Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

ARMANDO CORONADO;

)

JOSEPH RUBIO;

)

MICHAEL GARZA;

)

MICHELE CONVIE;

)

and RAYMOND LEWIS, JR.,

)

)

)

)

)

Plaintiffs, )

vs.

)

)

JANET NAPOLITANO, Governor;

)

JANICE K. BREWER, Secretary of

)

State of Arizona; F. ANN RODRIGUEZ,

)

Pima County Recorder; and HELEN PURCELL, )

Maricopa County Recorder, in their official

)

capacities,

)

)

Defendants. )

COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF, AND NOMINAL MONETARY DAMAGES
CIVIL ACTION NO. ______________

INTRODUCTION 1. Plaintiffs bring this civil rights action to remedy the Defendants’ arbitrary and unconstitutional deprivations of their basic right to vote. Specifically, Plaintiffs challenge: (a) Defendants’ denial of voting rights to people convicted of non-common law felonies; and (b) Defendants’ requirement that people with felony convictions pay all of their legal financial obligations (“LFOs”) before they are eligible for restoration of their voting rights. Defendants’ disfranchisement of Plaintiffs violates Plaintiffs’ fundamental right to vote and undermines our representative system of government. Plaintiffs seek declaratory and injunctive relief, as well as nominal monetary damages.

Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 2 of 14 2. Denying the right to vote based on acts which were not felonies at common law constitutes a deprivation of a fundamental right that is not permitted by any constitutional provision or exception and does not serve a compelling or legitimate governmental interest. 3. Defendants deny the right to vote to all persons convicted of a felony in Arizona solely because they have not paid their court-imposed LFOs including fines, restitution, and probation costs. Denying the right to vote based on one’s failure or inability to pay LFOs is the modern equivalent of a poll tax and serves no compelling or legitimate governmental interest. 4. The above deprivations violate Plaintiffs’ rights under the Fourteenth and Twenty -Fourth Amendments to the United States Constitution, 42 U.S.C. § 1973h of the Voting Rights Act, Article 2, Section 21 of the Arizona Constitution, and the Privileges and Immunities Clauses of the United States and Arizona Constitutions. The relief that Plaintiffs seek in this case is necessary to address these constitutional violations and to enable Plaintiffs to participate in the democratic process.
JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(3) and (4), 42 U.S.C. § 1971(d), 42 U.S.C. § 1973j(f), and this suit also is authorized by 42 U.S.C. § 1983. This Court may exercise ancillary jurisdiction under 28 U.S.C. § 1367(a) to hear claims under the Constitution and laws of Arizona. This Court has jurisdiction to grant both declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202. 6. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) because Defendants Napolitano, Brewer, and Purcell are situated within this judicial district.
PLAINTIFFS 7. Plaintiff Armando Coronado is a citizen of the United States and a resident of Pima County, Arizona. He was convicted of a felony drug offense on August 6, 1990 and his sentence included an order to pay $2,740.00 in court fines and $100.00 to a victim compensation fund. Mr. Coronado received an absolute discharge from the Department of Corrections on May 3, 1994, but still owes the court system $2,840.00 in addition to all interest that has accrued on his debt. Mr. Coronado
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 3 of 14 applied for restoration of his civil rights on October 25, 1999 pursuant to Sections 13-906 and 13-907 of the Arizona Revised Statutes. The State of Arizona (“the State”) denied his application. He wishes to vote in upcoming elections, but remains ineligible because of his outstanding LFOs.
8. Plaintiff Joseph Rubio is a citizen of the United States and a resident of Maricopa County, Arizona. He was convicted of attempted aggravated domestic violence in or about January 2006. The State issued Mr. Rubio a Certificate of Absolute Discharge on February 23, 2007. Mr. Rubio applied for restoration of his civil rights in or about March of 2007. The State denied Mr. Rubio’s application on April 10, 2007 on the ground that he failed to pay the costs associated with his term of probation which amounts to $55 plus any accrued interest. He wishes to vote in upcoming elections, but remains ineligible because of his outstanding LFOs.
9. Plaintiff Michael Garza is a citizen of the United States and a resident of Maricopa County, Arizona. He was convicted of a felony drug offense in Arizona on December 4, 1992. Mr. Garza has completed his term of imprisonment, parole, and probation. However, he still owes over $3,700 in court fines and restitution plus any accrued interest. He wishes to vote in upcoming elections, but remains ineligible because of his outstanding LFOs.
10. Plaintiff Michele Convie is a citizen of the United States and a resident of Pima County, Arizona. She was convicted of a felony drug offense in California on September 12, 1975, and of four felony drug offenses in Arizona on July 1, 1981, October 5, 1985, November 8, 1985, and January 26, 1986. Ms. Convie is no longer in prison, on parole, or on probation. She wishes to vote in upcoming elections, but is ineligible because of her felony drug convictions.
11. Plaintiff Raymond Lewis, Jr. is a citizen of the United States and a resident of Pima County, Arizona. He was convicted of two felony drug offenses, one on July 10, 1990 and the other one on August 10, 1998. Mr. Lewis is no longer in prison, on parole, or on probation. He wishes to vote in upcoming elections, but is ineligible because of his felony drug convictions.
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 4 of 14 DEFENDANTS
12. Defendant Janet Napolitano is the Governor of the State of Arizona. As the State’s chief executive officer, she is ultimately responsibility for implementing Arizona law, including violations of election and other criminal laws, rules, and regulations. She is sued in her official capacity only for actions that she took under color of state law.
13. Defendant Janice K. Brewer is the Secretary of State of Arizona and, as such, the chief election officer for the State. Ariz. Rev. Stat. § 16-142. She is sued in her official capacity only for actions that she took under color of state law.
14. Defendant F. Ann Rodriguez is the county recorder for Pima County, the official custodian of the voter registration books, and is responsible for the registration of voters in her county pursuant to Ariz. Rev. Stat. §§ 16-163, 16-165, 16-166, and 16-168. She is required to cancel the registration of persons convicted of any felony. Ariz. Rev. Stat. § 16-165. She is sued in her official capacity only for actions that she took under color of state law.
15. Defendant Helen Purcell is the county recorder for Maricopa County, the official custodian of the voter registration books, and is responsible for the registration of voters in her county pursuant to Ariz. Rev. Stat. §§ 16-163, 16-165, 16-166, and 16-168. She is required to cancel the registration of persons convicted of any felony. Ariz. Rev. Stat. § 16-165. She is sued in her official capacity only for actions that she took under color of state law.
FACTUAL ALLEGATIONS RELEVANT TO PLAINTIFFS CORONADO, RUBIO AND GARZA 16. Section 13-912 of the Arizona Revised Statutes provides that: Any person who has not previously been convicted of another felony shall automatically be restored to any civil rights that were lost or suspended by the conviction if the person both: (1) Completes a term of probation or receives an absolute discharge from imprisonment [and] (2) Pays any fine or restitution imposed. 17. A court may order a convicted defendant to pay a fine as a part of his or her sentence. Ariz. Rev. Code §§ 801(A) and (B).
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 5 of 14 18. If a court requires a defendant to pay a fine, restitution, a penalty assessment, or incarceration costs or surcharges, such LFOs become a condition of the defendant’s probation. Ariz. Rev. Stat. § 13-808 (B). 19. Section 2(C) of Article VII of the Arizona Constitution states that no person convicted of a felony shall be qualified to vote “unless restored to civil rights.” 20. Plaintiff Armando Coronado is a citizen of the United States and a resident of Pima County, Arizona. 21. Mr. Coronado was convicted of a felony drug offense on August 6, 1990 and the sentencing court ordered him to pay a total of $2,840.00 in court fines and restitution. 22. Pursuant to Arizona law, Mr. Coronado applied for and received an absolute discharge from his conviction on May 3, 1994. 23. The State denied Mr. Coronado’s request for restoration of his civil rights because he owes $2,840.00 in court fines and restitution payments plus accrued interest. 24. Thus, Mr. Coronado was and remains ineligible for automatic restoration of his voting rights under Section 13-912 of the Arizona Code. 25. Plaintiff Joseph Rubio is a citizen of the United States and a resident of Maricopa County, Arizona. 26. Mr. Rubio was convicted of attempted aggravated domestic violence in or about January 2006. 27. The State issued Mr. Rubio a Certificate of Absolute Discharge on February 23, 2007. 28. Mr. Rubio applied for restoration of all of his civil rights in or about March of 2007. 29. The State denied Mr. Rubio’s rights restoration request on April 10, 2007 on the ground that he failed to pay the costs associated with his probation. 30. Mr. Rubio was and remains ineligible for automatic restoration of his voting rights under Section 13-912 of the Arizona Code.
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 6 of 14 31. Plaintiff Michael Garza is a citizen of the United States and a resident of Maricopa
County, Arizona.
32. Mr. Garza was convicted of a felony drug offense in Arizona on December 4, 1992.
33. Although Mr. Garza has completed his term of imprisonment, parole, and probation, he
still owes over $3,700 in court fines and restitution plus any accrued interest.
34. Mr. Garza was and remains ineligible for restoration of his voting under Section 13-912
of the Arizona Code.
35. Plaintiffs Coronado, Rubio, and Garza are suffering irreparable injury as a result of the
denial of their right to vote and they have no adequate remedy at law.
FACTUAL ALLEGATIONS RELEVANT TO ALL PLAINTIFFS
36. In March of 1867, prior to passage of the Fourteenth Amendment, Congress adopted a
Reconstruction Act which required confederate states seeking readmission to the Union to grant
universal suffrage to all males regardless of race, color, or previous condition of servitude.
37. Section 5 of the Reconstruction Act provided that:
[W]hen the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law . . . said State shall be declared entitled to representation in Congress . . . .
Reconstruction Act of Mar. 2, 1867, ch. CLII (1867) (emphasis added).
38. The Thirty-Ninth Congress proposed the Fourteenth Amendment to the United States
Constitution in June of 1866 and the states ratified the amendment in July of 1868.
39. Section 2 of the Fourteenth Amendment states that:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 7 of 14 such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number the male citizens twenty-one years of age in such State.
U.S. Const. amend. XIV, § 2 (emphasis added).
40. Congress also enacted a series of statutes known as “Enabling or Readmission Acts” in
1868 and 1870 which accorded confederate states representation in Congress.
41. The Readmission Act for Arkansas, the first state readmitted, declared that:
[T]he State of Arkansas is entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabitants of said State . . . .
Act of June 22, 1868, c. 69, 15 Stat. 71 (emphasis added).
42. Congress imposed the same condition, with only slight variations in language, in the
statutes that readmitted the remaining confederate states. See Act of June 25, 1868, c. 70, 15 Stat. 73;
Act of Jan. 26, 1970, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act of Feb. 23, 1870, c.
19, 16 Stat. 67; Act of Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363.
43. The possession, use, sale, or manufacturing of narcotic drugs were never common
felonies.
44. Attempted aggravated domestic violence was never a common law felony.
45. Arizona’s first constitution, which was drafted in 1910 and adopted in 1912, stated that
“[n]o person under guardianship, non compos mentis, or insane, shall be qualified to vote at any
election, nor shall any person convicted of treason or felony, be qualified to vote at any election unless
restored to civil rights.” Ariz. Const. art. VII, § 2 (effective November 1912).
46. Although Article VII of the Arizona Constitution was amended in 1962 and 2000, the
following language, which is currently in Article VII, Section 2(C) has remained unchanged since
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 8 of 14 1912: “nor shall any person convicted of treason or felony, be qualified to vote at any election, unless restored to civil rights.”
47. Section 13-105(16) of the Arizona Revised Statutes defines a “felony” as “an offense for which a sentence to a term of imprisonment in the custody of the state department of corrections is authorized by any law of this state.” Ariz. Rev. Stat. § 13-105(16).
48. Section 2(C) in Article VII of the Arizona Constitution provides that: “No person who is adjudicated an incapacitated person shall be qualified to vote at any election, nor shall any person convicted of treason or felony, be qualified to vote at any election, unless restored to civil rights.”
49. The State’s disfranchisement of people with felony convictions is also embodied in sections 13-904(A) and 16-101(A)(5) of the Arizona Revised Statutes.
50. There are 176,103 people in the State convicted of a felony who currently do not have the right to vote in state or federal elections.
51. Whereas the State automatically restores the voting rights of a person convicted of only one felony who has paid his or her LFOs, a person convicted of two or more felonies must seek discretionary approval from the judge who either sentenced or discharged the person before the State restores his or her voting rights. Ariz. Rev. Stat. §§ 13-905 and 13-908.
52. Plaintiff Michele Convie is a citizen of the United States and a resident of Pima County, Arizona.
53. Plaintiff Raymond Lewis, Jr. is a citizen of the United States and a resident of Pima County, Arizona.
54. Plaintiffs were all convicted of non-common law felonies. 55. Plaintiffs are suffering irreparable injury as a result of the denial of their right to vote and have no adequate remedy at law.
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 9 of 14 COUNT ONE
(Disfranchisement for Failure to Pay LFOs) VIOLATION OF EQUAL PROTECTION CLAUSE 56. The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that: “No state shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”
57. Arizona law allows a person with only one felony conviction who has paid all of his or
her LFOs to receive automatic restoration of his or her civil rights, including the right to vote. Ariz.
Rev. Stat. § 13-913.
58. Although Plaintiffs Coronado and Rubio only have one felony conviction, they remain
ineligible for automatic restoration of their voting rights because they owe outstanding LFOs.
59. Defendants’ requirement that people with a felony conviction pay all of their LFOs as a
precondition to being eligible for restoration of their voting rights unlawfully denies Plaintiffs
Coronado and Rubio equal protection under the law.
COUNT TWO (Disfranchisement for Failure to Pay LFOs) VIOLATION OF THE TWENTY-FOURTH AMENDMENT TO THE U.S. CONSTITUTION AND 42 U.S.C. § 1973h of the VOTING RIGHTS ACT 60. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.
61. The Twenty-Fourth Amendment to the U.S. Constitution states that:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State for reason of failure to pay any poll tax or other tax.
62. Section 1973h in Title 42 of the United States Code prohibits a state from denying or
abridging the right of any citizen to vote based on that citizen’s failure to pay a poll tax as a prerequisite
to voting.
63. Section 13-912 of the Arizona Code conditions the right to vote upon a convicted
person’s payment of LFOs. 9

Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 10 of 14 64. The requirement set forth in Section 13-912 is, therefore, invalid because it contradicts both the Twenty-Fourth Amendment and 42 U.S.C. § 1973h.
COUNT THREE (Disfranchisement for Failure to Pay LFOs) VIOLATION OF ARIZONA CONSTITUTION ARTICLE 2, SECTION 21 65. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 66. Article 2, Section 21 of the Arizona Constitution states that: “All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” 67. Defendants’ denial of Plaintiffs Coronado and Rubio’s fundamental right to vote based upon their failure or inability to pay LFOs unlawfully denies them the free exercise of the right of suffrage that Article 2, Section 21 of the Arizona Constitution provides.
COUNT FOUR (Disfranchisement for Failure to Pay LFOs) VIOLATION OF PRIVILEGES AND IMMUNITIES CLAUSES IN UNITED STATES AND ARIZONA CONSTITUTIONS
68. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 69. Section 1 of the Fourteenth Amendment to the United States Constitution provides that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .” 70. Section 13 in Article 2 of the Arizona Constitution declares that: “No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.” 71. State restrictions that deny the fundamental right to vote based upon the failure to pay LFOs unlawfully deny rights, privileges, immunities and the protections of equality afforded by the United States and Arizona Constitutions.
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 11 of 14 COUNT FIVE
(Disfranchisement for Conviction of Non-Common Law Felony) VIOLATION OF EQUAL PROTECTION CLAUSE
72. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 73. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 74. The possession, use, sale, or manufacturing of narcotic drugs and the crime of attempted aggravated domestic violence were never common law felonies. 75. Defendants’ denial of Plaintiffs’ right to vote based on their felony drug convictions serves no compelling governmental state interest. 76. The State’s disfranchisement of Plaintiffs based on their convictions for non-common law felonies denies their right to equal protection under the law.
COUNT SIX (Disfranchisement for Conviction of Non-Common Law Felony) VIOLATION OF ARIZONA CONSTITUTION ARTICLE 2, SECTION 21 77. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 78. Section 21 in Article 2 of the Arizona Constitution states that: “All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” 79. Because neither the possession, use, sale, or manufacturing of narcotic drugs nor the crime of attempted aggravated domestic violence were never common law felonies, the State’s denial of Plaintiffs’ right to vote based on their conviction for non-common law felonies unlawfully denies Plaintiffs the free exercise of the right of suffrage that Article 2, Section 21 of the Arizona Constitution provides.
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 12 of 14 COUNT SEVEN
(Disfranchisement for Conviction of Non-Common Law Felony) VIOLATION OF PRIVILEGES AND IMMUNITIES CLAUSES
IN UNITED STATES AND ARIZONA CONSTITUTIONS 80. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 81. Section 1 of the Fourteenth Amendment to the United States Constitution provides that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .” 82. Section 13 in Article 2 of the Arizona Constitution declares that: “No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.” 83. The State’s denial of Plaintiffs’ right to vote based on their convictions for non-common law felonies unlawfully denies the rights, privileges, immunities, and the protections of equality that the United States and Arizona Constitutions afford.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully ask this Court to: (1) Exercise ancillary jurisdiction over Plaintiffs’ claims brought under the Constitution and laws of Arizona; (2) Declare that the denial of Plaintiffs Coronado and Rubio’s right to vote based on their failure or inability to pay LFOs violates the Fourteenth and Twenty-Fourth Amendments to the United States Constitution, 42 U.S.C. § 1973h of the Voting Rights Act, Article 2, Section 21 of the Arizona Constitution, and the Privileges and Immunities Clauses of the United States and Arizona Constitutions; (3) Declare that the denial of Plaintiffs voting rights based on their convictions for non -common law felonies violates the Fourteenth Amendment to the United States Constitution, Article 2, Section 21 of the Arizona Constitution, and the Privileges and Immunities Clauses of the United States and Arizona Constitutions;
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Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 13 of 14
(4) Issue preliminary and permanent injunctions enjoining Defendants and their agents,
employees, and representatives from denying Plaintiffs of their right to register and vote, and directing
Defendants to prepare and circulate a state registration form in accordance with this Court’s
declarations;
(5) Award Plaintiffs nominal damages for the denials of their right to vote;
(6) Award Plaintiffs’ their expenses, costs, fees, and other disbursements associated with the
filing and maintenance of this action, including reasonable attorneys’ fees, pursuant to 42 U.S.C. §§
1988 and 1973l(e);
(7) Exercise continuing jurisdiction over this action during the enforcement of its judgment;
and
(8) Award any other and further relief that this Court deems proper and just.
DATED this 30th day of May, 2007.
Respectfully submitted,
By: _/s/_LaughlinMcDonald____________________ Laughlin McDonald* Neil Bradley* Nancy G. Abudu* AMERICAN CIVIL LIBERTIES UNION VOTING RIGHTS PROJECT 2600 Marquis One Tower 245 Peachtree Center Ave. NE Atlanta, GA 30303-1227 Tel: (404) 523-2721 Fax: (404) 653-0331 lmcdonald@aclu.org nbradely@aclu.org nabudu@aclu.org *Pro Hac Vice Motions Pending
Daniel Pochoda (AZ Bar # 021979) Legal Director AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA PO Box 17148 Phoenix, AZ 85011-0148 Tel: (602) 650-1967 Fax: (602) 650-1376 dpochoda@acluaz.org 13

Case 2:07-cv-01089-SMM Document 1 Filed 06/01/07 Page 14 of 14 Attorneys for Plaintiffs
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 Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 1 of 18

1 TERRY GODDARD Attorney General
2
Firm Bar No. 14000 3 Mary O’Grady, No. 011434
Solicitor General 4 Barbara A. Bailey, No. 018230 5 Assistant Attorney General
1275 West Washington Street 6 Phoenix, Arizona 85007-1298 7 Tel: (602) 542-3333
Fax: (602) 542-8308 8 Attorneys for Defendant Governor Janet Napolitano

9
IN THE UNITED STATES DISTRICT COURT

10
DISTRICT OF ARIZONA

11

ARMANDO CORONADO; JOSEPH 12 RUBIO; MICHAEL GARZA; MICHELE 13 CONVIE; and RAYMOND LEWIS, JR.,

14

Plaintiffs,

No. CV07-01089 PHX SMM
MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6) AND MEMORANDUM OF POINTS AND

15

v.

AUTHORITIES IN SUPPORT THEREOF

16 JANET K. NAPOLITANO, Governor;
17 JANICE K. BREWER, Secretary of State of Arizona, F. ANN RODRIGUEZ, Pima
18 County Recorder; and HELEN PURCELL,
19 Maricopa County Recorder, in their official capacities,

(Assigned to the Honorable Stephen M. McNamee)
(Oral Argument Requested)

20

Defendants.
21

22
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendant Governor Janet K. Napolitano
23
moves to dismiss the Complaint and this action with prejudice for failure to state a
24
claim upon which relief can be granted. This motion is supported by the following
25
memorandum of points and authorities.
26

27

28

1

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 2 of 18

1

MEMORANDUM

2

Preliminary Statement

3

Plaintiffs’ Complaint asks the Court to disregard longstanding federal and state

4 constitutional law and grant felons the right to vote even if they have not completed the

5 terms of their lawfully imposed sentences. The Plaintiffs’ claims are based on two

6 novel theories: (1) the State discriminates against them on the basis of wealth because

7 the State does not restore civil rights to felons until they have completed all the terms of

8 their sentences, which may include the payment of fines; and (2) the State discriminates

9 against them because they “only” have committed crimes that were not felonies at

10 common law.

11

The constitutional sanction of felon disenfranchisement, however, has been well-

12 established for more than a century. Unlike other rights set out in the Constitution, the

right to vote is expressly limited as that right pertains to individuals who have chosen to
13

engage in criminal conduct. Indeed, the Supreme Court established decades ago that
14

the Constitution does not require states to restore voting rights to felons at any time—
15

even if they complete their sentence. Arizona chooses to restore such forfeited rights,
16
but requires in return that a felon complete all the terms of his sentence.
17
Under the reasoning of Supreme Court precedent, there is no equal protection
18
review required with regard to Plaintiffs’ challenge. Moreover, even if equal protection
19
concerns were implicated in the circumstances, Plaintiffs’ Complaint does not (and
20
cannot) overcome the heavy presumption in favor of upholding Arizona’s constitutional
21
and statutory provisions on felon disenfranchisement.
22
Neither do the many authorities that have addressed felon disenfranchisement
23
laws support Plaintiffs’ claim that the type of felony they committed governs whether

24
the State may take away their voting rights. Instead, those authorities stand for the

25
notion that states constitutionally may remove the right to vote from individuals who

26 engage in any or all types of felonies. Accordingly, the Court should dismiss Plaintiffs’

27 Complaint.

28 Overview of Arizona’s Felon Disenfranchisement Laws and Relevant Allegations

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Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 3 of 18

1

of the Complaint

2

Since Arizona became a state, its Constitution has limited the right to vote of

3 convicted felons. The Constitution provides, in part, with regard to voter qualifications:

4 “No person who is adjudicated an incapacitated person shall be qualified to vote at any

5 election, nor shall any person convicted of treason or felony, be qualified to vote at any

6 election unless restored to civil rights.” Ariz. Const. art. VII § 2 (underscoring added).

7

In accordance with that constitutional mandate, the Arizona Revised Statutes

8 provide that “[a] conviction for a felony suspends the following civil rights of the 9 person sentenced: 1. The right to vote.” Ariz. Rev. Stat. (“A.R.S.”) § 13-904(A).1 In

10 Arizona, a person who has been convicted of a single felony automatically regains his

11 civil rights if the person both “[c]ompletes a term of probation or receives an absolute

12 discharge from imprisonment” and “[p]ays any fine or restitution imposed.” A.R.S. §

13 13-912(A). Thus, upon completion of both the imprisonment and payment of financial

14 penalties imposed as a result of a felon’s criminal conviction, that person’s civil rights

15 are restored. 2 Those rights include the right to vote.

16

For persons who have been convicted of more than one felony, restoration of

17 civil rights is not automatic. Such felons must apply to the superior court to have their

18 civil rights restored. A.R.S. § 13-905 (setting forth the application process for

19 restoration of civil rights for persons who have completed probation); A.R.S. § 13-906

20 (setting forth the application process for restoration of civil rights for persons who have been discharged from prison). The superior court judge by whom the felon was
21
sentenced has discretion whether to grant restoration of the felon’s civil rights upon
22
application. A.R.S. § 13-908.
23

24 1 A felony is “an offense for which a sentence to a term of imprisonment in the custody

25 of the state department of corrections is authorized by any law of this state.” A.R.S. §

26

13-105(16). 2 The right to possess a weapon is not automatically restored, however. A.R.S. § 13-

27 912(B). In addition, under legislation enacted in 2007 the right to vote of persons

convicted of counterfeiting election returns is not automatically restored. See 2007 Ariz. 28 Sess. Laws ch. 295, § 5 (amending A.R.S. § 16-1011).

3

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 4 of 18

1

Arizona courts are authorized to impose fines in addition to, or in lieu of, prison

2 terms as sentences for felony convictions. See A.R.S. § 13-801. In addition, the

3 superior court may order that all or any part of a fine imposed on a convicted felon be

4 allocated as restitution for any economic loss that was caused by the felon’s crime.

5 A.R.S. § 13-804. In determining the amount of restitution, the superior court “shall not

6 consider the economic circumstances of the defendant.” A.R.S. § 13-804(C).

7

According to the Complaint, each of the five plaintiffs in this case has been

8 convicted of a felony under Arizona law. [Compl. ¶¶ 7-11] Plaintiffs Coronado, Rubio

9 and Garza were sentenced to pay fines, probation costs, restitution or some combination

10 of those costs. [Compl. ¶¶ 7-9] The Complaint alleges that each of those three

11 plaintiffs was denied restoration of his civil rights based on the failure to complete his

12 sentence by paying his outstanding financial obligations that resulted from his felony

conviction. [Id.]
13

Plaintiffs Convie and Lewis were convicted of multiple felonies. [Compl. ¶¶ 10-
14

11] The Complaint does not allege that either Ms. Convie or Mr. Lewis has ever
15

applied to obtain restoration of civil rights or that any such application was ever denied
16

by the superior court.
17

Legal Argument

18

I.

THE APPLICABLE STANDARD.

19

In deciding a motion to dismiss, courts accept all material allegations in the

20
complaint as true. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988).

21

Conclusory allegations of law and unwarranted inferences, however, are insufficient to

22
defeat a motion to dismiss for failure to state a claim. E.g., Fields v. Legacy Health

23 Sys., 413 F.3d 943, 951 n.5 (9th Cir. 2005) (citing Nat’l Ass’n for the Advancement of

24 Psychoanalysis v. Cal. Bd., 228 F.3d 1043, 1049 (9th Cir. 2000)); McGlinchy, 845 F.2d

25
at 810 (“[C]onclusory allegations without more are insufficient to defeat a motion to

26 dismiss for failure to state a claim.”).

27

Moreover, dismissal is warranted if the complaint lacks a cognizable legal theory

28 or insufficient facts under a cognizable legal claim. SmileCare Dental Group v. Delta

4

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 5 of 18

1 Dental Plan of Calif., Inc., 88 F.3d 780, 783 (9th Cir. 1996); Perry v. Beamer, 933 F.

2 Supp. 556, 557, 559 (E.D. Va.) (dismissing a complaint challenging a felon

3 disenfranchisement law because the legal theories raised by the complaint failed as a 4 matter of law), aff’d, 99 F.3d 1130 (4th Cir. 1996).

5 II.
6 7 8 9

THE U.S. AND ARIZONA CONSTITUTIONS PERMIT DISENFRANCHISEMENT OF ALL FELONS, INCLUDING THOSE WHO HAVE NOT COMPLETED ALL THE TERMS OF THEIR SENTENCES.
A. The Complaint Fails to State an Equal Protection Claim Because the U.S. and Arizona Constitutions Expressly Permit Felon Disenfranchisement.

10

Plaintiffs assert an equal protection violation based on Arizona’s requirement

11 that felons complete all the terms of their sentences, including the payment of all

12 outstanding fines and restitution payments, to be eligible to have their civil rights

13 restored. [Compl. ¶¶ 56-59] That claim fails as a matter of law, however, because the

14 Fourteenth Amendment expressly recognizes states’ rights to disenfranchise felons.

15 Moreover, even if a traditional equal protection analysis applies in this case, the claim

16 would fail because Arizona has a rational basis for requiring felons to complete all the

17 terms of their criminal sentences before restoring their civil rights.

18

1. Under Richardson, Arizona is not required to restore

felons’ civil rights until they complete all the terms of

19

their sentence.

20

Arizona’s Constitution expressly provides that “[n]o person who is adjudicated

21 an incapacitated person shall be qualified to vote at any election, nor shall any person

22 convicted of treason or felony, be qualified to vote in any election unless restored to

23 civil rights.” Ariz. Const. art. 7 § 2(C).3 That provision is sanctioned by the U.S.

24 Constitution’s Fourteenth Amendment, which expressly permits states to disenfranchise

25 felons.

26

27 3 Nearly every state in the Union has enacted felon disenfranchisement laws. See Johnson v. Florida, 405 F.3d 1214, 1218 (11th Cir. 2005) (noting that 48 states have such
28
laws).

5

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 6 of 18

1

Specifically, section 2 of the Fourteenth Amendment addresses the right to vote

2 for certain electors, officers and legislators. That section imposes on states the penalty

3 of reduced representation in federal government if such states deny the vote to eligible

4 individuals “except for participation in rebellion, or other crime.” U.S. Const. XIV

5 Amend. § 2 (emphasis added). In Richardson v. Ramirez, the Supreme Court

6 interpreted the language of section 2 in deciding a challenge to California’s felon

7 disenfranchisement laws. 418 U.S. 24, 56 (1974).

8

In Richardson, convicted felons sued California election officials for refusing to

9 register the plaintiffs to vote after the felons had completed their respective criminal

10 sentences. Id. at 26-27. California’s constitution excluded from voting persons

11 convicted “of any infamous crime.” Id. at 27. The Court held that felon

12 disenfranchisement laws are not subject to the same equal protection analysis as other

state limitations on the franchise. Id. at 54. Because that same amendment expressly
13

sanctions the disenfranchisement of felons, states may deny felons the right to vote if
14

states so choose. Id. at 54-56. Moreover, under Richardson, states are not required to
15

restore that right at any time, even upon completion of a felon’s sentence. Id. at 56.
16

Under Richardson, Arizona may constitutionally take away felons’ right to vote.
17

The fact that Arizona chooses to restore felons’ civil rights only after the felon has

18

completed all terms of his sentence does not render Arizona’s restoration process

19

unconstitutional.

20

2. Arizona’s civil rights restoration law is constitutional

21

under traditional equal protection analysis because it is

22

supported by a rational basis.

23

Even if a traditional equal protection analysis applies to Arizona’s civil rights

24 restoration process, Plaintiffs’ Complaint does not state an equal protection claim.

25 Plaintiffs do not (and cannot) allege that they are members of any protected class. E.g., 26 United States v. Hancock, 231 F.3d 557, 565 (9th Cir. 2000) (recognizing that the 27 defendant who was a multiple misdemeanor convict was not a member of a protected 28 class for purposes of an equal protection challenge). Neither is there any fundamental

6

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 7 of 18

1 right implicated by Arizona’s civil rights restoration process. Although the right to

2 vote is fundamental to citizens, felons do not have any right to vote—fundamental or

3 otherwise. Richardson, 418 U.S. at 56; see also Madison v. Washington, No. 78598-8,

4 ___ P.3d ___, 2007 WL 2128346, at *8-9 (Wash. July 26, 2007) (holding that under

5 Richardson, felons do not have a fundamental right to vote and applying rational basis

6 review to felon disenfranchisement law).

7

Thus, Arizona’s law must be upheld as long as it is rationally related to a

8 legitimate government interest. E.g., Hancock, 231 F.3d at 566 (where a law neither

9 implicates a fundamental right nor targets a suspect class, courts apply a rational basis

10 review in deciding equal protection challenges); Fields v. Palmdale Sch. Dist., 427 F.3d 11 1197, 1208 (9th Cir. 2005) (“government actions that do not affect fundamental rights

12 or liberty interests and do not involve suspect classifications will be upheld if . . . they
are rationally related to a legitimate state interest”). In addition, a “classification
13
neither involving fundamental rights nor proceeding along suspect lines is accorded a
14
strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 319 (1993). Moreover,
15
the person attacking the validity of the law has the burden “to negative every
16
conceivable basis which might support it.” Id. at 320 (internal quotation marks
17
omitted).
18
Arizona’s law regarding restoration of civil rights classifies felons into two
19
groups: those who complete their criminal sentences and those who do not. The
20
Complaint does not allege that Arizona has no legitimate interest in having felons
21
complete all the terms of their sentences, including the payment of any financial
22
penalties. Plaintiffs made a conscious decision to engage in felonious conduct,
23
knowing that conviction for such crimes would result in the loss of some of their civil
24
rights, including the right to vote. At the time Plaintiffs chose to commit felonies, they
25
knew that Arizona could sentence them to pay fines for their conduct and restitution for
26 the economic losses directly caused by their conduct to their victims. They also knew

27 that before they could ever have their civil rights restored, they would have to complete

28 all the terms of their sentences, whatever those sentences would be under Arizona law.

7

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 8 of 18

1

Arizona’s Legislature long ago made a policy choice about the financial

2 penalties that may be imposed as a result of a felony conviction. Similarly, the people

3 of Arizona, in adopting the Victims Bill of Rights, made a policy choice that persons

4 convicted of crimes—not their victims—should pay for the economic losses directly

5 caused by that criminal conduct. See Ariz. Const. art. 2 § 2.1(8). Requiring persons

6 who nonetheless choose to engage in that conduct to complete all of their sentence

7 before restoring their civil rights is rationally related to Arizona’s interest in deterring

8 crime, punishing crime, and compensating societal victims of their crime. E.g.,

9 Madison, 2007 WL 2128346, at *12 (“The State clearly has an interest in ensuring that

10 felons complete all of the terms of their sentence, and there is no requirement that the

11 State restore voting rights to felons until they do so.”).

12

Moreover, states have a legitimate interest in regulating the franchise, including

determining the qualifications of voters. E.g., Richardson, 418 U.S. at 53 (noting that
13
states may consider a person’s criminal record in determining voter qualifications);
14
Green v. Bd. of Elections of the City of New York, 380 F.2d 445, 451-52 (2d Cir. 1967)
15
(discussing the historical justifications for disenfranchising criminals); Madison, 2007
16
WL 2128346, at *12 (states have an interest “in limiting political participation of those
17
unwilling to abide by laws and in requiring the completion of all sentence elements
18
before the right to vote is restored”).
19
Under Richardson, felons have no right to vote if the state chooses to remove
20
that right. Accordingly, there can be no equal protection problem with Arizona’s
21
policy decision to require felons to complete their sentences before restoring their civil
22
rights. Moreover, even if an equal protection claim was viable, it fails here because
23
Arizona plainly has a legitimate interest served by its civil rights restoration process.
24
Accordingly, the Court should dismiss Plaintiffs’ equal protection claim based on the
25
failure to pay financial penalties.
26
B. Arizona’s Civil Rights Restoration Law Is Not a Poll Tax.

27

Plaintiffs assert that Arizona’s civil rights restoration process amounts to a poll

28 tax prohibited by the Twenty-Fourth Amendment and the Voting Rights Act, 42 U.S.C.

8

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 9 of 18

1 § 1973h. [Compl. ¶¶ 60-64] The Twenty-Fourth Amendment provides that the right to

2 vote in federal elections “shall not be denied or abridged by the United States or any

3 State by reason of failure to pay any poll tax or other tax.” U.S. Const. XXIV Amend.

4 § 1. That Amendment “was passed in order to combat the ‘disenfranchisement of the

5 poor[,]’ which was the intention of the early poll taxes.” Gonzalez v. Arizona, 485 F.3d

6 1041, 1049 (9th Cir. 2007) (quoting Harman v. Forssenius, 380 U.S. 528, 539 (1965)).

7

There is no allegation, much less any evidence, that Arizona’s requirement that

8 felons complete their sentences to have their civil rights restored was or is intended to

9 impose a tax on the right to vote. Plaintiffs’ poll tax claim fails for at least two reasons.

10 First, because felons have no right to vote, requiring them to complete all the terms of

11 their sentences, including payment of imposed financial penalties, cannot be a tax on
12 that right. In other words, a right must exist before it can be abridged or denied. E.g.,
Harman, 380 U.S. at 541 (to demonstrate invalidity of Virginia’s voting restriction, “it
13
need only be shown that it imposes a material requirement solely upon those who
14
refuse to surrender their constitutional right to vote in federal elections without paying a
15
poll tax”); see also Madison, 2007 WL at *10 (distinguishing the poll tax found
16
unconstitutional in Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966), and
17
stating that “[c]onvicted felons, on the other hand, no longer possess that fundamental
18
right as a direct result of their decisions to commit a felony”).
19
Second, Arizona’s civil rights restoration law does not make affluence or the
20
payment of any fee an electoral standard. E.g., Harper, 383 U.S. at 666 (The Equal
21
Protection Clause is violated “whenever it makes the affluence of the voter or payment
22
of any fee an electoral standard”). In the seminal poll taxes cases, the Supreme Court
23
struck down state laws that required every person in the state to pay a fee as condition
24
to voting. Harper, 383 U.S. at 664; Harman, 380 U.S. at 528. By contrast, Arizona
25
does not require persons who otherwise are eligible to vote to pay any fee to vote.
26 Arizona chooses to restore civil rights that properly had been stripped from persons
27 who committed a felony upon completion of those persons’ criminal sentence. A

28 financial cost to a felon associated with his crime to attain his forfeited civil rights does

9

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 10 of 18

1 not amount to a tax on the right to vote. Cf. Gonzalez, 485 F.3d at 1048-49 (rejecting

2 poll tax claim based on incidental costs that voter identification requirement would

3 have on voting; the challenged law did not make the payment of fee an electoral

4 standard).

5

C. Arizona’s Felon Disenfranchisement Law Does Not Violate the Free

and Equal Elections Clause of the Arizona Constitution.

6

7

The Free and Equal Elections Clause of the Arizona Constitution provides, “All

elections shall be free and equal, and no power, civil or military, shall at any time
8

interfere to prevent the free exercise of the right of suffrage.” Ariz. Const. art. 2 § 21.
9

That provision, however, must be read harmoniously and consistently with other
10

constitutional provisions. E.g., Arizona v. Jordan, 104 Ariz. 193, 196, 450 P.2d 383,
11
386 (1969) (courts have a duty to harmonize separate constitutional provisions “so that
12
the constitution is a consistent workable whole”).
13
Arizona’s Constitution expressly excludes from the franchise “any person
14
convicted of treason or felony,” unless that person has been “restored to civil rights.”
15
Ariz. Const. art. 7 § 2(C). Those two provisions easily can be read in harmony to
16
guarantee the free exercise of the right to vote for such persons who have such a right,
17
and to exclude felons from those persons who have such a right.

18
The Free and Equal Elections provision necessarily presumes that the right to

19
vote exists in the first place. Because felons do not have the right to vote under the

20
Arizona Constitution, requiring them to complete their sentence, including the payment

21 of financial penalties, does not violate the Free and Equal Elections Clause.

22

23

24

25

26

27

28

10

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 11 of 18

1

D. Arizona’s Felon Disenfranchisement Law Does Not Violate the

Privileges and Immunities Clauses of the Arizona and U.S.

2

Constitutions.

3
1. The Arizona equal privileges and immunities clause.
4
Arizona’s equal privileges and immunities (i.e., equal protection) clause
5
provides, “No law shall be enacted granting to any citizen, class of citizens, or
6
corporation other than municipal, privileges or immunities which, upon the same terms,
7
shall not equally belong to all citizens or corporations.” Ariz. Const. art. 2 § 13.
8
Plaintiffs do not identify any law that grants to any citizen or class of citizens
9 any privilege which does not, on the same terms, belong to all citizens. The “privilege”

10 about which Plaintiffs complain is the right to vote. That right has not been granted to

11 citizens on different terms. Instead, the right is granted to all, with the qualification

12 (upheld by Richards) that certain classes of citizens, including felons, may be excluded.

13 Stated another way, Plaintiffs are not similarly situated to citizens who are qualified to

14 vote. E.g., Stults Eagle Drug Co., v. Luke, 48 Ariz. 467, 475, 62 P.2d 1126, 1130

15 (Ariz. 1936) (privileges and immunities provision secures equality of opportunity “to

16 all persons and corporations similarly situated, and that is all that said constitutional

17 provision undertakes to guarantee”); Lindsay v. Cave Creek Outfitters, L.L.C., 207

18 Ariz. 487, 494, 88 P.3d 557, 564 (App. 2003) (Arizona privileges and immunities

19 provision does not proscribe all unequal treatment, but rather it requires only the equal

20 treatment of persons similarly situated in a given class).

21

Moreover, among similarly situated felons, Arizona’s law does not treat

22 members of the class differently. Arizona requires all felons to complete all the terms

23 of their sentences, including payment of financial penalties. See A.R.S. §§ 13-912(A), -

24 -905, -906. The fact that some felons’ own conduct results in financial penalties as part

25 of their sentence does not transform the civil rights restoration law into one imposing

26 unequal treatment on members of the felon class.

27

In Madison v. Washington, the Washington Supreme Court interpreted a

28 provision in that State’s constitution that is substantively identical to Arizona’s

11

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 12 of 18

1 privileges and immunities provision. The court noted that the concerns of favoritism

2 toward the wealthy, which were a basis for the constitutional provision, were “not

3 triggered by Washington’s felon disenfranchisement scheme because it grants the

4 ‘privilege’ of restoration of voting rights ‘upon the same terms . . . equally . . . to all

5 citizens.’” Madison, 2007 WL 2128346, at *6. The court stated:

6 7 8 9 10 11 12 13
14 Id.

Additionally, the Washington Constitution disqualifies voters on equal terms-that is, when individuals have been convicted of committing a felony. Finally, Washington’s statutory disenfranchisement scheme provides for the restoration of voting rights to felons on equal terms—that is, only after individuals have satisfied all of the terms of their sentences. If those terms include payment of [legal financial obligations], then the full payment of [those obligations] is one of the prerequisites to restoration of voting rights. The system of only restoring voting rights to felons who have satisfied all of the terms of their sentences, including fully paying their [financial obligations], does not constitute a grant of favoritism or a granting of a privilege on unequal terms, in violation of article I, section 12, because the same standard is applied evenly to all felons seeking restoration of their voting rights.

15

Even if Arizona’s law could be viewed as treating members of the same class

16 differently, that law must be upheld under a rational basis review. Arizona appellate

17 courts construe the privileges and immunities constitutional provision to have the same

18 effect as the federal Equal Protection Clause. E.g., Ariz. v. Bonnewell, 196 Ariz. 592,

19 596, 2 P.3d 682, 686 (App. 1999) (stating that the effects of the Arizona Constitution

20 art. 2 § 13 and the Fourteenth Amendment of the U.S. Constitution “are essentially the

21 same”). Arizona courts similarly apply rational basis review to privileges and

22 immunities challenges where a statute does not impact a fundamental right or a suspect

23 class. E.g., id. (“Because the statute implicates neither a fundamental right nor a

24 suspect class, we apply a rational basis test.”); Ariz. Downs v. Ariz. Horsemen’s Found.,

25 130 Ariz. 550, 555, 637 P.2d 1053, 1058 (Ariz. 1981) (where a “statute does not impact

26 upon a fundamental right or a suspect class, the statute will be upheld if it has any

27 conceivable rational basis to further a legitimate governmental interest”).

28

As explained above in section II.A.2, Arizona’s civil rights restoration law is

12

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 13 of 18

1 rationally related to Arizona’s interest in deterring crime, punishing crime, and

2 compensating societal victims of their crime.

3

2. The Federal Privileges and Immunities Clause.

4

Plaintiffs’ claim based on the federal privileges and immunities provision of the

5 Fourteenth Amendment should be dismissed because, as explained above in section

6 II.A.1, section 2 of that amendment expressly permits the disenfranchisement of felons.

7 Although Richardson addressed the equal protection language of section 1 of that

8 amendment, the Court’s reasoning applies with equal force to any privileges and

9 immunities argument based on that same constitutional section. See, e.g., Richardson,

10 418 U.S. at 43 (adopting the state’s argument that “those who framed and adopted the

11 Fourteenth Amendment could not have intended to prohibit outright in § 1 of that

12 Amendment that which was expressly exempted from the lesser sanction of reduced

representation imposed by § 2 of the Amendment”).
13

III. THE COURT SHOULD DISMISS ALL CLAIMS BASED UPON THE TYPE OF

14

FELONIES OF WHICH PLAINTIFFS WERE CONVICTED.

15

A. There Is No Equal Protection Claim Based on the Type of Felony

16

Committed by Plaintiffs.

17

Each of Plaintiffs’ three remaining claims (Counts 5-7) is based on the mistaken

18 assertion that crimes that were not deemed felonies at common law may not provide a

19 constitutional basis for disenfranchisement. [See Compl. ¶¶ 43-44, 74-76, 79, 83]

20 Plaintiffs assert that the language used in nineteenth century federal legislation,

21 including the Reconstruction Act of 1867 and various confederate state readmission

22 acts, establishes that the Fourteenth Amendment authorizes disenfranchisement of

23 individuals convicted only of crimes that were felonies at common law. [See id. ¶¶ 36-

24 42]

25

The Fourteenth Amendment, however, contains no such limiting language. As

26 explained previously, section 2 of that amendment reduced states’ representation in the

27 federal government to the extent such states denied the vote to eligible individuals

28 “except for participation in rebellion, or other crime.” U.S. Const. XIV Amend. § 2.

13

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 14 of 18

1 That amendment does not limit the disenfranchisement to individuals convicted of

2 felonies at common law. Under Richardson, that provision permits states to take away

3 the rights of all felons to vote. The Richardson court did not distinguish between the

4 types of felonies committed by the plaintiffs in that case. Indeed, one of the felons

5 challenging California’s disenfranchisement law had been convicted of the “non

6 common law felony” of drug possession. 418 U.S. at 32 n.9. Thus, neither the plain

7 language of the Constitution nor the reasoning or language of Richardson supports

8 Plaintiffs’ argument that the type of felony committed determines whether the felon

9 may be disenfranchised.

10

Moreover, other courts consistently have upheld felon disenfranchisement laws

11 without distinguishing among the particular crimes that gave rise to the

12 disenfranchisement. E.g., Perry v. Beamer, 933 F. Supp. 556, 559-60 (E.D. Va.)
(rejecting the notion that the type of felony—common law or non common law—
13
determines whether the state could disenfranchise felons: “The Supreme Court,
14
however, apparently gave no import to this distinction, and this Court shall do the
15
same.”), aff’d, 99 F.3d 1130 (4th Cir. 1996); Fincher v. Scott, 352 F. Supp. 117, 118
16
(M.D.N.C. 1972) (upholding against an equal protection challenge a North Carolina
17
disenfranchisement law that excluded all persons convicted “of any crime the
18
punishment for which now or may hereafter be imprisonment in the State’s prison”),
19
aff’d, 411 U.S. 961 (1973); Beacham v. Braterman, 300 F. Supp. 182, 183-84 (S.D.
20
Fla.) (upholding a Florida law that excluded from the franchise all persons convicted
21
“of any felony by any court of record and whose civil rights have not been restored”),
22
aff’d, 396 U.S. 12 (1969); cf. Merritt v. Jones, 533 S.W.2d 497, 500-01 (Ark. 1976)
23
(rejecting felon’s argument that Arkansas constitutional disenfranchisement provision
24
excluding persons “convicted of felonies” applied only to felonies at common law; the
25
word felonies “is plain and unambiguous” and court would apply its common
26 meaning).

27

One federal appellate court upheld against an equal protection challenge a South

28 Carolina disenfranchisement law which excluded all persons who had been convicted

14

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 15 of 18

1 of any one of an enumerated list of crimes. Allen v. Ellisor, 664 F.2d 391, 392, 397-98 2 (4th Cir.), vacated on other grounds, 454 U.S. 807 (1981). The plaintiffs in Allen

3 asserted that equal protection review was appropriate where the state law “identif[ied]

4 the disqualifying crimes specifically, thus including some crimes as disqualifying and

5 omitting others.” Id. at 396. Although the plaintiffs’ challenge was not based on a

6 distinction between common law and non common law felonies, the court’s decision

7 and extensive discussion of precedent on felon disenfranchisement leave no room for

8 such a distinction.

9

The court noted that none of the Supreme Court’s decisions addressing equal

10 protection outside of the felon disenfranchisement context suggests “that the states are

11 without power to continue their historic exclusion from the franchise of persons

12 convicted of all or certain types of felonies.” Id. at 393 (emphasis added). The court

concluded that section 2 of the Fourteenth Amendment “immunizes any classification
13

of disqualifying crimes, whether the classification is stated in terms of ‘felonies’
14
generally, or of some felonies, or of certain specified crimes.” Id. at 397-98. Although
15
the Supreme Court ultimately vacated the Fourth Circuit’s decision in Allen, the Court
16
did so on grounds of mootness following the amendment of the South Carolina law at
17
issue. See Allen v. Ellisor, 454 U.S. 807 (1981). The South Carolina legislature
18
amended the law to eliminate the designation of certain felonies and to disqualify all
19
persons “serving a term of imprisonment resulting from a conviction of a crime.” See
20
S.C. Code § 7-5-120 (1976).
21
Neither the Fourteenth Amendment nor the authorities addressing felon
22
disenfranchisement laws supports Plaintiffs’ claims based on an irrelevant distinction in
23
the type of felonies they committed. Accordingly, the Court should dismiss Plaintiffs’
24
equal protection claim asserted under Count Five.

25
B. The Type of Felony Committed by Plaintiffs Does Not Provide a

26

Basis for a Claim under the Free and Equal Elections Clause.

27

Arizona’s Constitution expressly excludes from the franchise all persons

28 convicted of a felony. Ariz. Const. art. 7 § 2(C). As explained in section II.C above,

15

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 16 of 18

1 that provision can (and must) be read in harmony with Arizona’s Free and Equal

2 Elections provision. There is no basis for distinguishing among the particular offenses

3 that have been defined as felonies by the Legislature for purposes of Arizona’s felon

4 disenfranchisement provision.

5

The word “felony” in Arizona’s felony disenfranchisement provision (art. 7 § 2)

6 must be given the meaning that is generally understood to define that term. E.g.,

7 McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 290, 645 P.2d 801, 805 (Ariz. 1982)

8 (“When the words of a constitutional provision are not defined within it, the meaning to
9 be ascribed to the words is that which is generally understood and used by the
10 people.”); Ariz. Minority Coalition for Fair Redistricting v. Ariz. Indep. Redistricting
11 Comm’n, 211 Ariz. 337, 352, 121 P.3d 843, 858 (App. 2005) (in interpreting the
12 Arizona Constitution, stating that the court will not go beyond the plain language of the
provision unless the language is unclear and that “we give words their natural, obvious
13
and ordinary meaning unless defined otherwise in the constitution”), review denied
14
(Jan. 4, 2006). The Arizona legislature has defined “felony” to mean “an offense for
15
which a sentence to a term of imprisonment in the custody of the state department of
16
corrections is authorized by any law of this state.” A.R.S. § 13-105(16).4
17
The drafters of article 7, section 2(C) of Arizona Constitution easily could have
18
chosen to qualify “felony” with the phrase “at common law.” They did not. There is
19
no basis for ignoring the provision’s plain language in favor of distinguishing among
20
felony types for purposes of construing Arizona’s Free and Equal Elections Clause.
21
Accordingly, Plaintiffs’ claim based on that distinction as asserted in Count Six should 22 be dismissed.5
23

24 4 The legislative definition of felony largely has remained the same throughout the

25 State’s history. See, e.g., Rev. Stat. of Ariz. Penal Code § 17 (1913) (defining felony as

26

“a crime which is punishable with death or by imprisonment in the state prison”). 5 The framers’ omission of the limiting words “at common law” in the felon

27 disenfranchisement provision is most sensible given the policy considerations underlying

such disenfranchisement. “[I]t can scarcely be deemed unreasonable for a state to decide 28 that perpetrators of serious crimes shall not take part in electing the legislators who make

16

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 17 of 18

1

C. The Type of Felony Committed by Plaintiffs Does Not Provide a

Basis for a Claim under the Privileges and Immunities Clause.
2

3

Plaintiffs’ claim asserted under Count Seven presumably is based on the notion

4 that the privileges and immunities provisions of the Arizona and U.S. Constitutions do

5 not permit disenfranchisement of persons convicted only of non common law felons.

6 [See Compl. ¶ 83] As explained above in section III.A, however, the Fourteenth

7 Amendment, as interpreted by the many cases cited, draws no such distinction.
Because states may constitutionally disenfranchise individuals convicted of any or all
8
felonies, Plaintiffs’ claim based upon the respective privileges and immunities
9
provisions lack support in the law. Accordingly, Count Seven should be dismissed.
10
Relief Requested
11
For the foregoing reasons, the Court should dismiss the Complaint with
12
prejudice.
13
DATED this 13th day of August, 2007.
14

15

TERRY GODDARD

Arizona Attorney General

16

17

/s Mary O’Grady

Mary O’Grady, Solicitor General

18

Barbara A. Bailey, Assistant Attorney General

19

Attorneys for Governor Janet Napolitano

20

21

22

23

24

25

26
the laws, the executives who enforce these, the prosecutors who must try them for further 27 violations, or the judges who are to consider their cases.” Green, 380 F.2d at 451. The
same policy notions that underlie the longstanding history of felon disenfranchisement 28 apply with equal force to “non common law” felonies.

17

Case 2:07-cv-01089-SMM Document 22 Filed 08/13/07 Page 18 of 18

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the 13th day of August, 2007, I caused the foregoing

3 document to be electronically transmitted to the Clerk’s Office using the CM/ECF

System for filing and transmittal of a Notice of Electronic Filing to the following 4 CM/ECF Registrants:

5
Laughlin McDonald 6 Neil Bradley
7 Nancy G. Abudu American Civil Liberties Union
8 Voting Rights Project
9 2600 Marquis One Tower 245 Peachtree Center Ave., NE
10 Atlanta, GA 30303-1227
11 lmcdonald@aclu.org nbradley@aclu.org
12 nabudu@aclu.org
Attorneys for Plaintiffs
13

14 Daniel Pochoda Legal Director
15 American Civil Liberties Union 16 Foundation of Arizona
PO Box 17148 17 Phoenix, AZ 85011-0148 18 dpochoda@acluaz.org
Attorneys for Plaintiffs
19
20 COPY of the foregoing mailed with Notice of Electronic Filing this 13th day of August, 2007 to:
21
22 The Honorable Stephen M. McNamee United States District Court
23 Sandra Day O’Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59
24 Phoenix, AZ 85003-2158
25

26

27

/s Elizabeth A. Stark

28 15344

18

 
 Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 1 of 15

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Armando Coronado, et al.,

9

Plaintiffs,

10 v.

11 Janet K. Napolitano, Governor, et al.,

12

13

Defendants.

No. CV-07-1089-PHX-SMM MEMORANDUM OF DECISION AND ORDER

14

15

Plaintiffs filed this lawsuit challenging the Arizona statutory scheme governing the

16 right to vote of those convicted of felonies. Defendants have moved to dismiss the

17 Complaint for failure to state a claim for which relief can be granted. (Dkts. 22, 33.)1

18 Having considered the parties arguments and memoranda of law, the Court now issues this

19 Memorandum of Decision and Order.

20

BACKGROUND

21

The Arizona Constitution provides that “[n]o person . . . convicted of treason or

22 felony [shall] be qualified to vote at any election unless restored to civil rights.” Ariz.

23 Const. art. VII, § 2; see also A.R.S. § 14-904 (“A conviction for a felony suspends the 24 following civil rights of the person sentences: 1. The right to vote.”). A felony is “an

25

26

1 Defendant Napolitano filed the initial motion to dismiss (Dkt. 22). Defendant

27 Brewer later filed her motion to dismiss, incorporating by reference the legal arguments stated in Defendant Napolitano’s motion (Dkt. 33). The Court will cite Defendant
28 Napolitano’s motion (Dkt. 22) as Defendants’ Motion to Dismiss, reflecting the inclusion

of Defendant Brewer.

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 2 of 15

1 offense for which a sentence to a term of imprisonment in the custody of the state

2 department of corrections is authorized by any law of this state.” A.R.S. § 13-105(16). A

3 person convicted of a single felony automatically regains any civil rights that were lost or

4 suspended by the conviction if the person both: (1) completes a term of probation or

5 receives an absolute discharge from imprisonment; and (2) pays any fine or restitution

6 imposed. Id. at § 13-912. Persons convicted of more than one felony must apply to the

7 superior court to have their civil rights restored. Id. at § 13-908.

8

Plaintiffs Armando Coronado and Michael Garza were each convicted of a felony

9 drug offense. (Compl. ¶¶ 7, 9.) Plaintiff Joseph Rubio was convicted of attempted

10 aggravated domestic violence. (Id. at ¶ 8.) Plaintiffs Michele Convie and Raymond

11 Lewis, Jr. were each convicted of multiple felony drug offenses. (Id. at ¶ 10, 11.)

12 Plaintiffs Coronado, Garza, and Rubio allege that they have completed their terms of

13 probation or have received an absolute discharge from imprisonment, but remain

14 ineligible for automatic restoration of their voting rights because they have not paid the

15 fines and restitution ordered by the courts. (Id. at ¶¶ 24, 30, 34.) They allege that the

16 requirement that they pay these legal financial obligations (“LFOs”)2 before having their

17 right to vote restored violates provisions of the United States and Arizona Constitutions,

18 and section 1973h of Title 42 of the United States Code.3 They are joined by Plaintiffs

19 Convie and Lewis in alleging that disenfranchisement for the commission of non-

20

21

2 Plaintiffs lump fines and restitution into a single category of “legal financial

22 obligations,” or “LFOs.” (See, e.g., Compl. ¶ 1, 3, 71; see also Pls.’ Resp. at 1, 14.) Fines and restitution are interrelated in a person’s sentence, and a restitution lien is
23 created in favor of the state for the total amount of restitution, fine, and other charges.

24 A.R.S. § 13-804(J). As the Plaintiffs do not distinguish between fines and restitution or argue that they should be analyzed separately, the Court treats addresses them both as a
25 single part of a person’s sentence.

26

3 Although Counts One and Three only name Plaintiffs Coronado and Rubio, the

27 Complaint’s factual background indicate that Plaintiff Garza means to join in those

28 claims.

- 2 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 3 of 15

1 common law felonies violates provisions of the United States and Arizona Constitutions.

2 Plaintiffs seek declaratory and injunctive relief, in addition to nominal damages.

3

Defendants Janet K. Napolitano and Janice K. Brewer seek to dismiss the

4 Complaint on the grounds that it fails to state a claim for which relief can be granted.

5 (Dkts. 22, 33.) Plaintiffs filed a Response to the motion to dismiss, and Defendants filed

6 a Reply thereto.4 The Court has subject matter jurisdiction of this matter under 28 U.S.C.

7 §§ 1331, 1343(a), and 42 U.S.C. §§ 1971(d), 1983. The Court may exercise supplemental

8 jurisdiction under 28 U.S.C. § 1367(a) to hear claims under the constitution and laws of

9 Arizona. The Court has jurisdiction to grant declaratory and injunctive relief under 28

10 U.S.C. §§ 2201, 2202. Venue is proper in this district under 28 U.S.C. § 1391(b)(1).

11

STANDARD OF REVIEW

12

To survive a motion to dismiss for failure to state a claim, “factual allegations must

13 be enough to raise a right to relief above the speculative level, on the assumption that all

14 allegations in the complaint are true even if doubtful in fact.” Bell Atlantic Corp. v.

15 Twombly, 127 S. Ct. 1955, 1965, __ U.S. __ (2007). When deciding a motion to dismiss,

16 all allegations of material fact in the complaint are taken as true and construed in the light

17 most favorable to the plaintiff. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.

18 1981).

19

A court may dismiss a claim either because it lacks “a cognizable legal theory” or

20 because it fails to allege sufficient facts to support a cognizable legal claim. SmileCare

21 Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996).

22 “Dismissal without leave to amend is improper unless it is clear, upon de novo review,

23 that the complaint could not be saved by any amendment.” Polich v. Burlington N., Inc.,

24 942 F.2d 1467, 1472 (9th Cir.1991). When exercising its discretion to deny leave to

25

26

4 Defendants requested oral argument in connection with their motion to dismiss.

27 Having determined that the motion can be decided on the memoranda of law, the Court

28 denies Defendants’ request for oral argument.

- 3 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 4 of 15

1 amend, “a court must be guided by the underlying purpose of Rule 15 to facilitate

2 decisions on the merits, rather than on the pleadings or technicalities.” United States v.

3 Webb, 655 F.2d 977, 979 (9th Cir. 1981).

4

DISCUSSION

5

In Counts One through Four, Plaintiffs Coronado, Garza, and Rubio assert that

6 Defendants have abridged their right to vote by requiring that Plaintiffs pay fines and

7 restitution before the franchise is restored. In Counts Five through Seven, all Plaintiffs

8 assert that Defendants have abridged their right to vote by disenfranchising them as a

9 result of convictions for non-common law felonies. Defendants seek to dismiss each of

10 these claims. The Court will address these claims individually.

11

A. Count One - Fines and Restitution Violate the Equal Protection Clause

12

Count One alleges that requiring payment of fines or restitution as a precondition

13 for restoring their voting rights unlawfully denies Plaintiffs equal protection of the law, in

14 violation of the Fourteenth Amendment to the United States Constitution. (Compl. ¶ 59.)

15 Defendants seek to dismiss Count One, arguing that the Fourteenth Amendment expressly

16 recognizes states’ rights to disenfranchise felons. (Defs.’ Mot. at 5.) Defendants base

17 their argument on the “affirmative sanction” of felon disenfranchisement found in the

18 Fourteenth Amendment itself. Richardson v. Ramirez, 418 U.S. 24, 54 (1974)

19

The Fourteenth Amendment provides:

20

Representatives shall be apportioned among the several States according

to their respective numbers, counting the whole number of persons in

21

each State, excluding Indians not taxed. But when the right to vote at any

election for the choice of electors for President and Vice President of the

22

United States, Representatives in Congress, the Executive and Judicial

officers of a State, or the members of the Legislature thereof, is denied to

23

any of the male inhabitants of such State, being twenty-one years of age,

and citizens of the United States, or in any way abridged, except for

24

participation in rebellion, or other crime, the basis of representation

therein shall be reduced in the proportion which the number of such male

25

citizens shall bear to the whole number of male citizens twenty-one years

of age in such State.

26

27

U.S. Const. amend. XIV, § 2 (emphasis added). Based on this language, the

28 - 4 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 5 of 15

1 Supreme Court found that states could exclude from the franchise convicted felons who

2 have completed their sentences and paroles without violating the Equal Protection Clause

3 of the Fourteenth Amendment, § 1. Richardson, 418 U.S. at 56. The Arizona

4 Constitution provides that “[n]o person who is adjudicated an incapacitated person shall

5 be qualified to vote at any election, nor shall any person convicted of treason or felony, be

6 qualified to vote in any election unless restored to civil rights. Ariz. Const. art. VII, §

7 2(C).

8

Plaintiffs contend that Count One raises a claim not addressed in Richardson—that

9 of felon “re-enfranchisement.” Plaintiffs assert that this distinction was recognized in

10 Bynum v. Conn. Comm. on Forfeited Rights, 410 F.2d 173 (2d Cir. 1969). (Pls.’ Resp. at

11 4-5.) Having chosen to restore the right to vote of persons who have completed probation

12 or have been discharged from imprisonment, the state cannot discriminate against

13 indigent felons by requiring payment of fines or restitution as a condition of re-

14 enfranchisement. (Id. at 9.)

15

Plaintiffs’ argument presumes that fines and restitution are requirements wholly

16 separate from a felon’s sentence.5 From that presumption Plaintiffs argue that the

17 imposition of further punishment, based on their inability to pay the fines, violates equal

18 protection. Plaintiffs fail to recognize that Arizona courts are authorized to impose fines

19 and restitution as part of a felon’s sentence. A.R.S. §§ 13-801(A), 13-808. The Arizona

20 law prohibits all felons from regaining the right to vote until they complete the terms of

21 their sentence—including the payment of any fines or restitution. Id. at § 13-912. Once

22 the entire sentence is complete, Plaintiffs’ civil rights, including the right to vote, are

23 automatically restored. Id. This is unlike the situation in Bynum, in which the state

24 required an ex-felon to pay a $5.00 fee before petitioning the commission for restoration

25 of his voting rights. See Bynum, 410 F.2d at 174-75.

26

27

5 Plaintiffs do not allege that fines or restitution were not or should not have been

28 included as part of their sentences.

- 5 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 6 of 15

1

Other authorities relied on in Plaintiffs’ Response are similarly inapt. Plaintiffs do

2 not allege that the state is holding them in confinement beyond the maximum statutory

3 term because they cannot pay court-imposed costs, as prohibited by Williams v. Illinois,

4 399 U.S. 235 (1970), nor do they allege revocation of probation for failure to pay a fine

5 which they cannot pay, as prohibited by Bearden v. Georgia, 461 U.S. 660 (1983).

6 Plaintiffs’ analogy to a law extending the right to vote to 17-year olds, provided they pay

7 some fee, is also misguided. For one thing, that analogy does not account for the “re-

8 enfranchisement” distinction which Plaintiffs draw and rely on to distinguish Richardson;

9 a 17-year old would not be seeking to recover a civil right of which the minor had been

10 stripped. Moreover, the law at issue does not impose a “fee,” but rather requires

11 completion of the entire sentence imposed. The Arizona statutes do not violate the Equal

12 Protection Clause because they do not discriminate against certain individuals or classes

13 of felons. All felons must complete the terms of their sentences in order to regain the

14 franchise, including the payment of fines or restitution. A.R.S. § 13-912.

15

The Court in Richardson found that felon disenfranchisement did not violate the

16 Equal Protection Clause, and therefore did undertake a traditional equal protection

17 examination. Even if Arizona’s “re-enfranchisement” scheme is distinguished from the

18 “disenfranchisement” scheme at issue in Richardson, as Plaintiffs contend, Count One

19 would nonetheless fail to state a claim. Under traditional equal protection jurisprudence,

20 the level of scrutiny afforded to discriminatory laws depends on whether the right

21 allegedly burdened is a “fundamental right” and whether the law targets a “suspect class.”

22 Plaintiffs do not allege that they are members of a suspect class, but assert that strict

23 scrutiny must apply because the right to vote is a fundamental right. (Pls.’ Resp. at 10.)

24 Having been legitimately disenfranchised, Plaintiffs can no longer claim that their right to

25 vote is fundamental. See Richardson, 418 U.S. at 54-56. Rational basis review would

26 apply because felons have no fundamental right to vote. Richardson, 418 U.S. at 54

27 (“[T]he exclusion of felons from the vote has an affirmative sanction in § 2 of the

28 - 6 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 7 of 15

1 Fourteenth Amendment, a sanction which was not present in the case of the other

2 restrictions on the franchise which were invalidated in the cases on which respondents

3 rely.”). Therefore the re-enfranchisement scheme would receive rational basis review.

4 Madison v. Washington, 163 P.3d 757, 767-68 (Wash. 2007), accord Owens v. Barnes,

5 711 F.2d 25, 27 (3d Cir. 1983); see also Williams v. Taylor, 677 F.2d 510, 514-15 (5th

6 Cir. 1982).

7

A law reviewed under the rational basis standard must be rationally related to a

8 legitimate governmental interest. United States v. Hancock, 231 F.3d 557, 566 (9th Cir.

9 2000). “The burden is on the one attacking the legislative arrangement to negative every

10 conceivable basis which might support it.” Id., quoting Heller v. Doe, 509 U.S. 312, 320

11 (1993). In this case, the fine provisions serve the interests in punishing and deterring

12 criminal activity. Polykoff v. Collins, 816 F.2d 1326, 1337 (9th Cir. 1987). A goal of

13 restitution requirements is rehabilitation of the convicted person, as the requirements

14 force an offender to recognize and accept responsibility for the consequences of the

15 criminal activity. State v. West, 845 P.2d 1097, 1104 (Ariz. App. 1992). Including these

16 financial obligations in a convicted felon’s sentence is rationally related to these

17 legitimate governmental interests. Therefore Defendants’ motion to dismiss Count One

18 will be granted.

19

B. Count Two - Fines and Restitution Constitute a Poll Tax and Violate the

Twenty-Fourth Amendment and 42 U.S.C. § 1973h

20

21

Count Two alleges that requiring payment of fines or restitution imposed in order

22 to regain the right to vote is invalid as a poll tax under the Twenty-Fourth Amendment

23 and 42 U.S.C. § 1973h. (Compl. ¶ 64.) Defendants assert two reasons why Count Two

24 fails to state a claim. First, no right to vote exists for a poll tax to abridge because

25 Plaintiffs were disenfranchised by reason of their convictions. (Defs.’ Mot. at 8.)

26 Second, requiring felons to pay financial costs associated with their crimes in order to

27 regain suspended civil rights does not amount to a tax. (Id.)

28 - 7 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 8 of 15

1

As discussed above, a state may disenfranchise felons without running afoul of the

2 Constitution. U.S. Const. amend. XIV, § 2; Richardson, 418 U.S. at 54. Having

3 disenfranchised felons, a state may refuse to re-enfranchise felons entirely, or permit

4 felons to regain the franchise only after completing their sentences. Accordingly,

5 “[r]estoration of civil rights is a creature of statute.” State v. Buonafede, 814 P.2d 1381,

6 1383 (Ariz. 1991). In this case, the fines or restitution are part of Plaintiffs’ sentences.

7 A.R.S. § 13-801(A); (Compl. ¶ 17.). Plaintiffs do not allege that the fines or restitution

8 should be not be part of their sentences, nor do they allege that these obligations have

9 been paid in full. (Cf. Compl. ¶¶ 23, 29, 33.) Therefore Defendants correctly assert that

10 Plaintiffs have no right to vote for the Arizona statutes to abridge.

11

The question remains whether Plaintiffs state a claim on the grounds that the fines

12 and restitution requirement denies them the right to vote “for reason of failure to pay a

13 poll tax or any other tax.” U.S. Const. amend. XXIV. That inquiry turns on whether the

14 fines and restitution requirement constitutes a “tax,” as Plaintiffs allege that their civil

15 rights would otherwise be automatically restored under A.R.S. § 13-912.

16

“Poll tax” is defined as “a fixed tax levied on each person within a jurisdiction.

17 Black’s Law Dictionary 1498 (8th ed. 2004). “Poll taxes are laid upon persons . . . to

18 raise money for the support of government or some more specific end.” Breedlove v.

19 Suttles, 302 U.S. 277, 281 (1937), overruled on other grounds by Harper v. Virginia State

20 Board of Elections, 383 U.S. 663 (1966). Although a state may not make “the affluence

21 of the voter or payment of any fee an electoral standard,” states do have “the power to fix

22 qualifications.” Harper, 383 U.S. at 666, 668. States may permissibly fix as a

23 qualification for voting the requirement that a persons not have been convicted of a

24 felony. Richardson, 418 U.S. at 56. It follows that, having decided to re-enfranchise ex-

25 felons, Arizona may permissibly fix as a qualification the requirement that those

26 individuals complete the terms of their sentences. See A.R.S. § 13-912. The Arizona

27 laws do not make ability to pay “an electoral standard,” but limit re-enfranchisement to

28 - 8 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 9 of 15

1 those who have completed their sentences—including the payment of any fine or

2 restitution imposed. Id. Again, Plaintiffs do not allege that fines or restitution are an

3 impermissible part of their sentences. Defendant’s motion to dismiss Count Two will be

4 granted.

5

C. Count Three - Fines and Restitution Violate Article 2, § 21 of the Arizona

Constitution

6

7

The Arizona Constitution states that “[a]ll elections shall be free and equal, and no

8 power, civil or military, shall at any time interfere to prevent the free exercise of the right

9 of suffrage.” Ariz. Const. art. II, § 21. Count Three alleges that denial of Plaintiffs’ right

10 to vote based upon failure or inability to pay fines or restitution unlawfully denies them

11 the free exercise of the right to suffrage. (Compl. ¶ 67.) Defendants move to dismiss

12 Count Three on the grounds that Plaintiffs do not have the right to vote under the Arizona

13 Constitution, and requiring completion of Plaintiffs’ sentences therefore does not violate

14 Article 2, § 21. (Defs.’ Mot. at 10.)

15

Arizona Constitution Article 7, § 2(C) directly contradicts Article 2, § 21 because

16 the former deprives convicted felons of the franchise. Ariz. Const. art. VII, § 2(C)(“ . . .

17 nor shall any person convicted of treason or felony, be qualified to vote in any election

18 unless restored to civil rights.”). When separate parts of a constitution are seemingly in

19 conflict, it is the duty of the court to harmonize both so that the constitution is a consistent

20 workable whole. State ex. rel. Nelson v. Jordan, 450 P.2d 383, 386 (Ariz. 1969). As

21 discussed, a state may choose to disenfranchise convicted felons. U.S. Const. amend.

22 XIV, § 2; Richardson, 418 U.S. at 56. In order to harmonize the Arizona Constitution

23 and make it a workable whole, Article 2, § 21 must be read to apply only to those citizens

24 who have the right of suffrage. As Plaintiffs do not have this right, Count Three fails to

25 state a claim for which relief can be granted.

26 //

27 //

28 - 9 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 10 of 15

1

D. Count Four - Fines and Restitution Violate the Privileges and Immunities

Clauses of the Federal and State Constitutions

2

3

In Count Four, Plaintiffs allege a violation of the privileges and immunities clauses

4 of the federal and state constitutions. (Compl. ¶ 71.) The federal Constitution provides

5 that “[n]o State shall make or enforce any law which shall abridge the privileges or

6 immunities of the citizens of the United States . . . .” U.S. Const. amend. XIV, §1. The

7 Arizona Constitution states that “[n]o law shall be enacted granting to any citizen, class of

8 citizens, or corporation other than municipal, privileges or immunities which, upon the

9 same terms, shall not equally belong to all citizens or corporations.” Ariz. Const. art. II, §

10 13. Defendants move to dismiss Count Four on the grounds that Plaintiffs have no right

11 to vote and thus the privileges and immunities clauses do not apply. (Defs.’ Mot. at 11-

12 13.) Regarding the Arizona Constitution, Defendants assert that Plaintiffs are not

13 similarly situated to citizens having the right to vote, and that Plaintiffs are afforded the

14 same privileges and immunities as other similarly situated individuals. (Id. at 11.)

15

Plaintiffs do not cite, nor has the Court discovered, any case stating that the right

16 to vote in federal elections is a privilege or immunity of the citizens of the United States.

17 The Court accepts for purposes of this motion that the right to vote is a privilege or

18 immunity of the citizens of the United States.6 Even so, Plaintiffs’ claims under the

19 Privileges or Immunities Clause of the Fourteenth Amendment fails for the same reasons

20 as their claim under the Equal Protection Clause (Count One). The “privilege” of ex-

21 felons to vote in federal elections, like the right to vote, can be suspended without

22

23

6 The only Supreme Court case to enumerate a specific privilege or immunity

24

involved the “right to travel.” Saenz v. Roe, 526 U.S. 489, 502-03 (1999). Thus Saenz “breathe[d] new life into the previously dormant Privileges and Immunities Clause of the

25 Fourteenth Amendment . . . a provision relied upon for only the second time since its

26

enactment 130 years ago.” Id. at 511 (Rehnquist, C.J., dissenting). However, the right to vote in federal elections fits the general definition of privileges and immunities, as it is a

27 right “which [owes its] existence to the Federal government, its National character, its

28 Constitution, or its laws.” Slaughter-House Cases, 83 (16 Wall.) 36, 79 (1872).

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Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 11 of 15

1 violating the Constitution. Richardson, 418 U.S. at 56. Thus Plaintiffs cannot claim that

2 the privilege has been “abridged” in violation of the Privileges or Immunities Clause of

3 the Fourteenth Amendment. To the extent the re-enfranchisement scheme does abridge

4 Plaintiffs’ right to vote, it is rationally related to a legitimate governmental interest as

5 discussed regarding Count One.

6

Plaintiffs’ claim under the Arizona Constitution also parallels their claim under the

7 Equal Protection Clause. “The purpose of [Article 2, § 13] is to secure equality of

8 opportunity and right to all persons similarly situated.” Prescott Courier, Inc. v. Moore,

9 274 P. 163, 165 (Ariz. 1929). “The Equal Protection clauses of the Fourteenth

10 Amendment and the state constitution have for all practical purposes the same effect.”

11 Westin Tucson Hotel Co. v. State Dep’t of Revenue, 936 P.2d 183, 189 (Ariz. App.

12 1997), quoting Valley Nat. Bank of Phoenix v. Glover, 159 P.2d 292, 299 (Ariz. 1945).

13 As discussed in Count One, the Arizona re-enfranchisement scheme presents no equal

14 protection violation, and is rationally related to a legitimate government interest in

15 deterring, punishing, and rehabilitating criminals. Moreover, Article 2, § 13 guarantees

16 only that equality of opportunity is secured to all persons “similarly situated.” Stults

17 Eagle Drug Co. v. Luke, 62 P.2d 1126, 1130 (Ariz. 1936); Lindsay v. Cave Creek

18 Outfitters, L.L.C., 88 P.3d 557, 564 (Ariz. App. 2003). Plaintiffs, like all convicted

19 felons, must complete the terms of their sentences in order to have their civil rights

20 restored. A.R.S. § 13-912. Therefore the statutory scheme does not violate Article 2, §

21 13 of the Arizona Constitution.

22

Plaintiffs assert in their Response that the Court must look beyond the face of the

23 statute and inquire whether the statutes have a disparate impact on certain groups. (Pls.’

24 Resp. at 18-19.) This inquiry is purportedly necessary because “plaintiffs intend to prove

25 that Arizona’s [fine or restitution] requirement negatively and disproportionately impacts

26 indigent people.” (Id. at 19.) As the Complaint does not include any allegation of a

27 disparate impact, the Court will not undertake any such further inquiry. Defendants’

28 - 11 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 12 of 15

1 motion to dismiss Count Four will be granted.

2

E. Counts Five, Six, and Seven - Disenfranchising Persons Convicted of Non-

Common Law Felonies Violates the Federal and State Constitutions

3

4

The Fourteenth Amendment states that the right to vote shall not be “denied . . . or

5 in any way abridged, except for participation in rebellion, or other crime.” U.S. Const.

6 amend. XIV, § 2 (emphasis added). Counts Five, Six, and Seven are each based on the

7 notion that “other crime” should be read as distinguishing between common law and non-

8 common law felony convictions. From that distinction, Plaintiffs claim that Arizona’s

9 felon disenfranchisement scheme violates the Equal Protection Clause of the federal

10 Constitution (Count Five), Arizona Constitution Article 2, § 21 (Count Six), and the

11 privileges and immunities clauses of the federal and state constitutions (Count Seven).

12 Defendants seek to dismiss Counts Five through Seven on the basis that no such

13 distinction exists. (Defs.’ Mot. at 13-17.) Plaintiffs respond that legislative history of the

14 Fourteenth Amendment demonstrates that “other crime” refers only to common law

15 felonies.7 (Pls.’ Resp. at 21-26.)

16

Plaintiffs’ argument finds no support in either a plain reading of § 2 or principles

17 of statutory interpretation. The Court in Richardson undertook to determine whether the

18 relevant language of § 2—“except for participation in rebellion, or other crime”—was

19 “intended to have a different meaning than would appear from its face.” Richardson, 418

20 U.S. at 43. After first noting the problem of interpreting the “intention” of a

21 constitutional provision, the Court observed that “legislative history bearing on the

22 meaning of . . . § 2 is scant indeed.” Id. Nonetheless, “this language was intended by

23

24

7 Plaintiffs also assert that courts should re-examine the constitutionality of

25 disenfranchising persons convicted of crimes because the practice has resulted in racial

26

disparities. (Pls.’ Resp. at 27-29.) The Complaint does not contain this allegation, nor is a claim of racial discrimination stated. Moreover, the statistics offered by Plaintiffs to

27 support their assertion are not properly before the Court. Cf. Fed. R. Evid. 201.

28 Therefore the Court will not address Plaintiffs’ assertion.

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Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 13 of 15

1 Congress to mean what it says.” Id. The Court concluded that “[w]hat little comment

2 there was on the phrase in question here supports a plain reading of it.” A plain reading

3 of § 2 admits of no distinction between common law and non-common law felonies.

4 Thus the language of § 2 means what it says—persons convicted of crimes may be

5 excluded from the franchise.

6

“Where the language is plain and admits of no more than one meaning, the duty of

7 interpretation does not arise, and the rules which are to aid doubtful meanings need no

8 discussion.” Caminetti v. United States, 242 U.S. 470, 485 (1917); see also Lamie v. U.S.

9 Trustee, 540 U.S. 526, 534 (2004). This rule of statutory interpretation notwithstanding,

10 the Court will address Plaintiffs’ arguments for their reading of § 2. Plaintiffs contend

11 that provisions in legislation enacted contemporaneous to the Fourteenth Amendment

12 provide “convincing evidence” that Congress intended “other crime” to refer to common

13 law felonies. (Compl. ¶¶ 36-42; Pls.’ Resp. at 25.) For example, the Readmission Act for

14 Arkansas contained the “fundamental condition” that its state constitution “never be so

15 amended or changed as to deprive any citizen or class of citizens the right to vote . . .

16 except as a punishment for such crimes as are now felonies at common law.” (Compl. 41,

17 citing 15 Stat. 71.)8 In essence, Plaintiffs argue that because Congress elsewhere

18 specified “felonies at common law,” that language should be imported where Congress

19 did not so specify.

20

Such a technique runs counter to principles of statutory interpretation, and serves

21 only to undermine Plaintiffs’ position. First, it demonstrates that where Congress

22 intended to specify common law felonies, it so stated. Second, the acts cited by Plaintiffs

23 dealt with the readmission of former Confederate states, whereas the Fourteenth

24 Amendment applies to all states in the Union. Thus the varying language need not be

25 “harmonized” as Plaintiffs contend because the different provisions address different

26

27

8 Plaintiffs do not allege that the Arizona’s admission to the Union required that it

28 disenfranchise only those individuals convicted of common law felonies.

- 13 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 14 of 15

1 subjects. (Cf. Defs.’ Resp. at 25.) Assuming that § 2 and the Reconstruction and

2 Readmission Acts address the same subject, a plain reading of § 2 “gives effect to both”

3 provisions, as is the duty of the courts. Morton v. Mancari, 417 U.S. 535, 551 (1974).

4

Plaintiffs provide no case law to contradict this conclusion, and other decisions

5 addressing this issue further support a plain reading of “other crime.” The California

6 scheme upheld in Richardson disenfranchised persons convicted of “infamous crimes” or

7 “a felony.” 418 U.S. at 27-30. This resulted in the disenfranchisement of a person

8 convicted of drug possession, a crime which Plaintiffs allege was not a felony at common

9 law. Id. at 32; Compl. ¶ 43. This prompted another district court to note, in considering a

10 distinction between common law and non-common law felonies, “the Supreme Court,

11 however, apparently gave no import to this distinction, and this court shall do the same.”

12 Perry v. Beamer, 933 F. Supp. 556, 559-60 (E.D. Va. 1996) (granting motion to dismiss).

13 Yet another court observed that “as the common law developed the meaning of the word

14 ‘felony’ changed.” Merritt v. Jones, 533 S.W.2d 497, 501 (Ark. 1976) (declining to read

15 “felony at common law” into the word “felonies” as used in disenfranchisement law).

16

Based on the foregoing, the Court finds the phrase “other crime” is not limited to

17 felonies at common law. Therefore Count Five fails to state a claim for relief under the

18 Equal Protection Clause. Plaintiffs do not assert a claim under the Arizona Constitution

19 independent of their interpretation of “other crime.” The Complaint alleges that the

20 following language from Article 7, §2(C) has remained unchanged since the original

21 Arizona constitution: “. . . nor shall any person convicted of treason or felony, be

22 qualified to vote at any election unless restored to civil rights.” (Compl. ¶¶45-46.) As

23 Counts Six and Seven require interpreting “other crime” as “felonies at common law,”

24 they also fail. (See Pls.’ Resp. at 29-30.) Defendants’ motion to dismiss Counts Five

25 through Seven will be granted.

26 //

27 //

28 - 14 -

Case 2:07-cv-01089-SMM Document 48 Filed 01/22/08 Page 15 of 15

1

CONCLUSION

2

Counts One through Four rely on the assumption that fines and restitution orders

3 constitute a “fee” separate from and in addition to a convicted felon’s sentence. For the

4 reasons provided above, this assumption is in error and Plaintiffs therefore fail to state a

5 claim for which relief can be granted. Plaintiffs’ argument that the phrase “other crime”

6 in § 2 of the Fourteenth Amendment should be read as encompassing only those crimes

7 which were felonies at common law is also in error. Counts Five through Seven therefore

8 also fail to state a claim.

9

These conclusions also dispose of the claims against Defendants F. Ann Rodriguez

10 and Helen Purcell. Defendants Rodriguez and Purcell are the county recorders for Pima

11 County and Maricopa County, respectively, and are sued in their official capacities for

12 actions they took under color of law. (Compl. ¶¶ 14, 15.) Defendants Rodriguez and

13 Purcell cancelled Plaintiffs from the voter registration rolls as directed by statute. A.R.S.

14 § 16-165(A)(4), (C); see also A.R.S. §§ 16-164, 16-166. As Plaintiffs fail to state a claim

15 that the felon disenfranchisement statutes abridge or deny their right to vote, Plaintiffs

16 also fail to state a claim against Defendants Rodriguez and Purcell for acting pursuant to

17 their statutory directive.

18

Accordingly,

19

IT IS HEREBY ORDERED granting Defendants’ motion to dismiss (Dkt. 22,

20 33). The Complaint is dismissed without prejudice, and the Clerk shall terminate this

21 action.

22

DATED this 22nd day of January, 2008.

23

24

25

26

27

28 - 15 -

 
 Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 1 of 15
LAUGHLIN McDONALD* NEIL BRADLEY* NANCY G. ABUDU* American Civil Liberties Union Voting Rights Project 2600 Marquis One Tower 245 Peachtree Center Ave. NE Atlanta, Georgia 30303-1227 Tel: (404) 523-2721 Fax: (404) 653-0331 lmcdonald@aclu.org nbradley@aclu.org nabudu@aclu.org *Admitted Pro Hac Vice
DANIEL POCHODA (AZ Bar No. 021979) American Civil Liberties Union of Arizona P.O. Box 17148 Phoenix, Arizona 85011-0148 Tel: (602) 650-1967 Fax: (602) 650-1376 dpochoda@acluaz.org
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

ARMANDO CORONADO; JOSEPH RUBIO; )

MICHAEL GARZA; MICHELE CONVIE;

)

and RAYMOND LEWIS, JR.,

)

)

Plaintiffs,

)

vs.

)

)

)

JANET NAPOLITANO, Governor;

)

JANICE K. BREWER, Secretary of

)

State of Arizona; F. ANN RODRIGUEZ,

)

Pima County Recorder; and HELEN PURCELL, )

Maricopa County Recorder, in their official

)

capacities,

)

)

Defendants. )

No. CV-07-1089-PHX-SMM
COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF, AND NOMINAL MONETARY DAMAGES

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 2 of 15 INTRODUCTION
1. Plaintiffs bring this civil rights action to remedy the Defendants’ arbitrary and unconstitutional deprivations of their basic right to vote. Specifically, Plaintiffs challenge: (a) Defendants’ denial of voting rights to people convicted of non-common law felonies; and (b) Defendants’ requirement that people with felony convictions pay all of their legal financial obligations (“LFOs”) before they are eligible for restoration of their voting rights. Defendants’ disfranchisement of Plaintiffs violates Plaintiffs’ fundamental right to vote and undermines our representative system of government. Plaintiffs seek declaratory and injunctive relief, as well as nominal monetary damages.
2. Denying the right to vote based on acts which were not felonies at common law constitutes a deprivation of a fundamental right that is not permitted by any constitutional provision or exception and does not serve a compelling or legitimate governmental interest.
3. Defendants deny the right to vote to all persons convicted of a felony in Arizona solely because they have not paid their court-imposed LFOs including fines, restitution, and probation costs. Denying the right to vote based on one’s failure or inability to pay LFOs is the modern equivalent of a poll tax and serves no compelling or legitimate governmental interest.
4. The above deprivations violate Plaintiffs’ rights under the Fourteenth and Twenty -Fourth Amendments to the United States Constitution, Article 2, Section 21 of the Arizona Constitution, and the Privileges and Immunities Clauses of the United States and Arizona Constitutions. The relief that Plaintiffs seek in this case is necessary to address these constitutional violations and to enable Plaintiffs to participate in the democratic process.
JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(3) and (4), 42 U.S.C. § 1971(d), 42 U.S.C. § 1973j(f), and this suit also is authorized by 42 U.S.C. § 1983. This Court may exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) to hear
2

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 3 of 15 claims under the Constitution and laws of Arizona. This Court has jurisdiction to grant both declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202.
6. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) because Defendants Napolitano, Brewer, and Purcell are situated within this judicial district.
PLAINTIFFS 7. Plaintiff Armando Coronado is a citizen of the United States and a resident of Pima County, Arizona. He was convicted of a felony drug offense on August 6, 1990 and his sentence included an order to pay $2,740.00 in court fines and $100.00 to a victim compensation fund. Mr. Coronado received an absolute discharge from the Department of Corrections on May 3, 1994, but still owes the court system $2,840.00 in addition to all interest that has accrued on his debt. Mr. Coronado applied for restoration of his civil rights on October 25, 1999 pursuant to Sections 13-906 and 13-907 of the Arizona Revised Statutes. The State of Arizona (“the State”) denied his application. He wishes to vote in upcoming elections, but remains ineligible because of his outstanding LFOs. 8. Plaintiff Joseph Rubio is a citizen of the United States and a resident of Maricopa County, Arizona. He was convicted of attempted aggravated domestic violence in or about January 2006. The State issued Mr. Rubio a Certificate of Absolute Discharge on February 23, 2007. Mr. Rubio applied for restoration of his civil rights in or about March of 2007. The State denied Mr. Rubio’s application on April 10, 2007 on the ground that he failed to pay the costs associated with his term of probation which amounts to $55 plus any accrued interest. He wishes to vote in upcoming elections, but remains ineligible because of his outstanding LFOs. 9. Plaintiff Michael Garza is a citizen of the United States and a resident of Maricopa County, Arizona. He was convicted of a felony drug offense in Arizona on December 4, 1992. Mr. Garza has completed his term of imprisonment, parole, and probation. However, he still owes over $3,700 in court fines and restitution plus any accrued interest. He wishes to vote in upcoming elections, but remains ineligible because of his outstanding LFOs.
3

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 4 of 15 10. Plaintiff Michele Convie is a citizen of the United States and a resident of Pima County, Arizona. She was convicted of a felony drug offense in California on September 12, 1975, and of four felony drug offenses in Arizona on July 1, 1981, October 5, 1985, November 8, 1985, and January 26, 1986. Ms. Convie is no longer in prison, on parole, or on probation. She wishes to vote in upcoming elections, but is ineligible because of her felony drug convictions. 11. Plaintiff Raymond Lewis, Jr. is a citizen of the United States and a resident of Pima County, Arizona. He was convicted of two felony drug offenses, one on July 10, 1990 and the other one on August 10, 1998. Mr. Lewis is no longer in prison, on parole, or on probation. He wishes to vote in upcoming elections, but is ineligible because of his felony drug convictions.
DEFENDANTS 12. Defendant Janet Napolitano is the Governor of the State of Arizona. As the State’s chief executive officer, she is ultimately responsibility for implementing Arizona law, including violations of election and other criminal laws, rules, and regulations. She is sued in her official capacity only for actions that she took under color of state law. 13. Defendant Janice K. Brewer is the Secretary of State of Arizona and, as such, the chief election officer for the State. Ariz. Rev. Stat. § 16-142. She is sued in her official capacity only for actions that she took under color of state law. 14. Defendant F. Ann Rodriguez is the county recorder for Pima County, the official custodian of the voter registration books, and is responsible for the registration of voters in her county pursuant to Ariz. Rev. Stat. §§ 16-163, 16-165, 16-166, and 16-168. She is required to cancel the registration of persons convicted of any felony. Ariz. Rev. Stat. § 16-165. She is sued in her official capacity only for actions that she took under color of state law. 15. Defendant Helen Purcell is the county recorder for Maricopa County, the official custodian of the voter registration books, and is responsible for the registration of voters in her county pursuant to Ariz. Rev. Stat. §§ 16-163, 16-165, 16-166, and 16-168. She is required to cancel the
4

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 5 of 15 registration of persons convicted of any felony. Ariz. Rev. Stat. § 16-165. She is sued in her official capacity only for actions that she took under color of state law.
FACTUAL ALLEGATIONS RELEVANT TO PLAINTIFFS CORONADO, RUBIO AND GARZA 16. Section 13-912 of the Arizona Revised Statutes provides that: Any person who has not previously been convicted of another felony shall automatically be restored to any civil rights that were lost or suspended by the conviction if the person both: (1) Completes a term of probation or receives an absolute discharge from imprisonment [and] (2) Pays any fine or restitution imposed. 17. A court may order a convicted defendant to pay a fine as a part of his or her sentence. Ariz. Rev. Code §§ 801(A) and (B). 18. If a court requires a defendant to pay a fine, restitution, a penalty assessment, or incarceration costs or surcharges, such LFOs become a condition of the defendant’s probation. Ariz. Rev. Stat. § 13-808 (B). 19. Section 2(C) of Article VII of the Arizona Constitution states that no person convicted of a felony shall be qualified to vote “unless restored to civil rights.” 20. Plaintiff Armando Coronado is a citizen of the United States and a resident of Pima County, Arizona. 21. Mr. Coronado was convicted of a felony drug offense on August 6, 1990 and the sentencing court ordered him to pay a total of $2,840.00 in court fines and restitution. 22. Pursuant to Arizona law, Mr. Coronado applied for and received an absolute discharge from his conviction on May 3, 1994. 23. The State denied Mr. Coronado’s request for restoration of his civil rights because he owes $2,840.00 in court fines and restitution payments plus accrued interest. 24. Thus, Mr. Coronado was and remains ineligible for automatic restoration of his voting rights under Section 13-912 of the Arizona Code.
5

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 6 of 15 25. Plaintiff Joseph Rubio is a citizen of the United States and a resident of Maricopa County, Arizona. 26. Mr. Rubio was convicted of attempted aggravated domestic violence in or about January 2006. 27. The State issued Mr. Rubio a Certificate of Absolute Discharge on February 23, 2007. 28. Mr. Rubio applied for restoration of all of his civil rights in or about March of 2007. 29. The State denied Mr. Rubio’s rights restoration request on April 10, 2007 on the ground that he failed to pay the costs associated with his probation. 30. Mr. Rubio was and remains ineligible for automatic restoration of his voting rights under Section 13-912 of the Arizona Code. 31. Plaintiff Michael Garza is a citizen of the United States and a resident of Maricopa County, Arizona. 32. Mr. Garza was convicted of a felony drug offense in Arizona on December 4, 1992. 33. Although Mr. Garza has completed his term of imprisonment, parole, and probation, he still owes over $3,700 in court fines and restitution plus any accrued interest. 34. Mr. Garza was and remains ineligible for restoration of his voting under Section 13-912 of the Arizona Code. 35. Plaintiffs Coronado, Rubio, and Garza are suffering irreparable injury as a result of the denial of their right to vote and they have no adequate remedy at law.
FACTUAL ALLEGATIONS RELEVANT TO ALL PLAINTIFFS 36. In March of 1867, prior to passage of the Fourteenth Amendment, Congress adopted a Reconstruction Act which required confederate states seeking readmission to the Union to grant universal suffrage to all males regardless of race, color, or previous condition of servitude. 37. Section 5 of the Reconstruction Act provided that:
[W]hen the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male
6

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 7 of 15 citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law . . . said State shall be declared entitled to representation in Congress . . . .
Reconstruction Act of Mar. 2, 1867, ch. CLII (1867) (emphasis added).
38. The Thirty-Ninth Congress proposed the Fourteenth Amendment to the United States
Constitution in June of 1866 and the states ratified the amendment in July of 1868.
39. Section 2 of the Fourteenth Amendment states that:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number the male citizens twenty-one years of age in such State.
U.S. Const. amend. XIV, § 2 (emphasis added).
40. Congress also enacted a series of statutes known as “Enabling or Readmission Acts” in
1868 and 1870 which accorded confederate states representation in Congress.
41. The Readmission Act for Arkansas, the first state readmitted, declared that:
[T]he State of Arkansas is entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabitants of said State . . . .
Act of June 22, 1868, c. 69, 15 Stat. 71 (emphasis added).
42. Congress imposed the same condition, with only slight variations in language, in the
statutes that readmitted the remaining confederate states. See Act of June 25, 1868, c. 70, 15 Stat. 73;
7

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 8 of 15 Act of Jan. 26, 1970, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act of Feb. 23, 1870, c. 19, 16 Stat. 67; Act of Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363.
43. The possession, use, sale, or manufacturing of narcotic drugs were never common felonies.
44. Attempted aggravated domestic violence was never a common law felony. 45. The number of people who have criminal convictions has increased significantly since passage of the Fourteenth Amendment. 46. Given the racial disparities within the federal and state criminal justice systems, Arizona’s felon disfranchisement scheme results in minorities being denied the right to vote at much greater rates than whites. 47. Arizona’s first constitution, which was drafted in 1910 and adopted in 1912, stated that “[n]o person under guardianship, non compos mentis, or insane, shall be qualified to vote at any election, nor shall any person convicted of treason or felony, be qualified to vote at any election unless restored to civil rights.” Ariz. Const. art. VII, § 2 (effective November 1912). 48. Although Article VII of the Arizona Constitution was amended in 1962 and 2000, the following language, which is currently in Article VII, Section 2(C) has remained unchanged since 1912: “nor shall any person convicted of treason or felony, be qualified to vote at any election, unless restored to civil rights.” 49. Section 13-105(16) of the Arizona Revised Statutes defines a “felony” as “an offense for which a sentence to a term of imprisonment in the custody of the state department of corrections is authorized by any law of this state.” Ariz. Rev. Stat. § 13-105(16). 50. Section 2(C) in Article VII of the Arizona Constitution provides that: “No person who is adjudicated an incapacitated person shall be qualified to vote at any election, nor shall any person convicted of treason or felony, be qualified to vote at any election, unless restored to civil rights.” 51. The State’s disfranchisement of people with felony convictions is also embodied in sections 13-904(A) and 16-101(A)(5) of the Arizona Revised Statutes.
8

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 9 of 15 52. There are over 176,000 people in the State convicted of a felony who currently do not have the right to vote in state or federal elections. 53. Whereas the State automatically restores the voting rights of a person convicted of only one felony who has paid his or her LFOs, a person convicted of two or more felonies must seek discretionary approval from the judge who either sentenced or discharged the person before the State restores his or her voting rights. Ariz. Rev. Stat. §§ 13-905 and 13-908. 54. Plaintiff Michele Convie is a citizen of the United States and a resident of Pima County, Arizona. 55. Plaintiff Raymond Lewis, Jr. is a citizen of the United States and a resident of Pima County, Arizona. 56. Plaintiffs were all convicted of non-common law felonies. 57. Plaintiffs are suffering irreparable injury as a result of the denial of their right to vote and have no adequate remedy at law.
COUNT ONE (Disfranchisement for Failure to Pay LFOs) VIOLATION OF EQUAL PROTECTION CLAUSE 58. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 59. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 60. Arizona law allows a person with only one felony conviction who has paid all of his or her LFOs to receive automatic restoration of his or her civil rights, including the right to vote. Ariz. Rev. Stat. § 13-913. 61. Although Plaintiffs Coronado, Rubio, and Garza only have one felony conviction, they remain ineligible for automatic restoration of their voting rights because they owe outstanding LFOs.
9

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 10 of 15 62. Defendants’ requirement that people with a felony conviction pay all of their LFOs as a precondition to being eligible for restoration of their voting rights unlawfully denies Plaintiffs Coronado, Rubio, and Garza equal protection under the law. 63. Defendants’ requirement that people with a felony conviction pay all of their LFOs as a precondition to being eligible for restoration of their voting rights also negatively and disproportionately impacts indigent people in violation of the equal protection clause.
COUNT TWO (Disfranchisement for Failure to Pay LFOs) VIOLATION OF THE TWENTY-FOURTH AMENDMENT
TO THE U.S. CONSTITUTION 64. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 65. The Twenty-Fourth Amendment to the U.S. Constitution states that:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State for reason of failure to pay any poll tax or other tax. 66. Section 13-912 of the Arizona Code conditions the right to vote upon a convicted person’s payment of LFOs. 67. The requirement set forth in Section 13-912 is, therefore, invalid because it contradicts the Twenty-Fourth Amendment.
COUNT THREE (Disfranchisement for Failure to Pay LFOs) VIOLATION OF ARIZONA CONSTITUTION ARTICLE 2, SECTION 21 68. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 69. Article 2, Section 21 of the Arizona Constitution states that: “All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
10

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 11 of 15 70. Defendants’ denial of Plaintiffs Coronado, Rubio, and Garza’s fundamental right to vote based upon their failure or inability to pay LFOs unlawfully denies them the free exercise of the right of suffrage that Article 2, Section 21 of the Arizona Constitution provides.
COUNT FOUR (Disfranchisement for Failure to Pay LFOs) VIOLATION OF PRIVILEGES AND IMMUNITIES CLAUSES IN UNITED STATES AND ARIZONA CONSTITUTIONS
71. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 72. Section 1 of the Fourteenth Amendment to the United States Constitution provides that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .” 73. Section 13 in Article 2 of the Arizona Constitution declares that: “No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.” 74. State restrictions that deny the fundamental right to vote based upon the failure to pay LFOs unlawfully deny rights, privileges, immunities and the protections of equality afforded by the United States and Arizona Constitutions.
COUNT FIVE (Disfranchisement for Conviction of Non-Common Law Felony)
VIOLATION OF EQUAL PROTECTION CLAUSE 75. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 76. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 77. The possession, use, sale, or manufacturing of narcotic drugs and the crime of attempted aggravated domestic violence were never common law felonies.
11

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 12 of 15 78. Arizona’s admission to the Union required that it disenfranchise only those individuals convicted of common law felonies. 79. Defendants’ denial of Plaintiffs’ right to vote based on their felony drug convictions serves no compelling governmental state interest. 80. The State’s disfranchisement of Plaintiffs based on their convictions for non-common law felonies denies their right to equal protection under the law.
COUNT SIX (Disfranchisement for Conviction of Non-Common Law Felony) VIOLATION OF ARIZONA CONSTITUTION ARTICLE 2, SECTION 21 81. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 82. Section 21 in Article 2 of the Arizona Constitution states that: “All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” 83. Because neither the possession, use, sale, or manufacturing of narcotic drugs nor the crime of attempted aggravated domestic violence were never common law felonies, the State’s denial of Plaintiffs’ right to vote based on their conviction for non-common law felonies unlawfully denies Plaintiffs the free exercise of the right of suffrage that Article 2, Section 21 of the Arizona Constitution provides.
COUNT SEVEN (Disfranchisement for Conviction of Non-Common Law Felony) VIOLATION OF PRIVILEGES AND IMMUNITIES CLAUSES
IN UNITED STATES AND ARIZONA CONSTITUTIONS 84. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 85. Section 1 of the Fourteenth Amendment to the United States Constitution provides that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .”
12

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 13 of 15 86. Section 13 in Article 2 of the Arizona Constitution declares that: “No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.” 87. The State’s denial of Plaintiffs’ right to vote based on their convictions for non-common law felonies unlawfully denies the rights, privileges, immunities, and the protections of equality that the United States and Arizona Constitutions afford.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully ask this Court to: (1) Exercise supplemental jurisdiction over Plaintiffs’ claims brought under the Constitution and laws of Arizona; (2) Declare that the denial of Plaintiffs Coronado, Rubio, and Garza’s right to vote based on their failure or inability to pay LFOs violates the Fourteenth and Twenty-Fourth Amendments to the United States Constitution, Article 2, Section 21 of the Arizona Constitution, and the Privileges and Immunities Clauses of the United States and Arizona Constitutions; (3) Declare that the denial of Plaintiffs voting rights based on their convictions for non -common law felonies violates the Fourteenth Amendment to the United States Constitution, Article 2, Section 21 of the Arizona Constitution, and the Privileges and Immunities Clauses of the United States and Arizona Constitutions; (4) Enjoin Defendants and their agents, employees, and representatives from denying Plaintiffs of their right to register and vote, and direct Defendants to prepare and circulate a state registration form in accordance with this Court’s declarations; (5) Award Plaintiffs nominal damages for the denials of their right to vote; (6) Award Plaintiffs’ their expenses, costs, fees, and other disbursements associated with the filing and maintenance of this action, including reasonable attorneys’ fees, pursuant to 42 U.S.C. §§ 1988 and 1973l(e);
13

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 14 of 15 (7) Exercise continuing jurisdiction over this action during the enforcement of its judgment;
and
(8) Award any other and further relief that this Court deems proper and just. DATED this 19th day of February, 2008.
Respectfully submitted,
By: _/s/_LaughlinMcDonald____________________ Laughlin McDonald* Neil Bradley* Nancy G. Abudu* AMERICAN CIVIL LIBERTIES UNION VOTING RIGHTS PROJECT 2600 Marquis One Tower 245 Peachtree Center Ave. NE Atlanta, GA 30303-1227 Tel: (404) 523-2721 Fax: (404) 653-0331 lmcdonald@aclu.org nbradely@aclu.org nabudu@aclu.org *Admitted pro hac vice
Daniel Pochoda (AZ Bar # 021979) Legal Director AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA PO Box 17148 Phoenix, AZ 85011-0148 Tel: (602) 650-1967 Fax: (602) 650-1376 dpochoda@acluaz.org
Attorneys for Plaintiffs
14

Case 2:07-cv-01089-SMM Document 59 Filed 04/30/08 Page 15 of 15

Certificate of Service

I hereby certify that I have served the foregoing upon counsel of record for Defendants,

addressed as follows, via electronic filing:

Barbara A. Bailey Assistant Attorney General Office of the Attorney General 1275 West Washington Phoenix, Arizona 85007
Mary O’Grady Soliticor General Office of the Attorney General 1275 West Washington Phoenix, Arizona 85007
Karen Friar Deputy Pima County Attorney 32 North Stone, Suite 2100 Tucson, AZ 85701-1403

Andrew P. Thomas Maricopa County Attorney Colleen Connor Deputy County Attorney 222 North Central Avenue, Suite 1100 Phoenix, Arizona 85004-2206
Dennis I. Wilenchik Kathleen E. Rapp Wilenchik & Bartness, P.C. The Wilenchik & Bartness Building 2810 North Third Street Phoenix, Arizona 85004

This 19th day of February, 2008, at Atlanta, Georgia. /s/Laughlin McDonald___________

 
 Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 1 of 14

1 TERRY GODDARD
Attorney General 2 Firm Bar No. 14000
3 Mary O’Grady, No.011434
Solicitor General 4 Barbara A. Bailey, No. 018230
5 Assistant Attorney General 1275 West Washington Street
6 Phoenix, Arizona 85007-1298
7 Tel: (602) 542-3333 Fax: (602) 542-8308
8 Attorneys for Defendants Governor Janet Napolitano
9 And Secretary of State Janice Brewer

10

IN THE UNITED STATES DISTRICT COURT

11

DISTRICT OF ARIZONA

12 ARMANDO CORONADO; JOSEPH 13 RUBIO; MICHAEL GARZA; MICHELE
CONVIE; and RAYMOND LEWIS, JR.,
14

15

Plaintiffs,

v.

16

17 JANET A. NAPOLITANO, Governor; JANICE K. BREWER, Secretary of State

18 of Arizona, F. ANN RODRIGUEZ, Pima

19 County Recorder; and HELEN PURCELL, Maricopa County Recorder, in their official

20 capacities,

21
.

Defendants,

22

NO. CV07-01089 PHX SMM
STATE DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT AND MEMORANDUM IN SUPPORT THEREOF
(Assigned to the Honorable Stephen M. McNamee)
(Oral Argument Requested)

23

24

25

26

27

28

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 2 of 14

1

2

MOTION

3

Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants Governor Janet A. Napolitano

4 and Secretary of State Janice K. Brewer (“Defendants”) move to dismiss the First

5 Amended Complaint and this action for failure to state a claim upon which relief can be

6 granted. This motion is supported by the following memorandum of points and

7 authorities.

8

MEMORANDUM

9

Preliminary Statement

Plaintiffs’ new allegations do nothing to address the legal deficiencies that this
10

Court already has determined are fatal to plaintiffs’ case. Plaintiffs’ new complaint
11

amends their first one by adding only four allegations that are arguably relevant to their
12

claims. None of those four allegations, however, addresses either this Court’s dismissal
13

order or the well-established law that is dispositive of their claims. In the First Amended
14
Complaint (“FAC”), plaintiffs attempt to transform their equal protection challenge into
15
a claim based on racial discrimination. Their lone allegation regarding “racial
16
disparities,” however, does not even implicate Arizona’s felon disenfranchisement laws.
17
Instead, plaintiffs allege that discrimination in “the federal and state criminal justice

18
systems” disparately impacts racial minorities.

19
Moreover, apart from the failure to allege any racial discrimination caused by the

20
specific laws that plaintiffs seek to challenge, the FAC fails to allege any discriminatory

21
purpose or intent on the part of Arizona in enacting or implementing its felon

22 disenfranchisement laws. Accordingly, plaintiffs’ newly-styled equal protection claim is

23 as legally deficient as their first.

24

Plaintiffs also reassert the same equal protection claims based on a “common law

25 felony” distinction that are identical to those claims definitively decided and rejected by

26 the Court previously in this case. No case of which we are aware has ever recognized

27 that such a distinction limits states’ authority to disenfranchise felons. Indeed, every

28 case that has addressed such an argument has decided it against plaintiffs. In any event,

1

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 3 of 14

1 the FAC provides no basis whatever for undoing the Court’s ruling on plaintiffs’

2 “common law felony” theory. The FAC should be dismissed.

3

Relevant Procedural Background and the First Amended Complaint

4

1. The original complaint and its dismissal.

5

Plaintiffs filed the original complaint in this action on June 1, 2007. [Dkt. 1]

6 That complaint asserted seven counts based on the federal and state constitutions. The

7 first four claims challenged Arizona’s disenfranchisement of convicted felons unless

8 and until those felons have completed all of the terms of their sentences, including the

9 payment of any fines or restitution. [Compl. ¶¶ 56-71] The remaining three claims

10 challenged the disenfranchisement of all convicted felons, including those felons

11 convicted of crimes that were not in existence at the time the Fourteenth Amendment

12 was adopted (i.e., “non common law” felonies). [Compl. ¶¶ 73-83]

13

In the original complaint, some plaintiffs (Coronado, Rubio and Garza) asserted

14 that they were injured because they had not paid the financial penalties that resulted

from their conviction for one or more felonies. [Compl. ¶¶ 7-9] Two other plaintiffs
15

(Convie and Lewis) asserted that they were injured by Arizona’s felon
16

disenfranchisement because they had committed only “non common law” felonies and
17

therefore could not be disenfranchised in accordance with the federal and state
18

constitutions. [Compl. ¶¶ 10-11] None of the plaintiffs alleged that he or she was a
19
member of any minority racial group.
20
The Court dismissed the complaint in its entirety. [Order dated 1/22/08, dkt. 48]
21
The Court held that Arizona treats all felons the same with regard to disenfranchisement
22
and restoration of civil rights. Every felon is disenfranchised and must complete his or
23
her sentence, regardless what that sentence is, before becoming eligible to be restored to

24
civil rights. [Order at 6] Similarly, the Court held that Arizona’s requirement that

25
felons complete their sentences by paying any fines or restitution is not a poll tax.

26
[Order at 8-9] The Court also rejected plaintiffs’ Arizona constitutional claims, which

27
would have required the Court to read different provisions of that constitution as

28 conflicting. [Order at 9] The Court rejected plaintiffs’ privileges and immunities

2

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 4 of 14

1 claims for the same reason it rejected the equal protection claims. [Order at 10-11]

2 Finally, the Court found that the plain language of the Fourteenth Amendment permits

3 states to disenfranchise felons and does not distinguish between the types of felonies

4 committed. [Order at 12-14]

5

2. The First Amended Complaint.

6

The FAC is nearly identical to the original complaint. With regard to

7 substantive allegations that relate to their claims, plaintiffs added only the following

8 allegations to the FAC:

9

The number of people who have criminal convictions has increased

significantly since passage of the Fourteenth Amendment. [¶ 45]

10

11

Given the racial disparities within the federal and state criminal justice

systems, Arizona’s felon disfranchisement [sic] scheme results in

12

minorities being denied the right to vote at much greater rates than whites.

13

[¶ 46]

14

Defendants’ requirement that people with a felony conviction pay all of

their LFOs as a precondition to being eligible for restoration of their

15

voting rights also negatively and disproportionately impacts indigent

16

people in violation of the equal protection clause. [¶ 63]

17

Arizona’s admission to the Union required that it disenfranchise only

18

those individuals convicted of common law felonies. [¶ 78]1

19

Legal Argument

20

I. THE APPLICABLE LEGAL STANDARD.

21

In deciding a motion to dismiss, courts accept all material allegations in the

22 complaint as true. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988).

23 Conclusory allegations of law and unwarranted inferences, however, are insufficient to

24 defeat a motion to dismiss for failure to state a claim. E.g., Fields v. Legacy Health 25 Sys., 413 F.3d 943, 951 n.5 (9th Cir. 2005) (citing Nat’l Ass’n for the Advancement of

26 1 The only other substantive changes to the complaint were the deletion of references to 27 the Voting Rights Act [FAC ¶¶ 4, 67], the clarification that plaintiff Garza asserts the 28 claims based on the requirement that felons pay their financial penalties before being
restored their civil rights [FAC ¶¶ 61-62, 70], and the deletion of a reference to a

3

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 5 of 14

1 Psychoanalysis v. Cal. Bd., 228 F.3d 1043, 1049 (9th Cir. 2000)); McGlinchy, 845 F.2d

2 at 810 (“[C]onclusory allegations without more are insufficient to defeat a motion to

3 dismiss for failure to state a claim.”).

4

Moreover, dismissal is warranted if the complaint lacks a cognizable legal theory

5 or insufficient facts under a cognizable legal claim. SmileCare Dental Group v. Delta

6 Dental Plan of Calif., Inc., 88 F.3d 780, 783 (9th Cir. 1996); Perry v. Beamer, 933 F.

7 Supp. 556, 557, 559 (E.D. Va.) (dismissing a complaint challenging a felon

8 disenfranchisement law because the legal theories raised by the complaint failed as a 9 matter of law), aff’d, 99 F.3d 1130 (4th Cir. 1996).

10

II. THE COURT SHOULD DISMISS COUNTS ONE THROUGH FOUR

BECAUSE THE AMENDED ALLEGATIONS DO NOT SAVE PLAINTIFFS’

11

CLAIMS.

12

A. Plaintiffs’ Equal Protection Claim Fails Because the U.S.

13

and Arizona Constitutions Expressly Permit Felon

Disenfranchisement.
14

15

1. Plaintiffs’ allegation of “racial disparities” does not support

their claim.

16
Plaintiffs attempt to save their lawsuit by alleging that “[g]iven the racial
17
disparities within the federal and state criminal justice systems, Arizona’s felon
18
disfranchisement [sic] scheme results in minorities being denied the right to vote at
19
much greater rates than whites.” [¶ 46] Having failed to state a claim in their original
20
complaint, plaintiffs apparently are re-characterizing their lawsuit as one based on
21
racial discrimination. Their new complaint, however, does not allege any equal
22
protection claim based on racial discrimination for at least two reasons.

23
First, the FAC does not allege any purposeful discrimination on the part of the

24
State. Under Richardson, states may constitutionally disenfranchise felons and never

25 restore their right to vote. In Hunter v. Underwood, the Supreme Court articulated a

26 single exception to Richardson’s express recognition of states’ authority to

27 disenfranchise felons. 471 U.S. 222, 233 (1985); see Richardson v. Ramirez, 418 U.S.

28

preliminary injunction under the relief sought by the complaint [FAC p. 13 ¶ 4].

4

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 6 of 14

1 24 (1974). Hunter unremarkably held that states may not intentionally discriminate on

2 the basis of race in disenfranchising felons. Id. at 227-28 (affirming judgment in

3 plaintiffs’ favor on an equal protection claim based on disenfranchisement of felons,

4 where Alabama had expressly enacted its felon disenfranchisement law for the purpose

5 of excluding minorities from the franchise). Under Hunter’s narrow exception,

6 however, a plaintiff may not merely rely on an allegation of a disparate racial impact.

7

Hunter expressly requires that plaintiffs challenging felon disenfranchisement

8 based on alleged racial discrimination must show not only that the law causes a racially

9 disproportionate impact but also that the law was enacted with a racially discriminatory

10 intent or for a discriminatory purpose. Id. at 227-28 (requiring a showing of both

11 impermissible racial motivation and racially discriminatory impact for equal protection

12 challenge to felon disenfranchisement law based on race).

13

The FAC does not allege any intentional discrimination on the part of Arizona in

14 disenfranchising felons. There is no allegation that Arizona enacted its constitutional or

statutory provisions on felon disenfranchisement for the purpose of excluding any racial
15
minority from the franchise. Indeed, there is no allegation of any improper purpose
16
whatever on the part of Arizona in enacting its disenfranchisement laws.2 Accordingly,
17
plaintiffs’ allegation of racial discrimination is insufficient to support an equal
18
protection claim. E.g., Johnson v. Governor of the State of Florida, 405 F.3d 1214,
19
1218, 1223-24 (11th Cir. 2005) (affirming judgment in favor of Florida where plaintiffs
20
failed to allege facts sufficient to establish intentional discrimination in state’s felon
21
disenfranchisement law).
22
Second, plaintiffs’ new allegation regarding “racial disparities within the federal
23
and state criminal justice systems” is not an allegation of discrimination caused by
24
Arizona’s felon disenfranchisement laws. The FAC does not allege that Arizona
25
discriminates based on race in the manner in which it disenfranchises felons. Indeed,
26
plaintiffs do not dispute that every person convicted of a felony is subject to the same
27

28 2 Neither does the FAC allege that Arizona’s law regarding restoration of right was enacted for any discriminatory purpose.

5

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 7 of 14

1 disenfranchisement provisions. Neither does the FAC allege that the manner in which

2 Arizona restores felons’ rights is discriminatory. Plaintiffs (understandably) do not

3 allege or even suggest that Arizona restores civil rights to felons based on race

4 considerations. There is simply no allegation that either the taking away of felon voting

5 rights or the restoration of civil rights to convicted felons is itself discriminatory.

6

Instead, the discrimination upon which plaintiffs rely allegedly already exists in

7 the criminal justice system. Plaintiffs apparently complain that racial disparity in the

8 criminal justice system results in a disproportionately higher number of minority

9 individuals comprising the pool of felons, who are in turn subject to disenfranchisement

10 and the restoration of rights laws. Such an allegation, however, is not an allegation of

11 discrimination caused by Arizona’s disenfranchisement laws and accordingly is

12 insufficient to challenge those laws based on equal protection.

13

2. Plaintiffs’ allegation of disparate impact on indigent persons

does not state a claim.

14
The only other allegation added by the FAC that conceivably could bear on
15
plaintiffs’ equal protection claim is their assertion that Arizona’s requirement that
16
felons pay all financial obligations to be eligible to have rights restored “negatively and
17
disproportionately impacts indigent people in violation of the equal protection clause.”

18 [FAC ¶ 63]3 That allegation, however, does not support a claim under the equal

19
protection clause under the reasoning and holding of Richardson.

20
As explained in Defendants’ motion to dismiss the original complaint, Arizona’s

21
disenfranchisement of felons is expressly permitted by the Constitution. Under

22 Richardson, states may disenfranchise felons forever, and thus may necessarily

23 disenfranchise them until they have completed all the terms of their sentences. The

24 Richardson Court did not undertake a traditional equal protection analysis when

25 considering the constitutionality of California’s felon disenfranchisement scheme.

26 Instead, the Court held that the Fourteenth Amendment expressly sanctions states’

27
28 3 The additional allegation that “[t]he number of people who have criminal convictions has increased significantly since passage of the Fourteenth Amendment” is irrelevant to

6

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 8 of 14

1 disenfranchisement of felons. Richardson, 418 U.S. at 54, 56.

2

The fact that plaintiffs here at times have characterized their claim as a challenge

3 to Arizona’s laws of “re-enfranchisement,” as opposed to disenfranchisement, does not

4 alter the legal analysis under Richardson. The Richardson Court did not recognize any

5 such distinction. Moreover, the plaintiffs in Richardson were challenging California’s

6 refusal to “re-enfranchise” them, not the state’s authority to disenfranchise them in the

7 first place. Id. at 33 (challenging the denial of voting rights to ex-felons). Yet the

8 Court analyzed their claim as one of disenfranchisement. Id. at 56.

9

To the extent plaintiffs challenge the requirement that they complete their entire

10 felony sentences before being restored their civil rights, plaintiffs are challenging the

11 duration of their disenfranchisement. Richardson makes clear, however, that the

12 duration of states’ disenfranchisement of felons is unlimited if the states so choose.

13

Even if Richardson is not interpreted to foreclose plaintiffs’ equal protection

14 challenge altogether, plaintiffs’ claim should be dismissed under a rational basis review.

As this Court previously recognized, plaintiffs cannot claim a fundamental right in this
15
case because they have lost their right to vote. [See Order at 6 (“Having been
16
legitimately disenfranchised, Plaintiffs can no longer claim that their right to vote is
17
fundamental.”)]
18
In addition, an allegation that plaintiffs are indigent, even if it had been asserted
19
in the FAC, would not implicate a heightened standard of review because indigent
20
persons do not comprise any suspect class for purposes of equal protection analysis.
21
E.g., Harris v. McRae, 448 U.S. 297, 322-23 (1980) (“poverty, standing alone[,] is not
22
a suspect classification”); Maher v. Roe, 432 U.S. 464, 470-71 (1977) (“this Court has
23
never held that financial need alone identifies a suspect class for purposes of equal 24 protection analysis”) (citations omitted); Hassan v. Wright, 45 F.3d 1063, 1068 (7th Cir. 25 1995) (“indigents do not compose a suspect class”).4
26

27

28

the analysis of plaintiffs’ claims. [See FAC ¶ 45] 4 The FAC does not allege that any of the plaintiffs either are indigent or unable to

complete their respective felony sentences by paying off their financial penalties.

7

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 9 of 14

1

Because neither a fundamental right nor a suspect class is implicated by the

2 FAC’s allegations, the Court should uphold Arizona’s disenfranchisement law because

3 it is rationally related to a legitimate government interest. E.g., United States v. 4 Hancock, 231 F.3d 557, 566 (9th Cir. 2000) (where a law neither implicates a

5 fundamental right nor targets a suspect class, courts apply a rational basis review in

6 deciding equal protection challenges); Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 7 1208 (9th Cir. 2005) (under rational basis review, restrictions will be upheld if they are

8 rationally related to a legitimate state interest).

9

The Court already has held that Arizona’s requirement that felons pay their

10 financial penalties, as part of their felony sentences, before having their civil rights

11 restored serves the State’s interest “in punishing and deterring criminal activity.”

12 [Order at 7] The Court recognized the State’s interest in rehabilitating convicted

13 persons by requiring them to “recognize and accept responsibility for the consequences

14 of the criminal activity.” [Id.] The Court held that including financial obligations in a

convicted felon’s sentence is rationally related to those legitimate state interests. [Id.]
15
Nothing in the FAC supports any finding to the contrary.
16
Accordingly, plaintiffs’ new allegation regarding unnamed “indigent people”
17
does not support any equal protection claim.
18
B. Plaintiffs’ Poll Tax Claim Was Already Decided.
19

20

The FAC continues to assert a poll tax claim based on the Twenty-Fourth

21 Amendment. Other than deleting a reference to a federal statute as support for

22 plaintiffs’ poll tax claim, the FAC’s allegations regarding that claim (Count Two) are
identical to those of the original complaint. [Compare Compl. ¶¶ 60-64 (dkt. 1) with
23
FAC ¶¶ 64-67 (dkt. 59)] The Court dismissed plaintiffs’ poll tax claim, however,
24
because the Court found that fines and restitution are part of a felon’s sentence—not a
25
poll tax. [Order at 8] As the Court held, requiring felons to pay financial penalties,
26
which may legitimately be part of their criminal sentence, does not make the ability to
27
pay “an electoral standard.” Instead, Arizona permissibly limits the restoration of rights
28
to those felons who have completed the sentences imposed for their criminal conduct.

8

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 10 of 14

1

The Court has decided the matter. Plaintiffs should not be permitted to continue

2 asserting a poll tax claim in their FAC.

3

C. Plaintiffs’ Remaining Claims Based on Arizona Constitutional

Provisions and the Privileges and Immunities Clause Have

4

Been Decided Against Plaintiffs.

5
1. Plaintiffs’ claim based on the free and equal elections clause

6

was decided.

7

As with plaintiffs’ poll tax claim, the Court directly addressed and decided their

8 claim based on Arizona Constitution, art. 2, § 21 (“free and equal elections clause”),

9 against the plaintiffs. [See Order at 9] The FAC adds no allegations that support any

10 claim under the free and equal elections clause. Accordingly, the Court should dismiss

11 that claim for the reasons stated in the Court’s dismissal order.

12

2. The FAC does not state any claims under the privileges and

13

immunities clauses.

14

The Court previously addressed and dismissed plaintiffs’ claims based on the

15 privileges and immunities provisions of the Arizona and federal constitutions.

16 Nonetheless, the FAC continues to assert those claims in Count Four. Nothing in the

17 FAC’s allegations, however, alters the Court’s analysis of those claims. As the Court

18 previously held, plaintiffs’ federal privileges and immunities claim fails for the same
19 reason their equal protection claim fails—the right to vote can be suspended without
20 violating the Constitution under Richardson. [Order at 10-11] Moreover, Arizona’s
21 restoration of rights law is rationally related to legitimate state interests, as discussed 22 above, and therefore is constitutional. In addition, the Court may dismiss plaintiffs’ 23 federal privileges and immunities claim on the separate basis that the right to vote is not
a “privilege” under the U.S. Constitution’s privileges and immunities clause. Minor v.
24
Happersett, 88 U.S. 162, 174 (1874) (holding that the right to vote is not conferred by
25
the privileges and immunities clause).
26
Plaintiffs’ claim under Arizona’s privileges and immunities provision fails for
27
the same reasons explained in Defendants’ motion to dismiss the original complaint and
28
in the Court’s dismissal order. [See dkt. 22 at pp. 11-12] Plaintiffs’ new allegations

9

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 11 of 14

1 about “racial disparities” in the justice system or disparate impact on “indigent people”

2 do not change that analysis. The Arizona privileges and immunities provision has the

3 same effect as the federal equal protection clause. E.g., Ariz. v. Bonnewell, 2 P.3d 682,

4 686 (Ariz. App. 1999). Accordingly, the Court should (again) dismiss plaintiffs’

5 privileges and immunities claim for the reasons explained in Section II(A) above.

6

III. THE COURT SHOULD DISMISS COUNTS FIVE THROUGH SEVEN

BECAUSE THE COURT PREVIOUSLY REJECTED THOSE CLAIMS.
7

8

As in the original complaint, Counts Five through Seven of the FAC attempt to

9 assert legal theories based on an irrelevant distinction in the type of felony of which an
individual was convicted and for which he was subsequently disenfranchised. [FAC
10
pp. 11-13] Plaintiffs previously alleged that states may disenfranchise only those
11
individuals who are convicted of an offense that would have constituted a felony at
12
common law. [FAC ¶¶ 80, 83, 87] The original complaint asserted claims under the
13
equal protection clause, the Arizona free and equal elections clause, and the privileges
14
and immunities clauses of the federal and state constitutions based on that so-called
15
“common law felony” distinction.
16
The Court rejected those claims, however, based on the plain language of § 2 of
17
the Fourteenth Amendment: “Plaintiffs’ argument finds no support in either a plain
18
reading of § 2 or principles of statutory interpretation.” [Order at 12] The only change
19
Plaintiffs made to Counts Five through Seven in their FAC was the addition of a
20
conclusory and unsupported allegation that “Arizona’s admission to the Union required
21
that it disenfranchise only those individuals convicted of common law felonies.” [FAC
22
¶ 78] That allegation, however, does nothing to change the Court’s determination that

23 the plain language of the Fourteenth Amendment authorizes states to disenfranchise

24 felons, regardless of the type of felony they have committed.

25

Accordingly, the Court should dismiss those counts for the reasons stated in the

26 Court’s dismissal order.

27

28

10

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 12 of 14

1

Relief Requested

2

For the foregoing reasons, the Court should dismiss the First Amended Complaint

3 and this action.

4

RESPECTFULLY SUBMITTED this 19th day of May 2008.

5
TERRY GODDARD

6

Arizona Attorney General

7
/s Barbara A. Bailey

8

Mary O’Grady

9

Solicitor General

Barbara A. Bailey

10

Assistant Attorney General

11

Attorneys for Defendants Janet A. Napolitano

and Janice K. Brewer

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 13 of 14

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the 19th day of May 2008, I caused the foregoing

3
document to be electronically transmitted to the Clerk’s Office using the CM/ECF
4
5 System for filing and transmittal of a Notice of Electronic Filing to the following

6 CM/ECF Registrants:

7 Laughlin McDonald 8 Neil Bradley
Nancy G. Abudu 9 American Civil Liberties Union 10 Voting Rights Project
2600 Marquis One Tower 11 245 Peachtree Center Ave., NE 12 Atlanta, GA 30303-1227
lmcdonald@aclu.org 13 nbradley@aclu.org 14 nabudu@aclu.org
Attorneys for Plaintiffs
15
16 Daniel Pochoda Legal Director
17 American Civil Liberties Union 18 Foundation of Arizona
PO Box 17148 19 Phoenix, AZ 85011-0148
dpochoda@acluaz.org 20 Attorneys for Plaintiffs
21
Daniel Jurkowitz 22 Pima County Attorney's Office 23 Civil Division
32 N Stone Ave 24 Suite 2100 25 Tucson, AZ 85701
Daniel.Jurkowitz@pcao.pima.gov 26 Attorney for Defendant F. Ann Rodriguez
27

28
M. Colleen Connor

12

Case 2:07-cv-01089-SMM Document 62 Filed 05/19/08 Page 14 of 14
1 MCAO Division of County Counsel 222 N. Central Avenue, Ste. 1100
2 Phoenix, Arizona 85003 3 connorc@mcao.maricopa.gov
Attorneys for Defendant Helen Purcell
4
5 Dennis Wilenchik Kathleen Rapp
6 Wilenchik & Bartness PC 7 2810 N 3rd Street
Phoenix, AZ 85004 8 KathleenR@wb-law.com 9 diw@wb-law.com
Attorneys for Defendant Helen Purcell
10
COPY of the foregoing mailed with Notice of 11 Electronic Filing this 19th day of May, 2008 to:
12
The Honorable Stephen M. McNamee 13 United States District Court 14 Sandra Day O’Connor U.S. Courthouse, Suite 624
401 West Washington Street, SPC 59 15 Phoenix, AZ 85003-2158
16
17
18 /s Erica Lane
19 204156
20
21
22
23
24
25
26
27
28
13

 
 Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 1 of 11

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Armando Coronado, et al.,

10

Plaintiffs,

11 v.

12 Janet K. Napolitano, Governor, et al.,

13

Defendants.

14

) CV 07-1089-PHX-SMM ) ) MEMORANDUM OF DECISION AND ) ORDER ) ) ) ) ) ) )

15 Currently before the Court is Defendants’ Motion to Dismiss the First Amended
16 Complaint (Dkt. 62), which challenges Plaintiffs’ claims that Arizona’s constitutional and
17 statutory schemes governing a convicted felon’s right to vote are unconstitutional. Also
18 before the Court is Plaintiffs’ Response to Defendants’ Motion to Dismiss the First Amended
19 Complaint (Dkt. 67) and Defendants’ Reply in Support of State Defendants’ Motion to
20 Dismiss Plaintiffs’ First Amended Complaint. (Dkt. 71).
21 BACKGROUND
22 On June 1, 2007, Plaintiffs filed the original complaint in this action. (Dkt. 1). The
23 Complaint alleged that Arizona’s disenfranchisement laws violate provisions of the United
24 States of America and State of Arizona constitutions. The first four claims challenged
25 Arizona’s disenfranchisement laws precluding restoration of a felon’s right to vote until
26 completion of the entire sentence, including payment of fines and restitution, as
27 unconstitutional. (Id. at ¶¶ 56-71). The remaining three claims challenged the
28

Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 2 of 11

1 disenfranchisement of all convicted felons by attempting to draw a distinction between

2 common law and non-common law crimes. (Id. at ¶¶ 72-83). Contending that Plaintiff’s

3 Complaint failed to state a claim for which relief could be granted, Defendants filed a Motion

4 to Dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

5 (Dkt. 22).

6

The Court granted Defendants’ Motion to Dismiss the Complaint without prejudice

7 on January 22, 2008 (Dkt. 48), reasoning that Arizona law treats all felons equally with

8 regard to disenfranchisement and subsequent restoration of civil rights and finding no

9 distinction between common law and non-common law felonies. (Id. at 6, 14). On April 30,

10 2008, Plaintiffs filed the First Amended Complaint (Dkt. 59) and on May 19, 2008,

11 Defendants filed their Motion to Dismiss the First Amended Complaint. (Dkt. 62). Plaintiffs

12 subsequently filed a Response to Defendants’ Motion to Dismiss the First Amended

13 Complaint on June 17, 2008. (Dkt. 67). Defendants then filed a Reply in Support of State

14 Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint. (Dkt. 71).

15

The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and

16 42 U.S.C. §§ 1971(d), 1983. The Court may exercise supplemental jurisdiction under 28

17 U.S.C. § 1367(a). Venue is proper in this district under 28 U.S.C. § 1391(b)(1).

18

STANDARD OF REVIEW

19

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6),

20 “factual allegations must be enough to raise a right to relief about the speculative level on the

21 assumption that all of the complaint’s allegations are true (even if doubtful in fact).” Bell

22 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 __ U.S. __ (2007). When deciding such

23 a motion to dismiss, all allegations of material fact in the complaint are taken as true and

24 construed in the light most favorable to the plaintiff. W. Mining Council v. Watt, 643 F.2d

25 618, 624 (9th Cir. 1981).

26

A court may dismiss a claim either because it lacks a “cognizable legal theory” or

27 because it fails to allege sufficient facts to support a cognizable legal claim. SmileCare

28 Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996) (quoting

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Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 3 of 11

1 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). “Dismissal

2 without leave to amend is improper unless it is clear, upon de novo review, that the complaint

3 could not be saved by any amendment.” Polich v. Burlington, N., Inc., 942 F.2d 1467, 1472

4 (9th Cir. 1991). When exercising its discretion to deny leave to amend, “a court must be

5 guided by the underlying purpose of Rule 15 to facilitate decisions on the merits, rather than

6 on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir.

7 1981). DISCUSSION
8 In their First Amended Complaint, Plaintiffs add four substantive allegations relating
9 to their original claims which impact Counts One and Five of their First Amended
10 Complaint.1 Under Count One, Plaintiffs first argue that Arizona’s requirement that people
11 with felony convictions pay all of their legal financial obligations (“LFOs”) before they can
12 have their right to vote restored “negatively and disproportionately impacts indigent people
13 in violation of the equal protection clause.” (Dkt. 59 at ¶ 63).2 Second, Plaintiffs assert that
14 “[g]iven the racial disparities within the federal and state criminal justice systems, Arizona’s
15 felon disenfranchisement scheme results in minorities being denied the right to vote at much
16 greater rates than whites.” (Id. at ¶ 46). Under Count Five, Plaintiffs assert that the number
17 of individuals who have criminal convictions has increased to a significant degree since the
18 Fourteenth Amendment was passed. (Id. at ¶ 45). Additionally, Plaintiffs claim that
19 Arizona’s admission to the Union required that it disenfranchise only those individuals
20 convicted of common law felonies. (Id. at ¶ 78).
21

22

23 1 Plaintiffs’ remaining substantive claims in the First Amended Complaint are virtually
24 identical to claims made in the Original Complaint. Thus, the Court dismisses these claims, Counts 2, 3, 4, 6, and 7, for reasons stated in the original dismissal order. (Dkt. 48, Order dated January 22,
25 2008).

26

2Plaintiffs asserted this claim in their Response to Defendants’ original motion to dismiss

27 (Dkt. 39 at 18-19) and the Court addressed it in the original dismissal order (Dkt. 48 at 11, Order dated January 22, 2008). However, the Court did not undertake further inquiry of the matter because

28 the Complaint did not include any allegation of disparate impact. (Id.).

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Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 4 of 11
1 I. Count One: Fine & Restitution Requirements Violate the Equal Protection Clause
2 The Equal Protection Clause of the Fourteenth Amendment to the United States
3 Constitution provides in pertinent part that “[n]o State shall make or enforce any law which
4 shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.
5 Const. amend. XIV, § 1. The Fourteenth Amendment also provides that “when the right to
6 vote at any election . . . is denied . . . or in any way abridged, except for participation in
7 rebellion, or other crime, the basis of representation therein shall be reduced . . .” Id., § 2
8 (emphasis added).
9 In Richardson v. Ramirez, the Supreme Court interpreted this language to mean that
10 states could exclude convicted felons who have completed their sentences from voting
11 without violating the Equal Protection Clause of the Fourteenth Amendment. 418 U.S. 24,
12 56 (1974). In other words, under Richardson, states may constitutionally disenfranchise
13 felons and are not required to restore their right to vote. However, the Supreme Court
14 subsequently articulated one exception to this broad right to disenfranchise felons, namely,
15 that states cannot intentionally discriminate on the basis of race. See Hunter v. Underwood,
16 471 U.S. 222, 233 (1985) (finding the enactment of the Alabama Constitution’s
17 disenfranchisement provision “was motivated by a desire to discriminate against blacks on
18 account of race . . . [a]s such, it violates equal protection”). The Arizona Constitution
19 provides that “[n]o person who is adjudicated an incapacitated person shall be qualified to
20 vote at any election, nor shall any person convicted of treason or felony, be qualified to vote
21 at any election unless restored to civil rights.” Ariz. Const. art. VII, § 2(c) (emphasis added).
22 A. Indigent People
23 Plaintiffs argue first, that Arizona’s scheme of restoring Plaintiffs’ right to vote only
24 after they pay LFOs negatively and disproportionately impacts indigent people in violation
25 of the equal protection clause. (Dkt. 59 at ¶ 63). Plaintiffs assert that they are entitled to
26 “engage in discovery to support their claim that Arizona’s LFO requirement is
27
28
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Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 5 of 11

1 unconstitutional because it has a negative and disparate impact on indigent people and to

2 rebut the State’s purported interests in enforcing the LFO requirement.” (Dkt. 67 at 6).

3

Plaintiffs’ claim is insufficient for two reasons. First, Plaintiffs fail to allege that they

4 are indigent and thus, they do not have standing to bring a claim challenging a law based on

5 its alleged disparate impact on indigent persons. Warth v. Seldin, 422 U.S. 490, 498-99

6 (1975) (finding that “the essence of the standing question is whether the plaintiff has ‘alleged

7 such a personal stake in the outcome of the controversy’ as to warrant his invocation of

8 federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf”

9 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Even if Plaintiffs had alleged they are

10 indigent, indigent persons are not a protected, or suspect, class for purposes of equal

11 protection: “poverty, standing alone[,] is not a suspect classification.” Harris v. McRae, 448

12 U.S. 297, 323 (1980). The Supreme Court has “never held that financial need alone

13 identifies a suspect class for purposes of equal protection analysis.” Maher v. Roe, 432 U.S.

14 464, 471 (1977). Furthermore, Plaintiffs do not challenge their sentences, which require

15 them to pay the LFOs that are the subject of their claim. The requirement that felons pay all

16 fines and restitution as mandated by their sentence applies to all convicted felons equally.

17 Plaintiffs do not allege that Arizona discriminates against indigent persons in the way it takes

18 away or restores felony voting rights.

19

Additionally, in its original dismissal order, this Court held that fines and restitution

20 are rationally related to the state’s interest in “punishing and deterring criminal activity.”

21 (Dkt. 48, Order dated January 22, 2008). Consequently, not only can the State permanently

22 disenfranchise convicted felons under Richardson, it has a legitimate interest in enforcing the

23 LFO requirement prior to restoring a convicted felon’s right to vote. The State applies the

24 felon disenfranchisement laws equally to all individuals, indigent or not. Thus, the LFO

25 requirement is constitutional, and Plaintiffs have failed to state a claim upon which relief can

26 be granted.

27

Similarly, Plaintiffs are not entitled to engage in discovery to rebut Arizona’s interests

28 in enforcing the LFO requirement because the United States and Arizona Constitutions

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Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 6 of 11

1 expressly permit felon disenfranchisement. Richardson, 418 U.S. at 56. If a state chooses

2 to restore a felon’s right to vote, it can consider a previous criminal record in determining

3 voter qualifications: “[r]esidence requirements, age, previous criminal record . . . are obvious

4 examples indicating factors which a State may take into consideration in determining the

5 qualifications of voters.” Richardson, 418 U.S. at 53 (quoting Lassiter v. Northampton

6 County Bd. of Elections, 360 U.S. 45, 51 (1959)) (emphasis added).

7

Additionally, the exclusion of felons from the vote has an affirmative sanction in

8 section 2 of the Fourteenth Amendment:

9

We hold that the understanding of those who adopted the Fourteenth

Amendment, as reflected in the express language of section 2 and in the

10

historical and judicial interpretation of the Amendment’s applicability to state

laws disenfranchising felons, is of controlling significance in distinguishing

11

such laws from those other state limitations on the franchise which have been

held invalid under the Equal Protection Clause.

12

Id. at 54. In other words, felon disenfranchisement on its face will not be held invalid under

13

the Equal Protection Clause. The “purported” State interest that the Plaintiffs seek to rebut

14

is legitimate and was recognized as such by this Court.3 Thus, Plaintiffs’ claims fail, and

15

they are not entitled to engage in discovery to rebut the State’s interest in enforcing the LFO

16

requirement.

17

B. Racial Disparities

18

Plaintiffs also allege that racial disparities exist in federal and state criminal justice

19

systems (Dkt. 59 at ¶ 46), but do not allege any discrimination caused by Arizona’s

20

disenfranchisement laws. The argument that racial disparities exist in the justice system is

21

unrelated to Plaintiffs’ claim arguing against paying their sentencing fines and restitution

22

prior to having their right to vote restored. Plaintiffs did not challenge their sentences as the

23

products of racial disparities when they were imposed. Existing racial disparities in the

24

criminal justice system are not directly related to felon reenfranchisement, which occurs after

25

26

3 “In this case, the fine provisions serve the interests in punishing and deterring criminal

27 activity.” (Dkt. 48 at 7, Order dated January 22, 2008) (citing Polykoff v. Collins, 816 F.2d 1326, 1337 (9th Cir. 1987)). “Including these financial obligations in a convicted felon’s sentence is

28 rationally related to these legitimate governmental interests.” (Id.).

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Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 7 of 11

1 a felon has completed his sentence. Thus, Count One does not include any claims for which

2 relief can be granted.

3

In addition, Plaintiffs allege that the LFO requirement results in minorities being

4 denied the right to vote at greater rates than whites. (Id.). Similar to the first claim, Plaintiffs

5 have not alleged that they are racial minorities, and thus lack standing to bring the claim. See

6 discussion supra at 5. However, even if Plaintiffs had alleged that they are racial minorities

7 and had shown that Arizona’s felon disenfranchisement laws disproportionately deny the

8 right to vote to racial minorities, “[d]isproportionate impact is not irrelevant, but it is not the

9 sole touchstone of an invidious racial discrimination forbidden by the Constitution.”

10 Washington v. Davis, 426 U.S. 229, 242 (1976) (emphasis added) (finding that “we have not

11 held that a law, neutral on its face and serving ends otherwise within the power of

12 government to pursue, is invalid under the Equal Protection Clause simply because it may

13 affect a greater proportion of one race than of another”). In other words, “official action will

14 not be held unconstitutional solely because it results in a racially disproportionate impact .

15 . . [p]roof of racially discriminatory intent or purpose is required to show a violation of the

16 Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

17 252, 264-65 (1977) (emphasis added). Thus, under Davis and Arlington Heights, Plaintiffs

18 must allege that Arizona lawmakers purposefully intended to discriminate against racial

19 minorities when enacting or implementing the felon disenfranchisement laws and the First

20 Amended Complaint fails to contain this required affirmative allegation. Therefore,

21 Plaintiffs’ claim fails.

22

A district court must be “particularly cautious about dismissing discrimination claims

23 simply for a failure to allege [certain] facts.” Greenier v. Pace, Local No. 1188, 201

24 F.Supp.2d 172, 182 (D. Me. 2002) (reasoning that it “often proves difficult to state facts

25 tending to show a defendant’s state of mind before any discovery has taken place”).

26 However, unlike Greenier which involved an employment discrimination case that turned on

27 facts available only to the opposing party, the case at hand involves facts of Arizona

28

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Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 8 of 11

1 lawmakers’ intent in enacting the felon disenfranchisement provision. This information can

2 be readily obtained through standard legal research methods and is largely contained in the

3 public records of the State of Arizona.

4 II. Count Five: Plaintiffs Claim that Disenfranchising Persons Convicted of Non-

5

Common Law Felonies Violates the Equal Protection Clause

6

Plaintiffs also assert that the number of individuals who have criminal convictions has

7 increased to a significant degree since the Fourteenth Amendment was passed. (Dkt. 59 at

8 ¶ 45). However, this statement asserts no claim for which relief can be granted. Given the

9 significant increase in the U.S. population since the enactment of the Fourteenth Amendment,

10 it is not surprising that the number of convicted felons has increased. Plaintiffs fail to allege

11 a correlation between Arizona’s felon disenfranchisement laws and a general increase in the

12 number of criminal convictions. Specifically, Plaintiffs fail to show how this statistic

13 indicates that they have been injured.

14

Plaintiffs further argue that “[g]iven the racial disparities within the federal and state

15 criminal justice systems, Arizona’s felon disenfranchisement scheme results in minorities

16 being denied the right to vote at much greater rates than whites.” (Id. at ¶ 46). Plaintiffs

17 stated that their allegations “regarding racial disparities in the criminal justice system are

18 solely related to Plaintiffs’ common law felony claims – not the LFO requirement . . .” (Dkt.

19 67 at 6). However, Plaintiffs’ argument regarding racial disparities in the criminal justice

20 system also fails here for the reasons already stated, namely that racial disparities in the

21 criminal justice system are not directly related to felon reenfranchisement.

22 Finally, Plaintiffs alter their original argument that a distinction between common law
23 and non-common law felonies is appropriate4 by claiming that Arizona’s admission to the
24 Union required that it disenfranchise only those individuals convicted of common law
25 felonies. (Dkt. 59 at ¶ 78). In their response, Plaintiffs provide no authority, either through
26

27 4 The Court rejected Plaintiffs’ distinction between common law and non-common law
28 felonies in the original dismissal. (Dkt. 48 at 12-14, Order dated January 22, 2008).

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Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 9 of 11

1 case law or legislative history, demonstrating that Arizona’s admission into the Union was

2 premised upon the notion that it could only disenfranchise those individuals convicted of

3 common law felonies.

4

A search of Arizona legislative history indicates no discussion of an agreement

5 between Congress and Arizona lawmakers that Arizona would only be admitted to the Union

6 if it only disenfranchised individuals convicted of common law felonies. President Taft

7 signed the Enabling Act on June 20, 1910 and authorized the territory of Arizona to “advance

8 toward statehood,” meaning that the delegates would need to be elected to draft a state

9 constitution. John S. Goff, Records of the Arizona Constitutional Convention of 1910 iii

10 (1991). Fifty-two delegates were elected and the Arizona Constitutional Convention

11 convened on October 10, 1910. Id. The delegates discussed suffrage, and records reveal

12 that one delegate, Mr. Winsor, initially proposed an amendment which included the

13 following language pertaining to felony disenfranchisement: “[n]o such person under

14 guardianship, non compos mentis, or insane, shall be qualified to vote at any election, nor

15 any person convicted of treason or felony, shall be qualified to vote at any election unless

16 restored to civil rights.” Mr. Winsor stated:

17

“[t]he qualifications for voters are stated negatively, in order that the doors

18

may be left open for such other qualifications as the legislature or the

lawmaking power may hereafter see fit to provide, and until the lawmaking

19

power sees fit to change the qualifications now required of electors they will

remain as they are . . . I submit that the only proper and safe course for us to

20

pursue is to leave the matter in such form deemed necessary and [it can] fit the

qualifications required of electors to the conditions as they may from time to

21

time exist.5

22 Id. at 871. Throughout these discussions pertaining to suffrage, there is no mention of a need 23 to distinguish between common law and non-common law felonies. Thus, Plaintiffs’ 24

25

26

27

5 Although this amendment was rejected by convention attendees, the discussion indicates

that there was no discussion of the need to distinguish between common law and non-common law

28 felonies. See Goff, supra, at 871-75.

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Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 10 of 11

1 argument that Congress conditioned Arizona’s admission to the Union on its agreement to

2 disenfranchise felons for common law crimes is unsupported by the legislative history.

3

Even if Plaintiff’s allegation is taken as true, it does nothing to change the Court’s

4 original interpretation of the plain language of the Fourteenth Amendment, namely that the

5 phrase “other crime” does not warrant a distinction between common and non-common law

6 crimes. (Dkt. 48 at 12-14, Order dated January 22, 2008).6 “Where the language is plain and

7 admits of no more than one meaning, the duty of interpretation does not arise, and the rules

8 which are to aid doubtful meanings need no discussion.” Caminetti v. United States, 242

9 U.S. 470, 485 (1917). Thus, a distinction between common and non-common law crimes is

10 not warranted as a matter of law.

11 In the case at hand, Plaintiffs were given the opportunity to amend the original
12 complaint. “In the absence of any apparent or declared reason - such as undue delay, bad
13 faith . . . repeated failure to cure deficiencies by amendments previously allowed . . . futility
14 of amendment, etc. - the leave sought should, as the rules require, be ‘freely given.’” Foman
15 v. Davis, 371 U.S. 178, 182 (1962). However, in the First Amended Complaint, Counts 2,
16 3, 4, 6, and 7 were identical to the original counts dismissed in the original complaint. Thus,
17 these counts are dismissed with prejudice because they were a “repeated failure to cure
18 deficiencies by amendments previously allowed.” See id. Similarly, Counts One and Five
19 are dismissed with prejudice because both counts fail as a matter of law to state a claim upon
20 which relief can be granted.
21
/// 22

23 ///

24 ///

25

26

27

6 “A plain reading of § 2 admits of no distinction between common law and non-common

law felonies. Thus the language of § 2 means what it says – persons convicted of crimes may be

28 excluded from the franchise.” (Id. at 13.).

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Case 2:07-cv-01089-SMM Document 73 Filed 11/06/08 Page 11 of 11

1

CONCLUSION

2 Accordingly,
3 IT IS HEREBY ORDERED GRANTING Defendants’ Motion to Dismiss the
4 First Amended Complaint (Dkt. 62) with prejudice.
5 DATED this 5th day of November, 2008.
6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

⎫ DEBRA L. HARVEY and CATHERINE
M. BEDDARD, Plaintiffs-Appellants,
v.
⎬ JANICE K. BREWER, Governor; KEN
BENNETT, Secretary of State of Arizona; and F. ANN RODRIGUEZ, Pima County Recorder, in their official capacities,
⎭ Defendants-Appellees.

No. 08-17253
D.C. No. CV-08-17-TUC-
FRZ

ARMANDO CORONADO; JOSEPH

⎫

RUBIO; MICHAEL GARZA; MICHELE

CONVIE; and RAYMOND LEWIS,

Plaintiffs-Appellants,

v.

⎬ JANICE K. BREWER, Governor; KEN
BENNETT, Secretary of State of Arizona; F. ANN RODRIGUEZ, Pima County Recorder; and HELEN PURCELL, Maricopa County Recorder, in their official capacities,
⎭ Defendants-Appellees.

No. 08-17567
D.C. No. CV-07-1089-PHX-
SMM
OPINION

Appeals from the United States District Court for the District of Arizona
Frank R. Zapata, District Judge, Presiding (No. 08-17253) Stephen M. McNamee, District Judge, Presiding (No. 08-17567)
7655

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7656

HARVEY v. BREWER

Argued and Submitted October 19, 2009—Tempe, Arizona

Filed May 27, 2010

Before: Sandra Day O’Connor, Associate Justice,* Alex Kozinski, Chief Judge, and Sandra S. Ikuta,
Circuit Judge.

Opinion by Associate Justice O’Connor

*The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a).

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HARVEY v. BREWER

7659

COUNSEL
John R. Cosgrove, Menlo Park, California, for plaintiffsappellants Debra L. Harvey and Catherine M. Beddard.
Daniel Pochoda, American Civil Liberties Union of Arizona, Phoenix, Arizona, for plaintiffs-appellants Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, and Raymond Lewis.
Laughlin McDonald, Neil Bradley, and Nancy G. Abudu, American Civil Liberties Union Voting Rights Project, Atlanta, Georgia, for plaintiffs-appellants Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, and Raymond Lewis.

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7660

HARVEY v. BREWER

Terry Goddard, Attorney General, Mary O’Grady, Solicitor General, and Barbara A. Bailey, Assistant Attorney General, Phoenix, Arizona, for defendants-appellees Janice Brewer and Ken Bennett.

Barbara LaWall, Pima County Attorney, Tucson, Arizona, for defendant-appellee F. Ann Rodriguez.

Erika Wood and Myrna Pérez, Brennan Center for Justice, New York, New York, on behalf of amicus curiae the Brennan Center for Justice.

Lawrence S. Lustberg, Jennifer B. Condon, Gibbons, P.C., Newark, New Jersey, on behalf of amicus curiae the Brennan Center for Justice.

OPINION
O’CONNOR, Associate Justice (Ret.):
Arizona’s Constitution provides: “No person who is adjudicated an incapacitated person shall be qualified to vote at any election, nor shall any person convicted of treason or felony, be qualified to vote at any election unless restored to civil rights.” Ariz. Const. art. VII, § 2. Arizona statutes give effect to this constitutional provision by suspending the voting rights of any person convicted of a felony, Ariz. Rev. Stat. § 13-904(A)(1), and automatically restoring those rights to any person convicted of only one felony, provided he: “1. Completes a term of probation or receives an absolute discharge from imprisonment,” and “2. Pays any fine or restitution imposed.” Ariz. Rev. Stat. § 13-912(A).
Plaintiffs brought suits challenging Arizona’s disenfranchisement scheme. Their first argument was that disenfranchisement for felonies not recognized as such at common law

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HARVEY v. BREWER

7661

violates the Equal Protection Clause of the Fourteenth Amendment. While plaintiffs acknowledged that Section 2 of the Fourteenth Amendment insulates felon-disenfranchisement schemes from equal protection challenges to some extent, see Richardson v. Ramirez, 418 U.S. 24 (1974), they argued that Section 2 only permits disenfranchisement for common-law felonies. In their view, disenfranchisement for statutory felonies not recognized at common law has no affirmative sanction in Section 2 and violates the Equal Protection Clause.

Three of the plaintiffs also argued that conditioning the restoration of the right to vote upon the payment of their criminal fines and restitution violates various provisions of the United States and Arizona Constitutions. Particularly, they alleged that this repayment condition violates the Equal Protection Clause of the Fourteenth Amendment, the Twenty-Fourth Amendment’s bar against poll taxes, the Privileges or Immunities Clauses in both the federal and Arizona Constitutions, and the Arizona Constitution’s provision mandating free and equal elections. Defendants’ motions to dismiss were granted, and plaintiffs now raise these same arguments on appeal.

We consider each of these arguments and AFFIRM.

Facts

This is a consolidated appeal arising from two separate suits: one on behalf of Debra L. Harvey and Catherine M. Beddard (“Harvey plaintiffs”), and another on behalf of Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, and Raymond Lewis (“Coronado plaintiffs”).

The Harvey plaintiffs each have multiple felony convictions for “drug or other offenses which were not felonies at common law.” Amended Complaint at 15. While they claim they would otherwise be eligible to vote, Arizona has denied them that right because of their felony convictions. They filed

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7662

HARVEY v. BREWER

a 42 U.S.C. § 1983 suit against the Governor and Secretary of State of Arizona, as well as the Pima County Recorder, challenging Arizona’s disenfranchisement scheme “for denial of the vote to Plaintiffs and the consequent failure to accord them the equal protection of the laws in violation of the Fourteenth Amendment.” Amended Complaint at 1. Defendants moved to dismiss the suit for failure to state a claim. They argued that Section 2 of the Fourteenth Amendment affirmatively permits the disenfranchisement of felons, that the reach of Section 2 is not limited to felonies at common law (as plaintiffs suggest), and that the plaintiffs’ equal protection claims therefore fail. The District Court, adopting the Report and Recommendation of the Magistrate Judge, granted defendants’ motion and dismissed the suit.

The Coronado plaintiffs also brought a § 1983 suit against the same defendants (plus the Maricopa County Recorder), alleging that they too were denied the right to vote because of convictions for offenses that, while classified as felonies under state law, did not constitute felonies at common law. Coronado and Garza were each convicted of one felony drug offense; Rubio was convicted of one felony count of attempted aggravated domestic violence; Convie and Lewis were convicted of multiple felony drug offenses. They raised the same equal protection argument as the Harvey plaintiffs with regard to Section 2.

The Coronado plaintiffs who had only one felony conviction (Coronado, Garza, and Rubio) also challenged Arizona’s scheme for restoring voting rights to felons. The crux of their argument was that, because they had served the entirety of their prison terms for a lone felony conviction, the only thing keeping them from having their voting rights automatically reinstated was their failure to pay the criminal fines and restitution orders included in their sentences. See Ariz. Rev. Stat. § 13-912(A)(2). This, they argued, discriminates on the basis of wealth, conditions the right to vote on the payment of a fee, and violates various federal and state constitutional provi-

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HARVEY v. BREWER

7663

sions. Their complaint did not allege that any of them were incapable of paying the remainder of the money owed under their sentences. The defendants moved to dismiss the suit for failure to state a claim, and the district court granted the motion.

Plaintiffs timely filed notices of appeal, and defendants’ motion to consolidate these appeals was granted.

Discussion

We first address the argument, common to all plaintiffs, that the Equal Protection Clause only permits felon disenfranchisement when the felonies at issue were felonies at common law.

A. Equal Protection and the Common-Law Felony Theory of Section 2

[1] Section 1 of the Fourteenth Amendment provides: “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Section 2 further provides, in full:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall

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7664

HARVEY v. BREWER

be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

U.S. Const. amend. XIV, § 2 (emphasis added).

[2] Section 2 provides an electoral penalty against States that withhold the franchise from otherwise eligible voters. If a State disenfranchises some number of otherwise eligible voters, those disenfranchised persons will count against the State’s total population for purposes of determining its representation in Congress. But Section 2 lifts this penalty when disenfranchisement is based on (and this is the critical language) “participation in rebellion, or other crime.” Plaintiffs argue that this language should be read as: “participation in rebellion, or other [common-law felony].” As an initial matter, it is not obvious how the scope of this Section 2 language affects a Section 1 equal protection claim; to understand that issue, we turn to the Supreme Court’s opinion in Richardson v. Ramirez, 418 U.S. 24 (1974).

1. Richardson

Richardson involved a group of convicted felons who had served the entirety of their sentences and sought to compel California election officials to register them as voters. They had been barred from voting under a California statute which excluded from the franchise all persons previously convicted of an “infamous crime.” Id. at 27. The California Supreme Court sustained their equal protection challenges to the California law, concluding that the disenfranchisement of convicted felons beyond the expiration of their terms of imprisonment violated the Equal Protection Clause. Ramirez v. Brown, 507 P.2d 1345, 1357 (Cal. 1973).

In reaching that conclusion, the California Supreme Court relied primarily upon a then-recent Supreme Court decision striking down Tennessee’s durational residence requirement

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as a condition on the right to vote. Id. at 1351-52 (discussing Dunn v. Blumstein, 405 U.S. 330 (1972)). In nullifying the Tennessee law at issue in Dunn, the Supreme Court held that “[i]t is not sufficient for the State to show that durational residence requirements further a very substantial state interest. . . . [I]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.” Dunn, 405 U.S. at 343. The California Supreme Court followed Dunn’s reasoning and concluded that “enforcement of modern statutes regulating the voting process and penalizing its misuse—rather than outright disfranchisement of persons convicted of crime—is today the method of preventing election fraud which is the least burdensome on the right of suffrage,” and therefore outright disenfranchisement was not a “necessary” restriction under Dunn’s rationale. Ramirez, 507 P.2d at 1357.

[3] In Richardson, the Supreme Court reversed this judgment and, in doing so, looked primarily to Section 2 of the Fourteenth Amendment. The Court reasoned that Section 1’s Equal Protection Clause could not be read to prohibit the disenfranchisement of felons because Section 2 approves of such disenfranchisement by removing any electoral penalty for it. Richardson, 418 U.S. at 54 (“[T]he exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment.”). The Court concluded “that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement.” Id. at 55. Today, a litigant bringing an equal protection challenge to a felon-disenfranchisement scheme must first face the formidable task of escaping Richardson’s long shadow. But see Hunter v. Underwood, 471 U.S. 222, 227, 231 (1985) (invalidating provision in Alabama Constitution authorizing disenfranchisement for persons convicted of “crimes involving moral turpitude,” including misdemeanors

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not punishable by imprisonment, where “discrimination against blacks, as well as against poor whites, was a motivating factor for the provision”).

2. Plain meaning and contemporary usage of “other crime”

Plaintiffs’ proposed route around Richardson is to argue that the affirmative sanction in Section 2 only extends to the disenfranchisement of persons convicted of common-law felonies, a category that they do not fit into. Plaintiffs identify the common-law felonies as those listed by the Supreme Court in Jerome v. United States, 318 U.S. 101, 108 n.6 (1943): “murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem and larceny.” Plaintiffs further posit, with no support, that treason “was a common law felony of a special sort,” Harvey Br. at 51, but that is inaccurate. 1 Wharton’s Criminal Law § 17 (Torcia ed., 2009) (“At common law, there were three kinds of offenses: treason, felony, and misdemeanor.”).1 So plaintiffs’ proposed reading of Section 2 as meaning “except for participation in rebellion, or other [common-law felony]” is off to a bad start, because it appears participation in rebellion itself would qualify not as a common-law felony, but as treason.

[4] And plaintiffs’ interpretation is certainly not a plain reading of Section 2’s terms, which permit disenfranchisement “for participation in rebellion, or other crime” without regard to whether the crime was a felony at all, much less one recognized at common law. As noted in Richardson, “this language was intended by Congress to mean what it says.” 418 U.S. at 43.

1We could quibble further with this list—as it may be over- or underinclusive, see Legal Servs. for Prisoners with Children v. Bowen, 170 Cal. App. 4th 447, 463-64 (2009)—but defendants do not dispute that plaintiffs’ crimes do not qualify as common-law felonies under any definition of that phrase.

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Plaintiffs’ proposed reading also seems to be in direct conflict with Richardson, which held that California may “exclude from the franchise convicted felons who have completed their sentences,” 418 U.S. at 56 (emphasis added), evincing no concern with whether any particular felony was one recognized at common law. Indeed, at least one of the three exfelons in Richardson was convicted of a crime that was clearly not a felony at common law. See Richardson, 418 U.S. at 32 n.9 (“felony of heroin possession”). Still, neither this court nor the Supreme Court has directly addressed this precise question, so we consider plaintiffs’ reasons for looking beyond Section 2’s plain language.

Plaintiffs argue that the word “crime” at the time of the Fourteenth Amendment’s drafting and ratification commonly meant “felony at common law.” Contra Kentucky v. Dennison, 65 U.S. 66, 99 (1860) (“The word ‘crime’ of itself includes every offence, from the highest to the lowest in the grade of offences, and includes what are called ‘misdemeanors,’ as well as treason and felony.”). In support of this argument, plaintiffs cite a dictionary definition and William Blackstone’s Commentaries, which preceded the Fourteenth Amendment’s ratification by a century. Harvey Br. at 43-44. Contemporaneousness aside, neither of these sources supports plaintiffs’ position that “crime” was commonly understood as being restricted to common-law felonies.

[5] Webster’s Dictionary defined the word “crime” in 1867 as “An act which violates a law, divine or human; . . . But in a more common or restricted sense, a crime denotes violation of public law, of a deeper and more atrocious nature.” NOAH WEBSTER, AN AMERICAN DiCTIONARY OF THE ENGLISH LANGUAGE 246 (Goodrich ed., 1867) (emphasis in original). And William Blackstone observed that “in common usage the word ‘crimes’ is made to denote such offenses as are of a deeper and more atrocious dye; while smaller faults and omissions of less consequence are comprised under the gentler

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name of ‘misdemeanors’ only.” 4 COMMENTARIES ON THE LAWS OF ENGLAND *5 (1769).

[6] Noticeably absent from these definitions is any mention whatsoever of common-law felonies. While a litigant could use these definitions to support the proposition that the word “crime” in Section 2 refers only to serious crimes or felonies (such that misdemeanors would not fit within the definition), that is not plaintiffs’ argument. They instead argue that in 1868 “crimes” meant “felonies at common law,” and nowhere in any of the definitions is it suggested that the word “crimes” was so confined. In fact, the cited definitions plainly undermine plaintiffs’ argument by omitting any reference to the common law.

Even if we were to assume arguendo that Section 2 is limited to serious crimes or felonies (as plaintiffs’ definitions suggest), a far better reference point for determining whether a crime is serious is to look at how the crime is designated by the modern-day legislature that proscribed it, rather than indulging the anachronisms of the common law. Indeed, that is precisely the course the Supreme Court has charted in defining the contours of the right to a jury trial.

[7] The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” U.S. Const. amend. VI; see also U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”). The Supreme Court has declined to extend this guarantee to petty offenses because such offenses were tried without a jury at common law. See Duncan v. Louisiana, 391 U.S. 145, 159 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 379 (1966). But when determining what qualifies as a “criminal prosecution” that requires a jury trial, as opposed to the prosecution of a mere petty offense, the Supreme Court has rejected the rigid common-law categories and instead “sought more ‘objective indications of the seriousness with which society

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regards the offense.’ ” Blanton v. North Las Vegas, 489 U.S. 538, 541-42 (1989) (quoting Frank v. United States, 395 U.S. 147, 148 (1969)). In that context, the Supreme Court has explained:

In fixing the maximum penalty for a crime, a legislature includes within the definition of the crime itself a judgment about the seriousness of the offense. The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task, and is likewise more responsive to changes in attitude and more amenable to the recognition and correction of their misperceptions in this respect.

Blanton, 489 U.S. at 541 (citations, quotation marks, and brackets omitted).

[8] At bottom, plaintiffs provide absolutely no support for the proposition that the word “crimes” meant “common-law felonies” at the time of the Fourteenth Amendment’s ratification. At most, they have some support for the argument that Section 2 should be limited to serious offenses, a proposition which does not help their cause because they have all been convicted of crimes currently classified as felonies.

3. Legislative history and the Reconstruction and Enabling Acts

With the plain meaning and contemporary usage of the word “crime” stacked against them, plaintiffs next turn to the legislative history of the Fourteenth Amendment. They find no support in the immediate drafting history or the debates surrounding the Fourteenth Amendment, which they argue should not count against them because the Supreme Court has noted that “[t]he legislative history bearing on the meaning of the relevant language of § 2 is scant indeed.” Richardson, 418 U.S. at 43. But what little history there is regarding inclusion

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of the word “crime” in Section 2 undermines plaintiffs’ argument. For instance, Representative Ephraim R. Eckley of Ohio made the following observation in support of Section 2: “Under a Congressional act persons convicted of a crime against the laws of the United States, the penalty for which is imprisonment in the penitentiary, are now and always have been disfranchised.” Cong. Globe, 39th Cong., 1st Sess. 2535 (1866). Like the dictionaries plaintiffs cite, this statement supports the view that “crimes” might be limited to serious crimes, or crimes the penalty for which is imprisonment in the penitentiary, but both of those categories include the plaintiffs’ offenses and conflict with their common-law felony theory.

[9] Beyond this drafting history, “[f]urther light is shed on the understanding of those who framed and ratified the Fourteenth Amendment, and thus on the meaning of § 2, by the fact that at the time of the adoption of the Amendment, 29 States had provisions in their constitutions which prohibited, or authorized the legislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes.” Richardson, 418 U.S. at 48 & n.14 (citing state constitutions). Of the 29 State constitutions that Richardson referred to, it does not appear that any of them limited disenfranchisement to persons convicted of common-law felonies. See, e.g., Ala. Const. art. VI, § 5 (1819) (providing for disenfranchisement of persons “convicted of bribery, perjury, forgery, or other high crimes or misdemeanors”); Conn. Const. art. VI, § 3 (1818) (“bribery, forgery, perjury, duelling, fraudulent bankruptcy, theft, or other offence for which an infamous punishment is inflicted”); Del. Const. art. IV, § 1 (1831) (“convicted of a crime deemed by law a felony”); Ore. Const. art. II, § 3 (1857) (“of any crime which is punishable by imprisonment in the penitentiary”); Va. Const. art. III, § 14 (1830) (“convicted of any infamous offence”). It would be remarkable if the many states ratifying the Fourteenth Amendment intended to nullify their own constitutional provisions, but that is exactly what plaintiffs’ reading of Section 2 entails.

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Finding no help in the history of the Fourteenth Amendment’s ratification, plaintiffs focus their argument on the Reconstruction Act of March 2, 1867. The Reconstruction Act was enacted by the 39th Congress in 1867—nine months after the very same Congress submitted the Fourteenth Amendment to the States for ratification. Section 5 of the Act “established conditions on which the former Confederate States would be readmitted to representation in Congress.” Richardson, 418 U.S. at 49. Section 5 of the Act provided, in part:

That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disenfranchised for participation in the rebellion or for felony at common law. . . . said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State.

14 Stat. 428, § 5 (emphasis added).2

Similarly, the various enabling acts used to readmit the Confederate States to representation in Congress provide, in nearly identical language, that a “fundamental condition” of

2The first ellipsis omits a number of conditions placed on the Confederate States before they would be readmitted to representation in Congress, including ratification of the Fourteenth Amendment. While those conditions are important to understanding the Reconstruction Act, and various constitutional questions surrounding it, they are not important here.

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readmission is that their state constitutions shall never “be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, except as a punishment for such crimes as are now felonies at common law.” 15 Stat. 73 (1868) (emphasis added) (readmitting North Carolina, South Carolina, Louisiana, Georgia, Alabama and Florida); see also 15 Stat. 72 (1868) (readmitting Arkansas); 16 Stat. 62 (1870) (readmitting Virginia); 16 Stat. 67 (1870) (readmitting Mississippi). Plaintiffs conclude that because the Reconstruction and Enabling Acts only permitted disenfranchisement for felonies at common law, so too must Section 2 of the Fourteenth Amendment be read to only permit disenfranchisement for felonies at common law.

[10] But the opposite is true. The Reconstruction Act’s reference to felonies at common law only shows that when the 39th Congress meant to specify felonies at common law, it was quite capable of using that phrase. That Congress used the phrase “other crime” in Section 2, while specifying “felony at common law” in a later act, clearly indicates that the two phrases have different meanings and Congress was capable of using each when it intended to do so.

Plaintiffs’ response—which is really the driving force of their entire argument—is that we must read Section 2 and the Reconstruction and Enabling Acts harmoniously and interpret them identically because to do otherwise would mean “that the Fourteenth Amendment is in direct and absolute conflict with the Reconstruction and Enabling Acts.” Harvey Br. at 31. That is, if we reject plaintiffs’ argument, the Fourteenth Amendment would permit what the Reconstruction Act explicitly prohibits: disenfranchisement for statutory felonies. See Harvey Br. at 32 (“[Section 2], as construed by the District Court, affirmatively authorizes disenfranchisement for statutory felonies. The Acts prohibit disenfranchisement for

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statutory felonies. It is hard to imagine a more self-evident conflict.”).

The most glaring flaw with this argument is that the absence of a constitutional prohibition does not somehow bar a statutory one. Simply because the Fourteenth Amendment does not itself prohibit States from enacting a broad array of felon disenfranchisement schemes does not mean that Congress cannot do so through legislation—provided, of course, that Congress has the authority to enact such a prohibition. Plaintiffs’ confusion on this point seems to stem from language in Richardson, in which the Supreme Court noted that felon disenfranchisement is given an “affirmative sanction” in Section 2 of the Fourteenth Amendment. 418 U.S. at 54. But the “affirmative sanction” language in Richardson only means that the Equal Protection Clause of the Fourteenth Amendment does not prohibit felon disenfranchisement because Section 2 brings it outside of Section 1’s prohibition. It certainly does not mean that a certain felon disenfranchisement scheme is constitutionally mandated by Section 2, as plaintiffs would read it.

Plaintiffs’ reliance on the Eleventh Circuit’s opinion in Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005), is also misguided. Johnson held that felondisenfranchisement claims are not cognizable under the Voting Rights Act (“VRA”), which proscribes States from enacting voter qualifications or standards that discriminate based on race. Id. at 1234; 42 U.S.C. § 1973. As support for this conclusion, it reasoned that if section 2 of the VRA extended to such claims, the VRA “would prohibit a practice that the Fourteenth Amendment permits Florida to maintain.” Johnson, 405 F.3d at 1234.

The Eleventh Circuit’s point was not that the VRA would somehow conflict with Section 2 of the Fourteenth Amendment if it were interpreted to bar felon disenfranchisement, but that it would be beyond Congress’s Section 5 enforcement

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power. See U.S. Const. amend XIV, § 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of [the Fourteenth Amendment].”); see also Baker v. Pataki, 85 F.3d 919, 930 (2d Cir. 1996) (opinion of Mahoney, J.) (“[A]ny attempt by Congress to subject felon disenfranchisement provisions to the ‘results’ methodology of [the VRA] would pose a serious constitutional question concerning the scope of Congress’ power to enforce the Fourteenth and Fifteenth Amendments.”); Farrakhan v. Washington, 359 F.3d 1116, 1121-25 (9th Cir. 2004) (Kozinski, J., dissenting from denial of rehearing en banc) (arguing that felon disenfranchisement claims are not cognizable under the VRA). The argument in Johnson was that a congressional Act prohibiting felon disenfranchisement could not be authorized under Congress’s Section 5 powers because such an Act would not be enforcing the Fourteenth Amendment, which plainly permits felon disenfranchisement. But see Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir. 2003).

But the Reconstruction Act was most assuredly not enacted under the Section 5 power, as it preceded the Fourteenth Amendment’s ratification by more than a year. Cf. Oregon v. Mitchell, 400 U.S. 112, 192 (1970) (Harlan, J., concurring in part and dissenting in part) (discussing the Reconstruction Congress’s “power to interfere with state voter qualifications,” positing that this power “was said to exist in a variety of constitutional provisions, including Art. I, § 2, Art. I, § 4, the war power, the power over territories, the guarantee of a republican form of government, and § 2 of the Thirteenth Amendment.”). Johnson, therefore, is inapposite.

Finally, even if we could discern some conflict between Section 2 of the Fourteenth Amendment and the Reconstruction and Enabling Acts, plaintiffs’ suggestion that this requires reading the Amendment to comport with the Acts has it exactly backward. See Harvey Br. at 35 (“The Fourteenth Amendment should be construed so that it is consistent with the Acts.”). The canon of constitutional avoidance—providing

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that a court will not pass upon a constitutional question if there is some other ground upon which the case may be disposed—is not a two-way street. There is no canon of “statutory avoidance.” Courts construe statutes to avoid constitutional problems, not the other way around.

[11] At bottom, plaintiffs urge an interpretation of Section 2’s “other crime” provision that is in extreme tension with Richardson, contrary to the phrase’s plain meaning and its past and contemporary usage, and belied by the Fourteenth Amendment’s history. In response to these failings, they offer only an imaginary constitutional dilemma accompanied by an invitation to insert language into the Fourteenth Amendment’s text because of a newly conceived canon of statutory avoidance that contradicts basic principles of constitutional interpretation. We decline their invitation and reject their equal protection claim.

B. Conditioning Restoration of the Right to Vote upon Payment of Fines and Restitution

The three Coronado plaintiffs who have only one felony conviction (Coronado, Garza, and Rubio) also challenge Arizona’s scheme for automatically restoring the right to vote to one-time felons who complete their sentences and pay any fines or restitution imposed against them. See Ariz. Rev. Stat. § 13-912(A). They argue that requiring felons to pay any money owed under the terms of their sentences violates the Equal Protection Clause of the Fourteenth Amendment, the bar against poll taxes in the Twenty-Fourth Amendment, the Privileges or Immunities Clauses in both federal and state constitutions, and the free and equal elections provision in Article II, § 21 of the Arizona Constitution. We address each of these claims.

[12] At the outset, we note two important points. First, plaintiffs acknowledge that, “once taken away the right [to vote] does not have to be restored.” Coronado Br. at 15. That

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is, once a felon is properly disenfranchised a state is at liberty to keep him in that status indefinitely and never revisit that determination. See Richardson, 418 U.S. at 26-27 (upholding California’s scheme disenfranchising felons, including those who had completed the entirety of their sentences). But plaintiffs argue that “once a state adopts a scheme to restore this fundamental right, it may not require satisfaction of an unconstitutional condition.” Id. Second, no plaintiff alleges that he is indigent, so to the extent that fact might affect the analysis, we explicitly do not address challenges based on an individual’s indigent status. All we know from the allegations contained in the plaintiffs’ complaint is that each of them failed to pay obligations owed under the terms of his criminal sentence.

[13] We begin with the equal protection claim. Plaintiffs’ argument is that they have been deprived of the fundamental right to vote and that we are therefore required to review Arizona’s scheme for restoring the voting rights of felons under a strict scrutiny standard. But they cannot complain about their loss of a fundamental right to vote because felon disenfranchisement is explicitly permitted under the terms of Richardson. 418 U.S. at 55. What plaintiffs are really complaining about is the denial of the statutory benefit of reenfranchisement that Arizona confers upon certain felons. This is not a fundamental right; it is a mere benefit that (as plaintiffs admit) Arizona can choose to withhold entirely. Therefore, we do not apply strict scrutiny as we would if plaintiffs were complaining about the deprivation of a fundamental right.

[14] Even a statutory benefit can run afoul of the Equal Protection Clause, though, if it confers rights in a discriminatory manner or distinguishes between groups in a manner that is not rationally related to a legitimate state interest. See Fields v. Palmdale School Dist., 427 F.3d 1197, 1209 (9th Cir. 2005) (“[G]overnment actions that do not affect fundamental rights or liberty interests and do not involve suspect

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classifications will be upheld if it they are rationally related to a legitimate state interest.”). For instance, a state could not choose to re-enfranchise voters of only one particular race, see Hunter, 471 U.S. at 233, or re-enfranchise only those felons who are more than six-feet tall. Cf. Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (“[T]he Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” (citations omitted)).

[15] We have little trouble concluding that Arizona has a rational basis for restoring voting rights only to those felons who have completed the terms of their sentences, which includes the payment of any fines or restitution orders. Just as States might reasonably conclude that perpetrators of serious crimes should not take part in electing government officials, so too might it rationally conclude that only those who have satisfied their debts to society through fulfilling the terms of a criminal sentence are entitled to restoration of their voting rights. See Madison v. State, 163 P.3d 757, 771 (Wash. 2007); see also Owens v. Barnes, 711 F.2d 25, 27-28 (3d Cir. 1983) (scheme restoring voting rights to unincarcerated felons satisfies rational basis review). Perhaps withholding voting rights from those who are truly unable to pay their criminal fines due to indigency would not pass this rational basis test, but we do not address that possibility because no plaintiff in this case has alleged that he is indigent.

[16] Plaintiffs’ Twenty-Fourth Amendment claim fares no better. The Twenty-Fourth Amendment provides:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States

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or any State by reason of failure to pay any poll tax or other tax.

U.S. Const. amend. XXIV. Plaintiffs’ right to vote was not abridged because they failed to pay a poll tax; it was abridged because they were convicted of felonies. Having lost their right to vote, they now have no cognizable Twenty-Fourth Amendment claim until their voting rights are restored. That restoration of their voting rights requires them to pay all debts owed under their criminal sentences does not transform their criminal fines into poll taxes.

[17] Plaintiffs next rely on the Privileges or Immunities Clause in the Fourteenth Amendment, which reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Const. amend. XIV, § 1. Assuming for the sake of argument that the right of suffrage is one of the privileges or immunities protected by this clause, contra Minor v. Happersett, 88 U.S. 162, 171, 177 (1874), plaintiffs’ argument fails under the exact same rationale adopted by the Supreme Court in Richardson: Section 1 of the Fourteenth Amendment, which includes both the Equal Protection and Privileges or Immunities Clauses, “could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement.” 418 U.S. at 55.

[18] Plaintiffs’ argument based on the Arizona Constitution’s Privileges or Immunities Clause fails for the same reason. See Ariz. Const. art. II, § 13 (“No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.”). The Arizona Supreme Court has “held that this clause provides the same benefits as its federal counterpart,” Standhardt v. Super. Ct. ex rel. County of Maricopa, 77 P.3d

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451, 464 n.19 (Ariz. 2003), and plaintiffs acknowledge that its protections do not extend beyond those provided in the Fourteenth Amendment of the United States Constitution. Coronado Br. at 35. Because the Fourteenth Amendment cannot be read to prohibit Arizona’s felon disenfranchisement scheme, neither can this provision of the Arizona Constitution.

[19] Finally, we reject plaintiffs’ argument that requiring them to pay off their criminal fines and restitution orders violates the Arizona Constitution’s Free and Equal Elections Clause. Ariz. Const. art. II, § 21 (“All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”). The Arizona Constitution expressly permits felon disenfranchisement, see Ariz. Const. art. VII, § 2, and lest there be a conflict between these two constitutional provisions, the best reading of the Free and Equal Elections Clause is that it does not apply to disenfranchised felons, but only to those who are otherwise qualified to vote. See Arizona ex rel. Nelson v. Jordan, 450 P.2d 383, 386 (Ariz. 1969) (when “separate parts of a constitution are seemingly in conflict, it is the duty of the court to harmonize both so that the constitution is a consistent workable whole”). And as between felons, Arizona’s statutory scheme restoring voting rights applies equally to all. All felons must complete the terms of their sentences before their voting rights are restored. Ariz. Rev. Stat. § 13912(A).

Conclusion
[20] The Fourteenth Amendment permits States to disenfranchise felons, regardless of whether their offenses were recognized as felonies at common law. Requiring felons to satisfy the terms of their sentences before restoring their voting rights is rationally related to a legitimate state interest, and does not violate any of the various constitutional provisions plaintiffs rely upon.
AFFIRMED.

 
 Case: 2:07-cv-01089-SMM As of: 06/12/2011 07:52 PM MST 1 of 9

U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:07−cv−01089−SMM

CLOSED, STD

Coronado et al v. Napolitano, et al Assigned to: Judge Stephen M McNamee Case in other court: Ninth Circuit, 08−17567 Cause: 42:1983 Civil Rights Act Plaintiff Armando Coronado
Plaintiff Joseph Rubio

Date Filed: 05/31/2007 Date Terminated: 11/06/2008 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question
represented by Laughlin McDonald ACLU Voting Rights Project 230 Peachtree St NW Ste 1440 Atlanta, GA 30303 404−523−2721 Fax: 404−653−0331 Email: lmcdonald@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Joseph Pochoda ACLU 3707 N 7th St., Ste. 235 Phoenix, AZ 85014 602−650−1854 Fax: 602−650−1376 Email: dpochoda@acluaz.org
Nancy G Abudu ACLU Voting Rights Project 230 Peachtree St NW Ste 1440 Atlanta, GA 30303 404−523−2721 Fax: 404−653−0331 Email: nabudu@aclu.org ATTORNEY TO BE NOTICED
Neil Bradley ACLU Southern Regional Office Voting Rights Projectq 230 Peachtree St NW Ste 1440 Atlanta, GA 30303 404−523−2721 Fax: 404−653−0331 Email: nbradley@aclu.org ATTORNEY TO BE NOTICED
represented by Laughlin McDonald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Joseph Pochoda (See above for address)

Case: 2:07-cv-01089-SMM As of: 06/12/2011 07:52 PM MST 2 of 9

Nancy G Abudu (See above for address) ATTORNEY TO BE NOTICED

Neil Bradley (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michael Garza

represented by Laughlin McDonald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address)

Nancy G Abudu (See above for address) ATTORNEY TO BE NOTICED

Neil Bradley (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michele Convie

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laughlin McDonald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy G Abudu (See above for address) ATTORNEY TO BE NOTICED

Neil Bradley (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Raymond Lewis, Jr.

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laughlin McDonald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy G Abudu (See above for address) ATTORNEY TO BE NOTICED

Neil Bradley (See above for address) ATTORNEY TO BE NOTICED

Case: 2:07-cv-01089-SMM As of: 06/12/2011 07:52 PM MST 3 of 9

V. Defendant Janet A Napolitano in her official capacity as Governor
Defendant Janice K Brewer in her official capacity as Secretary of State of Arizona
Defendant F Ann Rodriguez in her official capacity as Pima County Recorder
Defendant Helen Purcell in her official capacity as Maricopa County Recorder

represented by Barbara Anne Bailey Office of the Attorney General 1275 W Washington St Phoenix, AZ 85007 602−542−8305 Fax: 602−542−8308 Email: barbara.bailey@azag.gov ATTORNEY TO BE NOTICED
Mary Ruth OGrady Office of the Attorney General 1275 W Washington Phoenix, AZ 85007−2997 602−542−8986 Fax: 602−542−8308 Email: mary.ogrady@azag.gov ATTORNEY TO BE NOTICED
represented by Barbara Anne Bailey (See above for address) ATTORNEY TO BE NOTICED
Mary Ruth OGrady (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S Jurkowitz Pima County Attorneys Office 32 N Stone Ave., Ste. 2100 Tucson, AZ 85701 520−740−5750 Fax: 520−740−5600 Email: Daniel.Jurkowitz@pcao.pima.gov ATTORNEY TO BE NOTICED
Karen Sue Wigoda Friar Pima County Attorney's Office Civil Division 32 N Stone Ave Ste 2100 Tucson, AZ 85701 520−740−5750 Fax: 520−620−6556 Email: Karen.Friar@pcao.pima.gov TERMINATED: 02/25/2008 ATTORNEY TO BE NOTICED
represented by Kathleen Erin Martoncik Wilenchik &Bartness PC 2810 N 3rd St Phoenix, AZ 85004 602−606−2810 Fax: 602−606−2811 Email: katiem@wb−law.com LEAD ATTORNEY

Case: 2:07-cv-01089-SMM As of: 06/12/2011 07:52 PM MST 4 of 9

ATTORNEY TO BE NOTICED

Dennis Ira Wilenchik Wilenchik &Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Fax: 602−606−2811 Email: diw@wb−law.com ATTORNEY TO BE NOTICED

Movant
Page Maier TERMINATED: 01/16/2008

represented by John R Cosgrove John R Cosgrove 295 E Creek Dr Menlo Park, CA 94025 650−324−9636 Fax: 650−324−9636 Email: cos1grove@earthlink.net TERMINATED: 01/16/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/01/2007 06/01/2007 06/01/2007
06/04/2007 06/04/2007 06/05/2007 06/05/2007
06/06/2007 06/06/2007

# Docket Text
1 COMPLAINT. Filing fee received: $ 350.00, receipt number 1262019, filed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie.(Pochoda, Daniel) (Entered: 06/01/2007)
This case has been assigned to the Honorable Stephen M. McNamee. All future pleadings or documents should bear the correct case number: CV 07−1089 PHX−SMM. (entered by LSP) (Entered: 06/01/2007)
2 NOTICE TO FILER OF DEFICIENCY re 1 Complaint filed by Armando Coronado, Michael Garza, Joseph Rubio, Michele Convie. Description of deficiency: The following required documents were not attached: Civil Cover Sheet and Summonses. Parties F Ann Rodriguez and Helen Purcell not added to case. Incorrect party role defendant selected for Raymond Lewis, Jr. Correct party role is plaintiff. Address, phone or email information was incorrectly added at the Party Information screen. Only the Party text field should be used when appropriate. Document not in compliance with L/R 7.1: Name and address of attorney in upper left corner. (LSP) (Entered: 06/01/2007)
3 MOTION for Admission Pro Hac Vice as to attorney Nancy G Abudu on behalf of the plaintiffs. (BAS, ) (Entered: 06/05/2007)
4 MOTION for Admission Pro Hac Vice as to attorney M Laughlin McDonald on behalf of the plaintiffs. (BAS, ) (Entered: 06/05/2007)
PRO HAC VICE FEE PAID. $ 200, receipt number PHX058608 as to Nancy G Abudu, Laughlin McDonald. (BAS, ) (Entered: 06/05/2007)
5 ORDER pursuant to General Order 05−25 granting 3 Motion for Admission Pro Hac Vice; granting 4 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/05/2007)
6 Notice re Civil Cover Sheet by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr (Abudu, Nancy) (Entered: 06/06/2007)
7 Notice re Summons by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr (Abudu, Nancy) (Entered: 06/06/2007)

Case: 2:07-cv-01089-SMM As of: 06/12/2011 07:52 PM MST 5 of 9

06/06/2007 06/06/2007 06/06/2007 06/11/2007 06/12/2007 06/12/2007
06/12/2007
06/26/2007 06/26/2007 06/28/2007 07/02/2007 07/12/2007 08/10/2007
08/13/2007 08/13/2007 08/13/2007

8 Notice re Summons by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr (Abudu, Nancy) (Entered: 06/06/2007)
9 Notice re Summons by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr (Abudu, Nancy) (Entered: 06/06/2007)
10 Notice re Summons by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr (Abudu, Nancy) (Entered: 06/06/2007)
11 MOTION for Admission Pro Hac Vice as to attorney Neil Bradley on behalf of plaintiffs. (BAS, ) (Entered: 06/12/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX058833 as to Neil Bradley. (BAS, ) (Entered: 06/12/2007)
12 ORDER pursuant to General Order 05−25 granting 11 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/12/2007)
13 Summons Issued as to F Ann Rodriguez, Helen Purcell, Janet Napolitano, Janice K Brewer. (Attachments: #(1) Janet Napolitano, #(2) Helen Purcell, #(3) F. Ann Rodriguez and #(4) Consent Form)(LSP) *** IMPORTANT: You must select "Document and stamps" or "Document and comments" on the print screen in order for the court seal to appear on the summons you print. (Entered: 06/12/2007)
14 WAIVER OF SERVICE Returned Executed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. Helen Purcell waiver sent on 6/13/2007. (Abudu, Nancy) (Entered: 06/26/2007)
15 WAIVER OF SERVICE Returned Executed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. F Ann Rodriguez waiver sent on 6/13/2007. (Abudu, Nancy) (Entered: 06/26/2007)
16 Standard Civil Track Initial ORDER. Signed by Judge Stephen M McNamee on 6/28/2007. (TCA, ) (Entered: 06/28/2007)
17 CERTIFICATE OF SERVICE by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr re 16 Order (Abudu, Nancy) (Entered: 07/02/2007)
18 WAIVER OF SERVICE Returned Executed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. Janet Napolitano waiver sent on 6/13/2007. (Abudu, Nancy) (Entered: 07/12/2007)
19 The Court is in receipt of Ms. Abudu's letter dated 8/7/07, regarding plas' apparent difficulties with service of process on one of the dfts. It is this Court's policy that all communication with the Court regarding matters such as service of process shall be made in writing and filed with the Court according to the Fed.R.Civ.P. and the Local Rules of the US District Court for the District of Arizona. Communication such as that recieved today amounts to ex parte communication and will not be considered by this Court. Therefore, the Court has returned the documents in their original form and requests that counsel for plas, as well as Ms. Abudu, refrain from communicating with the Court in this manner in the future. Signed by Judge Stephen M McNamee on 8/10/07. (Attachments: # 1 Copy of Letter)(KMG) (Entered: 08/10/2007)
20 NOTICE of Appearance by Mary Ruth O'Grady on behalf of Janet Napolitano (O'Grady, Mary) (Entered: 08/13/2007)
21 NOTICE of Appearance by Barbara Anne Bailey on behalf of Janet Napolitano (Bailey, Barbara) (Entered: 08/13/2007)
22 MOTION to Dismiss Case by Janet Napolitano. (O'Grady, Mary) (Entered: 08/13/2007)

Case: 2:07-cv-01089-SMM As of: 06/12/2011 07:52 PM MST 6 of 9

08/21/2007
08/22/2007 08/22/2007 08/23/2007 08/30/2007 09/05/2007
09/06/2007
09/10/2007 09/12/2007 09/20/2007 09/20/2007 09/21/2007 09/24/2007 09/25/2007 09/25/2007
09/27/2007 09/27/2007 09/28/2007

23 MOTION for Extension of Time to File Response to Motion to Dismiss Complaint by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (Attachments: # 1 Text of Proposed Order)(Abudu, Nancy) (Entered: 08/21/2007)
24 ANSWER to Complaint by Helen Purcell.(Wilenchik, Dennis) (Entered: 08/22/2007)
25 Notice re First Set of Discovery Requests to Plaintiffs by Helen Purcell (Wilenchik, Dennis) (Entered: 08/22/2007)
26 ORDER granting 23 Motion for Extension of Time. Plaintiffs have through September 5, 2007 to respond to motion to dismiss.. Signed by Judge Stephen M McNamee on 8/23/07.(DMT, ) (Entered: 08/23/2007)
27 Defendants ANSWER to Complaint by F Ann Rodriguez.(Friar, Karen) (Entered: 08/30/2007)
28 RESPONSE in Opposition re 22 MOTION to Dismiss Case filed by Armando Coronado, Michael Garza, Michele Convie, Raymond Lewis, Jr. (Abudu, Nancy) Modified on 9/6/2007 (DMT, ). DOCUMENT NOT IN COMPLIANCE WITH L/R 7.1. ATTORNEY NOTICED. (Entered: 09/05/2007)
29 NOTICE TO FILER OF DEFICIENCY re 28 Response in Opposition to Motion filed by Armando Coronado, Michael Garza, Raymond Lewis, Jr, Michele Convie. Description of deficiency: Document not in compliance with L/R 7.1. (DMT, ) (Entered: 09/06/2007)
30 First MOTION for Extension of Time for Filing Reply in Support of Motion to Dismiss by Janet Napolitano. (Attachments: # 1)(Bailey, Barbara) (Entered: 09/10/2007)
31 ORDER granting 30 Motion for Extension of Time. Defendant shall have through September 24, 2007 to file a reply in support of the pending motion to dismiss. Signed by Judge Stephen M McNamee on 9/12/07.(DMT, ) (Entered: 09/12/2007)
32 MOTION for Leave to File Excess Pages for Motion to Dismiss by Janet Napolitano. (Attachments: # 1)(Bailey, Barbara) (Entered: 09/20/2007)
33 MOTION to Dismiss Case by Janice K Brewer. (O'Grady, Mary) (Entered: 09/20/2007)
34 ORDER granting 32 Motion for Leave to File Excess Pages. Permitting Defendant to file a reply in support of her motion to dismiss (Dkt. 22) of up to sixteen pages.. Signed by Judge Stephen M McNamee on 9/21/07.(DMT, ) (Entered: 09/21/2007)
35 REPLY in Support re 22 MOTION to Dismiss Case filed by Janet Napolitano, Janice K Brewer. (Bailey, Barbara) (Entered: 09/24/2007)
36 MOTION for Leave to File Excess Pages by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (Attachments: # 1 Text of Proposed Order)(McDonald, Laughlin) (Entered: 09/25/2007)
37 LODGED Proposed Response to Motion to Dismiss re: 36 MOTION for Leave to File Excess Pages. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (McDonald, Laughlin) (Entered: 09/25/2007)
38 ORDER granting 36 Motion for Leave to File Excess Pages. Signed by Judge Stephen M McNamee on 9/27/07.(DMT, ) (Entered: 09/27/2007)
39 RESPONSE in Opposition to re 22 MOTION to Dismiss Case filed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (DMT, ) (Entered: 09/27/2007)
40 Notice re Service of Initial Disclosures by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr (McDonald, Laughlin) Modified on 10/1/2007 (DMT, ). DOCUMENT FILED WITH INCORRECT CASE NUMBER. (Entered: 09/28/2007)

Case: 2:07-cv-01089-SMM As of: 06/12/2011 07:52 PM MST 7 of 9

09/28/2007 10/01/2007 10/03/2007 01/07/2008
01/09/2008 01/10/2008 01/16/2008 01/22/2008 01/22/2008 02/19/2008
02/19/2008 02/21/2008 02/21/2008
02/25/2008 03/05/2008

41 RESPONSE to Motion re 33 MOTION to Dismiss Case filed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (McDonald, Laughlin) Modified on 10/1/2007 (DMT, ). DOCUMENT FILED WITH INCORRECT CASE NUMBER. (Entered: 09/28/2007)
42 NOTICE TO FILER OF DEFICIENCY re 40 Other Notice, 41 Response to Motion. Description of deficiency: Case number is incorrect.. (DMT, ) (Entered: 10/01/2007)
43 Notice re Regarding Preliminary Pretrial Conference by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr (McDonald, Laughlin) (Entered: 10/03/2007)
44 ORDER Scheduling Conference set for 5/12/2008 10:00 AM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 1/7/2008.IT IS FURTHER ORDERED that the Clerk of the Court send copies of this Order to all counsel of record and to all parties, if any, appearing in propria persona. (TCA, ) (Entered: 01/07/2008)
45 MOTION to Consolidate Cases CV 07−1089−PHX−SMM and CV 08−17−TUC−CRP by Page Maier. (DMT, ) (Entered: 01/10/2008)
46 RESPONSE to Motion re 45 MOTION to Consolidate Cases filed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (McDonald, Laughlin) (Entered: 01/10/2008)
47 ORDER denying 45 Motion to Consolidate Cases. Signed by Judge Stephen M McNamee on 1/16/08.(DMT, ) (Entered: 01/16/2008)
48 MEMORANDUM OF DECISION AND ORDER granting 33 Motion to Dismiss Case; granting 22 Motion to Dismiss Case. The complaint is dismissed without prejudice, and the Clerk shall terminate this action.. Signed by Judge Stephen M McNamee on 1/22/08.(DMT, ) (Entered: 01/22/2008)
49 JUDGMENT entered in favor of dfts and against plaintiffs. Plaintiffs to take nothing, and complaint and action are dismissed without prejudice. (DMT, ) (Entered: 01/22/2008)
50 MOTION for Leave to File Amended Complaint by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(McDonald, Laughlin) Modified on 2/21/2008 (DMT, ). STRIKE−OUT VERSION OF AMENDED PLEADING NOT ATTACHED TO MOTION. (Entered: 02/19/2008)
51 LODGED Proposed Amended Complaint re: 50 MOTION for Leave to File Amended Complaint. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (McDonald, Laughlin) (Entered: 02/19/2008)
52 NOTICE TO FILER OF DEFICIENCY re 50 MOTION for Leave to File Amended Complaint filed by Armando Coronado, Michael Garza, Raymond Lewis, Jr, Joseph Rubio, Michele Convie. Description of deficiency: Redline/strikeout version not attached to motion. (DMT, ) (Entered: 02/21/2008)
53 Additional Attachments to Main Document re 50 Motion. Redline/Strikeout Version of Amended Complaint by Plaintiffs Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (McDonald, Laughlin) Modified on 2/22/2008 (DMT, ). DOCKET TEXT MODIFIED TO CORRECT DOCUMENT LINKAGE. (Entered: 02/21/2008)
54 NOTICE of Attorney Substitution by Daniel S Jurkowitz (Jurkowitz, Daniel) (Entered: 02/25/2008)
55 RESPONSE in Opposition re 50 MOTION for Leave to File Amended Complaint filed by Janet Napolitano, Janice K Brewer. (Shipman, Tanja) (Entered: 03/05/2008)

Case: 2:07-cv-01089-SMM As of: 06/12/2011 07:52 PM MST 8 of 9

03/06/2008 03/12/2008 04/30/2008 04/30/2008 05/09/2008 05/12/2008
05/19/2008 05/20/2008
05/20/2008 05/21/2008 05/22/2008 06/17/2008 06/18/2008 06/19/2008 07/08/2008 07/11/2008

56 Joinder re 55 Response in Opposition to Motion by Defendant F Ann Rodriguez filed by F Ann Rodriguez. (Jurkowitz, Daniel) (Entered: 03/06/2008)
57 REPLY to Response to Motion re 50 MOTION for Leave to File Amended Complaint filed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (McDonald, Laughlin) (Entered: 03/12/2008)
58 ORDER granting 50 Motion for Leave to File Amended Complaint as of Right. IT IS FURTHER ORDERED directing the Clerk of the Court to reopen this matter and file Plaintiffs lodged proposed amended complaint 51 .. Signed by Judge Stephen M McNamee on 4/30/08.(DMT, ) (Entered: 04/30/2008)
59 AMENDED COMPLAINT against F Ann Rodriguez, Helen Purcell, Janet Napolitano, Janice K Brewer, filed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr.(DMT, ) (Entered: 04/30/2008)
60 ANSWER to Complaint by F Ann Rodriguez.(Jurkowitz, Daniel) (Entered: 05/09/2008)
61 ORDER Scheduling Conference set for 6/30/2008 02:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 5/12/2008. IT IS FURTHER ORDERED that the Clerk of the Court send copies of this Order to all counsel of record and to all parties, if any, appearing in propria persona. (TCA, ) (Entered: 05/12/2008)
62 MOTION to Dismiss Case Re: THE FIRST AMENDED COMPLAINT AND MEMORANDUM IN SUPPORT THEREOF by Janet Napolitano, Janice K Brewer. (Bailey, Barbara) (Entered: 05/19/2008)
63 Minute Order: Due to the pending motion to dismiss, ORDERED Scheduling Conference re−set for 9/29/2008 02:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 05/20/2008)
64 Maricopa County Recorder Helen Purcell's ANSWER to Complaint Amended Complaint by Helen Purcell.(Wilenchik, Dennis) (Entered: 05/20/2008)
65 MOTION for Extension of Time Time in Which to File Response to Motion to Dismiss First Amended Complaint by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (Attachments: # 1 Text of Proposed Order)(McDonald, Laughlin) (Entered: 05/21/2008)
66 ORDER granting 65 Motion for Extension of Time. Plaintiffs shall have to 6/17/08 to respond to the pending motion to dismiss.. Signed by Judge Stephen M McNamee on 5/22/08.(DMT, ) (Entered: 05/22/2008)
67 RESPONSE in Opposition re 62 MOTION to Dismiss Case Re: THE FIRST AMENDED COMPLAINT AND MEMORANDUM IN SUPPORT THEREOF filed by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. (Abudu, Nancy) (Entered: 06/17/2008)
68 First MOTION for Extension of Time For Filing Reply In Support of Motion to Dismiss by Janet Napolitano, Janice K Brewer. (Attachments: # 1 Text of Proposed Order)(Bailey, Barbara) (Entered: 06/18/2008)
69 ORDER granting 68 Motion for Extension of Time. Defendants shall have through July 11, 2008, to file their reply in support of the pending motion to dismiss.. Signed by Judge Stephen M McNamee on 6/19/08.(DMT, ) (Entered: 06/19/2008)
70 NOTICE of Change of Address by Nancy G Abudu (Abudu, Nancy) (Entered: 07/08/2008)
71 REPLY in Support re 62 MOTION to Dismiss Case Re: THE FIRST AMENDED COMPLAINT AND MEMORANDUM IN SUPPORT THEREOF filed by Janet Napolitano, Janice K Brewer. (O'Grady, Mary) (Entered: 07/11/2008)

Case: 2:07-cv-01089-SMM As of: 06/12/2011 07:52 PM MST 9 of 9

09/10/2008 11/06/2008 11/06/2008 11/13/2008 11/17/2008
11/17/2008 11/24/2008 11/25/2008 08/03/2010 08/26/2010

72 Minute Order:Due to the pending dispositive motion, ORDERED that the scheduling conference set for September 29, 2008 is hereby vacated. The hearing will be reset, if necessary, after a ruling on the dispositive motion.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 09/10/2008)
73 ORDER granting 62 with prejudice Defendants' Motion to Dismiss the First Amended Complaint. Signed by Judge Stephen M McNamee on 11/5/08.(TLJ) (Entered: 11/06/2008)
74 CLERK'S JUDGMENT−IT IS HEREBY ORDERED pursuant to the Courts order filed this date granting Defendants Motion to Dismiss the First Amended Complaint at docket 62 with prejudice, this action is hereby terminated. (TLJ) (Entered: 11/06/2008)
75 NOTICE OF APPEAL to 9th Circuit, as to 73 Order on Motion to Dismiss Case by Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, Raymond Lewis, Jr. Filing fee received: $ 455.00, receipt number 09700000000002365540. (Attachments: # 1 Docketing Statement, # 2 Order Appealed From)(McDonald, Laughlin) (Entered: 11/13/2008)
76 APPEAL PROCESSED to Ninth Circuit re: 75 Notice of Appeal, filed by Armando Coronado, Michael Garza, Raymond Lewis, Jr, Joseph Rubio, Michele Convie. Filed dates for: Notice of Appeal *11/13/2008*, *Complaint* *6/1/2007***, Appealed Judgment *11/06/08*. Court Reporter *None* Fee Status: *Paid on 11/13/2008 in the amount of $455.00*. Hearing Dates of *None***********. Appellant Attorney: *Laughlin McDonald* *(Ret)* *lmcdonald@aclu.org*. Appellee Attorney: *Barbara Anne Bailey* *(ret)* *barbara.bailey@azag.gov*** (Attachments: # 1 Certificate of Record) (DNH) (Entered: 11/17/2008)
CADS (Copies) Sent re 75 Notice of Appeal: Civil Appeals docketing sent to 9th Circuit on this date. Attorney noticed to deliver originals to this Court to be sent to 9CCA. (DNH) (Entered: 11/17/2008)
CADS (Original) Sent re 75 Notice of Appeal: Civil Appeals Docketing Statement sent to 9th Circuit on this date. (KMG) (Entered: 11/26/2008)
77 Ninth Circuit Case Number 08−17567 for 75 Notice of Appeal,. (KMG, ) (Entered: 11/25/2008)
78 MANDATE of USCA affirming District Court decision as to 75 Notice of Appeal, re: 08−17567 filed by Armando Coronado, Michael Garza, Raymond Lewis, Jr, Joseph Rubio, Michele Convie. (Attachments: #(1) Opinion, #(2) NDA). (LSP) Modified on 8/3/2010 (LSP). (Entered: 08/03/2010)
79 NOTICE of Change of Address by Daniel Joseph Pochoda (Pochoda, Daniel) (Entered: 08/26/2010)