq.
6. On November 7, 2018, Plaintiff ADP sent another written request to the
Recorder requesting any “document or report listing every Maricopa County voter who cast
an out-of=precinct ballot that will not be accepted for count in the November 6, 2018 general
election, and contact information for the voters who cast those ballots,” and any “document
or report listing every Arizona voter registered in another county who cast a ballot in
Maricopa County in the November 6, 2018 general election, and contact information for the
3.
ms Plaintiff ADP also renewed its public records request from October 30, 2018
voters who cast those ballots.” See Ey
with the Recorder numerous times, but no responsive records have been provided.
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8 Under Arizona law, the Recorder has a duty to “promptly” respond to public
records request, see A.R.S. § 39-121.01(D)(1), which has been defined as acting quickly or
without delay in the context of the circumstances of the case at issue, W, Valley View, Inc.
v. Maricopa County Sheriff's Office, 216 Ariz, 225, 230 (App. 2007).
9. Here, the Recorder has not complied with his statutory duty to respond
“promptly” under the circumstances, and failed to produce records on the date he promised
to produce records, If he is not compelled to immediately produce responsive records, the
deadline to cure conditional provisional ballots and ballots requiring further action due to a
signature mismatch, which is November 14 in Maricopa County, will pass, without the
efforts of the Arizona Democratic Party to assist individuals in curing, resulting in the
rejection of ballots cast by many eligible Arizona voters. The Recorder's delay in producing
the records is irreparably harming the ability of Plaintiff to assist eligible voters to ensure
that their vote counts in the November 2018 election. This delay is directly contrary to the
primary purpose of the Arizona Public Records Law, which is to provide for transparency,
so that the public “may monitor the performance of government officials and their
employees.” Phoenix New Times, Inc. v. Keegan, 201 Ariz. 344, 351 4 33 (App. 2001)
(citation omitted),
10. Plaintiff thus seeks to enjoin the Defendant from wrongfully withholding the
responsive records in violation of the Arizona Public Records Law.
NATURE OF THE PARTIES, JURISDICTION, AND VENUE
lf. This is a statutory special action to compel the production of public records
pursuant to the Arizona Public Records Law, A.R.S. § 39-121, et seq.
12. Plaintiff the Arizona Democratic Party is a state committee, as defined by 52
U.S.C. § 30101(15), dedicated to electing candidates of the Democratic Party to public
office throughout the State of Arizona, including to the office of United States Senate, The
ADP has many members and constituents who cast a provisional ballot or an carly ballot
that has not yet been counted in the November 2018 election and who seek to have their
ballot counted, To advance its mission, the ADP is also dedicated to ensuring that all ballots
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