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Daniel C. Barr (Bar No. 010149)

PERKINS COIE LLP
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: 602.351.8000
Facsimile: 602.648.7000
Email: DBarr@perkinscoie.com
Kevin J. Hamilton (WSBA No. 15648)
Pro Hac Vice Application Pending
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Telephone: 206.359.8000
Facsimile: 206.359.9000
Email: KHamilton@perkinscoie.com

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Attorneys for Plaintiffs Ron Barber for

Congress, Lea Goodwine-Cesarec; Laura
Alessandra Breckenridge; and Josh Adam
Cohen.

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Ron Barber for Congress; Lea GoodwineCesarec; Laura Alessandra Breckenridge; and
Josh Adam Cohen,

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Plaintiffs,

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v.
Ken Bennett, in his official capacity as
Secretary of State of the State of Arizona; the
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
LEGAL124316071.1

No. 4:14-CV-02489-TUC-CKJ
PLAINTIFFS OPPOSITION TO
INTERVENORS AND
DEFENDANT BENNETTS
MOTION TO DISMISS

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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; and Richard Searle, in
his official capacity as a member of the
Cochise County Board of Supervisors,

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Defendants.

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LEGAL124316071.1

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TABLE OF CONTENTS

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I.
II.

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III.

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IV.

Page
INTRODUCTION .................................................................................................... 1
THE COURT HAS JURISDICTION....................................................................... 1
A.
Standing ......................................................................................................... 1
B.
Plaintiffs Claims Are Not Untimely And May Be Heard By This
Court .............................................................................................................. 3
C.
The Court Should Not Abstain to State Processes That Have
Already Failed Plaintiffs And Which Provide No Opportunity For
Relief ............................................................................................................. 4
1.
Younger Abstention Is Unwarranted ................................................. 5
2.
Burford Abstention Is Unwarranted ................................................... 7
PLAINTIFFS STATE CLAIMS FOR RELIEF ....................................................... 9
A.
The Standard for a Motion to Dismiss .......................................................... 9
B.
Plaintiff Have Stated Plausible Claims ....................................................... 10
1.
Plaintiffs Have Adequately Pled Claims For Violations of the
Equal Protection And Due Process Clauses of the Fourteenth
Amendment ...................................................................................... 10
2.
Plaintiffs Have Adequately Pled Claims Under the Arizona
Constitution ...................................................................................... 13
3.
Plaintiffs Have Adequately Pled A Claim Under HAVA ................ 13
4.
Plaintiffs Have Stated a Plausible Claim for Relief Under
Arizona Statutory and Administrative Law ..................................... 14
CONCLUSION ...................................................................................................... 15

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LEGAL124316071.1

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I.
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Stripped to its essence, the motion to dismiss filed by Intervenors Martha McSally
and Martha McSally for Congress advances a startling proposition: citizens whose votes
were improperly rejected by Arizonas election apparatus have no remedy. 1 According to
Intervenors, the States arbitrary and/or erroneous rejectionin many cases in direct
violation of Arizona lawof ballots cast by eligible, registered voters poses no
constitutional concerns and must be left to the election officials who have already refused
to count the ballots in question. Intervenors further contend that a post-certification
election contest is the only forum for hearing Plaintiffs claimsbut that these claims
cannot be heard in an election contest.

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INTRODUCTION

Intervenors position, simply put, is that a state can through error or arbitrary
application of its laws disenfranchise its citizens without any compelling justification for
its actions. That is not the law and never has been. It runs squarely contrary to Supreme
Court precedent. And it is frankly offensive to the most basic principles of our democratic
system of government. Intervenors motion to dismiss should be denied.

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II.
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THE COURT HAS JURISDICTION

At the outset, the Court should reject Intervenors blunderbuss arguments that the
Court lacks jurisdiction to hear Plaintiffs lawsuit challenging the States undisputed
refusal to count ballots by individual plaintiffs and other eligible, Arizona registered
voters.

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A.
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Standing

Intervenors first contend that Plaintiffs lawsuit should be dismissed because

Plaintiffs supposedly lack standing to invoke the Courts jurisdiction. The assertion that
the Court should dismiss the case on standing grounds is puzzling, because Intervenors do
not even attempt to argue that individual plaintiffs Lea Goodwine-Cesarec, Lauren

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The Secretary of State has filed a Notice of Joinder in Proposed Interveners

Motion to Dismiss. See Dkt. #19. Plaintiffs opposition responds to Intervenors motion
as joined by the Secretary.
LEGAL124316071.1

Alessandra Breckenridge, and Josh Adam Cohen lack standing. In other words, there is

no disputeat least as to the individual plaintiffsthat this case was brought by plaintiffs

who have Article III standing. The motion to dismiss on standing grounds should be

rejected for this reason alone.

Intervenors contention that Ron Barber for Congress lacks standing fares no better

and is squarely contradicted by their own intervention in this lawsuit. According to

Intervenors, Martha McSally has an interest in being declared the candidate with the

most votes by the Secretary of State and any attempt to count disputed ballots

potentially affects the outcome of the election. Motion to Intervene at 2-3. Indeed,

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according to Intervenors, McSallys interest in the outcome of this election, potentially

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dependent on the resolution of this matter, cannot be overstated. Id. at 7.

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Aptly put.

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A candidate for office plainly has a direct, urgent interest in the State counting all

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lawfully cast ballots and utilizing election procedures that comport with state and federal

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law. This is hardly a novel proposition. It is well-established that political parties and

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candidates have standing to represent the rights of voters. Bay Cnty. Democratic Party v.

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Land, 347 F. Supp. 2d 404, 422 (E.D. Mich. 2004) (The Court believes that the prospect

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of recurrence at the upcoming general election is beyond speculation: the plaintiffs will

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suffer an injury in fact if provisional ballots cast by voters who are eligible under State

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law are not counted.); see also Walgren v. Board of Selectmen of Amherst, 519 F.2d 1364,

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1365 n. 1 (1st Cir.1975) (observing that [w]e have in the past indicated that a candidate

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has standing to raise the constitutional rights of voters); Mancuso v. Taft, 476 F.2d 187,

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190 (1st Cir. 1973) (A candidate for public office . . . is so closely related to and

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dependent upon those who wish to vote for him and his litigation will so vitally affect

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their rights that courts will relax the rule of practice (which is designed to assure vibrant

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representation of the vital interests of non-parties) and will permit a candidate to raise the

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constitutional rights of voters.).

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The Ron Barber for Congress campaign has a direct stake in whether the State
LEGAL124316071.1

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counts all votes lawfully cast in an election in which the candidates are separated by the

narrowest of margins, and can represent the interests of voters who have been

disenfranchised. So do Intervenors. All plaintiffs have standing.

B.

Plaintiffs Claims Are Not Untimely And May Be Heard By This

Court

Consistent with their view that disenfranchised voters have no remedy, Intervenors
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next claim that Plaintiffs claims are either brought too early or too late. Motion to
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Dismiss at 3 (Mot.). Given the nature of Plaintiffs claims, they obviously did not and
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could not know that the contested ballots had been rejected until after (or, in some cases,
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immediately before) Election Day. As set out in the declarations supporting Plaintiffs
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application for a temporary restraining order (the TRO Motion), after they learned that
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their ballots had been wrongfully rejected, the individual plaintiffs promptly requested
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that local election officials remedy their errors. Likewise, once the Barber Campaign
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began receiving reports of wrongfully rejected ballots, it promptly undertook an
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investigation. It then presented well over 100 declarations from voters to the Pima and
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Cochise County Boards of Supervisors and asked the Boards to delay their certification of
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the election results until they had investigated the matter and counted wrongfully rejected
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ballots. The local Boards of Supervisors refused to do so. Insteadnearly a week prior
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to the deadline (Pima County) or four full days prior to the deadline (Cochise County)
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both Boards certified the election results. The very day after Cochise County certified its
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election results, Plaintiffs sought assistance from the Secretary of State and, only one
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business day later, filed this lawsuit.

Plaintiffs could hardly have moved more

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expeditiously.
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Moreover, the Secretary of State has not yet certified the results of the election or
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determined whether a recount is necessary. The deadline for him to do so is December 1.
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The record before this Court has been developed, submitted to both counties and the
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Secretary of State, and is unchallenged as a factual matter. 2 With relief from this Court,

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The Intervenors do not challenge the registration status or other relevant details of

LEGAL124316071.1

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there remains an opportunity for the contested ballots at issue here to be included in the

certification of the election results. Plaintiffs lawsuit was not brought too late.

Nor is Plaintiffs lawsuit brought too early. As explained at length in Plaintiffs

TRO Motion at 15-16, Plaintiffs would not be able to raise the claims at issue here in a

post-certification election contest. Intervenors candidly concede that Plaintiffs cannot

bring Counts 1-5 in a state election contest, Mot. at 3, and thus that an election contest

provides no remedy for the vast bulk of the claims presented here, including all of

Plaintiffs federal law claims. 3

Moreover, Intervenors confused attempt to dangle the carrot of a state law election

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contest for Plaintiffs Sixth Claim for Relief (ballots rejected in violation of state law) is

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unavailing. First, Intervenors contend the Sixth Claim for Relief could be heard in an

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election contest. Mot. at 3 (On the other hand, Count Six is premature because it

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represents an unripe election contest brought in the improper forum.) But Intervenors

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then argue Arizona law does not provide for an election contest on grounds that votes

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were inappropriately disqualified from the official canvass. Mot. at 11 (emphasis added).

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That is precisely what the Sixth Claim allegeselection officials did not count votes

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lawfully cast under Arizona law.

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Intervenors position is not that the voters who were wrongfully disenfranchised

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should have their claims heard some other time. Rather, Intervenors do not believe these

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voters should ever have an opportunity to have their claims heard or their votes counted.

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Respectfully, that cannot be the law.

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C.

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The Court Should Not Abstain to State Processes That Have Already
Failed Plaintiffs And Which Provide No Opportunity For Relief

Plaintiffs have standing, this lawsuit is timely brought, and therefore this Court has
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even a single of the 133 wrongfully rejected ballots plaintiffs have placed before the
counties, the Secretary of State, or this Court. Plaintiffs factual allegations, indeed, are
amply supported
by the record and remain, to this day, undisputed.
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For the same reasons, Intervenors claims that the complaint is barred by laches
and estoppel are without merit. Moreover, these state law doctrines plainly cannot
prevent the Court from acting as necessary to address federal constitutional violations.
LEGAL124316071.1

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subject-matter jurisdiction. Nonetheless, Intervenors ask the Court to deny Plaintiffs

relief and abstain in favor of state processes that offer Plaintiffs no possibility of relief.

The Court should decline this invitation.

Jurisdiction existing, . . . a federal courts obligation to hear and decide a case is

virtually unflagging. Sprint Commcns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013)

(quoting Colo. R. Water Conserv. Dist. v. United States, 424 U.S. 800, 817 (1976)); see

also New Orleans Pub. Serv., Inc. v. Council of City of New Orleans (NOPSI), 491 U.S.

350, 358 (1989) (We have no more right to decline the exercise of jurisdiction which is

given, than to usurp that which is not given. The one or the other would be treason to the

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Constitution.). Abstention from the exercise of federal jurisdiction, therefore, even in

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the presence of parallel state proceedings, . . . is the exception, not the rule. Sprint

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Commcns, Inc., 134 S. Ct. at 593 (quoting Haw. Housing Auth. v. Midkiff, 467 U.S. 229,

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236 (1984)). [O]nly exceptional circumstances justify a federal courts refusal to decide

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a case in deference to the States. NOPSI, 491 U.S. at 368. Intervenors offer two

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arguments for federal abstention, neither of which is plausible.

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1.

Younger Abstention Is Unwarranted

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First, Intervenors ask the Court to dismiss this lawsuit under the doctrine of

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Younger abstention, which allows federal courts to abstain in deference to pending state

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judicial or administrative proceedings in three exceptional categories of cases. Sprint

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Commcns, Inc., 134 S. Ct. at 592. Those categories are (1) state criminal prosecutions,

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(2) civil enforcement proceedings, and (3) civil proceedings involving certain orders

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that are uniquely in furtherance of the state courts ability to perform their judicial

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functions. Id. at 588. Intervenors implicitly concede, as they must, that neither the first

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nor the second category has any bearing here.

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proceeding whatsoever, and the only administrative proceeding Intervenors invoke is

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the canvass certification by the Secretary of State. Such certification is plainly not a state

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criminal prosecution or a civil enforcement proceeding.

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There is no pending state judicial

Nor does it fit the third discrete category of civil proceedings at the core of
LEGAL124316071.1

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Arizonas court system, implicating the States interest in enforcing the orders and

judgment of its courts. ReadyLink Healthcare, Inc. v. State Compensation Ins. Fund,

754 F.3d 754, 759-60 (9th Cir. 2014) (quoting Juidice v. Vail, 430 U.S. 327, 335 (1977)

and Sprint Commcns, Inc., 134 S. Ct. at 588)). As the Ninth Circuit has explained,

Core orders involve the administration of the state judicial process, id. at 760, such as

an appeal bond requirement, see NOPSI, 491 U.S. at 368, or a civil contempt order, see id.

The certification of the canvass by the Secretary of State is an administrative act that does

not necessarily entail any judicial involvement, let alone a civil action implicating the

core interests of Arizonas court system. See, e.g., Wexler v. Lepore, 385 F.3d 1336,

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1341 (11th Cir. 2004) (abstention unwarranted in federal action challenging election

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recount system in Florida under Federal Constitution notwithstanding pendency of state-

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court litigation; the parallel [federal] proceedings . . . do not present the undue

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interference in state court proceedings necessary to apply Younger . . . [n]or . . . usurp the

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state courts ability to perform their judicial functions.) (quoting NOPSI, 491 U.S. at

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368).

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Because none of the three NOPSI categories applies, Younger abstention is not

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permitted here. This categorical analysis forestalls any consideration of whether the

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Middlesex factors counsel in favor of Younger abstention. See Sprint Commcns, Inc.,

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134 S. Ct. at 593-94 (The three Middlesex conditions recited above were not dispositive;

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there were, instead, additional factors appropriately considered by the federal court before

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invoking Younger. . . . [W]e today clarify and affirm that Younger extends to the three

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exceptional circumstances identified in NOPSI, but no further.); ReadyLink Healthcare,

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Inc., 754 F.3d at 758 (explaining role of Middlesex factors). Side-stepping the NOPSI

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categories, Intervenors erroneously contend that the Middlesex factors by themselves

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compel this Court to abstain. See Mot. to Dismiss at 4-5 (citing San Jose Silicon Valley

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Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1092

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(9th Cir. 2008) (applying Middlesex factors)). As explained above, however, the NOPSI

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categories are dispositive, and this case fits none of them.

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Even if the Middlesex factors were relevant, they weigh against Younger abstention

here. First, there is no ongoing state judicial proceeding, Middlesex, 457 U.S. at 432,

only an abstract, hypothetical future challenge to the Secretary of States canvass

certification. See, e.g., Thomas v. Tex. State Bd. of Med. Examrs, 807 F.2d 453, 456 (5th

Cir. 1987) (The mere availability of state judicial review of state administrative

proceedings does not amount to the pendency of state judicial proceedings within the

meaning of Huffman [v. Pursue, Ltd., 420 U.S. 592 (1975)].).

Second, the certification does not implicate important state interests. See, e.g.,

Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 883 (9th Cir. 2011) (Unless

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interests vital to the operation of state government are at stake, federal district courts

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must fulfill their unflagging obligation to exercise the jurisdiction given them.)

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(quoting Miofsky v. Superior Court of the State of Cal., 703 F.2d 332, 338 (9th Cir. 1983)).

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Judicial proceedings or disciplinary proceedings which are judicial in nature are the type

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of proceeding that does implicate an important state interest. However, a state proceeding

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which is nonjudicial or involves the interpretation of completed legislative or executive

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action is not of that character. San Jose Silicon Valley Chamber, 546 F.3d at 1094

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(quoting Gilbertson v. Albright, 381 F.3d 965, 977 (9th Cir. 2004)). The certification

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plainly falls into the latter category. See Ohio Civil Rights Commn v. Dayton Christian

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Sch., Inc., 477 U.S. 619, 627 & n.2 (1986) (Younger abstention applies to state

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administrative proceedings only if they are judicial in nature).

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Third, even the hypothetical state judicial proceeding Intervenors invoke would not

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provide an adequate opportunity . . . to raise constitutional challenges, Middlesex, 457

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U.S. at 432, because, by Intervenors own account, Arizona law does not provide for an

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election contest on grounds that votes were inappropriately disqualified from the official

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canvass. Mot. at 11 (emphasis added).

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For these reasons, Younger abstention is improper in this case.

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2.

Burford Abstention Is Unwarranted

Intervenors also urge the Court to abstain jurisdiction under Burford v. Sun Oil Co.,
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319 U.S. 315, 334 (1943). But this argument is even less credible. Burford abstention

represents an extraordinary and narrow exception to the duty of a District Court to

adjudicate a controversy properly before it. City of Tuscon v. U.S. West Commcns, Inc.,

284 F.3d 1128, 1133 (9th Cir. 2002) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S.

706, 727-28 (1996)). There are three requirements that must be met for a court to abstain

under Burford: (1) the state must have chosen to concentrate suits challenging the actions

of the agency involved in a particular court; (2) the federal issues cannot be easily

separated from complex state law issues with respect to which state courts might have

special competence; and (3) federal review might disrupt state efforts to establish a

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coherent policy. Wynnyk v. Jackson Cnty., 99 Fed. Appx 134, 135 (9th Cir. 2004) (citing

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United States v. Morros, 268 F.3d 695, 705 (9th Cir. 2001)).

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First, Intervenors have identified no question of state law that bears on Plaintiffs

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federal constitutional challenges, let alone one that is so difficult that it transcends the

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result in this case, which concerns the paramount right to vote. See NOPSI, 491 U.S. at

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361 (The present case does not involve a state-law claim, nor even an assertion that the

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federal claims are in any way entangled in a skein of state-law that must be untangled

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before the federal case can proceed . . . .) (quoting McNeese v. Bd. of Educ. for Cmty.

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Unit Sch. Dist. 187, Cahokia, 373 U.S. 668, 674 (1963)).

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Second, Intervenors fail to explain how enforcement of that federal right to vote

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would disrupt any state efforts to establish a coherent policy. Id. It is undoubtedly

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true that Arizona has a highly regulated system for regulating elections.

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Dismiss at 7. But Intervenors fail to make any argument that counting every legitimate

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vote would somehow impair Arizonas efforts to achieve uniformity and consistency in

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administering elections. See, e.g., NOPSI, 491 U.S. at 362 (While Burford is concerned

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with protecting complex state administrative processes from undue federal interference, it

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does not require abstention whenever there exists such a process, or even in all cases

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where there is a potential for conflict with state regulatory law or policy.) (quoting

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Colo. R., 424 U.S. at 815-16). To the contrary, counting every vote would advance
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Mot. to

Arizonas policy in fair elections. See, e.g., Siegel v. LePore, 234 F.3d 1163, 1173 (11th

Cir. 2000) (The case before us does not threaten to undermine all or a substantial part of

Floridas process of conducting elections and resolving election disputes. Rather,

Plaintiffs claims in this case target certain discrete practices set forth in a particular state

statute. . . . This case does not threaten to undermine Floridas uniform approach to

manual recounts; indeed, the crux of Plaintiffs complaint is the absence of strict and

uniform standards for initiating or conducting such recounts.).

For all these reasons, neither Younger nor Burford abstention is appropriate.

III.

PLAINTIFFS STATE CLAIMS FOR RELIEF

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Each of the statutory and federal claims advanced by Plaintiffs is based on well-

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established case law and supported by well-pleaded facts. Indeed, Plaintiffs claims are

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supported by the sworn (and undisputed) testimony of 133 voters explaining the

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circumstances in which their ballots were wrongfully rejected.

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A.

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Intervenors notably fail to set out the standard governing their motion to dismiss.

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In their motion, Intervenors essentially ask the Court to disregard the facts pled by

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Plaintiffs and to draw every factual inference against Plaintiffs. This rather decidedly has

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things backward.

The Standard for a Motion to Dismiss

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A pleading must contain nothing more than a short and plain statement of the

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claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). A complaint

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may not be dismissed for failure to state a claim unless it appears beyond doubt that the

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plaintiff can prove no set of facts in support of [the] claim which would entitle [the

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plaintiff] to relief.

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CV061958PCTSMM, 2006 WL 2927459, at *2 (D. Ariz. Oct. 11, 2006) (quoting Usher v.

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City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (alterations in original)). In

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assessing a motion to dismiss, the court must presume all factual allegations of the

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complaint to be true and draw all reasonable inferences in favor of the nonmoving party.

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Id. (citing Usher, 828 F.2d at 561).

LEGAL124316071.1

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Under this exacting standard, Intervenors motion to dismiss plainly fails.

Intervenors cannot demonstrate that, drawing all reasonable inferences in favor of

Plaintiffs, there is no set of facts supporting the asserted claims that would entitle

Plaintiffs to relief. Plaintiffs allege widespread disenfranchisement of eligible, registered

voters in the second congressional district due to a mix of systemic maladministration of

the election and arbitrary and unconstitutional application of election statutes and

administrative practices that violate voters fundamental due process and equal protection

rights. On a motion to dismiss, Intervenors cannot ask the Court to simply disregard the

factual allegations supporting these claims. They cannot ask the Court to accept their own

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characterization of eventsthat the disenfranchisement of over 130 Arizonans is a

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garden variety form of irregularity that these voters must suffer in silence.

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B.

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Plaintiff Have Stated Plausible Claims

1.

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Plaintiffs Have Adequately Pled Claims For Violations of the

Equal Protection And Due Process Clauses of the Fourteenth
Amendment

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Plaintiffs have stated claims under the Equal Protection and Due Process Clauses

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of the Fourteenth Amendment. It is beyond question that all qualified voters have a

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constitutionally protected right to vote, and to have their votes counted. Reynolds v. Sims,

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377 U.S. 533, 554 (1964) (citations omitted). Nonetheless, Intervenors argue Pima and

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Cochise counties handling of early and provisional ballots, even if irregular, does not

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violate equal protection. Mot. at 9. Intervenors baldly characterize the widespread

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disenfranchisement of Arizonans at issue in this lawsuit as a garden variety election

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irregularity and ask the Court to draw all factual inferences against Plaintiffs in accepting

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this characterization. Intervenors position is contrary to well-established precedent and

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the standards governing this motion to dismiss.

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First, Plaintiffs have adequately pled a claim that the failure to count the contested

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ballots violates the Equal Protection Clause because it unduly burdens the fundamental

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right to vote. The Supreme Court has held repeatedly that [h]owever slight th[e] burden

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[on voting rights] may appear, . . . it must be justified by relevant and legitimate state
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interests sufficiently weighty to justify the limitation. Crawford v. Marion Cnty. Election

Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling opinion). There must be some

state interest on one side of the ledger that weighs against burdens on the right to vote.

Burdick v. Takushi, 504 U.S. 428, 434 (1992).

Here, Intervenors do not even attempt to explain why the specific electoral

practices at issuewhich have resulted in the most grievous burden on voting rights

possibleare sufficiently weighty to justify disenfranchisement. Rather, Intervenors

offer their own ipse dixit that the the determination of whether to count or reject ballots is

based in law rather than being arbitrary. Mot. at 8. To the contrary, Plaintiffs have

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adequately pled facts supporting their assertion that the barriers to voting enacted by

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Defendants, either through statute or more informal policy, do not protect the reliability

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and integrity of the election process. Dudum v. Arntz, 640 F.3d 1098, 1106 (9th Cir.

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2011). There is no question that the voters whose votes are at issue here are qualified

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voters; are properly registered to vote; are eligible to vote in the general election for the

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Second Congressional District; and have cast no other ballot in the election. It is at most

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mere administrative convenience that weighs against the counting of these votes. That

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cannot be, and is not, sufficient to justify the disenfranchisement of qualified Arizonan

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voters.

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As described more fully in Plaintiffs TRO Motion, Plaintiffs have stated a

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plausible claim that the challenged election practices violate the Equal Protection Clause

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of the Fourteenth Amendment as well as, for similar reasons, the Due Process Clause of

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the Fourteenth Amendment.

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Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990) (While

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the state is able to regulate absentee voting, it cannot disqualify ballots, and thus

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disenfranchise voters, without affording the individual appropriate due process protection

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and finding deficiency in the existing election process).

See, e.g., TRO Motion at 9 (citing Raetzel v.

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Second, Plaintiffs have adequately pled claims that the Defendants have subjected

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similarly situated voters to arbitrary and disparate treatment, also in violation of the Equal
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Protection Clause of the Fourteenth Amendment. Intervenors offer sweeping generalities

rather than addressing Plaintiffs actual claims.

To begin with, this a motion to dismiss. Intervenors are not entitled to have the

Court accept their say so that the alleged disparate treatment of voters in the

administration of the election for the second congressional district was minor and of no

constitutional moment. Indeed, Intervenors have failed to even challenge the registration

or eligibility of any of the plaintiffs to vote in this election, let alone the 130 other

Arizonans whose rights have been so cavalierly disregarded. Second, Plaintiffs have

plainly pled facts establishing a plausible claim that similarly situated voters were subject

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to arbitrary and disparate treatment. See Bush v. Gore, 531 U.S. 98, 104-05 (2000).

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These were not merely different systems for implementing elections, id. at 109, but

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similarly situated voters receiving different treatment, in many cases in violation of state

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law. Most voters who moved were permitted to update their voter registration at the new

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polling location, but some were not. Compl. 48-52. Voters in Pima County were

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permitted to cure a purported signature mismatch until November 9th, but those in

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Cochise County had only until November 4.

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approach to permitting voters who failed to sign their early ballots were, moreover,

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fundamentally different, affording more opportunities in Pima than in Cochise. Id. 60.

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Some voters who appeared in their old polling location after having moved were told that

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they must go to another location, as required of poll workers under state law, but some did

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not receive that critical information. Id. 64-67.

Id. 4.

Pima and Cochise counties

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In many cases, disparate treatment was the result of clear poll worker error: The

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failure to permit voters who had moved to update their voter registration at a new location;

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the failure of poll workers to direct voters who moved to a different precinct; misleading

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statements by poll workers regarding the importance of voting in the right precinct; and

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the failure of poll workers to ensure that provisional ballots filled out in their presence

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were signed; all are clear mistakes or violations of state law. Indeed some, but not all,

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voters were given misleading information regarding whether their provisional vote would
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count. Id. 68-70. Under Northeast Ohio Coalition for Homeless v. Husted, 696 F.3d

580, 584, 588, 593, 597 (6th Cir. 2012) (NEOCH), such errors give rise to an equal

protection violation even when they were a small percentage of the total votes cast.

Plaintiffs have most assuredly stated plausible claims for relief under the United

States Constitution.

established they are likely to prevail on the merits of these claims.

2.

Indeed, as set out in Plaintiffs TRO Motion, Plaintiffs have

Plaintiffs Have Adequately Pled Claims Under the Arizona

Constitution

Intervenors rely primarily on Chavez v. Brewer, 214 P.3d 397 (Ariz. App. 2009), a
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case in which the court recognized a claim under Article II, Section 21 of the Arizona
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Constitution and denied the defendants motion to dismiss under the state law equivalent
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to Rule 12(b)(6). In Chavez, the plaintiffs alleged that certain voting machines certified
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by the Secretary of State violated the state constitution and failed to comply with statutes
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governing voting machine standards. The Court held that Arizona's constitutional right
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to a free and equal election is implicated when votes are not properly counted. Id. at
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408. The Court denied the defendants motion to dismiss and held that such a claim could
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proceed under Article II, Section 21, because the plaintiffs had adequately pled that use of
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the machines would result in votes not being properly counted. Id.
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Here, Plaintiffs have alleged that the election officials have rejected and refused to
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count the properly cast votes of 133 eligible, registered Arizonans.

As in Chavez,

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Plaintiffs have stated a plausible claim for relief under Article II, Section 21 of the
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Arizona Constitution. 4

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Intervenors claim that Plaintiffs must show that they are among the special class
of voters for whose specific benefit provisions of the election code were enacted is
incorrect. Mot. at 10 (quoting McNamara v. Citizens Protecting Tax Payers, __ P.3d __,
2014 WL 5486632, at *2 (Ariz. App. Oct. 30, 2014). McNamara did not address Article
II, Section 21 of the Arizona Constitution. Rather, it addressed whether a private citizen
had a private right of action under A.R.S. 16-915.01, which addresses the disposal and
use of surplus monies held by political committees. McNamara is inapposite to Plaintiffs
state constitutional claim.
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3.

Plaintiffs Have Adequately Pled A Claim Under HAVA

As set out in Plaintiffs TRO Motion, the Help America Vote Act (HAVA)

requires that the many contested ballots that were rejected because they were not cast in

the voters assigned precincts be counted for all elections for which the voters who cast

those ballots were eligible to vote. The plain language of the statute requires that [i]f the

appropriate State or local election official . . . determines that the individual [casting a

provisional ballot] is eligible under State law to vote, 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) (emphases added).

As pled in Plaintiffs Complaint, all of the out-of-

10

precinct ballots at issue were cast by voters who are eligible to vote under state law.

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Compl. 72.

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Intervenors' only response on this point is citation to Sandusky County Democratic

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Party v. Blackwell, 387 F.3d 565, 568 (6th Cir. 2004) (per curiam). The case and its

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reasoning are distinguishable for all the reasons set out in Plaintiffs TRO Motion at 11-

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12. 5
4.

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Plaintiffs Have Stated a Plausible Claim for Relief Under

Arizona Statutory and Administrative Law

Plaintiffs Sixth Claim for Relief addresses three category of wrongfully rejected
ballot where local election officials simply failed to comply with Arizona law. See Compl.
100-05.
First, Plaintiffs allege that, in some instances, election officials rejected a ballot
cast by eligible, registered voters because of their erroneous conclusion that the voter did
not sign both his or her registration form and his or her ballot envelope (i.e., that there was
a signature mismatch).

Compl. 102.

Such voters did everything that state law

requires. Their ballots were rejected nonetheless. Second, Plaintiffs allege that, in some

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The Secretary of State, in his Notice of Joinder (Dkt. #19), notes that there is a
statewide complaint system to address complaints involving a violation of any provision
of Title III of HAVA. Dkt. #19, at p.2. The Secretary does not explain how this
observation bears on whether Plaintiffs have pled a claim for relief under HAVA.
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instances, local election workers failed in their mandatory statutory duty to direct voters

who had moved to the proper polling location, requiring them instead to vote a provisional

ballot that the State then rejected. These voters were, likewise, disenfranchised because

election officials failed to follow state law.

Intervenors do not actually address why, supposedly, Plaintiffs have failed to state

plausible claims that Defendants violated the specific provisions of Arizona statutory and

administrative law addressed in the Sixth Claim for Relief. 6

contention that the Court should dismiss the Sixth Claim for Relief rests on their startling

pronouncement that voters cannot challenge election officials failure to count their

10

Rather, Intervenors

ballots as required by state law.

11

The weakness of Intervenors position is best illustrated through their own words.

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According to Intervenors, the sole form of challenge to an election outcome in Arizona is

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a state contest within the jurisdiction of the superior court. Mot. at 11. In an election

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contest, the court cannot consider the claim that votes were inappropriately disqualified.

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Id. Nor can courts contradict election officials judgment to disqualify ballots from

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inclusion in an official canvass. Id. In short, according to Intervenors, election officials

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can refuse to count ballots that were cast in full accord with state law, and voters who

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were disenfranchised have absolutely no remedy. That cannot be the law. It is not the law.

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IV.

CONCLUSION

For the reasons stated above, the Court should deny Intervenors motion to dismiss.

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The Secretary of State, meanwhile, contends that an 85-year-old case establishes

the proposition that Arizona has long been unwilling to establish a private cause of action
for violation of the election statutes or Election Procedures Manual. Dkt. #19, at p. 2
(citing Findley v. Sorenson, 35 Ariz. 265, 269 (1929)). Respectfully, this mischaracterizes
Arizona law. Chavez held expressly that voters may maintain a private right of action to
enforce election laws. 222 Ariz. at 318. Moreover, the case the Secretary relies on,
Findley, did not address the circumstances in which a citizen can maintain a private right
of action but, rather, the circumstances in which a court hearing an election contest can
void the election due to errors and irregularities; i.e., where those errors affect the result,
or at least render it uncertain. Id. at 269.
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1
November 25, 2014

PERKINS COIE LLP

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By: s/ Daniel C. Barr

Daniel C. Barr
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788

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Kevin J. Hamilton
Pro Hac Vice Application Pending
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099

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Attorneys for Plaintiffs Ron Barber for

Congress, Lea Goodwine-Cesarec; Laura
Alessandra Breckenridge; and Josh Adam
Cohen

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CERTIFICATE OF SERVICE

I hereby certify that on November 25, 2014, I electronically transmitted the

attached documents 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 Jurkowitz: Daniel.Jurkowitz@pcao.pima.gov

Britt Hanson: CVAttymeo@cochise.az.gov

Michael L. Forney: Michele.Forney@azag.gov

Brett Johnson: bwjohnson@swlaw.com

Eric Spencer: spencer@swlaw.com

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I hereby certify that on November 25, 2014, I served the attached document

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by hand delivery on Judge Jorgenson, United States District Court of Arizona, 405 West

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Congress Street, Tucson, Arizona 85701.

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s/ Cindy Anderson

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