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 Brett W. Johnson (# ) Eric H. Spencer (# 00) SNELL & WILMER One Arizona Center 00 E. Van Buren St., Suite 00 Phoenix, AZ 00- Telephone: Facsimile: bwjohnson@swlaw.com espencer@swlaw.com 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, Plaintiffs, v. Ken Bennett, in his official capacity as Secretary of State of the State of Arizona; Pima County Board of Supervisors, a body politic; Ally Miller, in her official capacity as a member of the Pima County Board of Supervisors; 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, FOR THE DISTRICT OF ARIZONA Defendants. Case No. CV---TUC-CKJ MARTHA MCSALLY AND MARTHA MCSALLY FOR CONGRESS MOTION TO INTERVENE 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 Pursuant to Federal Rule of Civil Procedure ( Rule ), Martha McSally and Martha McSally for Congress (collectively, McSally ) respectfully move this Court to intervene in this action. McSally secured more votes than Ron Barber for Arizona s Second Congressional District, according to the certified canvasses of Pima and Cochise County election officials. Plaintiff Ron Barber for Congress ( Plaintiff ) seeks to have election officials reconsider whether to count ballots from the counties of Cochise and Pima County precincts instead of waiting until an official recount will occur on December,. McSally seeks intervention to protect her interest in the accurate resolution of the November,, election. FACTUAL BACKGROUND Republican Martha McSally received more votes than Democrat Ron Barber in Arizona s Second Congressional District for the office of United States Representative in the November, election. On November,, Plaintiffs filed a complaint alleging that [m]ore than 0 voters in the second congressional district, including [three named plaintiffs] had their ballots improperly rejected for one or more of the reasons listed below. (Compl., Doc., ). ARGUMENT I. MCSALLY IS ENTITLED TO INTERVENTION AS A MATTER OF RIGHT UNDER RULE (a)() Rule, under which intervention is permitted, is to be construed broadly in favor of intervention. United States v. State of Wash., F.d, 0 (th Cir. ). The district court must grant the motion to intervene if four criteria are met: timeliness, an interest relating to the subject of the litigation, practical impairment of an interest of the party seeking intervention if intervention is not granted, and inadequate representation by the parties to the action. United States v. Washington, F.d, 0 (th Cir. A recount is required where the margin between two candidates in a general election is less than the lesser of one-tenth of the number of votes cast or 0 votes if more than,000 votes were cast. Ariz. Rev. Stat. ( A.R.S. ) -(A)()-(). See (unofficial election results provided by Secretary of State s office). --

3 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona ). Here, the election results point to Martha McSally as the next United States Representative of Arizona s Second Congressional District. Therefore, McSally is entitled to intervene as of right pursuant to Rule (a). A. The Motion to Intervene is Timely. Courts look to the following factors to determine if a motion to intervene is timely filed: () the stage of the proceeding at which an applicant seeks to intervene; () the prejudice to other parties; and () the reason for and length of the delay. Cal. Dep't of Toxic Substances Control v. Commercial Realty Projects, Inc., 0 F.d, (th Cir. 0). McSally moved to intervene in this action the same day it was filed. There can, therefore, be no argument that intervention is untimely or will prejudice the parties. United States v. Oregon, F.d 0, (th Cir. ) (quotation omitted) (prejudice to other parties is the most important consideration in deciding whether a motion to intervene is timely ). B. McSally Has an Interest in the Relief Sought in this Proceeding. Whether an applicant for intervention as of right demonstrates sufficient interest in an action is a practical, threshold inquiry, and no specific legal or equitable interest need be established. Nw. Forest Res. Council v. Glickman, F.d, (th Cir. ) (quotation and alteration in original omitted). To demonstrate this interest, a prospective intervenor must establish that () the interest [asserted] is protectable under some law, and () there is a relationship between the legally protected interest and the claims at issue. Id. To the extent that Plaintiff Ron Barber has an interest protected under the laws plead in the Complaint, McSally would share this same interest. Martha McSally has an interest in being declared the candidate with the most votes by the Secretary of State. See Ariz. Rev. Stat. ( A.R.S. ) -0. An applicant generally satisfies the relationship requirement only if the resolution of the plaintiff's claims actually will affect the applicant. Arakaki v. Cayetano, F.d 0, 0 (th Cir. 0). Any challenge delaying the certification of the results has a direct and legal effect on McSally, who has won the election based on the current vote count. This is not --

4 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona an undifferentiated or generalized interest; it is direct, non-contingent, and substantial. See California ex rel. Lockyer v. United States, 0 F.d, (th Cir. 0) (where effect would has practical impairment of its interests as a result of the pending litigation, intervention is appropriate even if intervenor does not have an existing, enforceable right). Any attempt to count ballots deemed invalid potentially affects the outcome of the election. McSally has the necessary interest in the outcome of this matter such that this Court should grant this motion to intervene. C. The Disposition of the Action Will Impair or Impede McSally s Ability to Protect Her Interests. The disposition of this action may impair or impede McSally s ability to protect her interests. Fed. R. Civ. P. (a)() & advisory committee note () (intervenor need only show that disposition of action may... impair or impede the movant s ability to protect its interest and [i]f an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene ) (emphasis added). [T]he nature of the applicant's interest and the effect that the disposition of the action may have on the applicant's ability to protect its interest... are closely related issues. Charles Alan Wright, et al., C Fed. Prac. & Proc. Civ. 0 (d ed.). A conclusive decision by this Court to delay certification or count ballots labeled invalid clearly threatens McSally s ability to (i) be named as the next United States Representative of the Second Congressional District, (ii) identify ballots she deems were marked invalid incorrectly if this Court entertains the idea of counting ballots marked invalid prior to certifying the canvass, and (iii) participate in any future election contest, in which these claims properly belong. As such, McSally should be permitted to intervene as of right. See Smith v. Pangilinan, F.d, (th Cir. ) (where stare decisis may prevent party from having voice heard, this practical impairment warrants intervention). In addition, while it may ultimately be determined that Barber and McSally do not have standing, a lack of standing in the action is not a bar to intervention where --

5 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona that remains an open question. See Purnell v. City of Akron, F.d, (th Cir. ) (ultimate resolution of standing issue no bar to intervention). D. Other Parties Would Not Adequately Represent McSally s Interests. Intervention as of right is appropriate, as here, where other parties in the litigation will not adequately represent the intervenor s interest. The burden of showing inadequacy of representation is minimal and satisfied if the applicant can demonstrate that representation of its interests may be inadequate. Citizens for Balanced Use v. Mont. Wilderness Ass'n, F.d, (th Cir. ) (quotation omitted). To assess whether a party s interest is adequately represented, a court considers several factors, including () whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor's arguments; () whether the present party is capable and willing to make such arguments; and () whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect. Perry v. Proposition Official Proponents, F.d, (th Cir. 0) (internal quotations omitted). The most important factor in assessing the adequacy of representation is how the interest compares with the interests of existing parties. Citizens for Balanced Use, F.d at. McSally has an interest different than that of the other parties. Plaintiffs target ballots believed to increase Barber s chances of narrowing McSally s victory or upset the original canvass of the election. While the Defendants represent McSally s interest in following applicable voting laws, McSally s interest is not represented by the County defendants as to the ultimate outcome of the vote or identifying ballots that were invalidated for the same reasons Plaintiff alleges but are more likely to be votes for her. See Jackson v. Abercrombie, F.R.D. 0, (D. Haw. ) (state may not adequately represent interests of parties due to possibility of divergence of interest); see also Planned Parenthood Ariz., Inc., Ariz. at, P.d at (state could not adequately represent interests of one group of Arizonans, whose interests appeared aligned, where another conflicting group of Arizonans challenged a law because state charged to protect interests of all Arizonans). In addition, Plaintiffs cannot be relied --

6 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona upon to present ballots struck for the same reason as they allege are wrongful but that are more likely to be votes for McSally. Because none of the parties represent McSally s ultimate objective, the other parties cannot adequately represent her interest. There is also an assumption of adequacy when the government is acting on behalf of a constituency that it represents, rebuttable by a compelling showing. Arakaki, F.d at 0. Here, the constituents are alleging the government did not act, or failed to act, as required by law and thus, the government cannot be said to represent its own constituency. Perhaps most important, the appearance of fairness in allowing McSally s to intervene is a compelling showing. Cf. Guenther v. C.I.R., F.d, (th Cir. ) (due process demands appearance of fairness in all adjudicative proceedings). Despite the fact that County defendants are impartial on ensuring a fair election, the conflicting concerns of the candidates is sufficient for McSally s intervention. II. IN THE ALTERNATIVE, PERMISSIVE INTERVENTION IS APPROPRIATE HERE UNDER RULE (B)() Even assuming the Campaign does not have a right to intervene in this matter, which it does, it is entitled to permissive intervention under Rule (b)(), under which the court may permit anyone to intervene who anyone may be permitted to intervene who... has a claim or defense that shares with the main action a common question of law or fact. Permissive intervention under Rule (b) requires () an independent ground for jurisdiction; () a timely motion; and () a common question of law and fact between the movant's claim or defense and the main action. Blum v. Merrill Lynch Pierce Fenner & Smith Inc., F.d, (th Cir. ). In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights. Fed. R. Civ. P. (b)(). Plaintiffs may exercise supplemental As outlined above, McSally satisfies any timeliness requirement. In addition, Rule (b) does not require a showing of inadequacy of representation. Groves v. Ins. Co. of N. Am., F. Supp., (E.D. Pa. ). --

7 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona jurisdiction over claims where the court has federal question jurisdiction. Grace United Methodist Church v. City Of Cheyenne, F.d, (0th Cir. 0). As a threshold matter, McSally seeks to intervene to present defenses that will respond to the legal and factual claims made by the Plaintiffs. To that end, they necessarily have a question of law or fact in common. Fed. R. Civ. P. (b)()(b). Additionally, McSally has sought intervention at the outset of Plaintiffs case and none of the parties could suffer prejudice. Further, McSally s interest in the outcome of this election, potentially dependent on the resolution of this matter, cannot be overstated. Finally, including both candidates will ensure that the election is fairly resolved. In addition, Plaintiffs hope to validate ballots previously found invalid in an attempt to change the outcome of the election. To the extent this Court entertains these challenges, McSally may present other ballots invalidated on similar or other grounds. Thus, both candidates ballots serve as a common question of law and fact for this Court to decide in the same action. CONCLUSION For the foregoing reasons, McSally respectfully requests that the Court permit McSally to intervene to protect her interest in the accurate certification and resolution of the November, election. 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 --

8 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 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: Daniel Clayton Barr Perkins Coie LLP P.O. Box 00 Phoenix, AZ Attorney for Plaintiffs s/ Tracy Hobbs --