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 MOTION TO DISMISS VERIFIED COMPLAINT 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 Intervenors Martha McSally and McSally for Congress move to dismiss Plaintiffs Verified Complaint for Injunctive and Declaratory Relief, pursuant to Rule (b)() and (), Fed. R. Civ. P. This Court lacks jurisdiction to hear Plaintiffs claims. Fed. R. Civ. P. (b)(). Even if jurisdiction had attached, Plaintiffs fail to state claims for which this Court can grant relief. Fed. R. Civ. P. (b)(). I. THE COURT LACKS JURISDICTION TO HEAR THIS MATTER. A. Plaintiffs Lack Standing to Invoke the Court s Jurisdiction. Before this Court can consider the merits of [Plaintiffs ] claims or the propriety of the relief requested, they must show they are entitled to invoke the judicial process. See Linda R.S. v. Richard D., 0 U.S., (). One of the many requirements Plaintiffs must meet is that, for each claim set forth in their Complaint, there must be a plaintiff with standing. 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 ). For Article III standing, a plaintiff must adequately establish: () an injury in fact (i.e., a concrete and particularized invasion of a legally protected interest ); () causation (i.e., a fairly... trace[able] connection between the alleged injury in fact and the alleged conduct of the defendant); and () redressability (i.e., it is likely and not merely speculative that the plaintiff s injury will be remedied by the relief plaintiff seeks in bringing suit). Sprint Commc ns Co., L.P. v. APCC Servs., Inc., U.S., - (0) (internal citations and some quotation marks omitted). Plaintiffs come up short on many fronts, particularly on injury-in-fact and redressability. The redressability prong of the standing doctrine requires that [a] plaintiff who seeks to invoke judicial power stand to profit in some personal interest. Simon, U.S. at. The only non-individual plaintiff in this case, Ron Barber for Congress, does not stand to benefit from a successful prosecution of this lawsuit. The lawsuit alleges that Defendants have disenfranchised only eligible voters. (Compl., Doc., at.) But Congressman Barber is down ballots. So even if Plaintiffs allegations were true, the --

3 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 campaign still comes up more than two dozen votes shy of victory. Not only is this insufficient to invoke the Court s jurisdiction, but it means, as discussed below, Plaintiff Ron Barber for Congress claims are futile and, like the remainder of the Plaintiffs claims, insufficient to state a claim for which this Court can grant relief. B. Untimely and Inapposite Claims Do Not Command Jurisdiction. Plaintiffs claims are all untimely, either brought too late or too early, as a matter of law. Only missing votes can be cause to halt a canvass. Arizona election law requires electors to bring issues concerning missing votes to county election officials attention prior to certification of the official canvass. A.R.S. -(A), (C). The county boards of supervisors must otherwise canvass the official results between six and twenty days following the general election, A.R.S. -(A). An elector who fails to timely raise ballot tabulation issues may only thereafter challenge the election outcome through an election contest. See A.R.S. -. Plaintiffs were, therefore, required to bring Counts One through Five of the complaint prior to certification of the official canvass by the counties. On the other hand, Count Six is premature because it represents an unripe election contest brought in the improper forum. C. An Election Contest is Premature and Not Proper in this Court. The sole form of action to challenge an election outcome in Arizona is an election contest. 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 only bring an election contest 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). --

4 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 Plaintiffs claims challenging the conduct of this election under Arizona law are essentially a premature election contest. See Donaghey, 0 Ariz. at, P.d at. Such contests do not ripen until the Secretary of State certifies the final canvass. A.R.S. -(A). No Arizona court has jurisdiction over these claims until that date. See Hunsaker, Ariz. at, P.d at 0. This court should, therefore, dismiss Count Six. D. The Court Should Abstain, As Ongoing State Processes Go Forward. Abstention counsels that this Court should dismiss this action. See generally Younger v. Harris, 0 U.S. (). The Ninth Circuit has long recognized that federal courts must abstain under Younger if four requirements are met: () a state-initiated proceeding is ongoing; () the proceeding implicates important state interests; () the federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding; and () the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e., would interfere with the state proceeding in a way that Younger disapproves. San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, F.d 0, 0 (th Cir. 0). All four Younger factors are present. First, there is an ongoing state proceeding. The canvass awaits certification by the Secretary of State on December,. A.R.S. -. Given the close count in this race, the Secretary of State must then move for a recount pursuant to A.R.S. -. Administrative proceedings like the one at issue in this case fall under the Younger doctrine. See, e.g., Ohio Civil Rights Comm n v. Dayton Christian Schools, Inc., U.S. () (upholding the district court s decision to abstain from equitable proceedings against an on-going sex discrimination proceeding before the state civil rights commission); Middlesex County Ethics Comm n v. Garden State Bar Ass n, U.S. () (applying Younger to an state administrative proceeding). Furthermore, administrative proceedings that provide for state court review, as in this case, are treated as one unitary proceeding for purposes of abstention. See San Jose, F.d 0, 0- (see cases cited therein). In this case, the Arizona election --

5 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 certification is ongoing and for a federal court to disrupt its integrity by intervening in mid-process would demonstrate a lack of respect for the State as sovereign. New Orleans Public Serv. v. Council of New Orleans, U.S. 0, () ( NOPSI ) (citation omitted). Second, Plaintiffs suit implicates an important state interest. Election law, as it pertains to state and local election, is for the most part a preserve that lies within the exclusive competence of the state courts. Vallejo v. City of Tucson, No. CV 0-00 TUC DCB, 0 WL, at * (D. Ariz. June, 0). The procedures for counting votes, certifying the election, and contesting the results are all the providence of the state of Arizona. A.R.S. -0 et seq. The State has an interest in enacting reasonable regulations of parties, elections, and ballots. Indeed the government must play an active role in structuring elections. Ariz. Libertarian Party v. Bennett, CV---TUC-CKJ, WL 0, at * (D. Ariz. March, ). Third, in this case, the state court proceedings provide the Plaintiffs with an adequate opportunity to litigate their federal claims. Any procedural challenge to the election could have been brought prior to election day (Kerby v. Griffin, Ariz.,, P.d, ()) and any contest of the election results can be brought within five days after the election is certified (A.R.S. -(A)). Fourth, there is no question that this case would enjoin the ongoing state proceeding or have the practical effect of doing so the Secretary of State has already responded to a letter from Plaintiffs counsel and indicated that the Secretary is monitoring this case. See Exhibit A, Ltr. from K. Bennett to Plaintiffs counsel, dated //. For these reasons, the Court should abstain from hearing this case under the Younger doctrine. Finally, Younger abstention is warranted here because this case presents the type of exceptional circumstances identified by the Supreme Court in NOPSI. Sprint Commc'ns, Inc. v. Jacobs, S. Ct., - () ( Younger extends to the three exceptional circumstances identified in NOPSI, but no further. ). These exceptional --

6 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 circumstances exist when the federal court is asked to intervene in one of three types of proceedings: () ongoing state criminal prosecutions, () certain civil enforcement proceedings that are akin to criminal prosecutions, and () pending civil proceedings involving certain orders... uniquely in furtherance of the state courts ability to perform their judicial functions. Sprint, S. Ct. at. The present action falls into the category of exceptional circumstance cases that strike at the core of the state s judicial process. See ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, F.d, (th Cir. ) (citing several examples of core orders). In this case, the Plaintiffs are asking this Court to enjoin officers and boards of the state of Arizona, Pima County, and Cochise County from engaging in duties mandated by law that are central to the function of their office. Plaintiffs requested injunction would also prevent the state court from initiating and supervising a recount and presiding over an election contest. Enjoining the core orders and functions of these officers presents the type of exceptional circumstances identified by the Supreme Court in NOPSI and make this case appropriate for abstention under the Younger doctrine. This Court should also abstain from exercising jurisdiction in this case pursuant to the Burford doctrine. See Burford v. Sun Oil Co., U.S., (). Under the Burford abstention doctrine, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: () when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar ; or () where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. NOPSI, U.S. at (citation omitted). The State of Arizona, like every In particular, the Burford doctrine is appropriate when the state has created a highly controlled and regulated system to administrate an enterprise of statewide import, especially where the state has permitted expeditious and adequate review of any administrative decisions in state court. Burford, U.S. at ; see also Alabama Pub. Serv. Comm'n v. Southern R. Co., U.S., () (abstention appropriate because there was an absolute right to appeal the Alabama Public Service Commission order in state court). --

7 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 state, has constructed a highly regulated system for administering its elections, which is tailored to the unique needs, requirements, and limitations of the state and its electorate. A.R.S. -0 et seq. Given the size and complexity of the state and municipal agencies overseeing the election process, and the ability of the electors to contest the action in state court, this Court should abstain from exercising jurisdiction in this case. See also Purcell v. Gonzalez, U.S., (0) (per curiam) (Stevens, J., concurring) (noting that allowing state election process to proceed to its conclusion also yields a better record for judicial review). II. PLAINTIFFS DO NOT STATE CLAIMS FOR RELIEF. A. Plaintiffs Fail to State Claims for Violations of Equal Protection and Due Process of Law (Counts One, Two, Three). The Constitution provides that States may prescribe [t]he Times, Places, and Manner of holding Elections for Senators and Representatives, Art. I,, cl., and the [Supreme] Court therefore has recognized that States retain the power to regulate their own elections. Burdick v. Takushi, 0 U.S., (). As relevant here, the Equal Protection Clause imposes two narrow constraints on a state s 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). But this is a very difficult standard for a plaintiff to meet, which explains why the Supreme Court in Bush v. Gore admonished that its holding was limited to the present circumstances. Id. at 0. A plaintiff cannot demonstrate disparate treatment unless the individual can show that he or she 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. ). Moreover, even disparate treatment of similarly situated parties may not be 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, --

8 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 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 v. City of Tucson, No. CV 0-00 TUC DCB, 0 WL, *- (D. Ariz. June, 0). Second, election regulations 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 flunk this flexible standard. See Dudum v. Arntz, 0 F.d 0, 0 (th Cir. ). The Equal Protection Clause allows the States considerable leeway to enact legislation that may appear to affect similarly situated people differently. Clements v. Fashing, U.S., (). There is an assumption that state laws are constitutional unless they are based solely on reasons totally unrelated to the pursuit of the State's goals and only if no grounds can be conceived to justify them. Id. at. There only needs to be a rational relationship between the state s law and a legitimate end. Id. Contrary to Plaintiffs assertions, the determination of whether to count or reject ballots is based in law rather than being arbitrary. In addition, the voters claimed to be identically situated are in fact not similarly situated. An early ballot is not the same as a provisional ballot, and unsigned early ballots are not the same as an early ballot with a mismatched signature. See generally, Miller v. Picacho Elementary Sch. Dist. No., Ariz., 0, P.d, () ( At first blush, mailing versus hand delivery may seem unimportant. But in the context of absentee voting, it is very important. ). Early voting is governed by an entirely different article of the Arizona Revised Statutes than provisional ballots. These procedures are governed by A.R.S. Tit. art., and art., respectively. The different treatment of these groups of voters is directly related to Arizona s vital interest in establishing procedural safeguards to prevent undue influence, --

9 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 fraud, ballot tampering, and voter intimidation. Ariz. Const. ar. VII. Pima and Cochise counties handling of early and provisional ballots, even if irregular, does not violate equal protection. Mere garden variety election irregularities, meaning irregularities that do not constitute pervasive error[s] that undermine[] the integrity of the vote... should be resolved through state-law remedies, regardless of whether they control the outcome of the vote or election. Krieger v. City of Peoria, WL 00 at * (D. Ariz., Aug., ); Bennett v. Yoshina, 0 F.d (th Cir. ). Garden variety election irregularities include human errors, negligence, or even arbitrariness in counting or rejecting votes or an inadequate state response to illegal votes. Bennett, 0 F.d at. In the third count of their complaint, Plaintiffs also allege violations of the Due Process Clause. This count appears to be redundant with their equal protection counts, in that it focuses exclusively on alleged denial of disparate treatment. (See Compl., Doc., at -.) But 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 plaintiff must demonstrate a pervasive error that undermines the integrity of the vote, not mere garden variety election irregularities. See Vallejo, 0 WL, *. In any event, public policy favors exhausting state law remedies first. Plaintiffs Application represents an effort by the principal Plaintiff (Campaign for Ron Barber) to bring what has been termed a sore loser law suit in federal court under, which is an attempt to obtain relief under a theory of federal law when the candidate does not prevail, or does not believe he will prevail, under fair and adequate state-law remedies. See Soules v. Kauaians for Nukolii Campaign Committee, F.d, (th Cir. ). This is a door federal courts refuse to risk opening, as it would only prolong the election process and allow the elaborate state election contest procedures, designed to assure speedy and orderly disposition or the multitudinous questions that may arise in the --

10 Case :-cv-0-ckj Document Filed // Page 0 of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 electoral process to be superseded by a Section gloss. Id. at -. Thus, in the spirit of restraint, federal courts have declined to hear cases of this nature, even in the fact of equal protection and due process claims. Id. B. The Arizona Constitution Does Not Provide Plaintiffs with a Claim (Count Four). Plaintiffs seize on Ariz. Const. art. II,, to argue that the free exercise of their right of suffrage has been infringed. As discussed above, there is no showing that Plaintiffs were treated differently from, or not equally to, those similarly situated. Further, they may only be entitled to injunctive relief if they can establish that a significant number of votes cast were not properly recorded or counted. See Chavez v. Brewer, Ariz. 0,, P.d, 0 (App. 0). And only then if they were a special class of voters for whose specific benefit provisions of the election code were enacted. See McNamara v. Citizens Protecting Tax Payers, --- P.d ----, WL, at * (Ariz. App. Oct. 0, ). These they do not establish. Plaintiffs shifting counts of the actual number of votes they claim are at issue do not yield confidence that they can do so, and, in any event, do not reach the significant number threshold in this election, as they would not change its result. Plaintiffs further fail to show that they are not simply members of the electorate, but instead are a special class whose free exercise has been substantially infringed. See id. A principle of Arizona election law that precedes statehood but remains true today is that a court may not go behind the certificate of the board of canvassers, and contest the election. See Territory ex rel. Sherman v. Bd. of Sup rs of Mohave Cnty., Ariz.,, P. 0 (Terr. ). Plaintiffs Count Four asks the Court to do just that; it should not be countenanced. C. The Help America Vote Act (HAVA) Does Not Forestall Dismissal (Count Five). HAVA s requirement that provisional ballots be provided does not impose a requirement to count provisional ballots in any specific manner. Instead, HAVA requires voters who are challenged or do not appear on the rolls at the polling place be provided -0-

11 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 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, 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. D. Arizona Election Law and Manuals Do Not Support Plaintiffs Claims (Count Six). As discussed above, the sole form of challenge to an election outcome in Arizona is a state contest within the jurisdiction of the superior court. Arizona law does not provide for an election contest on grounds that votes were inappropriately disqualified from the official canvass. Compare A.R.S. -(A) with Fla. Stat. Ann. 0.(c) (providing for an election contest premised on receipt of illegal votes and rejection of legal votes. ). Even assuming arguendo that Arizona s election code would permit court review and rehabilitation of disqualified ballots, the Equal Protection Clause prohibits a court from rehabilitating votes in an arbitrary manner. See Bush v. Gore, U.S., 0-0 (00) (citing Harper v. Virginia Bd. of Elections, U.S., ()). 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 00-0 The selective vote rehabilitation sought here is closely analogous to a partial recount rejected in Bush v. Gore. At issue there was whether the Florida Supreme Court violated the Equal Protection Clause by ordering a review of disqualified ballots from the 00 presidential election that resulted in an unequal opportunity for all such ballots to be rehabilitated. Id. Because the state court in Bush v. Gore failed to ensure that every ballot that may have been rehabilitated actually had an equal chance to be reviewed by election officials, the Supreme Court struck down the entire corrective recount as a violation of the Equal Protection Clause. Id. at 0-0. Plaintiffs request that this court provide an unequal opportunity for voters whose ballots were disqualified to have votes reviewed and rehabilitated. Arbitrary and imbalanced treatment of a class of voters is precisely what the Supreme Court forbade in Bush v. Gore. Furthermore, Arizona law does not empower courts to contradict election officials judgment to disqualify ballots from inclusion in an official canvass. Election contests are purely statutory, meaning that courts have no jurisdiction to deviate from the election code. 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. ). 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. Ct. App. Oct. 0, ) (holding courts could not imply a private cause of action to enforce provisions of state campaign finance law). 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 ones to the canvass. There are rigorous procedural safeguards in place to govern vote tabulation. See, e.g., A.R.S. -(A)-(G); Arizona Secretary of State Election Procedures Manual ( Election Manual ) at -. And the county has sole discretion to Available at --

13 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 review and rehabilitate disqualified votes, but may only do so prior to certifying the official canvass. See Election Manual at (noting the County Recorder may attempt to contact voters whose early ballots appear to contain invalid signatures if time permits. ). It would contravene the legislature s intent for the court to do-over that process. For example, neither the Secretary of State, nor the Court has authority to rehabilitate unsigned early ballots. If the affidavit is insufficient, the vote shall not be allowed. A.R.S. -(B); see also, Reyes v. Cuming, Ariz.,, P.d, (Ct. App. ) ( Without the proper signature of a registered elector on the outside, an absentee ballot is void and may not be counted. ). [E]lection statutes are mandatory, not advisory, or else they would not be law at all. If a statute expressly provides that non-compliance invalidates a vote, then the vote is invalid. Miller v. Picacho Elementary Sch. Dist. No., Ariz., 0, P.d, (). Finally, the government is not bound by the unauthorized acts of its agents. Saulque v. United States, F.d, (th Cir. ) (citing Fed. Crop Ins. Corp. v. Merrill, U.S. 0 ()). Arizona law indicates that election officials should direct voters who have moved to the polling place for the new address. A.R.S. -(A). Ballots cannot be counted if the voter is in the wrong precinct/voting area. Elections Manual at. Thus, poll workers and other election officials were not permitted to tell voters to cast provisional ballots in a place where the voter was not permitted to vote. To the extent this occurred, the County cannot be bound by any poll workers isolated mistakes. Even if the State and the Counties could arguably be bound by the poll workers alleged inadvertent errors, this is not a valid reason for forcing the County Recorders to validate votes that were cast in violation of state law. See United States v. Nez Perce Cnty, F. Supp., (D. Idaho ) (stating, the [government] is not bound or estopped by the acts of its agents in doing what the law does not sanction or permit. ). E. The Doctrine of Laches Applies to Bar Plaintiffs Claims. Courts must deny injunctive relief in the context of elections where a party s unreasonable delay in bringing its claim prejudices the opposing party or the --

14 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 administration of justice. Arizona Pub. Integrity Alliance Inc. v. Bennett, No. CV-- 00-PHX-NVW, WL 0, at * (D. Ariz. June, ) (citation omitted) (holding laches barred a constitutional challenge to state nomination petition statute filed two weeks before the state began signature validation). A plaintiff s delay in bringing a last-minute legal challenge to an election procedure is patently unreasonable where the plaintiff knew of the grounds for the challenge well in advance. 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); Tilson v. Mofford, Ariz., 0-, P.d, -0 () ( [T]he procedures leading up to an election cannot be questioned after the people have voted, but instead the procedures must be challenged before the election is held. ).. The requisite prejudice to trigger laches is present where granting the requested relief would place an unfair burden on state election officials. Sotomayor v. Burns, Ariz.,, P.d, 00 (00) (holding laches barred action to force major revisions to official analysis of a state ballot initiative on the eve of the printing deadline). Plaintiffs claims are barred by laches because they unreasonably delayed bringing this action until just before the Secretary of State must certify the final canvass. Plaintiffs were all aware of their alleged disenfranchisement well in advance of bringing this action. Plaintiffs claiming disenfranchisement based on rejection of their ballot for a missing or invalid signature, (Compl., Doc., at -), could have challenged Arizona s election procedure on this point prior to Election Day. Plaintiffs whose provisional ballots were disqualified were on notice as of November, the statutory deadline for counties to complete provisional ballot processing. See A.R.S. -(E), Election Manual at (discussing directions for tracking provisional ballot processing). Yet rather than proceed to court immediately, plaintiffs held this action until the last possible moment. The resulting timing of this litigation mere days before the Secretary of State must certify the canvass is entirely unreasonable. This delay also results in substantial prejudice --

15 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 because this Court must now decide on an expedited basis whether state officials must undertake a massive and unprecedented review of rejected ballots on the eve of certifying the election and triggering almost certain recount and election contest proceedings. Cf. Sotomayor, Ariz. at, P.d at 00. Laches must bar Plaintiffs from derailing Arizona s election procedures on grounds that could have been addressed by a court some time ago. F. Plaintiffs Are Estopped from Bringing a Challenge to Long-Set Election Procedures. In Arizona, it has been frequently determined that if parties allow an election to proceed in violation of the law which prescribes the manner in which it shall be held, they may not, after the people have voted, then question the procedure. Kerby v. Griffin, Ariz.,, P.d, (). This principle limits a court s authority to enjoin election proceedings to the time before the results are certified. See Tilson, Ariz. at 0-, P.d at -0. Plaintiffs are estopped to raise challenges to Arizona election procedures that require rejection of ballots with insufficient signatures. State election procedure on this point is clear and was available to plaintiffs well in advance of the election. Tilson, Ariz. at 0-, P.d at -0. Plaintiffs did not raise any legal challenge to these procedures prior to the election and therefore cannot do so now. Id. G. Plaintiff Ron Barber for Congress Claims are Futile and Should Be Dismissed. Any irregularity alleged in an election contest must reach enough votes to call the outcome of the election into doubt. Miller v. Picacho Elementary Sch. Dist. No., Ariz., 0, P.d, () (holding irregularity in delivering absentee ballots was pervasive enough to set election aside). Even if Count Six were properly before a an Arizona court as an election contest, there could be no relief because Plaintiffs do not allege that county officials failed to direct a sufficient number of electors to the correct polling places to call the outcome of the election into question. See Miller, Ariz. at 0. P.d at. Because this --

16 Case :-cv-0-ckj Document Filed // Page of One Arizona Center, 00 E. Van Buren, Suite 00 Phoenix, Arizona 00-0 deficiency would be fatal to an election contest in state court at this stage, this court should dismiss Count Six for failure to state a claim. Even if allegedly false statements by elections workers could cause votes not to be counted, Plaintiffs do not allege that this occurred often enough to affect the results of the election in CD-. Plaintiffs allege that [t]he ballots of at least voters were rejected in similar circumstances. (Compl., Doc., at.) Even if each and every one of those ballots was cast for Congressman Barber and even if each of those voters were actually Plaintiffs in this matter, the outcome of the election would not change. Simply, election officials alleged errors do not have the force of law and cannot affect the outcome of the election. III. CONCLUSION For the foregoing reasons, Intervenors Martha McSally and McSally for Congress respectfully request that this action be dismissed. Plaintiffs claims should be dismissed for lack of standing and because they are untimely and inapposite (Counts One through Five should have been brought prior to certification of the canvass by the counties; Count Six is a premature, misplaced election contest). This Court should abstain from exercising jurisdiction in this matter as the ongoing state election processes go forward. In addition, Plaintiffs Counts One, Two and Three fail to state claims for violations of equal protection and due process. The Arizona Constitution does not provide Plaintiffs with a cognizable claim in their Count Four, nor does HAVA do that in their Count Five. Finally, Arizona s election law and administrative manuals do not give life to Plaintiffs Count Six. Plaintiffs claims are further barred by laches, estoppel, and futility. In sum, the statute-provided processes here must be permitted to advance to their rightful ends the law provides for nothing less, and nothing else. --

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: Daniel Clayton Barr Perkins Coie LLP P.O. Box 00 Phoenix, AZ Attorney for Plaintiffs s/ Tracy Hobbs --