Snell & Wilmer IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Transcription

1 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 Brett W. Johnson (#0) Eric H. Spencer (#00) SNELL & WILMER One Arizona Center 00 E. Van Buren St., Suite 00 Phoenix, AZ 00- Telephone: Facsimile: Attorneys for Martha McSally and McSally for Congress IN THE UNITED STATES DISTRICT COURT Ron Barber for Congress; Lea Goodwine- Cesarec; Laura Alessandra Breckenridge; Josh Adam Cohen, v. FOR THE DISTRICT OF ARIZONA Plaintiffs, 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; Ramón 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 Elías, 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---TUC-CKJ INTERVENORS MARTHA MCSALLY AND MCSALLY FOR CONGRESS RESPONSE IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION Before the Honorable Cindy K. Jorgenson (ORAL ARGUMENT REQUESTED) (EXPEDITED RULING REQUESTED)

2 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 Having failed to hinder the orderly election process at the Boards of Supervisors for Cochise and Pima Counties, Plaintiffs are now attempting to hinder the statewide election process by attempting to stop the Secretary of State from carrying out his nondiscretionary statutory duty. This latest misadventure should be denied as well for the following reasons. First, Plaintiffs lack standing, as there is neither a ripe federal question nor a justiciable controversy. Second, Plaintiffs cannot demonstrate irreparable injury or that Congressman Barber may win the election if the requested votes counted. If they could, Plaintiffs have adequate redress under state law and injunctive relief is unnecessary. An injunction would harm Defendants and voters statewide, as it would preclude the canvass from proceeding on statutorily-mandated dates and delay the seating of other elected officials throughout the state, potentially disenfranchising voters. Finally, due to procedural missteps and reliance on inapt legal theories, the Plaintiffs also cannot establish a likelihood of success on the merits. I. LEGAL STANDARD A preliminary injunction is a drastic remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, U.S., (); Arizona Hosp. & Healthcare Ass n v. Betlach, F. Supp. d, (D. Ariz. ). Plaintiffs have the burden of proof. Envtl. Council of Sacramento v. Slater, F. Supp. d 0, 0 (E.D. Cal. 00). A party seeking a temporary restraining order must demonstrate a significant threat of irreparable injury. See Caribbean Marine Services Co. v. Baldridge, F.d, (th Cir. ). The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., F. Supp., (N.D. Cal. ). The proper legal standard for preliminary injunctive relief requires a party to demonstrate that he is likely to succeed on the merits, that he is Previous efforts have been conducted under the nom de guerre of the Barber for Congress campaign alone. --

3 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., U.S., (0). Because a preliminary injunction is an extraordinary remedy, a Court should only issue one upon a clear showing that the [moving party] is entitled to such relief. Id., U.S. at. The traditional function of a preliminary injunction is to preserve the status quo pending a ruling on the merits. Chalk v. U.S. Dist. Court, 0 F.d 0, 0 (th Cir. ). There is heightened scrutiny where, like here, the movant seeks to alter the status quo, i.e., stop the process and count properly rejected ballots. Dahl v. HEM Pharms. Corp., F.d, 0 (th Cir. ). Courts generally refrain from intruding into election processes. Burdick v. Takushi, F.d, (th Cir. ) ( State election codes are the product of careful consideration at the local level about how to ensure fair and orderly elections.... Federal courts should refrain from deciding the constitutionality of state election laws when reasonable alternatives to such adjudication are available. ). As discussed herein, because Plaintiffs are not facing immediate, substantial, and irreparable harm, not to mention their claims are legally flawed, the Court should allow the State process to proceed. II. LIKELIHOOD OF SUCCESS ON THE MERITS. Filed contemporaneously with this Response, Intervenors have filed a Motion to Dismiss Plaintiffs Verified Complaint for lack of jurisdiction and failure to state a claim, pursuant to Rule (b), Fed. R. Civ. P., Intervenors incorporate by reference the Motion to Dismiss in its entirety. A. Plaintiffs Complaint is Procedurally Flawed. First, Plaintiffs do not have standing to represent over individual voters in this matter. See Simon v. E. Kentucky Welfare Rights Org., U.S., () (applying standing analysis to test the allegations of each of the individual respondents and the respondent organizations... for sufficiency ). Plaintiffs bear the burden of establishing standing. Lujan v. Defenders of Wildlife, 0 U.S., (). --

4 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 Plaintiffs complaint is also barred by laches and estoppel. Harris v. Purcell, Ariz. 0, -, P.d, -0 () ( [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 brackets omitted). To the extent that Plaintiffs disagree with the process of determining whether to count a ballot, they needed to bring such action before the election. Tilson v. Mofford, Ariz., 0- ()( procedural violations in the elective process itself must be reviewed by the court prior to the actual election ). And, to the extent Plaintiffs wanted the Boards of Supervisors to delay to count missing votes, they needed to seek injunctive relief before the canvass was complete. A.R.S. -(A), (C). To the extent Plaintiffs attempt to challenge the results, however, that matter is not ripe until after the Secretary of State certifies the election and conducts the statewide canvass on December,. See A.R.S. -(A) (providing grounds for election contests). No court has jurisdiction to hear any election contest that fails to strictly comply with statutory timing provisions. Hunsaker v. Deal, Ariz.,, P.d 0, 0 (Ct. App. )( Time elements in election statutes are jurisdictional and the time requirements for filing an election contest will be strictly construed. ) (citation omitted). Finally, even if the Court did have jurisdiction, it should abstain from exercising such jurisdiction out of deference to the State action that is not complete. Younger v. Harris, 0 U.S. (); see also Burford v. Sun Oil Co., U.S., (). Even if Plaintiffs are correct, any alleged human errors were not pervasive, thus Plaintiffs must exhaust their state remedies before asserting claims to the federal court. Gold v. Feinberg, 0 F.d, 0 (d Cir. ); see also Vallejo v. City of Tucson, 0 WL at * n. (D. Ariz., June, 0)); Krieger v. City of Peoria, WL 00 at * (D. Ariz., Aug., ); Bennett v. Yoshina, 0 F.d (th Cir. ). --

5 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 B. There are No Actionable Equal Protection and Due Process Violations. Only in extraordinary circumstances will a challenge to a state [or local] election rise to the level of a constitutional deprivation. Curry v. Baker, 0 F. d 0, (th Cir. ). As relevant here, the Equal Protection Clause imposes two narrow constraints on states broad power to regulate elections. First, the State may not, by arbitrary and disparate treatment, value one person s vote over that of another. Bush v. Gore, U.S., 0-0 (00) (emphasis added). A particular plaintiff cannot demonstrate disparate treatment unless it can show that it is similarly situated to other individuals whose votes were counted. See, e.g., Northeast Ohio Coalition for the Homeless v. Husted, F.d 0, (th Cir. ). Even disparate treatment of similarly situated parties is not arbitrary where local entities, in the exercise of their expertise,... develop different systems for implementing elections. See Bush, U.S. at 0 (emphasizing that arbitrariness arose from a statewide remedy ordered by a state court); see also Husted, F.d at. 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, 0 WL, *-. Second, election procedures 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, 0 U.S. at. But very few election regulations can violate this flexible standard. See Dudum v. Arntz, 0 F.d 0, 0 (th Cir. ).To begin with, strict scrutiny applies only [w]hen the burdens on voting imposed by the government are severe, and the Ninth Circuit has repeatedly upheld as not severe restrictions that are generally applicable, even-handed, politically neutral, and protect the reliability and integrity of the election process. Id. (quotation marks omitted). Furthermore, [w]here non-severe, [l]esser burdens on voting are at stake, less exacting review [applies], and a State s important regulatory interests will usually be enough to justify reasonable, --

6 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 nondiscriminatory restrictions. Id. Restrictions that are generally applicable, evenhanded, politically neutral, and which protect the reliability and integrity of the election process are therefore constitutional. Rubin v. City of Santa Monica, 0 F.d 00, 0 (th Cir. 0); see also Lemons v. Bradbury, F.d 0, 0 (th Cir. 0) (voting regulations are rarely subject to strict scrutiny). C. Plaintiffs Factual Assertions Do Not State Equal Protection or Due Process Claims Upon Which Relief Can Be Granted. Plaintiffs raise multiple arguments primarily on behalf of non-parties to this action that appear, if true, to raise unintentional irregularities in the election process. For example, Plaintiffs apparently object to provisional ballots that were allegedly not counted related to () voters who moved within the respective counties, () signatures that did not match, () unsigned early or provisional ballots, () alleged failure by poll workers to send specific voters to the proper precincts, and () alleged misleading or erroneous statements by elections officials. These alleged issues do not rise to the level of a constitutional violation either for equal protection or due process purposes Gold v. Feinberg, 0 F.d, 00 (d Cir. ) (equal protection); Powell v. Power, F.d, (d Cir. 0)(due process). In reviewing a right to vote equal protection challenge, a distinction must be made between () state laws and patterns of state action that systematically deny equality in the vote, and () episodic events that despite non-discriminatory laws, may result in the dilution of an individual s vote. Gamza v. Aguirre, F.d, (th Cir. 0). Isolated events adversely affecting individuals are presumed not to violate the equal protection clause. Id.; see also Powell, F.d at. Accordingly, assuming an In the third count of their complaint, Plaintiffs also allege violations of the Due Process Clause. This claim appears to be redundant with their equal protection claims, in that it focuses exclusively on alleged disparate treatment. (See Compl., Doc., -.) Insofar as Plaintiffs purport to raise a due process claim that is independent of their equal protection claims, they face an even greater burden. As this Court has recognized, a State does not violate the due process clause unless its action was so willfully malicious as to interfere with the fairness of the election; the Plaintiffs must demonstrate a pervasive error that undermines the integrity of the vote, not mere garden variety election irregularities. See Vallejo, 0 WL, *. --

7 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 unlawful administration by state officers (there was none here) of a non-discriminatory state law (the provisional and early ballot process) resulting in its unequal application to those who are entitled to be treated alike, there is no denial of equal protection unless... intentional or purposeful discrimination exists. Id. Like other garden variety election disputes, the alleged actions taken by Defendants and frontline poll workers therefore do not violate federal rights. Bennett v. Yoshina, 0 F.d, (th Cir. ) (citations omitted). In the face of the generally applicable, even-handed, politically neutral process employed by Defendants, this Court should defer to the State s and counties regulatory interests. Dudum v. Arntz, 0 F.d 0, 0 (th Cir. ) (holding a restricted instant runoff voting (IRV) system did not violate the Fourteenth Amendment). The fair and reasoned decision of elected officials as to the correct remedial procedures to employ is within their exclusive province and should not be overturned absent intentional and malicious intent to discriminate. Id. at.. Ron Barber for Congress Equal Protection Rights Have Not Been Violated. With regard to the Ron Barber for Congress campaign, it is unclear if it asserts that Congressman Barber has a property interest in his status as a candidate for purposes of its procedural due process claims. To the extent it does, no right exists. [P]ublic offices are mere agencies or trusts, and not property as such and the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right. Taylor v. Beckham, U.S., (00). Thus, even an unlawful denial by state action of a right to state political office is not a denial of a right of property or liberty secured by the due process clause. Snowden v. Hughes, U.S., (). Any claims premised upon a property interest in an elected office fail as a matter of law.. Voters Who Moved Within Pima County And Nonetheless Had Their Provisional Ballot Rejected. Plaintiffs do not appear to be raising any federal constitutional claims with respect to this allegation. (See TRO App., Doc., at -.) For good reason: they at most allege --

8 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 three isolated errors of state law, all of which are insufficient to support any equal protection claim. See Vallejo, 0 WL, at *-.. Voters Whose Ballots Were Rejected Due to Signature Mismatch. Plaintiffs raise several federal constitutional claims with respect to this allegation. (See TRO App. at -.) None demonstrates any likelihood of success on the merits. First, Plaintiffs object to the lack of state-wide or district-wide standards for determining mismatches. But Plaintiffs cannot demonstrate disparate treatment, because they have no basis whatsoever for their speculation that it is entirely possible that signatures found to match in Cochise County would be considered mismatches in Pima County. Compare Bush, U.S. at 0 ( The want of [uniform] rules here has led to unequal evaluation of ballots in various respects, and [t]he record provides some examples. ). Moreover, any disparity is not arbitrary, because Bush v. Gore does not prevent local entities, such as Cochise and Pima Counties, from develop[ing] different systems for implementing elections in the exercise of their expertise. Id. at 0. Second, Plaintiffs object to the cure process for mismatches. Again, Plaintiffs have not demonstrated disparate treatment. Individuals who sought to cure a mismatch by Election Day (in Cochise County), or shortly thereafter (by November,, in Pima County), are not similarly situated to individuals who now seek to cure the mismatch long after election day and November,. See Husted, F.d at. Nor have any Plaintiffs been identified who were denied the ability to cure in Cochise County before November,, but who would have been allowed the ability to cure in Pima County by November,. And regardless, as discussed, the equal protection clause does not bar Cochise and Pima Counties from adopting marginally different processes for curing signature mismatches. Third, Plaintiffs object that the signature-match process unduly burdens the right to vote. But the signature-matching requirement is obviously a not severe, reasonable, nondiscriminatory restriction[]. See Dudum, 0 F.d at 0. Finally, Plaintiffs claim --

9 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 that the rejection of their mismatched ballots violates due process. But they have not come close to alleging a willfully malicious and pervasive error that undermines the fairness and integrity of the election. See Vallejo, 0 WL, *.. Unsigned Early Ballot Affidavits. Plaintiffs raise two federal constitutional claims with respect to this allegation. (See TRO App., Doc., at -0.) Neither demonstrates any likelihood of success on the merits. First, Plaintiffs claim that Cochise and Pima Counties notified some voters of their need to cure unsigned early ballots for some period prior to Election Day. Again, though, Plaintiffs have not demonstrated disparate treatment : They have not shown that their unsigned early ballots were received as early as the ballots of voters who were notified that their signatures were missing, and they cannot be similarly situated if their ballots were received later. Likewise, they have not demonstrated that they were treated differently in one county than they would have been treated in another county and that would not matter regardless. Second, Plaintiffs claim that there is no rational basis for permitting ballots to be cured post-election for a signature mismatch, but not where a ballot is unsigned. But there is an obvious rational basis: an unsigned ballot is unquestionably defective solely due to the fault of the voter, whereas a ballot with a signature that has been deemed not to match might well be valid and the error might be on the part of the State. Accordingly, it is entirely reasonable to provide a limited post-election cure period for the latter, but not for the former.. Unsigned Provisional Ballot Forms. Plaintiffs argue that the failure to count unsigned provisional ballots violates the Equal Protection and Due Process Clauses because the poll worker could have warned the voter about the missing signature. (See TRO App., Doc., at 0-.) But the federal constitution does not require the counties to inform voters of errors that they have made for which the counties themselves are not in any way responsible. See Dudum, 0 F.d at 0; Vallejo, 0 WL, *. --

10 Case :-cv-0-ckj Document Filed // Page 0 of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona Failure to Direct Voters Who Had Moved To The Proper Precinct. Plaintiffs assert that, by allegedly failing to direct voters who had moved to the proper precinct, in purported violation of a state-law duty to do so, the counties violated the federal equation protection clause as interpreted by the Sixth Circuit in Husted. (See TRO App., Doc., at -.) As a threshold matter, Husted is distinguishable on its facts. The case involved systemic disqualification of thousands of wrong-precinct provisional ballots. See Husted, F.d at. Here, by contrast, Plaintiffs have merely identified ballots allegedly falling into this category. (See TRO App., Doc., at.) That is not the stuff of a federal constitutional case. In any event, Plaintiffs equal protection theory makes no sense under the Burdick balancing test that Husted purported to apply. Even Plaintiffs do not argue that the Equal Protection Clause imposes an affirmative obligation to inform voters that they are in the wrong precinct absent a state-law duty to do so. (See TRO App., Doc., at -; see also infra.) But, for purposes of Burdick balancing, the right-precinct requirement is no more severe, and no less reasonable, simply because the counties purportedly have voluntarily chosen to inform voters of the correct precinct, but then failed to do so in a few isolated cases. See Dudum, 0 F.d at 0.. Misleading or Erroneous Statements by Election Officials Regarding Voting in Proper Precinct. Plaintiffs likewise assert that disqualifying voters who relied on misleading or erroneous statements by election officials regarding the correct precinct violates the equal protection and due process clauses. (See TRO App. at -.) This claim fails for the same reasons as the prior claim: () the instances of isolated error alleged by Plaintiffs do not rise to the level of a federal constitutional violation; and () the right-precinct requirement does not unduly burden the right to vote even where county officials fail to assist a voter in curing their non-compliance with that requirement. -0-

11 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona Voters Who Were Not Told They Were In The Wrong Precinct Plaintiffs do not appear to be raising any federal constitutional claims with respect to this allegation. (See TRO App., Doc., at -.) For good reason: as discussed, the State does not have any affirmative obligation under the federal constitution to inform voters of errors for which the counties are not in any way responsible. D. Arizona Complied with Applicable Laws in Administration of the Election.. Plaintiffs Claims under the Help America Vote Act (HAVA) are Without Merit. HAVA s requirement that provisional ballots be provided does not impose of States a requirement to count provisional ballots in any specific manner. Rather, HAVA requires States to provide voters who are challenged or do not appear on the rolls at the polling place the ability to vote a provisional ballot on election day. See U.S.C. 0. Regarding whether a provisional ballot should be counted as a valid ballot, however, as recognized by the Plaintiffs, HAVA conspicuously leaves that determination to the States. Sandusky Co. Democratic Party v. Blackwell, F.d, (th Cir. 0). 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 individual s provisional ballot shall be counted as a vote in that election in accordance with State law. U.S.C. 0(a)() (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 insistence otherwise, HAVA, in plain language and application, does not disturb Arizona state law concerning the determination of validity and counting of provisional ballots. The Sixth Circuit, in an examination of HAVA s legislative history, has also concluded that the statute s 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 (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 official s sole authority to make the final determination with respect to... whether that vote is duly counted. Cong. Rec. at S0, 00, & 00). --

12 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona Arizona Law Provides Discretion to Election Law Officials in Administering the Election and Disqualifying Votes, all in Compliance with HAVA Arizona law does not empower courts to second-guess election officials judgment in disqualifying ballots from inclusion in the official canvass. Election challenges are purely statutory, meaning that courts have no jurisdiction to grant remedies outside the relevant statutory framework. See, e.g., Grounds v. Lawe, Ariz.,, P.d, () ( [E]lection contests are not governed by the general rules of chancery practice but rather are considered to be purely statutory. ). In other words, courts are not at liberty to construe the election code to provide for legal remedies state lawmakers did not enact. Cf. McNamara v. Citizens Protecting Tax Payers, No. CA-CV -0, WL, at * (Ariz. App. Oct. 0, ) (holding courts could not imply a private cause of action to enforce provisions of state campaign finance law). This Court, therefore, cannot grant Plaintiffs the relief they seek because it is not provided for in Arizona statute and would require the court to substitute its judgment for that of election officials. In reality, Arizona law only provides for an election contest challenge to the validity of election results. See A.R.S. -(A) (providing grounds for election contests); Donaghey v. Attorney Gen., 0 Ariz.,, P.d, () (holding that a party s failure to bring a legal challenge to the conduct of an election as an election contest precluded any other civil relief). A contestant may bring one by filing a statement of contest with the appropriate state court within five days after the Secretary of State certifies the final canvass pursuant to A.R.S. -(A). See A.R.S. -(A). No court has jurisdiction to hear an election contest that fails to strictly comply with statutory timing provisions. Hunsaker v. Deal, Ariz.,, P.d 0, 0 (Ct. App. ) ( Time elements in election statutes are jurisdictional and the time requirements for filing an election contest will be strictly construed. ) (citation omitted). Courts in election contests share concurrent authority with election officials to disqualify illegal votes, see A.R.S. -(A)(), but only the counties may add legal --

13 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 ones to the canvass. It would contravene the Legislature s intent for the court to intervene in that process without statutory basis for doing so. As Plaintiffs claims lack merit for the reasons stated herein and in Intervenors Motion to Dismiss, Plaintiffs Application should be denied. III. IRREPARABLE HARM When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor[,]... but [the court will] nevertheless address the remaining three factors of the preliminary injunction test. Obama for Am. v. Husted, F.d, (th Cir. ). But, no constitutional deprivation will occur here by denial of injunctive relief. Although the right to vote is a fundamental right, see, e.g., Ohio State Conference of N.A.A.C.P. v. Husted, F.d, (th Cir. ), no restriction on the right to vote has been alleged. Restrictions on the right to vote, such as those alleged in the cases cited by Plaintiffs, are those which prevent certain voters from ever voting in the first place. See, e.g, League of Women Voters of N. Carolina v. N. Carolina, F.d, (th Cir. ) (finding that a House Bill which restricted the electoral mechanisms most commonly used by African American voters should be enjoined prior to the election, because once the election occurs, there can be no do-over and no redress. ) (emphasis added), Obama for Am., F.d at (finding a burden on non-military Ohio voters ability to cast ballots would cause irreparable harm if not enjoined prior to the election) (emphasis added). Simply, Plaintiffs have cited no case precedent to reflect that a party suffers irreparable harm between the canvassing by the Boards of Supervisors and the certification by the Secretary of State. Specifically, the election cases cited by Plaintiffs in support of irreparable harm all deal with either pre-election challenges to applicable election procedures (Common Cause v. Bolger, F. Supp., - (D.D.C. 0)(pre-election objection to the congressional franking statute); League of Women Voters of N. Carolina, F.d (pre-election objection to voter identification laws); --

14 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 Obama for Am., F.d (pre-election challenge to early voting procedures); Miller v. Moore, F.d, ( th Cir. )(pre-election challenge to term limits)) or proper post-canvassing contest of elections under applicable statute (Chenworth v. Earhart, Ariz., P., ()). Plaintiffs do not dispute that the voters listed in their Application have exercised their rights to vote. Plaintiffs argue instead that these voters lack the ability to vote because their votes have been rejected under State law. However, rejecting ballots that violate State law does not implicate the fundamental right to vote: [t]he States possess a broad power to prescribe the Times, Places and Manner of holding Elections for Senators and Representatives, Art. I,, cl..... Washington State Grange v. Washington State Republican Party, U.S., (0) (citing Clingman v. Beaver, U.S., (0)). States power over the time, place and manner of elections includes establishing mandatory voting precincts and requiring proper signatures. See Sandusky Cnty. Democratic Party v. Blackwell, F.d, (th Cir. 0); see also A.R.S. -(B). However, even if voters were deprived of some constitutional right, [t]he decision to enjoin an impending election is so serious that the Supreme Court has allowed elections to go forward even in the face of an undisputed constitutional violation. Sw. Voter Registration Educ. Project v. Shelley, F.d, (th Cir. 0). This is likely why Plaintiffs failed to cite any case authority for bringing a lawsuit during the intermission between Board of Supervisor action and the Secretary of State s certification. Moreover, irreparable harm to Ms. McSally and all other state and local candidates will result from the entering of a restraining order and preliminary injunction, creating an unwarranted ripple effect through all other races. See, e.g., Bush v. Gore, U.S. 0, 0 (00) (Scalia, J., concurring) ( The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. ). As a result, voters, who cast their ballots in reliance on the law and instructions, rather than verbal --

15 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 statements, would have their vote diluted. Roe v. Alabama, F.d (th Cir. ) (validating post-election ballots previously considered invalid diluted votes). Finally, not only will there be no irreparable harm to these voters, Plaintiffs claims are ultimately futile. As discussed above, the Court should not set aside votes unless there is an explicit statutory remedy for non-compliance with election procedures or a violation of election procedure that reaches enough votes to call the outcome of the election into doubt. See Miller, Ariz. at 0, P.d at (holding large-scale hand delivery of absentee ballots, in violation of statute, to electors who otherwise may not have voted required the election to be set aside); Reyes v. Cuming, Ariz., -, P.d, - (Ct. App. ) (holding county recorder s failure to compare signatures on outside of absentee ballots with registration lists required that the election be set aside). Neither is the case here. Even if every single one of Plaintiffs contested ballots were counted, the outcome of the election, with Ms. McSally leading by votes, would not change and the Secretary of State would still be mandated to issue a certificate of election pending an automatic recount. A.R.S. -0. As Plaintiffs have failed to show irreparable harm, their Application should be denied. IV. BALANCE OF THE HARMS The harm resulting from the granting a restraining order and preliminary injunction is to the Defendants, the respective county boards of supervisors, Ms. McSally and the other State and local candidates on the slate who prevailed on Election Day. The Secretary of State and other election officials will shoulder the administrative burden of prematurely recounting and re-verifying ballots. Meanwhile, Ms. McSally and the other candidates are harmed by the delay of the canvass and certification of election. Additionally, the legitimacy of the state s election procedures is threatened by this premature action. See, e.g., Bush, U.S. at 0 (Scalia, J., concurring) (noting that counting votes of questionable legality irreparably harms elected candidate by casting doubt on legitimacy of election). --

16 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 Barber for Congress, meanwhile, attempts to instigate here a premature and inapposite election contest before exhausting remedies administratively and in state courts as provided by law. There would be no irreparable harm in denying that attempted end-around. The potential for irreparable harm to Ms. McSally and other Arizona candidates clearly dominates. Therefore, Plaintiffs Application should be denied. V. PUBLIC INTEREST No voters have been wrongfully disenfranchised by the counties rejection of ballots not conforming to state law and election procedures. Neither has the right to vote been restricted. Other federal courts have found that where, as here, it may ultimately be concluded... that the invalidation of the original ballots... may... be upheld, a preliminary injunction is not in the public interest. United States v. W. Virginia, No. CIV.A. :-, WL, at * (S.D.W. Va. Nov., ) (noting that [t]he balance of equities tips in favor of first fully developing the facts before compelling action that may prove to be improvident. ). Ron Barber for Congress asks this Court to supersede procedure and halt the statutory election process to reconsider a number of votes that, even if they were improperly rejected, have no effect on the outcome of the election. Even taking into account Plaintiffs arguments, a recount will proceed and Congressman Barber can attempt to raise his arguments in a contest according to Arizona law. No public interest supports deviation from Arizona law. As such, the public interest requires denial of Plaintiffs Application. VI. CONCLUSION For the foregoing reasons, Intervenors Martha McSally and McSally for Congress respectfully request that Plaintiffs Application and Motion be denied. Arizona s electoral process should be allowed to proceed in accordance with Arizona law. --

17 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 DATED this th day of November,. By: SNELL & WILMER s/ Brett W. Johnson Brett W. Johnson Eric H. Spencer One Arizona Center 00 E. Van Buren Street, Suite 00 Phoenix, AZ 00- Attorneys for Martha McSally and McSally for Congress --

18 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 CERTIFICATE OF SERVICE I hereby certify that on the th day of November,, I electronically transmitted the attached document to the Clerk s Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 00 Daniel Clayton Barr Perkins Coie LLP P.O. Box 00 Phoenix, AZ Attorney for Plaintiffs s/ Tracy Hobbs --