Case: 2:19-cv-05685-DWL As of: 07/06/2020 01:40 PM MST 1 of 10
CLOSED,MIDP,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:19−cv−05685−DWL

Voto Latino Foundation et al v. Hobbs Assigned to: Judge Dominic W Lanza Cause: 42:1983 Civil Rights Act
Plaintiff Voto Latino Foundation previously named as Voto Latino Incorporated

Date Filed: 11/26/2019 Date Terminated: 06/19/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question
represented by Amanda Rebecca Callais Perkins Coie LLP − Washington, DC 700 13th St. NW, Ste. 600 Washington, DC 20005−3960 202−654−6200 Fax: 202−654−6211 Email: acallais@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christina A Ford Perkins Coie LLP − Washington, DC 700 13th St. NW, Ste. 600 Washington, DC 20005−3960 202−654−6200 Fax: 202−654−6211 Email: christinaford@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John M Devaney Perkins Coie LLP − Washington, DC 700 13th St. NW, Ste. 600 Washington, DC 20005−3960 202−434−1624 Fax: 202−434−1690 Email: jdevaney@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
K'Shaani O Smith Perkins Coie LLP − Washington, DC 700 13th St. NW, Ste. 600 Washington, DC 20005−3960 202−654−6200 Fax: 202−654−6211 Email: kshaanismith@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc E Elias Perkins Coie LLP − Washington, DC 700 13th St. NW, Ste. 600 Washington, DC 20005−3960 202−434−1609 Fax: 202−654−9126 Email: melias@perkinscoie.com LEAD ATTORNEY

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PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Rae Gonski Perkins Coie LLP − Phoenix, AZ 2901 N Central Ave., Ste. 2000 Phoenix, AZ 85012 602−351−8170 Email: sgonski@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zachary Newkirk Perkins Coie LLP − Washington, DC 700 13th St. NW, Ste. 800 Washington, DC 20005 202−654−6200 Fax: 202−654−6211 Email: znewkirk@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexis Elizabeth Danneman Perkins Coie LLP − Phoenix, AZ 2901 N Central Ave., Ste. 2000 Phoenix, AZ 85012 602−351−8201 Email: ADanneman@Perkinscoie.com ATTORNEY TO BE NOTICED

Plaintiff Priorities USA

represented by Amanda Rebecca Callais (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christina A Ford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

K'Shaani O Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc E Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Rae Gonski (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Zachary Newkirk (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexis Elizabeth Danneman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Shelby Aguallo

represented by Amanda Rebecca Callais (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christina A Ford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

K'Shaani O Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc E Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Rae Gonski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zachary Newkirk (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexis Elizabeth Danneman (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Katie Hobbs in her official capacity as Arizona Secretary of State

represented by Dustin Dane Romney Office of the Attorney General − Phoenix 2005 N Central Ave.

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Phoenix, AZ 85004−1592 602−542−1763 Email: dustin.romney@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma Jane Cone−Roddy Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067−6379 602−640−9000 Email: econe−roddy@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kara Karlson Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−8118 Fax: 602−542−8308 Email: AdminLaw@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linley Sarah Wilson Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 480−329−3679 Email: linley.wilson@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Ruth OGrady Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067−6379 602−640−9000 Fax: 602−640−9050 Email: mogrady@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/26/2019 11/26/2019 11/26/2019
11/26/2019

# Docket Text
1 COMPLAINT. Filing fee received: $ 400.00, receipt number 0970−17673309 filed by Voto Latino Incorporated and Priorities USA. (Gonski, Sarah) (Attachments: # 1 Civil Cover Sheet)(MYE) (Entered: 11/26/2019)
2 SUMMONS Submitted by Voto Latino Incorporated and Priorities USA. (Gonski, Sarah) (MYE) (Entered: 11/26/2019)
3 Filing fee paid, receipt number 0970−17673309. This case has been assigned to the Honorable Dominic W Lanza. All future pleadings or documents should bear the correct case number: CV−19−5685−PHX−DWL. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (MYE) (Entered: 11/26/2019)
4 NOTICE TO THE PARTIES − The Court is participating in the Mandatory Initial Discovery Pilot (MIDP) and this case is subject to that pilot. The key features and deadlines are set forth in the attached Notice which includes General Order 17−08. Also attached is a checklist for use by the parties. All parties must respond to the mandatory initial discovery requests set forth in the General Order before initiating any further discovery in this case. Please note: The discovery obligations in the General Order supersede the disclosures required by Rule 26(a)(1). Any party seeking

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11/26/2019 11/26/2019
11/26/2019 11/26/2019 11/26/2019
11/27/2019 11/27/2019 12/02/2019 12/02/2019 12/03/2019 12/03/2019 12/03/2019 12/13/2019 12/31/2019

affirmative relief must serve a copy of the attached documents (Notice to Parties, including General Order 17−08 and MIDP Checklist) on each new party when the Complaint, Counterclaim, Crossclaim, or Third−Party Complaint is served. (MYE) (Entered: 11/26/2019)
5 Summons Issued as to Katie Hobbs. (MYE). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 11/26/2019)
6 NOTICE TO PARTY OF DEFICIENCY RE: CORPORATE DISCLOSURE STATEMENT: Pursuant to FRCiv 7.1 and LRCiv 7.1.1 the attached Corporate Disclosure Statement form must be filed by all nongovernmental corporate parties with their first appearance. A supplemental statement must be filed upon any change in the information. In addition, if not already filed, the Corporate Disclosure Statement should be filed within 14 days. Corporate Disclosure Statement Deadline set as to Voto Latino Incorporated and Priorities USA. (MYE) (Entered: 11/26/2019)
7 Corporate Disclosure Statement by Voto Latino Incorporated. (Gonski, Sarah) (Entered: 11/26/2019)
8 Corporate Disclosure Statement by Priorities USA. (Gonski, Sarah) (Entered: 11/26/2019)
9 PRELIMINARY ORDER: IT IS THEREFORE ORDERED: 1. That Plaintiff(s) must promptly serve a copy of this Order and its Attachments on Defendant(s) and file notice of service with the Clerk of Court; 2. That, unless the Court orders otherwise, on February 25, 2020, the Clerk of Court shall terminate without further notice any Defendant in this action that has not been served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure; 3. That, unless the Court orders otherwise, the parties shall file with the Clerk of Court a notice of service of MIDP Responses, supplemental MIDP Responses, and production of ESI, rather than copies of the actual disclosures [see attached Order for details]. Signed by Judge Dominic W Lanza on 11/26/19. (Attachments: # 1 Notice − MIDP, # 2 MIDP User Manual)(MAW) (Entered: 11/26/2019)
Remark: Pro hac vice motion(s) granted for Marc E Elias and John M Devaney on behalf of Plaintiffs Priorities USA and Voto Latino Incorporated. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/27/2019)
Remark: Pro hac vice motion(s) granted for Amanda Rebecca Callais on behalf of Plaintiffs Priorities USA, Voto Latino Incorporated. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/27/2019)
10 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Priorities USA, Voto Latino Incorporated . (Gonski, Sarah) (Entered: 12/02/2019)
11 AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants filed by Voto Latino Incorporated, Priorities USA.(Gonski, Sarah) (Entered: 12/02/2019)
12 NOTICE of Appearance by Kara Karlson on behalf of Katie Hobbs. (Karlson, Kara) (Entered: 12/03/2019)
Remark: Pro hac vice motion(s) granted for Christina A Ford and K'Shaani O Smith on behalf of Plaintiffs Priorities USA and Voto Latino Incorporated. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/03/2019)
13 NOTICE re: Compliance with Court's Preliminary Order by Priorities USA, Voto Latino Incorporated . (Gonski, Sarah) (Entered: 12/03/2019)
14 SERVICE EXECUTED filed by Priorities USA, Voto Latino Incorporated: Rule 4 Waiver of Service of Summons. Waiver sent on 12/03/2019 to Secretary of State Katie Hobbs . (Gonski, Sarah) (Entered: 12/13/2019)
15 NOTICE OF ATTORNEY APPEARANCE: Linley Wilson appearing for Katie Hobbs. . (Wilson, Linley) (Entered: 12/31/2019)

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01/06/2020 02/03/2020 02/18/2020 02/24/2020 02/24/2020 02/24/2020 02/24/2020 02/25/2020
02/25/2020
02/26/2020 02/27/2020 03/04/2020 03/05/2020

16 NOTICE of Appearance by Mary Ruth OGrady on behalf of Katie Hobbs. (OGrady, Mary) (Entered: 01/06/2020)
17 MOTION to Dismiss Case by Katie Hobbs. (Karlson, Kara) (Entered: 02/03/2020)
Remark: Pro hac vice motion(s) granted for Zachary Newkirk on behalf of Plaintiffs Priorities USA and Voto Latino Incorporated. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 02/18/2020)
18 NOTICE of Appearance by Alexis Elizabeth Danneman on behalf of Priorities USA, Voto Latino Incorporated. (Danneman, Alexis) (Entered: 02/24/2020)
19 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Priorities USA, Voto Latino Incorporated . (Attachments: # 1 Exhibit A−Blacklined Second Amended Complaint)(Danneman, Alexis) (Entered: 02/24/2020)
20 STIPULATION to Extend Filing Deadlines for Motion to Dismiss and for Plaintiffs' Filing of a Second Amended Complaint by Priorities USA, Voto Latino Incorporated. (Attachments: # 1 Text of Proposed Order)(Danneman, Alexis) (Entered: 02/24/2020)
21 AMENDED COMPLAINT against Katie Hobbs filed by Voto Latino Incorporated, Priorities USA, Shelby Aguallo.(Danneman, Alexis) (Entered: 02/24/2020)
22 MOTION for Preliminary Injunction by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit 1 − Declaration of Shelby Aguallo, # 3 Exhibit 2 − Declaration of Carmen Arias, # 4 Exhibit 3 − Declaration of Jacob Armour, # 5 Exhibit 4 − Declaration of Elizabeth Bixby, # 6 Exhibit 5 − Declaration of Guy Cecil, # 7 Exhibit 6 − Declaration of Gerardina Figueroa, # 8 Exhibit 7 − Declaration of Leslea Johnson, # 9 Exhibit 8 − Declaration of Scott Konopasek, # 10 Exhibit 9 − Declaration of Maria Teresa Kumar, # 11 Exhibit 10 − Declaration of Senator Martin Quezada, # 12 Exhibit 11 − Declaration of DJ Quinlan, # 13 Exhibit 12 − Declaration of Kiersten Schneider, # 14 Exhibit 13 − Declaration of Jon Sutton, # 15 Text of Proposed Order)(Danneman, Alexis) (Entered: 02/25/2020)
23 DECLARATION of John Devaney re: 22 MOTION for Preliminary Injunction by Plaintiffs Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Attachments: # 1 Exhibit 1 to Declaration of John Devaney, # 2 Exhibit 2 to Declaration of John Devaney, # 3 Exhibit 3 to Declaration of John Devaney, # 4 Exhibit 4 to Declaration of John Devaney, # 5 Exhibit 5 to Declaration of John Devaney, # 6 Exhibit 6 to Declaration of John Devaney, # 7 Exhibit 7 to Declaration of John Devaney, # 8 Exhibit 8 to Declaration of John Devaney, # 9 Exhibit 9 to Declaration of John Devaney, # 10 Exhibit 10 to Declaration of John Devaney, # 11 Exhibit 11 to Declaration of John Devaney, # 12 Exhibit 12 to Declaration of John Devaney, # 13 Exhibit 13 to Declaration of John Devaney, # 14 Exhibit 14 to Declaration of John Devaney, # 15 Exhibit 15 to Declaration of John Devaney, # 16 Exhibit 16 to Declaration of John Devaney, # 17 Exhibit 17 to Declaration of John Devaney, # 18 Exhibit 18 to Declaration of John Devaney, # 19 Exhibit 19 to Declaration of John Devaney, # 20 Exhibit 20 to Declaration of John Devaney)(Danneman, Alexis) (Entered: 02/25/2020)
24 ORDER: IT IS ORDERED that the parties' stipulation (Doc. 20 ) is granted. Defendant shall respond to the SAC by March 20, 2020. The motion to dismiss (Doc. 17 ) is denied as moot [see attached Order for details]. Signed by Judge Dominic W Lanza on 2/26/20. (MAW) (Entered: 02/26/2020)
25 NOTICE of Appearance by Dustin Dane Romney on behalf of Katie Hobbs. (Romney, Dustin) (Entered: 02/27/2020)
26 Emergency MOTION to Stay re: 22 MOTION for Preliminary Injunction or Alternative Relief by Katie Hobbs. (Attachments: # 1 Text of Proposed Order)(Karlson, Kara) (Entered: 03/04/2020)
27 ORDER: IT IS ORDERED that Plaintiffs shall file an expedited response to the motion to stay by March 11, 2020. Defendants will not be required to respond to the motion for preliminary injunction pending resolution of the motion to stay [see attached Order for details]. Signed by Judge Dominic W Lanza on 3/5/20. (MAW) (Entered: 03/05/2020)

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03/11/2020 03/13/2020 03/20/2020 04/14/2020 04/14/2020 04/15/2020
04/15/2020

28 RESPONSE in Opposition re: 26 Emergency MOTION to Stay re: 22 MOTION for Preliminary Injunction or Alternative Relief filed by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Callais, Amanda) (Entered: 03/11/2020)
29 ORDER: IT IS ORDERED that: (1) The Secretary's emergency motion for stay (Doc. 26 ) is granted in part and denied in part. The briefing schedule for the two motions will be as follows. (2) As for the Secretary's motion to dismiss the second amended complaint, the motion must be filed by March 20, 2020. (Doc. 24 .) Because some of the Secretary's arguments may pertain to subject matter jurisdiction, Plaintiffs shall have 30 days (i.e., until April 20, 2020) to file a response. See LRCiv 12.1(b). The Secretary may file a reply within 7 days of receipt of the response. (3) As for Plaintiffs' pending motion for a preliminary injunction (Doc. 22 ), the Secretary shall have until April 20, 2020 to file a response [see attached Order for details]. Signed by Judge Dominic W Lanza on 3/13/20. (MAW) (Entered: 03/13/2020)
30 MOTION to Dismiss Case by Katie Hobbs. (Karlson, Kara) (Entered: 03/20/2020)
31 MOTION for Leave to File Supplemental Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Preliminary Injunction by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Attachments: # 1 Text of Proposed Order)(Callais, Amanda) (Entered: 04/14/2020)
32 *Filed at Doc. 35 pursuant to text−only order Doc. 34 −− LODGED Proposed Supplemental Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Preliminary Injunction re: 31 MOTION for Leave to File Supplemental Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Preliminary Injunction . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Callais, Amanda) *Modified on 4/15/2020 (WLP). (Entered: 04/14/2020)
33 *Declaration of John Devaney in Support of 35 Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Preliminary Injunction Filed by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Attachments: # 1 Exhibit 1 to Declaration of John Devaney, # 2 Exhibit 2 to Declaration of John Devaney, # 3 Exhibit 3 to Declaration of John Devaney, # 4 Exhibit 4 to Declaration of John Devaney, # 5 Exhibit 5 to Declaration of John Devaney, # 6 Exhibit 6 to Declaration of John Devaney, # 7 Exhibit 7 to Declaration of John Devaney, # 8 Exhibit 8 to Declaration of John Devaney, # 9 Exhibit 9 to Declaration of John Devaney, # 10 Exhibit 10 to Declaration of John Devaney, # 11 Exhibit 11 to Declaration of John Devaney, # 12 Exhibit 12 to Declaration of John Devaney, # 13 Exhibit 13 to Declaration of John Devaney, # 14 Exhibit 14 to Declaration of John Devaney, # 15 Exhibit 15 to Declaration of John Devaney, # 16 Exhibit 16 to Declaration of John Devaney, # 17 Exhibit 17 to Declaration of John Devaney, # 18 Exhibit 18 to Declaration of John Devaney, # 19 Exhibit 19 to Declaration of John Devaney, # 20 Exhibit 20 to Declaration of John Devaney, # 21 Exhibit 21 to Declaration of John Devaney, # 22 Exhibit 22 to Declaration of John Devaney, # 23 Exhibit 23 to Declaration of John Devaney, # 24 Exhibit 24 to Declaration of John Devaney, # 25 Exhibit 25 to Declaration of John Devaney, # 26 Exhibit 26 to Declaration of John Devaney, # 27 Exhibit 27 to Declaration of John Devaney, # 28 Exhibit 28 to Declaration of John Devaney, # 29 Exhibit 29 to Declaration of John Devaney, # 30 Exhibit 30 to Declaration of John Devaney, # 31 Exhibit 31 to Declaration of John Devaney, # 32 Exhibit 32 to Declaration of John Devaney, # 33 Exhibit 33 to Declaration of John Devaney, # 34 Exhibit 34 to Declaration of John Devaney, # 35 Exhibit 35 to Declaration of John Devaney, # 36 Exhibit 36 to Declaration of John Devaney, # 37 Exhibit 37 to Declaration of John Devaney)(Callais, Amanda) *Modified from lodged to filed per Order 34 ; NEF regenerated on 4/15/2020 (WLP)/(SCH). (Entered: 04/14/2020)
34 ORDER: IT IS ORDERED that Plaintiffs' unopposed motion for leave to file a supplemental memorandum (Doc. 31 ) is granted. The Clerk of Court shall file the supplemental memorandum, which is lodged at Doc. 32, and the supporting documents lodged at Doc. 33. The deadline for Defendants to respond to the motion for preliminary injunction is extended to April 27, 2020, and the response may exceed the page limit by up to 12 pages, if necessary. No separate response to the supplemental memorandum will be permitted. Ordered by Judge Dominic W Lanza on 4/15/20. This

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is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 04/15/2020)
35 Supplemental MEMORANDUM of Points and Authorities in Support of 22 MOTION for Preliminary Injunction by Plaintiffs Shelby Aguallo, Priorities USA, Voto Latino Foundation. (WLP) (Entered: 04/15/2020)
36 RESPONSE in Opposition re: 30 MOTION to Dismiss Case filed by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Callais, Amanda) (Entered: 04/20/2020)
37 First MOTION for Extension of Time Seven−Day Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction and Supplemental Memorandum by Katie Hobbs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Wilson, Linley) (Entered: 04/23/2020)
38 ORDER: IT IS ORDERED that the Arizona Secretary of State's unopposed motion for extension of time (Doc. 37 ) is granted. The Secretary's response shall be filed on or before May 4, 2020. Ordered by Judge Dominic W Lanza on 4/23/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 04/23/2020)
39 NOTICE re: Joint Notice as to Available Dates for Hearing by Priorities USA, Voto Latino Foundation . (Danneman, Alexis) (Entered: 04/27/2020)
40 *WITHDRAWN pursuant to Doc. 41 − REPLY re: 30 MOTION to Dismiss Case Arizona Secretary of State's Reply in Support of Motion to Dismiss Plaintiff's Second Amended Complaint by Defendant Katie Hobbs. (Wilson, Linley) *Modified on 4/28/2020 (WLP). (Entered: 04/27/2020)
41 *REPLY to Response to Motion re: 30 MOTION to Dismiss Case and NOTICE of Withdrawal re: 40 filed by Katie Hobbs. (Attachments: # 1 Exhibit Arizona Secretary of State's Reply in Support of Motion to Dismiss Plaintiffs' Second Amended Complaint)(Wilson, Linley) *Modified text on 4/27/2020 (SLQ). (Entered: 04/27/2020)
42 ORDER: The parties' joint notice (Doc. 39 ) states that the parties are available for a hearing on May 21, 2020 and further states that "the parties are conferring to discuss whether an evidentiary hearing is necessary" and "whether a telephonic or video−conferenced oral argument or hearing would be feasible." Accordingly, IT IS ORDERED that a hearing is set for May 21, 2020 at 9:30 a.m. (Arizona time) regarding 22 MOTION for Preliminary Injunction and 30 MOTION to Dismiss. For the time being, this will be set as a telephonic motion hearing. If the parties wish to convert it to an evidentiary hearing and/or pursue video−conferencing options, they shall alert the Court as soon as practicable. Counsel are directed to call (866) 390−1828; Access Code: 9667260 five minutes before the scheduled hearing. Counsel are advised that speaker phones or cell phones are not permitted. Ordered by Judge Dominic W Lanza on 4/29/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 04/29/2020)
43 RESPONSE to Motion re: 22 MOTION for Preliminary Injunction Arizona Secretary of State's Response in Opposition to Motion for Preliminary Injunction filed by Katie Hobbs. (Wilson, Linley) (Entered: 05/04/2020)
44 DECLARATION of Linley Wilson re: 43 Response to Motion Declaration of Linley Wilson in Support of Response in Opposition to Motion for Preliminary Injunction by Defendant Katie Hobbs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Wilson, Linley) (Entered: 05/04/2020)
45 First MOTION for Extension of Time Extension of time by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Attachments: # 1 Text of Proposed Order)(Danneman, Alexis) (Entered: 05/11/2020)
46 ORDER: IT IS ORDERED that Plaintiffs' unopposed motion for a one−day extension of time (Doc. 45 ) is granted. The deadline for Plaintiffs to file a reply in support of their motion for preliminary injunction and supplemental memorandum is extended to May 12, 2020. Ordered by Judge Dominic W Lanza on 5/11/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 05/11/2020)

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47 REPLY to Response to Motion re: 22 MOTION for Preliminary Injunction filed by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Danneman, Alexis) (Entered: 05/12/2020)
48 DECLARATION of John Devaney re: 47 Reply to Response to Motion by Plaintiffs Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Attachments: # 1 Exhibit A to Declaration of John Devaney, # 2 Exhibit B to Declaration of John Devaney, # 3 Exhibit C to Declaration of John Devaney)(Danneman, Alexis) (Entered: 05/12/2020)
49 ORDER: A hearing has been set for 9:30 a.m. on May 21, 2020. (Doc. 42 .) Several weeks ago, the parties filed a notice explaining that they were in the process of meeting and conferring about the precise nature of that hearing. (Doc. 39 .) Accordingly, the parties are ordered to file an updated joint notice concerning those matters by May 15, 2020. The updated notice should address (1) whether the hearing will include the presentation of evidence, (2) the parties' positions on whether the hearing should be held telephonically, via video−conference, or in some other fashion, (3) how much time should be allotted for the hearing, and (4) any other matters the parties wish to raise. The parties are advised that, if they wish to proceed via video−conference, the hearing may need to be rescheduled due to the limited availability of video−conferencing equipment at the court. Ordered by Judge Dominic W Lanza on 5/13/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 05/13/2020)
50 NOTICE re: as to May 21, 2020 Hearing by Shelby Aguallo, Priorities USA, Voto Latino Foundation . (Danneman, Alexis) (Entered: 05/14/2020)
51 ORDER: The Court has reviewed the parties' Notice/Stipulation Regarding May 21, 2020 Hearing (Doc. 50 ), which requests the hearing be held by video teleconference (VTC) on the scheduled hearing date of May 21, 2020. However, the VTC equipment is not available. Therefore, the hearing set on May 21, 2020, at 9:30 a.m. shall be held telephonically. Counsel are directed to the Courts April 29, 2020 Order (Doc. 42) for the call−in information. Ordered by Judge Dominic W Lanza on 5/15/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 05/15/2020)
52 ORDER: The Court has received inquiries from media representatives who wish to listen to the May 21, 2020, motion hearing telephonically. Although the usual rule is that federal district courts may not broadcast their proceedings, the Executive Committee of the Judicial Conference recently issued a guidance document that "approve[s] a temporary exception to the policy to allow a judge to authorize the use of teleconference technology to provide the public and the media audio access to court proceedings while public access to federal courthouses generally, or with respect to a particular district, is restricted due to health and safety concerns during the Coronavirus Disease (COVID−19) pandemic." Given this development, public access to the May 21, 2020 hearing telephonically will be permitted. Those seeking access are directed to call (866) 390−1828; Access Code: 9667260 at least five minutes before the scheduled hearing. Participants are reminded that audiotaping the proceedings is prohibited. Ordered by Judge Dominic W Lanza on 5/20/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 05/20/2020)
53 MOTION postpone hearing by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Attachments: # 1 Text of Proposed Order)(Danneman, Alexis) (Entered: 05/20/2020)
54 ORDER: IT IS ORDERED that the parties' joint motion (Doc. 53 ) is granted. The hearing set on May 21, 2020 is vacated. The parties shall file a status report by June 4, 2020. Ordered by Judge Dominic W Lanza on 5/21/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 05/21/2020)
55 *STATUS REPORT and Request for Extension of Time to Finalize Settlement by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Attachments: # 1 Text of Proposed Order)(Callais, Amanda) *Modified on 6/5/2020 (WLP). (Entered: 06/04/2020)

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06/05/2020
06/18/2020 06/19/2020

56 ORDER that the parties' request for extension of time (Doc. 55 ) is granted. The parties shall be given two additional weeks, until June 18, 2020, to finalize the settlement agreement. The parties shall update the Court on the status of the settlement on that date. ORDERED by Judge Dominic W. Lanza on 6/05/2020. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (ESG) (Entered: 06/05/2020)
57 NOTICE of Settlement by Shelby Aguallo, Priorities USA, Voto Latino Foundation. (Attachments: # 1 Exhibit A−Settlement Agreement)(Callais, Amanda) (Entered: 06/18/2020)
58 ORDER − The Court having received notice that the parties have entered into a final settlement agreement, under which Plaintiffs have dismissed their claims with prejudice (Doc. 57 ), IT IS ORDERED that all claims in the above−captioned case are dismissed with prejudice, with each party bearing its own costs and attorneys' fees. IT IS FURTHER ORDERED that any hearings and deadlines are vacated, and that any pending motions, including those at Docs. 22 and 30 , are denied as moot. Signed by Judge Dominic W Lanza on 6/19/2020. (WLP) (Entered: 06/19/2020)

 
 Case 2:19-cv-05685-DWL Document 41 Filed 04/27/20 Page 1 of 3

1

Mark Brnovich Attorney General

2 Linley Wilson (027040)
3 Kara Karlson (029407)

4 Dustin Romney (034728) 2005 North Central Avenue

5 Phoenix, AZ 85004-1592

6

Telephone (602) 542-4951 Facsimile (602) 542-4385

7 kara.karlson@azag.gov linley.wilson@azag.gov
8 adminlaw@azag.gov

9 Mary R. O’Grady (011434)

10

Emma J. Cone-Roddy (034285) OSBORN MALEDON, P.A.

11

2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2793

12

(602)640-9000 mogrady@omlaw.com

13 econe-roddy@omlaw.com

14

Attorneys for Defendant Arizona Secretary of State Katie Hobbs

15 UNITED STATES DISTRICT COURT
16 FOR THE DISTRICT OF ARIZONA
17

18 Voto Latino, Inc., et al,

19 Plaintiffs,
20

v. 21

22

Katie Hobbs, in her official capacity as Arizona Secretary of State,

23 Defendant.
24

No: 2:19-cv-05685-DWL
NOTICE OF WITHDRAWAL AND REFILING OF ARIZONA SECRETARY OF STATE’S REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT

25

Arizona Secretary of State hereby files this notice of withdrawal and re-filing of

26 the Secretary’s reply in support of motion to dismiss Plaintiffs’ second amended

27 complaint. The reply filed at 2:41 p.m. today was formatted incorrectly; the Secretary is

28

1

Case 2:19-cv-05685-DWL Document 41 Filed 04/27/20 Page 2 of 3

1 filing simultaneously with this notice the reply that is formatted correctly. Undersigned

2 counsel apologizes to the Court and opposing counsel for this mistake.

3

RESPECTFULLY SUBMITTED this 27th day of April, 2020.

4

5

MARK BRNOVICH ATTORNEY GENERAL

6

/s/ Linley Wilson

7

Linley Wilson (027040)

8

Kara Karlson (029407)

Dustin Romney (034728)

9

2005 North Central Avenue

10

Phoenix, AZ 85004-1592 (602) 542-4951

11 OSBORN MALEDON, PA
12

13

Mary R. O’Grady (011434)

Emma J. Cone-Roddy (034285)

14

OSBORN MALEDON, P.A.

15

2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012–2793

16

(602) 640-9000

17

Attorneys for Defendant Arizona

18

Secretary of State Katie Hobbs

19

20

21

22

23

24

25

26

27

28

2

Case 2:19-cv-05685-DWL Document 41 Filed 04/27/20 Page 3 of 3

1

CERTIFICATE OF SERVICE

2 The foregoing was e-filed with the Clerk of the Federal Court for the District of Arizona using the CM/ECF System on April 27, 2020.
3

4 Copy emailed this same day to:

5 Alexis E. Danneman

PERKINS COIE LLP 6 2901 North Central Avenue, Suite 2000

7 Phoenix, Arizona 85012-2788 adanneman@perkinscoie.com
8

9

Amanda R. Callais Christina A. Ford

10 John M. Devaney K’Shaani O. Smith
11 PERKINS COIE LLP

12 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
13 acallais@perkinscoie.com

14

christinaford@perkinscoie.com jdevaney@perkinscoie.com

15 kshaanismith@perkinscoie.com

16 /s/ Susan Peterson

17

18

19

20

21

22

23

24

25

26

27

28

3

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 1 of 13

1

Mark Brnovich Attorney General

2 Linley Wilson (027040)
3 Kara Karlson (029407)

4 Dustin Romney (034728) 2005 North Central Avenue

5 Phoenix, AZ 85004-1592

6

Telephone (602) 542-4951 Facsimile (602) 542-4385

7 kara.karlson@azag.gov linley.wilson@azag.gov
8 adminlaw@azag.gov

9 Mary R. O’Grady (011434)

10

Emma J. Cone-Roddy (034285) OSBORN MALEDON, P.A.

11

2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2793

12

(602)640-9000 mogrady@omlaw.com

13 econe-roddy@omlaw.com

14

Attorneys for Defendant Arizona Secretary of State Katie Hobbs

15 UNITED STATES DISTRICT COURT
16 FOR THE DISTRICT OF ARIZONA
17

18 Voto Latino, Inc., et al,

19 Plaintiffs,
20

v. 21

22

Katie Hobbs, in her official capacity as Arizona Secretary of State,

23 Defendant.
24

No: 2:19-cv-05685-DWL
ARIZONA SECRETARY OF STATE’S REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT

25

The Arizona law that Plaintiffs allege is unconstitutional––A.R.S. § 16–548(A)––

26 has existed for 23 years. See 1997 Ariz. Legis. Serv. 2nd Spec. Sess. Ch. 5 (S.B. 1003).

27 This statute plainly and simply requires ballots to be “received by the county recorder or

28 other officer in charge of elections or deposited at any polling place in the county no later

1

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 2 of 13

1 than 7:00 p.m. on election day.” A.R.S. § 16–548(A) (“Election Day Deadline”).

2 Plaintiffs do not contest that the State must impose a deadline for receiving ballots; they

3 simply prefer a later deadline that would require elections officials to accept any ballots

4 that are postmarked and received up to, “at a minimum, five business days” after an

5 election. (Doc. 21 at 25.) In support of their claim that the Election Day Deadline

6 imposes an undue burden on the right to vote and amounts to a denial of procedural due

7 process,1 Plaintiffs note that in 2018, “more than 3,000 ballots” were rejected as late.

8 (Id. at ¶ 2.) But this number represents less than 1% of all ballots cast in that election

9 (see id. at ¶ 23 [noting that “over 1.9 million voters voted by mail” in the 2018 election]).

10 It is undisputed that over 99% of all ballots in Arizona arrive by Election Day to be

11 counted. (See Doc. 30 at 4.)

12

As discussed in the Secretary’s motion to dismiss, the organizational plaintiffs––

13 Voto Latino and Priorities USA––lack standing to challenge the Election Day Deadline,

14 under either an associational standing or organizational standing theory. (See Doc. 30 at

15 4–7.) Plaintiffs defend only an organizational standing theory (Doc. 36 at 10–12 & n.1

16 [disavowing any claim of associational standing]), but their arguments do not

17 demonstrate a frustration of their missions or a diversion of their resources in mitigating

18 the alleged effects of the Election Day Deadline. Indeed, the organizational plaintiffs

19 would still educate voters about any ballot deadline––even if it is the one Plaintiffs

20 propose––because voter education is core to their missions. (See Doc. 21 at ¶ 17 [Voto

21 Latino “educates voters, among other things, on when to cast their mail ballots”], ¶ 18

22 [Priorities USA “works to help educate, mobilize, and turn out voters”].)

23

Plaintiffs attempt to paint this lawsuit as one that involves the disenfranchisement

24 of Hispanic, Latino, Native American, and rural voters. (See Doc. 36 at 11.) Not so.

25 The Election Day Deadline applies to all voters, and it is well-established that generally-

26 applicable election regulations do not violate the Constitution simply because they may

27

28

1 Plaintiffs mistakenly assert that their Second Amended Complaint alleges an Equal Protection violation. (Compare Doc. 21 with Doc. 36 at 6.)

2

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 3 of 13

1 incidentally impact some voters more than others. See Crawford v. Marion Cty. Election

2 Bd., 553 U.S. 181, 198-200 (2008) (plurality op.) (upholding identification requirement

3 to vote even though some voters would have a more difficult time managing “life’s

4 vagaries” to obtain the required identification or go through a special process to cast a

5 provisional ballot); McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802,

6 810-11 (1969) (“Constitutional safeguards are not . . . offended simply because some

7 [voters] . . . find voting more convenient than appellants.”). Thus, even taking Plaintiffs’

8 allegations as true, their claims fail as a matter of law. The motion to dismiss should be

9 granted.

10

ARGUMENT

11 I. 12

Organizational Plaintiffs Lack Standing To Challenge The Election Day Deadline

13

As noted above, Plaintiffs Voto Latino and Priorities USA lack standing to

14 challenge the Election Day Deadline under an organizational standing theory, which

15 requires these Plaintiffs to show: “(1) frustration of [their] organizational mission[s]; and

16 (2) diversion of [their] resources” to mitigate the effects of the challenged law. Smith v.

17 Pac. Props. and Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004). Plaintiffs must show

18 that they would have “suffered some other injury” if they had not “diverted resources to

19 counteracting the problem.” La Asociacion de Trabajadores de Lake Forest v. Lake

20 Forest, 624 F.3d 1083, 1088 (9th Cir. 2010).

21

Here, Voto Latino repeats its vague contention that it will have to “expend and

22 divert additional funds and resources that it would otherwise spend on its efforts to

23 accomplish its mission in other states or its own registration efforts in Arizona” as a

24 result of the Election Day Deadline. (Doc. 36 at 10 [quoting Doc. 21 at ¶ 17].)

25 Likewise, Priorities USA asserts that the Election Day Deadline frustrates its mission by

26 “burden[ing] and disenfranchis[ing] the voters Priorities supports through its work and

27 contributions in Arizona.” (Doc. 36 at 11 [quoting Doc. 21 at ¶ 18].) These assertions

28 are too vague and conclusory to show that Voto Latino and Priorities USA have

3

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 4 of 13

1 organizational standing. Plaintiffs cite Nat’l Council of La Raza v. Cegavske, 800 F.3d

2 1032, 1040 (9th Cir. 2015), for the proposition that organizational standing can be

3 “broadly alleged” (Doc. 36 at 11), but in Cegavske, the allegations were much more

4 concrete and specific. In Cegavske, the plaintiffs alleged that they would spend “fewer

5 resources on voter registration drives in communities where DHHS clients should be

6 offered voter registration opportunities at DHHS offices” and that “[b]ut for defendant’s

7 violations[,]” the plaintiffs “would be able to allocate substantial resources to other

8 activities central to [their] mission[s].” 800 F.3d at 1040. Accordingly, the Ninth Circuit

9 concluded in Cegavske that the complaint “clearly allege[d] that Plaintiffs changed their

10 behavior as a result of [the] alleged violation” of the law. Id. The same cannot be said

11 here. Neither Voto Latino nor Priorities USA have alleged any resources they would

12 have allocated to other activities “but for” the Election Day Deadline.

13

Plaintiffs’ reliance on El Rescate Legal Servs., Inc. v. Exec. Office of Immigration

14 Review, 959 F.2d 742, 748 (9th Cir. 1991) (Doc. 36 at 12), is also misplaced. There, the

15 Ninth Circuit relied on Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982),

16 where the Supreme Court held that where the defendants’ “practices have perceptibly

17 impaired [the organizational plaintiff’s] ability to provide [the services it was formed to

18 provide] … there can be no question that the organization suffered injury in fact.” See El

19 Rescate, 959 F.2d at 748 (quoting Havens, 455 U.S. at 379). In El Rescate, the

20 organizations “were established to assist Central American refugee clients, most of

21 whom are unable to understand English, in their efforts to obtain asylum and withholding

22 of deportation in immigration court proceedings.” 959 F.2d at 748. The defendant’s

23 policy at issue was “not to interpret many portions of immigration court hearings,” id. at

24 745, and thus, the Ninth Circuit held that the policy frustrated the goals of the

25 organizations and required them to “expend resources in representing clients they

26 otherwise would spend in other ways[,]” which was “enough to establish standing.” Id.

27 Here, Election Day Deadline has not impaired Voto Latino or Priorities USA from

28 providing any services or expending resources they would not otherwise provide.

4

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 5 of 13

1

Simply put, Voto Latino and Priorities USA have not alleged a frustration of their

2 organizational missions or diversion of resources as a result of the Election Day

3 Deadline. And even though the Secretary has not challenged the voter’s standing to

4 bring this lawsuit, this Court should nonetheless dismiss the organizational Plaintiffs for

5 lack of standing. See We Are Am./Somos Am., Coal. of Ariz. v. Maricopa Cty. Bd. of

6 Supervisors, 809 F. Supp. 2d 1084, 1091 (D. Ariz. 2011) (stating that the general rule

7 permitting appellate courts to determine whether one plaintiff has standing “does not

8 strictly prohibit a district court, in a multiple plaintiff case … from considering the

9 standing of the other plaintiffs even if it finds that one plaintiff has standing”). Voto

10 Latino and Priorities USA should not be permitted to “effectively piggyback[]” on the

11 voter’s claims here. See id. at 1092 (discussing the “compelling reasons for addressing

12 the standing of all of the remaining plaintiffs”). Moreover, Article III standing “is

13 relevant not only with respect to who may access federal courts initially, but it is also

14 relevant to who may obtain a judgment.” Id. “Therefore, before deciding the precise

15 nature of [any] relief to award herein, necessarily, this court would have to decide the

16 issue of the organizations’ standing.” Id.

17 II. Plaintiffs’ Claims Fail As A Matter of Law

18

Plaintiffs insist that their claims are fact-intensive and require a developed factual

19 record. (Doc. 36 at 13.) But their claims should be dismissed because even taking their

20 allegations as true, the Election Day Deadline is constitutional.

21

A. The Election Day Deadline Is Not An Undue Burden On The Right To

22

Vote

23

Casting a ballot by the Election Day deadline is not burdensome, and the deadline

24 is easily justified by the State’s interests without factual development. The federal

25 Constitution authorizes State legislatures to prescribe the “Times, Places and Manner of

26 holding Elections . . .” US Const. art. I, § 4, cl. 1. States “retain broad authority to

27 structure and regulate elections.” Short v. Brown, 893 F.3d 671, 676 (9th Cir. 2018). As

28 noted in the Secretary’s motion to dismiss (Doc. 30 at 7–8), constitutional challenges to

5

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 6 of 13

1 election regulations are evaluated under the two-part Anderson/Burdick framework. See

2 Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428,

3 434 (1992). Under this framework, courts “must first consider the character and

4 magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate.”

5 Short, 893 F.3d at 676 (quoting Anderson, 460 U.S. at 789). If the asserted injury

6 evidences no burden, there is “no reason to call on the State to justify its practice.” Ariz.

7 Libertarian Party v. Reagan, 798 F.3d 723, 732 n.12 (9th Cir. 2015). Minimal burdens

8 from generally-applicable, even-handed regulations are justified by a State’s important

9 regulatory interests. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).

10

Here, contrary to Plaintiffs’ contention that the Election Day Deadline “poses

11 severe burdens on the right to vote” (Doc. 36 at 15), requiring a ballot to be received by

12 elections officials by 7:00 p.m. on Election Day is, at most, minimal. See Friedman v.

13 Snipes, 345 F. Supp.2d 1356, 1375 (S.D. Fla. 2004) (rejecting the argument that a ballot

14 receipt deadline is subject to strict scrutiny) (citing Burdick, 504 U.S. at 434); Dudum v.

15 Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011) (“We have repeatedly upheld as ‘not severe’

16 restrictions that are generally applicable, even-handed, politically neutral, and … protect

17 the reliability and integrity of the election process.”). As the Secretary discussed in her

18 motion to dismiss, the State’s interests in the Election Day deadline far outweigh the

19 minimal burden that Plaintiffs allege. (Doc. 30 at 13.) The State’s interests include

20 preventing voter confusion, preserving election integrity, promoting voter confidence,

21 and establishing rules for orderly election administration. See Timmons, 520 U.S. at

22 364–65; Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“Confidence in the integrity of our

23 electoral processes is essential to the function of our participatory democracy.”);

24 Crawford, 553 U.S. at 192-97 (recognizing state’s interest in promoting voter confidence

25 and improving and modernizing election administration). States have a substantial

26 interest in regulating their elections through various deadlines, like the deadline

27 challenged here, to ensure that “some sort of order, rather than chaos, is to accompany

28 the democratic processes.” Burdick, 504 U.S. at 433.

6

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 7 of 13

1

Indeed, there is no constitutional right to early voting, see McDonald, 394 U.S. at

2 807–10, and the challenged law here “merely imposes a deadline”––nothing more. See

3 Friedman, 345 F. Supp.2d at 1376 (reasoning that Florida’s ballot-receipt-deadline

4 statute “does not deny the right to vote to a class of persons” and “merely imposes a

5 deadline by which Plaintiffs must return their absentee ballots”); see also Mays v.

6 LaRose, 951 F.3d 775, 791-92 (6th Cir. 2020) (“Ohio’s generally applicable deadline for

7 requesting absentee ballots is constitutional because it imposes only a minimal burden on

8 Plaintiffs’ right to vote” and the state’s interests “justify that burden”) (citing McDonald,

9 394 U.S. at 807–09). Accordingly, Arizona’s Election Day Deadline for receiving

10 ballots is constitutional, even assuming some voters may need to account for slower mail

11 service if they opt to send ballots back to elections officials through the United States

12 Postal Service. See Friedman, 345 F. Supp. 2d at 1377 (“Florida’s 7 p.m. deadline of

13 returning ballots on election day does not disenfranchise a class of voters.”).

14

Plaintiffs suggest that the Ninth Circuit held in Soltysik v. Padilla, 910 F.3d 438

15 (9th Cir. 2018), that it is never appropriate to dismiss a challenge to an election law

16 under Rule 12(b)(6). (Doc. 36 at 13.) Soltysik made no such holding. Rather, when a

17 plaintiff “adequately plead[s] … more than a minimal burden, … further factual

18 development is necessary.” Soltysik, 910 F.3d at 449. Because the burden is minimal

19 here, dismissal is appropriate. See Storer v. Brown, 415 U.S. 724, 728 (1974) (affirming

20 dismissal of challenges to election law); Rubin v. City of Santa Monica, 308 F.3d 1008,

21 1012–13, 1019–20 (9th Cir. 2002) (same). Plaintiffs have not adequately pleaded more

22 than a minimal burden, at best.

23

Plaintiffs also cite Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1024

24 n.2 (9th Cir. 2016), for the proposition that courts should consider “the effects of the

25 restriction on those voters who are actually impacted by the law” to assess “the severity

26 of the burden” (Doc. 36 at 16), but Pub. Integrity All., Inc., does not help them. There,

27 the Ninth Circuit noted that “[r]estrictions that block access to the ballot or impede

28 individual voters or subgroups of voters in exercising their right to vote receive different

7

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 8 of 13

1 treatment from rules establishing an overall, generally applicable electoral system.” Pub.

2 Integrity All., Inc., 836 F.3d at 1024 n.2. The law at issue here is a “generally

3 applicable” deadline that applies to all early ballots. See A.R.S. § 16–548(A). It does

4 not block access to the ballot or impede individual voters or groups in exercising their

5 right to vote.

6

B. The Election Day Deadline Does Not Implicate Procedural Due

7

Process

8

Plaintiffs’ claim that the Election Day Deadline violates voters’ right to

9 procedural due process under the Fourteenth Amendment (Doc. 36 at 18–21) also fails as

10 a matter of law. “The requirements of procedural due process apply only to the

11 deprivation of interests encompassed by the Fourteenth Amendment’s protection of

12 liberty and property.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569

13 (1972). The Election Day Deadline does not deprive anyone of liberty or property.

14

Plaintiffs’ procedural due process claim is governed by the Anderson/Burdick

15 standard. Doc. 30 at 13–15. See Dudum, 640 F.3d at 1106 n.15 (stating that the

16 Supreme Court has addressed First Amendment, Due Process, and Equal Protection

17 claims “collectively using a single analytical framework”) (citing Anderson, 460 U.S. at

18 787 n.7); see also Lemons v. Bradbury, 538 F.3d 1098, 1104–05 (9th Cir. 2008)

19 (rejecting procedural due process challenge to procedures for verifying referendum

20 petition signatures under the Anderson/Burdick test, and reasoning State’s regulatory

21 interests “are sufficient to justify the state’s ‘reasonable, nondiscriminatory

22 restrictions’”) (quoting Burdick, 504 U.S. at 434).

23

As the Secretary noted in the motion to dismiss (Doc. 30 at 15), Arizona law

24 requires every ballot to be accompanied by written instructions making clear to voters

25 that ballots must be delivered to the officer in charge of elections by 7:00 p.m. on

26 Election Day. A.R.S. § 16–547(C). That Arizona law provides this pre-election notice

27 about the deadline to voters refutes Plaintiffs’ allegation that the Election Day Deadline

28 is not a “reliable” or “fair” way of administering voting by mail. (Doc. 21 at ¶ 73.)

8

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 9 of 13

1

Critically, Plaintiffs do not acknowledge A.R.S. § 16–547(C), let alone respond to

2 the Secretary’s argument. (See Doc. 36 at 18–21.) They instead assert that the Election

3 Day Deadline “disenfranchises voters each election because of the absence of post-

4 deprivation notice to voters that their ballot was not counted.” (Doc. 36 at 20.) But

5 voters indisputably have pre-deprivation notice as a matter of law under A.R.S. § 16–

6 547(C) (and post-deprivation notice, as discussed below). The Election Day Deadline is

7 not a secret; to the contrary, voters receive notice of the deadline with every ballot they

8 receive in advance of any election in which they decide to vote early.

9

Plaintiffs argue that their procedural due process claim is not governed by the

10 Anderson/Burdick test, and that the claim should instead be evaluated under Mathews v.

11 Eldridge, 424 U.S. 319, 335 (1976). (Doc. 36 at 18–21.) But as discussed above, the

12 Ninth Circuit has applied the Anderson/Burdick test to both substantive and procedural

13 due process claims. See Dudum, 640 F.3d at 1106 n.15; Lemons, 538 F.3d at 1104–05.

14 Nonetheless, even if Plaintiffs were correct, their claim still fails under Mathews, which

15 requires consideration of three factors: (1) “the private interest that will be affected by

16 the official action;” (2) “the risk of an erroneous deprivation of such interest through the

17 procedures used, and the probable value, if any, of additional or substitute procedural

18 safeguards;” and (3) the government’s interest, “including the function involved and the

19 fiscal and administrative burdens that the additional or substitute procedural requirement

20 would entail.” 424 U.S. at 321.

21

A voter has a liberty interest in the fundamental right to vote because, generally

22 speaking, fundamental rights constitute liberty interests under the Due Process Clause.

23 Burdick, 504 U.S. at 433. Plaintiffs cite a New Hampshire district court decision,

24 Saucedo v. Gardner, 335 F. Supp. 3d 202, 215 (D.N.H. 2018), for their suggestion that

25 “a voter has a sufficient liberty interest” to vote by mail once ‘the State permits voters to

26 vote absentee.’” (Doc. 36 at 20 n.6.) But the Supreme Court has emphasized that “the

27 range of interests protected by procedural due process is not infinite,” Roth, 408 U.S. at

28 570, and has rejected the notion that states must extend absentee voting privileges in a

9

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 10 of 13

1 way that provides “a more convenient method of exercising the franchise[,]” McDonald,

2 394 U.S. at 810–11. Thus, Mathews’ first factor does not weigh in Plaintiffs’ favor.

3

Arizona’s law establishing a deadline by which ballots must be received also does

4 not create a risk of erroneous deprivation of any liberty interest under Mathews’ second

5 factor. In Saucedo, this factor was significant because a voter could comply with all

6 legal requirements to have his/her ballot counted, but untrained election officials could

7 incorrectly declare a mismatched signature. See 355 F. Supp. 3d at 217–220 (providing

8 detailed explanation of uncontroverted evidence showing a relatively high risk that

9 untrained lay people would incorrectly find a mismatched signature and reject a ballot

10 for that reason). Here, in contrast, that voters must decide when to mail their ballots to

11 comply with the deadline––of which they have notice under A.R.S. § 16–547(C)––

12 cannot establish a “deprivation” under Mathews. Notably, the plaintiffs argued in

13 Saucedo that the New Hampshire law at issue violated procedural due process “because

14 it lacks any pre-deprivation process” where voters “receive neither prior notice of, nor an

15 opportunity to cure, a rejection due to a signature mismatch.” 335 F. Supp. 3d at 214.

16 Unlike Saucedo, Arizona voters have “pre-deprivation” notice that, “[i]n order to be

17 valid and counted, the ballot and affidavit must be delivered to the office of the county

18 recorder or other officer in charge of elections or may be deposited at any polling place

19 in the county no later than 7:00 p.m. on election day.” A.R.S. § 16–547(C). This notice

20 obviates any need for “post-deprivation notice” that Plaintiffs argue is lacking. (Doc. 36

21 at 20.)

22

Additionally, voters in Arizona have an opportunity to track the status of their

23 early or provisional ballots via the Secretary’s online voter information portal.2 Thus, a

24 voter has pre-deprivation notice of the deadline and post-deprivation notice of whether

25 2 See https://my.arizona.vote/PortalList.aspx (last visited Apr. 26, 2020). This Court

26

may take judicial notice of the publicly-available information displayed on the online portal. See Daniels-Hall v. Nat. Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010)

27

(taking judicial notice of information on websites of school districts in reviewing district court’s dismissal for failure to state a claim, noting the information “was made publicly

28

available by government entities” and “neither party disputes the authenticity of the websites or the accuracy of the information displayed therein”) (citing Fed. R. Evid. 201).

10

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1 his/her ballot was counted. Plaintiffs’ reliance on Raetzel v. Parks/Bellemont Absentee

2 Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990) (see Doc. 36 at 20–21), is

3 misplaced because in Raetzel, there was an “absence of any procedure which furnishes

4 post-deprivation notice to an individual whose absentee ballot has been disallowed[.]”

5 (Emphasis added.) Mathews’ second factor does not support Plaintiffs.

6

Third, as discussed above, the State has numerous interests that support the

7 Election Day Deadline––preventing voter confusion, preserving election integrity,

8 promoting voter confidence, and establishing rules for orderly election administration.

9 See Lemons, 538 F.3d at 1104 (noting that a state’s interest “in the orderly administration

10 of elections are weighty and undeniable”). The “substitute procedural requirement” that

11 Plaintiffs request here, see Mathews, 424 U.S. at 335, would entail additional

12 administrative burdens requiring election officials to count ballots for up to seven full

13 days after an election. For example, such a procedure would be burdensome for county

14 boards of supervisors, who must comply with statutory deadlines that are triggered after

15 every primary and general election for canvassing election results. See A.R.S. §§ 16–

16 642(A), –645. Thus, the value of Plaintiffs’ substitute procedure “is negligible, and the

17 burden on plaintiffs’ interests from the state’s failure to adopt their proposed procedures

18 is slight at most.” See Lemons, 538 F.3d at 1105.

19

Due process requirements are “flexible and cal[l] for such procedural protections

20 as the particular situation demands[.]” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

21 Arizona has extended more than adequate process to voters to ensure that voters’ ballots

22 are fairly counted.

23

Finally, despite Plaintiffs’ discussion of the current COVID-19 public health crisis

24 (Doc. 36 at 7, 15 18), the circumstances surrounding COVID-19 do not affect the legal

25 analysis of the Secretary’s motion to dismiss.

26 III. Conclusion

27

The Court should dismiss the complaint in its entirety.

28 …

11

Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 12 of 13

1

RESPECTFULLY SUBMITTED this 27th day of April, 2020.

2

3

MARK BRNOVICH ATTORNEY GENERAL

4

/s/ Linley Wilson

5

Linley Wilson (027040)

6

Kara Karlson (029407)

Dustin Romney (034728)

7

2005 North Central Avenue

8

Phoenix, AZ 85004-1592 (602) 542-4951

9 OSBORN MALEDON, PA
10

11

Mary R. O’Grady (011434)

Emma J. Cone-Roddy (034285)

12

OSBORN MALEDON, P.A.

13

2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012–2793

14

(602) 640-9000

15

Attorneys for Defendant Arizona

16

Secretary of State Katie Hobbs

17

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27

28

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Case 2:19-cv-05685-DWL Document 41-1 Filed 04/27/20 Page 13 of 13

1

CERTIFICATE OF SERVICE

2 The foregoing was e-filed with the Clerk of the Federal Court for the District of Arizona using the CM/ECF System on April 27, 2020.
3

4 Copy emailed this same day to:

5 Alexis E. Danneman

PERKINS COIE LLP 6 2901 North Central Avenue, Suite 2000

7 Phoenix, Arizona 85012-2788 adanneman@perkinscoie.com
8

9

Amanda R. Callais Christina A. Ford

10 John M. Devaney K’Shaani O. Smith
11 PERKINS COIE LLP

12 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
13 acallais@perkinscoie.com

14

christinaford@perkinscoie.com jdevaney@perkinscoie.com

15 kshaanismith@perkinscoie.com

16 /s/ Susan Peterson

17

18

19

20

21

22

23

24

25

26

27

28

13

 
 Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 1 of 30

1 Kara Karlson (029407)

2 Linley Wilson (027040)

Dustin Romney (034728) 3 2005 North Central Avenue

4 Phoenix, AZ 85004-1592 Telephone (602) 542-4951

5 kara.karlson@azag.gov

6

linley.wilson@azag.gov dustin.romney@azag.gov

7 adminlaw@azag.gov

8 Mary R. O’Grady (011434) Emma J. Cone-Roddy (034285)
9 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100
10 Phoenix, AZ 85012-2793 (602) 640-9000
11 mogrady@omlaw.com econe-roddy@omlaw.com
12 Attorneys for Defendant
13 Arizona Secretary of State Katie Hobbs

14

UNITED STATES DISTRICT COURT

15

FOR THE DISTRICT OF ARIZONA

16

17 Voto Latino Foundation, et al,

18

Plaintiffs,

19 v.
20 Katie Hobbs, in her official capacity as
21 Arizona Secretary of State,

22

Defendant.

23

No: 2:19-cv-05685-DWL
ARIZONA SECRETARY OF STATE’S RESPONSE IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION AND RESPONSE TO SUPPLEMENTAL MEMORANDUM RELATED TO COVID-19

24

I. INTRODUCTION

25

Plaintiffs ask this Court to enjoin Arizona’s statute that requires ballots submitted

26 by mail to be received by election officials by 7 p.m. on Election Day, A.R.S. § 16–

27 548(A) (“Election Day Deadline”). The gist of Plaintiffs’ argument is that the statute is

28 unconstitutional on its face because it “arbitrarily disenfranchise[s]” voters in Arizona, a

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 2 of 30

1 state where county election officials count millions of ballots cast by mail every cycle.

2 (Doc. 22 at 6.) Not so. Arizona has generously extended mail voting to every eligible

3 voter in the state and offers voters a wide variety of convenient and flexible voting

4 opportunities that enable voters to exercise their right to vote. Against that backdrop,

5 Arizona’s existing Election Day Deadline––which works for more than 99% of all

6 Arizonans who choose to vote by mail––does not impose an unconstitutional burden on

7 the right to vote. Rather, the Election Day Deadline is simply a uniform, state-wide

8 deadline for all ballots to be in the hands of county elections officials for processing.

9

Plaintiffs’ request for a preliminary injunction comes during an election year and

10 in the midst of a global pandemic caused by an infectious disease (“COVID-19”).

11 Instead of the Election Day Deadline––which has existed for over two decades––

12 Plaintiffs want this Court to order the Secretary to create entirely new “instructions for

13 county election officials to accept and tabulate otherwise valid ballots that contain

14 indicia, such as a postmark, identifying them as sent on or before Election Day and

15 arrive at a county recorder’s office within, at a minimum, five business days of Election

16 Day.” (Doc. 22-15 [Proposed Order] at 2.) Because the relief that Plaintiffs seek is

17 extraordinary, Plaintiffs bear a heavy burden of demonstrating that the facts and law

18 clearly favor them.

19

Plaintiffs have failed to satisfy their burden. They attempt to meet their burden

20 through a supplemental memorandum, which is premised on the impact of COVID-19

21 on other states’ recent elections that were imminently approaching as the public health

22 emergency became increasingly more serious and necessitated modifications to election

23 procedures. (See Doc. 32 at 5 [discussing postponement of primary elections in Puerto

24 Rico and other states].) In contrast, the election that Plaintiffs care about in this lawsuit

25 is the November 2020 general election, which will be administered six months from

26 now. (See Doc. 22 at 6 [requesting the Court to enjoin the Election Day Deadline to

27 “protect the rights of Arizona voters in the upcoming November 2020 elections”]; Doc.

28 32 at 3 [same] & 12 [alleging voters “will be disenfranchised in the upcoming 2020

2

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 3 of 30

1 General Election”].) But “it is impossible to predict how the pandemic will play out in

2 the coming weeks and months[.]” Ariz. for Fair Elections, et al. v. Hobbs, No. CV-20-

3 00658-PHX-DWL, 2020 WL 1905747 (D. Ariz. Apr. 17, 2020) (slip op.). Indeed, on

4 April 29, 2020 (after Plaintiffs filed their supplemental memorandum here), Governor

5 Ducey issued Executive Order No. 2020–33, which extended the Governor’s previous

6 stay-at-home order until May 15, 2020, while noting that “Arizona is now more

7 prepared to face the potential for an increase in patients needing treatment for COVID-

8 19” but that government officials “are still learning the extent to which the disease has 9 spread within our state.”1 Moreover, the elections that Plaintiffs discuss were

10 administered under vastly different circumstances than Arizona’s elections. Given the

11 rapidly-evolving nature of the pandemic and the uncertainty surrounding it, a

12 modification of Arizona’s Election Day Deadline for the November 2020 General

13 Election would amount to an “overbroad injunction” that is not “narrowly tailor[ed]” to

14 “specific threatened harms[.]” See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1142 (9th

15 Cir. 2009) (reversing grant of preliminary injunction where the district court “fail[ed] to

16 properly consider the balance of hardships and the public interest” and “enter[ed] an

17 overbroad injunction”).

18

Simply put, the current pandemic neither entitles Plaintiffs to an injunction nor

19 bolsters their claim here that Arizona’s Election Day Deadline is unconstitutional. To

20 the contrary, an unwarranted and significant modification of Arizona’s longstanding

21 statute that establishes a clear deadline by which voters must cast their ballot would

22 undermine voter confidence, cause additional chaos and confusion, and could very well

23 increase the number of disenfranchised voters in the upcoming November 2020 General

24 Election. The balance of equities does not tip in Plaintiffs’ favor and an injunction

25 would not serve the public interest.

26

Plaintiffs’ motion for preliminary injunction should therefore be denied.

27

28

1 See Office of the Governor, Executive Orders, https://azgovernor.gov/executive-orders (last visited May 2, 2020).

3

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 4 of 30

1

II. BACKGROUND

2 A. Arizona’s Statutory Scheme and Legislative History

3

Arizona is a national leader in making voting convenient and accessible for its

4 voters. See Report of Dr. Lonna Atkeson, Ph.D. (“Atkeson Rprt.”), attached as Exhibit

5 A to Declaration of Linley Wilson (“Wilson Decl.”), at ¶¶ 2, 3, 32, and Table 1

6 (comparing Arizona’s vote-by-mail regime to other states). As early as 1991, “[a]ny

7 qualified elector” in Arizona was permitted to “vote by absentee ballot” in “[a]ny

8 election called pursuant to [Arizona] law[]” without having to satisfy any particular

9 criteria. See 1991 Ariz. Legis. Serv., 1st Reg. Sess. Ch. 51 (S.B. 1320) (eliminating the

10 previous statutory requirements that had existed in A.R.S. § 16–541 to allow voters to

11 “vote absentee”). In 1997, the Legislature re-labeled “absentee voting” as “early

12 voting,” while retaining the same broad language in A.R.S. § 16–541 that had applied to

13 absentee voting, therefore permitting any qualified voter to vote by early ballot in any 14 election. Ariz. Laws 1997, 2nd Spec. Sess. Ch. 5 (S.B. 1003).2

15

In the same 1997 Senate Bill, the Legislature added the law that Plaintiffs

16 challenge here––i.e., the requirement that ballots must be received by election officials

17 by the time polls close (7:00 p.m.) on Election Day. Id. Arizona’s Election Day

18 Deadline is nothing new. To the contrary, the deadline has remained exactly the same

19 ever since the statute’s enactment 23 years ago. Compare Ariz. Laws 1997, 2nd Spec. 20 Sess. Ch. 5 (S.B. 1003), with A.R.S. § 16–548(A).3 And the Election Day Deadline is

21 2 The bill that prompted these changes, among others to Arizona’s election laws, was

22

aimed at “chang[ing] and clarif[ying] many of the statutes concerning elections, including … early voting by mail.” Ariz. Jud. Comm. Min., S.B. 1003 (Nov. 13, 1997).

23

The bill passed with overwhelming support. See Senate Third Reading Vote, S.B. 1003, 43rd Leg., 2nd Spec. Sess. (Nov. 13, 1997) (29-0-1 Senate vote); House Third Reading

24 Vote, S.B. 1003, 43rd Leg. 2nd Spec. Sess. (Nov. 14, 1997) (57-0-3 House vote).

25

3 Although this precise deadline was not enacted until 1997, absentee voters were permitted to vote “either by mail or in person” during “the time period for absentee

26

voting”––well before 1991 when absentee voting was extended to any qualified elector. See Ariz. Att’y Gen. Op. I84–151, 1984 WL 61350 (citing A.R.S. § 16–548 (1984)). In

27

1984, the Attorney General noted in an opinion that “the practice of allowing absentee voters to present themselves in person at the County Recorder’s office and to cast ballots

28 while there has been common in Arizona for years and has never been challenged.” Id.

4

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 5 of 30

1 not unique to Arizona; it is akin to the laws of at least seventeen other states. (See Doc.

2 30 [Secretary’s Motion to Dismiss] at 9–10.) In fact, approximately 75% of states “have

3 an Election Day or earlier receipt deadline” for voters who vote by mail. Atkeson Rprt.

4 at ¶ 14 (emphasis added); see also id., Table 1.

5

Additionally, as Plaintiffs note, Arizona voters may “choose to automatically

6 receive a mail ballot for every election.” (Doc. 21 at ¶ 24 [citing A.R.S. § 16-544(A)].)

7 Early voters are guaranteed to be mailed a ballot at least twenty-four to twenty-seven

8 days before Election Day. A.R.S. §§ 16-541, –542(A), (C). Leading up to Election

9 Day, voters may fill out the ballot in the comfort of their home and deliver it themselves,

10 or through the mail, to the county recorder, a designated ballot drop-box or drop-off

11 location, or any polling place in the county where the voter resides. A.R.S. § 16–548(A).

12 It costs nothing for a voter to return the ballot by mail; that cost is borne by the counties.

13 A.R.S. § 16–542(C) (“The county recorder or other officer in charge of elections shall

14 mail the early ballot and the envelope for its return postage prepaid to the address 15 provided by the requesting elector…”).4

16

The Election Day Deadline is communicated to all early voters in advance of

17 every election. Indeed, Arizona law requires the printed instructions that accompany all

18 early ballots to include the following unambiguous instruction: “In order to be valid and

19 counted, the ballot and affidavit must be delivered to the office of the county recorder or

20 other officer in charge of elections or may be deposited at any polling place in the

21 county no later than 7:00 p.m. on election day.” A.R.S. § 16–547(C). And the ballot is

22 not the only place this information is provided to voters; it is broadly publicized in voter

23 education materials prepared by the Secretary and the Citizens Clean Elections

24 Commission. See Atkeson Rprt. at ¶ 7; Wilson Decl., Exhibit (“Ex.”) C at ¶¶ 4-5. That

25 the Election Day Deadline is communicated to voters in all of these forms refutes

26 Plaintiffs’ allegation that Arizona has “fail[ed] to provide clear guidance” to voters

27 (Doc. 22 at 6) about how to comply with the deadline.

28 4 Only Arizona and fifteen other states pay for postage. Atkeson Rprt. Table 1. 5

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 6 of 30

1

Plaintiffs’ own arguments confirm the success of early voting in Arizona. (See

2 Doc. 22 at 7 [“Of the millions of Arizonans who receive mail ballots, approximately

3 90% return them through the mail instead of delivering them in person.”].)

4 Significantly, “very few ballots actually come in late.” Atkeson Rprt. at ¶¶ 8, 65. In

5 2018, for example, rejected ballots represented less than 1%––just .13%––of all counted

6 ballots. Id. In 2016, even fewer––only .09%––of all counted ballots were rejected as 7 late. Id.5 Given that over 99% of voters cast timely ballots, Arizona’s thorough and

8 proactive efforts to communicate the deadline have been successful, making voters well

9 aware of the Election Day Deadline, contrary to Plaintiffs’ allegations. See id.

10 B. Plaintiffs’ Request For A Mandatory Injunction

11

Notably, Plaintiffs’ proposal to extend the ballot receipt deadline and require

12 early ballots to be “postmarked” by Election Day may even increase the number of late

13 rejected ballots because this change would likely affect voter behavior. Id. at ¶¶ 11–12,

14 58, Section X (explaining that, based on an analysis of late ballot rejection rates in

15 California, “which has a very similar election ecosystem to Arizona … [c]hanging the

16 process may have the effect of shifting more voters to return their ballot either on or

17 much closer to Election Day, which may actually increase disenfranchisement

18 levels[.]”). Also, whether a ballot is postmarked by the United States Postal Service

19 (“USPS”) is not within the control of a voter, county officials, or the Secretary, and any

20 “inconsistent use of post-marking could result in the disparate treatment of voters[.]”

21 Wilson Decl., Ex. B at ¶ 5; see also Atkeson Rprt. at ¶ 92 (observing that under

22 Plaintiffs’ proposed change, voters would “have to rely on the post office to correctly

23 postmark their ballot” and “[w]henever the USPS is unreliable, so is the Election Day

24 postmark”).

25

The uncertainty surrounding COVID-19––including the impact of COVID-19 on

26 USPS procedures (see Doc. 32 at 8–9)––further weighs in favor of denying Plaintiffs’

27 5 As Dr. Atkeson explains, these percentages “include[] all late rejected ballots arriving

28

after the deadline––even those with missing or unreadable postmarks and those that arrive after a 5 business-day post-election window.” Atkeson Rprt. at ¶ 8.

6

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 7 of 30

1 motion, not granting it. Moreover, Plaintiffs’ proposal to require elections officials to

2 accept ballots for up to five business days after Election Day would also be burdensome

3 and problematic to county boards of supervisors, who must comply with statutory

4 deadlines that are triggered after every primary and general election for canvassing

5 election results. See A.R.S. §§ 16–642(A), –645; see also Wilson Decl., Ex. B at ¶ 10;

6 Atkeson Rprt. at ¶ 103 (opining that if the deadline were extended to five business days

7 after Election Day, “[i]t is likely that the [S]tate would have to reconfigure and redesign

8 their current canvassing deadlines”).

9

Extending the ballot receipt deadline past Election Day would also collide with

10 the signature curing process available to voters under Arizona law, which allows voters

11 up to five business days after a primary, general, or special election to verify a

12 mismatched signature. See A.R.S. § 16–550(A); Atkeson Rprt. at ¶ 105. (See also Doc.

13 23–2 [Dr. McCool’s report discussing the signature curing process].) This means, as a

14 practical matter, that any voters who wait to send their ballot on Election Day and have a

15 signature mismatch likely would not qualify for the curing process, which is occurring

16 during the same time frame. “Thus, a process that is meant to enfranchise more voters

17 on one hand, may actually lead to greater disenfranchisement because more voters wait

18 until very late in the process jeopardizing their opportunity to resolve any problems with

19 their ballot.” Atkeson Rprt. at ¶ 105; see also Wilson Decl. Ex. B. at ¶ 7 (Yuma County

20 Recorder expressing concern that the proposed postmark rule “would appear to limit, if

21 not entirely preclude, voters from using this cure period, even though it has been widely

22 publicized as a right all early voters have”).

23

As further discussed below, Plaintiffs are not entitled to the extraordinary relief

24 they seek.

25

...

26

…

27

…

28

…

7

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 8 of 30

1

III. ARGUMENT

2

Plaintiffs seeking a preliminary injunction have the burden to show: 1) that they

3 are likely to succeed on the merits; 2) that they are likely to suffer irreparable harm in

4 the absence of preliminary relief; 3) that the balance of equities tips in their favor; and 4)

5 that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555

6 U.S. 7, 20 (2008). The balance of the equities and public interest factors merge when

7 the State is a party. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.

8 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

9

Preliminary injunctions are typically tools to maintain the status quo between the

10 parties until determination of the action on the merits. When a plaintiff seeks to change

11 the status quo, as in this case, the plaintiff’s request is for a mandatory injunction and the

12 plaintiff’s burden is much heavier. Marlyn Nutraceuticals, Inc. v. Mucos Pharma

13 GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009). A mandatory injunction “‘goes

14 well beyond simply maintaining the status quo [p]endente lite [and] is particularly

15 disfavored.’” Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.1980) (citation

16 omitted). A mandatory injunction is not issued in doubtful cases, Marlyn

17 Nutraceuticals, Inc., 571 F.3d at 879, and should not be granted “unless the facts and

18 law clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. I.N.S., 795 F.2d 1434,

19 1441 (9th Cir. 1986).

20 A. Plaintiffs Are Not Likely To Succeed On The Merits

21

Because Plaintiffs advance “a preelection, facial attack” on the constitutionality

22 of the Election Day Deadline, “seeking relief that would invalidate the statute in all its

23 applications, they bear a heavy burden of persuasion.” See Crawford v. Marion Cty.

24 Election Bd., 553 U.S. 181, 200 (2008) (plurality opinion). Plaintiffs are not likely to

25 satisfy this burden to succeed on the merits of their claims alleged in the Second

26 Amended Complaint. The Election Day Deadline is not an undue burden on the right to

27 vote (Count 1) and does not deprive voters of procedural due process (Count 2).

28

8

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 9 of 30

1

1. The Election Day Deadline Does Not Burden the Right to Vote And Is Easily Justified By The State’s Interests

2

a. The Anderson/Burdick Framework

3

Casting a ballot by the Election Day deadline is not burdensome, and the deadline

4 is easily justified by the State’s interests. The federal Constitution authorizes State

5 legislatures to prescribe the “Times, Places and Manner of holding Elections . . .” U.S.

6 Const. art. I, § 4, cl. 1. States “retain broad authority to structure and regulate

7 elections.” Short v. Brown, 893 F.3d 671, 676 (9th Cir. 2018). But because election

8 regulations “inevitably affect” the right to vote, constitutional challenges are judged

9 under the two-part Anderson/Burdick framework. See Anderson v. Celebrezze, 460 U.S.

10 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under this framework,

11 courts “must first consider the character and magnitude of the asserted injury to the

12 rights . . . that the plaintiff seeks to vindicate.” Short, 893 F.3d at 676 (quoting

13 Anderson, 460 U.S. at 789); see also Pub. Integrity All. v. City of Tucson, 836 F.3d

14 1019, 1025 (9th Cir. 2016) (en banc) (noting circuit case law “has not always accurately

15 described the Burdick test” and emphasizing that “Burdick calls for neither rational basis

16 review nor burden shifting”). If the asserted injury evidences no burden, there is “no

17 reason to call on the State to justify its practice.” Ariz. Libertarian Party v. Reagan, 798

18 F.3d 723, 732 n.12 (9th Cir. 2015). Minimal burdens from generally applicable and

19 even-handed regulations are justified by a State’s important regulatory interests.

20 Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).

21

Far short of an “extensive restriction,” a reasonable, generally-applicable election

22 deadline—the quintessential time regulation—does not impose a meaningful burden on

23 the right to vote. See Rosario v. Rockefeller, 410 U.S. 752, 758 (1973) (upholding

24 constitutionality of deadline to register with a political party to participate in primary

25 election); Barilla v. Ervin, 886 F.2d 1514, 1524 (9th Cir. 1989) (upholding pre-election

26 deadline to reregister after moving within a county), overruled on other grounds by

27 Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1989); Isabel v. Reagan,

28

9

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 10 of 30

1 394 F. Supp. 3d 966, 982 (D. Ariz. 2019) (“[The Plaintiff] had ample opportunity to

2 register to vote and therefore wasn’t disenfranchised. Rosario and Barilla are

3 controlling.”). Specifically, deadlines requiring absentee or early ballots to be received

4 by a certain time on Election Day present, at most, only a “light imposition” on the right

5 to vote. See Friedman v. Snipes, 345 F. Supp. 2d 1356, 1377 (S.D. Fla. 2004) (relying

6 on Rosario and Burdick to deny preliminary injunction against statute requiring ballots

7 to be received by elections officials by 7 p.m. on Election Day).

8

b. Plaintiffs Have Not Established A Burden On The Right To Vote,

Let Alone A Severe Burden

9

10

Here, the generally-applicable Election Day Deadline does not impose an

11 unconstitutional burden on the right to vote. As a preliminary matter, the alleged burden

12 on the right to vote must be considered in the broader context in which the challenged

13 law operates in Arizona. See McDonald v. Bd. of Election Comm’rs of Chicago, 394

14 U.S. 802, 810-11 (1969) (reasoning that “appellants’ challenge to the allegedly

15 unconstitutional incompleteness of Illinois’ absentee voting provisions cannot be

16 sustained” while emphasizing Illinois’ “willingness to go further than many States”).

17 Plaintiffs’ Second Amended Complaint presents an incorrect and “bleak picture of

18 Arizona election administration,” which “has emphasized voter convenience” and has

19 expanded multiple voting opportunities for its citizens over time. Atkeson Rprt. at ¶ 32.

20

When a voter requests an early ballot, Arizona law mandates that county

21 elections mail the ballot to the voter at least twenty-four to twenty-seven days before an

22 election. A.R.S. § 16-542(C). By comparison, other states on average only allow early

23 voting during a 22-day period. Atkeson Rprt. at ¶ 44. And as noted above, Arizona law

24 requires that early ballots mailed to voters be accompanied by an envelope with “return

25 postage prepaid”, A.R.S. § 16–542(C), which eliminates any hassle or responsibility on

26 the voter’s part to ensure that the voter’s local post office correctly processes the voter’s

27 ballot. Arizona was an early adopter of vote centers, is only one of 10 states to offer

28 ballot drop boxes, and allows any voter the option of being placed on a Permanent Early

10

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 11 of 30

1 Voting List (“PEVL”). Atkeson Rprt., Section V (summarizing “Election

2 Administration in Arizona”). Thus, Arizona is a “state leader in their [vote by mail]

3 programs” and a “full-service state” that generally provides more voting opportunities

4 than most other states. Id. at ¶¶ 32, 50 & Table 1. The simple Election Day Deadline at

5 issue here has existed in Arizona for over 23 years while Arizona has increasingly

6 expanded voters’ options, making voting easier and more convenient over time.

7

Plaintiffs contend that the Election Day Deadline has a “disproportionate effect”

8 on Hispanic, Latino, and Native American Voters, and voters in rural areas. (Doc. 22 at

9 11–14.) It is well-established, however, that generally-applicable election regulations do

10 not violate the Constitution simply because they may incidentally impact some voters

11 more than others. See Crawford, 553 U.S. at 198-200 (upholding identification

12 requirement to vote even though some voters would have a more difficult time

13 managing “life’s vagaries” to obtain the required identification or go through a special

14 process to cast a provisional ballot); McDonald, 394 U.S. at 810-11 (“Constitutional

15 safeguards are not . . . offended simply because some [voters] . . . find voting more

16 convenient than appellants.”). The right to vote is not at stake here, in light of Arizona’s

17 statutory scheme as a whole and the numerous early and in-person voting opportunities

18 that have been extended to voters. See McDonald, 394 U.S. at 807–10 (reasoning

19 Illinois’ Election Code does not “operate as a whole” to deny appellants the exercise of

20 the franchise, and emphasizing, “we cannot lightly assume, with nothing in the record to

21 support such an assumption, that Illinois has in fact precluded appellants from voting”).

22

Indeed, there is no constitutional right to early voting, see id., and the challenged

23 law here “merely imposes a deadline”––nothing more. See Friedman, 345 F. Supp.2d at

24 1376 (reasoning that Florida’s ballot-receipt-deadline statute “does not deny the right to

25 vote to a class of persons” and “merely imposes a deadline by which Plaintiffs must

26 return their absentee ballots”); see also Mays v. LaRose, 951 F.3d 775, 791-92 (6th Cir.

27 2020) (“Ohio’s generally applicable deadline for requesting absentee ballots is

28 constitutional because it imposes only a minimal burden on Plaintiffs’ right to vote” and

11

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 12 of 30

1 the state’s interests “justify that burden”) (citing McDonald, 394 U.S. at 807–09).

2 Accordingly, Arizona’s Election Day Deadline for receiving ballots is constitutional,

3 even assuming some voters may prefer more time to send them back to elections

4 officials. See Friedman, 345 F. Supp. 2d at 1377 (“Like the election laws in Burdick and

5 Rosario, Florida’s 7 p.m. deadline of returning ballots on election day does not

6 disenfranchise a class of voters.”); see also Walgren v. Bd. of Selectmen of Town of

7 Amherst, Mass., 373 F. Supp. 624, 634 (D. Mass. 1974), aff’d sub nom. Walgren v. Bd.

8 of Selectmen of Town of Amherst, 519 F.2d 1364 (1st Cir. 1975) (rejecting challenge by

9 college students to town policy establishing a January date of election while college

10 students were largely on vacation and requiring absentee ballots to be received by the

11 closing of polls on election day).

12

The logic of Rosario and Barilla controls here. See Friedman, 345 F. Supp. 2d at

13 1377 (relying on Rosario to deny preliminary injunction against statute requiring ballots

14 to be received by elections officials by 7 p.m. on election day). In Rosario, the Supreme

15 Court upheld a New York statute imposing a deadline to register to vote a full eight

16 months prior to a presidential primary and eleven months prior to a nonpresidential

17 primary. Rosario, 410 U.S. at 760. The petitioners in Rosario could have registered

18 before the deadline but failed to do so. Id. at 755. As a result, they were not eligible to

19 vote in the subsequent primary election. Id. Nonetheless, the Court upheld the statute

20 because it “merely imposed a time deadline” on the petitioners’ ability to participate in

21 the election. Id. at 752. The Court concluded: “if [petitioners’] plight can be

22 characterized as disenfranchisement at all, it was not caused by [the law], but by their

23 own failure to take timely steps to effect their own enrollment.” Id. at 758.

24

Similarly, in Barilla, the Ninth Circuit upheld a state’s deadline for voter

25 registration set at twenty days before Election Day. 886 F.2d at 1516. Plaintiffs had

26 been denied the ability to vote because their mailed-in registrations were received after,

27 but mailed before, the deadline. Id. at 1517. The Ninth Circuit rejected the argument

28 that strict scrutiny should apply and instead followed the Supreme Court’s lead in

12

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1 Rosario that the Anderson/Burdick balancing test is the appropriate standard for review

2 of election deadlines. See id. at 1523-25. “What is at issue here is not a ‘ban’ on

3 plaintiffs’ right to vote, [as would be required for strict scrutiny to apply] but rather, a

4 ‘time limitation’ on when plaintiffs had to act in order to be able to vote.” Id. at 1525.

5 The deadline “easily” satisfied that test. Id.

6

Although not about a deadline, the Supreme Court’s analysis of Hawaii’s bar on

7 write-in voting is also informative. Burdick, 504 U.S. at 441. The Court relied heavily

8 on the issue of timing, often couching the petitioner’s case as one for an elimination of

9 deadlines to make the ballot. Id. at 437 (characterizing—after citing to Rosario—

10 petitioner’s “limited” interest as the equivalent of wanting “instantaneous access to the

11 ballot” (quoting Storer v. Brown, 415 U.S. 724, 736 (1974)). The Court also wrote that

12 reasonable election regulations require voters “to act in a timely fashion if they wish to

13 express their views in the voting booth.” Id. at 438. Finally, the Court concluded, “the

14 State’s interests outweigh petitioner’s limited interest in waiting until the eleventh hour

15 to choose his preferred candidate.” Id. at 439. It is also noteworthy that the burdens

16 faced by the petitioner in Burdick were greater than the burdens at issue here. Id. at 443

17 (noting that meeting the deadline to gather signatures 150 days before the primary

18 election “requires considerable organization at an early stage in the election, a condition

19 difficult for many small parties to meet”) (Kennedy, J., dissenting). The Court also

20 found unavailing the argument that voters who discovered new information late in the

21 process, causing them to change their support to another candidate, would be unable to

22 change their minds because of the early deadline. See id. at 445 (Kennedy, J.,

23 dissenting).

24

Plaintiffs emphasize that ballots postmarked by Election Day should be counted

25 because this comports with common experience in other contexts and voters’ reasonable

26 expectations. (Doc. 22 at 4.) The Constitution does not demand states to measure such

27 expectations (by unknown standards) and try to accommodate such expectations. In any

28 event, the mere fact that postmark procedures are available in other contexts does not

13

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1 mean that voters expect that rules unrelated to voting regulate voting procedures.

2 Indeed, Plaintiffs’ conjecture is at odds with the facts; over 99% of Arizona voters who

3 vote by mail use one of the many available methods to return their ballot by election

4 officials by 7:00 p.m. on Election Day. Atkeson Rprt. at ¶ 8. As Dr. Atkeson further

5 observes, “[p]eople are used to deadlines and successfully conform to them all of the

6 time.” Id. at ¶ 57 (collecting examples in other contexts, such as payment due dates for

7 mortgages and credit card bills, where postmark rules do not govern).

8

Plaintiffs cannot succeed in their facial attack of Arizona’s generally-applicable

9 time regulation, the kind explicitly authorized by the Constitution, which requires early

10 ballots to be received by 7 p.m. on Election Day. If this imposes a burden on Plaintiffs’

11 right to vote at all, it is no heavier than the burdens imposed by the deadlines or other

12 regulations at issue in the cases cited above. The identification requirement in

13 Crawford; the complete denial of absentee voting in McDonald; the ballot access

14 requirement in Burdick; and, the registration deadlines in Rosario and Barilla, presented

15 much heavier, or at least equal, burdens as Arizona’s Election Day Deadline. And

16 Plaintiffs’ facial challenge most certainly fails when taking into account the plethora of

17 options available to voters, the fact that early voting begins a full 27 days before an

18 election, and Arizona’s other laws and procedures that make voting easy and convenient

19 for voters (such as prepaid postage and ballot drop boxes). See Atkeson Rprt., Sections

20 V & VI.

21

c. Plaintiffs’ Particular Burden Theories Fail

22

As noted, Plaintiffs claim that the Election Day Deadline places a particular

23 burden on rural, Hispanic, and Native American voters and that this is material to

24 measuring the burden under Anderson/Burdick. (Doc. 22 at 12.) But the Supreme Court

25 in Crawford and McDonald rejected the argument that there is a special hardship

26 exemption to generally-applicable election regulations in a facial challenge. In

27 McDonald, if absentee voting was not constitutionally required to accommodate, for

28 example, the special burdens of a single working mother who cannot afford child care,

14

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1 394 U.S. at 810 n. 8, then the Election Day Deadline is surely constitutional, even if

2 some rural voters have slower mail service (particularly when other options to deliver

3 ballots are still available). Cf. Mays, 951 F.3d at 792 (reasoning that “electors who fail

4 to vote early cannot blame Ohio law for their inability to vote; they must blame ‘their

5 own failure to take timely steps to effect their enrollment’”) (citing Rosario, 410 U.S. at

6 758). Similarly, the Crawford Court did not find a significant burden in requiring

7 identification to vote—which required an in-person trip to obtain—or having to cast a

8 provisional ballot in person, even when particularly more burdensome for some groups,

9 such as seniors. 553 U.S. at 200. Any alleged extra burden on rural voters is also not

10 constitutionally significant, given that “voters have many avenues available to them to

11 vote.” Atkeson Rprt. at ¶ 50. Any difficulties associated with rural living or post office

12 procedures are part of “life’s vagaries” and do not constitute a meaningful burden on the

13 right to vote. Crawford, 553 U.S. at 197. (See also Doc. 23-2 at 23–24 [Dr. McCool

14 stating that mail timelines present “the vagaries of a ‘live deadline’” when attempting to

15 identify a precise date of mailing to ensure that the mail reaches the recipient in time].)

16

If the deadlines in Rosario, cutting off the ability to vote a full eleven months

17 before Election Day for failure to register, required only minimal review, then the

18 Election Day deadline here cannot possibly warrant anything more than the same

19 minimal review. This is so even if the deadline means voters must mail their ballots

20 before Election Day—if they choose to vote by mail. If a voter misses the Election Day

21 Deadline, it is because of the voter’s “own failure to take timely steps” to ensure their

22 vote is counted. Rosario, 410 U.S. at 758.

23

The hardships faced by the plaintiff in Burdick were arguably even greater, yet

24 that Court described the burden as “slight,” Burdick, 504 U.S. at 439, or “limited.” Id.

25 If a requirement for voters to organize 150 days before the election for their candidate to

26 make the ballot satisfies constitutional requirements, surely an Election Day Deadline in

27 a system where voters have multiple options regarding how and when to cast their vote

28 is also constitutional. Ballots are mailed to voters twenty-seven days before the election,

15

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1 leaving voters plenty of time to cast their vote. If Plaintiffs wish to wait until the final

2 week before Election Day to learn more information, a “limited interest,” id., they are

3 free to vote in person or deliver their ballot in-person up until 7 p.m. on Election Day—

4 options unavailable to the plaintiff in Burdick.

5

Further underscoring the insignificance of the alleged burden here, the data

6 reflects that “[c]ounties offer a variety of methods for voting that are consistent with

7 their demographic and geographic constraints” and “[a]ll counties provide expanded

8 opportunities to vote consistent with their population needs.” Atkeson Rprt. at ¶ 51 &

9 Table 2. Plaintiffs’ expert, Dr. Ansolabehere, opines that “the rate of late rejected

10 absentee [sic] ballots is much lower in Maricopa County than in the rest of Arizona,”

11 and concludes that “the rate of late rejected absentees [sic] is much higher for Hispanic

12 and Native American populations than for Whites.” Ansolabehere Rprt. at ¶¶ 8, 11. But

13 there are two flaws in his analysis. First, as Dr. Atkeson explains, “[g]iven the small

14 sample size, there is not enough statistical power to apply conventional statistics and

15 models” to the data. Atkeson Rprt. at ¶ 76. Second, Dr. Ansolabehere’s Maricopa

16 County data is incomplete, as he did not include 162 of 748 total precincts in Maricopa

17 County in his data set, i.e., “over one in every five precincts (or 21.7%)” that existed in

18 Maricopa County in 2018. Atkeson Rprt. at ¶ 86. This renders Dr. Ansolabehere’s

19 analysis unreliable and invalid. Id. at ¶ 88.

20

In any event––putting aside the small sample size and incomplete data––Dr.

21 Atkeson concluded that the data from 12 of Arizona’s 15 counties suggested that

22 “smaller turnout counties have, on average, slightly higher rejection rates than bigger

23 turnout counties (.29% compared to .15%).” Atkeson Rprt. at ¶¶ 76–78. Similarly, rural

24 counties “averaged three tenths of” less than 1% of late rejected ballots (.30%), “while

25 urban counties average .12%,” for a difference of .18%. Atkeson Rprt. at ¶ 79. These

26 are incredibly small numbers. The data does not support Plaintiffs’ claim that rural

27 voters are particularly burdened by the Election Day Deadline. And although Plaintiffs

28 assert that Hispanics and Native Americans encounter more difficulties getting ballots in

16

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1 on time because of Arizona’s “long history of discrimination” (Doc. 22 at 12), county

2 resources “for both voters and election administrators” and the reliability of mail service

3 are more likely factors that contribute to the slight urban v. rural differences in the small 4 data set.6 Atkeson Rprt. at ¶ 79. Thus, the rate of rejection for late ballots is not based

5 on race; instead, “turnout and urbanicity, which are highly related, are the biggest factors

6 in understanding rejection rates.” Id. at ¶ 85.

7

Whatever the explanation for county-specific rejection rates, the statewide data

8 confirms that the Election Day Deadline is not too high a bar for over 99% of voters to

9 return their ballots in on time. Atkeson Rprt. at ¶ 8. Nearly all Arizonans are capable of

10 meeting the Election Day Deadline and thus, just as in Barilla, the Election Day

11 Deadline is not a severe burden on the right to vote. Rather, it is a constitutionally valid

12 time regulation establishing when people must act in order to vote. See Barilla, 886

13 F.2d at 1525. Given the generous twenty-seven day early voting period, “no excuse”

14 early voting, and voters’ ability to be included on the PEVL, see A.R.S. § 16–544, and

15 the many options regarding how to cast a vote, the burden on voters because of the

16 Election Day Deadline is very minimal.

17

d. Plaintiffs’ Proposal Does Not Eliminate The Alleged Burden

18

Moreover, under Plaintiffs proposal (to count ballots that have a postmark and are

19 received within 5 business days), some, and perhaps even more, ballots would still arrive

20 too late to be counted. See Atkeson Rprt. at ¶ 58 (explaining that Dr. Ansolabehere’s

21 6 Plaintiffs repeatedly cite the Ninth Circuit’s divided opinion in Democratic Nat’l

22

Comm. et al. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (“DNC v. Hobbs”), to support their allegations of discrimination and other alleged facts in their motion for preliminary

23

injunction. (See Doc. 22, at 2–8.) As Plaintiffs note (id. at 8), the mandate is currently stayed pending the Arizona Attorney General’s petition for writ of certiorari filed in the

24

U.S. Supreme Court on April 27, 2020. Moreover, DNC v. Hobbs analyzed claims regarding Arizona’s out-of-precinct policies and a statute that criminalizes the collection

25

and delivery of another person’s ballot under Section 2 of the Voting Rights Act. 948 F.3d at 998. The DNC v. Hobbs court did not address the constitutionality of the

26

Election Day Deadline at issue here, or any other statutory deadline in Arizona’s election code. In fact, DNC v. Hobbs court did not even reach the plaintiffs’ First and

27

Fourteenth Amendment claims in light of the court’s holdings under the VRA. See DNC v. Hobbs, 948 F.3d at 999 (“We do not reach DNC’s First and Fourteenth Amendment

28

claims.”). Plaintiffs’ heavy reliance on DNC v. Hobbs in this litigation is therefore misplaced.

17

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 18 of 30

1 report “does not show that changing the deadline will actually increase the number of

2 voters who get their ballots in on time” and that “changes in voter behavior due to

3 changes in the law could actually increase the number of voters disenfranchised because

4 of the policy change”); see also id., Section X (discussing analysis of California

5 rejection rates and how Plaintiffs’ proposed changes might influence voters). Inevitably,

6 there will “always be some [vote by mail] ballots that go uncounted because they are

7 late.” Id. at ¶ 90. Plaintiffs have yet to articulate a principled reason why their proposed

8 deadline would not violate the Constitution as to those ballots that will continue to arrive

9 late.

10

Additionally, some ballots that are rejected as late are cast after Election Day,

11 which would not be counted under the existing deadline or under Plaintiffs’ proposal.

12 But it is impossible to disentangle those rejected ballots from the ballots that Plaintiffs

13 argue should be counted under their proposed deadline. Atkeson Rprt. at ¶ 99

14 (cautioning that the data “do[es] not consider whether or not the ballot was actually

15 voted by Election Day”). In other words, it would be a mistake to assume that all of the

16 ballots received by county elections officials within 5 business days of an election were 17 legally voted on Election Day in the first place. See id.7

18

e. Any Incidental Burden Is Justified By The State’s Interests

19

The State’s interests easily satisfy the balancing test required by the

20 Anderson/Burdick framework. Those interests include finality, promoting voter

21 confidence, orderly election administration, and “protecting the integrity, fairness, and

22 efficiency of [] ballots and election processes.” Timmons, 520 U.S. at 364–65; see also

23

24

7 Further undermining the validity of Dr. Ansolabehere’s analysis, the data regarding late rejected ballots reflects information from only six counties––Graham, Greenlee,

25

Cochise, Coconino, Pima, and Santa Cruz Counties––which represents “only 22% of Arizona voters” and the time range of the data was not consistent. See Atkeson Rprt. at

26

¶ 97. Dr. Atkeson therefore re-created the data using only 2018 information provided by these six counties. Id. at ¶¶ 97–99 & Figures 4 & 5. Dr. Atkeson’s analysis “indicate[s]

27

that the average ballot arrives within 5.2 days,” but the spike in the data around the third day “is largely due to” Pima County, where 58% of the late rejected ballots arrived

28

within 3 days. Id. at ¶ 99. Ultimately, “the data are incomplete and may not reflect state averages.” Id.

18

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1 Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“Confidence in the integrity of our electoral

2 processes is essential to the function of our participatory democracy.”); Crawford, 553

3 U.S. at 192-97 (recognizing state’s interest in promoting voter confidence and

4 improving and modernizing election administration). See Wilson Decl., Ex. B. at ¶ 12

5 (Yuma County Recorder stating, “I am genuinely concerned about the suspicions that

6 could arise, and what impact that would have on elections in my county, should a post-

7 mark rule be introduced”). Indeed, a deadline for receiving ballots “is important

8 because at some point, the election has to end so a winner can be determined.” Atkeson

9 Rprt. at ¶ 93. Having that deadline fall on Election Day is imminently reasonable, and

10 also necessary to avoid a cascade of other problems.

11

Moreover, given the current uncertainty and instability surrounding COVID-19,

12 the State has an even stronger interest during these extraordinary times in adhering to the

13 Election Day Deadline to preserve public confidence and the stability and integrity of its

14 upcoming elections. See Crawford, 553 U.S. at 197 (“[P]ublic confidence in the

15 integrity of the electoral process has independent significance, because it encourages

16 citizen participation in the democratic process.”); cf. Michael Morley, Election

17 Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67 Emory

18 L.J. 545, 593 (2018) (states have “important interests in adhering to voter registration

19 deadlines in the wake of election emergencies to allow them to focus their resources on

20 recovering from the emergency, ensuring the accuracy of voter registrations they have

21 received, relocating polling places as needed, ensuring adequate staffing for the voting

22 period, and otherwise minimizing the likelihood of errors or delays in voting.”).

23

The State has important regulatory reasons to require all ballots be received by

24 Election Day so that counting can begin on time, with a known universe of voters, to

25 dedicate resources to curing ballots, see A.R.S. § 16–550(A), and ensuring that election

26 results will be reported in a timely manner. Arizona’s twenty-day window to certify

27 elections does not alter this analysis, because there is not extra leisure time built into the

28 process. Elections officials across the state work nearly around the clock to ensure that

19

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1 every ballot or voter is properly verified, every vote tabulated, every spoiled ballot

2 duplicated, and that all the other myriad of processes that take place prior to canvass are

3 completed within specific statutory time frames. See A.R.S. § 16–135(D) (requiring

4 provisional ballots to be counted “[w]ithin ten calendar days after a general election”);

5 § 16–642(A) (20-day canvass deadline), –645(B) (10-day canvass deadline after primary

6 election); Atkeson Rprt. at ¶¶ 101–03 (discussing the Early Ballot Board and Provisional

7 Ballot Board processes); Wilson Decl., Ex. B at ¶ 8 (same). Requiring county election

8 officials to accept ballots up to five business days after an election––i.e., a full seven

9 days after the November 3, 2020 general election––would place a significant burden on

10 elections officials because they will have to verify and count greater numbers of ballots

11 while working to help voters cure their ballots. See Wilson Decl., Ex. B at ¶ 7. It is

12 unknown whether those processes could be conducted in parallel at this time. See id.

13 This would add additional (as of yet undetermined) steps in a delicate framework that

14 has been refined to accurately process millions of votes in a safe, secure, efficient

15 manner. The State’s interests in enforcing the Election Day Deadline easily justify the

16 limited burden imposed on voters.

17

In short, Plaintiffs cannot show that the Election Day Deadline is

18 unconstitutional. Enacting a generally-applicable deadline by which county officials

19 must receive ballots simply “proscribes the mechanics of voting” for early voters in

20 Arizona. See Friedman, 345 F. Supp. 2d at 1376. “As the United States Supreme Court

21 noted in Burdick, a state has a substantial interest in regulating their elections in order to

22 make the elections ‘fair and honest’ and to ensure that ‘some sort of order, rather than

23 chaos, is to accompany the democratic processes.’” Id. (citing Burdick, 504 U.S. at

24 433). The Election Day Deadline has existed for 23 years while Arizona has steadily

25 and consistently increased voting options for Arizonans. At the same time, elections

26 officials on the ground, who actually accept ballots, see A.R.S. § 16–548(A), are tasked

27 with ensuring that elections are safely and properly conducted. Voters have multiple

28 options for how and when to cast their votes, as long as all voted ballots are received by

20

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1 election officials by the times polls close on Election Day. Very few Arizona voters

2 miss the Election Day deadline. Neither the facts nor the law “clearly favor” Plaintiffs

3 on Count 1. See Comm. of Cent. Am. Refugees, 795 F.2d at 1441; see also Soules v.

4 Kauaians for Nukoli Campaign Comm., 849 F.2d 1176, 1182–83 (9th Cir. 1988) (while

5 courts have a duty to ensure that elections “conform to constitutional standards,” courts

6 must “undertake that duty with a clear-eyed and pragmatic sense of the special dangers

7 of excessive judicial interference with the electoral process”).

8

2. The Election Day Deadline Does Not Implicate Procedural Due Process

9

For similar reasons, Plaintiffs also cannot succeed on the merits of their

10 procedural due process claim. See Lemons v. Bradbury, 538 F.3d 1098, 1104–05 (9th

11 Cir. 2008) (rejecting procedural due process challenge to procedures for verifying

12 referendum petition signatures, reasoning the State’s regulatory interests “are sufficient

13 to justify the state’s ‘reasonable, nondiscriminatory restrictions’”) (quoting Burdick, 504

14 U.S. at 434).

15

Under traditional procedural due process principles, there must be an initial

16 showing that a plaintiff has been deprived of a liberty interest. Am. Mfrs. Mut. Ins. Co.

17 v. Sullivan, 526 U.S. 40, 59 (1999) (“The first inquiry in every due process challenge is

18 whether the plaintiff has been deprived of a protected interest in ‘property’ or

19 ‘liberty.’”). Courts then consider 1) the private interest that will be affected by the

20 official action; 2) the risk of an erroneous deprivation of such interest through the

21 procedures used and the probable value, if any, of additional safeguards; and 3) the

22 government’s interest, including the burden of additional safeguards. Mathews v.

23 Eldridge, 424 U.S. 319, 335 (1976). The first Mathews factor is essentially the same as

24 the first Anderson/Burdick inquiry. As already described, the burden on Plaintiffs’ right

25 to vote (or “liberty interest”) is minimal.

26

The second factor, risk of erroneous deprivation of the interest through the

27 procedures used, makes little sense because, conceding that voters whose ballots are

28 received late are deprived of the ability to vote, this does not equate to an erroneous

21

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 22 of 30

1 deprivation because voters do not have an unlimited right to cast a vote at any time they

2 wish or to otherwise ignore generally applicable election time regulations. Burdick, 504

3 U.S. at 433. In any event, as noted above, Arizona law mandates that every early ballot

4 issued include printed instructions notifying voters that ballots must be delivered to the

5 officer in charge of elections by 7:00 p.m. on Election Day. A.R.S. § 16-547(C). This

6 pre-election notice mitigates any feigned risk of an “erroneous deprivation.”

7 Furthermore, as discussed in the Secretary’s reply in support of the motion to dismiss

8 (Doc. 41), voters in Arizona have an opportunity to track the status of their early or 9 provisional ballots via the Secretary’s online voter information portal.8 Therefore, a

10 voter has “pre-deprivation notice” of the deadline and “post-deprivation” notice of

11 whether his/her ballot was counted.

12

Finally, the third factor is also essentially the same as the second part of the

13 Anderson/Burdick framework. Plaintiffs are not actually asking for additional

14 procedural safeguards but simply for a different procedure altogether—one that would

15 continue to, as Plaintiffs put it, “disenfranchise”: early voters whose ballots arrive after

16 the 5 business-day deadline; early voters who mail their ballot on or around Election

17 Day but then lose any opportunity to cure a mismatched signature; and voters who have

18 the misfortune of receiving no postmark or an unreadable postmark on their ballot. See

19 supra, Sections II(B), III(A)(1)(d). The value of Plaintiffs’ substitute procedure is

20 nonexistent, and “the burden on plaintiffs’ interests from the state’s failure to adopt their

21 proposed procedures is slight at most.” See Lemons, 538 F.3d at 1105. Thus, Plaintiffs’

22 procedural due process claim is meritless.

23

Accordingly, the facts and the law do not “clearly favor” Plaintiffs on Count 2.

24 See Comm. of Cent. Am. Refugees, 795 F.2d at 1441.

25 B. Plaintiffs Have Not Demonstrated Irreparable Harm

26

Because Plaintiffs’ likelihood of success on the merits is extremely low, their

27 threshold requirement for showing irreparable harm is heightened. Save Our Sonoran,

28 8 See https://my.arizona.vote/PortalList.aspx (last visited Apr. 26, 2020). 22

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 23 of 30

1 Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir. 2005). “Speculative injury cannot be the

2 basis for a finding of irreparable harm.” In re Excel Innovations, Inc., 502 F.3d 1086,

3 1098 (9th Cir. 2007). Plaintiffs cannot satisfy this heightened threshold for several

4 reasons, even considering their supplemental memorandum premised on COVID-19.

5

First, Plaintiffs’ claim of irreparable injury allegedly caused by the Election Day

6 Deadline is not only speculative; it is completely within their control to avoid.

7 Preliminary relief from this Court is not necessary to protect the sole voter who is a

8 Plaintiff in this lawsuit. Plaintiff has voluntarily elected to vote by mail; and Plaintiff’s

9 own efforts are all that are required to ensure that election officials receive her ballot by

10 the Election Day Deadline. More than 99% of Arizona voters who choose to cast early

11 ballots manage to comply with the Election Day Deadline. Plaintiff should be able to do

12 so too without relief from this Court. See Morley, Election Emergencies, 67 Emory L.J.

13 at 592 (observing that “[w]hen voters have an extended period of time to engage in an

14 activity, such as registering to vote or engaging in early voting, the Constitution

15 generally does not entitle them to deadline extensions due to election emergencies”).

16

Second, the Organizational Plaintiffs’ claims of irreparable harm also fall flat.

17 For starters, economic injury is generally insufficient to sustain preliminary relief

18 (assuming, arguendo, that they are spending money differently due to the challenged

19 law). See Sampson v. Murray, 415 U.S. 61, 90 (1974); Greater Birmingham Ministries

20 v. State, 161 F. Supp. 3d 1104, 1117 (N.D. Ala. 2016) (“[A] loss of money and time . . .

21 is generally not irreparable harm in the preliminary injunction context.”). More

22 importantly, there are numerous election regulations with which voters must comply in

23 order to have their vote counted. If an organization wishes for certain voters’ ballots to

24 be counted, the organization must educate those voters on how to comply with election

25 regulations. No irreparable injury could be claimed for resources diverted to educating

26 voters on any constitutional election regulation. Therefore, once again, Plaintiffs’

27 failure to show any likelihood of success on the merits dooms their claim of irreparable

28 injury.

23

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1

Third, although COVID-19 is relevant to the irreparable harm factor as a general

2 matter, Plaintiffs’ claim here that the Election Day Deadline is unconstitutional is not

3 related to any increased hardship associated with the pandemic. While the pandemic is a

4 serious problem and creates significant challenges in an election year, it does not justify

5 rewriting Arizona’s 23-year-old statute that requires that election officials receive all

6 ballots by the time the polls close on Election Day. Cf. Ariz. for Fair Elections, et al. v.

7 Hobbs, No. CV-20-00658-PHX-DWL, 2020 WL 1905747 (D. Ariz. Apr. 17, 2020) (slip

8 op.) (“Although Plaintiffs are correct that the COVID-19 pandemic constitutes an

9 ‘extraordinary circumstance[]’ that has resulted in ‘profound’ dislocations [], it is also a

10 profound thing for a federal court to rewrite state election laws that have been in place

11 since the 1910s.”).

12

Plaintiffs rely on recent election events in Wisconsin that were affected by

13 COVID-19 to show irreparable harm here. (See Doc. 32 at 13.) But Plaintiffs’ reliance

14 is misplaced. There, COVID-19 caused an explosion in the number of requests for

15 absentee ballots—as of the date the district court enjoined Wisconsin’s Election Day

16 ballot return law, 1,119,439 absentee ballots had been requested. This was around five

17 times more than in any prior spring election in Wisconsin. Democratic Nat’l Committee

18 v. Bostelmann, — F. Supp.3d—, 2020 WL 1638374, at *4 (W.D. Wis. Apr. 2, 2020).

19 Wisconsin election administrators were unable to keep up with this increased demand

20 for absentee voting. See id. (“In light of these unprecedented numbers, at least some

21 clerks are having trouble processing the applications for absentee ballots.”). Elections

22 officials represented in court that there was “no practical way” that some voters who

23 timely requested an absentee ballot would have time “to receive, vote and return their

24 ballot by Election Day.” Id. By the time the district court ruled, the statewide elections

25 commissioners informed the court that they did not oppose temporarily transforming the

26 Election Day receipt deadline into a postmark deadline. Id. at *16. The court found in

27 light of the unprecedented use of absentee ballots, “even the most diligent voter may be

28 unable to return his or her ballot in time to be counted.” Id. at *17.

24

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 25 of 30

1

But Arizona is not Wisconsin. A five-fold increase in the use of mail ballots is

2 literally impossible here, where “nearly 80% of Arizonans [] vote by mail.” (Doc. 21 at

3 ¶ 1.) “Arizona is almost effectively a full VBM state” and “has the experience and

4 preparedness to shift their election from (mostly) VBM to nearly all VBM, and to

5 account for an increase in VBM ballots.” Atkeson Rprt. at ¶ 115. Arizona elections

6 officials will thus not be caught off guard by a sudden and unexpected surge in the use

7 of early voting caused by COVID-19. To the contrary, “Arizona is one of only a few

8 states that is in a strong position to ensure both the safety of its voters, and a fair VBM

9 system in the November 2020 election.” Id. at ¶ 124. Arizona “has good voter

10 registration list maintenance,” offers voters “many ways to cast a mail ballot other than

11 mailing it in,” provides a sophisticated online ballot tracking system, has “the

12 organization of staff necessary to qualify and count VBM [ballots] quickly,” and has

13 granted counties with statutory authority to establish emergency voting centers, see

14 A.R.S. § 16–411(B)(5). See Atkeson Rprt. Section XIV; see also Danielle Root,

15 Wisconsin Primary Shows Why States Must Prepare Their Elections for the Coronavirus

16 (Apr. 27, 2020) (stating that “Wisconsin’s experience should be a warning to states

17 across the country” and recognizing that Arizona, Montana, and Oregon are “relatively

18 well-situated for conducting elections during the pandemic, as they have most of the 19 necessary policies and infrastructure to support mass reliance on vote by mail”).9

20

Pointedly, Arizona has already conducted a presidential preference election

21 during the COVID-19 pandemic, and Plaintiffs do not present any evidence that the

22 problems in Wisconsin arose here. (See Doc. 32 at 7 n.2 (noting that Arizona “reported

23 an increase in voting by mail during its March 2020 PPE, with 90 percent of all ballots 24 being cast by mail”).10 And Arizona does not hold another statewide election for

25 9 Available at:

26

https://www.americanprogress.org/issues/democracy/news/2020/04/27/484013/wisconsi n-primary-shows-states-must-prepare-elections-coronavirus/ (last visited May 4, 2020).

27 10 See also MacKinley Lutes-Adlhoch & Jonmaesha Beltran, Despite COVID-19, poll

28

officials report steady turnout, smooth voting (Mar. 17, 2020), available at https://cronkitenews.azpbs.org/2020/03/17/despite-covid-19-poll-officials-report-steady-

25

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1 months, giving voters and officials plenty of time to prepare for any increase in the use

2 of mail voting. See also Atkeson Rprt. at ¶¶ 128–34 (explaining why the PPE cannot be

3 used to make any inferences about what might happen in the November 2020 general

4 election). In short, the very real reasons it made sense to temporarily suspend Wisconsin

5 law to account for COVID-19 have no applicability to Arizona and do not support

6 enjoining the Election Day Deadline. See Morley, Election Emergencies, 67 Emory L.J.

7 at 597 (“A court’s willingness to modify … an election based on an election emergency

8 should [] depend on the geographic scope of both the election and the emergency”).

9 C. The Balance of Equities And The Public Interest Favor The State

10

Enjoining Arizona’s Election Day Deadline is not in the public interest, and the

11 balance of equities favors the State. “[D]istrict courts must give serious consideration to

12 the balance of equities.” Earth Island Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir.

13 2010) (citation omitted). In doing so, courts must consider “all of the competing

14 interests at stake.” Id. “[T]he less certain the district court is of the likelihood of

15 success on the merits, the more plaintiffs must convince the district court that the public

16 interest and balance of hardships tip in their favor.” See Sw. Voter Registration Educ.

17 Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003). This burden is even higher when,

18 as here, Plaintiffs seek a mandatory injunction that would require this Court to rewrite

19 state law for the coming election. See Comm. of Cent. Am. Refugees, 795 F.2d at 1441;

20 S.W. Voter, 344 F.3d at 919 (injunction that impacts an impending election is

21 “extraordinary”); Morley, Election Emergencies, 67 Emory L.J. at 594 (modifying

22 election rules “raises separation of powers and sometimes federalism concerns”).

23

Of course, Plaintiffs and the Secretary alike benefit from ensuring public health

24 and safety. See Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169

25 (2d Cir. 2005) (referring to “public health” as a “significant public interest”). But the

26

27

turnout-smooth-voting/ (“Concerns about COVID-19 prompted Ohio officials to cancel their primary just hours before polls were set to open Tuesday, but elections in Arizona,

28

Florida, and Illinois proceeded as scheduled. Despite some minor problems Tuesday, Arizona poll workers and voters both reported mostly smooth sailing.”).

26

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 27 of 30

1 constitutionality of the Election Day deadline has been established, and the public

2 interest is not served by enjoining the statute, even in light of COVID-19. Any potential

3 burden related to the COVID-19 pandemic on voting in the November 2020 general

4 election is not a result of the Election Day Deadline. As discussed above, Arizona is

5 “one of only a few states that is in a strong position to ensure both the safety of its

6 voters, and a fair VBM system in the November 2020 election.” Atkeson Rprt. at ¶ 124.

7

Plaintiffs’ requested relief only increases potential burdens by asking the Court to

8 order the Secretary to implement a new postmark rule for this year’s general election.

9 They want to impose this new rule even though they acknowledge that the USPS “is

10 facing a budgetary crisis due to COVID-19” and that as summer approaches, USPS “will

11 need to make cuts,” and that USPS “struggled to deliver mail ballots to voters in

12 Wisconsin[.]” (Doc. 32 at 8–9.) It is perplexing that Plaintiffs apparently are not

13 concerned about adding an additional burden on USPS in this time of crisis. Whether a

14 ballot would even be postmarked for the November 2020 general election is dependent

15 on the idiosyncratic practices of the local post office where voters would drop off their

16 ballot. See Wilson Decl., Ex. B at ¶ 5 (noting that “[a]s pre-paid mail, [early ballots] are

17 not required to be post-marked, and many of the ballots are not” postmarked, and even

18 putting this aside, “sometimes, to expedite processing of election mail, some non19 essential processes (such as post-marking) are skipped to expedite the process”).11 Of

20 course, the Secretary has no control over USPS policies or procedures. Whether USPS

21 could even be required to start postmarking ballots in Arizona when they are not a party

22 to this lawsuit is a dubious proposition. And even putting aside this problem (i.e., that

23 no party here could enforce a requirement that all ballots be postmarked), Plaintiffs’ rule

24

25 11 See USPS, Handbook PO-408 – Area Mail Processing Guidelines, § 1-1.3 Postmarks,

26

https://about.usps.com/handbooks/po408/ch1_003.htm (noting that although post offices are “required to make a local postmark available” because USPS “is sensitive to the

27

importance some customers place upon these postmarks,” postmarks “are not required for mailings bearing a permit, meter, or precanceled stamp for postage, nor to pieces

28

with an indicia applied by various postage evidencing systems”) (last visited May 4, 2020).

27

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 28 of 30

1 would only add to the burdens on USPS and could potentially cause more delay,

2 resulting in more ballots arriving too late to count.

3

A postmark requirement could very well lead to a false sense of security and

4 voter confusion, incorrectly suggesting to voters that as long as they drop off their ballot

5 at the post office by Election Day, it would be postmarked and counted, even though

6 voters “still have a delivery deadline that may still be hard to meet.” Atkeson Rprt. at

7 ¶ 92. And a postmark requirement would directly conflict with Arizona law that

8 requires “[t]he county recorder or other officer in charge of elections” to “supply printed

9 instructions to early voters” that include the following statement: “In order to be valid

10 and counted, the ballot and affidavit must be delivered to the office of the county

11 recorder or other officer in charge of elections or may be deposited at any polling place

12 in the county no later than 7:00 p.m. on election day.” See A.R.S. § 16–547(C).

13 Plaintiffs do not acknowledge the clear tension between their proposed rule and the

14 mandate of A.R.S. § 16–547(C). They have not joined the counties in this lawsuit and

15 do not seek a modification of A.R.S. § 16–547(C)––perhaps recognizing that it would

16 not be feasible to implement a postmark rule and require all county officials to re-print

17 instructions notifying voters of the new postmark rule, contrary to Arizona law.

18 Plaintiffs’ proposal would also necessitate substantive modifications to the Secretary’s

19 Publicity Pamphlet and the Citizens Clean Elections Commission’s Voter Guide, which

20 are sent to every household that has a registered voter. See Atkeson Rprt. at ¶¶ 62–63 &

21 Figures 1 & 2; Wilson Decl., Exhibit C. All of this is certain to lead to massive

22 confusion and additional communication problems––during a state of emergency when

23 communication is already difficult.

24

It is also unlikely that an entirely new postmark requirement––where none has

25 existed in Arizona’s history and when voters currently receive ballots with postage

26 prepaid––would be feasible for elections officials to be properly trained on and

27 implement in the next six months when deciding which ballots should be counted. See,

28 e.g., Coviello v. Knapp, 91 A.D.3d 868, 869 (N.Y. App. 2012) (invalidating ballot

28

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 29 of 30

1 because “the date of the postmark cannot be ascertained”); see also Atkeson Rprt. at

2 ¶ 92 (“Data from Pima County showed that a large number of VBM ballots are returned

3 without or with an unreadable postmark”) Adding a postmark rule and changing the

4 established Election Day Deadline in an election year, and in the middle of a pandemic,

5 would cause chaos and confusion for the reasons discussed above, and would reduce

6 voter confidence that Arizona’s elections are fair. See Wilson Decl., Ex. B at ¶ 12.

7

In addition, Plaintiffs overlook important public interest implications of

8 enjoining the statute. Enjoining any state law, particularly a well-established and

9 generally applicable election law, has significant consequences. The State’s legislative

10 process is entitled to respect, and a state “suffers an irreparable injury whenever an

11 enactment of its people or their representatives is enjoined.” Coal. v. Econ. Equity v.

12 Wilson, 122 F.3d 718, 719 (9th Cir. 1997); see also Virginian Ry. Co. v. Sys. Fed’n No.

13 40, 300 U.S. 515, 602 (1937) (legislation “is in itself a declaration of the public

14 interest”).

15

All voters are eligible, without excuse, to receive an early vote that permits

16 voters to, in the comfort of their home, research the issues, review the information in the

17 pamphlets provided by the Arizona Citizen’s Clean Elections Commission and the

18 Secretary of State, and consult with any other people or groups they wish, then complete

19 their ballot, and return their ballots by Election Day so their votes can be counted. The

20 generally-applicable Election Day Deadline does not violate the Constitution. Plaintiffs

21 have not established that the balance of equities and public interest favor a preliminary

22 injunction, and COVID-19 does not alter this outcome.

23

IV. CONCLUSION

24

Plaintiffs have not demonstrated that the law or the facts clearly favor them to

25 warrant a mandatory injunction. Accordingly, the Court should deny Plaintiffs’ motion

26 for a preliminary injunction.

27

…

28

…

29

Case 2:19-cv-05685-DWL Document 43 Filed 05/04/20 Page 30 of 30

1

RESPECTFULLY SUBMITTED this 4th day of May, 2020.

2 /s/ Linley Wilson

3

Kara Karlson (029407)

4

Linley Wilson (027040) Dustin Romney (034728)

5

2005 North Central Avenue

Phoenix, AZ 85004-1592

6

(602) 542-4951

7 OSBORN MALEDON, PA

8

9

Mary R. O’Grady (011434) Emma J. Cone-Roddy (034285)

10

2929 North Central Avenue, Suite 2100

Phoenix, Arizona 85012–2793

11

(602) 640-9000

12

Attorneys for Defendant Arizona

13

Secretary of State Katie Hobbs

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

 
 Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 1 of 14

1 Sarah R. Gonski (Bar. No. 032567) Alexis E. Danneman (Bar. No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk*
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 800 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 Attorneys for Plaintiffs
17

18

UNITED STATES DISTRICT COURT

19

DISTRICT OF ARIZONA

20 Voto Latino Foundation, Priorities USA, and
21 Shelby Aguallo,

No. 2:19-cv-05685-DWL

22

Plaintiffs,

23

v.

24 Katie Hobbs, in her official capacity as 25 Arizona Secretary of State,

26

Defendant.

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION

27

28

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 2 of 14

1

INTRODUCTION

2

In Arizona’s most recent election, 90% of voters voted with a mail ballot. This does,

3 in some respects, make Arizona a “national leader” on vote by mail as the Secretary asserts.

4 Doc. 43 at 4. But it also raises the stakes of ensuring that Arizona’s vote-by-mail system

5 protects Arizonans’ voting rights—particularly where the state has pushed its voters to use

6 mail balloting by closing or consolidating hundreds of polling locations in the past several

7 years. See Doc. 22 at 7. The Secretary, notably, does not dispute that the current deadline

8 to receive ballots (“Election Day Receipt Deadline” or “Deadline”) has disenfranchised

9 thousands each election; that Hispanic and Latino, Native American, and rural voters have

10 been disparately disenfranchised; or that the opportunities to vote in person will be reduced,

11 if available at all, because of COVID-19. The reality is that in this year’s elections,

12 Arizonans will be more dependent than ever on the mail to vote. And Arizonans will be

13 forced to rely on a system that has disenfranchised at least 17,000 eligible voters, through

14 no fault of their own. With the pandemic straining the vote-by-mail system in

15 unprecedented ways, the rate of disenfranchisement in this year’s elections threatens to be

16 catastrophic.

17

The adoption of a postmark system is necessary to protect thousands of Arizonans’

18 most basic constitutional right. More than a dozen states are using a postmark system

19 without difficulty. To appreciate the enfranchising effect of that approach, one need only

20 look to Wisconsin’s recent election in which more than 100,000 voters’ absentee ballots

21 were counted specifically because the Supreme Court ordered the state to use a postmark

22 system. 1 This Court should act similarly to prevent widespread disenfranchisement in

23 Arizona. The administrative changes needed for the state to make this change are minimal

24 and are heavily outweighed by the compelling interest in protecting Arizonans’ right to

25 participate in their democracy.

26

27

1 Richard Pildes, How Many Absentee Ballots in WI Came In on Time Because of the

Court Decision to Extend the Receipt Deadline? Election Law Blog (Apr. 15, 2020),

28 https://electionlawblog.org/?p=110746.

1

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 3 of 14

1

LEGAL STANDARD

2

The injunction Plaintiffs seek⸺to enjoin the State from rejecting certain ballots

3 arriving after the Deadline⸺would “prevent[] future constitutional violations,” and it thus

4 is “a classic form of prohibitory injunction.” Hernandez v. Sessions, 872 F.3d 976, 998 (9th

5 Cir. 2017). But even if the relief were characterized as a mandatory injunction, it is still

6 warranted. This is not a “doubtful case.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir.

7 2015) (quotation omitted). Absent an injunction, there is “a risk of extreme or very serious

8 damage” to Plaintiffs’ and countless Arizonans’ right to vote. Hernandez, 872 F.3d at 997

9 (quotation omitted). “Mandatory injunctions are most likely to be appropriate,” where, as

10 here “the status quo . . . is exactly what will inflict the irreparable injury upon complainant.”

11 Id. (quotation and citation omitted).

12

ARGUMENT

13 I. Plaintiffs are likely to succeed on the merits.

14

A. The Election Day Receipt Deadline inflicts severe burdens on voters.

15

The Secretary does not dispute that the Deadline disenfranchises several thousand

16 voters each election—she just finds this insubstantial. Ninth Circuit precedent, however,

17 finds the opposite.2 See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1015 (9th Cir.

18 2020) (en banc) (rejecting the notion that disenfranchisement of 3,709 voters is minimal or

19 trivial). The Secretary asks this Court to uphold the Deadline because “99%” of Arizona

20 voters have historically gotten their ballot in before it. Doc. 43 at 2. But Anderson-Burdick

21 looks not at voters who are unburdened by the law; instead, it looks at the impact on the

22 voters who must carry the burdens. See Crawford v. Marion Cty. Election Bd., 553 U.S.

23 181, 198, 201 (controlling op.) (explaining that “[t]he burdens that are relevant . . . are

24 those imposed on persons who are eligible to vote but do not possess a [photo ID],” and

25 “that most voters already possess [valid identification to vote] would not save the statute”);

26

2 Plaintiffs’ estimate of the number of disenfranchised voters is likely severely

understated. Several counties do not record the number of late ballots received. See Doc.

27 23-1 at ¶ 32. And Plaintiffs cannot precisely quantify the substantial number of voters who

receive their ballot too late to return it by the Deadline and thus do not attempt to do so. See

28 Bixby Decl. ¶ 5; Armour Decl. ¶¶ 4-7.

2

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 4 of 14

1 Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“The right to vote is personal and is

2 not defeated by the fact that 99% of other people can secure the necessary credentials

3 easily.”). That many voters have not been disenfranchised by the Deadline is not enough to

4 save the statute when thousands have been and thousands more will be at serious risk of

5 disenfranchisement this year. See Ex. A ¶ 2.3

6

The Secretary does not dispute that given the pandemic, in person voting—the

7 previous “fail-safe” for voters who miss the mail Receipt Deadline—is likely to be

8 significantly curtailed or eliminated. See Atkeson Rpt. ¶ 3. Dr. Atkeson’s report, submitted

9 by the Secretary, demonstrates that these “fail-safes” were inadequate even before COVID-

10 19. See id. at 18-19 (Table 2) (showing in 2018 three counties had no drop boxes for mail

11 ballots, six had no more than three, and five had a single early voting location); see also Ex.

12 B at 5. The Secretary largely not does dispute that the Deadline disparately disenfranchises

13 Latino and Hispanic, Native American, and rural voters. In fact, Dr. Atkeson acknowledges

14 that Arizona’s Native American voters “have very poor mail service and often no in person

15 mail delivery,” id. at ¶ 52, and that rural areas have fewer resources and less reliable mail

16 service, leading to greater rates of disenfranchisement, see id. ¶ 79. The Secretary discounts

17 these disparate rates of disenfranchisement as “part of life’s vagaries.” Doc. 43 at 15. But

18 the difficulties specific subgroups face in complying with a voting law because of “life’s

19 vagaries” is precisely what Crawford focused on in assessing the burden of the law. And,

20 while the Secretary asks this Court to find no burden on voting rights here because the

21 Crawford Court did not find a significant burden on voters in that case, she ignores that the

22 Crawford Court was careful to emphasize that it was constrained by a lack of evidence. The

23 Crawford plaintiffs did not present evidence of voters who the challenged provision

24 disenfranchised, making it impossible to “to quantify [] the magnitude of the burden.” 553

25 U.S. at 200 (controlling op.). Here, the evidence is extensive. Thousands of voters are

26 disenfranchised by the Deadline each election; even the Secretary does not dispute that.

27 3 Dr. Ansolabehere’s rebuttal report, see Ex. A, also explains why his methodology
28 in his first report is sound.

3

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 5 of 14

1

The Secretary’s reliance on Rosario, Barilla, and other cases that sanction “time-

2 regulations” in elections to justify disenfranchisement here is also misplaced. The voter

3 registration deadlines in Rosario and Barilla were found constitutional precisely because

4 voters had ample opportunity to register and willfully or negligently failed to do so. See

5 Rosario v. Rockefeller, 410 U.S. 752, 762 (1973) (finding no burden on right to vote because

6 plaintiffs “chose to disregard” deadline); Barilla v. Ervin, 886 F.2d 1514, 1525 (9th Cir.

7 1989) (describing plaintiffs’ “willful or negligent failure to register on time”). That same

8 reasoning supported this Court’s holding in Isabel v. Reagan, where the voter’s “inability

9 to vote was caused by his own failure” to register on time. 394 F. Supp. 3d 966, 983 (D.

10 Ariz. 2019). In contrast, Plaintiffs have presented evidence that voters are unable to meet

11 the Deadline for reasons wholly outside their control. See Bixby Decl. ¶ 5 (describing the

12 “substantial number of calls and texts from Arizona voters who had . . . received their mail

13 ballot too late to send it back in the mail” and were unable to return it by Election Day);

14 Armour Decl. ¶ 4 (stating he could not do anything “to help voters who had not received

15 their ballot until either the weekend before or the Monday before Election Day” and whose

16 only viable method of return was the mail). The Secretary’s reliance on these cases ignores

17 that voters do not have access to mail ballots until a certain date, while voter registration

18 forms are always available to voters. Moreover, while there is no reason to delay registering

19 to vote, there is value in waiting to cast a ballot to benefit from any information that

20 develops in the last week of an election.

21

And while the Secretary attempts to characterize absentee voting as a luxury or

22 choice, that argument, too, runs contrary to the law. Simply put, once a state “has authorized

23 the use of absentee ballots, any restriction it imposes on the use of those absentee ballots

24 [must comply with the Constitution].” Doe v. Walker, 746 F. Supp. 2d 667, 681 (D. Md.

25 2010); cf. also Obama for America v. Husted, 697 F.3d 423, 430-31 (6th Cir. 2012).

26 Contrary to the Secretary’s assertion, Plaintiff Aguallo, who has been disenfranchised by

27 the Deadline before, has not “voluntarily elected to vote by mail.” Doc. 43 at 23. Aguallo

28 attends school far from her home in Greenlee County and must vote by mail. The time it

4

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 6 of 14

1 takes for her ballot to travel from Tucson to Greenlee is outside her control.4 Nor is it

2 sufficient to imply (as the Secretary does) that Aguallo (or countless others like her) could

3 simply travel to vote in person, particularly during the pandemic. Unless an injunction

4 issues, the Deadline stands to disenfranchise Aguallo and thousands of Arizonans despite

5 their best efforts to vote—not because they failed to act, making the cases cited by the

6 Secretary inapposite.

7

B. These burdens on voters are not adequately justified by state interests.

8

None of the interests the Secretary puts forward for the Deadline “make it necessary”

9 to disenfranchise thousands of Arizonans. Anderson v. Celebrezze, 460 U.S. 780, 789

10 (1983). The Secretary cannot credibly argue both that the number of ballots rejected because

11 they come in after the Deadline is infinitesimal and that counting these ballots would put

12 too large a strain on the system. Even if more voters begin to return their ballots closer to

13 Election Day under a postmark deadline, as the Secretary speculates, her own expert notes

14 that Arizona “ha[s] the organization and staff necessary to qualify and count VBM quickly.”

15 Atkeson Rpt. ¶ 121. Moreover, Arizona has a new law that permits counties to begin

16 counting ballots up to two weeks in advance of Election Day. See id.; A.R.S. § 16-550(b).

17 Thus, Arizona need not have any outstanding ballots to process come Election Day. As for

18 the Secretary’s concerns about verifying signatures and counting ballots simultaneously,

19 that is precisely what elections officials in Arizona already do. Ballots are evaluated for a

20 proper signature upon receipt, see A.R.S. § 16-550, and then are forwarded for counting.

21 This is a rolling process and doing both jointly is not novel. The cost to operate an Early

22 Ballot Board for a few additional days, similarly, is at most a small financial burden that is

23 insufficient to justify broad disenfranchisement. See infra n.7 (listing cases).

24

Separately, the Secretary has not credibly explained why the state cannot finish the

25 canvass within 20 days for general elections—a full 13 days after Plaintiffs’ proposed cut-

26
4 Greenlee County recommends that voters mail ballots at least 10 days before 27 Election Day because its mail travels to a Phoenix processing center and then returns to
Greenlee. See McCool Decl. at 12. The same is true of Yuma County. See Pouquette Decl. 28 ¶ 6 ([M]ail travels from Yuma, to Phoenix, then back down to Yuma.”).

5

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 7 of 14

1 off for receiving ballots—or even for primary elections, particularly where the Provisional

2 Ballot Board is authorized to “convene and begin ballot processing any time after

3 provisional ballots are delivered to the officer in charge of elections.” 2019 Elections

4 Manual at 206. 5 And while counties should be able to finish their canvasses in this

5 timeframe, should any delays arise, the Secretary is authorized to postpone the canvass on

6 a day-by-day basis until all county returns are received. See A.R.S. § 16-648(C).

7

The Secretary’s claim that the Deadline “increases confidence” in Arizona’s

8 elections has it exactly backwards. The Deadline injects significant and needless uncertainty

9 into the voting process, threatening substantial numbers of voters with disenfranchisement

10 based on an indiscernible target—neither voters nor election officials can accurately predict

11 the Pre-Election Cutoff for mailing a ballot to ensure the ballot arrives on time. See Ex. B

12 at 1-2. In every general election cycle for the past several years, Arizona counties have

13 changed their guidance on this point from 4 days, to 5 days, to 6 days, to 10

14 days⸺sometimes offering inconsistent guidance in the same election. Doc. 22 at 4-5. The

15 status quo is chaos, not confidence. Perhaps understanding this, the Secretary has admitted

16 the cutoff to mail ballots is “imprecise.” Doc. 30 at 10. And she is right. This is why an

17 injunction is necessary.

18

Finally, the Secretary’s claim that a postmark system is not feasible is irreconcilable

19 with the fact that over a dozen states successfully manage postmark regimes. Indeed,

20 Wisconsin implemented a postmark system in a matter of days after the Supreme Court’s

21 decision in Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206

22 (2020). Here, Arizona’s officials would have multiple months.

23

C. The Deadline violates Arizona voters’ procedural due process rights.

24

25

5 Plaintiffs acknowledge that a provisional ballot cannot be approved for counting

until the Board has verified that a voter has not also voted by mail. But there is no reason

26 the Board cannot determine whether a provisional ballot meets all other requirements for

counting—including determining whether the voter was actually registered, or whether the

27 ballot was properly signed, and contact that voter for curing while the count continues. The

Board would then have a full three days to do one last check—to determine whether those

28 still eligible provisional ballots were cast by someone who had already voted by mail.

6

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 8 of 14

1

Application of the three factors relevant to assessing Plaintiffs’ due process claim

2 also establish a likelihood of success. See Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178,

3 1192–1200 (9th Cir. 2015) (identifying the factors). First, “the right to vote is a ‘liberty’

4 interest” protected by due process, Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F.

5 Supp. 1354, 1357 (D. Ariz. 1990), which extends to mail voting, see, e.g., Saucedo v.

6 Gardner, 335 F. Supp. 3d 202, 215 (D.N.H. 2018). The Secretary does not dispute this.

7 Instead, she asserts only that the burden on this interest “is minimal.” Doc. 43 at 21. Not so.

8 The “degree of potential deprivation that may be created” by the Deadline—disenfranchising

9 thousands—is extraordinarily high. Mathews v. Eldridge, 424 U.S. 319, 341 (1976). Second,

10 the risk of “erroneous deprivation” of that right due to the rejection of ballots based on the

11 Receipt Deadline is significant. Id. at 335. Currently, the date by which a voter must mail a

12 ballot to have a reasonable certainty it will be counted varies from county to county and from

13 one election to another. For this and other reasons set forth in Plaintiff’s Memorandum, Doc.

14 22 at 3–9, the Deadline is far from a “fair” or “reliab[le]” procedure for ensuring that

15 Plaintiffs’ liberty interest in voting, and voting by mail, is guaranteed. Id. at 343.6 Third, the

16 public interest favors protecting voting rights. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). As

17 the Secretary points out, Plaintiffs have proposed a “substitute” procedure for counting

18 ballots. Nozzi, 806 F.3d at 1193. And, as explained below, see infra at n.7, the

19 “administrative burden” of instituting it will be minimal. Nozzi, 806 F.3d at 1193.

20 II. Plaintiffs and thousands of Arizona voters will suffer irreparable harm.

21

While the Secretary focuses on the Arizonans whose votes are not discarded because

22 of the Deadline, she ignores the more than 17,000 voters who have been disenfranchised

23 due to the Deadline in general elections from 2008 to 2018. Doc. 23-1 at 41; Ex. A ¶ 31.

24 And she ignores the more than 2,700 Arizonans whose ballots arrived after the Deadline in

25

26

6 The Secretary points out that on the face of Arizona’s mail ballots, voters are

informed that they must be delivered by Election Day and voters are able to track their

27 ballots online. Doc. 43 at 22. These mechanisms, however, fail to give adequate clarity to

voters as to when their ballot must be mailed. Notably, these mechanisms have failed to

28 protect the thousands of Arizonans that have been disenfranchised.

7

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 9 of 14

1 the March 2020 PPE, as well as the roughly 18,700 to 20,000 Arizonans projected to be

2 disenfranchised in November. Doc. 33-1 at 7, 10. This is not just a “bleak picture of Arizona

3 election administration,” Doc. 44-1 at 9—it is the reality imposed by the Deadline.

4

Disenfranchisement inflicts irreparable harm. See League of Women Voters of N.C.

5 v. North Carolina (“LOWV”), 769 F.3d 224, 247 (4th Cir. 2014), cert. denied, 135 S. Ct.

6 1735 (2015); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). And the

7 threat that the Deadline will cause disenfranchisement is only more severe in the context of

8 the ongoing public health crisis and its effects on the mail service. First, many Arizonans

9 will be voting by mail for the first time and will be less likely to know when they need to

10 mail their ballot. Doc. 33-1 at 5. Second, USPS is grappling with crises that threaten to not

11 only exacerbate the agency’s well-documented woes in Arizona and in the state’s Latino

12 and Native American communities in particular, see Doc. 22 at 8–9, 12, but to shutter the

13 entire agency, Doc. 33-36. Thus, the Secretary’s generalization that “it is completely within

14 [voters’] control to avoid” disenfranchisement is baseless. Doc. 43 at 23.

15

Wisconsin’s recent experience underscores the necessity of Plaintiffs’ requested

16 relief. While the Secretary is correct that Arizona is not Wisconsin and the volume of ballots

17 received post-Election Day here may be less than the volume there, see Doc. 33-1 at 7, she

18 overlooks challenges unique to Arizona that result in more severe burdens on voters because

19 of the Deadline that will only worsen because of the pandemic and USPS’s struggles. First,

20 Arizona is a larger and more populous state than Wisconsin; distances are greater and even

21 intra-county mail must be routed through Phoenix. Doc. 44-2 ¶ 6; Doc. 23-2 at 15. As Yuma

22 County Recorder Pouquette observes, “[m]any people are unaware” of this, meaning a voter

23 may not know it will take more than five days for a ballot to arrive by a deadline. Doc. 44-

24 2 ¶ 6. Second, many Latino and Native American communities, especially those in rural

25 regions, face challenges with mail voting and poor postal infrastructure, a lack of trust in

26 the postal system, and longer delivery times. Doc. 23-2 at 14–17; see also Hobbs, 948 F.3d

27 at 1006. These challenges have worsened during the pandemic, as the March PPE revealed.

28 See Doc. 33-1 at 10 (showing higher rate of late ballots in rural Graham and Santa Cruz

8

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 10 of 14

1 Counties compared to Maricopa County).

2

Finally, Voto Latino and Priorities USA do not assert economic injuries, as the

3 Secretary mistakenly claims. The Deadline irreparably harms them because it forces them

4 to divert resources to help their constituencies overcome the law’s burden—resources that

5 would otherwise be used to engage in candidate advocacy, voter registration, and other core

6 missions—and which cannot be retroactively applied to those activities once the election is

7 over. Doc. 22-6, Doc. 22-10; see Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp.

8 3d 1251, 1268 (N.D. Ga. 2018) (finding irreparable harm where plaintiff’s organizational

9 mission would be harmed and it would have to engage in more voter efforts).

10 III. The balance of the equities and the public interest favor an injunction.

11

“The public interest and the balance of the equities favor ‘prevent[ing] the violation

12 of a party’s constitutional rights.’” Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 920 (9th

13 Cir. 2016) (alteration in original) (citation omitted). This is more urgent when voting rights

14 are at issue because “[t]he public has a strong interest in exercising the fundamental political

15 right to vote.” LOWV, 769 F.3d at 248 (citations omitted). More than 17,000 votes have not

16 counted because of the Deadline. Many Arizonans stand to lose the fundamental right to

17 vote in the November general election. While many changes to electoral processes generate

18 administrative tasks, administrative conveniences do not justify burdens on voting rights.7

19

Nor are Plaintiffs’ irreparable injuries outweighed by the inconveniences the

20 Secretary identifies (at 27–29)—many of which do not comport with Plaintiffs’ requested

21 relief. First, Plaintiffs seek a rule accepting ballots containing any indicia of when a ballot

22 is received. See Doc. 22 at 5 n.4.8 Instituting such a rule is not impractical; many states have

23

24

7 See, e.g., Taylor v. Louisiana, 419 U.S. 522, 535 (1975) (“administrative

convenience” cannot justify practices that impinge upon fundamental rights); see also

25 Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (plurality op.); United States v. Berks

Cty., Pa. , 250 F. Supp. 2d 525, 541 (E.D. Pa. 2003); Johnson v. Halifax Cty., 594 F. Supp.

26 161, 171 (E.D.N.C. 1984).

8 The use of the term “postmark” is intended to encompass any indicia, such as a

27 barcode or other marking, made by the USPS to track when a ballot enters the postal system.

Where a ballot does not bear a postmark date, it should be presumed to have been mailed

28 on or before Election Day unless a preponderance of the evidence demonstrates otherwise.

9

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 11 of 14

1 such rules. They require officials to accept ballots based on the dates of these indicia, but,

2 in the absence of any markings (for perhaps the reasons the Secretary identifies, at 27–28)

3 election officials then examine the verification date on the ballot or a voter’s accompanying

4 affidavit to ensure they were cast on or before Election Day. See, e.g., Md. Code Regs.

5 33.11.03.08(3)(b)(ii); Wash. Rev. Code Ann. § 29A.40.110(4). In other states, officials look

6 at other markings on the ballot’s envelope, such as an intelligent mail barcode tracking

7 system. See, e.g., 10 Ill. Comp. Stat. Ann. 5/19-8; Iowa Code Ann. § 53.17A. Moreover,

8 USPS is fully capable of date-stamping a ballot even when postage is prepaid. See Ex. C.

9

Further, enjoining the Deadline will lessen confusion—not lead to more of it. Supra

10 at 7; see also Johnson Decl. ¶ 5. Many important aspects of modern life do not operate by

11 the receipt date, but by the date mail is sent. Doc. 22 at 4. Nonetheless, to bolster her

12 reasoning that a predictable and familiar postmark deadline somehow leads to more

13 confusion, the Secretary reasons (at 28) that instructions sent to voters must still inform

14 them of the 7:00 p.m. deadline even if the Deadline is extended. This argument ignores the

15 Secretary’s duty to “prescribe duties to achieve and maintain the maximum degree of

16 correctness” over early voting and her duty to publish the Election Procedures Manual.

17 A.R.S. § 16-452(A)–(B); see also Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824,

18 842 (D. Ariz. 2018), rev’d on other grounds, 948 F.3d 989 (explaining how court can order

19 Secretary “to prescribe such a procedure in the Election Procedures Manual, which county

20 election officials then would be bound by law to follow”). No confusion would result if the

21 Secretary inserts a provision in the Manual to account for any changes to the receipt

22 deadline. Moreover, it is unlikely that a local election official would knowingly print and

23 distribute inaccurate instructions when Yuma County Recorder Pouquette, for instance,

24 explains “I want every valid vote counted.” Doc. 44-2 ¶ 4.

25

Every equity the Secretary articulates is ultimately about printing paper—

26 instructions, pamphlets, and guides. These minimal administrative burdens are woefully

27 outweighed by the vindication of the “precious” and “fundamental” right to vote. Isabel v.

28 Reagan, No. CV-128-03217, 2019 WL 5684195, at *5 (D. Ariz. Nov. 1, 2019) (citations

10

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 12 of 14

1 omitted); see also supra at 10 n.7. And, even with minimal administrative burdens, the

2 Secretary helpfully notes that “officials [have] plenty of time to prepare for any increase in

3 the use of mail voting.” Doc. 43 at 26. This further weighs the equities in Plaintiffs’ favor.

4 Cf. Martin v. Kemp, 341 F. Supp. 3d 1326, 1340 (N.D. Ga. 2018) (rejecting argument that

5 new election procedure days before election was burdensome).

6

Finally, Plaintiffs’ requested relief to count ballots arriving after Election Day will

7 not somehow lead to more disenfranchisement, as the Secretary speculates. See Ex. A ¶¶

8 37-43. If it is true that Plaintiffs’ requested five-business-day extension (seven total days)

9 will lead to more disenfranchisement, then the State has no business advocating for a mere

10 six days for voters to send in their ballots. See Doc. 44-1 at 22–24. Plaintiffs’ requested

11 relief is a fail-safe to ensure that as many Arizonans’ votes are counted as possible—more

12 urgent now because of the public health crisis. “The vindication of constitutional rights . . .

13 serve[s] the public interest almost by definition,” including when the voting rights are at

14 stake. League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1167 (N.D. Fla.

15 2012). Courts have repeatedly extended deadlines to advance this interest in the face of

16 unexpected events.9 This Court should do the same.

17

CONCLUSION

18

For these reasons, Plaintiffs respectfully request that this Court issue a preliminary

19 injunction as set forth in the proposed order. Such an injunction is appropriately “tailored

20 to remedy the specific harm” imposed by the deadlines set forth in A.R.S. § 16-548(A), and

21 relevant portions of the 2019 Elections Procedures Manual. Lamb-Weston, Inc. v. McCain

22 Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991).

23

24
9 For instance, when Hurricane Matthew swept through Florida and Georgia in 2016, 25 federal courts crafted remedies to extend registration deadlines to protect “the right of
aspiring eligible voters to register and to have their votes counted.” Fla. Democratic Party 26 v. Scott, 215 F. Supp. 3d 1250, 1259 (N.D. Fla. 2016). Similarly, a court ordered several
county boards of elections to extend precincts’ operating hours after unexpected severe 27 weather and ballot shortages prevented voters from reaching the polls and, once there,
casting their ballots. Obama for Am. v. Cuyahoga Cty. Bd. of Elections, 1:08-cv-562-PAG, 28 ECF No. 6 (N.D. Ohio Mar. 4, 2008).

11

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 13 of 14

1 Dated: May 12, 2020 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

s/ Alexis E. Danneman Alexis E. Danneman (# 030478) Sarah R. Gonski (# 032567) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Marc E. Elias* John Devaney* Amanda R. Callais* K’Shaani O. Smith* Zachary J. Newkirk* Christina A. Ford* PERKINS COIE LLP 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960 *Admitted pro hac vice Attorneys for Plaintiffs
12

Case 2:19-cv-05685-DWL Document 47 Filed 05/12/20 Page 14 of 14

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 12, 2020, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

4

5

s/Michelle DePass

6

7

8

9

10

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13

 
 Case 2:19-cv-05685-DWL Document 57 Filed 06/18/20 Page 1 of 3

1 Alexis E. Danneman (#030478)
Sarah R. Gonski (# 032567) 2 PERKINS COIE LLP
2901 North Central Avenue, Suite 2000 3 Phoenix, Arizona 85012-2788
Telephone: 602.351.8201 4 Facsimile: 602.648.7000
SGonski@perkinscoie.com 5 ADanneman@perkinscoie.com
DocketPHX@perkinscoie.com 6
Marc E. Elias* 7 John Devaney*
Amanda R. Callais* 8 K’Shaani O. Smith*
Zachary J. Newkirk* 9 Christina A. Ford*
PERKINS COIE LLP 10 700 Thirteenth Street NW, Suite 600
Washington, D.C. 20005-3960 11 Telephone: 202.654.6200
Facsimile: 202.654.6211 12 melias@perkinscoie.com
jdevaney@perkinscoie.com 13 acallais@perkinscoie.com
kshaanismith@perkinscoie.com 14 znewkirk@perkinscoie.com
christinaford@perkinscoie.com 15
*Admitted pro hac vice 16
Attorneys for Plaintiffs 17

18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino Foundation, Priorities USA,
22 Shelby Aguallo,

No. 2:19-cv-05685-DWL

23

Plaintiffs,

NOTICE OF SETTLEMENT

24

v.

25 Katie Hobbs, in her official capacity as 26 Arizona Secretary of State,

27

Defendant.

28

Case 2:19-cv-05685-DWL Document 57 Filed 06/18/20 Page 2 of 3

1

Plaintiffs Voto Latino Foundation, Priorities USA, and Shelby Aguallo

2 (“Plaintiffs”) and Defendant the Arizona Secretary of State (“Secretary”), pursuant to this

3 Court’s June 5, 2020 Order, Doc. 55, file the instant notice to inform the Court that they

4 have completed settlement negotiations and finalized a settlement agreement in this matter.

5 See Exhibit A (June 18, 2020 Settlement Agreement).

6

7

Dated: June 18, 2020

8

9 s/ Amanda Callais
10 Alexis E. Danneman (# 030478) Sarah R. Gonski (# 032567)
11 PERKINS COIE LLP
12 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788
13

14

Marc E. Elias* John Devaney*

15 Amanda R. Callais*

K’Shaani O. Smith* 16 Zachary J. Newkirk*

17 Christina A. Ford* PERKINS COIE LLP
18 700 Thirteenth Street NW, Suite 600
19 Washington, D.C. 20005-3960

20 *Admitted pro hac vice Counsel for Plaintiffs
21

s/ Kara Karlson Kara Karlson (#029407)
Linley Wilson (#027040) Kara M. Karlson (#029407) Dustin Romney (#034728) 2005 North Central Avenue Phoenix, AZ 85004-1592
Mary R. O’Grady (#011434) Emma J. Cone-Roddy (#034285) OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2793
Counsel for Defendant Arizona Secretary of State Katie Hobbs

22

23

24

25

26

27

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Case 2:19-cv-05685-DWL Document 57 Filed 06/18/20 Page 3 of 3

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 18, 2020, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

4

5

s/ Michelle DePass

6

7

8

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Case 2:19-cv-05685-DWL Document 57-1 Filed 06/18/20 Page 1 of 8
Exhibit A

Case 2:19-cv-05685-DWL Document 57-1 Filed 06/18/20 Page 2 of 8

Case 2:19-cv-05685-DWL Document 57-1 Filed 06/18/20 Page 3 of 8

Case 2:19-cv-05685-DWL Document 57-1 Filed 06/18/20 Page 4 of 8

Case 2:19-cv-05685-DWL Document 57-1 Filed 06/18/20 Page 5 of 8

Case 2:19-cv-05685-DWL Document 57-1 Filed 06/18/20 Page 6 of 8

Case 2:19-cv-05685-DWL Document 57-1 Filed 06/18/20 Page 7 of 8

Case 2:19-cv-05685-DWL Document 57-1 Filed 06/18/20 Page 8 of 8

 
 Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 1 of 32

1 Sarah R. Gonski (# 032567) PERKINS COIE LLP
2 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788
3 Telephone: 602.351.8000 Facsimile: 602.648.7000
4 SGonski@perkinscoie.com DocketPHX@perkinscoie.com
5 Marc E. Elias*
6 John Devaney* Amanda R. Callais*
7 K’Shaani O. Smith* Christina A. Ford*
8 PERKINS COIE LLP 700 Thirteenth Street NW, Suite 600
9 Washington, D.C. 20005-3960 Telephone: 202.654.6200
10 Facsimile: 202.654.6211 melias@perkinscoie.com
11 jdevaney@perkinscoie.com acallais@perkinscoie.com
12 kshaanismith@perkinscoie.com christinaford@perkinscoie.com
13 *Pro hac vice application to be filed
14 Attorneys for Plaintiffs
15

16

UNITED STATES DISTRICT COURT

17

DISTRICT OF ARIZONA

18 Voto Latino, Inc. and Priorities USA,
19

Plaintiffs, 20

v. 21

22

Katie Hobbs, in her official capacity as Arizona Secretary of State,

23

Defendant.

24

No. ___________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

25

26

27

28

Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 2 of 32

1

Plaintiffs Voto Latino, Inc. and Priorities USA, through the undersigned attorneys,

2 file this Complaint for Declaratory and Injunctive Relief against Katie Hobbs, in her official

3 capacity as the Arizona Secretary of State (“Secretary”), and upon information and belief

4 allege as follows:

5

NATURE OF THE CASE

6

1. During the 2016 presidential preference election, 72,304 Arizonans cast their

7 ballot for Marco Rubio to become the Republican presidential candidate—even though

8 Rubio had withdrawn from the race several days prior to the election. Why did so many

9 Arizonans waste their vote on a ghost candidate? Because they were among the nearly 80%

10 of Arizonans who vote by mail, and Arizona’s law requiring that mail-in ballots be received

11 by 7:00 p.m. on Election Day—not postmarked—means that voters must cast and mail their

12 ballots well in advance of Election Day to be considered timely. A.R.S. § 16-548(A). By

13 the time voters heard of the critical information, their votes had already been cast.

14

2. Voters in that election were by no means the only voters negatively impacted

15 by Arizona’s deadline. Election after election, thousands of otherwise eager voters are

16 caught unaware by the fact that Arizona requires ballots to be received by 7 p.m. on Election

17 Day (“Election Day Receipt Deadline”). A.R.S. § 16-548(A). In 2008, 1,611 ballots were

18 rejected for arriving after the Election Day Receipt Deadline, even though many of them

19 were mailed multiple days before election day. That number is steadily increasing. In 2012,

20 more than double that number⸺4,107 ballots⸺were rejected. And in the 2018 general

21 election, at least 4,500 ballots were rejected in Maricopa and Navajo Counties alone because

22 they arrived after the Election Day Receipt Deadline.1 A disproportionate number of these

23 ballots were cast by Arizona’s minority voters.

24

3. It is not surprising that such a large number of ballots arrive after Arizona’s

25 Election Day Receipt Deadline; A.R.S. § 16-548(A) effectively creates a second, little-

26 known shadow deadline, the “Pre-Election Cutoff.” Arizona’s election officials define the

27 1 There do not appear to be any statewide reported numbers for 2018; however, both
28 Maricopa and Navajo reported the number of ballots rejected for late arrival.

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 3 of 32

1 Pre-Election Cutoff in various ways, but all appear to agree that a ballot must be mailed at

2 least five full days in advance of the election—and sometimes six or seven days—to have

3 a reasonable certainty that it will arrive in time to be counted. If the ballot is received after

4 7 p.m. on Election Day, the ballot is discarded. Even if the ballot was postmarked well in

5 advance of Election Day, including before or during the five to seven recommended days,

6 but failed to arrive because of mail irregularities, the ballot is rejected.

7

4. As a result, Arizona’s Election Day Receipt Deadline, and the corresponding

8 Pre-Election Cutoff it necessitates, confuses voters and confounds their reasonable

9 expectations. In nearly all other mail-related deadlines in modern life, mail is considered

10 timely if it is postmarked by the applicable deadline. Even in Arizona, in non-election

11 contexts such as tax and insurance payments, postmarks are used to guide deadlines for

12 mail-related activities. Further—as illustrated above—late-breaking changes routinely alter

13 political dynamics during the final days before an election. Voters have a reasonable

14 expectation that they can (and should) evaluate the candidates and issues up to and including

15 Election Day.

16

5. Arizona has no legitimate interest in enforcing the Election Day Receipt

17 Deadline, particularly where over the last decade it has pushed voters across the State to

18 utilize mail voting. Although Arizona may certainly set a reasonable deadline to receive

19 ballots to ensure the finality of election results, the current Election Day Receipt Deadline

20 is unreasonable and disenfranchising: it is contrary to voters’ reasonable expectations,

21 necessitates that ballots be cast far earlier than they need to be, and is poorly communicated

22 to voters. The State can still serve its election administration interest by accepting ballots

23 postmarked by Election Day and received within a reasonable time⸺five business

24 days⸺thereafter. After all, Arizona need not complete its total vote count until 20 days

25 after Election Day. A.R.S. § 16-642(A). And Arizona already contemplates that a certain

26 number of ballots will not be countable right away; ballots that arrive in a timely but

27 incomplete fashion are curable up to five business days after Election Day. Id. § 16-550.

28 Counting ballots that have been postmarked by Election Day, as long as they are received

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 4 of 32

1 within five business days of Election Day, would serve the State’s interests in finality of

2 results without unduly burdening its voters. It would also ensure that all Arizona voters have

3 sufficient protections in place to ensure that their right to vote is not arbitrarily and

4 repeatedly denied.

5

6. While the Election Day Receipt Deadline affects all Arizona voters, it

6 disenfranchises Arizonans in rural counties by a much greater margin. For example, in

7 2018, approximately 1,535 voters were disenfranchised in urban Maricopa County. In

8 contrast, 3,062 late ballots were reported in Navajo County and 6,227 ballots were reported

9 as late in Yuma County, both of which have a significantly smaller number of registered

10 voters than Maricopa.

11

7. In rural areas, mail service is unreliable and delay-ridden. Instead of going

12 directly from one rural address to another nearby address, local mail in rural areas is often

13 re-routed through a central processing facility in Phoenix, which increases delivery times.

14 As a consequence, rural voters must take particular care to mail their ballot well in advance

15 of Election Day and are especially vulnerable to Arizona’s refusal to count ballots that

16 arrive after the Election Day Receipt Deadline.

17

8. Further, the Election Day Receipt Deadline has particularly profound

18 implications for Arizona’s Hispanic and Latino voters. Statistically, they comprise a

19 disproportionately significant portion of voters whose ballots are rejected under the Election

20 Day Receipt Deadline. Indeed, in rural counties, Hispanic and Latino voters are five to six

21 times more likely to be disenfranchised than white voters, and even in urban Maricopa

22 County, they are twice as likely to be disenfranchised by the Election Day Receipt Deadline

23 than white voters.

24

9. The reasons for this disparity are varied, but each is traceable to Arizona’s long

25 history of discrimination against minority voters and, particularly, against members of its

26 Hispanic and Latino community. First, discrimination in education has led to persistent

27 gaps that have left these minority voters less educated than their white counterparts, which

28 makes them less likely to be aware of the Election Day Receipt Deadline. Second, given the

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 5 of 32

1 lack of language assistance provided to voters⸺coupled with sustained resistance to

2 bilingual education and mandated English-only education⸺Hispanic and Latino voters are

3 less likely to understand the instructions provided by county election officials regarding the

4 Election Day Receipt Deadline, particularly when those instructions are inconsistent. Third,

5 due to disparities in income, Hispanic and Latino voters experience higher rates of poverty

6 than white voters, and have less access to reliable transportation and often less flexible work

7 schedules, both of which make it more difficult for them to turn in a mail ballot by other

8 means such as in-person at the county recorder’s office or a polling location by the Election

9 Day Receipt Deadline.

10

10. Arizona’s unjustified imposition of the Election Day Receipt Deadline violates

11 the First and Fourteenth Amendments because it imposes an undue burden on voters that is

12 not outweighed by any legitimate interest on the part of the State. Further, the Election Day

13 Receipt Deadline strips voters of their right to procedural due process, and it undermines

14 the ability of Arizona’s Hispanic and Latino voters to elect candidates of their choice, in

15 violation of Section 2 of the Voting Rights Act. For all these reasons, the Election Day

16 Receipt Deadline should be enjoined.

17

JURISDICTION AND VENUE

18

11. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress

19 the deprivation under color of state law of rights secured by the United States Constitution.

20

12. This Court has original jurisdiction over the subject matter of this action

21 pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the

22 Constitution and laws of the United States.

23

13. This Court has personal jurisdiction over Defendant, who is sued in her

24 official capacity only.

25

14. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial

26 part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district.

27

28

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 6 of 32

1

15. This Court has the authority to enter a declaratory judgment and to provide

2 permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil

3 Procedure and 28 U.S.C. §§ 2201 and 2202.

4

PARTIES

5

16. Plaintiff Voto Latino, Inc. is a nonprofit organization that engages, educates,

6 and empowers Latino communities across the United States, working to ensure that Latinos

7 are enfranchised and included in the democratic process. In furtherance of its mission, Voto

8 Latino expends significant resources to register and mobilize thousands of Latino voters

9 each election cycle, including the nearly 1 million eligible Latino voters in Arizona. Since

10 2010, Voto Latino has been mobilizing Latino voters in Arizona through statewide voter

11 registration initiatives as well as peer-to-peer and digital voter education and get-out-the-

12 vote campaigns. As part of Voto Latino’s voter education and get-out-the-vote campaigns,

13 the organization educates voters, among other things, on when to cast their absentee ballots.

14 In 2020, Voto Latino anticipates making expenditures in the millions of dollars to educate,

15 register, mobilize, and turn out Latino voters across the United States, including in Arizona.

16 Arizona’s Election Day Receipt Deadline directly harms Voto Latino by frustrating its

17 mission of enfranchising and turning out Latino voters in Arizona because it burdens and

18 disenfranchises the very voters that Voto Latino seeks to support. As a result, Voto Latino

19 has had to—and will continue to—expend and divert additional funds and resources that it

20 would otherwise spend on its efforts to accomplish its mission in other states or its own

21 registration efforts in Arizona to turn out these voters and to combat the effects that

22 Arizona’s Election Day Receipt Deadline has on Latino voters.

23

17. Plaintiff Priorities USA (“Priorities”) is a 501(c)(4) nonprofit, voter-centric

24 progressive advocacy and service organization. Priorities’ mission is to build a sustainable

25 infrastructure to engage Americans in the progressive movement by running a permanent

26 digital campaign to persuade and mobilize citizens around issues and elections that affect

27 their lives. In furtherance of this purpose, Priorities works to help educate, mobilize, and

28 turn out voters across the country, including in Arizona. In 2020, Priorities expects to make

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1 millions of dollars of contributions and expenditures to educate, mobilize, and turn out

2 voters in state and federal elections around the country, including thousands of dollars to

3 educate, mobilize, and turn out voters in Arizona elections. Arizona’s enforcement of its

4 Election Day Receipt Deadline for casting ballots directly harms Priorities because it

5 burdens and disenfranchises the very voters Priorities supports through its work and

6 contributions in Arizona. As a result, Priorities has to expend and divert additional funds

7 and resources in GOTV, voter education efforts, mobilization, and turn-out activities in

8 Arizona, at the expense of its voter support initiatives in other states and other voter

9 education and turnout programs in Arizona.

10

18. Defendant Katie Hobbs is sued in her official capacity as Secretary of State for

11 the State of Arizona (the “Secretary”). The Secretary is a person within the meaning of 42

12 U.S.C. § 1983 and acts under color of state law. She is the Chief Elections Officer for

13 Arizona. A.R.S. § 16-142(A)(1). As Arizona’s Chief Elections Officer, the Secretary is

14 responsible for overseeing the voting process in Arizona and is empowered with broad

15 authority to carry out that responsibility. The Secretary also issues the Arizona Election

16 Procedures Manual (“Manual”), which establishes election procedures and administration

17 across Arizona’s 15 counties. A.R.S. § 16-452. The Manual is approved by the Governor

18 and the Arizona Attorney General and carries the force of law. A.R.S. § 16-452(B). Arizona

19 law also requires the Secretary, after consulting with county officials, to “prescribe rules to

20 achieve and maintain the maximum degree of correctness, impartiality, uniformity and

21 efficiency on the procedures for early voting and voting, and of producing, distributing,

22 collecting, counting, tabulating and storing ballots.” A.R.S. § 16-452(A). Thus, the

23 Secretary directs county officials, who are responsible for physically counting ballots,

24 regarding when to count or reject ballots.

25

GENERAL ALLEGATIONS

26

Mail Voting in Arizona

27

19. Arizonans have a right to vote by mail. A.R.S. § 16-541(A). Over the past

28 decade, early voting by mail has grown exponentially in Arizona. In the 2008 general

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1 election, for example, just over a million Arizona voters cast their ballot by mail. By the

2 2016 general election, that number had doubled to over two million. In 2018, a lower-

3 turnout midterm election, over 1.9 million voters voted by mail. This rapid growth in mail

4 ballots is not surprising. Arizona has engaged in extensive efforts to increase its use.

5

20. Since 2007, Arizona has maintained a Permanent Early Voter List, commonly

6 known as the “PEVL,” under which any Arizona voter can choose to automatically receive

7 a mail ballot for every election. A.R.S. § 16-544(A). Since the PEVL’s creation, Arizona

8 has actively encouraged its voters to sign up and participate in the program. As a result,

9 mail voting is exceedingly popular in Arizona, and today approximately 80% of Arizona

10 voters receive their ballot in the mail.

11

21. Voters who are enrolled in the PEVL, or who request a mail ballot at least 27

12 days before the election, are entitled to receive a mail ballot between 24 and 27 days before

13 the election. A.R.S. § 16-542(C). A mail ballot is sent to voters by first-class, non-

14 forwardable mail. It must be accompanied by a postage-prepaid return envelope, an

15 affidavit, and instructions to complete the mail ballot. See 2014 Arizona Elections Manual,

16 Chapter 3 - Early Voting, 56.

17

22. To be counted, a voter’s ballot and accompanying affidavit must be received

18 by the voter’s county recorder’s office by 7 p.m. on Election Day. A.R.S. § 16-548(A).

19 Ballots received after 7 p.m. on Election Day are rejected, even if they were mailed well in

20 advance of the election, and including ballots mailed by the five, six, and seven-day Pre-

21 Election Cutoff promoted by the Secretary of State and county recorders’ offices.

22

23. Arizona voters have some non-mail alternative options to return their ballot

23 outside of the mail; however, by far the most popular method is to return the ballot the same

24 way that it arrived—via mail. In the most recent presidential election, approximately 90%

25 of Arizona voters who voted with a mail ballot returned their ballot to their county through

26 the U.S. postal service.

27

24. Voters also have the option to personally drop their ballot off at the county

28 recorder’s office or at any polling location on Election Day. A.R.S. § 16-548. But these

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1 options are more time-consuming and burdensome for voters in rural counties who often

2 live many miles from a drop-off location, as well as Hispanic and Latino voters who have

3 difficulty obtaining transportation or leaving work during the window in which recorders’

4 offices and polling locations are open. As a result, these options are less popular and less

5 accessible to Arizona voters. In the most recent presidential election, only 10% of Arizona

6 voters who voted with a mail ballot returned it to a physical location such as a polling place

7 or county recorder’s office.

8

25. Furthermore, in recent years Arizona has passed or contemplated legislation

9 that would strip away these non-mail alternative options. One previously popular method

10 of returning a ballot was ballot collection, in which a voter would entrust their ballot to an

11 advocate, volunteer, friend, or neighbor to personally deliver it to election officials. That

12 practice was criminalized in 2016. See A.R.S. § 16-1005(H)-(I); see also Democratic Nat’l

13 Comm. v. Reagan, 329 F. Supp. 3d 824 (D. Ariz. 2018), aff’d, 904 F.3d 686 (9th Cir. 2018),

14 reh’g en banc granted, 911 F.3d 942 (9th Cir. 2018) (“DNC”). Further, during the most

15 recent legislative session, the Arizona Legislature contemplated, but ultimately decided

16 against, banning all methods of ballot return other than the mail. S.B. 1046 (2019). The

17 bill’s sponsor has stated that she will introduce the legislation again in the next session.

18

26. Once the Election Day Receipt Deadline has passed, Arizona begins

19 processing its ballots. When voters cast a mail ballot in Arizona, election officials must

20 confirm that each voter did not vote in person, verify the voter’s eligibility to vote, and open

21 and scan the voter’s ballot. See A.R.S. § 16-552. If a ballot was received in time, but appears

22 to be invalid (because it has, for example, an incomplete affidavit or an apparently

23 mismatched signature), election officials will contact the voter, who has five business days

24 in which to cure their ballot. A.R.S. § 16-550. Election officials have 20 days after Election

25 Day to complete the count and certify results. Id. § 16-642(A).

26

The Election Day Receipt Deadline

27

27. Every election a substantial and increasing number of ballots are discarded

28 because they arrive after the Election Day Receipt Deadline. While the publicly available

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1 data is incomplete, even the partial picture is alarming. In 2008, only seven counties

2 reported data on late-returned ballots, but those counties collectively rejected 1,611 ballots

3 for arriving after the Election Day Receipt Deadline. In 2012, those same seven counties

4 rejected more than double that amount—4,107 ballots. In the 2018 general election,

5 Maricopa County alone rejected 1,535 ballots for arriving late, and Navajo County reported

6 rejecting an eye-popping 3,062 late ballots—over 8 percent of all ballots cast in that county.

7

28. Precincts within counties also report substantial variation in ballot arrival

8 times, reflecting just how arbitrary mail service can be even within a county. In Navajo

9 County, for example, the percentage of early ballots that arrived late ranged from a low of

10 2 percent in some precincts to as high as 12 percent in others.

11

29. The numbers speak for themselves; clearly, a large swath of Arizona voters

12 believe their ballot is timely even when it is not. Because of the challenges in estimating

13 mail delivery times, elections officials⸺much less the average voter⸺cannot accurately

14 predict when ballots must be mailed to ensure that they arrive by the Election Day Receipt

15 Deadline. In the 2014 general election, for example, the Arizona Secretary of State’s Office

16 “named Thursday, Oct. 30, the ‘deadline’ for mailing in early ballot so they will arrive in

17 time,” but noted that “[that] deadline is unofficial and was set as a guideline based on the

18 time it takes a ballot to reach a county recorder’s office.” As the Communications Director

19 for the Arizona Secretary of State’s Office explained, if a voter did not mail their ballot by

20 that Thursday, voters should not put their ballot in the mail “because it may or may not get

21 here on time,” and if “it arrives [the day after the election] it won’t count.” See Rachel Lund,

22 Late With Your Early Ballot? Here Are Tips for Making Sure Your Vote is Counted, Arizona

23 Capitol Times (Oct. 30, 2014), https://azcapitoltimes.com/ news/2014/10/30/az-late-early-

24 ballot-tips-to-make-sure-vote-counts/ (emphasis added).

25

30. County Recorders have not been able to provide any more clarity to voters. In

26 fact, just last month, the Pima County Recorder’s Office provided two different

27 “recommended deadlines” for when voters were “required” to mail their ballot for it to be

28

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1 counted.2 Counties’ recommendations on when to place a ballot in the mail shift for a simple

2 reason: those recommendations are purely guesses.

3

31. Without clear guidance from election officials, Arizona voters are themselves

4 forced to guess when their ballots must be placed in the mail to ensure that they will be

5 counted. In any event, many ballots that are rejected for arriving too late are mailed and

6 postmarked before Election Day, on the erroneous belief that a ballot is timely as long as it

7 is postmarked by Election Day.

8

32. The Election Day Receipt Deadline, and the confusion it generates, contributes

9 to Arizona voters’ remarkable lack of confidence that their ballots are actually counted.

10 Compared to voters in all 50 states, Arizona voters are the least likely to say that they are

11 confident that their own vote was actually counted. And compared to voters in all 50 states,

12 Arizona voters are the most likely to say they were “not too confident” or “not at all

13 confident” that the votes of other people in their city or county were actually counted.

14

33. The widespread belief that a ballot is timely as long as it is postmarked by

15 Election Day is reasonable; it is consistent with the way mail-related deadlines are

16 administered under the state law and across modern life. Postmarks are used to assess the

17 timeliness of payments, applications, and other documents submitted to the government in

18 other contexts: taxes and other state-mandated deadlines are determined according to

19 postmarks, not the date—much less the time of day—the mailed item is actually received.

20 See, e.g., A.R.S. § 1-218(A) (requiring documents related to taxes, including returns,

21 statements, and payments, that have been mailed to “be deemed filed and received by the

22 addressee on the date shown by the postmark”); A.R.S. § 20-191 (stating that insurance

23 premium payments made by mail are deemed timely as of the date shown on the postmark);

24

25

26

2 The Pima County Recorder’s Office website, for example, currently recommends

that voters mail their ballots by the Thursday before the election to ensure their ballots

27 would be counted. But just weeks ago, the same Pima County Recorder’s Office issued a

press release for the most recent election instructing voters to mail their ballots on or before

28 the Wednesday before the election to ensure their ballots would be counted.

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1 Ariz. Admin. Code R17-4-304 (stating the date of receipt of applications for vehicle

2 registrations is the date of the postmark stamp).

3

34. Postmark rules make good sense. Mail delivery times in Arizona are

4 unpredictable, particularly in rural areas where home delivery is not common and even local

5 mail is often re-routed through central processing facilities in far-flung cities. This

6 unpredictability increases the risk of a late-arriving ballot, even when voters mail their

7 ballots well in advance of Election Day.

8

35. A postmark rule is also particularly key in the voting context because it aligns

9 with practical realities of the election cycle. Campaigns often consider the final week before

10 the election to be a key week of voter engagement and activity. Candidates, advocacy

11 organizations, political volunteers and the like conduct “get-out-the-vote” activities,

12 canvasses, town hall meetings, candidate Q&A sessions, and all manner of voter

13 engagement during the final crucial days of the election cycle. Frequently, late-breaking

14 news can entirely change the landscape for a race, and voters can and should remain open

15 to new information until Election Day itself.

16

36. For example, during the 2016 presidential preference election, tens of

17 thousands of votes arrived for Marco Rubio, even though he dropped out of the race in the

18 final days before Election Day. But due to the Election Day Receipt Deadline, and the

19 corresponding Pre-Election Cutoff deadlines for casting their ballots, those voters were

20 unable to consider that information before casting a ballot for a nonexistent candidate. If

21 the Election Day Receipt Deadline had not been in place, those voters could have re-

22 allocated their votes among other Republican candidates who actually remained in the race,

23 giving those voters the opportunity to truly participate in the election. It is clear that what

24 happens in the final days before an election matters, and the Election Day Receipt Deadline

25 deprives voters of the opportunity to take those events into account.

26

37. Further, the Election Day Receipt Deadline is unreasonable because it

27 unnecessarily shortens voters’ time to return their ballots. A postmark rule would allow the

28 State to accept ballots received within a reasonable time after Election Day, which makes

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1 sense given that Arizona has 20 days after Election Day to complete the vote-counting

2 process. A.R.S. § 16-642(A). Arizona already permits voters to cure incomplete ballots up

3 to five business days after Election Day. Id. § 16-550. Thus, counting ballots that have been

4 postmarked by Election Day, as long as they are received within the five-business-day cure

5 period, would align with Arizona’s existing voting laws and provide all Arizona voters

6 sufficient time to have their votes counted.

7

38. The State has no legitimate interest in imposing the Election Day Receipt

8 Deadline, particularly where it has pushed Arizona voters to utilize mail voting and has

9 provided very limited alternative options for returning those ballots. While Arizona may set

10 a reasonable deadline for receiving ballots to ensure the finality of election results, the

11 Election Day Receipt Deadline is not reasonable: voters do not reasonably expect that they

12 must submit their ballots so far ahead of Election Day—nor could they, given that even

13 election officials are not sure what the precise date for mailing in ballots should be, the

14 requirement to do so is poorly communicated to voters, and it is completely unnecessary to

15 ensure that all ballots are received and counted within a reasonable time.

16

The Election Day Receipt Deadline’s Effect on Rural and Minority Voters

17

39. The Election Day Receipt Deadline has a disproportionately severe impact on

18 rural and Hispanic and Latino voters in Arizona. For example, in 2018, approximately 1,535

19 voters were disenfranchised in urban Maricopa County. In contrast, 3,062 late ballots were

20 reported in Navajo County and 6,227 ballots were reported as late in Yuma County, both of

21 which have a significantly smaller number of registered voters than Maricopa. And

22 Arizona’s Hispanic and Latino voters are disparately disenfranchised no matter where they

23 live. Indeed, in rural counties, Hispanics are nearly five to six times more likely to be

24 disenfranchised than white voters by the Election Day Receipt Deadline, and even in urban

25 Maricopa County, they are twice as likely to be disenfranchised than white voters.

26

40. None of this is surprising; mail delivery in rural Arizona is complicated and

27 ridden with delays, and Arizona’s long-history of discrimination interacts directly with the

28

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1 Election Day Receipt Deadline to make it more difficult for Hispanic and Latino voters to

2 timely cast their mail-in ballots.

3

41. Voters living in rural areas of Arizona lack reliable mail service. These voters

4 typically do not have mailboxes at their homes and often do not receive personal mail

5 delivery services. Rather, they frequently must travel to one of a few post offices, many

6 miles away from where they live and work, to either pick up or drop off their mail. Given

7 the long distance, long work days, lack of readily available transportation, whether public

8 or personally owned, and correspondingly poor roadways, these voters are not able to visit

9 the post office with any regularity. As a consequence, arranging to pick up their ballots at

10 the post office 24 and 27 days before the election, and then dropping them off not long

11 thereafter to meet the Election Day Receipt Deadline is particularly difficult for rural voters.

12

42. Further, there is no guarantee that rural voters’ ballots will arrive by the

13 Election Day Receipt Deadline given the unusual routing system used in rural parts of

14 Arizona. Because local mail in rural areas is not sent directly from one rural address to

15 another nearby address and is instead re-routed through a central processing facility in some

16 other part of the state, delivery times increase. Consequently, rural voters are uniquely

17 required to mail their ballots well in advance of Election Day. Otherwise, they risk having

18 their ballots rejected⸺through no fault of their own⸺for arriving after the Election Day

19 Receipt Deadline. Mailing their ballots a significant number of days before Election Day is

20 no guarantee that their ballots will arrive on time.

21

43. Rural Arizona also contains a number of communities that are predominately

22 populated by minority voters. And as an Arizona district court recently found, “[r]eady

23 access to reliable and secure mail service is nonexistent” in some of these minority

24 communities. See DNC, 329 F. Supp. 3d at 869.

25

44. Native American voters, in particular, traditionally struggle with mail service

26 because of, among other things, a severe lack of postal service infrastructure within their

27 communities. On the Navajo Reservation for example,

28

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1

reservation residents rely on a patchwork of trading posts,

2

contract post offices, regular post offices and commercial mail services, along with trucks shuttling mail among far-flung

3

operations that may be a several-hour drive from any given

tribal member’s home. Once a ballot is in this system, it travels

4

to the reservation voter or back to the county via a sorting

5

facility in Arizona, New Mexico or Utah, sometimes via

multiple states.3

6

7

45. Given this patchwork of services, Native American voters who utilize voting

8 by mail are particularly vulnerable to Arizona’s strict enforcement of its Election Day

9 Receipt Deadline. Indeed, during the past election, numerous ballots were rejected due to

10 the Election Day Receipt Deadline in Native American precincts throughout Navajo

11 County.

12

46. Rural Hispanic and Latino voters in Arizona also face similar problems in

13 accessing secure and reliable mail service. In heavily Hispanic San Luis and Somerton, for

14 example, voters often lack home delivery mail service or live miles away from the nearest

15 post office. In San Luis specifically, which is 98% Hispanic, nearly all of the city’s residents

16 must rely on a single post office that is located across a major highway to send and receive

17 mail, even though the vast majority of San Luis’ residents lack reliable transportation and

18 there is no available taxi service. Given the distance they must travel to send mail, these

19 residents tend to visit the post office infrequently.

20

47. Even in more urban neighborhoods, Hispanic and Latino voters often face

21 difficulties with unsecure mail boxes and fear that mail will be stolen from their homes. For

22 example, some voters live in neighborhoods with one community mailbox that does not

23 accept outgoing mail and voters are required to put their mail in an open basket next to the

24 mailbox, with no means of securing it. These voters are thus reluctant to mail a ballot from

25 their homes and must make longer journeys to mail their ballots from a more secure

26

27

3 Stephanie Woodard, Return to Sender: Navajo Voteres Reject Mail-in Voting, IN

THESE TIMES (Mar. 12, 2016), https://inthesetimes.com/rural-america/entry/18963/mail-

28 in-voting-on-navajo-reservation-may-violate-voting-rights-act.

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 16 of 32

1 location. Despite the difficulties in mailing back ballots, it still is the best return method in

2 those communities because inflexible work schedules and lack of transportation often mean

3 that dropping a ballot off in person at the county recorder’s office or at a polling location

4 on Election Day is not feasible.

5

48. These difficulties are exacerbated when voters, through no fault of their own,

6 do not receive their ballots in the mail until close to a week before the election is scheduled

7 to take place, requiring that the voter return the ballot personally, rather than by mail, to

8 ensure that it arrives by the deadline.

9

49. As discussed in more detail below, as a result of Arizona’s long history of

10 discrimination, Hispanic and Latino voters are also disproportionately more likely to have

11 economic or personal circumstances—including, but not limited to, language barriers and

12 limited English fluency, lack of reliable transportation to mail their ballots, or difficulties

13 in taking time off work to do the same⸺that make it even more challenging to comply with

14 the Election Day Receipt Deadline.

15

50. For example, the Election Day Receipt Deadline disparately impacts Arizona’s

16 Hispanic and Latino voters who are often less educated than white voters due to persistent

17 gaps in education. As a result, Hispanic and Latino voters are less likely to be aware of the

18 Election Day Receipt Deadline.

19

51. Further, given the lack of language assistance provided to voters⸺coupled

20 with Arizona’s sustained resistance to bilingual education and mandated English-only

21 education⸺Hispanic and Latino voters experience ongoing language barriers that make

22 them less likely to understand the instructions provided by county election officials

23 regarding the Election Day Receipt Deadline. This is further complicated by the fact that

24 historically Spanish-speaking voters have received incorrect and misleading information

25 from election officials. In the two most recent presidential cycles, for example, Spanish-

26 speaking voters received incorrect information, ranging from wrong election dates to wrong

27 titles for measures on those voters’ official ballots.

28

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1

52. Moreover, the receipt of incorrect and inaccurately translated information

2 breeds distrust and infuses more confusion into the election process, making it particularly

3 difficult for Hispanic and Latino voters to understand the shifting five, six, and seven day

4 deadlines for mailing in a mail-in ballot, particularly where those deadlines do not comport

5 with other standard deadlines for mailing government documents in Arizona.

6

53. Finally, due to disparities in income, Hispanic and Latino voters experience

7 higher rates of poverty than white voters, and often have less access to reliable

8 transportation and less flexible work schedules, both of which make it more difficult for

9 them to travel to the post office, polling location, or county recorder’s office to submit their

10 ballots in time to meet the Election Day Receipt Deadline.

11

54. Given this evidence, it is clear that voters living in rural communities and

12 Hispanic and Latino voters across the state are disproportionately affected by the Election

13 Day Receipt Deadline and, without action from this Court, will continue to be in upcoming

14 elections.

15

Arizona’s History of Discrimination Against Racial, Ethnic,

16

and Language Minorities

17

55. Arizona has a lengthy history of discrimination that has made it more difficult

18 for minorities to participate in the political process and elect candidates of their choice.

19 These discriminatory actions resulted in Arizona becoming, in 1975, a covered jurisdiction

20 subject to federal preclearance for any change to its voting laws, practices, or procedures,

21 under Section 5 of the Voting Rights Act.

22

56. When Arizona became a state in 1912, Native Americans were excluded from

23 voting.4 Even after the United States Congress passed the Indian Citizenship Act in 1924,

24
4 Hispanics were granted the right to vote in Arizona when it became a state in 1912 25 by virtue of the Treaty of Guadalupe Hidalgo, which was signed in 1848 at the close of the
Mexican-American War. The treaty required that Congress pass legislation recognizing all 26 Mexican Americans as full U.S. citizens. Prior to becoming a state, Arizona (which was a
U.S. territory) did not allow Mexican Americans to vote. Notably, as discussed herein, at 27 the time that it became a state in 1912, Arizona enacted an English literacy test which had
the effect of preventing these newly enfranchised Mexican Americans (as well as Native 28 Americans and African Americans) from voting.

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1 recognizing Native Americans as citizens and, thereby, affording them the right to vote,

2 Arizona’s Constitution continued to deny Native Americans that right. It was not until 1948

3 when the Arizona Supreme Court found that such treatment was unconstitutional that

4 Native Americans were granted the right to vote in Arizona. See Harrison v. Laveen, 196

5 P.2d 456, 463 (Ariz. 1948). Despite being granted the legal right to vote in 1948, Native

6 Americans, as well as Hispanics and African Americans, have continued to face barriers to

7 participation in the franchise and elect candidates of their choice.

8

57. In 1912, Arizona enacted an English literacy test for voting. The test was

9 enacted specifically “to limit ‘the ignorant Mexican vote.’” David R. Berman, Arizona

10 Politics and Government: The Quest for Autonomy, Democracy, and Development at 48-49

11 (UNIV. OF NEV. PRESS 1998). Furthermore, well into the 1960s it was also a practice for

12 white Arizonans to challenge minority voters at the polls by asking them to read and explain

13 literacy cards. In 1970, Congress amended the Voting Rights Act to enact a nationwide ban

14 on literacy tests after finding that they were used to discriminate against voters on account

15 of their race or ethnicity. See Oregon v. Mitchell, 400 U.S. 112, 118 (1970). In reaching that

16 finding, Congress specifically cited evidence which showed “that voter registration in areas

17 with large Spanish-American populations was consistently below the state and national

18 averages.” Id. at 132. Congress found that, “[i]n Arizona, for example, only two counties

19 out of eight with Spanish surname populations in excess of 15% showed a voter registration

20 equal to the state-wide average.” Id. Congress also noted that Arizona had a serious

21 deficiency in Native American voter registrations. See id. Rather than comply with the law

22 and repeal its literacy test, Arizona challenged the ban, arguing that it could not be enforced

23 to the extent that it was inconsistent with the State’s literacy requirement. Id. at 117. The

24 United States Supreme Court upheld Congress’s ban. Id. at 131-33. Nevertheless, Arizona

25 waited until 1972, two years after the Court’s decision, to repeal its literacy test.

26

58. Arizona’s English literacy test also compounded the effects of the State’s long

27 history of discrimination in the education of minority citizens. From 1912 until the Supreme

28 Court’s decision in Brown v. Board of Education, segregated education was widespread

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1 throughout Arizona, and sanctioned by both the courts and the state legislature. See

2 Dameron v. Bayless, 126 P. 273 (Ariz. 1912); see also Ortiz v. Jack, No. Civ-1723 (D. Ariz.

3 1955) (discontinuing segregation of Mexican children at schools); Gonzales v. Sheely, 96

4 F. Supp. 1004, 1008-09 (D. Ariz. 1951) (enjoining segregation of Mexican school children

5 in Maricopa County). Spanish-speaking students were directly targeted based on their

6 language.

7

59. Even where schools were not segregated, Arizona enacted restrictions on

8 bilingual education, mandating English-only education in public schools as early as 1919.

9 See James Thomas Tucker, et al., Voting Rights in Arizona: 1982-2006, 17 Rev. L. & Soc.

10 Justice 283, 284 (2008). Many of these English-only restrictions have remained in effect in

11 some form to the present day, despite the fact that such programs have led to poor

12 educational outcomes for Arizona’s students. See id. at 339-40 (noting “[t]he available

13 evidence in Arizona reveals that bilingual education programs have been more effective at

14 raising students’ test scores than [English-immersion programs]”).

15

60. Indeed, as recently as 2000, Arizona banned bilingual education with the

16 passage of Proposition 203. This ballot initiative, which is only the second of its kind to be

17 passed in the United States, is the most restrictive ban on bilingual education in the nation.

18 In addition to severely restricting the educational opportunities of limited English-

19 proficiency students in Arizona, the law has led to widespread confusion and discrimination

20 as well, with reports of students being slapped for speaking Spanish at school and teachers

21 being afraid they will be fired if they communicate with students in Spanish, even when

22 outside of the classroom. Id. at 341.

23

61. In addition to Arizona’s formal prohibitions on bilingual education, the State

24 has a long record of failing to provide adequate funding to teach its non-English speaking

25 students—one of “the largest and fastest-growing segments of the school population in

26 Arizona.” Id. at 338-39 (“As of 2000, there were almost 140,000 [non-English speaking]

27 students enrolled in Arizona public schools.”); see also id. at 339. In some instances, the

28 State has reportedly underfunded its programs for non-English speaking students by as

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1 much as ninety percent, leading to high illiteracy and dropout rates. Remarkably, this

2 underfunding has taken place despite multiple court orders instructing Arizona to develop

3 an adequate funding formula for its programs, including a 2005 order in which Arizona was

4 held in contempt of court for refusing to provide adequate funding for its educational

5 programs. Flores v. Arizona, 405 F. Supp. 2d 1112 (D. Ariz. 2005), vacated, 204 Fed. App’x

6 580 (9th Cir. 2006).

7

62. Arizona’s history of segregation, limitations on bilingual education, and

8 systemic underfunding of education for non-English speaking students not only contributes

9 to educational disparities amongst Arizona’s Hispanic and Native American populations

10 but, when combined with Arizona’s literacy test, has had the effect of denying Hispanics

11 and Native Americans the right to vote and elect candidates of their choice.

12

63. More recently, Arizona passed discriminatory measures to make it more

13 difficult for minority voters to cast their ballots and elect candidates of their choice. In

14 2016, elections officials in Arizona’s most populous county, Maricopa County, made

15 national headlines when, due to their decision to drastically reduce the number of voting

16 locations for the March 22 presidential preference election, they forced thousands of voters

17 to wait in lines for upwards of five hours to cast their votes for their preferred presidential

18 nominee. In many cases, voters were unable to wait in these multi-hour lines and were

19 wholly disenfranchised. The reduction of voting locations was particularly burdensome for

20 Maricopa County’s Hispanic and African-American communities, many of which had

21 fewer polling locations than Anglo communities and, in some instances, no voting locations

22 at all.

23

64. Also in 2016, the Arizona State Legislature passed H.B. 2023, which severely

24 restricted the collection of mail-in ballots. Prior to H.B. 2023’s passage, Native American,

25 Hispanic, and African-American voters relied heavily on the practice of ballot collection to

26 overcome the challenges they face in returning mail-in ballots⸺e.g., unreliable mail

27 service, restrictive work schedules, lack of access to transportation⸺and to ensure that their

28 ballots arrived at the county recorder’s office by the Election Day Receipt Deadline. H.B.

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 21 of 32

1 2023 was passed largely along partisan lines; supporters of the bill not only ignored the

2 devastating impact that the loss of ballot collection would have on these communities, but

3 they also utilized racial appeals in securing its passage. See DNC, 329 F. Supp. 3d at 876-

4 77. Though a challenge to H.B. 2023 is pending in federal court, ballot collection in Arizona

5 remains severely restricted to date.

6

65. Due to its long history of discrimination, Arizona was one of only three states

7 to be covered under Section 4(f)(4) of the Voting Rights Act for Spanish Heritage. Twelve

8 of its 15 counties, including Maricopa County, are also covered separately under Section

9 203, which requires minority language assistance. As a result of its inclusion under the

10 Voting Rights Act, Arizona had some improvements in the numbers of Hispanics and

11 Native Americans registering and voting and, relatedly, in the overall representation of

12 minority-elected officials in the State.

13

66. Nevertheless, Arizona also has a recognized history of racially polarized

14 voting that continues today. See DNC, 329 F. Supp. at 876; Feldman v. Ariz. Sec’y of State’s

15 Office, 843 F.3d 366, 406-07 (9th Cir. 2016); Gonzalez v. Arizona, 677 F.3d 383, 407 (9th

16 Cir. 2012), aff’d sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (2013).

17 In the most recent redistricting cycle, the Arizona Independent Redistricting Commission

18 found that at least one congressional district and five legislative districts clearly exhibited

19 racially polarized voting. See Gary King, et al., Racially Polarized Voting Analysis (Draft),

20 Ariz. Indep. Redistricting Comm’n, 10, 20 (2011), available at

21 https://azredistricting.org/Meeting-Info/AZ%20racially%20polarized%20voting%20analy

22 sis%20112911%20-%20DRAFT.pdf. Exit polls for the 2016 general election demonstrate

23 that voting between non-minorities and Hispanics continues to be polarized along racial

24 lines. DNC, 329 F. Supp. 3d at 876.

25

67. Thus, only one Hispanic and African American have ever been elected to

26 statewide office, and Arizona has never elected a Native American to statewide office. No

27 Native American or African American has ever been elected to the U.S. House of

28 Representatives to represent Arizona or served on the Arizona Supreme Court. Further, no

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1 Hispanic, Native American, or African American has ever served as a U.S. Senator

2 representing Arizona or as Attorney General for the State of Arizona.

3

68. It is also well-settled that “[r]acial disparities between minorities and non-

4 minorities in socioeconomic standing, income, employment, education, health, housing,

5 transportation, criminal justice, and electoral representation have persisted in Arizona.”

6 DNC, 329 F. Supp. 3d at 876.

7

69. According to the U.S. Census Bureau’s 2013-2017 American Community

8 Survey 5-Year Estimates, Hispanic, African-American, and Native-American poverty rates

9 in Arizona exceeded the white poverty rate for that same time period. Based on the 5-Year

10 Estimates, as of 2017, Hispanics, Native Americans, and African Americans were all less

11 likely to graduate high school in Arizona than whites were. Further, whites were nearly 1.5

12 times more likely to have a bachelor’s degree than African Americans, almost three times

13 more likely than Hispanics, and more than three times as likely as Native Americans in

14 Arizona.

15

70. Decades of research have demonstrated that deficiencies in socio-economic

16 standing, such as those described above, significantly impact an individual’s ability to fully

17 participate in the political process, and the interaction between these deficiencies and the

18 Election Day Receipt Deadline is no different.

19

71. There is a clear causal link between Arizona’s history of discrimination and

20 the likelihood that a voter will miss the Election Day Receipt Deadline. For example,

21 Arizona’s history of language-based discrimination—including a recent history of errors in

22 Spanish-language voting materials—makes it far more likely for Spanish-speaking voters

23 to be misinformed about voting rules, such as when they must mail their ballots and when

24 their ballot needs to arrive by. As one court has explained, “[d]ue to their lower levels of

25 literacy and education, minority voters are more likely to be unaware of certain technical

26 rules, such as the requirement that early ballots be received by the county recorder, rather

27 than merely postmarked, by 7:00 p.m. on Election Day.” See DNC, 329 F. Supp. 3d at 868.

28 Minority voters are more likely to live in lower-income and tribal communities, many of

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 23 of 32

1 which lack secure outgoing mailboxes, which makes it more difficult to return a mail ballot.

2 The disparate lack of reliable access to transportation also makes minority voters less able

3 to access a sometimes far-flung post office or outgoing mail box. And economic constraints

4 often require minorities to work multiple jobs and shift-work, which often results in less

5 flexibility to turn in a mail ballot by another means such as in-person at the county

6 recorder’s office or a polling location.

7

72. Thus, the on-going effects of Arizona’s history of discrimination are directly

8 linked to the Election Day Receipt Deadline and the burdens that it places on Arizona’s

9 minority voters. 10

CLAIMS FOR RELIEF

11

COUNT I

12

First and Fourteenth Amendments

13

U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202

Undue Burden on the Right to Vote

14

15

73. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

16 Complaint and the paragraphs in the counts below as though fully set forth herein.

17

74. Under the Anderson-Burdick balancing test, a court considering a challenge to

18 a state election law must carefully balance the character and magnitude of injury to the First

19 and Fourteenth Amendment rights that the plaintiff seeks to vindicate against the

20 justifications put forward by the State for the burdens imposed by the rule. See Burdick v.

21 Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

22

75. This balancing test utilizes a flexible sliding scale, where the rigorousness of

23 scrutiny depends upon the extent to which the challenged law burdens voting rights. See

24 Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1024 (9th Cir. 2016); see also

25 Akins v. Sec’y of State, 154 N.H. 67 (2006) (applying Anderson-Burdick and holding that

26 strict scrutiny was the correct test to determine constitutionality of ballot order system that

27 prioritized candidate names alphabetically).

28

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1

76. Courts need not accept a state’s justifications at face value, particularly where

2 those justifications are “speculative,” otherwise it “would convert Anderson-Burdick’s

3 means-end fit framework into ordinary rational-basis review wherever the burden a

4 challenged regulation imposes is less than severe.” Soltysik v. Padilla, 910 F.3d 438, 448–

5 49 (9th Cir. 2018) (citing Pub. Integrity All., 836 F.3d at 1024–25); see also Crawford v.

6 Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling op.) (“However

7 slight th[e] burden may appear, . . . it must be justified by relevant and legitimate state

8 interests sufficiently weighty to justify the limitation.”) (internal citation and quotation

9 marks omitted) (emphasis added).

10

77. Arizona’s Election Day Receipt Deadline imposes a severe burden on all

11 Arizona voters who vote by mail. These voters must first learn about the Election Day

12 Receipt Deadline and accurately guess when their ballot must be mailed for it to be counted.

13 For voters who, through no fault of their own, misjudge how long it will take for their ballot

14 to arrive back to their county, or for those who never learn about Arizona’s Election Day

15 Receipt Deadline, the punishment is swift and severe: total disenfranchisement. But

16 Arizona’s Election Day Receipt Deadline also severely burdens all voters who vote by mail

17 even if those voters’ ballots are successfully counted. By requiring its voters to cast their

18 mail ballots a week before the election in order for those ballots be counted, Arizona’s

19 Election Day Receipt Deadline forces Arizona voters to cast their ballots before they can

20 account for any critical information about the election or the candidates that arises during

21 the final week leading up to Election Day⸺arguably, the most critical week in an entire

22 election cycle. Arizona’s Election Day Receipt Deadline thus deprives voters of the ability

23 to engage in this robust period of civic engagement, because it effectively requires them to

24 have already cast their vote.

25

78. While Arizona’s imposition of its Election Day Receipt Deadline burdens all

26 Arizona voters who vote by mail, it also particularly impacts subgroups, like Arizona’s rural

27 population and its Hispanic and Latino voters, who, given where they live, must often cast

28 their ballots even further in advance of Election Day to ensure their ballots will arrive by

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 25 of 32

1 the Election Day Receipt Deadline. Arizona’s Election Day Receipt Deadline also generally

2 imposes a particularly heavy burden on Hispanic and Latino voters, who face heightened

3 barriers to participation in Arizona’s mail ballot system.

4

79. While Arizona has a legitimate regulatory interest in a general cutoff for

5 receiving ballots, the State derives no meaningful benefit from imposing the Election Day

6 Receipt Deadline, particularly where it has heavily promoted mail-in balloting and

7 encouraged over 80 percent of its electorate to vote by mail. Arizona has a full 20 days to

8 finalize election results, and it already allows voters to cure otherwise incomplete ballots a

9 full five business days after Election Day. Arizona would suffer no significant

10 administrative burden if it extended that same five-business-day deadline to permit for the

11 receipt of ballots that were postmarked on or before Election Day, but which arrive within

12 five business days after the election. Arizona thus has no legitimate interest, and certainly

13 no compelling interest that is narrowly drawn, in rejecting ballots that are postmarked

14 before or on Election Day and which are received within five business days after Election

15 Day.

16

80. In short, Arizona’s Election Day Receipt Deadline is not supported by a state

17 interest that is sufficient to justify the resulting burden on the right to vote, and thus unduly

18 burdens the right to vote of all Arizona voters generally and Arizona’s rural and Hispanic

19 and Latino voters in particular in violation of the First and Fourteenth Amendments.

20 COUNT II

21

Due Process

22

U.S. Const. Amend. XIV, 42 U.S.C. § 1983

23

Denial of Procedural Due Process

24

81. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

25 Complaint and the paragraphs in the counts below as though fully set forth herein.

26

82. The Due Process Clause of the United States Constitution prohibits the states

27 from depriving “any person of . . . liberty . . . without due process of law.” U.S. CONST.

28 amend. XIV, § 1. Which protections are due in a given case requires a careful analysis of

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1 the importance of the rights and the other interests at stake. See Mathews v. Eldridge, 424

2 U.S. 319, 334–35 (1976); Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178, 1192 (9th

3 Cir. 2015). Courts must first consider “the nature of the interest that will be affected” by the

4 government’s action as well as the “degree of potential deprivation that may be created” by

5 existing procedures. Nozzi, 806 F. 3d at 1192–93. Second, “courts must consider the

6 ‘fairness and reliability’ of the existing procedures and the ‘probable value, if any, of

7 additional procedural safeguards.’” Id. at 1193 (quoting Mathews, 424 U.S. at 343). Finally,

8 courts must consider “the public interest, which ‘includes the administrative burden and

9 other societal costs that would be associated with’ additional or substitute procedures. Id.

10 (quoting Mathews, 424 U.S. at 347). Overall, “due process is flexible and calls for such

11 procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334,

12 (quotation and citation omitted).

13

83. Arizona’s procedures for voting by mail must comport with due process. See

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

15 “Such due process is not provided when the election procedures [for voting by mail]” do

16 not adequately protect the right to vote or ensure that an “individual is not continually and

17 repeatedly denied so fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp.

18 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State

19 must provide adequate process to ensure that voters' ballots are fairly considered and, if

20 eligible, counted.”).

21

84. “When an election process ‘reache[s] the point of patent and fundamental

22 unfairness,’ there is a due process violation.” Fla. State Conference of N.A.A.C.P. v.

23 Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) (quoting Roe v. Alabama, 43 F.3d 574,

24 580 (11th Cir. 1995)). A state’s elections system, “the specifics of which are not explicitly

25 made known to potential voters, that leaves potential voters in the dark as to its effect on a

26 voter’s [ability to vote] and that fails to give voters a fair opportunity to [participate], is

27 fundamentally unfair and violative of the Due Process Clause of the Fourteenth

28 Amendment.” Id. at 1185.

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1

85. The nature of the interest at stake in this case⸺the right to vote and to have

2 that vote count⸺is the most precious liberty interest of all because it is preservative of all

3 other basic civil and political rights.

4

86. But Arizona’s existing procedures for counting mail ballots too often deprive

5 voters of having their ballot counted because (1) many voters do not learn of the Election

6 Day Receipt Deadline before Election Day, and (2) even voters who do learn of the Election

7 Day Receipt Deadline may not have their ballots counted if those ballots do not arrive in

8 the mail at the county recorder’s office, through no fault of their own, by 7 p.m. on Election

9 Day. Arizona’s Pre-Election Cutoff further deprives all Arizona voters who vote by mail of

10 the ability to cast a meaningful and informed vote by requiring voters to cast their ballots a

11 full week (or more) before Election Day if they wish to ensure that their ballots will actually

12 be counted.

13

87. Arizona’s Election Day Receipt Deadline is neither a reliable nor fair way to

14 administer voting by mail. The Election Day Receipt Deadline and the corresponding Pre-

15 Election Cutoff for casting ballots is, in fact, devoid of reliability because Arizona’s

16 elections officials can only offer voters their best guess of when voters must place their

17 ballots in the mail for it to be counted. Nor is the Election Day Receipt Deadline fair because

18 it effectively requires some voters—particularly rural voters and minority voters—to cast

19 their ballots before the rest of the electorate if they wish to be afforded the same process as

20 other voters in the State and to have their votes counted. Arizona’s Election Day Receipt

21 Deadline is also not fair to all Arizona voters who vote by mail because it forces those voters

22 to cast their ballots with incomplete information and before candidates have delivered their

23 final pitches to the voters.

24

88. The value of additional or substitute procedural safeguards to ensure that the

25 votes of Arizona’s mail voters are both meaningfully cast and actually counted is readily

26 apparent. A substitute procedure⸺requiring mail ballots to be postmarked on or before

27 Election Day and received by the county within five business days after Election Day to be

28 counted⸺solves the inequities inherent in Arizona’s Election Day Receipt Deadline. A

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 28 of 32

1 postmark date not only offers a reliable date to Arizona voters by which they must cast their

2 ballots, but it also ensures that rural voters and minority voters are not more likely to have

3 their ballot rejected simply because they live in a town with slower mail service. A postmark

4 date additionally ensures that all of Arizona’s voters can consider any information that may

5 arise and influence voters’ choices in the last week of the election.

6

89. Because Arizona is not required to finalize its election results for 20 days after

7 the election and already allows voters to cure incomplete ballots within five business days

8 of the election, requiring Arizona to accept ballots that are postmarked on or before Election

9 Day and which arrive within five business days of Election Day would put a minimal

10 administrative burden on the state, if any. And as the Supreme Court has explained,

11 “administrative convenience” cannot justify the deprivation of a constitutional right. See

12 Taylor v. Louisiana, 419 U.S. 522, 535 (1975).

13

90. Having induced its voters to vote by mail, Arizona must establish adequate

14 procedures to ensure that voters have a reliable, fair, and effective method to cast their

15 ballots. Because Arizona’s Election Day Receipt Deadline is markedly inadequate in all of

16 those respects, and Arizona is readily capable of instituting a substitute procedure which

17 would protect those voters’ rights with minimal burden to the state, Arizona’s Election Day

18 Receipt Deadline violates Arizona voters’ procedural due process rights.

19 COUNT III

20

Section 2 of the Voting Rights Act - Effects Prong

21

52 U.S.C. § 10301(a)

Denial or Abridgement of the Right to Vote 22

23

91. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

24 Complaint and the paragraphs in the counts below as though fully set forth herein.

25

92. Section 2 of the Voting Rights Act provides in part that “[n]o voting

26 qualification or prerequisite to voting or standard, practice, or procedure shall be imposed

27 or applied by any State . . . in a manner which results in a denial or abridgement of the right

28 of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a).

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 29 of 32

1

93. Arizona’s Election Day Receipt Deadline has had and—if this Court does not

2 institute the remedy that Plaintiffs request—will continue to have, an adverse and disparate

3 impact on Hispanic and Latino citizens of Arizona.

4

94. The Election Day Receipt Deadline makes it more difficult for members of

5 Arizona’s Hispanic and Latino community, as compared to white voters, to participate in

6 the political process and to elect representatives of their choice. These voters are more likely

7 than white voters to be unaware of the Election Day Receipt Deadline, have their mail

8 ballots arrive after Election Day, and have their ballots rejected.

9

95. Thus, these voters are highly likely to face substantial burdens when voting,

10 which are more likely to result in their disparate disenfranchisement and a reduction of their

11 participation in future elections.

12

96. Hispanics in Arizona have suffered from, and continue to suffer from,

13 discrimination on the basis of race. The ongoing effects of this discrimination include

14 socioeconomic disparities between Hispanics and whites in Arizona. Arizona’s history of

15 language-based discrimination—including a recent history of errors in Spanish-language

16 voting materials—also makes it far more likely for Spanish-speaking voters to be

17 misinformed about voting rules, such as when they must mail their ballots and when their

18 ballot needs to arrive by. “Due to their lower levels of literacy and education, minority

19 voters are more likely to be unaware of certain technical rules, such as the requirement that

20 early ballots be received by the county recorder, rather than merely postmarked, by 7:00

21 p.m. on Election Day.” See DNC, 329 F. Supp. 3d at 868. These language barriers,

22 disparities in access to reliable mail service, educational attainment, and other disparities

23 resulting at least in part from the State’s long history of discrimination against these

24 communities all cause the Election Day Receipt Deadline to disparately disenfranchise

25 Hispanic and Latino voters. The Election Day Receipt Deadline has caused and will

26 continue to cause an inequality in the opportunity of members of these minority

27 communities to vote in Arizona.

28

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 30 of 32

1

97. Under the totality of the circumstances, Hispanics and Latinos in Arizona have

2 had—and will continue to have—less opportunity than other members of the electorate to

3 participate in the political process and to elect representatives of their choice as a result of

4 Arizona’s Election Day Receipt Deadline. Hispanics and Latinos in Arizona therefore have

5 had—and will continue to have—their right to vote abridged or denied on account of race

6 due to the Election Day Receipt Deadline. Thus, under the totality of the circumstances,

7 Arizona’s Election Day Receipt Deadline violates the effects prong of Section 2 of the

8 Voting Rights Act.

9

PRAYER FOR RELIEF

10 WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

11

A. Declaring that Arizona’s imposition of its Election Day Receipt Deadline for

12 casting mail ballots and its failure to count the votes of otherwise eligible voters who

13 lawfully mail their ballots before or on Election Day, but whose ballots are not received—

14 through no fault of their own—by 7 p.m. on Election Day, violates the First and Fourteenth

15 Amendments to the United States Constitution by placing an undue burden on those voters

16 and particularly on Arizona’s rural and Hispanic and Latino voters by subjecting them to

17 arbitrary and disparate treatment;

18

B. Declaring that Arizona’s imposition of its Election Day Receipt Deadline for

19 casting mail ballots and its failure to count the votes of otherwise eligible voters who

20 lawfully mail their ballots before or on Election Day, but whose ballots are not received—

21 through no fault of their own—by 7 p.m. on Election Day violates the Due Process Clause

22 of the Fourteenth Amendment to the United States Constitution;

23

C. Declaring that Arizona’s imposition of its Election Day Receipt Deadline for

24 casting mail ballots and its failure to count the votes of otherwise eligible voters who

25 lawfully mail their ballots before or on Election Day, but whose ballots are not received—

26 through no fault of their own—by 7 p.m. on Election Day, disparately impacts Hispanic

27 and Latino voters and violates Section 2 of the Voting Rights Act;

28

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 31 of 32

1

D. Permanently enjoining the Secretary, her respective agents, officers,

2 employees, and successors, and all persons acting in concert with each or any of them,

3 from rejecting ballots that are postmarked by Election Day and arrive at a county recorder’s

4 office within five business days of Election Day;

5

E. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees

6 pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and

7

F. Granting such other and further relief as the Court deems just and proper,

8 including requiring the Secretary to accept ballots that were postmarked on or before

9 Election Day if received within five business days of Election Day.

10

11 Dated: November 26, 2019 12
13
14

s/ Sarah R. Gonski
Sarah R. Gonski (# 032567) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788

15

Marc E. Elias*

16

John Devaney*

Amanda R. Callais*

17

K’Shaani O. Smith*

Christina A. Ford*

18

Perkins Coie LLP

19

700 Thirteenth Street NW, Suite 600

Washington, D.C. 20005-3960

20

21

*Pro hac vice application to be filed

22

Attorneys for Plaintiffs

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Case 2:19-cv-05685-DWL Document 1 Filed 11/26/19 Page 32 of 32

1

CERTIFICATE OF SERVICE

2

I hereby certify that on November 26, 2019, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

4

5

s/ Sarah R. Gonski

6

7

8

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 Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 1 of 25

1 Sarah R. Gonski (Bar No. 032567) PERKINS COIE LLP
2 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788
3 Telephone: 602.351.8000 Facsimile: 602.648.7000
4 SGonski@perkinscoie.com DocketPHX@perkinscoie.com
5 Marc E. Elias*
6 John Devaney* Amanda R. Callais*
7 K’Shaani O. Smith** Christina A. Ford**
8 PERKINS COIE LLP 700 Thirteenth Street NW, Suite 600
9 Washington, D.C. 20005-3960 Telephone: 202.654.6200
10 Facsimile: 202.654.6211 melias@perkinscoie.com
11 jdevaney@perkinscoie.com acallais@perkinscoie.com
12 kshaanismith@perkinscoie.com christinaford@perkinscoie.com
13 *Admitted Pro hac vice
14 **Pro hac vice application to be filed

15 Attorneys for Plaintiffs

16

UNITED STATES DISTRICT COURT

17

DISTRICT OF ARIZONA

18 Voto Latino, Inc. and Priorities USA,

No. 2:19-cv-05685-PHX-DWL

19

Plaintiffs,

20

v.

21 Katie Hobbs, in her official capacity as Arizona Secretary of State,
22 Defendant.
23

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24

25

26

27

28

Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 2 of 25

1

Plaintiffs Voto Latino, Inc. and Priorities USA, through the undersigned attorneys,

2 file this Amended Complaint for Declaratory and Injunctive Relief against Katie Hobbs, in

3 her official capacity as the Arizona Secretary of State (“Secretary”), and upon information

4 and belief allege as follows:

5

NATURE OF THE CASE

6

1. During the 2016 presidential preference election, 72,304 Arizonans cast their

7 ballot for Marco Rubio to become the Republican presidential candidate—even though

8 Rubio had withdrawn from the race several days prior to the election. Why did so many

9 Arizonans waste their vote on a ghost candidate? Because they were among the nearly 80%

10 of Arizonans who vote by mail, and Arizona’s law requiring that mail-in ballots be received

11 by 7:00 p.m. on Election Day—not postmarked—means that voters must cast and mail their

12 ballots well in advance of Election Day to be considered timely. A.R.S. § 16-548(A). By

13 the time voters heard of the critical information, their votes had already been cast.

14

2. Voters in that election were by no means the only voters negatively impacted

15 by Arizona’s deadline. Election after election, thousands of otherwise eager voters are

16 caught unaware by the fact that Arizona requires ballots to be received by 7 p.m. on Election

17 Day (“Election Day Receipt Deadline”). A.R.S. § 16-548(A). In 2008, at least 1,611 ballots

18 were rejected for arriving after the Election Day Receipt Deadline, even though many of

19 them were mailed multiple days before election day. That number is steadily increasing. In

20 2012, more than double that number⸺4,107 ballots⸺were rejected. And in the 2018

21 midterm election, a lower turnout election than either the 2008 and 2012 general election,

22 more than 2,500 ballots were rejected because they arrived after the Election Day Receipt

23 Deadline. A disproportionate number of these ballots were cast by Arizona’s Hispanic and

24 other minority voters.

25

3. It is not surprising that such a large number of ballots arrive after Arizona’s

26 Election Day Receipt Deadline; A.R.S. § 16-548(A) effectively creates a second, little-

27 known shadow deadline, the “Pre-Election Cutoff.” Arizona’s election officials define the

28 Pre-Election Cutoff in various ways, but all appear to agree that a ballot must be mailed at

Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 3 of 25

1 least five full days in advance of the election—and sometimes six or seven days—to have

2 a reasonable certainty that it will arrive in time to be counted. If the ballot is received after

3 7 p.m. on Election Day, the ballot is discarded. Even if the ballot was postmarked well in

4 advance of Election Day, including before or during the five to seven recommended days,

5 but failed to arrive because of mail irregularities, the ballot is rejected.

6

4. As a result, Arizona’s Election Day Receipt Deadline, and the corresponding

7 Pre-Election Cutoff it necessitates, confuses voters and confounds their reasonable

8 expectations. In nearly all other mail-related deadlines in modern life, mail is considered

9 timely if it is postmarked by the applicable deadline. Even in Arizona, in non-election

10 contexts such as tax and insurance payments, postmarks are used to guide deadlines for

11 mail-related activities. Further—as illustrated above—late-breaking changes routinely alter

12 political dynamics during the final days before an election. Voters have a reasonable

13 expectation that they can (and should) evaluate the candidates and issues up to and including

14 Election Day.

15

5. Arizona has no legitimate interest in enforcing the Election Day Receipt

16 Deadline, particularly where over the last decade it has pushed voters across the State to

17 utilize mail voting. Although Arizona may certainly set a reasonable deadline to receive

18 ballots to ensure the finality of election results, the current Election Day Receipt Deadline

19 is unreasonable and disenfranchising: it is contrary to voters’ reasonable expectations,

20 necessitates that ballots be cast far earlier than they need to be, and is poorly communicated

21 to voters. Moreover, it has real consequences for elections. Over the last several election

22 cycles, multiple races in Arizona have been decided by margins of mere hundreds of votes

23 and in some cases far less⸺1,500 to even 30 votes could easily make the difference in an

24 election outcome. And allowing the State to count these votes could correspondingly save

25 the State and counties significant amounts of money spent on costly recounts and post-

26 election litigation.

27

6. The State can still serve its election administration interest by accepting ballots

28 postmarked by Election Day and received within a reasonable time⸺five business days, at

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1 a minimum⸺thereafter. After all, Arizona need not complete its total vote count until 20

2 days after Election Day. A.R.S. § 16-642(A). And Arizona already contemplates that a

3 certain number of ballots will not be countable right away; ballots that arrive in a timely but

4 incomplete fashion are curable up to five business days after Election Day. Id. § 16-550.

5 Counting ballots that have been postmarked by Election Day, as long as they are received

6 within five business days of Election Day, at a minimum, would serve the State’s interests

7 in finality of results without unduly burdening its voters. It would also ensure that all

8 Arizona voters have sufficient protections in place to ensure that their right to vote is not

9 arbitrarily and repeatedly denied.

10

7. While the Election Day Receipt Deadline affects all Arizona voters, it

11 particularly disenfranchises Arizonans in rural counties. In 2018, for example, voters in

12 rural Navajo County were 4.5 times more likely to have their mail ballot rejected for arriving

13 after the Election Day Receipt Deadline than voters in urban Maricopa County. In rural

14 Cochise County, that ratio jumped to 5.1, and in rural Santa Cruz County, voters were 5.9

15 times more likely to have their ballot rejected for arriving after the Election Day Receipt

16 Deadline than voters in Maricopa County.

17

8. In rural areas, mail service is unreliable and delay-ridden. Instead of going

18 directly from one rural address to another nearby address, local mail in rural areas is often

19 re-routed through a central processing facility in Phoenix, which increases delivery times.

20 As a consequence, rural voters must take particular care to mail their ballot well in advance

21 of Election Day and are especially vulnerable to Arizona’s refusal to count ballots that

22 arrive after the Election Day Receipt Deadline.

23

9. Further, the Election Day Receipt Deadline has particularly profound

24 implications for Arizona’s Hispanic and Latino voters. Statistically, they comprise a

25 disproportionately significant portion of voters whose ballots are rejected under the Election

26 Day Receipt Deadline. Indeed, in Maricopa County, Hispanic and Latino voters are twice

27 as likely to be disenfranchised by the Election Day Receipt Deadline than white voters. And

28 in rural counties with high Hispanic and Latino populations such as Santa Cruz, where 83%

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1 of the population is Hispanic/Latino, ballots are 7.6 times more likely to be rejected for

2 arriving after the Election Day Receipt Deadline.

3

10. The reasons for this disparity are varied, but each is traceable to Arizona’s long

4 history of discrimination against minority voters and, particularly, against members of its

5 Hispanic and Latino community. First, discrimination in education has led to persistent

6 gaps that have left these minority voters less educated than their white counterparts, which

7 makes them less likely to be aware of the Election Day Receipt Deadline. Second, given the

8 lack of language assistance provided to voters⸺coupled with Arizona’s sustained

9 resistance to bilingual education and mandated English-only education⸺Hispanic and

10 Latino voters are less likely to understand the instructions provided by county election

11 officials regarding the Election Day Receipt Deadline, particularly when those instructions

12 are inconsistent. Third, due to disparities in income, Hispanic and Latino voters experience

13 higher rates of poverty than white voters, and have less access to reliable transportation and

14 often less flexible work schedules, both of which make it more difficult for them to turn in

15 a mail ballot by other means, such as in-person at the county recorder’s office or a polling

16 location by the Election Day Receipt Deadline.

17

11. Arizona’s unjustified imposition of the Election Day Receipt Deadline violates

18 the First and Fourteenth Amendments because it imposes an undue burden on voters that is

19 not outweighed by any legitimate interest on the part of the State. Further, the Election Day

20 Receipt Deadline strips voters of their right to procedural due process. For all these reasons,

21 the Election Day Receipt Deadline should be enjoined.

22

JURISDICTION AND VENUE

23

12. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress

24 the deprivation under color of state law of rights secured by the United States Constitution.

25

13. This Court has original jurisdiction over the subject matter of this action

26 pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the

27 Constitution and laws of the United States.

28

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1

14. This Court has personal jurisdiction over Defendant, who is sued in her

2 official capacity only.

3

15. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial

4 part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district.

5

16. This Court has the authority to enter a declaratory judgment and to provide

6 permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil

7 Procedure and 28 U.S.C. §§ 2201 and 2202.

8

PARTIES

9

17. Plaintiff Voto Latino, Inc. is a nonprofit organization that engages, educates,

10 and empowers Latino communities across the United States, working to ensure that Latinos

11 are enfranchised and included in the democratic process. In furtherance of its mission, Voto

12 Latino expends significant resources to register and mobilize thousands of Latino voters

13 each election cycle, including the nearly 1 million eligible Latino voters in Arizona. Since

14 2010, Voto Latino has been mobilizing Latino voters in Arizona through statewide voter

15 registration initiatives as well as peer-to-peer and digital voter education and get-out-the-

16 vote campaigns. As part of Voto Latino’s voter education and get-out-the-vote campaigns,

17 the organization educates voters, among other things, on when to cast their mail ballots. In

18 2020, Voto Latino anticipates making expenditures in the millions of dollars to educate,

19 register, mobilize, and turn out Latino voters across the United States, including in Arizona.

20 Arizona’s Election Day Receipt Deadline directly harms Voto Latino by frustrating its

21 mission of enfranchising and turning out Latino voters in Arizona because it burdens and

22 disenfranchises the very voters that Voto Latino seeks to support. As a result, Voto Latino

23 has had to—and will continue to—expend and divert additional funds and resources that it

24 would otherwise spend on its efforts to accomplish its mission in other states or its own

25 registration efforts in Arizona, to turn out these voters and to combat the effects that

26 Arizona’s Election Day Receipt Deadline has on Latino voters.

27

18. Plaintiff Priorities USA (“Priorities”) is a 501(c)(4) nonprofit, voter-centric

28 progressive advocacy and service organization. Priorities’ mission is to build a sustainable

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1 infrastructure to engage Americans in the progressive movement by running a permanent

2 digital campaign to persuade and mobilize citizens around issues and elections that affect

3 their lives. In furtherance of this purpose, Priorities works to help educate, mobilize, and

4 turn out voters across the country, including in Arizona. In 2020, Priorities expects to make

5 millions of dollars of contributions and expenditures to educate, mobilize, and turn out

6 voters in state and federal elections around the country, including thousands of dollars to

7 educate, mobilize, and turn out voters in Arizona elections. Arizona’s enforcement of its

8 Election Day Receipt Deadline for casting ballots directly harms Priorities because it

9 burdens and disenfranchises the voters Priorities supports through its work and

10 contributions in Arizona. As a result, Priorities has to expend and divert additional funds

11 and resources in GOTV, voter education efforts, mobilization, and turn-out activities in

12 Arizona, at the expense of its voter support initiatives in other states and other voter

13 education and turnout programs in Arizona.

14

19. Defendant Katie Hobbs is sued in her official capacity as Secretary of State for

15 the State of Arizona (the “Secretary”). The Secretary is a person within the meaning of 42

16 U.S.C. § 1983 and acts under color of state law. She is the Chief Elections Officer for

17 Arizona. A.R.S. § 16-142(A)(1). As Arizona’s Chief Elections Officer, the Secretary is

18 responsible for overseeing the voting process in Arizona and is empowered with broad

19 authority to carry out that responsibility. The Secretary also issues the Arizona Election

20 Procedures Manual (“Manual”), which establishes election procedures and administration

21 across Arizona’s 15 counties. A.R.S. § 16-452. The Manual is approved by the Governor

22 and the Arizona Attorney General and carries the force of law. A.R.S. § 16-452(B). Arizona

23 law also requires the Secretary, after consulting with county officials, to “prescribe rules to

24 achieve and maintain the maximum degree of correctness, impartiality, uniformity and

25 efficiency on the procedures for early voting and voting, and of producing, distributing,

26 collecting, counting, tabulating and storing ballots.” A.R.S. § 16-452(A). Thus, the

27 Secretary directs county officials, who are responsible for physically counting ballots,

28 regarding when to count or reject ballots.

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1

GENERAL ALLEGATIONS

2

Mail Voting in Arizona

3

20. Arizonans have a right to vote by mail. A.R.S. § 16-541(A). Over the past

4 decade, early voting by mail has grown exponentially in Arizona. In the 2008 general

5 election, for example, just over a million Arizona voters cast their ballot by mail. By the

6 2016 general election, that number had doubled to over two million voters. In 2018, a

7 lower-turnout midterm election, over 1.9 million voters voted by mail. This rapid growth in

8 mail ballots is not surprising. Arizona has engaged in extensive efforts to increase its use.

9

21. Since 2007, Arizona has maintained a Permanent Early Voter List, commonly

10 known as the “PEVL,” under which any Arizona voter can choose to automatically receive

11 a mail ballot for every election. A.R.S. § 16-544(A). Since the PEVL’s creation, Arizona

12 has actively encouraged its voters to sign up and participate in the program. As a result,

13 mail voting is exceedingly popular in Arizona, and today approximately 80% of Arizona

14 voters receive their ballot in the mail.

15

22. Voters who are enrolled in the PEVL, or who request a mail ballot at least 27

16 days before the election, are entitled to be sent a mail ballot between 24 and 27 days before

17 the election. A.R.S. § 16-542(C). A mail ballot is sent to voters by first-class, non-

18 forwardable mail. It must be accompanied by a postage-prepaid return envelope, an

19 affidavit, and instructions to complete the mail ballot. See 2014 Arizona Elections Manual,

20 Chapter 3 - Early Voting, 56.

21

23. To be counted, a voter’s ballot and accompanying affidavit must be received

22 by the voter’s county recorder’s office by 7 p.m. on Election Day. A.R.S. § 16-548(A).

23 Ballots received after 7 p.m. on Election Day are rejected, even if they were mailed well in

24 advance of the election, and including ballots mailed by the five, six, and seven-day Pre-

25 Election Cutoff promoted by the Secretary of State and county recorders’ offices.

26

24. Arizona voters have some non-mail alternative options to return their ballot

27 outside of the mail; however, by far the most popular method is to return the ballot the same

28

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1 way that it arrived—via mail. In the most recent presidential election, approximately 90%

2 of Arizona voters who voted with a mail ballot returned their ballot to their county through

3 the U.S. postal service.

4

25. Voters also have the option to personally drop their ballot off at the county

5 recorder’s office or at any polling location on Election Day. A.R.S. § 16-548. But these

6 options are more time-consuming and burdensome for voters in rural counties who often

7 live many miles from a drop-off location, as well as Hispanic and Latino voters who have

8 difficulty obtaining transportation or leaving work during the window in which recorders’

9 offices and polling locations are open. As a result, these options are less popular and less

10 accessible to Arizona voters. In the most recent presidential election, only 10% of Arizona

11 voters who voted with a mail ballot returned it to a physical location such as a polling place

12 or county recorder’s office.

13

26. Furthermore, in recent years Arizona has passed or contemplated legislation

14 that would strip away these non-mail alternative options. One previously popular method

15 of returning a ballot was ballot collection, in which a voter would entrust their ballot to an

16 advocate, volunteer, friend, or neighbor to personally deliver it to election officials. That

17 practice, which Arizona’s Hispanic and Latino, Native American, and African American

18 voters relied on to overcome the challenges they face in returning mail-in ballots⸺e.g.,

19 unreliable mail service, restrictive work schedules, or lack of access to transportation⸺was

20 criminalized in 2016. See A.R.S. § 16-1005(H)-(I); see also Democratic Nat’l Comm. v.

21 Reagan, 329 F. Supp. 3d 824 (D. Ariz. 2018), aff’d, 904 F.3d 686 (9th Cir. 2018), reh’g en

22 banc granted, 911 F.3d 942 (9th Cir. 2018) (“DNC”).

23

27. Further, during the most recent legislative session, the Arizona Legislature

24 contemplated, but ultimately decided against, banning all methods of ballot return other

25 than the mail. S.B. 1046 (2019). The bill’s sponsor has stated that she will introduce the

26 legislation again in the next session.

27

28. Once the Election Day Receipt Deadline has passed, Arizona begins

28 processing its ballots. When voters cast a mail ballot in Arizona, election officials must

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1 confirm that each voter did not vote in person, verify the voter’s eligibility to vote, and open

2 and scan the voter’s ballot. See A.R.S. § 16-552. If a ballot was received in time, but appears

3 to be invalid (because it has, for example, an incomplete affidavit or an apparently

4 mismatched signature), election officials will contact the voter, who has five business days

5 in which to cure their ballot. A.R.S. § 16-550. Election officials have 20 days after Election

6 Day to complete the count and certify results. Id. § 16-642(A).

7

The Election Day Receipt Deadline

8

29. Every election a substantial and increasing number of ballots are discarded

9 because they arrive after the Election Day Receipt Deadline. While the publicly available

10 data is incomplete, even the partial picture is alarming. In 2008, only seven counties

11 reported data on late-returned ballots, but those counties collectively rejected 1,611 ballots

12 for arriving after the Election Day Receipt Deadline. In 2012, those same seven counties

13 rejected more than double that amount—4,107 ballots. And in the 2018 midterm election,

14 a lower turnout election than either the 2008 and 2012 general elections, ten of Arizona’s

15 fifteen counties collectively reported rejecting more than 2,500 ballots because they arrived

16 after the Election Day Receipt Deadline.

17

30. The numbers speak for themselves; clearly, thousands of Arizona voters

18 believe their ballot is timely even when it is not. Because of the challenges in estimating

19 mail delivery times, elections officials⸺much less the average voter⸺cannot accurately

20 predict when ballots must be mailed to ensure that they arrive by the Election Day Receipt

21 Deadline. In the 2014 general election, for example, the Arizona Secretary of State’s Office

22 “named Thursday, Oct. 30, the ‘deadline’ for mailing in early ballot so they will arrive in

23 time,” but noted that “[that] deadline is unofficial and was set as a guideline based on the

24 time it takes a ballot to reach a county recorder’s office.” As the Communications Director

25 for the Arizona Secretary of State’s Office explained, if a voter did not mail their ballot by

26 that Thursday, voters should not put their ballot in the mail “because it may or may not get

27 here on time,” and if “it arrives [the day after the election] it won’t count.” See Rachel Lund,

28 Late With Your Early Ballot? Here Are Tips for Making Sure Your Vote is Counted, Arizona

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1 Capitol Times (Oct. 30, 2014), https://azcapitoltimes.com/ news/2014/10/30/az-late-early-

2 ballot-tips-to-make-sure-vote-counts/ (emphasis added).

3

31. County Recorders have not been able to provide any more clarity to voters. In

4 fact, just last month, the Pima County Recorder’s Office provided two different

5 “recommended deadlines” for when voters were “required” to mail their ballot for it to be

6 counted.1 Counties’ recommendations on when to place a ballot in the mail shift for a simple

7 reason: those recommendations are purely guesses.

8

32. Without clear guidance from election officials, Arizona voters are themselves

9 forced to guess when their ballots must be placed in the mail to ensure that they will be

10 counted. In any event, many ballots that are rejected for arriving too late are mailed and

11 postmarked before Election Day, on the erroneous belief that a ballot is timely as long as it

12 is postmarked by Election Day.

13

33. The Election Day Receipt Deadline, and the confusion it generates, contributes

14 to Arizona voters’ remarkable lack of confidence that their ballots are actually counted.

15 Compared to voters in all 50 states, Arizona voters are the least likely to say that they are

16 confident that their own vote was actually counted. And compared to voters in all 50 states,

17 Arizona voters are the most likely to say they were “not too confident” or “not at all

18 confident” that the votes of other people in their city or county were actually counted.

19

34. The widespread belief that a ballot is timely as long as it is postmarked by

20 Election Day is reasonable; it is consistent with the way mail-related deadlines are

21 administered under the state law and across modern life. Postmarks are used to assess the

22 timeliness of payments, applications, and other documents submitted to the government in

23 other contexts: taxes and other state-mandated deadlines are determined according to

24 postmarks, not the date—much less the time of day—the mailed item is actually received.

25

26

1 The Pima County Recorder’s Office website, for example, currently recommends

27

that voters mail their ballots by the Thursday before the election to ensure their ballots would be counted. But just weeks ago, the same Pima County Recorder’s Office issued a

28

press release for the most recent election instructing voters to mail their ballots on or before the Wednesday before the election to ensure their ballots would be counted.

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 12 of 25

1 See, e.g., A.R.S. § 1-218(A) (requiring documents related to taxes, including returns,

2 statements, and payments, that have been mailed to “be deemed filed and received by the

3 addressee on the date shown by the postmark”); A.R.S. § 20-191 (stating that insurance

4 premium payments made by mail are deemed timely as of the date shown on the postmark);

5 Ariz. Admin. Code R17-4-304 (stating the date of receipt of applications for vehicle

6 registrations is the date of the postmark stamp).

7

35. Postmark rules make good sense. Mail delivery times in Arizona are

8 unpredictable, particularly in rural areas where home delivery is not common and even local

9 mail is often re-routed through central processing facilities in far-flung cities. This

10 unpredictability increases the risk of a late-arriving ballot, even when voters mail their

11 ballots well in advance of Election Day.

12

36. A postmark rule is also particularly key in the voting context because it aligns

13 with practical realities of the election cycle. Campaigns often consider the final week before

14 the election to be a key week of voter engagement and activity. Candidates, advocacy

15 organizations, political volunteers and the like conduct “get-out-the-vote” activities,

16 canvasses, town hall meetings, candidate Q&A sessions, and all manner of voter

17 engagement during the final crucial days of the election cycle. Frequently, late-breaking

18 news can entirely change the landscape for a race, and voters can and should remain open

19 to new information until Election Day itself.

20

37. For example, during the 2016 presidential preference election, tens of

21 thousands of votes arrived for Marco Rubio, even though he dropped out of the race in the

22 final days before Election Day. But due to the Election Day Receipt Deadline, and the

23 corresponding Pre-Election Cutoff deadlines for casting their ballots, those voters were

24 unable to consider that information before casting a ballot for a nonexistent candidate. If

25 the Election Day Receipt Deadline had not been in place, those voters could have re-

26 allocated their votes among other Republican candidates who actually remained in the race,

27 giving those voters the opportunity to truly participate in the election. It is clear that what

28

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1 happens in the final days before an election matters, and the Election Day Receipt Deadline

2 deprives voters of the opportunity to take those events into account.

3

38. Further, the Election Day Receipt Deadline is unreasonable because it

4 unnecessarily shortens voters’ time to return their ballots. A postmark rule would allow the

5 State to accept ballots received within a reasonable time after Election Day, which makes

6 sense given that Arizona has 20 days after Election Day to complete the vote-counting

7 process. A.R.S. § 16-642(A). Arizona already permits voters to cure incomplete ballots up

8 to five business days after Election Day. Id. § 16-550. Thus, counting ballots that have been

9 postmarked by Election Day, as long as they are received within a reasonable period after

10 Election Day (at a minimum, within the five-business-day cure period), would align with

11 Arizona’s existing voting laws and provide all Arizona voters sufficient time to have their

12 votes counted.

13

39. In addition to the unreasonable burdens the Election Day Receipt Deadline

14 places on Arizona voters, it has real consequences for Arizona elections. Over the last

15 several election cycles multiple races in Arizona have been decided by narrow margins of

16 anywhere from 100 votes to a mere margin of 20 votes. The 2,500 to 4,000 votes rejected

17 by Arizona each year because of its Election Day Receipt Deadline could easily have made

18 the difference in these election outcomes. And allowing the State to count these votes would

19 correspondingly have saved the State and counties significant resources spent on costly

20 recounts and post-election litigation.

21

40. The State has no legitimate interest in imposing the Election Day Receipt

22 Deadline, particularly where it has pushed Arizona voters to utilize mail voting and has

23 provided very limited alternative options for returning those ballots. While Arizona may set

24 a reasonable deadline for receiving ballots to ensure the finality of election results, the

25 Election Day Receipt Deadline is not reasonable: voters do not reasonably expect that they

26 must submit their ballots so far ahead of Election Day—nor could they, given that even

27 election officials are not sure what the precise date for mailing in ballots should be, the

28

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1 requirement to do so is poorly communicated to voters, and it is completely unnecessary to

2 ensure that all ballots are received and counted within a reasonable time.

3

The Election Day Receipt Deadline’s Effect on Rural and Minority Voters

4

41. The Election Day Receipt Deadline has a disproportionate impact on rural and

5 Hispanic and Latino voters in Arizona. In 2018, for example, voters in rural Navajo County

6 were 4.5 times more likely to have their mail ballot rejected for arriving after the Election

7 Day Receipt Deadline than voters in urban Maricopa County. In rural Cochise County, the

8 ratio jumps to 5.1, and in Santa Cruz County, voters are 5.9 times more likely to have their

9 ballot rejected for arriving after the Election Day Receipt Deadline than voters in Maricopa

10 County. And Arizona’s Hispanic and Latino voters are disparately disenfranchised no

11 matter where they live. Indeed, not only are ballots 7.6 times more likely to be rejected for

12 failure to arrive by the Election Day Receipt Deadline in rural Hispanic and Latino counties

13 such as Santa Cruz, but even in urban Maricopa County, Hispanic and Latino voters are

14 twice as likely to be disenfranchised by the Election Day Deadline Receipt than white voters

15 are.

16

42. None of this is surprising; mail delivery in rural Arizona is complicated and

17 riddled with delays, and Arizona’s long-history of discrimination interacts directly with the

18 Election Day Receipt Deadline to make it more difficult for Hispanic and Latino voters to

19 timely cast their mail-in ballots.

20

43. Voters living in rural areas of Arizona lack reliable mail service. These voters

21 typically do not have mailboxes at their homes and often do not receive personal mail

22 delivery services. Rather, they must frequently travel to one of a few post offices, many

23 miles away from where they live and work, to either pick up or drop off their mail. Given

24 the long distance, long work days, lack of readily available transportation, whether public

25 or personally owned, and correspondingly poor roadways, these voters are not able to visit

26 the post office with any regularity. As a consequence, arranging to pick up their ballots at

27 the post office 24 and 27 days before the election, and then dropping them off not long

28 thereafter to meet the Election Day Receipt Deadline is particularly difficult for rural voters.

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1

44. Further, there is no guarantee that rural voters’ ballots will arrive by the

2 Election Day Receipt Deadline given the unusual routing system used in rural parts of

3 Arizona. Because local mail in rural areas is not sent directly from one rural address to

4 another nearby address and is instead re-routed through a central processing facility in some

5 other part of the state, delivery times increase. Consequently, rural voters are uniquely

6 required to mail their ballots well in advance of Election Day. Otherwise, they risk having

7 their ballots rejected⸺through no fault of their own⸺for arriving after the Election Day

8 Receipt Deadline. Mailing their ballots a significant number of days before Election Day is

9 no guarantee that their ballots will arrive on time.

10

45. Rural Arizona also contains a number of communities that are predominately

11 populated by minority voters. And as an Arizona district court recently found, “[r]eady

12 access to reliable and secure mail service is nonexistent” in some of these minority

13 communities. See DNC, 329 F. Supp. 3d at 869. Native American voters, in particular,

14 traditionally struggle with mail service because of, among other things, a severe lack of

15 postal service infrastructure within their communities.

16

46. Rural Hispanic and Latino voters in Arizona also face similar problems in

17 accessing secure and reliable mail service. For example, in heavily Hispanic San Luis and

18 Somerton, for example, voters often lack home delivery mail service or live miles away

19 from the nearest post office. In San Luis specifically, which is 98% Hispanic, nearly all of

20 the city’s residents must rely on a single post office that is located across a major highway

21 to send and receive mail, even though the vast majority of San Luis’ residents lack reliable

22 transportation and there is no available taxi service. Given the distance they must travel to

23 send mail, these residents tend to visit the post office infrequently.

24

47. Even in more urban neighborhoods, Hispanic and Latino voters often face

25 difficulties with unsecure mail boxes and fear that mail will be stolen from their homes. For

26 example, some voters live in neighborhoods with one community mailbox that does not

27 accept outgoing mail and voters are required to put their mail in an open basket next to the

28 mailbox, with no means of securing it. These voters are thus reluctant to mail a ballot from

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 16 of 25

1 their homes and must make longer journeys to mail their ballots from a more secure

2 location. Despite the difficulties in mailing back ballots, it still is the best return method in

3 those communities because inflexible work schedules and a lack of transportation often

4 mean that dropping a ballot off in person at the county recorder’s office or at a polling

5 location on Election Day is not feasible.

6

48. These difficulties are exacerbated when voters, through no fault of their own,

7 do not receive their ballots in the mail until close to a week before the election is scheduled

8 to take place, requiring that the voter return the ballot personally, rather than by mail, to

9 ensure that it arrives by the deadline.

10

49. Hispanic and Latino voters are also disproportionately more likely than white

11 voters to have economic or personal circumstances—including, but not limited to, language

12 barriers and limited English fluency, lack of reliable transportation to mail their ballots, or

13 difficulties in taking time off work to do the same⸺that make it even more challenging to

14 comply with the Election Day Receipt Deadline.

15

50. For example, the Election Day Receipt Deadline disparately impacts Arizona’s

16 Hispanic and Latino voters who are often less educated than white voters due to persistent

17 gaps in education caused by historical and on-going discrimination. See James Thomas

18 Tucker, et al., Voting Rights in Arizona: 1982-2006, 17 Rev. L. & Soc. Justice 283, 284 -

19 341 (2008). As a result, as one court has explained, “[d]ue to their lower levels of literacy

20 and education, minority voters are more likely to be unaware of certain technical rules, such

21 as the requirement that early ballots be received by the county recorder, rather than merely

22 postmarked, by 7:00 p.m. on Election Day.” See DNC, 329 F. Supp. 3d at 868.

23

51. Further, given the lack of language assistance provided to voters⸺coupled

24 with Arizona’s sustained resistance to bilingual education and mandated English-only

25 education, see Tucker, supra at 284-341⸺Hispanic and Latino voters experience ongoing

26 language barriers that make them less likely to understand the instructions provided by

27 county election officials regarding the Election Day Receipt Deadline. This is further

28 complicated by the fact that, historically, Spanish-speaking voters have received incorrect

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 17 of 25

1 and misleading information from election officials. In the two most recent presidential

2 cycles, for example, Spanish-speaking voters received incorrect information about the

3 election, ranging from wrong election dates to wrong titles for measures on those voters’

4 official ballots.

5

52. Moreover, Arizona’s dissemination of incorrect and inaccurately translated

6 information breeds distrust and infuses more confusion into the election process, making it

7 particularly difficult for Hispanic and Latino voters to understand the shifting five, six, and

8 seven day deadlines for mailing in a mail-in ballot, particularly where those deadlines do

9 not comport with other standard deadlines for mailing government documents in Arizona.

10

53. Finally, “[r]acial disparities between minorities and non-minorities in

11 socioeconomic standing, income, employment, education, health, housing, transportation,

12 criminal justice, and electoral representation have persisted in Arizona.” DNC, 329 F. Supp.

13 3d at 876. As a result, Hispanic and Latino voters experience higher rates of poverty than

14 white voters, and often have less access to reliable transportation and less flexible work

15 schedules, both of which make it more difficult for them to travel to the post office, polling

16 location, or county recorder’s office to submit their ballots in time to meet the Election Day

17 Receipt Deadline.

18

54. Indeed, according to the U.S. Census Bureau’s 2013-2017 American

19 Community Survey 5-Year Estimates, Hispanic, African-American, and Native-American

20 poverty rates in Arizona exceeded the white poverty rate for that same time period. Based

21 on the 5-Year Estimates, as of 2017, Hispanics, Native Americans, and African Americans

22 were all less likely to graduate high school in Arizona than whites were. Further, whites

23 were nearly 1.5 times more likely to have a bachelor’s degree than African Americans,

24 almost three times more likely than Hispanics, and more than three times as likely as Native

25 Americans in Arizona.

26

55. Decades of research have demonstrated that deficiencies in socio-economic

27 standing, such as those described above, significantly impact an individual’s ability to fully

28 participate in the political process, and the interaction between these deficiencies and the

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 18 of 25

1 Election Day Receipt Deadline is no different. Thus, while Arizona’s Election Day

2 Deadline Receipt burdens all voters, it also imposes a disproportionate burden on Arizona’s

3 rural and Hispanic and Latino voters.

4

CLAIMS FOR RELIEF

5

COUNT I

6

First and Fourteenth Amendments

7

U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202 Undue Burden on the Right to Vote

8

56. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

9 Complaint and the paragraphs in the counts below as though fully set forth herein.

10

57. Under the Anderson-Burdick balancing test, a court considering a challenge to

11 a state election law must carefully balance the character and magnitude of injury to the First

12 and Fourteenth Amendment rights that the plaintiff seeks to vindicate against the

13 justifications put forward by the State for the burdens imposed by the rule. See Burdick v.

14 Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

15

58. This balancing test utilizes a flexible sliding scale, where the rigorousness of

16 scrutiny depends upon the extent to which the challenged law burdens voting rights. See

17 Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1024 (9th Cir. 2016); see also

18 Akins v. Sec’y of State, 154 N.H. 67 (2006) (applying Anderson-Burdick and holding that

19 strict scrutiny was the correct test to determine constitutionality of ballot order system that

20 prioritized candidate names alphabetically).

21

59. Courts need not accept a state’s justifications at face value, particularly where

22 those justifications are “speculative,” otherwise it “would convert Anderson-Burdick’s

23 means-end fit framework into ordinary rational-basis review wherever the burden a

24 challenged regulation imposes is less than severe.” Soltysik v. Padilla, 910 F.3d 438, 448–

25 49 (9th Cir. 2018) (citing Pub. Integrity All., 836 F.3d at 1024–25); see also Crawford v.

26 Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling op.) (“However

27 slight th[e] burden may appear, . . . it must be justified by relevant and legitimate state

28

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 19 of 25

1 interests sufficiently weighty to justify the limitation.”) (internal citation and quotation

2 marks omitted) (emphasis added).

3

60. Arizona’s Election Day Receipt Deadline imposes a severe burden on all

4 Arizona voters⸺and rural and Hispanic and Latino voters in particular⸺who vote by mail.

5 These voters must first learn about the Election Day Receipt Deadline and accurately guess

6 when their ballot must be mailed for it to be counted. For voters who, through no fault of

7 their own, misjudge how long it will take for their ballot to arrive back to their county, or

8 for those who never learn about Arizona’s Election Day Receipt Deadline, the punishment

9 is swift and severe: total disenfranchisement. But Arizona’s Election Day Receipt Deadline

10 also severely burdens all voters who vote by mail even if those voters’ ballots are

11 successfully counted. By requiring its voters to cast their mail ballots a week before the

12 election in order for those ballots be counted, Arizona’s Election Day Receipt Deadline

13 forces Arizona voters to cast their ballots before they can account for any critical

14 information about the election or the candidates that arises during the final week leading up

15 to Election Day⸺arguably, the most critical week in an entire election cycle. Arizona’s

16 Election Day Receipt Deadline thus deprives voters of the ability to engage in this robust

17 period of civic engagement, because it effectively requires them to have already cast their

18 vote.

19

61. While Arizona’s imposition of its Election Day Receipt Deadline burdens all

20 Arizona voters who vote by mail, it also particularly impacts subgroups, like Arizona’s rural

21 population and its Hispanic and Latino voters, who, given where they live, must often cast

22 their ballots even further in advance of Election Day to ensure their ballots will arrive by

23 the Election Day Receipt Deadline. Arizona’s Election Day Receipt Deadline also generally

24 imposes a particularly heavy burden on Hispanic and Latino voters, who face heightened

25 barriers to participation in Arizona’s mail ballot system.

26

62. While Arizona has a legitimate regulatory interest in a general cutoff for

27 receiving ballots, the State derives no meaningful benefit from imposing the Election Day

28 Receipt Deadline, particularly where it has heavily promoted mail-in balloting and

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 20 of 25

1 encouraged over 80 percent of its electorate to vote by mail. Arizona has a full 20 days to

2 finalize election results, and it already allows voters to cure otherwise incomplete ballots a

3 full five business days after Election Day. Arizona would suffer no significant

4 administrative burden if it, at a minimum, extended that same five-business-day deadline to

5 permit for the receipt of ballots that were postmarked on or before Election Day, but which

6 arrive within five business days after the election. In fact, the extension of the deadline

7 would likely decrease administrative burdens and improve election outcomes in Arizona by

8 providing the State and counties with the opportunity to count all votes cast in close races,

9 avoiding potential recount and post-election litigation costs. Arizona thus has no legitimate

10 interest, and certainly no compelling interest that is narrowly drawn, in rejecting ballots that

11 are postmarked before or on Election Day and which are received within, at a minimum,

12 five business days after Election Day.

13

63. In short, Arizona’s Election Day Receipt Deadline is not supported by a state

14 interest that is sufficient to justify the resulting burden on the right to vote, and thus unduly

15 burdens the right to vote of all Arizona voters generally and Arizona’s rural and Hispanic

16 and Latino voters in particular in violation of the First and Fourteenth Amendments.

17

COUNT II

18

Due Process

19

U.S. Const. Amend. XIV, 42 U.S.C. § 1983

20

Denial of Procedural Due Process

21

64. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

22 Complaint and the paragraphs in the counts below as though fully set forth herein.

23

65. The Due Process Clause of the United States Constitution prohibits the states

24 from depriving “any person of . . . liberty . . . without due process of law.” U.S. CONST.

25 amend. XIV, § 1. Which protections are due in a given case requires a careful analysis of

26 the importance of the rights and the other interests at stake. See Mathews v. Eldridge, 424

27 U.S. 319, 334–35 (1976); Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178, 1192 (9th

28 Cir. 2015). Courts must first consider “the nature of the interest that will be affected” by the

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 21 of 25

1 government’s action as well as the “degree of potential deprivation that may be created” by

2 existing procedures. Nozzi, 806 F. 3d at 1192–93. Second, “courts must consider the

3 ‘fairness and reliability’ of the existing procedures and the ‘probable value, if any, of

4 additional procedural safeguards.’” Id. at 1193 (quoting Mathews, 424 U.S. at 343). Finally,

5 courts must consider “the public interest, which ‘includes the administrative burden and

6 other societal costs that would be associated with’ additional or substitute procedures. Id.

7 (quoting Mathews, 424 U.S. at 347). Overall, “due process is flexible and calls for such

8 procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334,

9 (quotation and citation omitted).

10

66. Arizona’s procedures for voting by mail must comport with due process. See

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

12 “Such due process is not provided when the election procedures [for voting by mail]” do

13 not adequately protect the right to vote or ensure that an “individual is not continually and

14 repeatedly denied so fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp.

15 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State

16 must provide adequate process to ensure that voters' ballots are fairly considered and, if

17 eligible, counted.”).

18

67. “When an election process ‘reache[s] the point of patent and fundamental

19 unfairness,’ there is a due process violation.” Fla. State Conference of N.A.A.C.P. v.

20 Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) (quoting Roe v. Alabama, 43 F.3d 574,

21 580 (11th Cir. 1995)). A state’s elections system, “the specifics of which are not explicitly

22 made known to potential voters, that leaves potential voters in the dark as to its effect on a

23 voter’s [ability to vote] and that fails to give voters a fair opportunity to [participate], is

24 fundamentally unfair and violative of the Due Process Clause of the Fourteenth

25 Amendment.” Id. at 1185.

26

68. The nature of the interest at stake in this case⸺the right to vote and to have

27 that vote count⸺is the most precious liberty interest of all because it is preservative of all

28 other basic civil and political rights.

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 22 of 25

1

69. But Arizona’s existing procedures for counting mail ballots too often deprive

2 voters of having their ballot counted because (1) many voters do not learn of the Election

3 Day Receipt Deadline before Election Day, and (2) even voters who do learn of the Election

4 Day Receipt Deadline may not have their ballots counted if those ballots do not arrive in

5 the mail at the county recorder’s office, through no fault of their own, by 7 p.m. on Election

6 Day. Arizona’s Pre-Election Cutoff further deprives all Arizona voters who vote by mail of

7 the ability to cast a meaningful and informed vote by requiring voters to cast their ballots a

8 full week (or more) before Election Day if they wish to ensure that their ballots will actually

9 be counted.

10

70. Arizona’s Election Day Receipt Deadline is neither a reliable nor fair way to

11 administer voting by mail. The Election Day Receipt Deadline and the corresponding Pre-

12 Election Cutoff for casting ballots is, in fact, devoid of reliability because Arizona’s

13 elections officials can only offer voters their best guess of when voters must place their

14 ballots in the mail for it to be counted. Nor is the Election Day Receipt Deadline fair because

15 it effectively requires some voters—particularly rural voters and minority voters—to cast

16 their ballots before the rest of the electorate if they wish to be afforded the same process as

17 other voters in the State and to have their votes counted. Arizona’s Election Day Receipt

18 Deadline is also not fair to all Arizona voters who vote by mail because it forces those voters

19 to cast their ballots with incomplete information and before candidates have delivered their

20 final pitches to the voters.

21

71. The value of additional or substitute procedural safeguards to ensure that the

22 votes of Arizona’s mail voters are both meaningfully cast and actually counted is readily

23 apparent. A substitute procedure⸺requiring mail ballots to be postmarked on or before

24 Election Day and received by the county within, at a minimum, five business days after

25 Election Day to be counted⸺solves the inequities inherent in Arizona’s Election Day

26 Receipt Deadline. A postmark date not only offers a reliable date to Arizona voters by which

27 they must cast their ballots, but it also ensures that rural voters and minority voters are not

28 more likely to have their ballot rejected simply because they live in a town with slower mail

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 23 of 25

1 service. A postmark date additionally ensures that all of Arizona’s voters can consider any

2 information that may arise and influence voters’ choices in the last week of the election.

3

72. Because Arizona is not required to finalize its election results for 20 days after

4 the election and already allows voters to cure incomplete ballots within five business days

5 of the election, requiring Arizona to accept ballots that are postmarked on or before Election

6 Day and which arrive, at a minimum, within five business days of Election Day would put

7 a minimal administrative burden on the state, if any. And as the Supreme Court has

8 explained, “administrative convenience” cannot justify the deprivation of a constitutional

9 right. See Taylor v. Louisiana, 419 U.S. 522, 535 (1975).

10

73. Having induced its voters to vote by mail, Arizona must establish adequate

11 procedures to ensure that voters have a reliable, fair, and effective method to cast their

12 ballots. Because Arizona’s Election Day Receipt Deadline is markedly inadequate in all of

13 those respects, and Arizona is readily capable of instituting a substitute procedure which

14 would protect those voters’ rights with minimal burden to the state, Arizona’s Election Day

15 Receipt Deadline violates Arizona voters’ procedural due process rights.

16

PRAYER FOR RELIEF

17 WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

18

A. Declaring that Arizona’s imposition of its Election Day Receipt Deadline for

19 casting mail ballots and its failure to count the votes of otherwise eligible voters who

20 lawfully mail their ballots before or on Election Day, but whose ballots are not received—

21 through no fault of their own—by 7 p.m. on Election Day, violates the First and Fourteenth

22 Amendments to the United States Constitution by placing an undue burden on those voters

23 and particularly on Arizona’s rural and Hispanic and Latino voters by subjecting them to

24 arbitrary and disparate treatment;

25

B. Declaring that Arizona’s imposition of its Election Day Receipt Deadline for

26 casting mail ballots and its failure to count the votes of otherwise eligible voters who

27 lawfully mail their ballots before or on Election Day, but whose ballots are not received—

28

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 24 of 25

1 through no fault of their own—by 7 p.m. on Election Day violates the Due Process Clause

2 of the Fourteenth Amendment to the United States Constitution;

3

C. Permanently enjoining the Secretary, her respective agents, officers,

4 employees, and successors, and all persons acting in concert with each or any of them,

5 from rejecting ballots that are postmarked by Election Day and arrive at a county recorder’s

6 office within, at a minimum, five business days of Election Day;

7

D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees

8 pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and

9

E. Granting such other and further relief as the Court deems just and proper,

10 including requiring the Secretary to accept ballots that were postmarked on or before

11 Election Day if received within, at a minimum, five business days of Election Day.

12 Dated: December 2, 2019

PERKINS COIE LLP

13

By: s/ Sarah R. Gonski

14

Sarah R. Gonski (# 032567)

2901 N. Central Avenue, Suite 2000

15

Phoenix, Arizona 85012-2788

16

Marc E. Elias*

John Devaney*

17

Amanda R. Callais*

K’Shaani O. Smith**

18

Christina A. Ford**

PERKINS COIE LLP

19

700 Thirteenth Street NW, Suite 600

Washington, D.C. 20005-3960

20

21

*Admitted Pro hac vice **Pro hac vice application to be filed

22

Attorneys for Plaintiffs

23

24

25

26

27

28

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Case 2:19-cv-05685-DWL Document 11 Filed 12/02/19 Page 25 of 25

1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 2, 2019, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

4

5

s/ Sarah R. Gonski

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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 Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 1 of 23

1 Mark Brnovich Attorney General
2

3 Kara Karlson (029407) Assistant Attorney General
4 Linley Wilson (027040)

5

Deputy Solicitor General 2005 North Central Avenue

6 Phoenix, AZ 85004-1592

Telephone (602) 542-4951 7 Facsimile (602) 542-4385

8 kara.karlson@azag.gov linley.wilson@azag.gov

9 adminlaw@azag.gov

10

11

Mary R. O’Grady (011434) Emma J. Cone-Roddy (034285)

12

OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100

13

Phoenix, AZ 85012-2793 (602)640-9000

14

mogrady@omlaw.com econe-roddy@omlaw.com

15 Attorneys for Defendant 16 Arizona Secretary of State Katie Hobbs

17

UNITED STATES DISTRICT COURT

18

FOR THE DISTRICT OF ARIZONA

19 Voto Latino, Inc., et al,
20 Plaintiffs,
21 v.
22 Katie Hobbs, in her official capacity as
23 Arizona Secretary of State,

24

Defendant,

Case No: 19-cv-05685-DWL
ARIZONA SECRETARY OF STATE’S MOTION TO DISMISS
(Oral Argument Requested)

25

26

27

28

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 2 of 23

1

TABLE OF CONTENTS

2

3 INTRODUCTION .............................................................................................................. 1

4 BACKGROUND ................................................................................................................ 2

5 ARGUMENT ..................................................................................................................... 3

6 I. PLAINTIFFS LACK STANDING TO CHALLENGE THE ELECTION DAY DEADLINE .............................................................................................................. 3
7

II. THE ELEVENTH AMENDMENT BARS PLAINTIFFS’ CLAIMS…………..…6 8

9 III. PLAINTIFFS FAIL TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED ............................................................................................................... 9
10 A. There Is No Right to Vote Early Under the Federal Constitution ........10
11

B. A Twenty-Seven Day Early Voting Period that Includes a

12

Requirement for Ballots to be Received by the Close of the Polls Is

13

Not an Undue Burden on the Right to Vote..........................................11

14

C. Requiring Voters to Return All Ballots to Elections Officials by

Election Day Does Not Implicate Procedural Due Process ..................14 15

16 CONCLUSION ................................................................................................................ 16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 3 of 23

1

TABLE OF AUTHORITIES

2 Cases

3 ACORN v. Fowler, 4 178 F.3d 350 (5th Cir. 1999) .............................................................................................. 6

5

Anderson v. Celebrezze, 460 U.S. 780 (1983) ......................................................................................................... 10

6 Ariz. v. Inter Tribal Council of Ariz., Inc., 7 570 U.S. 1, (2013) .............................................................................................................. 9

8

Ariz. Libertarian Party v. Reagan, 798 F.3d 723 (9th Cir. 2015) ............................................................................................ 11

9 Baker v. Carr, 10 369 U.S. 186 (1962) ........................................................................................................... 4

11

Black Faculty Ass’n of Mesa Coll. v. San Diego Cmty. Coll. Dist., 664 F.2d 1153 (9th Cir. 1981) ............................................................................................ 4

12 Burdick v. Takushi, 13 504 U.S. 428 (1992) ........................................................................................................... 9

14

Carrington v. Rash, 380 U.S. 89 (1965) ........................................................................................................... 10

15 Coal. to Defend Affirmative Action v. Brown, 16 674 F.3d 1128 (9th Cir. 2012) ........................................................................................ 7, 9

17

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) ................................................................................................... 11, 14

18 Culinary Workers Union, Local 226 v. Del Papa, 19 200 F.3d 614 (9th Cir. 1999) .............................................................................................. 6

20

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ........................................................................................................... 3

21 Doe No. 1 v. Reed, 22 697 F.3d 1235 (9th Cir. 2012) ............................................................................................ 3

23

Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011) .................................................................................... 10, 14

24 Ex parte Young, 25 209 U.S. 123 (1908) ........................................................................................................... 7

26

Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153 (11th Cir. 2008) ........................................................................................ 14

27 Havens Realty Corp. v. Coleman, 28 455 U.S. 363 (1982) ........................................................................................................... 6

iii

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 4 of 23
1 Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 (1977) ........................................................................................................... 5
2 La Asociacion de Trabajadores de Lake Forest v. Lake Forest,
3 624 F.3d 1083 (9th Cir. 2010) ............................................................................................ 5
4 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................................................................................... 4
5 McDonald v. Bd. of Election Comm’rs of Chicago,
6 394 U.S. 802 (1969) ......................................................................................................... 10
7 Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198 (9th Cir. 1988) .............................................................................................. 7
8 Nader v. Brewer,
9 531 F.3d 1028 (9th Cir. 2008) .................................................................................... 14, 15
10 Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) ............................................................................................ 11
11 Pub Integrity Alliance v. City of Tucson,
12 836 F.3d 1019, (9th Cir. 2016) ......................................................................................... 11
13 Raetzel v. Parks/Bellmont Absentee Election Bd., 762 F.Supp 1354 (D. Ariz. 1990) ..................................................................................... 14
14 Shelby Advocates for Valid Elections v. Hargett,
15 __ F.3d __, 2020 WL 401803 (6th Cir. Jan. 24, 2020) ...................................................... 6
16 Smith v. Pac. Props. and Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) ............................................................................................ 5
17 Summers v. Earth Island Inst.,
18 555 U.S. 488 (2009) ........................................................................................................... 4
19 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ............................................................................................. 10, 11, 14
20 Warth v. Seldin,
21 422 U.S. 490 (1975) ........................................................................................................... 4
22 Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003) .......................................................................................... 11
23 Wilde v. United States,
24 385 F.Supp.2d 966 (D. Ariz. 2005) .................................................................................... 7
25 Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000) .............................................................................................. 4
26
27
28
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Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 5 of 23
1 Statutes
2 1991 Ariz. Sess. Laws, Ch. 308, § 6, eff. Jan. 1, 1992....................................................... 1 3 52 U.S.C. §10503 ............................................................................................................. 12 4 A.R,S § 16-956 ................................................................................................................... 1 5 A.R.S. § 16-142 .................................................................................................................. 8 6 A.R.S. § 16-531 .................................................................................................................. 9 7 A.R.S. § 16-541 .............................................................................................................. 1, 2 8 A.R.S. § 16-542 ..................................................................................................... 1, 2,3, 12 9 A.R.S. § 16-544 .................................................................................................................. 2 10 A.R.S. § 16-547…...……………………………………………………………...3, 12, 15 11 A.R.S. § 16-548 ......................................................................................................... passim 12 A.R.S. § 16-551 .................................................................................................................. 8 13 A.R.S. § 16-579 ................................................................................................................ 12 14 A.R.S. § 16-621 .................................................................................................................. 9 15 A.R.S. §16-645 ................................................................................................................... 9 16 A.R.S. § 19-123 .................................................................................................................. 1 17 A.R.S. §§ 16-503 ................................................................................................................ 8 18 Conn. Gen. Stat. § 9-135 .................................................................................................... 1 19
Constitutional Provisions
20 Ariz. Const. art. V, § 9.................................................................................................... 2, 7
21 U.S. Const. art. I § 4, cl. 1 .................................................................................................. 9
22 U.S. Const. art. III, § 2, cl. 1 .............................................................................................. 3
23 24 25 26 27 28
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Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 6 of 23

1

INTRODUCTION

2

Arizona is a national leader in making early voting convenient and accessible for

3 its voters. While many states still require voters to provide a reason to vote early or

4 absentee, Arizona has had “no-excuse” early voting since 1992. Compare A.R.S. § 16-

5 541 & 1991 Ariz. Sess. Laws, Ch. 308, § 6, eff. Jan. 1, 1992 with e.g. Conn. Gen. Stat.

6 § 9-135 (setting strict requirements to vote absentee). “No excuse” early voting means
7 that any Arizona voter can have their ballot delivered to them up to twenty-seven days
8 before the election, allowing any voter to cast his or her ballot in the comfort of his or
9 her own home. Furthermore, Arizona is one of only a handful of states that has a
10 Permanent Early Voter List (“PEVL”), which is also available to any voter. A.R.S. § 16-
11 542(C). A PEVL voter receives a ballot by mail for each and every election in which he
12 or she is eligible to participate. As Plaintiffs point out, early voting in Arizona has been 13 a huge success. Approximately 80% of voters opt to vote early, not because they are 14 under any coercion by the State to do so as Plaintiffs imply, but because that is simply 15 how voters choose to vote. Early voting gives voters nearly a month to research and 16 consider which candidates, judges, and issues that voter supports and PEVL ensures the 17 voter is automatically sent a ballot for every election. 18
As part of this system that enables Arizona citizens to seamlessly participate in 19 the democratic process—from registering to vote, to learning about candidates1 and 20 ballot issues,2 to voting at a time and place of their choosing—the State needs a deadline 21
by which ballots are received so all ballots can be verified and counted. The State’s 22
deadline is uniform for all voters: every ballot must be in the hands of elections officials 23
by the time the polls close on Election Day. A.R.S. § 16-548(A). 24

25

26 1 A.R,S § 16-956(A)(1) (providing information about all candidates a voter is eligible to

27

vote for, mailed to every household with a registered voter before the primary and the general election).

28

2 A.R.S. § 19-123 (requiring the Secretary to publish a publicity pamphlet describing all initiatives and referenda, and providing additional analysis).

1

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 7 of 23

1

Arizona’s extensive system that gives voters options regarding when, where and

2 how they can choose to cast their ballot does not satisfy Plaintiffs. They argue that the

3 Election Day deadline for early ballots is unconstitutional and ask this Court to impose a

4 new system that would require ballots to be postmarked by Election Day and received by

5 election officials within five days of the election. While their proposal may be a policy

6 option the Legislature could consider, they have no basis for asserting that the current

7 Election Day deadline is unconstitutional. Plaintiffs’ claim fails for a number of reasons

8 and should be dismissed.

9

First, Plaintiffs Voto Latino, Inc. and Priorities USA lack standing to pursue these

10 claims. Plaintiffs are not membership organizations, and they cannot identify a

11 particularized grievance that action by this Court can remedy. Second, the Secretary
12 does not have the direct relationship or authority over the parties that receive, verify, and
13 tabulate ballots required by the Ex parte Young line of cases to overcome Eleventh
14 Amendment immunity. Finally, even if Plaintiffs meet the requirements to seek
15 injunctive relief against an elected official of a sovereign state, their claim that Arizona’s
16 requirement that election officials receive ballots cast by mail by Election Day violates
17 anyone’s constitutional rights fails as a matter of law.
18 BACKGROUND
19 The Secretary of State is a constitutional officer whose duties are prescribed by
20 statute. Ariz. Const. art. V, § 9. None of the statutes prescribing the Secretary’s duties
21 concern receiving and counting ballots. Rather, those responsibilities are assigned to
22 county election officials. See A.R.S. § 16-548(A).
23 Arizona also allows generous alternatives to voting in-person on Election Day.
24 An Arizonan may vote early, in-person or by mail, up to twenty-seven days before the
25 election. A.R.S. §§ 16-541, -542(A), (C). Arizona voters may even “choose to
26 automatically receive a mail ballot for every election.” (Doc. 11 at ¶ 21 (citing A.R.S. §
27 16-544(A)). It costs nothing for a voter to return the ballot by mail; that cost is borne by
28

2

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 8 of 23

1 the counties. A.R.S. § 16-542. All ballots must be in the hands of the county recorder or

2 other officer in charge of elections by the time that polls close on Election Day, A.R.S. §

3 16-548(A), and all early ballots include instructions that specifically inform voters of the

4 Election Day deadline, A.R.S. § 16-547(C).

5

Plaintiffs’ allegations document the success of early voting in Arizona. They

6 allege that in 2008 “at least” 1,611 early ballots were rejected as untimely, and in 2018,

7 there were 2,515 ballots rejected for this same reason. (Doc. 11 at ¶ 2.) Of the “more

8 than one million” early ballots cast in 2008, (id. at ¶ 20), only approximately 0.16% were

9 untimely, and the other 99.84% arrived by Election Day in time to be counted. In 2018,

10 Plaintiffs allege that more than 1.9 million voters voted by mail (id.) which means that

11 according to Plaintiffs’ allegations, just 0.13% of all the early ballots cast in that election

12 were rejected as untimely. The other 99.87% arrived by Election Day.

13

Plaintiffs’ allegations do not support a claim that Arizona’s deadline violates any

14 constitutional requirement.

15

ARGUMENT

16

I. PLAINTIFFS LACK STANDING TO CHALLENGE THE

17

ELECTION DAY DEADLINE

18

“Standing is a ‘jurisdictional issue[] deriving from the requirement of a case or

19 controversy under Article III.” Doe No. 1 v. Reed, 697 F.3d 1235, 1238 (9th Cir. 2012)

20 (citations omitted). The standing doctrine ensures courts apply the judicial power only

21 to cases and controversies with adversarial parties and a developed record, rather than 22 issue advisory opinions. See U.S. Const. art. III, § 2, cl. 1. Federal courts must dismiss a 23 case that does not satisfy Article III standing requirements for lack of subject matter 24 jurisdiction, because “[n]o principle is more fundamental to the judiciary’s proper role in 25 our system of government than the constitutional limitation of federal-court jurisdiction 26 to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 27 (2006) (citation and internal quotation marks omitted). Facts sufficient to sustain 28

3

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 9 of 23

1 standing “are not mere pleading requirements but rather an indispensable part of

2 plaintiff’s case” and must be proved “as any other matter on which the plaintiff bears the

3 burden of proof.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

4

To establish standing for federal injunctive relief, a plaintiff must demonstrate

5 that it:

6

is under threat of suffering ‘injury in fact’ that is concrete and

7

particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of

8

the defendant; and it must be likely that a favorable judicial decision

will prevent or redress the injury. 9

10 Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009); see also Wright v. Riveland,

11 219 F.3d 905, 914 (9th Cir. 2000). Generally, a party must pursue claims to vindicate

12 their own rights. Baker v. Carr, 369 U.S. 186, 207 (1962). “Thus, when the plaintiff is

13 not himself the object of the government action or inaction he challenges, standing is not

14 precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Lujan, 504 U.S.

15 at 562.

16

Plaintiffs in this lawsuit are two non-profit organizations; no individual voters are

17 parties to this lawsuit. Plaintiffs claim to engage in “statewide voter registration

18 initiatives,” “voter education and get-out-the-vote campaigns,” (Doc. 11 at ¶ 17) and to

19 “educate, mobilize, and turn out voters across the country” (Id. at ¶ 18). Without

20 individual voters claiming an injury, Plaintiffs must satisfy standing through their

21 organization’s activities. But Plaintiffs unequivocally fail the tests for both associational

22 and organizational standing.

23

Associational standing is a narrow exception to the rule that litigants must

24 vindicate their own rights and not the rights of others. Black Faculty Ass’n of Mesa Coll.

25 v. San Diego Cmty. Coll. Dist., 664 F.2d 1153, 1156 (9th Cir. 1981). To obtain relief,

26 the association must show “that one or more of its members are injured.” Warth v.

27 Seldin, 422 U.S. 490, 515 (1975). Associational standing is recognized when an

28

4

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 10 of 23

1 organization’s members would otherwise have standing on their own, the “interests [the

2 organization] seeks to protect [by the suit] are germane to the organization’s purpose,”

3 and neither the claim raised nor relief requested requires individuals to participate. Hunt

4 v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).

5

As an initial matter, Plaintiffs do not claim to be membership organizations, and

6 the Complaint does not recount the identity of a single person who is in any way

7 affiliated with either organization who did not have their vote counted because the

8 county recorder did not receive that person’s ballot by Election Day. (Doc. 11.) Nor

9 have Plaintiffs identified any voter who was confused by, or concerned about, whether

10 his or her ballot would be sent by mail and not reach the county recorder on time. (Id.)

11 These facts alone are fatal to Plaintiffs’ associational standing claim. See Hunt, 432 at

12 344-45.

13

Plaintiffs may demonstrate organizational standing if either can show: “(1)

14 frustration of its organizational mission; and (2) diversion of its resources” to mitigate

15 the effects of the law challenged. Smith v. Pac. Props. and Dev. Corp., 358 F.3d 1097,

16 1105 (9th Cir. 2004). But Plaintiffs cannot “manufacture the injury by . . . choosing to
17 spend money fixing a problem that otherwise would not affect the organization at all. It
18 must instead show that it would have suffered some other injury if it had not diverted
19 resources to counteracting the problem.” La Asociacion de Trabajadores de Lake Forest
20 v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010).
21 Plaintiffs claim to have standing because they expect to spend “thousands of
22 dollars to educate, mobilize, and turn out voter in Arizona elections.” (Doc. 11 at ¶ 18.)
23 But these are general operating expenses that Plaintiffs, organizations whose mission
24 includes “educat[ing] voters, among other things, on when to cast their mail ballots,”
25 and “enfranchising and turning out” voters. (Id. at ¶¶ 17-18 (emphasis added).)
26 Assuming for a moment that Plaintiffs did obtain the relief they seek—an order that
27 some ballots received after polls closed should be counted—Plaintiffs have not alleged
28

5

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 11 of 23

1 how their current day-to-day activities would be any different. Unlike the non-profit in

2 Havens, which would suffer direct and cognizable harm if its clients were “steered”

3 away from appropriate housing, Havens Realty Corp. v. Coleman, 455 U.S. 363, 379

4 (1982), Plaintiffs in this case will still spend some amount of resources educating voters

5 how to successfully complete their ballot and cast a valid vote, whether or not Arizona’s

6 law is enjoined.

7

Indeed, Plaintiffs allege that voter education is core to their missions (Doc. 11 at

8 ¶¶ 17-18); therefore, it cannot be a diversion of resources to continue engaging in that

9 core mission. See Shelby Advocates for Valid Elections v. Hargett, __ F.3d __, 2020 WL

10 401803 *3 (6th Cir. Jan. 24, 2020) (finding no organizational standing where the alleged

11 harm “pleads only backward-looking costs” and the “alleged diversionary actions” did
12 not “divert resources from its mission” because these actions constituted “its mission”);
13 ACORN v. Fowler, 178 F.3d 350, 359 (5th Cir. 1999) (expenditures must be “caused by
14 an[] action by” the defendant that the organization “claims is illegal, as opposed to part
15 of the normal, day-to-day operations of the group” to confer standing). If Plaintiffs have
16 standing to enjoin the law requiring early ballots to be received by Election Day, they
17 would have standing to challenge any election procedure. Plaintiffs’ complaint is the
18 quintessential “abstract social interest[]” that traditional principles of standing carve out
19 of consideration by the federal judiciary. Havens Realty Corp., 455 U.S. at 379.
20 Because the Committee Plaintiffs cannot articulate a coherent theory which gives
21 them standing to challenge Arizona law, Plaintiffs’ claims should be dismissed. They
22 have no cognizable injury and, for similar reasons discussed in Section II below,
23 Plaintiffs’ claims are not redressable through an action against the Secretary. See
24 Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 619 (9th Cir. 1999)
25 (noting that the “case and controversy” analysis is similar to the Eleventh Amendment
26 inquiry).
27 II. THE ELEVENTH AMENDMENT BARS PLAINTIFFS’ CLAIMS
28

6

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 12 of 23

1

Sovereign immunity also bars Plaintiffs’ claims, because the Secretary does not

2 have the enforcement authority that would enable her to provide the relief Plaintiffs

3 request. Generally, state officials are entitled to Eleventh Amendment immunity for

4 actions taken in their official capacities. Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198,

5 201 (9th Cir. 1988). The Supreme Court recognized a narrow exception to Eleventh

6 Amendment immunity in Ex parte Young, 209 U.S. 123 (1908). The Ex parte Young

7 doctrine allows for suits against state officials acting in their official capacities only to

8 “prevent [a state official] from doing that which he has no legal right to do.” Ex parte

9 Young, 209 U.S. at 159. And the official must have a “fairly direct” enforcement

10 authority. Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir.

11 2012). “A generalized duty to enforce state law or general supervisory power over the

12 persons responsible for enforcing the challenged provision will not subject an official to

13 suit.” Id.

14

Even if Plaintiffs were the correct party to bring this lawsuit, no order against the

15 Secretary will remedy Plaintiffs’ alleged harms. The Secretary’s office is a

16 constitutional office whose “powers and duties . . . shall be as prescribed by law,” Ariz.

17 Const. art. V, § 9, and those duties do not include “direct[ing] county officials, who are

18 responsible for physically counting ballots” about how to satisfy their statutory duties.

19 (Doc. 11 at ¶ 19.)3
20 Plaintiffs misapprehend the Secretary’s statutory role in the election process,
21 arguing that the Secretary has authority as “Arizona’s Chief Elections Officer,” and
22 “establishes election procedures and administration across Arizona’s 15 counties”
23 through the Procedures Manual. (Id.) The Secretary’s authority is not as sweeping as
24 Plaintiffs claim, and she has no authority to countermand, through the Procedures
25 Manual or otherwise, state law governing when ballots must be received to be counted.
26

27

28

3 While factual allegations are accepted as true on a Motion to Dismiss, legal conclusions are not. See, e.g, Wilde v. United States, 385 F.Supp.2d 966, 969 (D. Ariz. 2005).

7

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 13 of 23

1

Plaintiffs’ claim that the Secretary is the state’s “chief election officer” omits the

2 purposes for which she serves in that role. The Secretary, or the Secretary’s designee, is:

3

1. The chief state election officer who is responsible for

coordination of state responsibilities under the national voter

4

registration act of 1993 (P.L. 103-31; 107 Stat. 77; 42 United States

5

Code § 394) and under the uniformed and overseas citizens absentee

voting act (42 United States Code section 1973).

6

2. Responsible for providing information on registration and

7

absentee or early ballot procedures to absent uniformed services

8

voters and overseas voters who wish to register to vote or vote in any

jurisdiction in this state.

9

10 A.R.S. § 16-142 (emphasis added). She also has specific reporting requirements to the

11 Election Assistance Commission pursuant to the Help America Vote Act. Id. at (B), (C).

12 In other words, A.R.S. § 16-142 assigns the Secretary specific responsibilities to be the

13 point-person for coordinating compliance and reporting as to federal law. What A.R.S.

14 § 16-142 does not do is provide the Secretary with the authority to direct the ballot-

15 counting process. That responsibility resides with the counties. A.R.S. § 16-551(A).

16 And the counties— not the Secretary— receive the voters’ ballots. A.R.S. § 16–548(A).

17

While Plaintiffs correctly point out (Doc. 11 ¶ 19) that the Secretary is authorized

18 to ensure “the maximum degree of correctness, impartiality, uniformity and efficiency

19 on the procedures for early voting and voting [and] . . . counting . . . ballots,” that does

20 not allow the Secretary to provide the relief Plaintiffs seek through the Procedures

21 Manual. The Elections Procedures Manual is constrained by the same statutory

22 authority that binds the Secretary: A.R.S. § 16-548(A). She could not insert a provision

23 in the Manual that conflicts with state law.

24

Plaintiffs have not identified any mechanism whereby the Secretary could

25 “enforce” A.R.S. § 16–548(A)’s Election Day deadline for votes to count. There is

26 none. The counties receive, verify, and tabulate the ballots. See A.R.S. §§ 16-503

27 (requiring the counties to print ballots, at their cost); 16-509 (providing that the county

28

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Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 14 of 23

1 delivers ballots to the polling place); 16-531 (requiring the county to appoint election

2 boards and other election officials to administer the election); 16-548(A) (“In order to be

3 counted and valid, the ballot must be received by the county recorder or other officer in

4 charge of elections or deposited at any polling place in the county no later than 7:00 p.m.

5 on election day.”) (emphasis added); 16-621 (giving the county authority to control the

6 proceedings in the counting center); 16-645 (providing the county conducts the precinct

7 canvass, while the Secretary issues the letter of nomination). The Secretary has no role

8 in any part of the ballot collection, verification, and tabulation process.

9

The demarcation of duties between the Secretary and the counties is based on

10 Arizona law and the Constitution’s broad mandate to states to control the “Time, Place,

11 and Manner” of elections. U.S. Const. art. I § 4, cl. 1. When only State procedures—not

12 federal mandates like the National Voter Registration Act—are at issue, the State’s

13 regulations regarding elections control. Id.; see also Ariz. v. Inter Tribal Council of

14 Ariz., Inc., 570 U.S. 1, 8-9 (2013) (“‘Times, Places, and Manner,’ we have written, are

15 “comprehensive words,’ which ‘embrace authority to provide a complete code for

16 congressional elections’”) (citation omitted). State law is clear that the Secretary does

17 not have a role in implementing the Election Day deadline established in A.R.S. § 16-

18 548(A).

19 Because the Secretary does not have any enforcement mechanism—much less a

20 “fairly direct” one, Coal to Defend Affirmative Action, 674 F.3d at 1134, Plaintiffs’

21 claims against her should be dismissed.

22 III. PLAINTIFFS FAIL TO STATE A CLAIM UPON WHICH RELIEF

23

CAN BE GRANTED

24

Even if Plaintiffs could assert a claim against the Secretary, Plaintiffs have utterly

25 failed to state a legitimate constitutional claim against the Election Day deadline.

26

Courts considering a challenge to state election laws employ a flexible test:

27 balancing the injury to the plaintiffs against the state interests justifying the rule.

28

9

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 15 of 23

1 Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780,

2 789 (1983). This test applies whether a claim is raised as a First or Fourteenth

3 Amendment or Due Process claim. Dudum v. Arntz, 640 F.3d 1098, 1106 n.15 (9th Cir.

4 2011). Accordingly, Plaintiffs’ claims in both Counts I and II are subject to the

5 Anderson/Burdick test. Dudum, 640 F.3d at 1106, n. 15. Thus, the same balancing test

6 applies: where minimal burdens are at issue, “a State’s important regulatory interests will

7 usually be enough to justify reasonable, nondiscriminatory restrictions.” Timmons v.

8 Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (citations and internal quotation

9 marks omitted).

10

As discussed below, Plaintiffs’ First Amended Complaint fails to raise any

11 constitutional issue that survives a motion to dismiss. Assuming Plaintiffs’ factual

12 allegations are true, Arizona’s requirement that ballots be received by election officials

13 by the time the polls close on Election Day is not an undue burden on any person’s right

14 to vote. Any minimal burden is justified by the State’s legitimate interests related to

15 election administration. Because Plaintiffs have failed to state a claim upon which relief

16 can be granted, their Complaint should be dismissed.

17

A. There Is No Right to Vote Early Under the Federal Constitution

18 “Ironically, it is [the State’s] willingness to go further than many States in

19 extending the absentee voting privileges so as to include even those attending to election

20 duties that has provided appellants with a basis for arguing that the provisions operate in

21 an invidiously discriminatory fashion to deny them a more convenient method of

22 exercising the franchise.” McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S.
23 802, 810-11 (1969). It is true that “once the States grant the franchise, they must not do
24 so in a discriminatory manner.” Id. at 807 (citing Carrington v. Rash, 380 U.S. 89
25 (1965)). But a plaintiff may not satisfy the Anderson/Burdick test by merely alleging
26 that a given state statute or practice violates the right to vote. Short v. Brown, 893 F.3d
27
671, 677-79 (9th Cir 2018) (finding that slight burdens on the right to vote withstand 28

10

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 16 of 23

1 review based on a state’s general interest). The constitution is not a “one-way ratchet,”

2 such that once the state confers a privilege, it must always then further relax that policy.

3 Ohio Democratic Party v. Husted, 834 F.3d 620, 635 (6th Cir. 2016).

4

But absent an actual burden, a law “merit[s] no special scrutiny.” Short, 893 F.3d

5 at 679. A facially neutral and otherwise constitutional deadline is not transformed into

6 an unconstitutional burden by the fact that a small number of voters return early ballots

7 after Election Day. This cannot be the rule, or there would be no cogent reason that

8 Plaintiffs’ own deadline would not also be unconstitutional. More pointedly, “absent

9 any burden [on the right to vote], there is no reason to call on the State to justify its

10 practice.” Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 732 n.12 (9th Cir. 2015).

11 Early voting is a convenience for voters long-authorized by Arizona law, but there is

12 nothing unconstitutional about requiring all ballots—early and otherwise—be returned

13 by the time polls close on Election Day.

14

B. A Twenty-Seven Day Early Voting Period that Includes a

15

Requirement for Ballots to be Received by the Close of the Polls

Is Not an Undue Burden on the Right to Vote

16

17

As noted, Plaintiffs’ claims are governed by the Anderson/Burdick test. Under

18 that test, courts have “repeatedly upheld as ‘not severe’ restrictions that are generally

19 applicable, evenhanded, politically neutral, and protect the reliability and integrity of the

20 election process.” Pub Integrity Alliance v. City of Tucson, 836 F.3d 1019, 1024 (9th

21 Cir. 2016) (citation omitted). Obtaining a valid identification, Crawford v. Marion Cnty.

22 Election Bd., 553 U.S. 181, 198 (2008), creating shorter voter registration deadlines,

23 Ohio Democratic Party v. Husted, 834 F.3d 620, 626-31 (6th Cir. 2016), and

24 establishing rules regarding what equipment could be utilized by voters to cast a ballot,

25 Weber v. Shelley, 347 F.3d 1101, 1106-07 (9th Cir. 2003), have been found to impose

26 minimal burdens. It follows then that a rule requiring a ballot to be returned by Election

27 Day––which the voter received in advance and can return at his or her own option––is, at

28

11

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 17 of 23

1 most, “minimal.” See Timmons, 520 U.S. at 358 (where minimal burdens are at issue, “a

2 State’s important regulatory interests will usually be enough to justify reasonable,

3 nondiscriminatory restrictions”).

4

Plaintiffs complain that “[w]ithout clear guidance from election officials,”

5 Arizona voters cannot be sure when to submit their ballot. (Doc. 11 at ¶ 32.) But the

6 fact that all ballots must be received by elections officials by Election Day is not secret;

7 state law requires that every early ballot issued include printed instructions notifying

8 voters that ballots must be delivered to the officer in charge of elections by 7:00 pm on

9 Election Day. A.R.S. § 16-547(C). Election officials provide these written instructions

10 on the ballots in multiple languages as necessary to comply with federal law. 52 U.S.C.

11 §10503. And in practice, as Plaintiffs acknowledge, election officials also communicate

12 to voters through websites and the media that people need to mail their ballots in time to

13 arrive by Election Day. (Doc. 11 at ¶¶ 30-31.)

14

The fact that the precise date by which a person needs to drop a ballot in the mail

15 so election officials receive it by Election Day may be imprecise does not make the

16 Election Day deadline an undue burden. Voters concerned about the timing have a
17 number of options. They can vote early in person until 5:00pm on the Friday before
18 elections, or at an emergency voting center up until 5:00pm the Monday before the
19 election. A.R.S. § 16-542(E), (H). They can drop their early ballot off at the county
20 recorder’s office, any official ballot drop-off location, or any early voting location in
21 their county. If they waited until Election Day, they can drop their ballot off at any
22 polling place or vote center in their county. A.R.S. § 16-542. They can also choose to
23 cast a ballot at a voting location on Election Day by stating that they have not and will
24 not vote the early ballot or by surrendering their early ballot at the voting location.
25 A.R.S. § 16-579(B). And they can mail their ballot well in advance of Election Day if
26 they prefer to vote by mail but are concerned about the Election Day deadline. Voters
27 have multiple options to make sure their vote is timely.
28

12

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 18 of 23

1

Plaintiffs complain that voting early resulted in “tens of thousands of votes” cast

2 for Marco Rubio in the 2016 presidential preference election, even though he dropped

3 out of the race shortly before the election. (Doc. 11 at ¶ 37.) If voters want to wait until

4 Election Day to see what happens until the campaign ends, they can do so, but Arizona

5 law gives them the option of voting earlier if they choose to do so. That choice,

6 however, is not a burden on the voter.

7

Plaintiffs also complain that mail delivery can be unpredictable, increasing the

8 risk of ballots missing the Election Day deadline. (Id. at ¶ 35.) This claim essentially

9 admits that the different instructions provided by county election officials may very well

10 be a direct response to the mail service in their locale (id. at ¶ 30), rather than an attempt

11 to confuse voters. (Id. at ¶43-44.) Again, voters have choices, and they can weigh

12 factors such as the unpredictability of mail delivery when deciding how and when to cast

13 their ballot. For any mailed ballot, there needs to be a deadline for receipt4 and

14 somebody may miss it, just as someone may arrive to the polls too late on Election Day

15 to cast a ballot.

16

The State’s interests in the deadline far outweigh the minimal burdens that

17 Plaintiffs allege. A clear deadline is an essential part of a system that permits voters to

18 mail in their ballots. The Election Day deadline is an unambiguous requirement that

19 election officials receive ballots by the time the polls close. This prevents voter
20 confusion and permits voters to make informed decisions about when and how to cast
21 their ballots. The deadline ensures county officials have a known universe of ballots to
22 process before the canvass. It also provides confidence to the voting public that post-
23 Election Day votes are not changing the outcome in tight races. Plaintiffs do not dispute
24 that a deadline is necessary, and a deadline that works for more than 99% of early voters
25 easily satisfies any possible constitutional standard. Arizona’s unambiguous, objective
26

27 4 Even Plaintiffs admit that the State has “a legitimate regulatory interest in a general

28

cutoff for receiving ballots” (Doc. 11 at ¶ 62), but they disagree that the appropriate deadline to receive ballots should be Election Day.

13

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 19 of 23

1 deadline is the model of a “reasonable, nondiscriminatory restriction[]” that the Timmons

2 court found was usually sufficient to satisfy the State’s burden. The State’s interests in

3 orderly election administration, Nader v. Brewer, 531 F.3d 1028, 1040 (9th Cir. 2008),

4 easily supports Arizona’s law that all ballots must be received by the time the polls close

5 on Election Day.

6

Ultimately, Plaintiffs’ arguments do not present constitutional concerns. The

7 burdens “arising from life’s vagaries . . . are neither so serious nor so frequent as to raise

8 any question about the constitutionality” of requiring ballots to be returned by Election

9 Day. Crawford, 553 U.S. at 197. Likewise, Plaintiffs’ preference for a “postmark rule”

10 (id. at ¶¶ 35-36) does not demonstrate that Arizona’s Election Day deadline is an undue

11 burden on the right to vote. Accordingly, Count I should be dismissed.

12

C. Requiring Voters to Return All Ballots to Elections Officials by

13

Election Day Does Not Implicate Procedural Due Process

14

In Count II, Plaintiffs argue the Election Day deadline is so “poorly

15 communicated to voters” (Doc. 11 at ¶ 5) that it rises to “patent and fundamental

16 unfairness” which will “continually and repeatedly” deny the fundamental right to vote.

17 (Doc. 11 at ¶¶ 66-67, quoting Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d

18 1153, 1183 (11th Cir. 2008) and Raetzel v. Parks/Bellmont Absentee Election Bd., 762

19 F.Supp 1354, 1358 (D. Ariz. 1990).)5 Like the First and Fourteenth Amendment

20 claims, this claim is also analyzed under the Anderson/Burdick standard. Dudum, 640

21 F.3d at 1106, n. 15. Thus, the same balancing test applies: where minimal burdens are at 22 issue, “a State’s important regulatory interests will usually be enough to justify 23 reasonable, nondiscriminatory restrictions.” Timmons, 520 U.S. at 358 (citations and 24

25 5 Plaintiffs quote Fla. State Conference of N.A.A.C.P. for the proposition that “[w]hen an

26

election process ‘reache[s] the point of patent and fundamental unfairness,’ there is a due process violation.” (Doc. 11 at ¶ 67) But Plaintiffs omit that this quotation is not from

27

the opinion of the court, but from one judge’s dissent. See Fla. State Conference of N.A.A.C.P., 522 F.3d at 1183 (Barkett, J., concurring in part, dissenting in part). The

28

issue in that case concerned a voter registration verification process, and nothing in the opinion (even the dissent) supports Plaintiffs’ claim here.

14

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 20 of 23

1 internal quotation marks omitted). Plaintiffs’ allegations and the governing statutes

2 flatly refute those claims.

3

As discussed above, Arizona’s single, objective deadline created by A.R.S. § 16-

4 548(A) is the model of a “reasonable, nondiscriminatory restriction[]” that the Timmons

5 court found was usually sufficient to satisfy the State’s burden. In tension with their

6 allegation that voters lack guidance on when to mail their ballot to make sure it arrives

7 by Election Day, Plaintiffs allege that voters are deprived of being able to “cast a

8 meaningful and informed vote” because voters who choose to mail their ballot are

9 encouraged to do so a “full week (or more) before Election Day.” (Id. at ¶ 69.) In any

10 event, as explained above, mailing a ballot is only an option. All Arizona voters are

11 afforded the same opportunity to cast their “meaningful and informed vote” up until

12 7:00pm on Election Day. It is entirely up to the voter to decide when and how it is done.

13

County elections officials are duty-bound to faithfully count any valid ballot,

14 however cast, so long as it complies with Arizona law. The state’s interest in ensuring

15 orderly election administration easily supports Arizona’s law that all ballots must be

16 received by the time the polls close on Election Day. Nader v. Brewer, 531 F.3d 1028,
17 1040 (9th Cir. 2008). Arizona has provided more than adequate process to ensure that
18 voters’ ballots are “fairly considered and, if eligible, counted.” (Doc. 11 at ¶ 66 (citation
19 omitted).) Plaintiffs’ contention (Id. at ¶ 70) that Arizona’s Election Day deadline is not
20 a “reliable” or “fair way to administer voting by mail” must be rejected, given that
21 Arizona law requires that every early ballot issued include printed instructions notifying
22 voters that ballots must be delivered to the officer in charge of elections by 7:00 pm on
23 Election Day. A.R.S. § 16-547(C).
24 In sum, while Plaintiffs plainly prefer a “postmark rule” that requires that ballots
25 be postmarked by Election Day rather than received by Election Day, this is not the
26 forum for that policy debate. The issue for this Court is whether Plaintiffs have stated a
27

28

15

Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 21 of 23

1 claim that provides a basis for concluding Arizona’s current law is unconstitutional.

2 They have not done so, and their lawsuit should be dismissed.

3

CONCLUSION

4

Plaintiffs are organizations that lack members and do not allege a particularized

5 injury requisite for Article III standing. Assuming Plaintiffs prevail, the Secretary has no

6 enforcement authority to ensure ballots arriving at a county recorder’s office after

7 Election Day are counted. Finally, the burden here is minimal to nonexistent. The voter,

8 who chooses to receive a ballot through the mail and has up to twenty-seven days to 9 determine when and how to return it, may not then complain that he or she had to return 10 the ballot by Election Day and undermine orderly election administration and integrity of 11 the election process. Plaintiffs’ Amended Complaint should be dismissed in its entirety. 12

13

RESPECTFULLY SUBMITTED this 3rd day of February, 2020.

14

Mark Brnovich

15

Attorney General

16

/s/ Kara M. Karlson

17

Kara M. Karlson Assistant Attorneys General

18

Attorney for Defendant Secretary of State Katie Hobbs

19

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Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 22 of 23

1

L.R.CIV. 12.1(c) CERTIFICATION

2

As required by Local Rule 12.1(c), undersigned counsel certifies that before filing

3 this motion, counsel for the Secretary of State discussed the issues asserted in this

4 motion with Plaintiffs’ counsel, and the parties were unable to agree that Plaintiffs’

5 Amended Complaint was curable in any part by a permissible amendment.

6

7

8

/s/ Kara M. Karlson_____

Kara M. Karlson 9

10

11

12

13

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15

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Case 2:19-cv-05685-DWL Document 17 Filed 02/03/20 Page 23 of 23

1 CERTIFICATE OF SERVICE
2
3 The foregoing was e-filed with the Clerk of the Federal Court for the District of Arizona using the CM/ECF System on February 3, 2020.
4

5

6 Copy emailed this same day to:

7 Sarah R. Gonski (# 032567)
8 PERKINS COIE LLP

9

2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788

10 Telephone: 602.351.8000

Facsimile: 602.648.7000 11 SGonski@perkinscoie.com

12

Marc E. Elais

13 John Devaney

14

Amanda R. Callais K’Shaani O. Smith

15 Christina A. Ford PERKINS COIE LLP

16 700 Thirteenth Street NW, Suite 600

Washington, D.C. 20005-3960 17 melias@perkinscoie.com

18

jdevaney@perkinscoie.com acallais@perkinscoie.com

19 kshaanismith@perkinscoie.com

christinaford@perkinscoie.com

20

21 /s/ Misty Keys 22

23

24

25

26

27

28

18

 
 Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 1 of 27

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8000
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk*
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 christinaford@perkinscoie.com

15 *Admitted Pro hac vice

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF ARIZONA

19 Voto Latino Foundation, Priorities USA, and Shelby Aguallo,
20 Plaintiffs,
21 v.
22 Katie Hobbs, in her official capacity as Arizona
23 Secretary of State,

No. 2:19-cv-05685-PHX-DWL
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24

Defendant.

25

26

27

28

Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 2 of 27

1

Plaintiffs Voto Latino Foundation, Priorities USA, and Shelby Aguallo, through the

2 undersigned attorneys, file this Amended Complaint for Declaratory and Injunctive Relief

3 against Katie Hobbs, in her official capacity as the Arizona Secretary of State (“Secretary”),

4 and upon information and belief allege as follows:

5

NATURE OF THE CASE

6

1. During the 2016 presidential preference election, 72,304 Arizonans cast their

7 ballot for Marco Rubio to become the Republican presidential candidate—even though

8 Rubio had withdrawn from the race several days prior to the election. Why did so many

9 Arizonans waste their vote on a ghost candidate? Because they were among the nearly 80%

10 of Arizonans who vote by mail, and Arizona’s law requiring that mail-in ballots be received

11 by 7:00 p.m. on Election Day—not postmarked—means that voters must cast and mail their

12 ballots well in advance of Election Day to be considered timely. A.R.S. § 16-548(A). By

13 the time voters heard of the critical information, their votes had already been cast.

14

2. Voters in that election were by no means the only voters negatively impacted

15 by Arizona’s deadline. Election after election, thousands of otherwise eager voters are

16 caught unaware by the fact that Arizona requires ballots to be received by 7 p.m. on Election

17 Day (“Election Day Receipt Deadline”). A.R.S. § 16-548(A). In 2008, at least 1,611 ballots

18 were rejected for arriving after the Election Day Receipt Deadline, even though many of

19 them were mailed multiple days before election day. That number is steadily increasing. In

20 2012, more than double that number⸺4,107 ballots⸺were rejected. And in the 2018

21 midterm election, a lower turnout election than either the 2008 and 2012 general election,

22 more than 3,000 ballots were rejected because they arrived after the Election Day Receipt

23 Deadline. A disproportionate number of these ballots were cast by Arizona’s Hispanic and

24 other minority voters.

25

3. It is not surprising that such a large number of ballots arrive after Arizona’s

26 Election Day Receipt Deadline; A.R.S. § 16-548(A) effectively creates a second, little-

27 known shadow deadline, the “Pre-Election Cutoff.” Arizona’s election officials define the

28 Pre-Election Cutoff in various ways, but all appear to agree that a ballot must be mailed at

Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 3 of 27

1 least five full days in advance of the election—and sometimes six or seven days—to have

2 a reasonable certainty that it will arrive in time to be counted. If the ballot is received after

3 7 p.m. on Election Day, the ballot is discarded. Even if the ballot was postmarked well in

4 advance of Election Day, including before or during the five to seven recommended days,

5 but failed to arrive because of mail irregularities, the ballot is rejected.

6

4. As a result, Arizona’s Election Day Receipt Deadline, and the corresponding

7 Pre-Election Cutoff it necessitates, confuses voters and confounds their reasonable

8 expectations. In nearly all other mail-related deadlines in modern life, mail is considered

9 timely if it is postmarked by the applicable deadline. Even in Arizona, in non-election

10 contexts such as tax and insurance payments, postmarks are used to guide deadlines for

11 mail-related activities. Further—as illustrated above—late-breaking changes routinely alter

12 political dynamics during the final days before an election. Voters have a reasonable

13 expectation that they can (and should) evaluate the candidates and issues up to and including

14 Election Day.

15

5. Arizona has no legitimate interest in enforcing the Election Day Receipt

16 Deadline, particularly where over the last decade it has pushed voters across the State to

17 utilize mail voting. Although Arizona may certainly set a reasonable deadline to receive

18 ballots to ensure the finality of election results, the current Election Day Receipt Deadline

19 is unreasonable and disenfranchising: it is contrary to voters’ reasonable expectations,

20 necessitates that ballots be cast far earlier than they need to be, and is poorly communicated

21 to voters. Moreover, it has real consequences for elections. Over the last several election

22 cycles, multiple races in Arizona have been decided by margins of mere hundreds of votes

23 and in some cases far less⸺1,500 to even 30 votes could easily make the difference in an

24 election outcome. And allowing the State to count these votes could correspondingly save

25 the State and counties significant amounts of money spent on costly recounts and post-

26 election litigation.

27

6. The State can still serve its election administration interest by accepting ballots

28 postmarked by Election Day and received within a reasonable time⸺five business days, at

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 4 of 27

1 a minimum⸺thereafter. After all, Arizona need not complete its total vote count until 20

2 days after Election Day. A.R.S. § 16-642(A). And Arizona already contemplates that a

3 certain number of ballots will not be countable right away; ballots that arrive in a timely but

4 incomplete fashion are curable up to five business days after Election Day. Id. § 16-550.

5 Counting ballots that have been postmarked by Election Day, as long as they are received

6 within five business days of Election Day, at a minimum, would serve the State’s interests

7 in finality of results without unduly burdening its voters. It would also ensure that all

8 Arizona voters have sufficient protections in place to ensure that their right to vote is not

9 arbitrarily and repeatedly denied.

10

7. While the Election Day Receipt Deadline affects all Arizona voters, it

11 particularly disenfranchises Arizonans in rural counties. In 2018, for example, voters in

12 rural Navajo County were 4.5 times more likely to have their mail ballot rejected for arriving

13 after the Election Day Receipt Deadline than voters in urban Maricopa County. In rural

14 Cochise County, that ratio jumped to 5.1, and in rural Santa Cruz County, voters were 5.9

15 times more likely to have their ballot rejected for arriving after the Election Day Receipt

16 Deadline than voters in Maricopa County.

17

8. In rural areas, mail service is unreliable and delay-ridden. Instead of going

18 directly from one rural address to another nearby address, local mail in rural areas is often

19 re-routed through a central processing facility in Phoenix, which increases delivery times.

20 As a consequence, rural voters must take particular care to mail their ballot well in advance

21 of Election Day and are especially vulnerable to Arizona’s refusal to count ballots that

22 arrive after the Election Day Receipt Deadline.

23

9. Further, the Election Day Receipt Deadline has particularly profound

24 implications for Arizona’s Hispanic and Latino voters and Native American voters.

25 Statistically, they comprise a disproportionately significant portion of voters whose ballots

26 are rejected under the Election Day Receipt Deadline. Indeed, in Maricopa County,

27 Hispanic and Latino voters are almost four times as likely to be disenfranchised by the

28 Election Day Receipt Deadline than white voters, and Native American voters are five and

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 5 of 27

1 half more times likely to be disenfranchised by the Election Day Receipt Deadline than

2 white voters. And in rural counties with high Hispanic and Latino populations such as Santa

3 Cruz, where 83% of the population is Hispanic/Latino, ballots are 7.6 times more likely to

4 be rejected for arriving after the Election Day Receipt Deadline. Similarly, Native

5 Americans in rural counties also experience a higher rate of late rejected ballots than in

6 more urban counties like Maricopa.

7

10. The reasons for this disparity are varied, but each is traceable to Arizona’s long

8 history of discrimination against minority voters and, particularly, against members of its

9 Hispanic and Latino community. First, discrimination in education has led to persistent

10 gaps that have left these minority voters less educated than their white counterparts, which

11 makes them less likely to be aware of the Election Day Receipt Deadline. Second, given the

12 lack of language assistance provided to voters⸺coupled with Arizona’s sustained

13 resistance to bilingual education and mandated English-only education⸺Hispanic and

14 Latino voters and Native American voters are less likely to understand the instructions

15 provided by county election officials regarding the Election Day Receipt Deadline,

16 particularly when those instructions are inconsistent. Third, due to disparities in income,

17 Hispanic and Latino voters and Native American voters experience higher rates of poverty

18 than white voters, and have less access to reliable transportation and often less flexible work

19 schedules, both of which make it more difficult for them to turn in a mail ballot by other

20 means, such as in-person at the county recorder’s office or a polling location by the Election

21 Day Receipt Deadline.

22

11. Arizona’s unjustified imposition of the Election Day Receipt Deadline violates

23 the First and Fourteenth Amendments because it imposes an undue burden on voters that is

24 not outweighed by any legitimate interest on the part of the State. Further, the Election Day

25 Receipt Deadline strips voters of their right to procedural due process. For all these reasons,

26 the Election Day Receipt Deadline should be enjoined.

27

JURISDICTION AND VENUE

28

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 6 of 27

1

12. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress

2 the deprivation under color of state law of rights secured by the United States Constitution.

3

13. This Court has original jurisdiction over the subject matter of this action

4 pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the

5 Constitution and laws of the United States.

6

14. This Court has personal jurisdiction over Defendant, who is sued in her

7 official capacity only.

8

15. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial

9 part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district.

10

16. This Court has the authority to enter a declaratory judgment and to provide

11 permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil

12 Procedure and 28 U.S.C. §§ 2201 and 2202.

13

PARTIES

14

17. Plaintiff Voto Latino Foundation is a nonprofit organization that engages,

15 educates, and empowers Latino communities across the United States, working to ensure

16 that Latinos are enfranchised and included in the democratic process. In furtherance of its

17 mission, Voto Latino expends significant resources to register and mobilize thousands of

18 Latino voters each election cycle, including the nearly 1 million eligible Latino voters in

19 Arizona. Since 2010, Voto Latino has been mobilizing Latino voters in Arizona through

20 statewide voter registration initiatives as well as peer-to-peer and digital voter education

21 and get-out-the-vote campaigns. As part of Voto Latino’s voter education and get-out-the-

22 vote campaigns, the organization educates voters, among other things, on when to cast their

23 mail ballots. In 2020, Voto Latino anticipates making expenditures in the millions of dollars

24 to educate, register, mobilize, and turn out Latino voters across the United States, including

25 in Arizona. Arizona’s Election Day Receipt Deadline directly harms Voto Latino by

26 frustrating its mission of enfranchising and turning out Latino voters in Arizona because it

27 burdens and disenfranchises the very voters that Voto Latino seeks to support. As a result,

28 Voto Latino has had to—and will continue to—expend and divert additional funds and

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 7 of 27

1 resources that it would otherwise spend on its efforts to accomplish its mission in other

2 states or its own registration efforts in Arizona, to turn out these voters and to combat the

3 effects that Arizona’s Election Day Receipt Deadline has on Latino voters.

4

18. Plaintiff Priorities USA (“Priorities”) is a 501(c)(4) nonprofit, voter-centric

5 progressive advocacy and service organization. Priorities’ mission is to build a sustainable

6 infrastructure to engage Americans in the progressive movement by running a permanent

7 digital campaign to persuade and mobilize citizens around issues and elections that affect

8 their lives. In furtherance of this purpose, Priorities works to help educate, mobilize, and

9 turn out voters across the country, including in Arizona. In 2020, Priorities expects to make

10 millions of dollars of contributions and expenditures to educate, mobilize, and turn out

11 voters in state and federal elections around the country, including thousands of dollars to

12 educate, mobilize, and turn out voters in Arizona elections. Arizona’s enforcement of its

13 Election Day Receipt Deadline for casting ballots directly harms Priorities because it

14 burdens and disenfranchises the voters Priorities supports through its work and

15 contributions in Arizona. As a result, Priorities has to expend and divert additional funds

16 and resources in GOTV, voter education efforts, mobilization, and turn-out activities in

17 Arizona, at the expense of its voter support initiatives in other states and other voter

18 education and turnout programs in Arizona.

19

19. Plaintiff SHELBY AGUALLO is a U.S. citizen and a registered voter in

20 Arizona. She is of Hispanic descent and was raised in rural Greenlee County, a remote

21 county in the southeastern corner of Arizona. In the fall of 2018, while a student at Northern

22 Arizona University in Flagstaff, Arizona, she requested a mail ballot to vote because she

23 was far from her home. While Aguallo cast her ballot before the polls closed on Election

24 Day, her ballot was not counted because it did not reach Greenlee County until Thursday,

25 November 8, 2018—two days after Election Day. At the time she cast that ballot, Aguallo

26 did not understand that her ballot would not count because she had not mailed her ballot

27 early enough. She thought instead—like many voters in the state—that her vote would count

28 because it was cast by Election Day.

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 8 of 27

1

20. Today, Aguallo is a law student at University of Arizona James E. Roger

2 College of Law in Tucson, Arizona, but she still considers Greenlee County to be her home.

3 Because Tucson is a three-hour drive one way from her home, she will need to vote by mail

4 again. Given her experience in the 2018 election, Aguallo reasonably fears that her mail

5 ballot will not count again, especially given the amount of time that it takes for mail to reach

6 Greenlee County, which must pass through a processing center in Phoenix before making

7 its way back across the state to Greenlee County. Greenlee County itself, moreover,

8 recommends that ballots be placed in the mail a full 10 days before the election to ensure

9 that they will be received on time. This means that voters in Greenlee County, to an even

10 greater extent than the rest of voters in Arizona, are forced to make difficult tradeoffs

11 between casting a fully informed vote and sending in their ballot far enough in advance to

12 increase the likelihood that it will be counted.

13

21. Aguallo intends to participate in upcoming elections in Arizona this year, and

14 she is excited to vote in her first presidential election. But under Arizona’s current standard

15 for counting ballots, there is a substantial risk that Aguallo’s ballot will not be counted

16 because it will not be received by her county by 7 p.m. on Election Day. Were Arizona to

17 instead count ballots that were cast by Election Day and received within a reasonable

18 amount of time after Election Day, it would be much more likely that Aguallo’s ballot, like

19 those of many other voters in the state, would be counted.

20

22. Defendant Katie Hobbs is sued in her official capacity as Secretary of State for

21 the State of Arizona (the “Secretary”). The Secretary is a person within the meaning of 42

22 U.S.C. § 1983 and acts under color of state law. She is the Chief Elections Officer for

23 Arizona. A.R.S. § 16-142(A)(1). As Arizona’s Chief Elections Officer, the Secretary is

24 responsible for overseeing the voting process in Arizona and is empowered with broad

25 authority to carry out that responsibility. The Secretary also issues the Arizona Election

26 Procedures Manual (“Manual”), which establishes election procedures and administration

27 across Arizona’s 15 counties. A.R.S. § 16-452. The Manual is approved by the Governor

28 and the Arizona Attorney General and carries the force of law. A.R.S. § 16-452(B). Arizona

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 9 of 27

1 law also requires the Secretary, after consulting with county officials, to “prescribe rules to

2 achieve and maintain the maximum degree of correctness, impartiality, uniformity and

3 efficiency on the procedures for early voting and voting, and of producing, distributing,

4 collecting, counting, tabulating and storing ballots.” A.R.S. § 16-452(A). Thus, the

5 Secretary directs county officials, who are responsible for physically counting ballots,

6 regarding when to count or reject ballots.

7

GENERAL ALLEGATIONS

8

Mail Voting in Arizona

9

23. Arizonans have a right to vote by mail. A.R.S. § 16-541(A). Over the past

10 decade, early voting by mail has grown exponentially in Arizona. In the 2008 general

11 election, for example, just over a million Arizona voters cast their ballot by mail. By the

12 2016 general election, that number had doubled to over two million voters. In 2018, a

13 lower-turnout midterm election, over 1.9 million voters voted by mail. This rapid growth in

14 mail ballots is not surprising. Arizona has engaged in extensive efforts to increase its use.

15

24. Since 2007, Arizona has maintained a Permanent Early Voter List, commonly

16 known as the “PEVL,” under which any Arizona voter can choose to automatically receive

17 a mail ballot for every election. A.R.S. § 16-544(A). Since the PEVL’s creation, Arizona

18 has actively encouraged its voters to sign up and participate in the program. As a result,

19 mail voting is exceedingly popular in Arizona, and today approximately 80% of Arizona

20 voters receive their ballot in the mail.

21

25. Voters who are enrolled in the PEVL, or who request a mail ballot at least 27

22 days before the election, are entitled to be sent a mail ballot between 24 and 27 days before

23 the election. A.R.S. § 16-542(C). A mail ballot is sent to voters by first-class, non-

24 forwardable mail. It must be accompanied by a postage-prepaid return envelope, an

25 affidavit, and instructions to complete the mail ballot. See 2014 Arizona Elections Manual,

26 Chapter 3 - Early Voting, 56.

27

26. To be counted, a voter’s ballot and accompanying affidavit must be received

28 by the voter’s county recorder’s office by 7 p.m. on Election Day. A.R.S. § 16-548(A).

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 10 of 27

1 Ballots received after 7 p.m. on Election Day are rejected, even if they were mailed well in

2 advance of the election, and including ballots mailed by the five, six, and seven-day Pre-

3 Election Cutoff promoted by the Secretary of State and county recorders’ offices.

4

27. Arizona voters have some non-mail alternative options to return their ballot

5 outside of the mail; however, by far the most popular method is to return the ballot the same

6 way that it arrived—via mail. In the most recent presidential election, approximately 90%

7 of Arizona voters who voted with a mail ballot returned their ballot to their county through

8 the U.S. postal service.

9

28. Voters also have the option to personally drop their ballot off at the county

10 recorder’s office or at any polling location on Election Day. A.R.S. § 16-548. But these

11 options are more time-consuming and burdensome for voters in rural counties who often

12 live many miles from a drop-off location, as well as Hispanic and Latino voters who have

13 difficulty obtaining transportation or leaving work during the window in which recorders’

14 offices and polling locations are open. As a result, these options are less popular and less

15 accessible to Arizona voters. In the most recent presidential election, only 10% of Arizona

16 voters who voted with a mail ballot returned it to a physical location such as a polling place

17 or county recorder’s office.

18

29. Furthermore, in recent years Arizona has passed or contemplated legislation

19 that would strip away these non-mail alternative options. One previously popular method

20 of returning a ballot was ballot collection, in which a voter would entrust their ballot to an

21 advocate, volunteer, friend, or neighbor to personally deliver it to election officials. That

22 practice, which Arizona’s Hispanic and Latino, Native American, and African American

23 voters relied on to overcome the challenges they face in returning mail-in ballots⸺e.g.,

24 unreliable mail service, restrictive work schedules, or lack of access to transportation⸺was

25 criminalized in 2016. See A.R.S. § 16-1005(H)-(I); see also Democratic Nat’l Comm. v.

26 Reagan, 329 F. Supp. 3d 824 (D. Ariz. 2018), aff’d, 904 F.3d 686 (9th Cir. 2018), reh’g en

27 banc granted, 911 F.3d 942 (9th Cir. 2018) (“DNC”).

28

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 11 of 27

1

30. Further, during the most recent legislative session, the Arizona Legislature

2 contemplated, but ultimately decided against, banning all methods of ballot return other

3 than the mail. S.B. 1046 (2019). The bill’s sponsor has stated that she will introduce the

4 legislation again in the next session.

5

31. Once the Election Day Receipt Deadline has passed, Arizona begins

6 processing its ballots. When voters cast a mail ballot in Arizona, election officials must

7 confirm that each voter did not vote in person, verify the voter’s eligibility to vote, and open

8 and scan the voter’s ballot. See A.R.S. § 16-552. If a ballot was received in time, but appears

9 to be invalid (because it has, for example, an incomplete affidavit or an apparently

10 mismatched signature), election officials will contact the voter, who has five business days

11 in which to cure their ballot. A.R.S. § 16-550. Election officials have 20 days after Election

12 Day to complete the count and certify results. Id. § 16-642(A).

13

The Election Day Receipt Deadline

14

32. Every election a substantial and increasing number of ballots are discarded

15 because they arrive after the Election Day Receipt Deadline. While the publicly available

16 data is incomplete, even the partial picture is alarming. In 2008, only seven counties

17 reported data on late-returned ballots, but those counties collectively rejected 1,611 ballots

18 for arriving after the Election Day Receipt Deadline. In 2012, those same seven counties

19 rejected more than double that amount—4,107 ballots. And in the 2018 midterm election,

20 a lower turnout election than either the 2008 and 2012 general elections, ten of Arizona’s

21 fifteen counties collectively reported rejecting more than 3,000 ballots because they arrived

22 after the Election Day Receipt Deadline.

23

33. The numbers speak for themselves; clearly, thousands of Arizona voters

24 believe their ballot is timely even when it is not. Because of the challenges in estimating

25 mail delivery times, elections officials⸺much less the average voter⸺cannot accurately

26 predict when ballots must be mailed to ensure that they arrive by the Election Day Receipt

27 Deadline. In the 2014 general election, for example, the Arizona Secretary of State’s Office

28 “named Thursday, Oct. 30, the ‘deadline’ for mailing in early ballot so they will arrive in

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 12 of 27

1 time,” but noted that “[that] deadline is unofficial and was set as a guideline based on the

2 time it takes a ballot to reach a county recorder’s office.” As the Communications Director

3 for the Arizona Secretary of State’s Office explained, if a voter did not mail their ballot by

4 that Thursday, voters should not put their ballot in the mail “because it may or may not get

5 here on time,” and if “it arrives [the day after the election] it won’t count.” See Rachel Lund,

6 Late With Your Early Ballot? Here Are Tips for Making Sure Your Vote is Counted, Arizona

7 Capitol Times (Oct. 30, 2014), https://azcapitoltimes.com/ news/2014/10/30/az-late-early-

8 ballot-tips-to-make-sure-vote-counts/ (emphasis added).

9

34. County Recorders have not been able to provide any more clarity to voters. In

10 fact, just last month, the Pima County Recorder’s Office provided two different

11 “recommended deadlines” for when voters were “required” to mail their ballot for it to be

12 counted.1 Counties’ recommendations on when to place a ballot in the mail shift for a simple

13 reason: those recommendations are purely guesses.

14

35. Without clear guidance from election officials, Arizona voters are themselves

15 forced to guess when their ballots must be placed in the mail to ensure that they will be

16 counted. In any event, many ballots that are rejected for arriving too late are mailed and

17 postmarked before Election Day, on the erroneous belief that a ballot is timely as long as it

18 is postmarked by Election Day.

19

36. The Election Day Receipt Deadline, and the confusion it generates, contributes

20 to Arizona voters’ remarkable lack of confidence that their ballots are actually counted.

21 Compared to voters in all 50 states, Arizona voters are the least likely to say that they are

22 confident that their own vote was actually counted. And compared to voters in all 50 states,

23 Arizona voters are the most likely to say they were “not too confident” or “not at all

24 confident” that the votes of other people in their city or county were actually counted.

25

26

1 The Pima County Recorder’s Office website, for example, currently recommends

that voters mail their ballots by the Thursday before the election to ensure their ballots

27 would be counted. But just weeks ago, the same Pima County Recorder’s Office issued a

press release for the most recent election instructing voters to mail their ballots on or before

28 the Wednesday before the election to ensure their ballots would be counted.

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1

37. The widespread belief that a ballot is timely as long as it is postmarked by

2 Election Day is reasonable; it is consistent with the way mail-related deadlines are

3 administered under the state law and across modern life. Postmarks are used to assess the

4 timeliness of payments, applications, and other documents submitted to the government in

5 other contexts: taxes and other state-mandated deadlines are determined according to

6 postmarks, not the date—much less the time of day—the mailed item is actually received.

7 See, e.g., A.R.S. § 1-218(A) (requiring documents related to taxes, including returns,

8 statements, and payments, that have been mailed to “be deemed filed and received by the

9 addressee on the date shown by the postmark”); A.R.S. § 20-191 (stating that insurance

10 premium payments made by mail are deemed timely as of the date shown on the postmark);

11 Ariz. Admin. Code R17-4-304 (stating the date of receipt of applications for vehicle

12 registrations is the date of the postmark stamp).

13

38. Postmark rules make good sense. Mail delivery times in Arizona are

14 unpredictable, particularly in rural areas where home delivery is not common and even local

15 mail is often re-routed through central processing facilities in far-flung cities. This

16 unpredictability increases the risk of a late-arriving ballot, even when voters mail their

17 ballots well in advance of Election Day.

18

39. A postmark rule is also particularly key in the voting context because it aligns

19 with practical realities of the election cycle. Campaigns often consider the final week before

20 the election to be a key week of voter engagement and activity. Candidates, advocacy

21 organizations, political volunteers and the like conduct “get-out-the-vote” activities,

22 canvasses, town hall meetings, candidate Q&A sessions, and all manner of voter

23 engagement during the final crucial days of the election cycle. Frequently, late-breaking

24 news can entirely change the landscape for a race, and voters can and should remain open

25 to new information until Election Day itself.

26

40. For example, during the 2016 presidential preference election, tens of

27 thousands of votes arrived for Marco Rubio, even though he dropped out of the race in the

28 final days before Election Day. But due to the Election Day Receipt Deadline, and the

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 14 of 27

1 corresponding Pre-Election Cutoff deadlines for casting their ballots, those voters were

2 unable to consider that information before casting a ballot for a nonexistent candidate. If

3 the Election Day Receipt Deadline had not been in place, those voters could have re-

4 allocated their votes among other Republican candidates who actually remained in the race,

5 giving those voters the opportunity to truly participate in the election. It is clear that what

6 happens in the final days before an election matters, and the Election Day Receipt Deadline

7 deprives voters of the opportunity to take those events into account.

8

41. Further, the Election Day Receipt Deadline is unreasonable because it

9 unnecessarily shortens voters’ time to return their ballots. A postmark rule would allow the

10 State to accept ballots received within a reasonable time after Election Day, which makes

11 sense given that Arizona has 20 days after Election Day to complete the vote-counting

12 process. A.R.S. § 16-642(A). Arizona already permits voters to cure incomplete ballots up

13 to five business days after Election Day. Id. § 16-550. Thus, counting ballots that have been

14 postmarked by Election Day, as long as they are received within a reasonable period after

15 Election Day (at a minimum, within the five-business-day cure period), would align with

16 Arizona’s existing voting laws and provide all Arizona voters sufficient time to have their

17 votes counted.

18

42. In addition to the unreasonable burdens the Election Day Receipt Deadline

19 places on Arizona voters, it has real consequences for Arizona elections. Over the last

20 several election cycles multiple races in Arizona have been decided by narrow margins of

21 anywhere from 100 votes to a mere margin of 20 votes. The 2,500 to 4,000 votes rejected

22 by Arizona each year because of its Election Day Receipt Deadline could easily have made

23 the difference in these election outcomes. And allowing the State to count these votes would

24 correspondingly have saved the State and counties significant resources spent on costly

25 recounts and post-election litigation.

26

43. The State has no legitimate interest in imposing the Election Day Receipt

27 Deadline, particularly where it has pushed Arizona voters to utilize mail voting and has

28 provided very limited alternative options for returning those ballots. While Arizona may set

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1 a reasonable deadline for receiving ballots to ensure the finality of election results, the

2 Election Day Receipt Deadline is not reasonable: voters do not reasonably expect that they

3 must submit their ballots so far ahead of Election Day—nor could they, given that even

4 election officials are not sure what the precise date for mailing in ballots should be, the

5 requirement to do so is poorly communicated to voters, and it is completely unnecessary to

6 ensure that all ballots are received and counted within a reasonable time.

7

The Election Day Receipt Deadline’s Effect on Rural and Minority Voters

8

44. The Election Day Receipt Deadline has a disproportionate impact on rural and

9 Hispanic and Latino voters in Arizona. In 2018, for example, voters in rural Navajo County

10 were 4.5 times more likely to have their mail ballot rejected for arriving after the Election

11 Day Receipt Deadline than voters in urban Maricopa County. In rural Cochise County, the

12 ratio jumps to 5.1, and in Santa Cruz County, voters are 5.9 times more likely to have their

13 ballot rejected for arriving after the Election Day Receipt Deadline than voters in Maricopa

14 County. And Arizona’s Hispanic and Latino voters are disparately disenfranchised no

15 matter where they live. Indeed, not only are ballots 7.6 times more likely to be rejected for

16 failure to arrive by the Election Day Receipt Deadline in rural Hispanic and Latino counties

17 such as Santa Cruz, but even in urban Maricopa County, Hispanic and Latino voters are

18 almost four times as likely to be disenfranchised by the Election Day Deadline Receipt than

19 white voters are. Similarly, while Native American voters are more likely to experience a

20 higher rate of late rejected ballots in rural counties than in more urban areas, within

21 Maricopa County they are still five and a half times more likely to be disenfranchised by

22 the Election Day Receipt Deadline than white voters.

23

45. None of this is surprising; mail delivery in rural Arizona is complicated and

24 riddled with delays, and Arizona’s long-history of discrimination interacts directly with the

25 Election Day Receipt Deadline to make it more difficult for Hispanic and Latino voters to

26 timely cast their mail-in ballots.

27

46. Voters living in rural areas of Arizona lack reliable mail service. These voters

28 typically do not have mailboxes at their homes and often do not receive personal mail

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 16 of 27

1 delivery services. Rather, they must frequently travel to one of a few post offices, many

2 miles away from where they live and work, to either pick up or drop off their mail. Given

3 the long distance, long work days, lack of readily available transportation, whether public

4 or personally owned, and correspondingly poor roadways, these voters are not able to visit

5 the post office with any regularity. As a consequence, arranging to pick up their ballots at

6 the post office 24 and 27 days before the election, and then dropping them off not long

7 thereafter to meet the Election Day Receipt Deadline is particularly difficult for rural voters.

8

47. Further, there is no guarantee that rural voters’ ballots will arrive by the

9 Election Day Receipt Deadline given the unusual routing system used in rural parts of

10 Arizona. Because local mail in rural areas is not sent directly from one rural address to

11 another nearby address and is instead re-routed through a central processing facility in some

12 other part of the state, delivery times increase. Consequently, rural voters are uniquely

13 required to mail their ballots well in advance of Election Day. Otherwise, they risk having

14 their ballots rejected⸺through no fault of their own⸺for arriving after the Election Day

15 Receipt Deadline. Mailing their ballots a significant number of days before Election Day is

16 no guarantee that their ballots will arrive on time.

17

48. Rural Arizona also contains a number of communities that are predominately

18 populated by minority voters. And as an Arizona district court recently found, “[r]eady

19 access to reliable and secure mail service is nonexistent” in some of these minority

20 communities. See DNC, 329 F. Supp. 3d at 869. Native American voters, in particular,

21 traditionally struggle with mail service because of, among other things, a severe lack of

22 postal service infrastructure within their communities.

23

49. Rural Hispanic and Latino voters in Arizona also face similar problems in

24 accessing secure and reliable mail service. For example, in heavily Hispanic San Luis and

25 Somerton, for example, voters often lack home delivery mail service or live miles away

26 from the nearest post office. In San Luis specifically, which is 98% Hispanic, nearly all of

27 the city’s residents must rely on a single post office that is located across a major highway

28 to send and receive mail, even though the vast majority of San Luis’ residents lack reliable

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1 transportation and there is no available taxi service. Given the distance they must travel to

2 send mail, these residents tend to visit the post office infrequently.

3

50. Even in more urban neighborhoods, Hispanic and Latino voters often face

4 difficulties with unsecure mail boxes and fear that mail will be stolen from their homes. For

5 example, some voters live in neighborhoods with one community mailbox that does not

6 accept outgoing mail and voters are required to put their mail in an open basket next to the

7 mailbox, with no means of securing it. These voters are thus reluctant to mail a ballot from

8 their homes and must make longer journeys to mail their ballots from a more secure

9 location. Despite the difficulties in mailing back ballots, it still is the best return method in

10 those communities because inflexible work schedules and a lack of transportation often

11 mean that dropping a ballot off in person at the county recorder’s office or at a polling

12 location on Election Day is not feasible.

13

51. These difficulties are exacerbated when voters, through no fault of their own,

14 do not receive their ballots in the mail until close to a week before the election is scheduled

15 to take place, requiring that the voter return the ballot personally, rather than by mail, to

16 ensure that it arrives by the deadline.

17

52. Hispanic and Latino voters and Native American voters are also

18 disproportionately more likely than white voters to have economic or personal

19 circumstances—including, but not limited to, language barriers and limited English fluency,

20 lack of reliable transportation to mail their ballots, or difficulties in taking time off work to

21 do the same⸺that make it even more challenging to comply with the Election Day Receipt

22 Deadline.

23

53. For example, the Election Day Receipt Deadline disparately impacts Arizona’s

24 Hispanic and Latino voters and Native American voters who are often less educated than

25 white voters due to persistent gaps in education caused by historical and on-going

26 discrimination. See James Thomas Tucker, et al., Voting Rights in Arizona: 1982-2006, 17

27 Rev. L. & Soc. Justice 283, 284 - 341 (2008). As a result, as one court has explained, “[d]ue

28 to their lower levels of literacy and education, minority voters are more likely to be unaware

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 18 of 27

1 of certain technical rules, such as the requirement that early ballots be received by the

2 county recorder, rather than merely postmarked, by 7:00 p.m. on Election Day.” See DNC,

3 329 F. Supp. 3d at 868.

4

54. Further, given the lack of language assistance provided to voters⸺coupled

5 with Arizona’s sustained resistance to bilingual education and mandated English-only

6 education, see Tucker, supra at 284-341⸺Hispanic and Latino voters and Native American

7 voters experience ongoing language barriers that make them less likely to understand the

8 instructions provided by county election officials regarding the Election Day Receipt

9 Deadline. This is further complicated by the fact that, historically, Spanish-speaking voters

10 have received incorrect and misleading information from election officials. In the two most

11 recent presidential cycles, for example, Spanish-speaking voters received incorrect

12 information about the election, ranging from wrong election dates to wrong titles for

13 measures on those voters’ official ballots.

14

55. Moreover, Arizona’s dissemination of incorrect and inaccurately translated

15 information breeds distrust and infuses more confusion into the election process, making it

16 particularly difficult for Hispanic and Latino voters to understand the shifting five, six, and

17 seven day deadlines for mailing in a mail-in ballot, particularly where those deadlines do

18 not comport with other standard deadlines for mailing government documents in Arizona.

19

56. Finally, “[r]acial disparities between minorities and non-minorities in

20 socioeconomic standing, income, employment, education, health, housing, transportation,

21 criminal justice, and electoral representation have persisted in Arizona.” DNC, 329 F. Supp.

22 3d at 876. As a result, Hispanic and Latino voters and Native American voters experience

23 higher rates of poverty than white voters, and often have less access to reliable

24 transportation and less flexible work schedules, both of which make it more difficult for

25 them to travel to the post office, polling location, or county recorder’s office to submit their

26 ballots in time to meet the Election Day Receipt Deadline.

27

57. Indeed, according to the U.S. Census Bureau’s 2013-2017 American

28 Community Survey 5-Year Estimates, Hispanic, African-American, and Native-American

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 19 of 27

1 poverty rates in Arizona exceeded the white poverty rate for that same time period. Based

2 on the 5-Year Estimates, as of 2017, Hispanics, Native Americans, and African Americans

3 were all less likely to graduate high school in Arizona than whites were. Further, whites

4 were nearly 1.5 times more likely to have a bachelor’s degree than African Americans,

5 almost three times more likely than Hispanics, and more than three times as likely as Native

6 Americans in Arizona.

7

58. Decades of research have demonstrated that deficiencies in socio-economic

8 standing, such as those described above, significantly impact an individual’s ability to fully

9 participate in the political process, and the interaction between these deficiencies and the

10 Election Day Receipt Deadline is no different. Thus, while Arizona’s Election Day

11 Deadline Receipt burdens all voters, it also imposes a disproportionate burden on Arizona’s

12 rural and Hispanic and Latino voters.

13

CLAIMS FOR RELIEF

14

COUNT I

15

First and Fourteenth Amendments

U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202

16

Undue Burden on the Right to Vote

17

59. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

18 Complaint and the paragraphs in the counts below as though fully set forth herein.

19

60. Under the Anderson-Burdick balancing test, a court considering a challenge to

20 a state election law must carefully balance the character and magnitude of injury to the First

21 and Fourteenth Amendment rights that the plaintiff seeks to vindicate against the

22 justifications put forward by the State for the burdens imposed by the rule. See Burdick v.

23 Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

24

61. This balancing test utilizes a flexible sliding scale, where the rigorousness of

25 scrutiny depends upon the extent to which the challenged law burdens voting rights. See

26 Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1024 (9th Cir. 2016); see also

27 Akins v. Sec’y of State, 154 N.H. 67 (2006) (applying Anderson-Burdick and holding that

28

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 20 of 27

1 strict scrutiny was the correct test to determine constitutionality of ballot order system that

2 prioritized candidate names alphabetically).

3

62. Courts need not accept a state’s justifications at face value, particularly where

4 those justifications are “speculative,” otherwise it “would convert Anderson-Burdick’s

5 means-end fit framework into ordinary rational-basis review wherever the burden a

6 challenged regulation imposes is less than severe.” Soltysik v. Padilla, 910 F.3d 438, 448–

7 49 (9th Cir. 2018) (citing Pub. Integrity All., 836 F.3d at 1024–25); see also Crawford v.

8 Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling op.) (“However

9 slight th[e] burden may appear, . . . it must be justified by relevant and legitimate state

10 interests sufficiently weighty to justify the limitation.”) (internal citation and quotation

11 marks omitted) (emphasis added).

12

63. Arizona’s Election Day Receipt Deadline imposes a severe burden on all

13 Arizona voters⸺and rural and Hispanic and Latino voters in particular⸺who vote by mail.

14 These voters must first learn about the Election Day Receipt Deadline and accurately guess

15 when their ballot must be mailed for it to be counted. For voters who, through no fault of

16 their own, misjudge how long it will take for their ballot to arrive back to their county, or

17 for those who never learn about Arizona’s Election Day Receipt Deadline, the punishment

18 is swift and severe: total disenfranchisement. But Arizona’s Election Day Receipt Deadline

19 also severely burdens all voters who vote by mail even if those voters’ ballots are

20 successfully counted. By requiring its voters to cast their mail ballots a week before the

21 election in order for those ballots be counted, Arizona’s Election Day Receipt Deadline

22 forces Arizona voters to cast their ballots before they can account for any critical

23 information about the election or the candidates that arises during the final week leading up

24 to Election Day⸺arguably, the most critical week in an entire election cycle. Arizona’s

25 Election Day Receipt Deadline thus deprives voters of the ability to engage in this robust

26 period of civic engagement, because it effectively requires them to have already cast their

27 vote.

28

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1

64. While Arizona’s imposition of its Election Day Receipt Deadline burdens all

2 Arizona voters who vote by mail, it also particularly impacts subgroups, like Arizona’s rural

3 population and its Hispanic and Latino voters, who, given where they live, must often cast

4 their ballots even further in advance of Election Day to ensure their ballots will arrive by

5 the Election Day Receipt Deadline. Arizona’s Election Day Receipt Deadline also generally

6 imposes a particularly heavy burden on Hispanic and Latino voters, who face heightened

7 barriers to participation in Arizona’s mail ballot system.

8

65. While Arizona has a legitimate regulatory interest in a general cutoff for

9 receiving ballots, the State derives no meaningful benefit from imposing the Election Day

10 Receipt Deadline, particularly where it has heavily promoted mail-in balloting and

11 encouraged over 80 percent of its electorate to vote by mail. Arizona has a full 20 days to

12 finalize election results, and it already allows voters to cure otherwise incomplete ballots a

13 full five business days after Election Day. Arizona would suffer no significant

14 administrative burden if it, at a minimum, extended that same five-business-day deadline to

15 permit for the receipt of ballots that were postmarked on or before Election Day, but which

16 arrive within five business days after the election. In fact, the extension of the deadline

17 would likely decrease administrative burdens and improve election outcomes in Arizona by

18 providing the State and counties with the opportunity to count all votes cast in close races,

19 avoiding potential recount and post-election litigation costs. Arizona thus has no legitimate

20 interest, and certainly no compelling interest that is narrowly drawn, in rejecting ballots that

21 are postmarked before or on Election Day and which are received within, at a minimum,

22 five business days after Election Day.

23

66. In short, Arizona’s Election Day Receipt Deadline is not supported by a state

24 interest that is sufficient to justify the resulting burden on the right to vote, and thus unduly

25 burdens the right to vote of all Arizona voters generally and Arizona’s rural and Hispanic

26 and Latino voters in particular in violation of the First and Fourteenth Amendments.

27 COUNT II
28

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1

Due Process

2

U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Denial of Procedural Due Process

3 67. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
4 Complaint and the paragraphs in the counts below as though fully set forth herein.
5 68. The Due Process Clause of the United States Constitution prohibits the states
6 from depriving “any person of . . . liberty . . . without due process of law.” U.S. CONST.
7 amend. XIV, § 1. Which protections are due in a given case requires a careful analysis of
8 the importance of the rights and the other interests at stake. See Mathews v. Eldridge, 424
9 U.S. 319, 334–35 (1976); Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178, 1192 (9th
10 Cir. 2015). Courts must first consider “the nature of the interest that will be affected” by the
11 government’s action as well as the “degree of potential deprivation that may be created” by
12 existing procedures. Nozzi, 806 F. 3d at 1192–93. Second, “courts must consider the
13 ‘fairness and reliability’ of the existing procedures and the ‘probable value, if any, of
14 additional procedural safeguards.’” Id. at 1193 (quoting Mathews, 424 U.S. at 343). Finally,
15 courts must consider “the public interest, which ‘includes the administrative burden and
16 other societal costs that would be associated with’ additional or substitute procedures. Id.
17 (quoting Mathews, 424 U.S. at 347). Overall, “due process is flexible and calls for such
18 procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334,
19 (quotation and citation omitted).
20 69. Arizona’s procedures for voting by mail must comport with due process. See
21 Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990).
22 “Such due process is not provided when the election procedures [for voting by mail]” do
23 not adequately protect the right to vote or ensure that an “individual is not continually and
24 repeatedly denied so fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp.
25 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State
26 must provide adequate process to ensure that voters' ballots are fairly considered and, if
27 eligible, counted.”).
28

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1

70. “When an election process ‘reache[s] the point of patent and fundamental

2 unfairness,’ there is a due process violation.” Fla. State Conference of N.A.A.C.P. v.

3 Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) (quoting Roe v. Alabama, 43 F.3d 574,

4 580 (11th Cir. 1995)). A state’s elections system, “the specifics of which are not explicitly

5 made known to potential voters, that leaves potential voters in the dark as to its effect on a

6 voter’s [ability to vote] and that fails to give voters a fair opportunity to [participate], is

7 fundamentally unfair and violative of the Due Process Clause of the Fourteenth

8 Amendment.” Id. at 1185.

9

71. The nature of the interest at stake in this case⸺the right to vote and to have

10 that vote count⸺is the most precious liberty interest of all because it is preservative of all

11 other basic civil and political rights.

12

72. But Arizona’s existing procedures for counting mail ballots too often deprive

13 voters of having their ballot counted because (1) many voters do not learn of the Election

14 Day Receipt Deadline before Election Day, and (2) even voters who do learn of the Election

15 Day Receipt Deadline may not have their ballots counted if those ballots do not arrive in

16 the mail at the county recorder’s office, through no fault of their own, by 7 p.m. on Election

17 Day. Arizona’s Pre-Election Cutoff further deprives all Arizona voters who vote by mail of

18 the ability to cast a meaningful and informed vote by requiring voters to cast their ballots a

19 full week (or more) before Election Day if they wish to ensure that their ballots will actually

20 be counted.

21

73. Arizona’s Election Day Receipt Deadline is neither a reliable nor fair way to

22 administer voting by mail. The Election Day Receipt Deadline and the corresponding Pre-

23 Election Cutoff for casting ballots is, in fact, devoid of reliability because Arizona’s

24 elections officials can only offer voters their best guess of when voters must place their

25 ballots in the mail for it to be counted. Nor is the Election Day Receipt Deadline fair because

26 it effectively requires some voters—particularly rural voters and minority voters—to cast

27 their ballots before the rest of the electorate if they wish to be afforded the same process as

28 other voters in the State and to have their votes counted. Arizona’s Election Day Receipt

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 24 of 27

1 Deadline is also not fair to all Arizona voters who vote by mail because it forces those voters

2 to cast their ballots with incomplete information and before candidates have delivered their

3 final pitches to the voters.

4

74. The value of additional or substitute procedural safeguards to ensure that the

5 votes of Arizona’s mail voters are both meaningfully cast and actually counted is readily

6 apparent. A substitute procedure⸺requiring mail ballots to be postmarked on or before

7 Election Day and received by the county within, at a minimum, five business days after

8 Election Day to be counted⸺solves the inequities inherent in Arizona’s Election Day

9 Receipt Deadline. A postmark date not only offers a reliable date to Arizona voters by which

10 they must cast their ballots, but it also ensures that rural voters and minority voters are not

11 more likely to have their ballot rejected simply because they live in a town with slower mail

12 service. A postmark date additionally ensures that all of Arizona’s voters can consider any

13 information that may arise and influence voters’ choices in the last week of the election.

14

75. Because Arizona is not required to finalize its election results for 20 days after

15 the election and already allows voters to cure incomplete ballots within five business days

16 of the election, requiring Arizona to accept ballots that are postmarked on or before Election

17 Day and which arrive, at a minimum, within five business days of Election Day would put

18 a minimal administrative burden on the state, if any. And as the Supreme Court has

19 explained, “administrative convenience” cannot justify the deprivation of a constitutional

20 right. See Taylor v. Louisiana, 419 U.S. 522, 535 (1975).

21

76. Having induced its voters to vote by mail, Arizona must establish adequate

22 procedures to ensure that voters have a reliable, fair, and effective method to cast their

23 ballots. Because Arizona’s Election Day Receipt Deadline is markedly inadequate in all of

24 those respects, and Arizona is readily capable of instituting a substitute procedure which

25 would protect those voters’ rights with minimal burden to the state, Arizona’s Election Day

26 Receipt Deadline violates Arizona voters’ procedural due process rights.

27

PRAYER FOR RELIEF

28 WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 25 of 27

1

A. Declaring that Arizona’s imposition of its Election Day Receipt Deadline for

2 casting mail ballots and its failure to count the votes of otherwise eligible voters who

3 lawfully mail their ballots before or on Election Day, but whose ballots are not received—

4 through no fault of their own—by 7 p.m. on Election Day, violates the First and Fourteenth

5 Amendments to the United States Constitution by placing an undue burden on those voters

6 and particularly on Arizona’s rural and Hispanic and Latino voters by subjecting them to

7 arbitrary and disparate treatment;

8

B. Declaring that Arizona’s imposition of its Election Day Receipt Deadline for

9 casting mail ballots and its failure to count the votes of otherwise eligible voters who

10 lawfully mail their ballots before or on Election Day, but whose ballots are not received—

11 through no fault of their own—by 7 p.m. on Election Day violates the Due Process Clause

12 of the Fourteenth Amendment to the United States Constitution;

13

C. Permanently enjoining the Secretary, her respective agents, officers,

14 employees, and successors, and all persons acting in concert with each or any of them,

15 from rejecting ballots that are postmarked by Election Day and arrive at a county recorder’s

16 office within, at a minimum, five business days of Election Day;

17

D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees

18 pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and

19

E. Granting such other and further relief as the Court deems just and proper,

20 including requiring the Secretary to accept ballots that were postmarked on or before

21 Election Day if received within, at a minimum, five business days of Election Day.

22

23

24

25

26

27

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1 Dated: February 24, 2020
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PERKINS COIE LLP By: s/ Alexis E. Danneman
Alexis E. Danneman (# 030478) Sarah R. Gonski (# 032567) 2901 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Marc E. Elias* John Devaney* Amanda R. Callais* K’Shaani O. Smith* Zachary J. Newkirk* Christina A. Ford* PERKINS COIE LLP 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960 *Admitted Pro hac vice Attorneys for Plaintiffs
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Case 2:19-cv-05685-DWL Document 21 Filed 02/24/20 Page 27 of 27

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CERTIFICATE OF SERVICE

2

I hereby certify that on, February 24, 2020, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

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s/ Michelle DePass

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 Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 1 of 24

1 Sarah R. Gonski (Bar. No. 032567) Alexis E. Danneman (Bar. No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk*
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 Attorneys for Plaintiffs
17

18

UNITED STATES DISTRICT COURT

19

DISTRICT OF ARIZONA

20 Voto Latino Foundation, Priorities USA, and
21 Shelby Aguallo,

No. 2:19-cv-05685-DWL

22

Plaintiffs,

23

v.

24 Katie Hobbs, in her official capacity as 25 Arizona Secretary of State,

26

Defendant.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
ORAL ARGUMENT REQUESTED

27

28

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 2 of 24

1

TABLE OF CONTENTS

2 I. INTRODUCTION ..................................................................................................... 1

3 II. STATEMENT OF FACTS ........................................................................................ 2

4

A. Arizona Relies Heavily on Voting by Mail. .............................................................. 2

5 B. The Election Day Receipt Deadline Disenfranchises Thousands of Voters. ............ 3

6

C. The Election Day Receipt Deadline Has a Disproportionate Effect on Hispanic and

7

Latino and Native American Voters and Voters in Rural Areas. .............................. 6

8

D. Arizona Has No Legitimate Interest in Enforcing the Receipt Deadline. ................. 9

9 III. ARGUMENT ........................................................................................................... 10

10 A. Plaintiffs Are Likely to Succeed on The Merits. ..................................................... 10

11

1. Plaintiffs Are Likely to Succeed on Their First and Fourteenth Amendments

12

Claims. ................................................................................................................. 10

13

2. Plaintiffs Are Likely to Succeed on the Merits of the Procedural Due Process

14

Claim. ................................................................................................................... 14

15 B. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction. ............................... 15

16 C. The Balance of the Equities and the Public Interest Favor an Injunction. .............. 17 17 IV. CONCLUSION........................................................................................................ 17 18

19

20

21

22

23

24

25

26

27

28

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Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 3 of 24

1

TABLE OF AUTHORITIES

2 CASES 3

4 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ...................................................................................... 10

5

Anderson v. Celebrezze,

6

460 U.S. 780 (1983) ................................................................................................ 12, 13

7 Burdick v. Takushi,

8

504 U.S. 428 (1992) .......................................................................................... 10, 11, 13

9 Crawford v. Marion Cty. Election Bd.,

10

553 U.S. 181 (2008) ...................................................................................................... 11

11 Democratic Nat’l Comm., et al. v. Hobbs,

948 F.3d 989 (9th Cir. 2020) ................................................................................. passim

12

Doe v. Walker,

13

746 F. Supp. 2d 667 (D. Md. 2010) .............................................................................. 16

14 Ga. Coal. for People’s Agenda, Inc. v. Kemp,

15

347 F. Supp. 3d 1251 (N.D. Ga. 2018) ....................................................... 11, 15, 16, 17

16 Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal,

17

214 F. Supp. 3d 1344 (S.D. Ga. 2016).......................................................................... 16

18 Isabel v. Reagan, No. CV-128-03217, 2019 WL 5684195 (D. Ariz. Nov. 1, 2019)................................. 17

19

League of Women Voters of Fla. v. Browning,

20

863 F. Supp. 2d 1155 (N.D. Fla. 2012)......................................................................... 17

21 League of Women Voters of Fla. v. Cobb,

22

447 F.Supp. 2d 1314 (S.D. Fla. 2006) .......................................................................... 16

23 League of Women Voters of N.C. v. North Carolina,

24

769 F.3d 224 (4th Cir. 2014) .................................................................................. 11, 16

25 Ne. Ohio Coal. for the Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012) ........................................................................................ 11

26

Norman v. Reed,

27

502 U.S. 279 (1992) ................................................................................................ 11, 13

28

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1 Nozzi v. Hous. Auth. of City of L.A.,

2

806 F.3d 1178 (9th Cir. 2015) ...................................................................................... 14

3 Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ........................................................................................ 15

4

One Wis. Inst., Inc. v. Thomsen,

5

198 F. Supp. 3d 896 (W.D. Wis. 2016) ........................................................................ 11

6 Pub. Integrity All., Inc. v. City of Tucson,

7

836 F.3d 1019 (9th Cir. 2016) ...................................................................................... 11

8 Purcell v. Gonzalez,

9

549 U.S. 1 (2006) ........................................................................................ 11, 12, 15, 17

10 Raetzel v. Parks/Bellemont Absentee Election Bd.,

762 F. Supp. 1354 (D. Ariz. 1990) ......................................................................... 14, 15

11

Saucedo v. Gardner,

12

335 F. Supp. 3d 202 (D.N.H. 2018).............................................................................. 14

13 Taylor v. Louisiana,

14

419 U.S. 522 (1975) ................................................................................................ 15, 17

15 United States v. Cunningham,

16

No. 3:08-cv-709, 2009 WL 3350028 (E.D. Va. Oct. 15, 2009) ................................... 16

17 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) .......................................................................................................... 10
18 STATUTES
19
20 A.R.S. § 1-218(A)................................................................................................................. 4

21 A.R.S. § 16-134(C)(2) .......................................................................................................... 4

22 A.R.S. § 16-542(C)............................................................................................................... 4

23 A.R.S. § 16-544(A)............................................................................................................... 2

24 A.R.S. § 16-548(A)....................................................................................................... 1, 3, 4
25 A.R.S. § 16-550 .............................................................................................................. 9, 13 26
A.R.S. § 16-642(A)......................................................................................................... 9, 13 27
A.R.S. § 20-191 .................................................................................................................... 4 28

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1 Voting Rights Act Section 2 ................................................................................................. 3 2 OTHER AUTHORITIES 3
Ariz. Admin. Code 17-4-304 ................................................................................................ 4 4
Federal Rule of Civil Procedure 65 ...................................................................................... 1 5
U.S. Const. amend. XIV, § 1 .............................................................................................. 14 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iii

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1

Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Voto Latino Foundation,

2 Priorities USA, and Shelby Aguallo, respectfully move for an order preliminarily enjoining

3 Secretary of State Hobbs and her respective agents, officers, employees, successors, and all

4 person acting in concert with each or any of them, from enforcing A.R.S. § 16-548(A), and

5 relevant portions of the 2019 Elections Procedures Manual, which has the force of law, and

6 preliminarily enjoining them from rejecting ballots that arrive at the respective county

7 recorder’s office within, at a minimum, five business days of Election Day and contain

8 indicia, such as a postmark, identifying those ballots as sent on or before Election Day.

9

I. INTRODUCTION

10

This case concerns an Arizona voting law that requires election officials to reject all

11 ballots submitted by mail before or on Election Day simply because they arrive after 7:00

12 p.m. on Election Day. Since 2008, more than 17,000 lawful Arizona voters have had their

13 ballots discarded because of this “Election Day Receipt Deadline.” In one election after

14 another, thousands of voters are arbitrarily disenfranchised by this Deadline⸺including

15 Arizona’s rural, Hispanic and Latino, and Native American voters who are disenfranchised

16 at disparate rates⸺a result that flows from Arizona’s pervasive use of voting by mail, its

17 failure to provide clear guidance on complying with the Election Day Receipt Deadline,

18 and factors such as unreliable mail delivery, unequal mail access, and the on-going effects

19 of discrimination, all of which are well beyond the voters’ control.

20

There is no legitimate state interest, much less the type of compelling interest that

21 Arizona must show, to support this deprivation of Arizonans’ most fundamental

22 constitutional right⸺the right to vote. Indeed, justifications such as finality, confidence in

23 elections, and administrative convenience fall flat, as they are directly undermined by the

24 Election Day Receipt Deadline and are incapable of withstanding the severe burden the law

25 imposes. Accordingly, this Court must protect the rights of Arizona voters in the upcoming

26 November 2020 elections by preliminarily enjoining the Election Day Receipt Deadline and

27 ensuring that all eligible Arizona voters who cast their ballot before or on Election Day have

28 their votes counted.

1

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 7 of 24

1

II. STATEMENT OF FACTS

2

A. Arizona Relies Heavily on Voting by Mail.

3

Arizonans have increasingly turned to voting by mail as the preferred method for

4 exercising their constitutional right to vote. In the 2008 general election, just over a million 5 Arizonans voted by mail.1 Ex. 4 at 24. In 2016, nearly two million Arizonans voted by mail

6 in the general election; more than 1.9 million did so in the 2018 midterm election. Ex. 1 at

7 9; Ex. 5 at 23; Ex. 6 at 29. All told, approximately 80% of Arizonans who vote in statewide

8 elections now use mail ballots, making Arizona more dependent on voting by mail than

9 almost any other state. Ex. 1 at 9-10 (explaining that only three states, which have all mail

10 voting systems, exceed Arizona’s mail voting rates); Ex. 6 at 29–30. The sharp increase in

11 voting by mail in Arizona is, in part, the result of a concerted effort to encourage its use. In

12 2007, Arizona began maintaining a Permanent Early Voter List (“PEVL”) that allows voters

13 to automatically receive a mail ballot for every election. A.R.S. § 16-544(A). Arizona has

14 successfully encouraged voters to sign up for PEVL. See Quinlan Decl. ¶ 4; see also Ex. 1

15 at 10 (95.2% of all mail voters in 2018 were on PEVL). Arizona’s decision to close or move

16 hundreds of polling places also has materially increased voters’ reliance on mail ballots.

17 See Quinlan Decl. ¶ 5; Ex. 2 at 10; see also Democratic Nat’l Comm., et al. v. Hobbs, 948

18 F.3d 989, 1045 (9th Cir. 2020) (“Arizona changes polling places with extraordinary

19 frequency, and often locates them in inconvenient and misleading places.”).

20

Of the millions of Arizonans who receive mail ballots, approximately 90% return

21 them through the mail instead of delivering them in person. Ex. 7 at 2. While voters can

22 drop off mail ballots in-person, multiple factors often prevent them from doing so. Many

23 voters are unable to leave work during the limited hours that polling places are open. Ex. 2

24 at 27-28; see also Figueroa Decl. ¶ 4; Quezada Decl. ¶ 12. Some voters cannot afford the

25 child care needed to leave their homes mid-day to deliver a ballot. See Quinlan Decl ¶ 11;

26 Arias Decl. ¶ 6; Hobbs, 948 F.3d at 1006. Others lack transportation to drop of a ballot in

27

28

1 All citations to Exhibits are materials attached to the Declaration of John Devaney.

2

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 8 of 24

1 person. See Quezada Decl. ¶ 11; Quinlan Decl. ¶ 11; see also Hobbs, 948 F.3d at 1006.

2 Rural voters also typically live long distances from ballot drop-off locations. Ex. 2 at 18-

3 20. College students who attend school outside their home county often must return a mail

4 ballot in person because of the distances they would have to travel. See Aguallo Decl. ¶¶ 5,

5 8; Bixby Decl. ¶ 8; Armour Decl. ¶ 4. Additionally, many counties have few or no drop-off

6 boxes. See Bixby Decl. ¶¶ 9-10. Thus, in the 2016 general election, only about 10% of

7 Arizonans who voted by mail delivered them in-person. Ex. 7 at 2.

8

Legislative action also prompted the shift to mail voting. Thousands of Arizonans

9 had, for decades, relied on ballot collection to cast their votes—giving their ballot to a

10 trusted individual for personal delivery. See Hobbs, 948 F.3d at 1004-07, 1031-34. This

11 practice was common in Arizona’s minority communities; voters in Latino and Native

12 American communities used ballot collection to overcome challenges they faced with mail-

13 in ballots, like unreliable mail service and a lack of transportation to drop-off locations. Id.

14 at 1006-07. In 2016, however, Arizona prohibited ballot collection.2 Id. at 1009. In a

15 potentially more dramatic shift, in 2019, the Legislature contemplated banning all methods

16 of returning ballots except via mail. S.B. 1046 (2019). The bill’s sponsor stated that she will

17 re-introduce the legislation next session. With Arizona’s intentional shift toward voting by

18 mail comes a profound responsibility to have clear procedures for this voting method. See

19 Ex. 2 at 10-11 (describing lack of procedures to meet deadline). But, as evidenced by the

20 thousands of Arizonans whose mail ballots are rejected as a result of Arizona’s Election

21 Day Receipt Deadline, A.R.S. § 16-548(A), Arizona has failed to meet this responsibility.

22

B. The Election Day Receipt Deadline Disenfranchises Thousands of Voters.

23

Arizona has the dubious distinction of being the state in which voters are least likely

24 be confident that their ballots will be counted. Ex. 7 at 3. Arizona voters are the most likely

25
2 In Hobbs, the en banc Ninth Circuit struck down Arizona’s ban on ballot collection, 26 finding it had been passed with discriminatory intent and failed the results test under Section
2 of the Voting Rights Act. The mandate from Hobbs is currently stayed while the Attorney 27 General petitions to the U.S. Supreme Court. Accordingly, the ban remains in place and,
until the stay is lifted, will remain in place, which means that it may be in effect during the 28 2020 General Election.

3

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 9 of 24

1 to say they are “not too confident” or “not at all confident” that others’ votes are counted. Id.

2 at 4. The Deadline, and the confusion it generates, adds to this notable lack of confidence.

3 A review of Deadline’s related statutory and regulatory scheme explains voters’ skepticism.

4

Election officials in each Arizona county must send mail ballots to all voters enrolled

5 in the PEVL or who request a mail ballot 24 to 27 days before an election. A.R.S. § 16-

6 542(C). The ballots must be accompanied by a postage-prepaid return envelope, an

7 affidavit, and instructions. See Ex. 3 at 56. To be counted, a voter’s ballot and affidavit must

8 be received by 7:00 p.m. on Election Day. A.R.S. § 16-548(A). Ballots received after that

9 time are rejected, even if mailed days before the election. Ex. 3 at 56.

10

Many Arizona voters logically believe their ballot will count if mailed by Election

11 Day. See Aguallo Decl. ¶ 6; Johnson Decl. ¶ 5; Quezada Decl. ¶ 7; Quinlan Decl. ¶ 9;

12 Schneider Decl. ¶¶ 7-8. That belief is rooted in voters’ lifetime experiences with mailing

13 deadlines. With nearly all mail-related deadlines in modern life, mail is considered timely

14 if it is postmarked by the applicable deadline. See Ex. 2 at 22. Postmarks are often used to

15 assess the timeliness of payments, applications, and other documents submitted to the

16 government. Id.; see also A.R.S. § 1-218(A) (tax documents); A.R.S. § 20-191 (insurance

17 premium payments); Ariz. Admin. Code 17-4-304 (vehicle registrations). Voter registration

18 applications are timely if postmarked by the registration deadline and received within five

19 days of that postmark deadline. See A.R.S. § 16-134(C)(2). When it comes to casting

20 ballots, however, Arizona turns voters’ reasonable expectations upside down.

21

Not only is a voter’s ballot rejected if postmarked before Election Day but received

22 after the Election Day Receipt Deadline, but Arizona law also effectively imposes a second

23 deadline on voters, the “Pre-Election Cutoff.” This is the date by which a voter must mail a

24 ballot to have a reasonable certainty that it will be counted. While counties are now, for the

25 first time, instructed to provide guidance to voters on the Pre-Election Cutoff, Ex. 3 at 56,

26 there has been considerable inconsistency among counties on this deadline. In 2016,

27 Maricopa publicized this deadline as Tuesday, November 1 while Pima publicized it as

28 Thursday, November 3. See Exs. 13 at 2 & 15 at 1. Equally problematic, the Pre-Election

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Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 10 of 24

1 Cutoff is inconsistent from election to election even within the same county. In Pima, the

2 suggested deadline in 2014 was four days before Election Day; in 2016, it changed to five

3 days; and in 2018, it was six days. Ex. 2 at 11-12; see also Ex. 13 at 2. In 2018, Pima

4 bewilderingly promoted two different recommended Pre-Election Cutoffs. Ex. 13 at 3, 6. In

5 Maricopa, the 2016 mailing deadline was seven days before the general election; for 2018,

6 it was six days. Ex. 2 at 11; Ex. 15. In Yuma, the 2018 recommendation was six days; in

7 2020, Yuma is directing voters to mail their ballots “well in advance of the deadline date.”

8 Ex. 2 at 12; Ex. 14 at 5. Other counties suggest mailing ballots as much as ten days before

9 the election. Ex. 2 at 12-13; Ex. 16. Given these inconsistent deadlines, it is hardly

10 surprising that Arizonans lack confidence their votes will be counted and are confused about

11 when to mail ballots. It is unlikely that providing new guidance, see Ex. 3 at 56, will remedy

12 this confusion. See Ex. 2 at 19, 31.

13

In view of the confusion created by the Election Day Receipt Deadline and the ever-

14 shifting Pre-Election Cutoff, it is no wonder that thousands of Arizonans have their ballots

15 rejected. Between the 2008 and 2018 General Elections, Arizona rejected at least 17,463

16 ballots for arriving after the Election Day Receipt Deadline.3 Ex. 1 at 42 (Table C). In 2008,

17 at least 1,611 ballots were rejected, even though many of them were mailed days before

18 Election Day. Id. In 2012, more than double that number⸺4,107 ballots⸺were rejected.

19 Id. And in the 2018 midterm election, a lower turnout general election than either 2008 or

20 2012, more than 3,000 ballots were rejected. Id. Many of these ballots would have been

21 counted if Arizona had accepted ballots postmarked on or before Election Day.4

22

Arizona’s rejection of these ballots has serious consequences for disenfranchised

23 voters and for elections: in every election year, dozens of races are decided by margins of

24

3 This figure, as with all aggregate figures cited herein, undercount the actual number

25 of ballots rejected, as many counties do not maintain records of these rejections. Ex. 1 at 6-

8. Likewise, there is no way to account for the individuals who do not mail their ballots at 26 all because they missed the Pre-Election Cutoff and assumed they had missed the actual

deadline or assumed their ballots would arrive after Election Day.

27

4 The use of the term “postmark” is intended to encompass any indicia, such as a

barcode or other marking, made by the U.S. Postal Service to track or record the time that

28 a ballot entered the postal system.

5

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 11 of 24

1 mere hundreds or even a few dozen votes. Ex. 1 at 25-26. In the 2018-2019 election season,

2 there were at least thirteen races in Cochise, Mohave, Navajo, and Santa Cruz in which the

3 margins were less than the number of late mail-in ballots rejected. Ex. 1 at 26-27. In 2016,

4 in the Republican primary for Arizona’s 5th Congressional District (“CD5”), the margin

5 was only 27 votes, which is significantly less than the average number of late mail-in ballots

6 rejected in Maricopa County, where CD5 is located. Ex. 9; Ex. 10; see also Ex. 1 at 26. And

7 in 2010, Proposition 112 passed by just 194 votes statewide, Ex. 1 at 25, while Maricopa

8 County alone rejected more than 2,680 late mail-in ballots.5 Id. at 42 (Table C).

9

Finally, by forcing voters to send their ballots in a week to ten days before Election

10 Day, the Deadline deprives voters of information that arises in the election’s last week. See

11 Ex. 2 at 40-41; Aguallo Decl. ¶¶ 10-11; Arias Decl. ¶¶ 9-10; Johnson Decl. ¶ 8. Campaigns

12 and voters often consider the final week as critical for canvassing and other get-out-the vote

13 activities. See Sutton Decl. ¶¶ 7-8; Quinlan Decl. ¶ 7; Schneider Decl. ¶ 7; Ex. 1 at 12; Ex.

14 2 at 16-17. In addition, late-breaking news can change a race’s landscape. See Ex. 2 at 38-

15 39; see also Sutton Decl. ¶ 5. Voters reasonably expect to be able to evaluate candidates

16 and issues up to Election Day. See Aguallo Decl. ¶¶ 10-11; Arias Decl. ¶¶ 9-10; see also

17 Ex. 1 at 12; Ex. 2 at 38-39. Indeed, history is replete with examples of elections that were

18 affected by late-breaking developments days before an election.6 See Ex. 2 at 38-39.

19

C. The Election Day Receipt Deadline Has a Disproportionate Effect on Hispanic

20

and Latino and Native American Voters and Voters in Rural Areas.

21

The Election Day Receipt Deadline is particularly harsh on Arizona’s minority

22 voters, who comprise a disproportionately significant portion of citizens whose ballots are

23 rejected. Ex. 1 at 28. In Maricopa, the Deadline is four times more likely to disenfranchise

24

5 Other examples of such elections are present in nearly every election cycle. See Ex.

1 at 25-26.

25

6 For instance, in the 2016 presidential preference election, Senator Marco Rubio

withdrew from the race before Election Day, yet, received 72,304 votes, thousands of which

26 were no doubt cast by Arizonans who mailed their ballots before Rubio’s announcement in

order to comply with the Election Day Receipt Deadline. Ex. 11 at 2. Five days before the

27 2000 presidential election, then-Governor George W. Bush acknowledged a DUI

conviction, thereby losing millions of evangelical votes, according to advisor Karl Rove.

28 Ex. 8 at 241.

6

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 12 of 24

1 Hispanic and Latino voters, and Native American voters are 5.5 times more likely to be

2 disenfranchised. Ex. 1 at 28-29. In rural counties like Cochise, Coconino, Graham,

3 Greenlee, and Santa Cruz, Hispanic and Latino voters are 4.2 times more likely to be

4 disenfranchised. Id. at 23. In counties with large Hispanic and Native American

5 populations⸺Apache, Santa Cruz, Yuma, Navajo, and Greenlee⸺the late rejection rate is

6 6.12 for every 1000 mail ballots. Id. at 19. Santa Cruz, where 83% of the population is

7 Hispanic/Latino, has the highest rate of late-rejected ballots: 7.6 rejections for every 1000

8 mail ballots counted. Id. at 11; but see infra at 8 (Maricopa County’s rejection rate).

9

The reasons for this disparity are varied, but each is traceable to Arizona’s long

10 history of discrimination against minority voters. Ex. 2 at 28-31. As the Ninth Circuit

11 recently found, “Arizona has a long history of race-based discrimination against its

12 American Indian [and] Hispanic [] citizens. Much of that discrimination is directly relevant

13 to those citizens’ ability to register, to vote, or otherwise to participate in the democratic

14 process.” Hobbs, 948 F.3d at 1017. The fall-out from this sad history is pervasive and is

15 found in the persistent education gaps that have left Arizona’s minority voters less educated

16 than their white counterparts, which makes them less likely to be aware of the Deadline.7

17 Ex. 2 at 32-33; Ex. 17. The Ninth Circuit recognized this in Hobbs, explaining that “[d]ue

18 to their lower levels of [English] literacy and education, minority voters are more likely to

19 be unaware of certain technical [voting] rules, such as the requirement that early ballots be

20 received by the county recorder, rather than merely postmarked, by 7:00 p.m. on Election

21 Day.” Hobbs, 948 F.3d at 1028 (quotation marks omitted and alterations in original).

22 Coupled with lower levels of education are high rates of poverty among Hispanics (20%)

23 and Native-Americans (35%) in Arizona as compared to Whites. Ex. 2 at 27. And poverty’s

24 burdens limit minority voters’ access to reliable transportation and flexible work schedules,

25 making mail delivery of ballots their only realistic option. Ex. 2 at 17-18. The lower levels

26

27

7 Hispanics and Native Americans are less likely to graduate high school in Arizona

than whites. Ex. 2 at 32. Since at least 2005, studies have shown consistent racial disparities

28 among Hispanic and Native language minorities in all categories of testing. Id. at 33.

7

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 13 of 24

1 of education, along with bans on bilingual education, also create language challenges for

2 Hispanic and Native American voters in understanding instructions about the Election Day

3 Receipt Deadline. Ex. 2 at 34. Relatedly, Spanish-speaking voters in Arizona historically

4 have received incorrect and misleading information—including wrong election dates—

5 from election officials. Hobbs, 948 F.3d at 1025.

6

The Election Day Receipt Deadline also particularly disenfranchises Arizonans in

7 rural counties. The most populous counties in Arizona have lower incidences of rejected

8 late mail ballots than less populous counties. For example, Maricopa and Pima rejected

9 ballots at rates of 1.3 and 2.05 per 1000 mail ballots, respectively, in 2018. Ex. 1 at 30. In

10 contrast, the rejection rate in Navajo, Cochise, and Santa Cruz were 5.82, 6.65, and 7.63,

11 respectively. Id. The same pattern persisted in 2016. Id. While Maricopa rejected late ballots

12 at a rate of 1.23 per 1000 mail ballots, Navajo rejected 20.8 mail ballots per every 1000. Id.

13 at 12. In rural areas, mail service is unreliable and slow. See Johnson Decl. ¶¶ 6-7. Instead

14 of going directly from one rural address to another nearby address, mail is re-routed through

15 a central processing facility in Phoenix, which increases delivery times. See Ex. 2 at 15; Ex.

16 16. In addition, rural voters often do not have home mailboxes and do not receive personal

17 mail delivery services. Ex. 2 at 26-27; see also Hobbs, 948 F.3d at 1006-07, 1034. Instead,

18 they must travel to a post office miles away from where they live, to pick up and drop off

19 mail. Ex. 2 at 27-28; see also Hobbs, 948 F.3d at 1006. Many of these voters are unable to

20 visit post offices with regularity. Ex. 2 at 19; see also Hobbs, 948 F.3d at 1006. It is

21 particularly difficult for rural voters to pick up ballots at a post office a few weeks before

22 an election and then drop them off shortly thereafter to meet the Deadline.

23

Rural Arizona also contains many communities that are predominately populated by

24 minority voters, compounding the effects of the Deadline on those voters. As the Ninth

25 Circuit recently explained, “[r]eady access to reliable and secure mail service is

26 nonexistent” in some of these communities. Hobbs, 948 F.3d at 1034 (quotation and citation

27 omitted). Native American voters, in particular, struggle with mail service because of,

28 among other things, a severe lack of postal service infrastructure. See id. at 1006. Rural

8

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 14 of 24

1 Latino voters face similar problems in accessing secure, reliable mail service. Id. In Hobbs,

2 the Ninth Circuit found that in heavily Hispanic San Luis and Somerton, voters often lack

3 home delivery mail service or live miles from the post office.8 Id. Given the travel distances,

4 visits to the post office are infrequent. Id.

5

D. Arizona Has No Legitimate Interest in Enforcing the Receipt Deadline.

6

Arizona law gives county election officials 20 days post-election to count votes and

7 certify results. A.R.S. § 16-642(A). This is among the longest post-election periods in the

8 country. See Ex. 18. Arizona law also recognizes that some ballots may be incomplete when

9 voters submit them and provides voters up to five business days—a full calendar week—

10 after an election to cure them. Id. § 16-550; see also Ex. 2 at 20. County officials also have

11 up to ten days after Election Day to process provisional ballots. Id. § 16-135(D); see also

12 Ex. 2 at 20. Because of these provisions, Arizona has a well-known history of not certifying

13 election results until many days or even weeks after Election Day. See Exs. 19, 20.

14

Given Arizona’s statutorily-based history of not finalizing vote tallies and certifying

15 elections until after Election Day, there is no valid reason for rejecting ballots postmarked

16 on or before Election Day that arrive a few days after the election. Ex. 2 at 20. The purported

17 justification for the Deadline is to ensure that all votes are counted and elections are certified

18 within a reasonable time. Id. at 41-42. By law, a reasonable time is within 20 days of an

19 election and, in practice, Arizona election officials have typically certified election results

20 within approximately two weeks of an election. Exs. 19, 20. Neither of these timeframes

21 would be threatened⸺and Arizona could avoid disenfranchising thousands of voters⸺if

22 election officials were required to accept ballots postmarked by Election Day and received

23 within a reasonable time⸺at least five business days⸺thereafter. The five-business day

24 cure period for incomplete ballots demonstrates that Arizona law already recognizes that a

25 similar period does not compromise its interest in certifying elections as final. Ex. 2 at 20.

26

27

8 In San Luis, which is 98% Hispanic, nearly all the city’s residents must rely on a

single post office located across a major highway to send and receive mail, even though

28 the vast majority of San Luis’ residents lack reliable transportation. Id.

9

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 15 of 24

1

Further, one elections administrator who has overseen elections in several states that

2 use postmark deadlines explains that reliance on postmarks provides certainty and increases

3 voters’ confidence in elections. See Konopasek Decl. ¶¶ 5, 11. Postmark deadlines also do

4 not increase administrative burdens, even in jurisdictions that rely heavily on voting by

5 mail. See id. ¶¶ 6-8. By contrast, a receipt deadline creates more administrative burdens;

6 administrators must coordinate with the Postal Service to arrange for the physical handoff

7 of ballots in every postal location on Election Day and must ensure “late” ballots do not

8 become intermingled with other ballots. See id. ¶¶ 8-9.

9

III. ARGUMENT

10

To succeed on a motion for preliminary injunction, Plaintiffs must demonstrate that:

11 (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm

12 absent an injunction, (3) the balance of the equities tip in their favor, and (4) an injunction

13 serves the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

14 These elements are balanced on a sliding scale, and a preliminary injunction is appropriate

15 if Plaintiffs demonstrate “that serious questions going to the merits were raised and the

16 balance of hardships tips sharply in plaintiff’s favor.” All. for the Wild Rockies v. Cottrell,

17 632 F.3d 1127, 1134–35 (9th Cir. 2011) (citations omitted).

18

A. Plaintiffs Are Likely to Succeed on The Merits.

19

1. Plaintiffs Are Likely to Succeed on Their First and

20

Fourteenth Amendments Claims.

21

Arizona’s Election Day Receipt Deadline arbitrarily disenfranchises thousands of

22 voters⸺and particularly Arizona’s rural, Hispanic and Latino, and Native American

23 voters⸺by unduly and severely burdening their right to vote. Under the Anderson/Burdick

24 balancing test, the Supreme Court requires courts to “weigh ‘the character and magnitude

25 of the asserted injury to the rights . . . that the plaintiff seeks to vindicate’ against ‘the precise

26 interests put forward by the State as justifications for the burden imposed by its rule,’”

27 considering “‘the extent to which those interests make it necessary to burden the plaintiff’s

28 rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze,

10

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 16 of 24

1 460 U.S. 780, 788–89 (1983)). This inquiry is highly fact-specific and may not be

2 undertaken by rote. Rather, the court applies a “flexible standard.” Id. When voting rights

3 are severely restricted, a law “must be narrowly drawn to advance a state interest of

4 compelling importance.” Norman v. Reed, 502 U.S. 279, 280 (1992). But even less severe

5 burdens remain subject to balancing: “[h]owever slight” the burden on voting rights may

6 appear, “it must be justified by relevant and legitimate state interests ‘sufficiently weighty

7 to justify the limitation.’” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008)

8 (controlling op.) (quoting Norman, 502 U.S. at 288–89). In evaluating the burden a law

9 imposes, a court must focus on both the burden on the general electorate and the effect on

10 the actual individuals affected by the law. Id. at 201; see also Pub. Integrity All., Inc. v. City

11 of Tucson, 836 F.3d 1019, 1024 n.2 (9th Cir. 2016).

12

It is well-established that disenfranchisement severely burdens the right to vote—

13 and that even disenfranchising a small number of voters can give rise to a severe burden.

14 See, e.g., League of Women Voters of N.C. (“LOWV”) v. North Carolina, 769 F.3d 224,

15 244 (4th Cir. 2014); see also Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“[T]he possibility

16 that qualified voters might be turned away from the polls would caution any district judge

17 to give careful consideration to the plaintiffs’ challenges.”); Ne. Ohio Coal. for the

18 Homeless (“NEOCH”) v. Husted, 696 F.3d 580, 597 (6th Cir. 2012).

19

The Election Day Receipt Deadline disenfranchises thousands of eligible voters who

20 cast their ballot on or before Election Day, simply because their ballots do not arrive by

21 7:00 p.m. on Election Day. There can be no question that preventing this many Arizonans

22 from having their votes counted severely burdens the right to vote. In fact, courts have

23 regularly found a severe burden where voting laws disenfranchised far fewer voters than

24 the number of Arizonans disenfranchised here. See, e.g., NEOCH, 696 F.3d at 593, 597

25 (disqualifying provisional ballots that constituted less than 0.3% of total votes inflicted

26 “substantial” burden on voters); Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp.

27 3d 1251, 1264 (N.D. Ga. 2018) (finding severe burden where 3,141 individuals ineligible

28 to register); One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 948–49 (W.D. Wis. 2016)

11

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 17 of 24

1 (finding severe burden when less than 100 qualified voters were disenfranchised).

2

While the burden for Arizona’s general electorate is severe, it is particularly severe

3 for rural, Latino and Hispanic, and Native American voters, all of whom are disparately

4 likely to be disenfranchised due to the Deadline. See supra at 6-9. Rural Arizona voters are

5 more likely to experience unreliable and delay-ridden mail service. Id. at 8. Not only is it

6 more likely that their ballots will arrive after the Deadline, but it is harder for these voters

7 (and their local election officials) to properly estimate the Pre-Election Cutoff, placing these

8 voters at a severe disadvantage with respect to voters in more urban counties. Id. Given the

9 uncertainty surrounding mail delivery, rural voters have no way to guarantee that mailing

10 their ballots even in the recommended time period before Election Day will ensure that they

11 arrive on time⸺and the evidence indicates that it is typical for ballots in some counties to

12 take much longer to arrive. Id. The only solution then is for rural voters to mail their ballots

13 far earlier than voters in non-rural areas, depriving them of new information that arises in

14 the election’s final days. See supra at 6-9. This knowledge deficit interferes with rural

15 voters’ ability to cast a fully informed vote, placing additional, disproportionate burdens on

16 their right to vote. See Anderson, 460 U.S. at 798 (“A State’s claim that it is enhancing the

17 ability of its citizenry to make wise decisions by restricting the flow of information to them

18 must be viewed with some skepticism.”).

19

The burden on Latino, Hispanic, and Native American voters generally, and

20 particularly those who live in rural counties, is further compounded by the effects of

21 Arizona’s long history of discrimination against these populations: lower levels of

22 education and literacy, higher levels of poverty, language barriers, and decreased access to

23 transportation. See supra at 7-8. These factors, combined with the uncertainties surrounding

24 the Pre-Election Cutoff and compromised access to reliable mail service, make it especially

25 difficult for these voters to ensure that ballots⸺cast prior to Election Day⸺are also

26 delivered by the Election Day Receipt Deadline. Id. The resulting disproportionate effect is

27 indisputable and material to measuring the burden they face under Anderson-Burdick.

28 Because the resulting burdens on voters as a whole⸺and rural, Latino, Hispanic, and Native

12

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 18 of 24

1 American voters in particular⸺are severe, the Election Day Receipt Deadline must be

2 narrowly drawn to advance a state interest of compelling importance. Norman, 502 U.S. at

3 280. It plainly fails this test.

4

No “precise interest” Arizona articulates can justify the burdens the Deadline inflicts

5 on its voters. Anderson, 460 U.S. at 789. While the state has an interest in ensuring the

6 finality of elections, rejecting validly cast ballots that happen to arrive after 7:00 p.m. on

7 Election Day does not serve that interest. As described, A.R.S. § 16-642(A) firmly

8 establishes that finality for this purpose is 20 days after an election, not Election Day;

9 Arizona election officials therefore regularly count votes after Election Day, and typically

10 do not certify election results until weeks thereafter. See supra at 9-10. Given this law and

11 practice in Arizona, there is hardly “a state interest of compelling importance” in rejecting

12 all mail-in ballots that arrive after 7:00 p.m. on Election Day.

13

The ten-day period for processing provisional ballots and the five-business day

14 period for curing mail-in ballots further undercuts any compelling state interest. See supra

15 at 9-10. If there were such an interest in receiving all valid ballots by Election Day, Arizona

16 law would not provide for this week-long cure period. Indeed, its existence proves that the

17 Election Day Receipt Deadline is not “narrowly drawn.” Burdick, 504 U.S. at 434. The cure

18 period demonstrates that the state’s interest in certifying and finalizing election results

19 within 20 days of Election Day can be accomplished without imposing an Election Day

20 Receipt Deadline. A narrowly tailored deadline would allow for at least the five business

21 days A.R.S. § 16-550 provides, avoiding disenfranchising thousands of voters.

22

The state’s interest in increasing confidence in elections also cannot justify the

23 Election Day Receipt Deadline. The Deadline injects significant uncertainty into the voting

24 process; neither voters nor election officials can accurately predict the Pre-Election Cutoff

25 for mailing a ballot to ensure the ballot arrives on time. See supra at 4-5. In turn, this

26 uncertainty causes voters to lose confidence in Arizona’s election system, leading them to

27 believe that lawful voters’ ballots will not be counted. Id. at 4. In rural areas especially, the

28 Deadline leads voters to conclude they have less time than voters elsewhere to evaluate

13

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 19 of 24

1 candidates and issues before mailing their ballots. Id. at 6-9. The Deadline is not narrowly

2 tailored—or even remotely linked—to increasing confidence in elections.

3

2. Plaintiffs Are Likely to Succeed on the Merits of the

4

Procedural Due Process Claim.

5

Plaintiffs are also likely to succeed on their procedural due process claim. Arizona

6 cannot deprive any person of liberty without “due process of law,” U.S. Const. amend. XIV,

7 § 1. The Election Day Receipt Deadline does just that. Courts must first consider “the nature

8 of the interest that will be affected by the official action, and in particular, to the ‘degree of

9 potential deprivation that may be created.’” Nozzi v. Hous. Auth. of City of L.A., 806 F.3d

10 1178, 1192–93 (9th Cir. 2015) (quoting Mathews v. Eldridge, 424 U.S. 319, 341 (1976)).

11 Next, “courts must consider the ‘fairness and reliability’ of the existing procedures and the

12 ‘probable value, if any, of additional procedural safeguards.’” Id. at 1193 (quoting Mathews,

13 424 U.S. at 343). Finally, “courts must assess the public interest, which ‘includes the

14 administrative burden and other societal costs that would be associated with’ additional or

15 substitute procedures.” Id. (quoting Mathews, 424 U.S. at 347).

16

Each of these factors weighs heavily in Plaintiffs’ favor here. First, the right to vote

17 is unquestionably a liberty interest and cannot be “confiscated without due process.” Raetzel

18 v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1357 (D. Ariz. 1990). This

19 liberty interest extends to mail voting in Arizona, which is statutorily conferred. See, e.g.,

20 Saucedo v. Gardner, 335 F. Supp. 3d 202, 215 (D.N.H. 2018) (“voter has a sufficient liberty

21 interest once ‘the State permits voters to vote absentee.’”) (quoting Zessar v. Helander,

22 2006 WL 642646, at *5 (N.D. Ill. Mar. 13, 2006)).

23

Second, the degree of deprivation resulting from the Election Day Receipt Deadline

24 is extraordinarily high. This deprivation is neither hypothetical nor speculative; it is

25 established by public data from Arizona counties showing that thousands of voters’ mail-in

26 ballots have been rejected in every general election since at least 2008. See Ex. 1 at 42

27 (Table C). These data also confirm the disproportionate effect the Deadline has on rural,

28 Latino, Hispanic, and Native American voters. Id. at 28-29. Moreover, once a voter’s ballot

14

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 20 of 24

1 arrives after the Deadline and their liberty interest is deprived, “the election procedures do

2 not give some form of post-deprivation notice to the affected individual so that any defect

3 in eligibility can be cured and the individual is not continually and repeatedly denied so

4 fundamental a right.” Raetzel, 762 F. Supp. at 1358; see also Figueroa Decl. ¶ 7; Johnson

5 Decl. ¶ 4. Thus, the Election Day Deadline Receipt can deprive the same voters of their

6 rights repeatedly because there is no post-deprivation notice to voters that their ballot was

7 not counted. Raetzel, 762 F. Supp at 1358 (“The disqualified voter may never ascertain the

8 justification for the rejection of their vote in order to cure the defect for future eligibility.”).

9

Third, the Election Day Receipt Deadline is neither fair nor reliable. The Pre-

10 Election Cut-Off that results from the Deadline varies from county to county and from one

11 election to another, making it patently unreliable, and confusing to voters. At best, these

12 projected mail dates are rough estimations as to when voters should mail their ballots;

13 unforeseeable events can impact the timing, such as mail delivery times and routes, traffic

14 accidents, and weather. Likewise, given the disparities in the impact of the Election Day

15 Receipt Deadline there is also no question that it is unfair. See supra at 6-9. This is

16 particularly true given that impacted voters are not only eligible to vote, but have all made

17 the effort to complete and cast their ballot prior to Election Day, but are disenfranchised

18 because the ballot arrives late, a factor over which they have little to no control. Id. at 3-6.

19

Finally, the public interest favors procedures protecting voting rights. The Supreme

20 Court has emphasized that the public has a “strong interest in exercising the fundamental

21 political right to vote.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). As outlined above, none

22 of the justifications Arizona can proffer overcome that interest; administrative ease cannot

23 impinge on the fundamental right at stake here and, as a result, the Election Day Receipt

24 Deadline violates the Due Process Clause of the Fourteenth Amendment. Taylor v.

25 Louisiana, 419 U.S. 522, 535 (1975) (“administrative convenience” cannot justify practices

26 that impinge upon fundamental rights); see also Kemp, 347 F. Supp. 3d at 1268.

27

B. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction.

28

Disenfranchisement constitutes irreparable injury. Obama for Am. v. Husted, 697

15

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 21 of 24

1 F.3d 423, 436 (6th Cir. 2012); LOWV, 769 F.3d at 247 (“Courts routinely deem restrictions

2 on fundamental voting rights irreparable injury.”) (citations omitted). Once the election

3 comes and goes, “there can be no do-over and no redress.” LOWV, 769 F.3d at 247. Here,

4 as has occurred in every general election for the past decade, the mail-in ballots of thousands

5 of voters⸺including those of Voto Latino and Priorities’ constituents and likely Plaintiff

6 Aguallo’s⸺will not be counted in the November 2020 election because of the Election Day

7 Receipt Deadline. There will be no second chance for them to exercise their most basic

8 constitutional right and, consequently, the harm to them is irreparable. See, e.g., Ga. Coal.

9 for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345 (S.D. Ga. 2016) (granting

10 preliminary injunction to extend registration deadline and observing “an individual’s loss

11 of the right to vote is clearly an irreparable injury that outweighs any damage caused by

12 extending the deadline”); Doe v. Walker, 746 F. Supp. 2d 667, 677 (D. Md. 2010)

13 (extending deadline to count votes after UOCAVA challenge); United States v.

14 Cunningham, No. 3:08-cv-709, 2009 WL 3350028, at *4 (E.D. Va. Oct. 15, 2009) (same).

15 Indeed, Plaintiff Aguallo, who was disenfranchised as a result of the Deadline in 2018, faces

16 a substantial risk of disenfranchisement again as she must again cast a mail ballot in 2020

17 under virtually the same circumstances as she did in 2018. Aguallo Decl. ¶¶ 5-10.

18

Moreover, every day that the Deadline is in effect, Plaintiffs Priorities USA and Voto

19 Latino are irreparably harmed by having to divert resources to help their constituencies

20 overcome the burden imposed by the law and to effectuate their missions. See, e.g., Kemp.,

21 347 F. Supp. 3d at 1268 (finding irreparable harm where plaintiff’s organizational mission

22 would be harmed and it would have to engage in additional voter registration and

23 mobilization efforts); League of Women Voters of Fla. v. Cobb, 447 F. Supp. 2d 1314, 1339

24 (S.D. Fla. 2006) (same). Indeed, the Deadline directly impacts Priorities USA’s mission of

25 turning out Latino, Hispanic, and Native American voters in Arizona. Cecil Decl. ¶ 4. If the

26 law remains in effect, Priorities USA must divert resources otherwise spent on issue and

27 candidate advocacy to building and executing a campaign to educate voters about the

28 Deadline. Cecil Decl. ¶¶ 5-10. Similarly, Voto Latino, an organization focused on giving a

16

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 22 of 24

1 voice and the vote to Latino and Hispanic citizens, will have to divert resources from

2 activities such as its voter registration campaign in Arizona to educate current voters about

3 the Deadline. Kumar Decl. ¶¶ 9-13. Thus, Plaintiffs have demonstrated irreparable harm.

4

C. The Balance of the Equities and the Public Interest Favor an Injunction.

5

The balance of the equities favor Plaintiffs. On the one hand, there is the vindication

6 of the fundamental right to vote—a right this Court “wholeheartedly agrees” is both

7 “precious” and “fundamental.” Isabel v. Reagan, No. CV-128-03217, 2019 WL 5684195,

8 at *5 (D. Ariz. Nov. 1, 2019) (citations omitted). On the other hand, Arizona would only be

9 restrained from enforcing a ballot-counting deadline that is not necessary to protect the

10 finality of elections, decreases voter confidence and certainty, will not result in any

11 administrative burdens, but has resulted in recurring disenfranchisement. Any harms to

12 balance on the state’s side are either non-existent or de minimis compared to the severe

13 harm Plaintiffs and thousands of Arizona voters face. See, e.g., Taylor, 419 U.S. at 535;

14 Kemp, 347 F. Supp. 3d at 1268. Finally, issuing the requested injunction would be in the

15 public interest. Indeed, “[t]he vindication of constitutional rights . . . serve[s] the public

16 interest almost by definition,” including specifically when the right at issue is the right to

17 vote. League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1167 (N.D. Fla.

18 2012). This is because the public has a “strong interest in exercising the fundamental

19 political right to vote.” Purcell, 549 U.S. at 4. Here, thousands of Arizona voters’ ballots

20 will count and their voices⸺which they will have already exercised before Election Day⸺

21 will be heard if the Court enjoins the Election Day Receipt Deadline. This plainly weighs

22 in the public interest and in favor of an injunction.

23

IV. CONCLUSION

24

For these reasons, Plaintiffs respectfully request that this Court issue a preliminary

25 injunction as set forth in the proposed order.

26

27

28

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Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 23 of 24

1 Dated: February 25, 2020 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

s/ Alexis E. Danneman Alexis E. Danneman (# 030478) Sarah R. Gonski (# 032567) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Marc E. Elias* John Devaney* Amanda R. Callais* K’Shaani O. Smith* Zachary J. Newkirk* Christina A. Ford* PERKINS COIE LLP 700 Thirteenth Street NW, Suite 800 Washington, D.C. 20005-3960 *Admitted pro hac vice Attorneys for Plaintiffs
18

Case 2:19-cv-05685-DWL Document 22 Filed 02/25/20 Page 24 of 24

1

CERTIFICATE OF SERVICE

2

I hereby certify that on February 25, 2020, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

4

5

s/ Michelle DePass

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Case 2:19-cv-05685-DWL Document 22-1 Filed 02/25/20 Page 1 of 1

INDEX OF EXHIBITS TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Exhibit No. Description

1

Declaration of Shelby Aguallo

2

Declaration of Carmen Arias

3

Declaration of Jacob Armour

4

Declaration of Elizabeth Bixby

5

Declaration of Guy Cecil

6

Declaration of Gerardina Figueroa

7

Declaration of Leslea Johnson

8

Declaration of Scott Konopasek

9

Declaration of Maria Teresa Kumar

10

Declaration of Senator Martin Quezada

11

Declaration of DJ Quinlan

12

Declaration of Kiersten Schneider

13

Declaration of Jon Sutton

Case 2:19-cv-05685-DWL Document 22-2 Filed 02/25/20 Page 1 of 4

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 **Pro hac vice application pending
17 Attorneys for Plaintiffs
18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino, Inc. and Priorities USA,
22

Plaintiffs, 23

v. 24

25

Katie Hobbs, in her official capacity as Arizona Secretary of State,

26

Defendant.

27

No. 2:19-cv-05685-DWL
DECLARATION OF SHELBY AGUALLO IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

28

Case 2:19-cv-05685-DWL Document 22-2 Filed 02/25/20 Page 2 of 4

1

Pursuant to 20 U.S.C. § 1746, I, Shelby Aguallo, declare as follows:

2

1. My name is Shelby Aguallo. I am over the age of 18, have personal knowledge

3 of the facts stated in this declaration, and can competently testify to their truth.

4

2. I am a longtime resident of Arizona. I was raised in Greenlee County, in a

5 small mining town called Morenci. Greenlee County is Arizona’s smallest county in terms

6 of population, and quite remote. My hometown of Morenci, for example, is several hours

7 away from the nearest large metropolitan area of Tucson.

8

3. Today, I am a law student at the University of Arizona James E. Roger College

9 of Law. In 2018, I was an undergraduate at Northern Arizona University (NAU). Even

10 before law school, I always considered myself to be civic-minded and interested in

11 government. In 2016, for example, I served on the Arizona Governor’s Youth Commission,

12 where I represented Greenlee County.

13

4. Because I was too young to participate in the 2016 presidential election, 2018

14 was the first major election in which I could vote. I was excited to participate in that

15 election.

16

5. In the fall of 2018, I was a student at NAU in Flagstaff, Arizona. At the time,

17 I was registered to vote in Greenlee County, which I consider to be my home. Because my

18 university was a six-hour drive one way from my home, I decided to vote by mail.

19

6. That fall, to the best of my memory, I completed my mail ballot on the Monday

20 immediately preceding Election Day. I am certain, however, that I completed my ballot

21 before the polls closed on Election Day. At the time I completed my ballot, I believed that

22 Arizona would count my ballot as long as my ballot was in the mail by Election Day. I had

23 no idea that my ballot would never be counted because it would not reach Greenlee County

24 by 7 p.m. on Election Day.

25

7. I now understand that my ballot was never counted in the 2018 General

26 Election because it did not arrive until Thursday, November 8th, 2018—two days after

27 Election Day. I was both surprised and upset when I learned that my vote did not count in

28 that election, and I want to ensure that never happens again.

2

Case 2:19-cv-05685-DWL Document 22-2 Filed 02/25/20 Page 3 of 4

1

8. This upcoming fall, I plan to vote in the 2020 General Election. I am still a

2 registered voter in my hometown in Greenlee County and still consider it to be my home,

3 although I now attend law school in Tucson. Because my school is a three-hour drive one

4 way from my hometown, I will need to vote by mail again. As a law student, I do not have

5 the resources or time to make a six-hour trip to home and back to cast my ballot, even

6 though voting is extremely important to me.

7

9. Given what happened in the fall of 2018, I am afraid that my vote will not

8 count again in the upcoming election. In my experience, it takes a long time for mail to

9 reach Greenlee County because it is such a remote part of Arizona. Mail traveling outside

10 Greenlee County or to Greenlee County, for example, must first pass through a processing

11 center in Phoenix, which tends to increase the time of delivery.

12

10. Given how long it takes mail to reach Greenlee County, it is difficult to know

13 exactly when I need to send my ballot back to ensure that it will be counted, though I will

14 try to send my ballot back to Greenlee County at least a week before this upcoming election.

15 If I am unable to mail my ballot back that early for any reason, given my experience in the

16 2018 election, it seems unlikely that my vote will count. And even if I am able to send my

17 ballot back at least a week before the election, I will not be able to incorporate any

18 information or news that breaks in the last week of the election into my decision about the

19 candidates I should vote for.

20

11. I take voting and my civic duty very seriously, and I find it frustrating that,

21 moving forward, I will not be able to consider all the candidates and the issues up through

22 Election Day. I believe that everyone should be able to vote on equal terms, and that my

23 vote should count as long as it is cast by Election Day.

24

25

I declare under penalty of perjury that the foregoing is true and correct.

26 DATED: ___
______________

27

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Case 2:19-cv-05685-DWL Document 22-2 Filed 02/25/20 Page 4 of 4

1

By: _______________

2

Shelby Aguallo

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Case 2:19-cv-05685-DWL Document 22-3 Filed 02/25/20 Page 1 of 3

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 **Pro hac vice application pending
17 Attorneys for Plaintiffs
18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino, Inc. and Priorities USA,
22

Plaintiffs, 23

v. 24

25

Katie Hobbs, in her official capacity as Arizona Secretary of State,

26

Defendant.

27

No. 2:19-cv-05685-DWL
DECLARATION OF CARMEN O. ARIAS IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

28

Case 2:19-cv-05685-DWL Document 22-3 Filed 02/25/20 Page 2 of 3

1 Pursuant to 20 U.S.C. § 1746, I, Carmen O. Arias, declare as follows:

2

1. My name is Carmen O. Arias. I am over the age of 18, have personal

3 knowledge of the facts stated in this declaration, and can competently testify to their truth.

4

2. I am a U.S. citizen, a resident of Phoenix, Arizona, and am otherwise eligible

5 and registered to vote in Maricopa County, Arizona.

6

3. I live in a low-income area on the south side of Phoenix. In my neighborhood,

7 mail service is unreliable and is not always delivered on a timely basis. I believe this is

8 largely because our neighborhood is on a training route for the post office. While I do not

9 believe that the missed deliveries are intentional, they have real consequences for our

10 neighborhood. My neighbor’s pension check, for example, has previously been delivered

11 as much as two weeks late.

12

4. Additionally, the mail in my neighborhood is not always picked up on a timely

13 basis. Just last week, mail that I left for the postman was not picked up from my mailbox,

14 and I found it there the next day.

15

5. Like many people in Arizona, I vote early with a mail ballot. But given the

16 unreliability of mail service in my neighborhood, I am always worried about actually

17 sending my ballot in through the postal service. These fears are not unique to me—it is well-

18 known in my neighborhood and among my neighbors that we cannot trust mail delivery or

19 pickup to be on time in our community. Because of those fears, when ballot collection was

20 still legal, my neighbors used to ask me to deliver their ballot for them in-person so that

21 they would not have to rely on the mail.

22

6. Because I worry that my ballot will not count if I have to rely on the postal

23 service, I try to physically deliver my mail ballot and drop it off in person when I am able.

24 But I know that I will not be able to do this for much longer. I am 72 years old, and I can

25 tell that my physical and mental abilities are slowing down. I am also currently responsible

26 for taking care of my two great-grandchildren several days during the week, which limits

27 my ability to leave the house.

28

2

Case 2:19-cv-05685-DWL Document 22-3 Filed 02/25/20 Page 3 of 3

1

7. Even though I am getting older, it is still very important to me that I can

2 participate fully in elections and can make my voice heard. Because of my slowing abilities,

3 I know the day will come when I will have to depend on the mail to cast my ballot since I

4 will be less able to physically travel to the mail ballot drop off location.

5

8. As I get older, I also notice that I am having difficulty managing day-to-day

6 logistics and meeting deadlines (such as paying bills on time). For those reasons, I worry

7 that in the future I will not remember or be able to send in my ballot a full week before

8 Election Day. While voting is very important to me, I also depend on newspaper reminders

9 and reminders from campaigns to vote in elections—especially in smaller local elections

10 that do not receive a lot of media coverage before Election Day⸺those reminders often

11 come closer to Election Day, and may arrive after the recommended deadline for mailing a

12 ballot.

13

9. Even if I remember to and am able to mail my ballot in well before Election

14 Day, I will have to miss out on any information that happens in the last week of the election

15 to participate. I take voting very seriously, and I often change my mind on which candidate

16 or which issues I will support based on information that I learn right before Election Day.

17 In a recent election, for example, I switched my vote on two judicial candidates based on

18 information that I learned about them just before Election Day.

19

10. I think it is unfair that soon I will have to cast my ballot well in advance of the

20 election—and before I have heard closing arguments from all the candidates—in order to

21 vote, while others who are more physically able will still be able to vote on Election Day.

22 Voters should be treated equally and have equal time to consider who they will support

23 regardless of their circumstances.

24

I declare under penalty of perjury that the foregoing is true and correct.

25 DATED: ___
______________

26

27

By: _______________

28

Carmen O. Arias

3

Case 2:19-cv-05685-DWL Document 22-4 Filed 02/25/20 Page 1 of 3

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 **Pro hac vice application pending
17 Attorneys for Plaintiffs
18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino, Inc. and Priorities USA,
22

Plaintiffs, 23

v. 24

25

Katie Hobbs, in her official capacity as Arizona Secretary of State,

26

Defendant.

27

No. 2:19-cv-05685-DWL
DECLARATION OF JACOB ARMOUR IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

28

Case 2:19-cv-05685-DWL Document 22-4 Filed 02/25/20 Page 2 of 3

1 Pursuant to 20 U.S.C. § 1746, I, Jacob Armour, declare as follows:

2

1. My name is Jacob Armour. I am over the age of 18, have personal knowledge

3 of the facts stated in this declaration, and can competently testify to their truth.

4

2. I am currently an attorney practicing in Arizona. Prior to my current job, in the

5 2018 General Election, I served as the outreach director and recount counsel to the 2018

6 Coordinated Campaign of the Arizona Democratic Party on voter protection matters.

7

3. In advance of the 2018 General Election, the state party developed a hotline

8 for Arizona voters to call if they were experiencing difficulties in casting their ballot. The

9 hotline was staffed by staff and volunteers who were trained to assist these voters and help

10 resolve any issues. The state party also developed a team of staff and volunteers to respond

11 to voter protection related inquires that arose through the Coordinated Campaign’s digital

12 and field outreach.

13

4. In the lead up to the 2018 General Election, our staff and volunteers received

14 a substantial number of digital inquires and calls from out-of-state Arizona college students

15 who had never received their mail ballot despite requesting one, or whose mail ballot was

16 delivered quite late. When we discussed this issue with some County Recorder’s offices,

17 we were informed that a certain percentage of ballots are typically delayed or lost in the

18 mail and the only remedy is for the voter to request a replacement ballot or vote in person.

19 Accordingly, we could do little to help those out-of-state voters whose ballots never arrived.

20 But equally troubling, we also could do little to help those voters who had not received their

21 ballot until either the weekend before or the Monday before Election Day.

22

5. While we encouraged those voters to still send in their ballot if that voter had

23 no other option to vote, we were concerned that those ballots would not arrive in Arizona

24 by 7 p.m. on Election Day to be counted. Both our team and the voters we spoke to were

25 frustrated that there was little we could do to remedy the situation.

26

6. Our team spoke to one college student who was fortunate to have reached out

27 to us with enough time before Election Day and to have the resources to FedEx her ballot

28 overnight back to Arizona, but many students do not have those resources.

2

Case 2:19-cv-05685-DWL Document 22-4 Filed 02/25/20 Page 3 of 3
1 7. Had Arizona employed a postmark system in the 2018 General Election, those
2 eligible voters’ ballots likely would have counted, and those voters would not have been
3 disenfranchised because of mail delivery times—factors outside of those voters’ control.
4 I declare under penalty of perjury that the foregoing is true and correct.
5 DATED: ___
______________ 6 7 8
By: _______________ 9
Jacob Armour 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3

Case 2:19-cv-05685-DWL Document 22-5 Filed 02/25/20 Page 1 of 5

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 **Pro hac vice application pending
17 Attorneys for Plaintiffs
18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino, Inc. and Priorities USA,
22

Plaintiffs, 23

v. 24

25

Katie Hobbs, in her official capacity as Arizona Secretary of State,

26

Defendant.

27

No. 2:19-cv-05685-DWL
DECLARATION OF ELIZABETH BIXBY IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

28

Case 2:19-cv-05685-DWL Document 22-5 Filed 02/25/20 Page 2 of 5

1

Pursuant to 20 U.S.C. § 1746, I, Elizabeth Bixby, declare as follows:

2

1. My name is Elizabeth Bixby. I am over the age of 18, have personal knowledge

3 of the facts stated in this declaration, and can competently testify to their truth.

4

2. I am a graduate of Stanford Law School and Arizona State University. I am

5 currently an attorney practicing in California. Prior to my current job, in the 2018 General

6 Election, I served as counsel to the Arizona Democratic Party on voter protection matters,

7 where my work included a special emphasis on our get-out-the-vote (“GOTV”) efforts.

8

3. In advance of the 2018 General Election, the Party developed a digital platform

9 and a hotline to connect with Arizona voters who were experiencing difficulties in casting

10 their ballot. Through the digital platform, we were able to text directly with Arizona voters

11 to try to resolve any voting-related issues they were facing.

12

4. Both the digital platform and the hotline were staffed by employees and

13 volunteers who were trained to assist these voters and help resolve any issues. Throughout

14 the period leading up to the election, I responded to thousands of voters’ inquires myself

15 and oversaw a team of employees and volunteers who were working to answer voters’

16 questions. In total, I remember that our digital platform received approximately 15,000 to

17 20,000 texts from Arizona voters who needed our assistance to cast a ballot.

18

5. In the several weeks leading up to the 2018 General Election, we received a

19 substantial number of calls and texts from Arizona voters who had not received a mail ballot

20 at all despite requesting one or being on the Permanent Early Voter List (“PEVL”), or who

21 had received their mail ballot too late to send it back in the mail. In general, not having

22 received a mail ballot despite requesting one or being on PEVL was an extremely common

23 inquiry from voters in 2018.

24

6. During this time period, myself and my team heard from a surprisingly large

25 number of voters who believed they could not vote in person at all if they were registered

26 for PEVL but ended up not being able to vote by mail by for some reason. We did our best

27 to clear up this confusion, and to share the options for voting in person with those voters.

28 But not every voter had the time or means to vote in person.

2

Case 2:19-cv-05685-DWL Document 22-5 Filed 02/25/20 Page 3 of 5

1

7. If a voter did not receive a mail ballot within the expected time period, and

2 that voter was not able to vote in person, our team would help the voter to figure out how

3 to request a replacement ballot. By the time that voter was able to receive a replacement

4 ballot, however, it was sometimes too late for the voter to send their ballot back for it to be

5 received by Election Day—and sometimes voters never even received the replacement

6 ballots they had requested.

7

8. In particular, our team received a large number of texts for help from college-

8 age students who were enrolled in school in a different county than the county in which

9 they were registered to vote. We did our best to help those students request that a mail ballot

10 be sent to their school address and to then send that mail ballot back to the recorder’s office

11 in their home county, but those ballots often took a long time to arrive, and sometimes

12 would not arrive with enough time for the voter to mail their ballot back so that it could be

13 received by Election Day. Because many of those students were not allowed to drop a ballot

14 off in the county where they went to school since they were not registered there, and were

15 also unable to make the drive back to their home county to drop off their ballot in person,

16 many of these voters had no viable way to return their mail ballot in time for it to arrive by

17 Election Day and be counted. Both our team and the voters we spoke to were frustrated that

18 there was so little that they or we could do to remedy the situation.

19

9. Had Arizona employed a postmark system in the 2018 General Election, those

20 voters’ ballots likely would have been counted as long as they were mailed by Election Day.

21 As a result, those voters would not have been disenfranchised by Arizona’s current deadline

22 to receive ballots.

23

10. In the lead up to Election Day, we also received a large number of inquiries

24 from voters who needed help figuring out where they could return their mail ballot if they

25 had not been able to put their ballot in the mail early enough. From this process, we learned

26 that there were significant disparities in the availability and accessibility of mail-ballot

27 drop-boxes among Arizona’s 15 counties. While some counties operated 24/7 drop-boxes

28 for mail ballots, others were available on a much more restricted basis. Other counties had

3

Case 2:19-cv-05685-DWL Document 22-5 Filed 02/25/20 Page 4 of 5

1 no mail-ballot drop-boxes at all. To the best of my knowledge, Cochise, Mohave, Pima,

2 Pinal, and Yuma counties did not have any mail-ballot drop-boxes where voters could drop

3 off their mail ballot in the 2018 General Election.

4

11. A number of counties in Arizona also did little to effectively advertise the

5 availability of mail-ballot drop-boxes, meaning that the accessibility of those drop-boxes,

6 even if they did exist, were not well-known to many voters. In preparation to answer

7 questions from voters for our hotline and digital platform, my team researched the locations

8 and hours of mail-ballot drop-boxes. For some counties, there was little information online,

9 and we had to call the county to find out the exact locations and hours of the drop-boxes.

10 Other counties had not updated their websites to reflect current mail-ballot drop-box

11 locations, and were still promoting drop-box locations from prior election years, some of

12 which were not accurate for the 2018 General Election. And even for counties that had an

13 accurate list of drop-box locations available on their website, we learned from voters that

14 the hours of those drop-box locations were not always correct.

15

12. On Election Day itself, our team also received many inquiries for help from

16 voters who attempted to turn their mail ballots in in-person at a polling location but were

17 turned away, were improperly told to wait in the regular in-person voting line, or were

18 required to show identification to drop off their ballot. While a voter in Arizona should

19 legally be able to drop off their ballot at any polling location within their county on Election

20 Day, we heard from a number of voters that they were turned away when they attempted to

21 drop off their mail ballot at a location that was not their assigned polling location. Similarly,

22 although Arizona law does not require voters who drop off their mail ballots in person to

23 show identification—under state law, the voter’s signature is the means by which the voter’s

24 identity is verified for mail ballots—we heard from voters who were unable to drop off their

25 mail ballots because they had not brought sufficient, or any, identification with them.

26 Likewise, although voters who wish to drop off their mail ballots at a polling location are

27 not supposed to have to wait in the same line as in-person voters, we heard from voters who

28 had attempted to drop off their mail ballots only to be told they had to wait in the in-person

4

Case 2:19-cv-05685-DWL Document 22-5 Filed 02/25/20 Page 5 of 5

1 voting lines—which at times stretched for hours on Election Day, particularly in Maricopa

2 County. Finally, the majority of counties in Arizona require voters who request a mail ballot

3 (either through PEVL or otherwise) to cast a provisional ballot if the voter ultimately

4 decides to vote in person. That requirement created a great deal of confusion among the

5 voters who contacted us, many of whom had concerns that their provisional ballot would

6 not be counted.

7

13. Overall, a significant trend that we saw in 2018 from our calls and texts with

8 voters were voters who wished to vote by mail but could not do so, despite their best efforts,

9 in time for their vote to be counted. From that experience, I believe that had Arizona

10 employed a system in which it counted ballots that were cast by Election Day, instead of

11 received by Election Day, substantially more voters would have been able to cast a valid

12 ballot in that election and would not have been burdened or disenfranchised by Arizona’s

13 Election Day deadline.

14

I declare under penalty of perjury that the foregoing is true and correct.

15 DATED: ___
______________

16

17

18

By: _______________

19

Elizabeth Bixby

20

21

22

23

24

25

26

27

28

5

Case 2:19-cv-05685-DWL Document 22-6 Filed 02/25/20 Page 1 of 4

Case 2:19-cv-05685-DWL Document 22-6 Filed 02/25/20 Page 2 of 4

Case 2:19-cv-05685-DWL Document 22-6 Filed 02/25/20 Page 3 of 4

Case 2:19-cv-05685-DWL Document 22-6 Filed 02/25/20 Page 4 of 4

Case 2:19-cv-05685-DWL Document 22-7 Filed 02/25/20 Page 1 of 4

1 Alexis E. Danneman (#030478) Sarah R. Gonski (# 032567)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8000
4 Facsimile: 602.648.7000 ADanneman@perkinscoie.com
5 SGonski@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 christinaford@perkinscoie.com

15 *Admitted pro hac vice

16 **Pro hac vice application pending

17 Attorneys for Plaintiffs

18 UNITED STATES DISTRICT COURT
19 DISTRICT OF ARIZONA
20

21 Voto Latino, Inc. and Priorities USA,

No. 2:19-cv-05685-DWL

22

Plaintiffs,

23

v.

24 Katie Hobbs, in her official capacity as 25 Arizona Secretary of State,

26

Defendant.

DECLARATION OF GERARDINA FIGUEROA IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

27

28

Case 2:19-cv-05685-DWL Document 22-7 Filed 02/25/20 Page 2 of 4

1

Pursuant to 20 U.S.C. § 1746, I, Gerardina Figueroa, declare as follows:

2

1. My name is Gerardina Figueroa. I am over the age of 18, have personal

3 knowledge of the facts stated in this declaration, and can competently testify to their truth.

4

2. I am a resident of Rio Rico, Arizona a small town about 15 miles from the

5 Mexican border in Santa Cruz County. I have lived here since moving to Arizona from

6 California in 2006. Upon moving to Arizona, I registered to vote in Rio Rico. I have been

7 registered to vote in the places where I have lived since I was 18 years old. I believe I have

8 cast a ballot in every major election since I registered.

9

3. Since registering to vote in Arizona, I have voted in-person once or twice but,

10 because of my work schedule as a federal law enforcement officer with the U.S. Customs

11 and Border Protection agency, I primarily vote by mail. To the best of my knowledge, I am

12 enrolled in the Permanent Early Voter List (PEVL).

13

4. As a law enforcement officer, I work long hours and my shifts can be

14 unpredictable. Each shift lasts eight hours at a minimum but sometimes, depending on the

15 need, a shift can last anywhere from 12 to 16 hours. Shifts can also span the course of an

16 entire day, beginning at 8:00 a.m. and ending at 12:00 a.m. in the morning. Often, I do not

17 know how long my shift will be until shortly before it begins. For example, during the most

18 recent pay period, I was told to work a 12-hour shift the morning my shift started, even

19 though I originally expected it to last eight hours. If my superiors need somebody to work,

20 they will order me to show up and/or stay late. This makes planning things like chores and

21 errands difficult. It is also why I vote by mail, since I can be sure that my vote will be cast

22 and that an unexpected shift will not keep me from voting on Election Day.

23

5. I understand that my ballot was not counted in the 2018 general election

24 because it arrived three days after Election Day. This is very upsetting. Voting is important

25 to me, and I want my vote to count. In fact, it is precisely because voting is so important to

26 me that I have taken steps to ensure that I can vote, by signing up for the PEVL and voting

27 by mail. I also make every effort to send my ballot in by the recommended date for mailing

28 the ballot, even though I do not appreciate having to vote several days in advance of Election

-2-

Case 2:19-cv-05685-DWL Document 22-7 Filed 02/25/20 Page 3 of 4

1 Day since I try to look at all the candidates, issues, and take into account the most recent

2 information about the candidates. I would like to be able to consider information or news

3 that breaks in the last week of the election cycle.

4

6. While I do not recall the exact day I sent my ballot, I am confident I mailed it

5 at least three to four days before Election Day. It is my usual practice to mail documents

6 with a deadline, such as bills and ballots, several days before they are due. That way, I can

7 build in enough time to make sure it has been received on time.

8

7. While I now understand that my 2018 ballot was received after Election Day

9 and not counted, I never received any official notification of that from Santa Cruz County

10 or the State. I also find this very concerning. If I had received some sort of notification, it

11 would have alerted me to the fact that I need to send my ballot in even earlier next election

12 to ensure that it is counted. A lot of other situations alert you when there will be a late fee,

13 like paying bills, returning a library book, or responding to a jury duty summons, so you

14 can avoid being late in the future. I do not understand why my right to vote should be treated

15 differently.

16

8. Even though knowing my mail-in vote did not count in 2018, I plan to vote by

17 mail in the future, including the 2020 general election. It is simply the only way for me to

18 ensure that I will be able to vote given my demanding and unpredictable work schedule.

19 While I will attempt to mail my ballot in by the suggested mail date in advance of Election

20 Day, given my experience in 2018, I fear that it will arrive late and will not be counted. This

21 makes me less confident in Arizona’s election system.

22

9. I take voting seriously. I believe all voters should be treated on equal terms

23 and that ballots mailed on or before Election Day should count, even if they do not arrive

24 until after Election Day.

25

26

27

28

-3-

Case 2:19-cv-05685-DWL Document 22-7 Filed 02/25/20 Page 4 of 4

1

2

I declare under penalty of perjury that the foregoing is true and correct.

3 DATED: ___
______________

4

5

6

By: _______________

7

Gerardina Figueroa

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-4-

Case 2:19-cv-05685-DWL Document 22-8 Filed 02/25/20 Page 1 of 3

1 Alexis E. Danneman (#030478) Sarah R. Gonski (# 032567)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8000
4 Facsimile: 602.648.7000 ADanneman@perkinscoie.com
5 SGonski@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk*
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 christinaford@perkinscoie.com

15 *Admitted pro hac vice

16 Attorneys for Plaintiffs

17 UNITED STATES DISTRICT COURT
18 DISTRICT OF ARIZONA
19

20 Voto Latino, Inc. and Priorities USA,

No. 2:19-cv-05685-DWL

21

Plaintiffs,

22

v.

23 Katie Hobbs, in her official capacity as 24 Arizona Secretary of State,

25

Defendant.

DECLARATION OF LESLEA JOHNSON IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

26

27

28

Case 2:19-cv-05685-DWL Document 22-8 Filed 02/25/20 Page 2 of 3

1

Pursuant to 20 U.S.C. § 1746, I, Leslea Johnson, declare as follows:

2

1. My name is Leslea Johnson. I am over the age of 18, have personal knowledge

3 of the facts stated in this declaration, and can competently testify to their truth.

4

2. I am a resident of Tubac, Arizona, a small town less than 25 miles from the

5 border with Mexico in Santa Cruz County. I have lived here since 2015. Before moving to

6 Santa Cruz County, I lived in Pima County for 17 years. In total, I have lived in Arizona for

7 about 40 years. I previously served in the United States Air Force, and am now a disabled

8 veteran. I work from home as an artist.

9

3. I am a registered Arizona voter. I registered to vote at my Tubac address when

10 I got a new driver’s license in Santa Cruz County, and I primarily vote by mail. Before

11 moving to Santa Cruz, I was registered in Pima County and have voted by mail in Arizona

12 since living in Pima County.

13

4. In 2018, I voted by mail in Santa Cruz. I understand that because my ballot did

14 not arrive until three days after Election Day, it was not counted in the 2018 general election.

15 I wish my vote counted because voting is important to me. I never received notice that my

16 ballot was too late and that it did not count.

17

5. I do not recall the exact day I sent my ballot, but I remember it was close to

18 Election Day. I thought that as long as I mailed the ballot by Election Day it would count.

19 This made sense to me since that is how I remember bills working (before I switched to

20 paperless billing). I do not remember any instructions on the ballot or envelope

21 recommending when I should have mailed my ballot for it to arrive in time to be counted.

22

6. Santa Cruz County is very rural, and I have experienced some longer-than-

23 typical times to receive mail—sometimes as long as several weeks. Last year, for example,

24 I received Christmas cards as late as February. I even received a birthday card from my

25 church which is just five miles down the road in March. My birthday, however, is in early

26 February. I know that they sent the birthday card before my birthday.

27

7. Because of the uncertainty with the post office, I switched to electronic billing

28 so I can make sure I pay my bills on time. Otherwise, my payments would arrive late, and

-2-

Case 2:19-cv-05685-DWL Document 22-8 Filed 02/25/20 Page 3 of 3

1 I would be assessed late fees. I did not anticipate that the problems with mail receipt would

2 impact my mail ballot though, since I thought that as long as I mailed it before Election Day

3 it would count.

4

8. I plan to vote by mail again including in the 2020 general election. Learning

5 my ballot was not counted in 2018 was discouraging. In the future, I will try to put my ballot

6 in the mailbox very early, even though this means I will have to miss out on information

7 about candidates and issues during the last few days of the campaign, and this will prevent

8 me from learning all I can possibly learn before voting. Since the postal service has been

9 late with Christmas and birthday cards, I am now concerned my ballot might also be

10 delayed, even if I mail it early.

11

9. I take voting seriously. I believe all voters should be treated on equal terms

12 and that ballots mailed on or before Election Day should count, even if they do not arrive

13 until after Election Day.

14

15

I declare under penalty of perjury that the foregoing is true and correct.

16 DATED: __
_______________

17

18

19

By: _______________

20

Leslea Johnson

21

22

23

24

25

26

27

28

-3-

Case 2:19-cv-05685-DWL Document 22-9 Filed 02/25/20 Page 1 of 4

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 **Pro hac vice application pending
17 Attorneys for Plaintiffs
18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino, Inc. and Priorities USA,
22

Plaintiffs, 23

v. 24

25

Katie Hobbs, in her official capacity as Arizona Secretary of State,

26

Defendant.

27

No. 2:19-cv-05685-DWL
DECLARATION OF SCOTT O. KONOPASEK IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

28

Case 2:19-cv-05685-DWL Document 22-9 Filed 02/25/20 Page 2 of 4

1 Pursuant to 20 U.S.C. § 1746, I, Scott O. Konopasek, declare as follows:

2

1. My name is Scott O. Konopasek. I am over the age of 18, have personal

3 knowledge of the facts stated in this declaration, and can competently testify to their truth.

4

2. I have worked as an elections administrator for over 25 years. I currently serve

5 as the Assistant Registrar of Voters for Contra Costa County in California. In this role, I act

6 as the Director of Elections for the county. Prior to working in Contra Costa County, I also

7 worked in election administration in Utah, where I served as the Director of Elections for

8 Salt Lake County, and in Washington State, where I served as the Director of Elections and

9 Voter Registration for Snohomish County. Before my work as an elections administrator, I

10 served in the military for 14 years as a counterintelligence and security officer.

11

3. All three of the states in which I have served as an elections administrator—

12 California, Washington, and Utah—are postmark states. A postmark state is a state in which

13 a voter’s ballot is counted as long as it is mailed by a certain date and received by the state

14 within a certain amount of time after Election Day.

15

4. The specific dates and deadlines for sending and receiving ballots varies

16 among these three states. In California, ballots are counted as long as they are postmarked

17 by Election Day and received no later than three days after Election Day. In Washington

18 State, ballots are counted as long as they are postmarked by Election Day and received the

19 day before the certification date, which is typically a couple of weeks after Election Day.

20 In Utah, ballots were counted as long as they are postmarked the day before Election Day

21 and received within six days of Election Day.

22

5. In my experience, postmark deadlines increase certainty for both election

23 administrators and for voters. With a postmark deadline, both election administrators and

24 voters have a clear day on which a ballot must be mailed for it to be counted.

25

6. My experience with Contra Costa County also shows that postmark systems

26 can work even in counties with large populations. Contra Costa County, located in the East

27 Bay region of the San Francisco Bay area, is home to well over 1 million residents and over

28

2

Case 2:19-cv-05685-DWL Document 22-9 Filed 02/25/20 Page 3 of 4

1 650,000 registered voters. Almost three-quarters of Contra Costa voters rely on voting by

2 mail to cast their ballot.

3

7. Despite the large number of mail ballots that we receive every election, Contra

4 Costa County is able to count every ballot mailed by Election Day and received by the

5 Friday after Election Day without issue. Although California typically has 28 to certify its

6 elections, we are able to finish counting mail ballots well before that deadline. In fact, we

7 typically finish counting our mail ballots between three to five days after Election Day. We

8 are able to do this without issue despite the fact that we do not start counting a substantial

9 number of our ballots until after Election Day. In the 2016 General Election, for example,

10 Contra Costa County counted approximately 37% of all its ballots after Election Day. These

11 ballots included mail ballots that were dropped off at a polling location or drop-box on

12 Election Day itself, as well as ballots received in the mail after Election Day.

13

8. From my perspective as an elections administrator, having a postmark

14 deadline, instead of a receipt deadline, has actually decreased administrative burdens on our

15 office. When I first began working as an elections administrator in California, for example,

16 the state did not have a postmark deadline. When California instead had a receipt deadline,

17 we were required to have physical possession of all ballots by 8 p.m. on Election Day. This

18 required us to coordinate with U.S.P.S. and arrange to have staff at every postal location for

19 staff to take physical custody of the ballots on Election Night. Now that our staff no longer

20 has to coordinate this handoff and be physically present for the handoff on Election Night,

21 our staff is free to accomplish other important Election Day logistics.

22

9. Further, when California had a receipt deadline, we were also required to hand-

23 stamp every ballot that was received after 8 p.m. on Election Day to ensure that those ballots

24 would not be counted. This required physically segregating those ballots to make sure that

25 they would not be intermingled with other ballots. This process added an extra

26 administrative burden to the counting process.

27

10. Importantly, it has been my experience managing elections in postmark states

28 that postmark deadlines increase the number of voters who are able to participate in

3

Case 2:19-cv-05685-DWL Document 22-9 Filed 02/25/20 Page 4 of 4

1 elections. This is evident in recent elections from Contra Costa County. In November 2018,

2 for example, 12,086 voters relied on our postmark system to mail in their ballot on Election

3 Day itself. Had any of those voters been unable to reach a polling place on Election Day—

4 an increasing reality for voters with family care responsibilities, work responsibilities, or a

5 lack of transportation—they may not have been able to cast their ballot in a non-postmark

6 state.

7

11. From my experience managing elections in postmark states, I also believe that

8 postmark deadlines increase confidence in elections because voters are more likely to know

9 that their vote counted and voters have a clear deadline by which they must submit their

10 ballot. Unlike voters in non-postmark states, voters in postmark states do not need to guess

11 when they must send in their ballot.

12

12. I understand that both political campaigns and the media may prefer to know

13 the results instantaneously, but an election administrator’s job is to ensure that all eligible

14 voters’ ballots are counted. A postmark system ensures that all ballots are counted as long

15 as they were properly cast by Election Day.

16

I declare under penalty of perjury that the foregoing is true and correct.

17 DATED: __
_______________

18

19

20

By: _______________

21

Scott O. Konopasek

22

23

24

25

26

27

28

4

Case 2:19-cv-05685-DWL Document 22-10 Filed 02/25/20 Page 1 of 4

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk*
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 Attorneys for Plaintiffs
17

18

UNITED STATES DISTRICT COURT

19

DISTRICT OF ARIZONA

20

Voto Latino Foundation and Priorities USA, 21

Plaintiffs, 22

v. 23

24

Katie Hobbs, in her official capacity as Arizona Secretary of State,

25

Defendant.

26

No. 2:19-cv-05685-DWL
DECLARATION OF MARÍA TERESA KUMAR IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

27

28

Case 2:19-cv-05685-DWL Document 22-10 Filed 02/25/20 Page 2 of 4

1

Pursuant to 20 U.S.C. § 1746, I, María Teresa Kumar, declare as follows:

2

1. My name is María Teresa Kumar. I am over the age of 18, have personal

3 knowledge of the facts stated in this declaration, and can competently testify to their truth.

4

2. Voto Latino Foundation is a 501(c)(3) nonprofit organization that engages,

5 educates, and empowers Latino communities across the United States. Voto Latino’s

6 mission is to ensure that Latinos are enfranchised and included in the democratic process

7 and to increase civic participation among Latino communities.

8

3. To accomplish its mission, Voto Latino Foundation works in key states which

9 have significant Latino populations, such as California, Arizona, Nevada, Colorado,

10 Florida, Texas, New Mexico, and Georgia, among other states.

11

4. Since its inception, one of Voto Latino Foundation’s main priorities has been

12 to register eligible Latino voters to vote. To date, Voto Latino Foundation has registered

13 over 500,000 voters across the country. In 2018 specifically, Voto Latino registered over

14 10,000 new voters in the state of Arizona. Of the voters that Voto Latino registered in

15 Arizona in 2018, an estimated 76% turned out to vote.

16

5. In the 2018 election cycle, Voto Latino Foundation was also heavily involved

17 in get-out-the-vote (“GOTV”) efforts across its key states, including in Arizona. These

18 nationwide efforts included targeting 500,000 voters to encourage them to vote, arranging

19 and funding almost 10,000 rides to the polls in critical states, and holding 70 grassroots

20 events in key markets across the country.

21

6. In 2018, in Arizona specifically, Voto Latino Foundation concentrated on

22 engaging and mobilizing Latino millennials through a digital engagement strategy, in

23 addition to its regular voter registration efforts in Arizona. Voto Latino Foundation worked

24 with partners on the ground in Arizona to coordinate voter engagement events including

25 GOTV activities in the Phoenix metro area.

26

7. In 2020, Voto Latino Foundation intends to continue its efforts to register and

27 mobilize Latino voters across the country. In particular, Voto Latino Foundation is aiming

28 to register 1 million voters by the 2020 election, including in Arizona.

2

Case 2:19-cv-05685-DWL Document 22-10 Filed 02/25/20 Page 3 of 4

1

8. In particular, Voto Latino Foundation estimates that there are approximately

2 300,000 unregistered but eligible Latino voters in Arizona. In advance of the upcoming

3 2020 election, Voto Latino has already begun and plans to continue a year-long voter

4 registration effort in Arizona. This effort will primarily include funding digital

5 advertisements to encourage eligible but unregistered Latinos to register to vote.

6

9. As the 2020 election approaches, Voto Latino Foundation intends to continue

7 its voter registration efforts and voter turnout ad program. Voto Latino Foundation will also

8 recruit and train volunteers and organizers in its key states to help organize Latino

9 communities and turn them out to vote.

10

10. But all of this work that Voto Latino Foundation does means little if Latino

11 voters’ ballots are not counted.

12

11. I am aware that a significant majority of voters in Arizona cast ballots by mail.

13 I am also aware that Arizona currently rejects mail ballots that are cast and mailed before

14 or on Election Day if those ballots are not received by 7:00pm on Election Day. I am aware,

15 and particularly concerned, that this receipt deadline disproportionately disenfranchises

16 Arizona’s Latino voters—the very communities which Voto Latino Foundation seeks to

17 engage and mobilize. Arizona’s refusal to count these ballots frustrates Voto Latino

18 Foundation’s mission of and efforts in mobilizing and turning out Latino voters.

19

12. Should the current receipt deadline remain in place, Voto Latino Foundation

20 intends to expend additional resources and staff time to educate Arizona’s Latino voters on

21 when and how to cast their mail ballots. Specifically, Voto Latino Foundation will have to

22 dedicate staff time towards launching a digital educational campaign aimed at educating

23 Latino voters on the cutoff to mail back their mail ballot and will have to expend

24 corresponding financial resources to advertise and promote that campaign. Such a campaign

25 would particularly target millennial and Generation Z Latino voters in Arizona.

26

13. Were Arizona to count ballots that were cast on or before Election Day and

27 received within a reasonable amount of time after Election Day, Voto Latino Foundation

28 would otherwise allocate those resources and staff time towards its other core activities,

3

Case 2:19-cv-05685-DWL Document 22-10 Filed 02/25/20 Page 4 of 4

1 such as registering new voters or engaging in GOTV activities to turnout Latino voters in

2 Arizona or other states. As a relatively small organization, Voto Latino Foundation has

3 limited resources to do its work—any resources spent on general voter education

4 necessarily takes away from our other key activities.

5

I declare under penalty of perjury that the foregoing is true and correct.

6 DATED: ___
___
___________

7

8

9

By: _______________

10

María Teresa Kumar President and Executive Director

11

Voto Latino Foundation

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

Case 2:19-cv-05685-DWL Document 22-11 Filed 02/25/20 Page 1 of 4

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 **Pro hac vice application pending
17 Attorneys for Plaintiffs
18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino, Inc. and Priorities USA,
22

Plaintiffs, 23

v. 24

25

Katie Hobbs, in her official capacity as Arizona Secretary of State,

26

Defendant.

27

No. 2:19-cv-05685-DWL
DECLARATION OF SENATOR MARTÍN QUEZADA IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

28

Case 2:19-cv-05685-DWL Document 22-11 Filed 02/25/20 Page 2 of 4

1

Pursuant to 20 U.S.C. § 1746, I, Martín Quezada, declare as follows:

2

1. My name is Martín Quezada. I am over the age of 18, have personal knowledge

3 of the facts stated in this declaration, and can competently testify to their truth.

4

2. I am a lifelong Arizonan, a U.S. Citizen, and a registered voter in Maricopa

5 County.

6

3. I also currently serve as a State Senator in the Arizona Senate, where I

7 represent the Twenty-Ninth Senate District. My district is located in central Maricopa

8 County and encompasses western portions of Phoenix. I represent just over 200,000

9 constituents, nearly 80% of whom are ethnic minorities. Hispanic citizens in particular

10 compromise nearly two-thirds of the population of my district—the highest percentage of

11 any Senate district in the state of Arizona. Many of my constituents speak Spanish as their

12 primary language, and my district is a primarily working-class community.

13

4. Before I became a State Senator in 2015, I also served in the Arizona House

14 of Representatives. Over the past ten years, I have run eight campaigns for office, including

15 for both statewide and local office. During those campaigns and my years in office, I have

16 spoken with thousands of voters in my community about many different issues of public

17 interest, including issues relating to the process for Arizona citizens to exercise their

18 fundamental right to vote in elections.

19

5. Voter education has been an essential part of each of my campaigns. In

20 particular, given that a large percentage of Arizona citizens cast their votes by mail, I have

21 worked extensively, along with members of my campaigns, to ensure that voters understand

22 the process for voting by mail and return their mail ballots on time. A significant part of my

23 campaigns’ voter education and get-out-the-vote efforts has been to help voters navigate

24 Arizona’s complex and confusing process for voting by mail.

25

6. Over the past ten years, the number of voters who have come to rely on vote-

26 by-mail has substantially increased. As a candidate, I am confident that elections can be

27 won and lost in Arizona by how effectively a campaign is able to educate its voters on how

28 and when to return ballots by mail.

2

Case 2:19-cv-05685-DWL Document 22-11 Filed 02/25/20 Page 3 of 4

1

7. Educating voters on how and when to return their mail ballots is particularly

2 crucial in my district. A large number of voters in my district do not understand that they

3 must put their ballot in the mail multiple days before Election Day to ensure that it will

4 reach the County Recorder’s Office by 7 p.m. on Election Day and be counted under current

5 Arizona law. And I understand the confusion—it defies common logic and everyday

6 experience with common deadlines to expect that you need to cast a ballot so far in advance

7 of Election Day for it to count.

8

8. Moreover, even for those who theoretically know that they must send their

9 ballot back early, it is not always as easy as simply dropping their ballot off in the mailbox.

10 Approximately half of the communities in my district, including the community that I live

11 in, lack an easily accessible outgoing mailbox. In my apartment community, for example,

12 there is one community mailbox to which everyone’s incoming mail is delivered. There

13 used to be a slot for outgoing mail, but it has been long blocked for security reasons. For

14 many voters in communities like my own, it may be easier to receive a ballot in the mail

15 than it is to send it back.

16

9. For many other voters in my district who intend to put their ballot in the

17 mailbox well before Election Day, family care and work responsibilities can get in the way.

18 These stressors are particularly prevalent among the working-class voters that I represent,

19 many of whom rely on public transportation to reach their workplace and work long-shifts

20 or multiple jobs to get by.

21

10. Moreover, many of my constituents have told me that they prefer to wait to

22 vote until Election Day to take advantage of all possible information before making a

23 decision. Under current Arizona law, voters who rely on the mail to vote must forego any

24 information that develops during the last week of an election. I am certain that, for at least

25 some of the voters in my district, voting by mail is the only way that they can vote. While

26 my campaign hopes to offer rides to the polls for as many voters as possible, it is not

27 possible to reach everyone.

28

3

Case 2:19-cv-05685-DWL Document 22-11 Filed 02/25/20 Page 4 of 4

1

11. Similarly, it is not easy for many voters in my district to drop off their mail

2 ballot in-person or cast a ballot in person if they misunderstand or forget the deadline to

3 send in a mail ballot. Many of my constituents rely on public transportation, which does not

4 always run near a PEVL drop-box or a polling location.

5

12. Finally, from my conversations with voters in my district, many of them would

6 not be able to take the time to vote in-person, even if they were able to reach a polling

7 location. Many of my constituents remember how difficult it was to vote in person in the

8 2016 presidential preference primary, which resulted in lines to vote that were several hours

9 long. Some voters in my district even waited upwards of five hours to cast a ballot. While

10 some voters were able to wait in line, many others were deterred by the lines and unable to

11 be away from work and family responsibilities. After that experience, I understand why

12 some voters would be hesitant to vote in-person if they were unable to vote by mail.

13

13. I firmly believe that it should not be difficult to vote. While voting by mail

14 does expand the options available to voters in my district, there are still serious barriers to

15 participating in the vote by mail system in Arizona. From my ten years speaking with voters

16 and running for office in Arizona, I believe the current deadline to send in a mail ballot is

17 among the most significant of those barriers.

18

I declare under penalty of perjury that the foregoing is true and correct.

19 DATED: ___
______________

20

21

22

By: _______________

23

State Senator Martín Quezada

24

25

26

27

28

4

Case 2:19-cv-05685-DWL Document 22-12 Filed 02/25/20 Page 1 of 5

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 **Pro hac vice application pending
17 Attorneys for Plaintiffs
18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino, Inc. and Priorities USA,
22

Plaintiffs, 23

v. 24

25

Katie Hobbs, in her official capacity as Arizona Secretary of State,

26

Defendant.

27

No. 2:19-cv-05685-DWL
DECLARATION OF DJ QUINLAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

28

Case 2:19-cv-05685-DWL Document 22-12 Filed 02/25/20 Page 2 of 5

1

Pursuant to 20 U.S.C. § 1746, I, DJ Quinlan, declare as follows:

2

1. My name is DJ Quinlan. I am over the age of 18, have personal knowledge of

3 the facts stated in this declaration, and can competently testify to their truth.

4

2. I have extensive experience with elections and campaigns in Arizona, having

5 worked in Arizona politics for the past ten years. I formerly served as the Executive Director

6 of the Arizona Democratic Party from 2012-2015, as the Elections Director of the Arizona

7 Democratic Party from 2010-2012, and as a campaign manager for a congressional

8 candidate in Arizona from 2012-2013. Before my time working on Arizona elections, I

9 served in the United States Air Force.

10

3. In the past ten years, voters in Arizona have become increasingly reliant on

11 voting by mail to cast their ballot. When I first started working in Arizona elections (about

12 ten years ago), I would estimate that less than half of voters in Arizona relied on the mail to

13 cast their ballot. Through my experience over the past ten years, I have seen that number

14 grow and today an overwhelming majority of voters in Arizona rely on the mail to cast their

15 ballot.

16

4. This increase in the use of mail ballots is no surprise given Arizona’s creation

17 of the Permanent Early Voter List (PEVL), which sends a mail ballot to every voter who

18 has signed up for the list for every election. The state has also widely encouraged voters to

19 use mail ballots, and some municipalities in Arizona have even come to rely entirely on

20 mail ballots to hold their elections.

21

5. Voters in Arizona also increasingly depend on the mail to cast their ballots

22 because Arizona has closed hundreds of polling places statewide over the past several years.

23 This means that voters now live further from a physical polling location than they used to.

24 Rural voters, in particular, often depend on the mail to cast their ballot because they live far

25 from their polling locations. Additionally, because polling locations in Arizona have

26 changed locations so many times in recent years, in my experience many voters do not even

27 know where their current polling location is anymore.

28

2

Case 2:19-cv-05685-DWL Document 22-12 Filed 02/25/20 Page 3 of 5

1

6. While voting by mail does expand opportunities for many voters in Arizona to

2 participate in elections, voting by mail also presents significant challenges for a substantial

3 number of voters, many of whom are confused by and may miss the relevant deadlines to

4 send back a mail ballot.

5

7. Through my get-out-the-vote activities in Arizona, I have learned that many

6 voters do not think about the election until the weekend just before Election Day, when it

7 may be too late to mail a ballot. This is understandable—voters have busy lives, and most

8 voters do not have the time to sit down and read through Arizona’s ballot (which is typically

9 very long and complicated) well before the election. In my experience, it is difficult to

10 motivate voters to think about mailing their ballots a week or more before Election Day,

11 when most voters have just started to tune into the issues, and before they have had time to

12 read voter guides or before they have received multiple reminders to vote from campaigns.

13 Unfortunately, for many of those voters, especially those who live in more rural parts of the

14 state, they have missed the “deadline” to return their ballot if they have not mailed their

15 ballot well before the weekend before Election Day—that is, their ballots are not likely to

16 arrive at their county by 7 p.m. on Election Day and therefore they will not be counted.

17

8. In my experience, the current requirement to send a mail ballot back to the

18 state well in advance of Election Day also confuses voters.

19

9. While I cannot quantify the number of voters who believe that Arizona is a

20 postmark state, in my experience, a substantial number of voters in the state believe that

21 they do not need to mail their ballot in until Election Day. But even if less than 5% of voters

22 in the state believe that they need to mail in their ballot on Election Day for it to be counted,

23 that translates thousands of voters whose ballots are not counted but who otherwise cast a

24 ballot up through Election Day.

25

10. Conversely, I have also encountered voters in Arizona who hear that the

26 deadline to send in their mail ballot is the Wednesday before Election Day and, as a result,

27 believe that “deadline” is the actual deadline. Those voters may not send their ballot back

28 on the Thursday, Friday, or Saturday before Election Day due to this confusion, even though

3

Case 2:19-cv-05685-DWL Document 22-12 Filed 02/25/20 Page 4 of 5

1 some of those ballots would still reach the state on time, especially if they live in the more

2 urban areas of the state.

3

11. While I understand that voters can drop off a mail ballot at a polling location

4 on Election Day if voters are unable to mail their ballot early enough, I have found that in-

5 person drop off is a not realistic solution for those voters who have family-care

6 responsibilities, inflexible schedules, or a lack of transportation. Additionally, given the

7 closures of polling places across Arizona, there are fewer and fewer polling locations that

8 Arizona voters can actually use to return those ballots in-person on Election Day. Of course,

9 because there are fewer polling locations than there used to be, it is also increasingly likely

10 that any particular polling location is further from those voters.

11

12. Based on my experience, I believe a postmark deadline for returning ballots

12 would level the playing field between all voters in the state and would create a clear deadline

13 by which voters would understand when to cast their ballots. A postmark deadline would

14 also allow all voters, regardless of where they live, to participate in Arizona elections up

15 until Election Day itself, whether or not they have the means or ability to vote in-person on

16 Election Day.

17

13. While I understand the desire to find out election results on Election Day itself,

18 from my experience overseeing many campaigns in Arizona, election results are never truly

19 final on election night in Arizona.

20

14. Finally, I have found from my interactions with voters that they are particularly

21 distressed when they learn or believe that their vote will not count. For example, I have seen

22 many voters become discouraged and upset when they are asked to cast a provisional ballot,

23 believing that ballot will not count. From those experiences, I think it is very likely that

24 voters as a whole would be more discouraged by having their ballot rejected than by not

25 having a final result on election night.

26

I declare under penalty of perjury that the foregoing is true and correct.

27 DATED: ___
______________

28

4

Case 2:19-cv-05685-DWL Document 22-12 Filed 02/25/20 Page 5 of 5

1

2

By: _______________

3

DJ Quinlan

4

5

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8

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5

Case 2:19-cv-05685-DWL Document 22-13 Filed 02/25/20 Page 1 of 4

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 **Pro hac vice application pending
17 Attorneys for Plaintiffs
18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino, Inc. and Priorities USA,
22

Plaintiffs, 23

v. 24

25

Katie Hobbs, in her official capacity as Arizona Secretary of State,

26

Defendant.

27

No. 2:19-cv-05685-DWL
DECLARATION OF KIERSTEN SCHNEIDER IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

28

Case 2:19-cv-05685-DWL Document 22-13 Filed 02/25/20 Page 2 of 4

1

Pursuant to 20 U.S.C. § 1746, I, Kiersten Schneider, declare as follows:

2

1. My name is Kiersten Schneider. I am over the age of 18, have personal

3 knowledge of the facts stated in this declaration, and can competently testify to their truth.

4

2. I am a native Arizonan. In 2018, the year after I graduated college, I decided

5 that I wanted to become involved with elections in my home state and became a Field

6 Organizer for the Arizona Democratic Party from June 2018 through November 2018.

7

3. Field organizers on a campaign are typically assigned to a specific

8 neighborhood or region. My assignment was in northern Phoenix, in a largely suburban

9 neighborhood.

10

4. In the summer of 2018, my role as a Field Organizer was to begin making

11 connections with the people in my neighborhood, register them to vote if they were eligible

12 and not already registered, and talk with voters about issues important to our community.

13 My other primary role was to recruit volunteers to help in that effort.

14

5. By the fall of 2018, my role had changed to get-out-the-vote (“GOTV”)

15 activities. GOTV efforts include identifying the people in my neighborhood who were

16 eligible to vote, persuading them to vote, educating them about how to vote, and training

17 volunteers who could assist in these efforts.

18

6. In the lead up to the 2018 General Election, both myself and my volunteers

19 knocked on doors of eligible voters in our neighborhood. Like a lot of Arizona voters, voters

20 in my neighborhood relied primarily on voting by mail to cast their ballot. Many of those

21 voters were on the Permanent Early Voter List (“PEVL”), which entitles a voter in Arizona

22 to be sent a mail ballot for every election.

23

7. In the last week of the election, while knocking on doors, I specifically

24 remember meeting voters who did not understand that their ballot needed to be mailed

25 before Election Day for it to count. Instead, those voters believed that their ballot would

26 count as long as it was mailed by Election Day. These voters often appeared confused when

27 I explained that they would need to try to drop their ballot off in person if they wanted their

28 ballot to count. I believe this confusion stemmed from the fact that, as PEVL voters, these

2

Case 2:19-cv-05685-DWL Document 22-13 Filed 02/25/20 Page 3 of 4

1 voters believed that all they would ever have to do to vote is drop off their ballot in the

2 mailbox.

3

8. Multiple volunteers who worked under me shared similar stories about

4 encountering voters who misunderstood or were confused about the deadlines to send in a

5 ballot, with many voters believing that they had until Election Day to put their ballot in the

6 mail.

7

9. These voters were very grateful that we cleared up the confusion for them, but

8 I am sure that we were not able to reach and inform every voter who was similarly

9 misinformed or confused about the deadline to send in a mail ballot.

10

10. When a voter realized that mailing was no longer an option, myself and my

11 volunteers would attempt to help the voter figure out how they could still cast their ballot.

12 Assuming that voter was not able to vote in-person on Election Day, the options to cast a

13 ballot were limited and not always accessible to voters. While some areas in Arizona had

14 24/7 drop boxes where voters could drop off a PEVL ballot at any time of the day, the PEVL

15 drop boxes in my neighborhood were often only open certain days and for certain hours.

16 Additionally, the PEVL drop boxes were not always conveniently located.

17

11. I specifically remember meeting at least one voter in my neighborhood who,

18 having unintentionally missed the deadline to send in his mail ballot, could not find a PEVL

19 drop-off location that would be accessible to him. I do not know if that voter ultimately cast

20 a ballot, but when I left his home, we had not been able to make a plan that would enable

21 him to cast his ballot.

22

12. These experiences with voters were frustrating for both myself and my

23 volunteers. But as someone who has worked on a campaign, these encounters were also not

24 surprising—many voters simply do not know the rules, and understandably, they assumed

25 a postmark deadline. Though we tried our best to help voters to figure out alternate options

26 to vote, I am confident that at least some voters who wished to cast a ballot were not able

27 to do so because of Arizona’s receipt deadline for mail ballots.

28

I declare under penalty of perjury that the foregoing is true and correct.

3

Case 2:19-cv-05685-DWL Document 22-13 Filed 02/25/20 Page 4 of 4

1 DATED: __
_______________ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

By: _______________ Kiersten Schneider
4

Case 2:19-cv-05685-DWL Document 22-14 Filed 02/25/20 Page 1 of 3

1 Sarah R. Gonski (Bar No. 032567) Alexis E. Danneman (Bar No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk**
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 **Pro hac vice application pending
17 Attorneys for Plaintiffs
18

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Voto Latino, Inc. and Priorities USA,
22

Plaintiffs, 23

v. 24

25

Katie Hobbs, in her official capacity as Arizona Secretary of State,

26

Defendant.

27

No. 2:19-cv-05685-DWL
DECLARATION OF JON SUTTON IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

28

Case 2:19-cv-05685-DWL Document 22-14 Filed 02/25/20 Page 2 of 3

1

Pursuant to 20 U.S.C. § 1746, I, Jon Sutton, declare as follows:

2

1. My name is Jon Sutton. I am over the age of 18, have personal knowledge of

3 the facts stated in this declaration, and can competently testify to their truth.

4

2. I have spent the past ten years working in support of various campaigns and

5 causes, both in Arizona and in other states. In particular, from 2017 to 2019, I served as the

6 Field Director for the Arizona Democratic Party. Today, I am the Campaign Manager for

7 an Arizona congressional candidate. My role on the campaigns I’ve worked for, including

8 as the Field Director for the Party, has often been to oversee field operations, which means

9 that I am responsible for overseeing the campaign’s contact with voters to ensure that voters

10 turn out to vote. Campaigns traditionally make this contact with voters by calling them or

11 knocking on their doors. When campaign staff or volunteers have conservations with voters,

12 they inform them about the various candidates and issues, encourage them to vote, and

13 educate them about how they can cast their ballot.

14

3. Today, Arizona relies primarily on voting by mail to conduct its elections,

15 which makes elections in the state quite different from elections in most other states.

16

4. Because voting by mail is the single most important feature of elections in

17 Arizona, the Arizona campaigns that I have worked on have learned that they must educate

18 voters on how to effectively participate in the vote by mail system. Despite our best efforts,

19 from my experience working on elections in Arizona, I believe that a significant number of

20 voters do not know or understand when they must mail back their ballots to ensure that they

21 are counted.

22

5. Through my campaign work, I have been in a position to watch how many

23 ballots are returned week-by-week, and then day-by-day, in the month leading up to an

24 election. From those experiences, it is clear that by the last week leading up to Election Day,

25 a significant proportion of the population has not yet mailed their ballots back to their

26 county recorder’s office.

27

6. The reason that a voter may not return his or her mail ballot until the end of an

28 election period varies from person to person, but overall, in my experience, a significant

2

Case 2:19-cv-05685-DWL Document 22-14 Filed 02/25/20 Page 3 of 3

1 reason is that many voters are not able to engage with the election and make their choices

2 until that last week. Most voters have busy and hectic lives, and, unlike a campaign’s most

3 ardent supports, many voters may need more time to think about their choices before they

4 feel ready to fill out their ballot.

5

7. From my experiences working on elections in Arizona, I have learned that

6 while a campaign’s most enthusiastic voters may vote right away, the vast majority of voters

7 need several reminders to vote. It is well-understood in campaigns that the more times a

8 campaign can make contact with a voter through get-out-the-vote (“GOTV”) efforts, the

9 more likely that voter is to actually cast a ballot.

10

8. Because Arizona requires that ballots be received in the mail by a certain time

11 on Election Day, GOTV efforts in Arizona, unlike GOTV efforts in other states, can be

12 difficult the last week of an election. Because a ballot may not count if it is mailed the

13 Thursday, Friday, or Saturday before an election (depending on where that voter lives),

14 campaigns must train volunteers on the precise language to use with voters in the last week

15 of an election. Volunteers encourage voters to vote in the last week, but must carefully

16 navigate (and ultimately, offer a guess) on whether it is safe for that voter to put their ballot

17 on the mail or not. These conversations can be confusing for voters and the volunteers alike.

18

9. From my experiences overseeing field operations in Arizona, I am confident

19 that many more voters would be able to vote in the state’s elections were Arizona to accept

20 ballots that were cast and mailed up through Election Day.

21

I declare under penalty of perjury that the foregoing is true and correct.

22 23 DATED: ___
______________

24

25

26

By: _______________

27

Jon Sutton

28

3

Case 2:19-cv-05685-DWL Document 22-15 Filed 02/25/20 Page 1 of 2

1 Alexis E. Danneman (#030478) Sarah R. Gonski (# 032567)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8000
4 Facsimile: 602.648.7000 ADanneman@perkinscoie.com
5 SGonski@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk*
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 christinaford@perkinscoie.com

15 *Admitted pro hac vice

16 Attorneys for Plaintiffs

17 UNITED STATES DISTRICT COURT
18 DISTRICT OF ARIZONA
19

20 Voto Latino Foundation, Priorities USA, and Shelby Aguallo
21

Plaintiffs, 22

23

v.

No. 2:19-cv-05685-DWL
PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

24

Katie Hobbs, in her official capacity as Arizona Secretary of State,

25

Defendant.

26

27

Upon consideration of Plaintiffs’ Motion for Preliminary Injunction, supporting

28 authorities, the response from the Defendant, and the evidence and pleadings of record, the

Case 2:19-cv-05685-DWL Document 22-15 Filed 02/25/20 Page 2 of 2

1 Court finds that and finds that Plaintiffs are (1) likely to succeed on the merits of their First

2 and Fourteenth Amendment and Due Process Clause challenges to A.R.S. § 16-548(A), (2)

3 likely to suffer irreparable harm absent an injunction, (3) the balance of the equities tip in

4 their favor, and (4) an injunction serves the public interest. Winter v. Nat. Res. Def. Council,

5 Inc., 555 U.S. 7, 24 (2008). Accordingly, Plaintiffs’ motion is GRANTED. Accordingly,

6 IT IS ORDERED:

7

1. The Secretary of State, her respective agents, officers, employees, and

8

successors, and all persons acting in concert with each or any of them, are

9

PRELIMINARY ENJOINED from rejecting ballots that are postmarked on

10

or before Election Day and arrive at a county recorder’s office within, at a

11

minimum, five business days of Election Day.

12

2. The Secretary of State is ORDERED to publish in the Elections Procedures

13

Manual instructions for county election officials to accept and tabulate

14

otherwise valid ballots that contain indicia, such as a postmark, identifying

15

them as sent on or before Election Day and arrive at a county recorder’s office

16

within, at a minimum, five business days of Election Day.

17

18

19

20

21

22

23

24

25

26

27

28

-2-

 
 Case 2:19-cv-05685-DWL Document 26 Filed 03/04/20 Page 1 of 8

1 Mark Brnovich Attorney General
2 Firm Bar No. 14000
3 Linley Wilson (027040)
4 Kara Karlson (029407) 5 Dustin Romney (034728)
Assistant Attorney General 6 2005 North Central Avenue
Phoenix, AZ 85004-1592 7 (602) 542-4951 8 linley.wilson@azag.gov
kara.karlson@azag.gov 9 dustin.romney@azag.gov 10 adminlaw@azag.gov

11 Mary R. O’Grady (011434)

Kimberly I. Friday (035369) 12 Emma J. Cone-Roddy (034285)

13 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100

14 Phoenix, Arizona 85012–2793

15

(602) 640-9000 mogrady@omlaw.com

16 kfriday@omlaw.com

econe-roddy@omlaw.com 17

18 Attorneys for Defendant Arizona Secretary of State Katie Hobbs
19 IN THE UNITED STATES DISTRICT COURT
20 FOR THE DISTRICT OF ARIZONA
21

22 Voto Latino, Inc., et al, Plaintiffs,
23 v.

24 Katie Hobbs, in her official capacity as

Arizona Secretary of State,

25

Defendant..

26

27

Case No: 19-cv-05685-DWL
ARIZONA SECRETARY OF STATE’S EXPEDITED MOTION TO STAY CONSIDERATION OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION OR IN THE ALTERNATIVE AN EXTENSION OF TIME

28

Case 2:19-cv-05685-DWL Document 26 Filed 03/04/20 Page 2 of 8

1

Arizona Secretary of State Katie Hobbs (the “Secretary”) respectfully requests

2 expedited review of the Secretary’s request to stay consideration of Plaintiffs’ Motion for

3 Preliminary Injunction (“PI Motion”) until after the court issues a ruling on the
4 Secretary’s Motion to Dismiss, which shall be refiled on or before March 20. As
5 discussed below, a stay is warranted to preserve judicial and State resources. 6 Additionally, undersigned counsel are preparing for a hearings in the U.S. District Court
for the District of Arizona in another elections case on March 4–5, and yesterday a new 7
hearing on March 10; the deadline to respond to the PI Motion is a mere three business 8
days after the first hearing and due on the same day as the second hearing. Plaintiffs 9
object to relief sought in this Motion. However, Plaintiffs filed their PI Motion three 10 months after filing their initial complaint, and the PI Motion is accompanied by nearly 11 400 pages of declarations and expert reports. The timing of Plaintiffs’ PI Motion belies
12 any need for urgent relief. See Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d
13 1374, 1377 (9th Cir. 1985) (“Plaintiff's long delay before seeking a preliminary

14 injunction implies a lack of urgency and irreparable harm.”).

15

Given these circumstances, requiring a response in the traditional fourteen-day

16 time frame would not give the Secretary adequate time to respond and would deprive this

17 Court of the information necessary to make a determination on the merits of the

18 preliminary injunction, should the Secretary’s Motion to Dismiss be denied.

19

BACKGROUND Arizona has long allowed early and absentee voting in a variety of forms.

20 Currently, early voting begins twenty-seven days before Election Day. A.R.S. § 16-

21 542(C). Voters can choose to vote early in person or by mail, or on Election Day. Voters

22 who are ill or disabled can request county elections officials come to them. A.R.S. § 16-

23 549. Many voters in Arizona have signed up for the Permanent Early Voting List, which

24 ensures they receive a ballot by mail for every election they are eligible to vote in. A.R.S.

25 § 16-544(H). The parties agree that Arizona’s early voting program has been successful.
26 Indeed, approximately 80% of Arizona’s voters elect to vote early. (Doc. No. 19, Second 27 Amended Complaint ¶ 24.) Voters who receive a ballot by mail may return it by mail
(postage pre-paid by the county) or at any designated drop-off location, give it to a family 28

1

Case 2:19-cv-05685-DWL Document 26 Filed 03/04/20 Page 3 of 8

1 member, caregiver, or someone who lives with them to return for them; or skip the line

2 and drop it off at any polling place in their county. A.R.S. §§ 16-547(C), -551(C). The

3 early ballot envelope includes the following notice: “In order to be valid and counted, the
4 ballot and affidavit must be delivered to the office of the county recorder . . . or may be
5 deposited at any polling place in the county no later than 7:00 p.m. on election day.” 6 A.R.S. § 16-547(C). No matter how the ballot is cast, it must be in the hands of election
officials before polls close by 7:00 pm on Election Day. A.R.S. §§ 16-547, -565. 7
Plaintiffs filed suit against the Secretary on November 26, 2019, alleging that 8
Arizona’s law requiring mail-in ballots to be received by 7:00 p.m. on Election Day is 9
unconstitutional. Counsel for the Secretary conferred with Plaintiffs’ counsel before 10 filing a motion to dismiss. During this meet and confer, the Secretary’s counsel apprised 11 Plaintiffs’ counsel about the substance of all the issues that would be raised in the
12 anticipated Motion to Dismiss, including jurisdictional standing defects for the Plaintiffs–
13 –organizations without any members. Plaintiffs confirmed that they would not amend

14 their First Amended Complaint to remedy the issues the Secretary raised, so the Secretary

15 filed her Motion to Dismiss on February 3, 2020.

16

Plaintiffs then filed a Second Amended Complaint on February 24, with no

17 objection from the Secretary. As part of the stipulation to file a Second Amended

18 Complaint, the parties agreed that the Secretary would withdraw the Motion to Dismiss,

19 and could re-file a “responsive pleading” on or before March 20 to respond to the
20 amendments the Plaintiffs made. The next day, on February 25—after the Stipulated Motion to File a Second Amended Complaint was filed—Plaintiffs filed the PI Motion,
21 which includes 32 exhibits, including two expert reports that rely upon analysis of a
22 significant amount of underlying data, which the Secretary received on February 27. This
23 Court then denied the Secretary’s Motion to Dismiss as moot and set a deadline of March
24 20, to file a responsive pleading to Plaintiffs’ Second Amended Complaint. The Secretary
25 intends to file a Motion to Dismiss by the March 20 deadline.

26

ANALYSIS

27

As an initial matter, Plaintiffs’ claims are tenuous and likely to be dismissed

28 because requiring voters to return all ballots before the polls close on Election Day does

2

Case 2:19-cv-05685-DWL Document 26 Filed 03/04/20 Page 4 of 8

1 not violate the Constitution. See Friedman v. Snipes, 345 F. Supp. 2d 1356, 1377 (S.D.

2 Fla. 2004) (holding that the requirement that ballots be received by 7:00 p.m. on Election

3 Day presents only a “light imposition on Plaintiffs’ right to vote” and is justified by the
4 State’s interest to ensure a fair and honest election and to count votes within a reasonable
5 time). Plaintiffs’ claims are based on their dissatisfaction with Arizona’s robust early 6 voting system, which is one of the most generous in the nation, contending that the
system does not go far enough to accommodate early voters. Plaintiffs argue that county 7
election officials should be required to count ballots that were sent on or before Election 8
Day but reach the county recorder five days after the polls close. This arbitrary deadline 9
expansion is simply not required by the Constitution. It is also unclear how exactly the 10 county elections officials––who are not parties to this lawsuit––would determine when 11 ballots were mailed, given that postage pre-paid mail is more often than not
12 unaccompanied by a postmark. In addition to questioning the merits of the Plaintiffs’
13 claims, the Secretary raised in her first Motion to Dismiss (and will raise again in her

14 forthcoming Motion to Dismiss) meritorious arguments regarding Plaintiffs’ standing and

15 that Plaintiffs’ requested relief is barred under the Eleventh Amendment.

16

If this case is dismissed, preliminary injunction briefing and a hearing would be

17 unnecessary. It would therefore preserve judicial and State resources to first determine
18 whether Plaintiffs have stated a claim for which relief can be granted prior to engaging in
19 the more complex (and more costly) inquiry into whether a preliminary injunction is 20 appropriate. See Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 863 (9th
Cir. 1979) (holding that district courts can issue stays to promote efficient use of judicial 21
resources). Additionally, a preliminary injunction may only issue if Plaintiffs make a 22
“clear showing” that they are entitled to such an “extraordinary remedy.” Winter v. Nat. 23
Res. Def. Council., Inc., 555 U.S. 7, 22 (2008). “Generally ‘the entry or continuation of 24 an injunction requires a hearing. Only when the facts are not in dispute, or when the 25 adverse party has waived its right to a hearing, can that significant procedural step be
26 eliminated.’” Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir. 1988). The
27 Plaintiffs cannot demonstrate that they are entitled to this extraordinary remedy.

28

3

Case 2:19-cv-05685-DWL Document 26 Filed 03/04/20 Page 5 of 8

1

If the Secretary’s renewed Motion to Dismiss is denied, the Secretary will likely

2 respond with her own expert report(s) to defend against the two lengthy expert reports

3 Plaintiffs submitted with the PI Motion. To prepare an adequate defense to the PI Motion

4 and the associated reports, the Secretary needs an opportunity to procure her own

5 expert(s), provide them with sufficient time to scrutinize the data, and reach their own

6 conclusions about the facts. The Secretary cannot accomplish this herculean task in the

traditional 14-day response time. As noted above, counsel for the Secretary is currently 7
preparing for a preliminary injunction hearing in another case. This hearing is scheduled 8
for March 4–5 and March 10, involves complex factual and legal issues, including expert 9
testimony. Accordingly, the Secretary requests that the Court adjust its docket in the

10 interest of fairness to the parties. See Leyva, 593 F.2d at 863.

11

In addition to sparing the resources of this Court, it is notable that the Secretary

12 does not have an unlimited litigation budget and should not be forced to hire an expert

13 witness when such expert testimony is very likely to ultimately be unnecessary to defend

14 Arizona law. The Secretary believes that this suit should easily be disposed of at the

15 motion to dismiss phase. If this case can be decided on a motion to dismiss without the

16 need for experts or further proceedings, then Arizona’s taxpayers should not be required

17 to incur tens of thousands of dollars for expert analysis if the PI Motion is mooted by

18 dismissal.

19

Staying consideration of the motion for preliminary injunction would not prejudice

20 any alleged rights that Plaintiffs themselves have been in no hurry to vindicate until now.

See Oakland Tribune, Inc., 762 F.2d at 1377 (‘[T]he district court was not required to 21

issue a preliminary injunction against a practice which has continued unchallenged for 22
several years.”). The fourteen-day response time presumes a state of urgency to prevent 23
irreparable harm. There is no imminent irreparable harm about to befall Plaintiffs because

24 Arizona law requires all ballots, whether cast in person or by mail, to be received by

25 election officials before polls close on Election Day. Plaintiffs’ delays in bringing this

26 suit, amending their complaint, and filing the PI Motion, confirm this fact.

27

Finally, Plaintiffs do not seek a continuance of the status quo, but ask this Court to

28 issue a mandatory injunction and order the Secretary to ensure that any ballot sent by

4

Case 2:19-cv-05685-DWL Document 26 Filed 03/04/20 Page 6 of 8

1 Election Day and received by county election officials up to five days after polls close is

2 counted. In other words, not only do Plaintiffs ask this Court for extraordinary relief in a
3 doubtful case, they seek this relief without considering the serious damage that may result
4 to the election as a whole if their request is granted. “A State indisputably has a 5 compelling interest in preserving the integrity of its election process.” Eu v. San 6 Francisco Cnty. Democratic Central Comm., 489 U.S. 214, 231 (1989). A dramatic and
last-minute shift in elections procedures could result in delayed results, questions of 7
election integrity and fairness, and would require the Secretary or counties to develop an 8
ad hoc process to determine when ballots were mailed (to the extent that is possible) and 9
add those to the ballots that are already in process. Injunctions that alter the status quo are 10 “not granted unless extreme or very serious damage will result and are not issued in 11 doubtful cases.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 12 873, 879 (9th Cir. 2009) (internal quotations and citations omitted). Because Plaintiffs’ PI
13 Motion seeks a mandatory injunction—a very high bar—their PI Motion should be stayed
14 pending the resolution of the Secretary’s forthcoming motion to dismiss.

15

ALTERNATIVE RELIEF

In the event this Court denies the Secretary’s request to stay consideration of

16 Plaintiffs’ PI Motion until the Secretary’s forthcoming Motion to Dismiss is resolved, the

17 Secretary requests that this Court extend the deadline to file a response to the PI Motion

18 for forty-five days after the Motion to Dismiss is due, i.e., May 4, 2020.

19

CONCLUSION

20

For the reasons outlined in this Motion, the Court should stay the response

21 deadline for Plaintiffs PI Motion until after the Motion to Dismiss is decided.

22 Alternatively, the Court should grant the Secretary an extension to the response to

23 Plaintiffs’ PI Motion until May 4, 2020.

24

25 RESPECTFULLY SUBMITTED this 3rd day of February, 2020.

26

Mark Brnovich Attorney General

27

28

/s/ Kara M. Karlson Kara M. Karlson

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Case 2:19-cv-05685-DWL Document 26 Filed 03/04/20 Page 7 of 8

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Assistant Attorney General

Attorney for Defendant

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Secretary of State Katie Hobbs

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Case 2:19-cv-05685-DWL Document 26 Filed 03/04/20 Page 8 of 8

1

CERTIFICATE OF SERVICE

The foregoing was e-filed with the Clerk of the Federal Court for the District of Arizona 2 using the CM/ECF System on March 3, 2020.

3 Copy emailed this same day to:

4 Sarah R. Gonski (# 032567)
5 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
6 Phoenix, Arizona 85012-2788
7 Telephone: 602.351.8000 Facsimile: 602.648.7000
8 SGonski@perkinscoie.com

9 Marc E. Elais

10

John Devaney Amanda R. Callais

11

K’Shaani O. Smith Christina A. Ford

12

PERKINS COIE LLP 700 Thirteenth Street NW, Suite 600

13

Washington, D.C. 20005-3960 melias@perkinscoie.com

14

jdevaney@perkinscoie.com acallais@perkinscoie.com

15

kshaanismith@perkinscoie.com christinaford@perkinscoie.com

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/s/ Misty Keys

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 Case 2:19-cv-05685-DWL Document 29 Filed 03/13/20 Page 1 of 5

1 WO

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IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Voto Latino Foundation, et al.,

No. CV-19-05685-PHX-DWL

10

Plaintiffs,

ORDER

11 v.

12 Katie Hobbs,

13

Defendant.

14

15

Pending before the Court is the Secretary of State’s emergency motion for a stay.

16 (Doc. 26.) For the following reasons, the motion will be granted in part and denied in part.

17

BACKGROUND

18

This lawsuit involves a challenge to an Arizona law providing that mail-in ballots

19 “must be received by the county recorder or other officer in charge of elections or deposited

20 at any polling place in the county no later than 7:00 p.m. on election day.” See A.R.S. §

21 16-548(A). Plaintiffs—a pair of non-profit organizations and a registered voter who is

22 currently a law student—contend this law “has a disproportionate impact on rural and

23 Hispanic and Latino voters in Arizona.” (Doc. 21 ¶ 44.) Thus, Plaintiffs seek to challenge

24 the law under two constitutional theories: (1) it results in an undue burden on the right to

25 vote and (2) it violates Arizona voters’ procedural due process rights. (Id. ¶¶ 59-76.)

26

To illustrate the alleged harms arising from A.R.S. § 16-548(A), the complaint

27 focuses heavily on the 2016 election. (Doc. 1 ¶¶ 1, 36.) It also includes statistics and other

28 allegations pertaining to the 2018 election. (Id. ¶¶ 6, 27.) Nevertheless, Plaintiffs did not

Case 2:19-cv-05685-DWL Document 29 Filed 03/13/20 Page 2 of 5

1 initiate this lawsuit until November 2019. (Doc. 1.) Additionally, Plaintiffs amended their

2 complaint in December 2019 (Doc. 11) and then, after the Secretary filed a motion to

3 dismiss (Doc. 17), the parties entered into a stipulation authorizing Plaintiffs to file a

4 second amended complaint and authorizing the Secretary to have until March 20, 2020 to

5 file a responsive pleading. (Doc. 20.)

6

On February 24, 2020, Plaintiffs filed their second amended complaint. (Doc. 21.)

7 The following day, Plaintiffs filed a motion for preliminary injunction. (Doc. 22.) In a

8 nutshell, it seeks an order compelling Arizona election officials to accept “ballots that

9 arrive at the respective county recorder’s office within, at a minimum, five business days

10 of Election Day and contain indicia, such as a postmark, identifying those ballots as sent

11 on or before Election Day.” (Id. at 6.) In other words, the preliminary injunction seeks to

12 regulate future conduct that will be occurring in November 2020.

13

On March 4, 2020, the Secretary filed an emergency motion to stay. (Doc. 26.) The

14 Secretary requests permission to delay responding to the preliminary injunction motion—

15 the response would ordinarily be due within 14 days of filing, i.e., by March 10, 2020—

16 until after the Court rules upon her yet-to-be-filed motion to dismiss. (Id. at 1.) She

17 contends a stay is warranted because (1) Plaintiffs’ constitutional claims are “tenuous” on

18 the merits, so it would “preserve judicial and State resources”1 to litigate the motion to

19 dismiss before turning to the preliminary injunction motion, (2) she needs additional time

20 to respond to the preliminary injunction motion because Plaintiffs submitted “two lengthy

21 expert reports” in support of the motion and she must therefore “procure her own

22 expert(s),” which is a “herculean task” that cannot be accomplished in 14 days (particularly

23 because her counsel is currently embroiled in other active election-related litigation), and

24 (3) the request for injunctive relief does not need to be resolved on an urgent basis because

25 the underlying conduct has been in place for years and Plaintiffs waited for months after

26

27

1 On the issue of state resources, the Secretary elaborates: “The Secretary believes that this suit should easily be disposed of at the motion to dismiss phase. If this case can

28

be decided on a motion to dismiss without the need for experts or further proceedings, then Arizona’s taxpayers should not be required to incur tens of thousands of dollars for expert

analysis if the PI Motion is mooted by dismissal.” (Doc. 26 at 4.)

- 2 -

Case 2:19-cv-05685-DWL Document 29 Filed 03/13/20 Page 3 of 5

1 filing suit to file their motion for a preliminary injunction. (Id. at 2-5.)

2

On March 11, 2020, Plaintiffs filed a response. (Doc. 28.)2 Plaintiffs oppose the

3 stay request, arguing that (1) they didn’t engage in unreasonable delay before filing suit or

4 seeking injunctive relief (they filed suit well in advance of the 2020 election and filed the

5 motion as soon as they received data they had previously requested from certain county

6 officials), (2) if the resolution of the motion for injunctive relief were delayed, that could

7 result in “last-minute changes” before the November election that would be disruptive to

8 voters and election officials, (3) the Secretary’s current ability to make arguments

9 concerning the supposed lack of merit underlying Plaintiffs’ constitutional claims belies

10 her suggestion that she needs additional time to formulate a substantive response to the

11 motion, (4) the Secretary’s claims concerning her limited resources are difficult to

12 reconcile with the fact that she is represented by the 400-attorney Attorney General’s office

13 and also has access to outside counsel, and (5) this case is no different from other voting

14 rights cases involving claims for injunctive relief, and courts typically enforce 14-day

15 response deadlines in those cases. (Id.)

16

DISCUSSION

17

The Secretary’s stay request will be granted in part and denied in part. On the one

18 hand, the Court disagrees with Plaintiffs’ contention that the Secretary should be required

19 to respond to the preliminary injunction motion within 14 days of when it was filed. This

20 is not a typical request for a preliminary injunction, where a plaintiff is seeking to enjoin

21 ongoing conduct that is causing more harm each day. To the contrary, the requested

22 injunction is geared toward the administration of the November 2020 election. Although

23 the Court wholeheartedly agrees with Plaintiffs that their request for injunctive relief needs

24 to be resolved far in advance of November 2020, so that voters and election officials aren’t

25 presented with last-second voting changes, this doesn’t mean that the Secretary needs to

26 file her response by mid-March 2020. There is plenty of time between now and November

27

28

2 On March 5, 2020, the Court issued an order expediting the deadline for Plaintiffs to file a response to the stay motion and temporarily staying the deadline for the Secretary

to respond to the preliminary injunction motion. (Doc. 27.)

- 3 -

Case 2:19-cv-05685-DWL Document 29 Filed 03/13/20 Page 4 of 5

1 2020 to brief the issues in an orderly fashion, hold a hearing, and reach a resolution. Under

2 these circumstances, it would be unfair to allow Plaintiffs to be aware of their theories and

3 claims for years, work with experts over that time span to develop reports, and then dump

4 everything on the Secretary in a blur and demand a response in 14 days.

5

On the other hand, the Court disagrees with the Secretary’s proposal to postpone the

6 briefing on the preliminary injunction request until after her motion to dismiss is filed,

7 briefed, and resolved. Some of the issues she seeks to raise in her yet-to-be-filed dismissal

8 motion are intertwined with the issues raised in Plaintiffs’ motion for preliminary

9 injunction, so there is no need to place the motions on separate tracks. See, e.g., Caspar v.

10 Snyder, 77 F. Supp. 3d 616, 623 (E.D. Mich. 2015) (“The preliminary injunction motion

11 and the motion to dismiss are discussed below in tandem, as they both require inquiry into

12 the viability of Plaintiffs’ claims.”); Incantalupo v. Lawrence Union Free Sch. Dist. No.

13 15, 652 F. Supp. 2d 314, 317 n.1 (E.D.N.Y. 2009) (“The Court is addressing both Plaintiffs’

14 motion for a preliminary injunction and Defendants’ motion to dismiss.”); Wolfson v.

15 Brammer, 2008 WL 4372459, *1 (D. Ariz. 2008) (in election-related dispute, court held

16 consolidated oral argument on motion for preliminary injunction and motion to dismiss).

17 Additionally, the Court has some concern that, if it were to proceed in this fashion, and the

18 Secretary’s motion to dismiss were ultimately denied, this would delay the litigation

19 concerning the preliminary injunction until too close to election day.

20

Accordingly, IT IS ORDERED that:

21

(1) The Secretary’s emergency motion for stay (Doc. 26) is granted in part and

22 denied in part. The briefing schedule for the two motions will be as follows.

23

(2) As for the Secretary’s motion to dismiss the second amended complaint, the

24 motion must be filed by March 20, 2020. (Doc. 24.) Because some of the Secretary’s

25 arguments may pertain to subject matter jurisdiction, Plaintiffs shall have 30 days (i.e.,

26 until April 20, 2020) to file a response. See LRCiv 12.1(b). The Secretary may file a reply

27 within 7 days of receipt of the response.

28

(3) As for Plaintiffs’ pending motion for a preliminary injunction (Doc. 22), the

- 4 -

Case 2:19-cv-05685-DWL Document 29 Filed 03/13/20 Page 5 of 5

1 Secretary shall have until April 20, 2020 to file a response. This is nearly two months after

2 the motion was filed, which should afford the Secretary ample time to formulate a response.

3 Plaintiffs may file a reply within 7 days of receipt of the response.

4

(4) Given the above, both motions should be fully briefed (absent any extension

5 requests by the parties) by April 27, 2020. Although the Court obviously has not yet

6 reviewed the parties’ arguments, and therefore expresses no view on the merit of the

7 parties’ positions, it seems likely that a hearing will be helpful in this case. Thus, the parties

8 are directed to meet and confer to identify three dates on or after May 20, 2020 on which

9 they are available for a full-day evidentiary and motion hearing. The parties shall inform

10 the Court of these possible dates through a joint filing.

11

Dated this 13th day of March, 2020.

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 Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 1 of 17

1 Mark Brnovich Attorney General
2
3 Kara Karlson (029407) Assistant Attorney General
4 Linley Wilson (027040) 5 Deputy Solicitor General
2005 North Central Avenue 6 Phoenix, AZ 85004-1592
Telephone (602) 542-4951 7 Facsimile (602) 542-4385 8 kara.karlson@azag.gov
linley.wilson@azag.gov
9 adminlaw@azag.gov

10

11

Mary R. O’Grady (011434) Emma J. Cone-Roddy (034285)

12

OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100

13

Phoenix, AZ 85012-2793 (602)640-9000

14

mogrady@omlaw.com econe-roddy@omlaw.com

15 Attorneys for Defendant 16 Arizona Secretary of State Katie Hobbs

17

UNITED STATES DISTRICT COURT

18

FOR THE DISTRICT OF ARIZONA

19 Voto Latino, Inc., et al,
20 Plaintiffs,
21 v.
22 Katie Hobbs, in her official capacity as
23 Arizona Secretary of State,

24

Defendant,

Case No: 2:19-cv-05685-PHX-DWL
ARIZONA SECRETARY OF STATE’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT
(Oral Argument Requested)

25

26

27

28

Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 2 of 17

1

INTRODUCTION

2

Arizona is a national leader in making early voting convenient and accessible for

3 its voters. While many states still require voters to provide a reason to vote early or

4 absentee, Arizona has had “no-excuse” early voting since 1992. Compare A.R.S. § 16-

5 541 & 1991 Ariz. Sess. Laws, Ch. 308, § 6, eff. Jan. 1, 1992 with e.g. CONN. GEN. STAT.

6 ANN. § 9-135 (setting strict requirements to vote absentee). “No excuse” early voting

7 means that any Arizona voter can vote early in-person or have their ballot delivered to

8 them up to twenty-seven days before the election, allowing any voter to cast his or her

9 ballot in the comfort of his or her own home. Furthermore, Arizona is one of only a

10 handful of states that has a Permanent Early Voter List (“PEVL”), which is also

11 available to any voter. A.R.S. § 16-544(C). A PEVL voter receives a ballot by mail for

12 each and every election in which he or she is eligible to participate. As Plaintiffs point

13 out, nearly 80% of Arizonans vote by mail. (Doc. 21 at ¶ 1.) They do so not because

14 they are under any coercion by the State as Plaintiffs imply, but because that is simply

15 how voters choose to vote. Early voting gives voters nearly a month to research and

16 consider which candidates, judges, and issues that voter supports and PEVL ensures the

17 voter is automatically sent a ballot for every election.

18

As part of this system that enables Arizona citizens to seamlessly participate in

19 the democratic process—from registering to vote, to learning about candidates1 and

20 ballot issues,2 to voting at a time and place of their choosing—the State needs a deadline

21 by which ballots are received so all ballots can be verified and counted. The State’s

22 deadline is uniform for all voters: every ballot must be “received by the county recorder

23 or other officer in charge of elections or deposited at any polling place in the county no

24 later than 7:00 p.m. on election day.” A.R.S. § 16-548(A) (“Election Day deadline”).
25

26 1 See A.R,S § 16-956(A)(1) (providing information about all candidates a voter is

27

eligible to vote for, mailed to every household with a registered voter before the primary and the general election).

28

2 See A.R.S. § 19-123 (requiring the Secretary to publish a publicity pamphlet describing all initiatives and referenda, and providing additional analysis).

1

Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 3 of 17

1

Arizona’s extensive system that gives voters options regarding when, where and

2 how they can choose to cast their ballot does not satisfy Plaintiffs. They argue that the

3 Election Day deadline for early ballots is unconstitutional and ask this Court to impose a

4 new system that would require ballots to be postmarked by Election Day and received by

5 election officials within five days of the election. (Doc. 21 at 24.) While their proposal

6 may be a policy option the Legislature could consider, they have no basis for asserting

7 that the existing Election Day deadline is unconstitutional. Plaintiffs’ claims should be

8 dismissed.

9

First, Plaintiffs Voto Latino, Inc. and Priorities USA lack standing to pursue these

10 claims. These Plaintiffs are not membership organizations, and they cannot identify a

11 particularized grievance that action by this Court can remedy. These Plaintiffs should be

12 dismissed from the lawsuit. Finally, Plaintiffs’ claim that Arizona’s Election Day

13 deadline violates anyone’s constitutional rights fails as a matter of law.

14

BACKGROUND

15

The Secretary of State is a constitutional officer whose duties are prescribed by

16 statute. ARIZ. CONST. art. V, § 9. None of the statutes prescribing the Secretary’s duties
17 concern receiving and counting ballots. Rather, those responsibilities are assigned to
18 county election officials. See A.R.S. § 16-548(A).
19 Arizona also allows generous alternatives to voting in-person on Election Day.
20 An Arizonan may vote early, in-person or by mail, up to twenty-seven days before the
21 election. A.R.S. §§ 16-541, -542(A), (C). Arizona voters may even “choose to
22 automatically receive a mail ballot for every election.” (Doc. 21 at ¶ 24 (citing A.R.S. §
23 16-544(A)). It costs nothing for a voter to return the ballot by mail; that cost is borne by
24 the counties. A.R.S. § 16-542(C) (requiring early ballots to be mailed with an “envelope
25 for its return postage prepaid to the address provided by the requesting elector”). All
26 ballots must be in the hands of the county recorder or other officer in charge of elections
27 by the time that polls close on Election Day, see A.R.S. § 16-548(A), and all early
28

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Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 4 of 17

1 ballots must be accompanied by instructions that inform voters of the Election Day

2 deadline, see A.R.S. § 16-547(C). Specifically, the printed instructions to early voters

3 must include the following statement: “In order to be valid and counted, the ballot and

4 affidavit must be delivered to the office of the county recorder or other officer in charge

5 of elections or may be deposited at any polling place in the county no later than 7:00

6 p.m. on election day.” A.R.S. § 16–547(C). This has been the law since 1997. See 1997

7 Ariz. Legis. Serv. 2nd Sp. Sess. Ch. 5 (S.B. 1003).

8

Plaintiffs’ allegations document the success of early voting in Arizona. They

9 allege that in 2008, “at least” 1,611 early ballots were rejected as untimely, and in 2018,

10 “more than 3,000 ballots were rejected” for this same reason. (Doc. 21 at ¶ 2.) Of the

11 more than one million early ballots cast in 2008 (id. at ¶ 23), only approximately 0.16%

12 were untimely, and the other 99.84% arrived by Election Day in time to be counted.

13 Plaintiffs allege that in 2018, more than 1.9 million voters voted by mail (id.) which

14 means that according to Plaintiffs’ allegations, just 0.13% of all the early ballots cast in

15 that election were rejected as untimely. The other 99.87% arrived by Election Day.

16

Plaintiffs’ allegations do not support a claim that Arizona’s Election Day deadline

17 violates the federal Constitution.

18

ARGUMENT

19

I. ORGANIZATIONAL PLAINTIFFS LACK STANDING TO

20

CHALLENGE THE ELECTION DAY DEADLINE

21

“Standing is a ‘jurisdictional issue[] deriving from the requirement of a case or

22 controversy under Article III.” Doe No. 1 v. Reed, 697 F.3d 1235, 1238 (9th Cir. 2012)

23 (citations omitted). The standing doctrine ensures courts apply the judicial power only

24 to cases and controversies with adversarial parties and a developed record, rather than

25 issue advisory opinions. See U.S. Const. art. III, § 2, cl. 1. Federal courts must dismiss a

26 case that does not satisfy Article III standing requirements for lack of subject matter

27 jurisdiction, because “[n]o principle is more fundamental to the judiciary’s proper role in

28

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Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 5 of 17

1 our system of government than the constitutional limitation of federal-court jurisdiction

2 to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341

3 (2006) (citation and internal quotation marks omitted). Facts sufficient to sustain

4 standing “are not mere pleading requirements but rather an indispensable part of the

5 plaintiff’s case” and must be proved “as any other matter on which the plaintiff bears the

6 burden of proof.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

7

To establish standing for federal injunctive relief, a plaintiff must demonstrate

8 that it:

9

is under threat of suffering ‘injury in fact’ that is concrete and

10

particularized; the threat must be actual and imminent, not conjectural

or hypothetical; it must be fairly traceable to the challenged action of

11

the defendant; and it must be likely that a favorable judicial decision

will prevent or redress the injury. 12

13 Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009); see also Wright v. Riveland,

14 219 F.3d 905, 914 (9th Cir. 2000). Generally, a party must pursue claims to vindicate

15 their own rights. Baker v. Carr, 369 U.S. 186, 207 (1962). “Thus, when the plaintiff is

16 not himself the object of the government action or inaction he challenges, standing is not

17 precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Lujan, 504 U.S.

18 at 562.

19

Two of the Plaintiffs in this lawsuit are non-profit organizations, Voto Latino and

20 Priorities USA (“Organizational Plaintiffs”). These Plaintiffs claim to engage in

21 “statewide voter registration initiatives,” “voter education and get-out-the-vote

22 campaigns” (Doc. 21 at ¶ 17), and to “educate, mobilize, and turn out voters across the

23 country” (id. at ¶ 18). Organizational Plaintiffs must satisfy standing through their

24 organization’s activities, and they unequivocally fail the tests for a cognizable injury on

25 any theory.

26

Associational standing is a narrow exception to the rule that litigants must

27 vindicate their own rights and not the rights of others. Black Faculty Ass’n of Mesa Coll.

28

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Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 6 of 17

1 v. San Diego Cmty. Coll. Dist., 664 F.2d 1153, 1156 (9th Cir. 1981). To obtain relief,

2 the association must show “that one or more of its members are injured.” Warth v.

3 Seldin, 422 U.S. 490, 515 (1975). Associational standing is recognized when an

4 organization’s members would otherwise have standing on their own, the “interests [the

5 organization] seeks to protect [by the suit] are germane to the organization’s purpose,”

6 and neither the claim raised nor relief requested requires individuals to participate. Hunt

7 v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).

8

Organizational Plaintiffs do not claim to be membership organizations. (See Doc.

9 21 at ¶¶ 17–18.) This is fatal to any associational standing theory. See Hunt, 432 at 344-

10 45.

11

The Organizational Plaintiffs may demonstrate an injury on an organizational

12 standing if either organization can show: “(1) frustration of its organizational mission;

13 and (2) diversion of its resources” to mitigate the effects of the law challenged. Smith v.
14 Pac. Props. and Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004). But these Plaintiffs
15 cannot “manufacture the injury by . . . choosing to spend money fixing a problem that
16 otherwise would not affect the organization at all. It must instead show that it would
17 have suffered some other injury if it had not diverted resources to counteracting the
18 problem.” La Asociacion de Trabajadores de Lake Forest v. Lake Forest, 624 F.3d
19 1083, 1088 (9th Cir. 2010).
20 Organizational Plaintiffs claim to have been injured because they expect to spend
21 “thousands of dollars to educate, mobilize, and turn out voter in Arizona elections.”
22 (Doc. 21 at ¶ 18.) But these are general operating expenses that Plaintiffs, organizations
23 whose mission includes educating and “turn[ing] out” voters, will always incur. (Id. at
24 ¶¶ 17-18.) Assuming for a moment that these Plaintiffs did obtain the relief they seek—
25 an order that some ballots received after polls closed should be counted—they have not
26 alleged how their current day-to-day activities would be any different. Unlike the non-
27 profit in Havens, which would suffer direct and cognizable harm if its clients were
28

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1 “steered” away from appropriate housing, Havens Realty Corp. v. Coleman, 455 U.S.

2 363, 379 (1982), Plaintiffs in this case will still spend some amount of resources

3 educating voters how to successfully complete their ballot and cast a valid vote, whether

4 or not Arizona’s law is enjoined.

5

Indeed, Plaintiffs allege that voter education is core to their missions (Doc. 21 at

6 ¶¶ 17-18); therefore, it cannot be a diversion of resources to continue engaging in that

7 effort. See Shelby Advocates for Valid Elections v. Hargett, 947 F.3d 977, 982 (6th Cir.

8 Jan. 24, 2020) (finding no organizational standing where the alleged harm “pleads only

9 backward-looking costs” and the “alleged diversionary actions” did not “divert resources

10 from its mission” because these actions constituted “its mission”); ACORN v. Fowler,

11 178 F.3d 350, 359 (5th Cir. 1999) (expenditures must be “caused by an[] action by” the

12 defendant that the organization “claims is illegal, as opposed to part of the normal, day-

13 to-day operations of the group” to confer standing). If Plaintiffs have standing to enjoin

14 the law requiring early ballots to be received by Election Day, they would have standing

15 to challenge any election procedure. Plaintiffs’ complaint is the quintessential “abstract

16 social interest[]” that traditional principles of standing carve out of consideration by the

17 federal judiciary. Havens Realty Corp., 455 U.S. at 379. The Organizational Plaintiffs

18 cannot articulate a coherent theory which gives them standing to challenge Arizona law.

19 They have no cognizable injury. Voto Latino and Priorities USA should be dismissed

20 from the case.

21 II. PLAINTIFFS FAIL TO STATE A CLAIM UPON WHICH RELIEF

22

CAN BE GRANTED

23

Plaintiffs have utterly failed to state a legitimate constitutional claim against the

24 Election Day deadline. Courts considering a challenge to state election laws employ a

25 flexible test: balancing the injury to the plaintiffs against the state interests justifying the

26 rule. Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S.

27 780, 789 (1983). This test applies whether a claim is raised as a First or Fourteenth

28

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1 Amendment or Due Process claim. Dudum v. Arntz, 640 F.3d 1098, 1106 n.15 (9th Cir.

2 2011). Accordingly, Plaintiffs’ claims in both Counts I and II are subject to the

3 Anderson/Burdick test. Id. Thus, the same balancing test applies: where minimal

4 burdens are at issue, “a State’s important regulatory interests will usually be enough to

5 justify reasonable, nondiscriminatory restrictions.” Timmons v. Twin Cities Area New

6 Party, 520 U.S. 351, 358 (1997) (citations omitted).

7

As discussed below, Plaintiffs’ Second Amended Complaint fails to raise any

8 constitutional issue that survives a motion to dismiss. Assuming Plaintiffs’ factual

9 allegations are true, Arizona’s requirement that ballots be received by election officials

10 by the time the polls close on Election Day is not an undue burden on any person’s right

11 to vote. Any minimal burden is justified by the State’s legitimate interests related to

12 election administration. Because Plaintiffs have failed to state a claim upon which relief

13 can be granted, their Complaint should be dismissed.

14

A. The Election Day Deadline Does Not Violate the Federal

15

Constitution

16

“Ironically, it is [the State’s] willingness to go further than many States in

17 extending the absentee voting privileges so as to include even those attending to election

18 duties that has provided appellants with a basis for arguing that the provisions operate in

19 an invidiously discriminatory fashion to deny them a more convenient method of

20 exercising the franchise.” McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S.

21 802, 810-11 (1969). It is true that “once the States grant the franchise, they must not do

22 so in a discriminatory manner.” Id. at 807 (citing Carrington v. Rash, 380 U.S. 89

23 (1965)). But a plaintiff may not state a claim under Anderson/Burdick by merely

24 alleging that a given state statute or practice violates the right to vote. Short v. Brown,

25 893 F.3d 671, 677-79 (9th Cir 2018) (finding that slight burdens on the right to vote

26 withstand review based on a state’s general interest). The constitution is not a “one-way

27

28

7

Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 9 of 17

1 ratchet,” such that once the state confers a privilege, it must always then further relax

2 that policy. Ohio Democratic Party v. Husted, 834 F.3d 620, 635 (6th Cir. 2016).

3

Absent an actual burden, a law “merit[s] no special scrutiny.” Short, 893 F.3d at

4 679. A facially neutral and otherwise constitutional deadline is not transformed into an

5 unconstitutional burden by the fact that a small number of voters return early ballots

6 after Election Day. This cannot be the rule, or there would be no cogent reason that

7 Plaintiffs’ suggested deadline would not also be unconstitutional. More pointedly,

8 “absent any burden [on the right to vote], there is no reason to call on the State to justify

9 its practice.” Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 732 n.12 (9th Cir. 2015).

10 Early voting is a convenience for voters long-authorized by Arizona law. There is

11 nothing unconstitutional about requiring all ballots—early and otherwise—to be returned

12 by the time polls close on Election Day.

13

B. A Twenty-Seven Day Early Voting Period that Includes a

14

Requirement for Ballots to be Received by the Close of the Polls

Is Not an Undue Burden on the Right to Vote

15

As noted, Plaintiffs’ claims are governed by the Anderson/Burdick test. Under 16

17 that test, courts have “repeatedly upheld as ‘not severe’ restrictions that are generally

18 applicable, evenhanded, politically neutral, and protect the reliability and integrity of the

19 election process.” Pub Integrity Alliance v. City of Tucson, 836 F.3d 1019, 1024 (9th

20 Cir. 2016) (citation omitted). Obtaining a valid identification, Crawford v. Marion Cnty.

21 Election Bd., 553 U.S. 181, 198 (2008), creating shorter voter registration deadlines,

22 Ohio Democratic Party, 834 F.3d at 626-31, and establishing rules regarding what

23 equipment could be utilized by voters to cast a ballot, Weber v. Shelley, 347 F.3d 1101,

24 1106-07 (9th Cir. 2003), have been found to impose minimal burdens. It follows then

25 that a rule requiring a ballot to be returned by Election Day––which the voter received in

26 advance and can return at his or her own option––is, at most, “minimal.” See Timmons,

27 520 U.S. at 358 (where minimal burdens are at issue, “a State’s important regulatory

28

8

Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 10 of 17

1 interests will usually be enough to justify reasonable, nondiscriminatory restrictions”);

2 see also Friedman v. Snipes, 345 F. Supp. 2d 1356, 1377 (S.D. Fla. 2004) (holding that

3 the requirement that ballots be received by 7:00 p.m. on Election Day presents only a

4 “light imposition” on plaintiffs’ right to vote and is justified by the State’s interest to

5 ensure a fair and honest election and to count votes within a reasonable time).

6

Indeed, at least seventeen other states have adopted similar deadlines that clearly

7 and reasonably require absentee ballots to be received by Election Day. See, e.g., ARK.

8 CODE ANN. § 7–5–411(a)(1)(A) (ballot must be received “not later than 7:30 p.m. on

9 election day”); COLO. REV. STAT. ANN. § 1–7.5–107 (C)(II) (ballots “must be in the

10 hands of the county clerk and recorder or designated election official no later than 7 p.m.

11 on the day of the election”); 15 DEL. CODE ANN. tit. 15, § 5508(b) (“For an absentee
12 ballot to be counted” the ballot must be returned “before the polls close on the day of the
13 election”); HAW. REV. STAT. § 11–104(c)(1) (ballot must be “received at the office of the
14 clerk no later than the closing time [] on the date of the election”); IDAHO CODE ANN. §
15 34–1005 (“an absentee ballot must be received by the issuing officer by 8:00 p.m. on the
16 day of the election before such ballot may be counted”); KY. REV. STAT. ANN. §
17 117.086(1) (“In order to be counted, the ballots shall be received by the clerk by at least
18 the time established by the election laws generally for the closing of the polls, which 19
time shall not include the extra hour during which those voters may vote who were 20
waiting in line to vote at the scheduled poll closing time”); ME. REV. STAT. ANN. tit. 2121
A § 755 (“In order to be valid, an absentee ballot must be delivered to the municipal 22
clerk at any time before the polls are closed.”); MICH. COMP. LAWS ANN. § 168.764a 23
(“The ballot must reach the clerk or an authorized assistant of the clerk before the close 24
of the polls on election day.”); N.H. REV. STAT. ANN. § 659:47 (“No absentee ballot 25
shall be processed or counted unless it is delivered to the moderator at the proper polling 26
place prior to the closing of the polls.”); N.J. STAT. ANN. § 19: 62–10 (“For a ballot to be 27
counted, it shall be received by the county board of elections no later than the time 28

9

Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 11 of 17

1 established for the closing of the polls for that election”); N.M. STAT. ANN. § 1–6–10(C)

2 (mailed ballots “shall be accepted until 7:00 p.m. on election day”); N.D. CENT. CODE

3 ANN. § 16.1–07–05(2) (“The absentee ballot must be returned to the county auditor’s

4 office by four p.m. on the day of the election.”); OR. REV. STAT. ANN. § 253.070 (“A

5 ballot from an absent elector must be received by a county clerk not later than 8 p.m. of

6 the day of the election.”); S.D. CODIFIED LAWS § 12–19–12 (“If an absentee ballot is

7 delivered to a polling place after the polls are closed, the absentee ballot may not be

8 counted or opened.”); VA. CODE ANN. § 24.2–709(A) (“Absentee ballots shall be

9 returned to the general registrar before the closing of the polls.”); WIS. STAT. ANN.

10 6.87(6) (“The ballot shall be returned so it is delivered to the polling place no later than 8

11 p.m. on election day.”); WYO. STAT. ANN. § 22–9–118 (“Absentee ballots returned to the

12 county clerk not later than 7:00 p.m. on election day shall be counted.”).

13

Plaintiffs complain that “[w]ithout clear guidance from election officials,”

14 Arizona voters cannot be sure when to submit their ballot. (Doc. 21 at ¶ 35.) But the

15 fact that all ballots must be received by elections officials by Election Day is not secret;

16 as noted above, state law requires that every early ballot issued include printed
17 instructions notifying voters that ballots must be delivered to the officer in charge of
18 elections by 7:00 p.m. on Election Day. A.R.S. § 16-547(C). Election officials provide
19 these written instructions on the ballots in multiple languages as necessary to comply
20 with federal law. 52 U.S.C. §10503. And in practice, as Plaintiffs acknowledge,
21 election officials also communicate to voters through websites and the media that
22 Arizonans need to mail their ballots in time to arrive by Election Day. (Doc. 21 at ¶¶
23 33–34.)
24 The fact that the precise date by which a person needs to drop a ballot in the mail
25 so election officials receive it by Election Day may be imprecise does not make the
26 Election Day deadline an undue burden. Voters concerned about the timing have a
27 number of options. They can vote early in person until 5:00pm on the Friday before the
28

10

Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 12 of 17

1 election, or at an emergency voting center up until 5:00pm the Monday before the

2 election. A.R.S. § 16-542(E), (H). They can drop their early ballot off at the county

3 recorder’s office, any official ballot drop-off location, or any early voting location in

4 their county. If they waited until Election Day, they can drop their ballot off at any

5 polling place or vote center in their county. A.R.S. § 16-548(A). They can also choose

6 to cast a ballot at a voting location on Election Day by stating that they have not and will

7 not vote the early ballot or by surrendering their early ballot at the voting location.

8 A.R.S. § 16-579(B). And they can mail their ballot well in advance of Election Day if

9 they prefer to vote by mail but are concerned about the Election Day deadline. Voters

10 have multiple options to make sure their vote is timely.

11

Plaintiffs complain that voting early resulted in “tens of thousands of votes” cast

12 for Marco Rubio in the 2016 presidential preference election, even though he dropped

13 out of the race shortly before the election. (Doc. 21 at ¶ 40.) If voters want to wait until

14 Election Day to see what happens until the campaign ends, they can do so, but Arizona

15 law gives them the option of voting earlier if they choose to do so. That choice,

16 however, is not a burden on the voter.

17

Plaintiffs also complain that mail delivery can be unpredictable, increasing the

18 risk of ballots missing the Election Day deadline. (Id. at ¶ 38.) This claim essentially
19 admits that the different instructions previously provided by county election officials
20 may very well be a direct response to the mail service in their locale Again, voters have
21 choices, and they can weigh factors such as the unpredictability of mail delivery when
22 deciding how and when to cast their ballot. For any mailed ballot, there needs to be a
23 deadline for receipt4 and somebody may miss it, just as someone may arrive to the polls 24
too late on Election Day to cast a ballot. 25

26

27 4 Even Plaintiffs admit that the State has “a legitimate regulatory interest in a general

28

cutoff for receiving ballots” (Doc. 21 at ¶ 65); they simply disagree that the appropriate deadline to receive ballots should be Election Day.

11

Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 13 of 17

1

The State’s interests in the deadline far outweigh the minimal burdens that

2 Plaintiffs allege. A clear deadline is an essential part of a system that permits voters to

3 mail in their ballots. The Election Day deadline is an unambiguous requirement that

4 election officials receive ballots by the time the polls close. This prevents voter

5 confusion and permits voters to make informed decisions about when and how to cast

6 their ballots. The deadline ensures county officials have a known universe of ballots to

7 process before the canvass. It also provides confidence to the voting public that post-

8 Election Day votes are not changing the outcome in tight races. Plaintiffs do not dispute

9 that a deadline is necessary, and a deadline that works for more than 99% of early voters

10 easily satisfies any possible constitutional standard. Arizona’s unambiguous, objective

11 deadline is the model of a “reasonable, nondiscriminatory restriction[]” that the Timmons

12 court found was usually sufficient to satisfy the State’s burden. The State’s interests in

13 orderly election administration, Nader v. Brewer, 531 F.3d 1028, 1040 (9th Cir. 2008),

14 easily supports Arizona’s law that all ballots must be received by the time the polls close

15 on Election Day.

16

Ultimately, Plaintiffs’ arguments do not present constitutional concerns. The

17 burdens “arising from life’s vagaries . . . are neither so serious nor so frequent as to raise

18 any question about the constitutionality” of requiring ballots to be returned by Election

19 Day. Crawford, 553 U.S. at 197. Likewise, Plaintiffs’ preference for a “postmark rule”

20 (id. at ¶¶ 37-39) does not demonstrate that Arizona’s Election Day deadline is an undue

21 burden on the right to vote. Accordingly, Count I should be dismissed.

22 C. Requiring Voters to Return All Ballots to Elections Officials by

23

Election Day Does Not Implicate Procedural Due Process

24

In Count II, Plaintiffs argue the Election Day deadline rises to a denial of

25 procedural due process because, “[h]aving induced its voters to vote by mail, Arizona

26 must establish adequate procedures to ensure that voters have a reliable, fair, and

27 effective method to cast their ballots.” (Doc. 21 at ¶¶ 67-76, quoting Fla. State

28

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Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 14 of 17

1 Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) and

2 Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F.Supp 1354, 1358 (D. Ariz.

3 1990).)5 Like the First and Fourteenth Amendment claims, this claim is also analyzed

4 under the Anderson/Burdick standard. Dudum, 640 F.3d at 1106, n. 15. Thus, the same

5 balancing test applies: where minimal burdens are at issue, “a State’s important

6 regulatory interests will usually be enough to justify reasonable, nondiscriminatory

7 restrictions.” Timmons, 520 U.S. at 358 (citations and internal quotation marks omitted).

8 Plaintiffs’ allegations and the governing statutes flatly refute those claims.

9

As discussed above, Arizona’s single, objective deadline created by A.R.S. § 16-

10 548(A) is the model of a “reasonable, nondiscriminatory restriction[]” that the Timmons

11 court found was usually sufficient to satisfy the State’s burden. In tension with their

12 allegation that voters lack guidance on when to mail their ballot to make sure it arrives

13 by Election Day, Plaintiffs allege that voters are deprived of being able to “cast a
14 meaningful and informed vote” because voters who choose to mail their ballot are
15 encouraged to do so a “full week (or more) before Election Day.” (Id. at ¶ 72.) In any
16 event, as explained above, mailing a ballot is only one of many options available to
17 voters. All Arizona voters are afforded the same opportunity to cast their “meaningful 18 and informed vote” up until 7:00 p.m. on Election Day. It is entirely up to the voter to 19
decide when and how it is done. 20
County elections officials are duty-bound to faithfully count any valid ballot, 21
however cast, so long as it complies with Arizona law. The state’s interest in ensuring 22
orderly election administration easily supports Arizona’s law that all ballots must be 23
received by the time the polls close on Election Day. Nader, 531 F.3d at 1040. Arizona 24

25 5 Plaintiffs quote Fla. State Conference of N.A.A.C.P. for the proposition that “[w]hen an

26

election process ‘reache[s] the point of patent and fundamental unfairness,’ there is a due process violation.” (Doc. 21 at ¶ 70.) But Plaintiffs omit that this quotation is not from

27

the opinion of the court, but from one judge’s dissent. See Fla. State Conference of N.A.A.C.P., 522 F.3d at 1183 (Barkett, J., concurring in part, dissenting in part). The

28

issue in that case concerned a voter registration verification process, and nothing in the opinion (even the dissent) supports Plaintiffs’ claim here.

13

Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 15 of 17

1 has provided more than adequate process to ensure that voters’ ballots are fairly

2 considered and, if eligible, counted. Plaintiffs’ contention (Doc. 21 at ¶ 73) that

3 Arizona’s Election Day deadline is not a “reliable” or “fair way to administer voting by

4 mail” must be rejected, given that Arizona law requires that every early ballot issued

5 include printed instructions notifying voters that ballots must be delivered to the officer

6 in charge of elections by 7:00 p.m. on Election Day. A.R.S. § 16-547(C).

7

In sum, while Plaintiffs plainly prefer a “postmark rule” that requires that ballots

8 be postmarked by Election Day rather than received by Election Day, this is not the

9 forum for that policy debate. The issue for this Court is whether Plaintiffs have stated a

10 claim that provides a basis for concluding Arizona’s current law is unconstitutional.

11 They have not done so, and their lawsuit should be dismissed.

12

CONCLUSION

13

The burden here is minimal to nonexistent. An Arizona voter, who chooses to

14 receive a ballot through the mail and has up to twenty-seven days to determine when and

15 how to return it, may not then complain that he or she had to return the ballot by Election

16 Day and undermine orderly election administration and integrity of the election process.

17 Plaintiffs’ Second Amended Complaint should be dismissed in its entirety.

18

RESPECTFULLY SUBMITTED this 20th day of March, 2020.

19

Mark Brnovich

20

Attorney General

21

/s/ Kara M. Karlson

22

Kara M. Karlson Assistant Attorneys General

23

Attorney for Defendant Secretary of State Katie Hobbs

24

25

26

27

28

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Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 16 of 17

1

L.R.CIV. 12.1(c) CERTIFICATION

2

As required by Local Rule 12.1(c), undersigned counsel certifies that before filing

3 this motion, counsel for the Secretary of State discussed the issues asserted in this

4 motion with Plaintiffs’ counsel, and the parties were unable to agree that Plaintiffs’

5 Amended Complaint was curable in any part by a permissible amendment.

6

7

8

/s/ Kara M. Karlson_____

Kara M. Karlson 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 2:19-cv-05685-DWL Document 30 Filed 03/20/20 Page 17 of 17

1 CERTIFICATE OF SERVICE
2
3 The foregoing was e-filed with the Clerk of the Federal Court for the District of Arizona using the CM/ECF System on March 20, 2020.
4

5

6 Sarah R. Gonski (# 032567) Alexis E. Danneman (#030478)
7 PERKINS COIE LLP

8

2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788

9 Telephone: 602.351.8000

Facsimile: 602.648.7000 10 SGonski@perkinscoie.com

11 Marc E. Elais

12 John Devaney

Amanda R. Callais 13 K’Shaani O. Smith

14 Christina A. Ford PERKINS COIE LLP

15 700 Thirteenth Street NW, Suite 600

Washington, D.C. 20005-3960 16 melias@perkinscoie.com

17

jdevaney@perkinscoie.com acallais@perkinscoie.com

18 kshaanismith@perkinscoie.com christinaford@perkinscoie.com

19

20

21

22

23

24

25

26

27

28

16

 
 Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 1 of 15

1 Sarah R. Gonski (Bar. No. 032567) Alexis E. Danneman (Bar. No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk*
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 800 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 Attorneys for Plaintiffs
17

18

UNITED STATES DISTRICT COURT

19

DISTRICT OF ARIZONA

20 Voto Latino Foundation, Priorities USA, and
21 Shelby Aguallo,

No. 2:19-cv-05685-DWL

22

Plaintiffs,

23

v.

24 Katie Hobbs, in her official capacity as 25 Arizona Secretary of State,

26

Defendant.

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES RELATED TO COVID-19 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

27

28

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 2 of 15

1

Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Voto Latino Foundation,

2 Priorities USA, and Shelby Aguallo, submitted a Memorandum of Law in Support of their

3 Motion for a Preliminary Injunction on February 25, 2020. In the six weeks since that filing,

4 the COVID-19 crisis has drastically changed how Arizona will be able to conduct elections

5 moving forward. Plaintiffs submit this Supplemental Memorandum of Law not to repeat

6 their original arguments, but to provide the Court with facts and analysis demonstrating

7 how the COVID-19 crisis impacts this case and Arizona’s ability to conduct elections in a

8 constitutionally permissible manner. Indeed, as mail balloting grows in Arizona and the

9 potential for postal delays increases due to COVID-19, it is all the more important that

10 Arizona allow mail ballots that are mailed by the voter on or before Election Day to be

11 counted to ensure that thousands of voters are not disenfranchised.

12

I. INTRODUCTION

13

The United States is in the throes of an unprecedented crisis. A highly infectious

14 coronavirus, which causes the dangerous and often deadly disease COVID-19, is rapidly

15 spreading throughout the country. As of the date of this filing, Arizona has over 3,000

16 reported cases of COVID-19, a number that is rapidly increasing. This crisis has no clear

17 end in sight. The latest projections indicate that it will persist into the fall and that social

18 distancing may be required for the next 18 months, until a vaccine is developed and

19 distributed. See Ex. 3 (projection from federal government); Ex. 4 (projection from

20 scientists).

21

Because of this crisis, Arizona has already been forced to make significant changes

22 to its primary elections, including closing a substantial number of in-person voting locations

23 in the recent presidential preference election (“PPE”). Moving forward, Defendant

24 Secretary of State Hobbs (the “Secretary”) has asked the Arizona State Legislature to

25 convert the 2020 Primary and General Elections to all-mail elections to protect Arizonans’

26 health and ensure that voters are not required to choose between exercising their

27 fundamental right to vote and contributing to the spread of the virus⸺a change many other

28 states have already made for upcoming elections. Nationally, due to social distancing

1

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 3 of 15

1 practices, the country has already seen voluntary shifts toward voting by mail that are likely

2 to replicate themselves in Arizona. In fact, Arizona saw a marked increase in voting by mail

3 during the March 17, 2020 PPE, which took place during the early stages of the crisis, with

4 90 percent of ballots being cast by mail.

5

At the same time, the United States Postal Service (USPS) is facing a budget crisis

6 that will likely lead to delays in mail delivery, raising particular concerns for Arizona which

7 already experiences slow and unreliable mail service and, as a result, has had to ask voters

8 to mail their ballots up to 10 days before Election Day even before COVID-19. Together,

9 these circumstances guarantee that as the COVID-19 crisis continues, Arizona voters will

10 find it increasingly difficult to ensure that their ballots arrive before 7:00 p.m. on Election

11 Day (the “Election Day Receipt Deadline”). Arizona cannot continue to reject mail ballots

12 that are mailed on or before Election Day but received after the Election Day Receipt

13 Deadline without disenfranchising a significant number of its voters.

14

Federal courts have an ongoing duty, especially in times such as these, to ensure that

15 voters can exercise their fundamental right to vote. Just last week, the U.S. Supreme Court

16 allowed a district court’s extension of Wisconsin’s Election Day Receipt Deadline to stand

17 provided that ballots were postmarked by Election Day to ensure that Wisconsin voters

18 were not disenfranchised by the Election Day Receipt Deadline. See Republican Nat’l

19 Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702 (U.S. Apr. 6, 2020).

20 This Court should do the same and protect the rights of Arizona voters in the upcoming

21 November 2020 Election by preliminarily enjoining the Election Day Receipt Deadline and

22 ensuring that all eligible Arizona voters who cast their ballot on or before Election Day have

23 their votes counted.

24

II. BACKGROUND

25

Arizona has not been spared from the COVID-19 crisis. Today, the State has over

26 3,000 reported cases and counting. See Ex. 2. On March 11, 2020, Governor Ducey declared

27 a state of emergency, recognizing that COVID-19 “poses a serious public health threat for

28 infectious disease to spread to Arizona residents and visitors if proper precautions

2

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 4 of 15

1 recommended by public health are not followed.” Ex. 5. Since that emergency declaration,

2 Governor Ducey has activated the Arizona National Guard to protect the food supply,

3 closed schools for the remainder of the school year, suspended the requirement to renew a

4 drivers’ license in-person at statewide government agencies, and most recently issued a

5 Stay-At-Home Order. See Ex. 6; Ex. 7; Ex. 8. In addition, the Navajo Nation, with an

6 Arizona population of more than 100,000, has issued a shelter-in-place order and curfew

7 for all residents. See Ex. 9; Ex. 10.

8

This crisis is not something that will be resolved “in a day or a week,” Ex. 11, but

9 now is expected to last many months and likely well into 2020 General Election cycle. The

10 federal government has announced that it is preparing for the COVID-19 crisis to last 18

11 months, and has warned that the pandemic could come in “multiple waves.” Ex. 3. Recently,

12 the White House’s coronavirus advisor and the Director of the National Institute of Allergy

13 and Infectious Diseases, Dr. Anthony Fauci, was asked at a White House press conference

14 whether the United States was “prepared for [coronavirus] to strike again, say, in the fall?”

15 Ex. 12. Dr. Fauci responded that, “[i]n fact I would anticipate that that would actually

16 happen because of the degree of transmissibility.” Id. Similarly, the Director of the National

17 Center for Immunization and Respiratory Diseases at the CDC, Dr. Nancy Messionnier,

18 said in March 2020 that she expected the virus to continue spreading in the United States

19 until next year. See Ex. 13. These sentiments are also shared by scientists outside the United

20 States government. The COVID-19 Response Team at the Imperial College of London has

21 estimated that social distancing and other preventative measures will be required until a

22 vaccine is developed and distributed widely, which they predict could take “18 months or

23 more.” Ex. 4. Even if the community spread of COVID-19 in Arizona has significantly

24 decreased by this upcoming election season, CDC guidelines recommend that individuals

25 take meaningful social distancing measures even if there is a “minimal” threat of

26 community transmission of COVID-19 in the area. Ex. 14. This guidance is necessitated by

27 the reality that asymptomatic carriers appear to be contributing significantly to community

28 spread, and until there is a vaccine or widespread “herd immunity” (i.e., at least 60% of the

3

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 5 of 15

1 population has been infected and recovered), Americans will remain at serious risk of

2 contracting this unpredictable and deadly virus. See Ex. 15.

3

The Secretary, recognizing the likelihood that this crisis will last months and affect

4 the 2020 Primary and General Elections, has asked the Legislature to implement legal

5 changes to Arizona’s election laws in anticipation of that eventuality. See Ex. 16. Secretary

6 Hobbs is right to seek changes. The CDC, anticipating difficulties in conducting elections

7 during the COVID-19 crisis, has now recommended that jurisdictions encourage voting by

8 mail and reduce methods of voting that lead to direct contact with other voters or poll

9 workers. See Ex. 17. Other federal, state, and local officials have increasingly come to the

10 same realization. Congress, for example, recently authorized $400 million to help states

11 transition to voting-by-mail. See Ex. 18.

12

To date, at least fifteen states and Puerto Rico have been forced to postpone their

13 primary elections to avoid public health risks posed by the virus. See Ex. 19. States that

14 have not postponed their elections and attempted to conduct in-person voting have seen

15 utter chaos result. In Wisconsin, for example, Milwaukee was forced to reduce its polling

16 locations from 180 to just five locations because of a severe shortage of poll workers,

17 leading to several hour-long lines at the polls and forcing voters to decide whether to risk

18 their health to cast their ballot. See Ex. 20. The inherent challenges to voting in-person

19 during this pandemic led voters in Wisconsin to request absentee ballots at unprecedented

20 rates. See Ex. 21 (showing more than a million voters requested absentee ballots for the

21 recent primary, four times the number who did so in the 2016 General Election). This

22 increased interest in voting by mail, combined with decreases in available elections staff

23 and other social distancing efforts, placed a significant strain on local election boards,

24 several of which were not able to send voters a ballot in time for it to be returned—or even

25 delivered to them—by the normal Wisconsin Election Day Receipt Deadline. See

26 Democratic National Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 WL 1638374, at

27 *38-39 (W.D. Wis. Apr. 2, 2020). This crisis ultimately necessitated federal litigation that

28 reached the U.S. Supreme Court and resulted in the implementation of a postmark rule,

4

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 6 of 15

1 whereby ballots postmarked by Election Day could be counted as long as they are received

2 within six days of Election Day. See Republican Nat’l Comm., 2020 WL 1672702, at *2.

3

Like Wisconsin, Arizona did not postpone its March 17, 2020 PPE, and counties’

4 election operations were acutely affected by the crisis, despite the fact that the crisis was

5 just beginning in Arizona. For example, while Yuma, Navajo, and Gila Counties managed

6 to keep polling locations open, election officials pleaded with voters to maintain distance

7 from other voters or election workers and to sanitize their hands before and after dropping

8 off or casting a ballot. See Ex. 22. Coconino County, seeking to assuage its residents’ fears

9 of venturing out in public, provided services that would allow voters to drop off a ballot

10 without ever leaving their vehicle. See Ex. 23. Pinal County was forced to relocate polling

11 locations because of facility closures due to the virus. See Ex. 24. Maricopa County,

12 Arizona’s most populous voting jurisdiction, sought to send mail ballots to all its voters to

13 encourage them to vote by mail out of concern that it would not have enough poll workers

14 to staff polling locations because of COVID-19. See Ex. 25. That prediction was accurate.

15 Maricopa was eventually forced to close nearly 80 polling locations just days before the

16 election “after churches, nursing homes and others said they no-longer felt comfortable

17 welcoming voters to cast ballots, some poll workers backed out and the county ran short on

18 disinfecting supplies.” Ex. 26.

19

The day after Arizona’s PPE, the Secretary sent a letter to Arizona’s legislative

20 leaders, urgently calling out the need to prepare for the upcoming Primary and General

21 Elections in light of the COVID-19 crisis. See Ex. 16.1 Much like other state leaders around

22 the country, the Secretary expressly requested the Arizona Legislature to authorize County

23 Boards of Supervisors to conduct all-mail elections for the 2020 Primary and General

24 Elections to “ensure that voters can safely vote despite an ongoing public health

25 emergency.” Id.; see also Ex. 27 (Nevada’s Secretary of State announced state would

26

27

1 Secretary Hobb’s letter was addressed to Senate President Karen Fann, Democratic

Leader David Bradley, House Speaker Rusty Bowers, and Democratic Leader Charlene

28 Fernandez.

5

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 7 of 15

1 effectively cancel in-person voting and mail ballots to all voters for upcoming June

2 election); Ex. 28 (Georgia’s Secretary of State announced state will mail absentee ballot

3 request forms to all of Georgia’s nearly 7 million registered voters as a “major push to

4 encourage voting by mail during the coronavirus pandemic”); Ex. 29 (explaining states like

5 Arizona which already rely heavily on voting by mail, such as Hawaii, Alaska, and

6 Wyoming, “will no longer offer any in-person voting” for their upcoming primaries); Ex.

7 30 (Wisconsin’s Governor called on state legislature to implement all mail voting for the

8 upcoming elections); Ex. 31 (Vermont passed temporary law allowing Secretary of State to

9 mail every voter a mail ballot and extend deadline for clerks to receive ballots for upcoming

10 elections); Ex. 32 (North Carolina State Board of Elections asked Governor and Legislature

11 to significantly expand access to absentee voting for upcoming elections). In making her

12 request, the Secretary urged that changes to upcoming elections be implemented “in a way

13 that ensures that those without access to regular mail delivery are not disenfranchised.” Ex.

14 16; see also Ex. 33 (election law experts discussing the importance of increasing access to

15 voting by mail in a way that does not disenfranchise minority voters).

16

The Secretary’s request to move to all mail voting and ensure that voting by mail is

17 fully accessible to all Arizona voters aligns not only with actions that other states are taking,

18 but also responds to voter behavior during this crisis. 2 More importantly, however, the

19 Secretary’s request to ensure that voters without access to regular mail delivery are not

20 disenfranchised recognizes the critical challenges that voters in Arizona already face and

21 will increasingly face as they are forced to change their methods of voting during this

22 pandemic. In particular, many minority and rural voters in Arizona live in communities in

23 which access to mail delivery is infrequent or unreliable and where mail can take up to ten

24 days to be delivered. See Doc. 22 at 3, 8, 10. These voters face an increased risk of having

25 their ballot arrive after the Election Day Receipt Deadline.

26

Indeed, as more Arizonans vote by mail during this crisis, they are more likely to be

27 2 Arizona reported an increase in voting by mail during its March 2020 PPE, with 90
28 percent of all ballots being cast via mail. See Ex. 1 at 2.

6

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 8 of 15

1 disenfranchised by the Election Day Receipt Deadline for several reasons. First, many

2 individuals who will be voting by mail in the upcoming General Election are typically in-

3 person voters and, as a result, differ in some important respects from people who typically

4 vote by mail. See Ex. 1. “People who vote in precincts on Election Day tend to decide for

5 whom they will vote later in the process, typically at the end of the campaign. Because these

6 voters are ‘late deciders’ they are more likely to cast a vote by mail at the end of the process

7 with only a few days to go or even on Election Day.” Id at 4-5. In-person voters also

8 generally tend to be newer voters, and in this instance, most of the individuals entering the

9 vote-by-mail system as a result of COVID-19 will be voting by mail for the first time. Id.

10 These voters are more likely to be unfamiliar with the procedures for absentee ballots and

11 more likely to be impacted by rules like the Election Day Receipt Deadline, which are

12 contrary to their customary practices of ensuring that documents are postmarked, not

13 received, by a date certain. Id. All of these differences are more likely to result in a voter

14 mailing their ballot closer to the time of the election, increasingly running the risk they will

15 be entirely disenfranchised because of the Election Day Receipt Deadline. Id.

16

Second, the anticipated increase in voting by mail is likely to come at the same time

17 as USPS is facing a budgetary crisis due to COVID-19 that threatens to shutter the entire

18 agency by this summer. See Ex. 1, Ex. 36. This has grave implications for Arizonans’ right

19 to vote. In the past, when USPS has faced budget crises, it has responded by cutting

20 hundreds of processing centers. See Ex. 37. Moving forward, it is likely that USPS will need

21 to make cuts—whether to routes, processing centers, or staff—any of which is likely to

22 increase mail processing delays. Such delays will be acutely felt in Arizona, which already

23 faces slow mail service and delays in the best of times. See Doc. 22 at 8-9, 12. Rural counties

24 in Arizona, for example, already recommend mailing a ballot ten days in advance of an

25 election, see id. at 5, and even Maricopa County recommends at least six days, see id. at 10.

26 This timeline is likely to be pushed back even further under the strain of USPS budget cuts,

27 an increased number of mail ballots which need to be processed, and COVID-19. Nor are

28 these concerns speculative. In the past two weeks, USPS struggled to deliver mail ballots

7

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 9 of 15

1 to voters in Wisconsin, with some mail ballots being delayed, and others not arriving at all.

2 See Ex. 35. In response, both of Wisconsin’s Senators wrote to the Inspector General of the

3 USPS seeking an investigation into “absentee ballots not being delivered in a timely

4 manner” and the USPS’s failure to deliver in this regard. Id.

5

As the number of mail delays grow and the number of voters voting by mail

6 increases, the number of Arizonans disenfranchised by the Election Day Receipt Deadline

7 will also increase. If Arizona were to move to an all vote by mail system⸺not even

8 accounting for potential mail delays, but assuming conservatively the same rate of late mail

9 ballots as in past elections⸺it is anticipated that almost 4,000 Arizonans will be

10 disenfranchised in the 2020 General Election. Ex. 1 at 7, 10. Moreover, as noted, it is highly

11 unlikely that the rate would stay the same. Rather, because the increase in voters who vote

12 by mail will come from voters who are more likely to send in their mail ballot on or near

13 Election Day, the actual rate of late ballots and the total number of individuals

14 disenfranchised due to the Election Day Receipt Deadline is likely to be far higher. Id. at 4-

15 6. 3 In the March 2020 PPE, just as the coronavirus crisis was beginning, Arizona

16 experienced a four-fold increase in the rate of late mail ballots from the 2018 General

17 Election, with 2,698 voters being disenfranchised in just six counties. Id. If ballots are

18 rejected for arriving late at that same rate in the 2020 General Election and Arizona voters

19 vote by mail at the similar rate they did in the March PPE, approximately 18,700 voters will

20 be disenfranchised as a result of the Election Day Receipt Deadline. Id. at 7, 9-10.

21

Moreover, as results from the March 2020 PPE indicate, Latino and Hispanic voters,

22 Native American voters, and rural voters are at increasing risk for disenfranchisement under

23 the Election Day Receipt Deadline. In the March 2020 PPE, Santa Cruz County rejected

24 32.1 mail ballots per 1,000 mail ballots cast for arriving late, Pinal County rejected 15.8

25 mail ballots per 1,000 mail ballots cast for arriving late, and Yavapai County rejected 12.1

26
3 Importantly, the estimated number of additional disenfranchised voters cited above 27 accounts only for the possibility that the number of voters voting by mail increases, not that
the rate of late ballots will increase. Those figures are thus conservative estimates of the 28 number of voters who are disenfranchised if voting by mail increases in Arizona.

8

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 10 of 15

1 mail ballots per 1,000 mail ballots cast for arriving late. See id. at 7-8. These counties’

2 rejection rates for late ballots vastly exceeded Maricopa County’s rate of mail ballots

3 rejected for being late in the PPE—5.7 mail ballots per 1,000 mail ballots cast—which is

4 still four times higher than the rate of late rejections that Maricopa County saw in the 2018

5 General Election. Id. at 7.

6

In sum, as the COVID-19 crisis continues, the risk that more and more voters will

7 be completely disenfranchised as a result of the Election Day Receipt Deadline will only

8 become more severe, and the necessity of enjoining the law more pressing to ensure that all

9 eligible Arizona voters are able to have their votes counted.

10

III. ARGUMENT

11

While the Court can and should grant Plaintiffs’ Motion for a Preliminary Injunction

12 based on the evidence submitted in support of that motion, the COVID-19 crisis has made

13 it far more likely that countless more Arizona voters will be disenfranchised by the Election

14 Day Receipt Deadline and intensified the need for immediate relief. Against the backdrop

15 of this public health crisis, Plaintiffs are increasingly likely to succeed on the merits of their

16 claims and the remaining factors for a preliminary injunction tip sharply in their favor.

17

First, the COVID-19 crisis increases the magnitude of the burden on Arizona voters’

18 voting rights as well as the likelihood that they will be deprived of their liberty interest⸺

19 i.e., completely disenfranchised⸺by the Election Day Receipt Deadline. Even prior to the

20 crisis, Arizona election officials recommended mailing a ballot back anywhere from six to

21 ten days before the election, depending on the voter’s location within the state. See Doc. 22

22 at 10. Nevertheless, in the past several election cycles, tens of thousands of ballots⸺even

23 when mailed in that time frame⸺did not arrive by the Election Day Receipt Deadline and

24 were rejected by the State, disenfranchising those voters. See id. In light of the COVID-19

25 crisis, it is certain that more voters will utilize mail ballots due either to social distancing or

26 state policies and that postal delays are likely to increase. See supra at 4-7. In the March

27 2020 PPE, Arizona saw a marked increase in mail voting and a corresponding four-fold

28 jump in the rate of ballots rejected for arriving late. Supra at 8. As a consequence,

9

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 11 of 15

1 thousands⸺and likely tens of thousands⸺more voters will be disenfranchised by the

2 Election Day Receipt Deadline, despite doing everything that the state has instructed them

3 to do in order to exercise their right to vote. Ex. 1 at 8-9.

4

Moreover, Arizona voters who traditionally vote in person, and who will now be

5 effectively required to vote by mail (either by law or due to public health concerns), are

6 particularly likely to be disenfranchised by the Election Day Receipt Deadline. See supra

7 at 7. These voters are both (1) much less likely to know that they need to send in a ballot

8 six to ten days, or even more, before Election Day for their ballot to be counted, and (2) are

9 traditionally “late deciders,” and thus more likely to send in their ballots closer to or on

10 Election Day in the first place. See id.

11

Likewise, these factors are likely to be compounded by mail delays that will make it

12 even more difficult for voters to determine precisely when they should mail their ballot so

13 that it arrives by the Election Day Receipt Deadline. Given the time that it already takes for

14 mail ballots to arrive—anywhere from six to ten days—and the resultant delays in ballots

15 arriving due to increasing stress on USPS, including projected severe budget shortfalls, see

16 id., even small changes in mail delivery have the potential for large impacts on the number

17 of ballots which arrive after the Election Day Receipt Deadline, and thus, are not counted.

18

Finally, while the Secretary has argued in this litigation that the state’s provision of

19 in-person voting opportunities is a mitigating factor to the disenfranchisement caused by

20 the Election Day Receipt Deadline, see Doc. 30 at 2, 10-11, it is evident that voters will be

21 unable to or unlikely to utilize in-person voting under the current circumstances, as shelter

22 in place orders continue and voters continue to practice social distancing. Moreover, even

23 if polling locations are technically open, it is increasingly doubtful that the full array of

24 polling sites previously available to voters will be in operation. Even in the early stages of

25 this crisis Maricopa County was forced to close approximately a third of its polling locations

26 for the PPE. See supra at 5. As fewer polling locations are open, voting in person or

27 dropping off a ballot in person becomes significantly more difficult as polling locations will

28 be further from voters. And the same factors that already make voting in person or dropping

10

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 12 of 15

1 off a ballot in person an unrealistic option for many voters—a lack of reliable transportation

2 or lack of resources to get to the polls, among many other factors—are likely to be

3 exacerbated by this increasing public health (and now economic) crisis. See Doc. 22 at 7, 8

4 (explaining that a lack of reliable transportation, funds, or childcare often prohibit lower-

5 income voters or minority voters from voting in person). Similarly, it is also likely that lines

6 and wait times will grow longer due to social distancing practices and staffing shortages,

7 see Ex. 20 and Ex. 34,4 and that many voters⸺particularly Arizona’s minority voters⸺will

8 not have the time or resources to wait to vote. See Doc. 22 at 2, 7. Thus, the Election Day

9 Receipt Deadline will exact an even greater burden on Arizona’s voters under the current

10 circumstances.

11

Second, the remaining preliminary injunction factors cut even more sharply in

12 Plaintiffs’ favor. Disenfranchisement is unquestionably irreparable harm, see Doc. 22 at 21,

13 and the current crisis makes disenfranchisement more likely for an increasing number of

14 Arizona voters. As Plaintiffs have demonstrated, at a minimum approximately 600 to 1,400

15 more voters will be disenfranchised in the upcoming 2020 General Election due to the

16 Election Day Receipt Deadline than in past elections and, more likely, up to 20,847 more

17 voters are likely to be disenfranchised. Ex. 1 at 6-7. Moreover, as voting by mail becomes

18 the only legal or practical option for Arizona voters to exercise their right to vote,

19 organizational Plaintiffs Priorities USA and Voto Latino Foundation will have to divert

20 more resources towards educating Arizona voters about the substantial need to cast their

21 ballots up to ten days (or more) before the election, a task that may be even more challenging

22 in these times as a substantial number of Arizona voters will be voting by mail for the first

23 time and are otherwise unaware of this requirement.

24

The balance of the equities and the public interest also increasingly favor a

25 preliminary injunction. Most notably, the Election Day Receipt Deadline for mail ballots

26

27

4 For example, earlier this month, voters in Texas and California waited in lines that

were several hours long, in part because polling locations were severely understaffed when

28 many poll workers canceled in light of coronavirus concerns.

11

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 13 of 15

1 contributes to public health risks. If any Arizona voters forget or are unable to put their

2 ballot in the mail six to ten days before the election, their only option will be to vote in

3 person or to leave their home to turn their ballot in in person—a decision that could risk

4 their health and contribute to the community spread of COVID-19. Plaintiffs’ attachments

5 show that the risk of substantial danger to the public health of engaging in such activity is

6 substantial, imminent, and ongoing. See Ex. 2: Ex.14; Ex. 17.

7

Just this past month, a federal court in Wisconsin extended the deadline for the

8 receipt of absentee ballots because voters were at risk of being disenfranchised by

9 Wisconsin’s Election Day Receipt Deadline in light of the current public health crisis. See

10 Democratic National Comm. et al., 2020 WL 1638374, at *5, *12, n.14 (explaining that

11 “[the state] cannot enforce laws that, even due to circumstances out of its control, impose

12 unconstitutional burdens on voters”). The court concluded that “the state’s general interest

13 in the absentee receipt deadline is not so compelling as to overcome the burden faced by

14 voters who, through no fault of their own, will be disenfranchised by the enforcement of

15 the law.” Id. at *17. The order to extend the absentee ballot return deadline was affirmed

16 by the Seventh Circuit. See Order, Democratic Nat’l Comm. v. Republican Nat’l Comm.,

17 No. 20-1538 (7th Cir. Apr. 3, 2020), ECF No. 30. A few days later, the United States

18 Supreme Court⸺evaluating the extension under the same Anderson-Burdick

19 framework⸺allowed the later receipt deadline to stand provided that the absentee ballots

20 were postmarked by Election Day, even though Wisconsin law, like Arizona’s, provided

21 that mail ballots must be received by Election Day in order to be counted. See Republican

22 Nat’l Comm., 2020 WL 1672702, at *2. That is precisely the relief that Plaintiffs seek here.

23

Secretary Hobbs was right when she recognized that a mail voting system must be

24 implemented in a way to ensure that voters are not disenfranchised. See id. The Election

25 Day Receipt Deadline already disenfranchises thousands of voters in Arizona and will

26 disenfranchise far more in the current crisis. This Court can prevent that from happening by

27 ordering the state to accept mail ballots that are cast on or before Election Day and received

28 within a reasonable period of time after Election Day.

12

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 14 of 15

1

CONCLUSION

2

For these reasons, and the reasons submitted along with Plaintiffs’ original

3 Memorandum of Law in Support of Plaintiffs’ Motion for a Preliminary Injunction,

4 Plaintiffs respectfully request that this Court issue a preliminary injunction as set forth in

5 the Plaintiffs’ previously submitted proposed order.

6

7 8 Dated: April 14, 2020 9 10 11

s/ Amanda R. Callais
Alexis E. Danneman (# 030478) Sarah R. Gonski (# 032567) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788

12

Marc E. Elias*

13

John Devaney*

Amanda R. Callais*

14

K’Shaani O. Smith*

Zachary J. Newkirk*

15

Christina A. Ford*

16

PERKINS COIE LLP

700 Thirteenth Street NW, Suite 800

17

Washington, D.C. 20005-3960

18 *Admitted pro hac vice
19 Attorneys for Plaintiffs
20

21

22

23

24

25

26

27

28

13

Case 2:19-cv-05685-DWL Document 32 Filed 04/14/20 Page 15 of 15

1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 14, 2020, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

4

5

s/ Michelle DePass

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

 
 Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 1 of 22

1 Sarah R. Gonski (Bar. No. 032567) Alexis E. Danneman (Bar. No. 030478)
2 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012-2788 Telephone: 602.351.8201
4 Facsimile: 602.648.7000 SGonski@perkinscoie.com
5 ADanneman@perkinscoie.com DocketPHX@perkinscoie.com
6 Marc E. Elias*
7 John Devaney* Amanda R. Callais*
8 K’Shaani O. Smith* Zachary J. Newkirk*
9 Christina A. Ford* PERKINS COIE LLP
10 700 Thirteenth Street NW, Suite 800 Washington, D.C. 20005-3960
11 Telephone: 202.654.6200 Facsimile: 202.654.6211
12 melias@perkinscoie.com jdevaney@perkinscoie.com
13 acallais@perkinscoie.com kshaanismith@perkinscoie.com
14 znewkirk@perkinscoie.com christinaford@perkinscoie.com
15 *Admitted pro hac vice
16 Attorneys for Plaintiffs
17

18

UNITED STATES DISTRICT COURT

19

DISTRICT OF ARIZONA

20 Voto Latino Foundation, Priorities USA, and
21 Shelby Aguallo,

No. 2:19-cv-05685-DWL

22

Plaintiffs,

23

v.

24 Katie Hobbs, in her official capacity as 25 Arizona Secretary of State,

26

Defendant.

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

27

28

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 2 of 22

1

TABLE OF CONTENTS

2 INTRODUCTION ................................................................................................................ 1
3 BACKGROUND .................................................................................................................. 2
4

5 ARGUMENT........................................................................................................................ 4

6 I. Plaintiffs have standing to challenge Arizona’s Election Day Receipt Deadline. .................................................................................................................... 4
7 A. Legal Standard for Standing ................................................................................. 4
8

9

B. Plaintiffs Voto Latino and Priorities USA have alleged sufficient facts to support direct organizational standing. ................................................................. 4

10 II. The Amended Complaint sufficiently states claims for relief.................................. 7
11 A. Legal Standard for Dismissal ............................................................................... 7
12

13

B. Plaintiffs sufficiently allege that the Election Day Receipt Deadline inflicts serious burdens on the right to vote not justified by state interests. ......... 8

14 C. Plaintiffs sufficiently allege that the Election Day Receipt Deadline

15

violates the Procedural Due Process Clause. ...................................................... 13

16 CONCLUSION .................................................................................................................. 16 17

18

19

20

21

22

23

24

25

26

27

28

i

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 3 of 22 TABLE OF AUTHORITIES
Cases

Page(s)

1 Anderson v. Celebrezze, 460 U.S. 780 (1983) ...................................................................................................... 10

2

Arizona Libertarian Party v. Reagan,

3

798 F.3d 723, 726 (9th Cir. 2015) .................................................................................. 9

4 Ass’n for Los Angeles Deputy Sheriffs v. Cty. of Los Angeles,

5

648 F.3d 986 (9th Cir. 2011) .......................................................................................... 7

6 Bell Atlantic Corp. v. Twombly,

7

550 U.S. 544 (2007) ........................................................................................................ 8

8 Bernhardt v. Cty. of Los Angeles, 279 F.3d 862 (9th Cir. 2002) .......................................................................................... 4

9

Crawford v. Marion Cty. Election Bd.,

10

472 F.3d 949 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) .................................... 1, 4, 11

11 Democratic Nat’l Comm. v. Bostelmann,

12

20-cv-249, 2020 WL 1638374 (W.D. Wis. Apr. 2, 2020) ............................................ 13

13 Doe v. Walker, 746 F. Supp. 2d 667 (D. Md. 2010) .............................................................................. 13
14

15 Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011) ...................................................................................... 14

16

Dudum v. City & Cty. of S.F.,

17

No. C 10-00504 RS, 2010 WL 3619709 (N.D. Cal. Sept. 9, 2010) ............................. 14

18 El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review,

19

959 F.2d 742 (9th Cir. 1991) .......................................................................................... 7

20 Friedman v. Snipes, 345 F. Supp. 2d 1356 (S.D. Fla. 2004) ........................................................................... 9
21

22 Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966) ...................................................................................................... 10

23

In re Zappos.com, Inc.,

24

888 F.3d 1020 (9th Cir. 2018) ........................................................................................ 4

25 League of Women Voters of N.C. v. North Carolina,

26

769 F.3d 224 (4th Cir. 2014), cert. denied, 135 S. Ct. 1735 (2015)............................. 10

27 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................................................... 4, 6
28

ii

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 4 of 22 TABLE OF AUTHORITIES
Cases

Page(s)

1 Mathews v. Eldridge, 424 U.S. 319 (1976) ...................................................................................................... 14

2

Nat’l Ass’n of Optometrists & Opticians Lenscrafters, Inc. v. Brown,

3

567 F.3d 521 (9th Cir. 2009) .......................................................................................... 5

4 Nat’l Council of La Raza, v. Cegavske,

5

800 F.3d 1032 (9th Cir. 2015) .................................................................................... 6, 7

6 Ne. Ohio Coal. for Homeless v. Husted,

7

696 F.3d 580 (6th Cir. 2012) .................................................................................. 10, 11

8 Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178 (9th Cir. 2015) ...................................................................................... 14

9

Oceanside Golf Inst., Inc. v. City of Oceanside,

10

Nos. 88-5647, 88-6056, 1989 WL 61771 (9th Cir. June 1, 1989) ................................ 14

11 Ohio State Conference of N.A.A.C.P. v. Husted,

12

768 F.3d 524 (6th Cir. 2014), vacated on other grounds, No. 14-3877,

2014 WL 10384647 (6th Cir. Oct. 1, 2014).................................................................. 11 13

One Wis. Inst., Inc. v. Nichol,

14

155 F. Supp. 3d 898 (W.D. Wis. 2015) .......................................................................... 9

15 Price v. N.Y. State Bd. of Elections,

16

540 F.3d 101 (2d Cir. 2008)............................................................................................ 9

17 Pub. Integrity All., Inc. v. City of Tucson,

18

836 F.3d 1019 (9th Cir. 2016) ...................................................................................... 11

19 Raetzel v. Parks/Bellemont Absentee Election Bd.,
762 F. Supp. 1354 (D. Ariz. 1990) ................................................................... 14, 15, 16 20

Republican Nat’l Comm. v. Democratic Nat’l Comm.,

21

No. 19A1016, 2020 WL 1672702 (U.S. Apr. 6, 2020) ............................................ 2, 12

22 Reynolds v. Sims,

23

377 U.S. 533 (1964) ........................................................................................................ 1

24 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc.,

25

547 U.S. 47 (2006) .......................................................................................................... 5

26 Saucedo v. Gardner, 335 F. Supp. 3d 202 (D.N.H. 2018).............................................................................. 15
27

28

iii

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 5 of 22 TABLE OF AUTHORITIES
Cases

Page(s)

1 Short v. Brown, 893 F.3d 671 (9th Cir. 2018) .......................................................................................... 9

2

Smith v. Pac. Properties & Dev. Corp.,

3

358 F.3d 1097 (9th Cir. 2004) .................................................................................... 5, 6

4 Soltysik v. Padilla,

5

910 F.3d 438 (9th Cir. 2018) .......................................................................... 8, 9, 10, 12

6 Thompson v. Paul,

7

657 F. Supp. 2d 1113 (D. Ariz. 2009) ............................................................................ 8

8 United States v. Cunningham, No. 3:08cv709, 2009 WL 3350028 (E.D. Va. Oct. 15, 2009) ...................................... 13

9

United States v. Texas,

10

252 F. Supp. 234 (W.D. Tex. 1966), aff’d, 384 U.S. 155 ............................................. 15

11 Zessar v. Helander,

12

No. 05C1917, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006) .......................................... 15

13 Zinermon v. Burch, 494 U.S. 113 (1990) ...................................................................................................... 14
14 15 STATUTES
16 A.R.S. § 16-542(C)............................................................................................................... 3

17 A.R.S. § 16-548(A)............................................................................................................... 3

18 OTHER AUTHORITIES
19 Arizona Libertarian Party v. Reagan ................................................................................... 9 20
798 F.3d 723, 726 (9th Cir. 2015) ........................................................................................ 9 21

22

23

24

25

26

27

28

iv

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 6 of 22

1

INTRODUCTION

2

“There is more to the right to vote than the right to mark a piece of paper and drop

3 it in a box or the right to pull a lever in a voting booth. The right to vote includes the right

4 to have the ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) (citation and

5 quotation omitted). Nevertheless, since 2008, Arizona has failed to count over 17,000

6 ballots in its statewide General Elections, disenfranchising thousands of voters each

7 election, simply because those voters’ ballots—which were completed and mailed prior to

8 Election Day—did not arrive at the County Recorder’s Office before 7:00 p.m. on Election

9 Day (the “Election Day Receipt Deadline”). What is more, there is no question that these

10 disenfranchised voters were disproportionately Hispanic and Latino, Native American, and

11 rural voters. Rather than acknowledge that the Election Day Receipt Deadline

12 disenfranchises thousands of voters through no fault of their own, Defendant Secretary

13 Hobbs (the “Secretary”) dismisses their disenfranchisement as a minimal burden on the

14 right to vote and seeks to avoid substantive judicial review altogether. But disenfranchising

15 thousands of Arizonans each year is anything but minimal, and contrary to the Secretary’s

16 arguments, Plaintiffs’ Second Amended Complaint sets forth more than sufficient grounds

17 for this Court to proceed on the Equal Protection and Due Process claims set out therein.

18

First, contrary to the Secretary’s arguments, all Plaintiffs are harmed by Arizona’s

19 Election Day Receipt Deadline and all Plaintiffs have standing, including Organizational

20 Plaintiffs Voto Latino Foundation and Priorities USA. In fact, the Secretary has not even

21 challenged Individual Voter Plaintiff Aguallo’s standing to sue, and it is well-settled that

22 where injunctive relief is sought, “only one plaintiff with standing is required.” Crawford

23 v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008).

24

Second, disenfranchising thousands of voters each election and disparately

25 disenfranchising minority voters without justification is actionable under the First and

26 Fourteenth Amendments, and Plaintiffs have stated a claim for relief. The Election Day

27 Receipt Deadline requires voters to return their mail ballots six to ten days in advance of

28 Election Day (at a minimum)—a cutoff that voters understandably miss due to unreliable

1

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1 and slow mail service in Arizona as well as the County Recorders’ inconsistent messaging

2 on these deadlines. Nor is in-person delivery of those mail ballots a realistic option for

3 voters who lack the resources to reach a ballot drop off location, which may be located a

4 significant distance from the voter. These burdens are even more severe in light of the

5 COVID-19 crisis, which is nearly certain to limit voters’ ability to vote in person, making

6 voting by mail Arizonans’ only legal or practical method to exercise their fundamental right

7 to vote in the upcoming General Election. None of the Secretary’s stated interests in the

8 Election Day Receipt Deadline can justify the burdens on these voters.

9

More fundamentally, evaluation under the Anderson-Burdick framework is a highly

10 factual analysis that is not appropriate for dismissal at the motion to dismiss stage. Indeed,

11 the Secretary has not cited a single case dismissing an Anderson-Burdick claim on a motion

12 to dismiss, and just two weeks ago the U.S. Supreme Court evaluated an Election Day

13 Receipt Deadline case in Wisconsin on the merits under the same Anderson-Burdick

14 framework at issue here, allowing the lower court’s extension of the receipt deadline to

15 stand provided that the absentee ballots were postmarked by Election Day, even though

16 Wisconsin’s law, like Arizona’s, provided that mail ballots must be received by Election

17 Day to be counted. See Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016,

18 2020 WL 1672702 (U.S. Apr. 6, 2020). That is precisely the relief the Plaintiffs seek here,

19 and the Secretary cannot plausibly claim that Plaintiffs have not stated a claim where federal

20 courts have found an undue burden on the right to vote as a result of receipt deadlines.

21

Contrary to the Secretary’s assertions, Arizona’s mail voting regime is not seamless.

22 Thousands of voters are disenfranchised each year by the Election Day Receipt Deadline.

23 As a result, it does not satisfy the Constitution, and it should not satisfy the Secretary either.

24 For all of these reasons and those stated below, Plaintiffs have stated a claim and the

25 Secretary’s Motion to Dismiss should be denied.

26

BACKGROUND

27

On February 24, 2020, Plaintiffs filed their Second Amended Complaint

28 (“Complaint”), see Doc. 21, challenging Arizona’s refusal to count ballots that arrive after

2

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 8 of 22

1 the Election Day Receipt Deadline, see A.R.S. § 16-548(A), under the Due Process and

2 Equal Protection Clauses of the Fourteenth Amendment to the Constitution. As alleged

3 therein, in the past decade, several thousand voters have been disenfranchised in each

4 General Election solely because their ballots arrived after the Election Day Receipt

5 Deadline. See Doc. 21 at ¶ 32. This disenfranchisement is not equally distributed among

6 voters: Arizona’s Hispanic and Latino, Native American, and rural voters are significantly

7 more likely to be disenfranchised by the law than nonminority and urban voters are. See

8 Doc. 21 at ¶¶ 4-5. In urban Maricopa County, for example, Hispanic and Latino voters are

9 almost four times more likely to be disenfranchised by the law than white voters are, and

10 Native American voters are five and half times more likely to be disenfranchised by the law

11 than white voters are. Id. at ¶ 44. Moreover, rural voters in Santa Cruz, Cochise, and Mohave

12 Counties are approximately five times more likely to be disenfranchised by the law than

13 voters in Maricopa County. Id. These voters’ ballots are rejected even if they were mailed

14 on or before Election Day, and even if they were mailed by or before the various mail-in

15 cut-off dates advertised by their local recorders’ offices. Id. at ¶ 26.

16

Arizona’s mail-in voting regime does not require County Recorders to send voters

17 on the Permanent Early Voter List (PEVL) a mail ballot until 24 days before Election Day.

18 A.R.S. § 16-542(C); Doc. 21 at ¶ 25. That ballot, depending on the county it is mailed in,

19 likely takes between 6 and 10 days to reach a voter, who must then return the mail ballot at

20 the direction of Arizona election officials at least 6 days, and sometimes 10 days, before

21 Election Day to ensure it will be counted. See Doc. 21 at ¶ 20, 26. Such a timeframe allows

22 voters, and particularly voters in rural counties and minority voters who live in communities

23 where mail delivery is unreliable or infrequent, only a handful of days to return their mail

24 ballot, see id. at ¶¶ 48-51—far less than the 27 days asserted by the Secretary, see Doc. 30

25 at 8, 14. Nor is dropping off a ballot in person at a county recorder’s office or a polling

26 place on Election Day a feasible option for many Hispanic and Latino, Native American, or

27 rural voters, many of whom lack reliable transportation or the resources to return a ballot in

28 person. See Doc. 21 at ¶¶ 28, 29, 46.

3

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1

On February 25, 2020, Plaintiffs filed a preliminary injunction motion substantiating

2 and expanding upon the allegations set out in Plaintiffs’ Second Amended Complaint. See

3 Doc. 22. On April 14, 2020, Plaintiffs filed a supplemental brief highlighting the severity

4 of this law during the pandemic. See Doc. 35. On March 20, 2020, the Secretary filed a

5 Motion to Dismiss, arguing that Organizational Plaintiffs Voto Latino and Priorities USA

6 lack standing, and that Plaintiffs have not stated a claim for relief. See Doc. 30. The

7 Secretary’s Motion is without merit.

8

ARGUMENT

9 I. Plaintiffs have standing to challenge Arizona’s Election Day Receipt Deadline.

10

A. Legal Standard for Standing

11

“For purposes of ruling on a motion to dismiss for want of standing, both the trial

12 and reviewing courts must accept as true all material allegations of the complaint, and must

13 construe the complaint in favor of the complaining party.” Bernhardt v. Cty. of Los Angeles,

14 279 F.3d 862, 867 (9th Cir. 2002) (citations and quotations omitted). “At the pleading stage,

15 general factual allegations of injury resulting from the defendant’s conduct” suffice to

16 establish standing, because the Court “presume[s] that general allegations embrace those

17 specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504

18 U.S. 555, 560-61 (1992) (internal quotations and citations omitted). Where injunctive relief

19 is sought, “only one plaintiff with standing is required.” Crawford, 472 F.3d at 951.

20

B. Plaintiffs Voto Latino and Priorities USA have alleged sufficient facts to

21

support direct organizational standing.

22

The Secretary has not challenged Individual Plaintiff Aguallo’s standing to bring this

23 suit, nor could she. Plaintiff Aguallo is an Arizona voter who has previously been

24 disenfranchised by the Election Day Receipt Deadline, and who faces a substantial risk of

25 being disenfranchised by it again in upcoming elections. See Doc. 21 at ¶¶ 19-21; In re

26 Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir. 2018) (“plaintiff threatened with future

27 injury has standing to sue . . .[if] there is a ‘substantial risk that the harm will occur’”)

28 (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)). For that reason,

4

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 10 of 22

1 this action should proceed, regardless of the organizational plaintiffs’ standing. See

2 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n. 2 (2006)

3 (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-

4 controversy requirement.”). Indeed, it is well-settled that “[a]s a general rule, in an

5 injunctive case this court need not address standing of each plaintiff if it concludes that one

6 plaintiff has standing.” Nat’l Ass’n of Optometrists & Opticians Lenscrafters, Inc. v. Brown,

7 567 F.3d 521, 523 (9th Cir. 2009). Because Plaintiff Aguallo’s standing is sufficient to carry

8 this case forward, this Court need not engage in any additional standing inquiry.

9

Even if Plaintiff Aguallo did not have standing, the Secretary’s challenge to the

10 organizational Plaintiffs’ standing would still fail. In the Ninth Circuit, organizations can

11 establish direct standing by showing “(1) frustration of its organizational mission; and (2)

12 diversion of its resources” to combat the effects of challenged law. Smith v. Pac. Properties

13 & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004). Plaintiffs Voto Latino Foundation and

14 Priorities USA have adequately alleged facts to support these elements.1

15

Specifically, Plaintiff Voto Latino Foundation alleges that its core mission is to

16 “ensure that Latinos are enfranchised and included in the democratic process.” Doc. 21 at ¶

17 17. To further that mission, it engages in voter registration activities, get-out-the-vote

18 campaigns, and voter education activities in Arizona to reach Voto Latino’s core

19 constituencies—Latino voters. Id. But the Election Day Receipt Deadline “frustrat[es] its

20 mission of enfranchising and turning out Latino voters in Arizona because it burdens and

21 disenfranchises the very voters that Voto Latino seeks to support.” Id. “To turn out these

22 voters and to combat the effects that Arizona’s Election Day Receipt has on Latino voters,”

23 Voto Latino will have to “expend and divert additional funds and resources that it would

24 otherwise spend on its efforts to accomplish its mission in other states or its own registration

25 efforts in Arizona.” Id.

26

Similarly, Plaintiff Priorities USA alleges its core mission is to persuade and

27 1 Contrary to Defendant’s characterizations, Plaintiffs have not claimed standing
28 under any theory of associational standing in this suit.

5

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 11 of 22

1 mobilize American voters to support progressive movements. Doc. 21 at ¶ 18. In

2 furtherance of their mission, Priorities engages in voter education, voter mobilization, and

3 voter turnout activities across the country, including in Arizona. Id. The Election Day

4 Receipt Deadline frustrates Priorities’ mission by “burden[ing] and disenfranchis[ing] the

5 voters Priorities supports through its work and contributions in Arizona.” Id. “As a result,

6 Priorities has to expend and divert additional funds and resources in GOTV, voter education

7 efforts, mobilization, and turn-out activities in Arizona, at the expense of its voter support

8 initiatives in other states and other voter education and turnout programs in Arizona.” Id.

9

These allegations firmly establish that the Election Day Receipt Deadline will

10 frustrate both organizations’ missions and cause them to divert resources towards certain

11 activities in Arizona at the expense of their other programs or efforts in Arizona or other

12 states. At the pleading stage, this is sufficient to establish standing. See Lujan, 504 U.S. at

13 560-61; see also Smith, 358 F.3d at 1105-06 (holding that allegations that the organization

14 had “to divert scarce resources from [its] other efforts” in response to a law were sufficient

15 to show a diversion of resources at the motion to dismiss stage). Contrary to the Secretary’s

16 assertions, Plaintiffs are not required to allege “how their current day-to-day activities

17 would be” different to establish organizational standing at this stage. Doc. 30 at 5. Rather,

18 the Ninth Circuit has explained that “a diversion-of-resources injury is sufficient to establish

19 organizational standing at the pleading stage, even when it is ‘broadly alleged.’” See Nat’l

20 Council of La Raza, v. Cegavske, 800 F.3d 1032, 1040 (9th Cir. 2015) (citing Havens Realty

21 Corp. v. Coleman, 455 U.S. 363, 379 (1982)).

22

Moreover, it is of no consequence, as the Secretary argues, that Plaintiffs already

23 engage in voter education efforts to further their missions. In the Ninth Circuit, an

24 organization can show injury when it re-allocates organizational resources—even to

25 activities in which that organization already participates. In National Council of La Raza,

26 for example, plaintiffs that “regularly [] conducted” voter registration drives challenged

27 Nevada’s ongoing violations of the National Voter Registration Act, alleging injury because

28 those violations required them to register more voters than they otherwise would need to,

6

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 12 of 22

1 taking “substantial resources” away from “other activities central to their missions.” 800

2 F.3d at 1036, 1040. Because those diverted resources would have been spent on some other

3 aspect of their organizational purpose, the Ninth Circuit explained that the “Plaintiffs have

4 not alleged that they are simply going about their business as usual, unaffected by the State’s

5 conduct.” Id. at 1040-41 (quotations omitted). Other cases in the Ninth Circuit stand for

6 similar propositions. See, e.g., El Rescate Legal Servs., Inc. v. Exec. Office of Immigration

7 Review, 959 F.2d 742, 748 (9th Cir. 1991) (holding that an organization which represented

8 clients in immigration court had standing to challenge a new immigration policy because

9 the new policy required the organization to “expend resources in representing [those] clients

10 [that] they otherwise would spend in other ways”).

11

Here, Plaintiffs have alleged just that. Plaintiffs’ Complaint establishes that the

12 organizations will not continue to go about their usual activities, including voter education

13 efforts, unaffected by the law. Instead, they have alleged that because of the law, they will

14 have to “expend and divert additional resources” that they “would otherwise spend on,” or

15 “at the expense of,” their other organizational activities, such as voter registration or voter

16 persuasion campaigns. Doc. 21 at ¶¶ 17, 18.2 These expenditures are not ones that either

17 organization would “always incur,” nor are they part of their “general operating expenses,”

18 or “manufactured.” Doc. 30 at 5. Rather, the expenditures are plainly a diversion of

19 resources and establish the organizations’ standing to proceed at this stage. The Secretary’s

20 Motion should be denied on this ground.

21 II. The Amended Complaint sufficiently states claims for relief.

22

A. Legal Standard for Dismissal

23

“Dismissal is proper under Rule 12(b)(6) if it appears beyond doubt that the non-

24 movant can prove no set of facts to support its claims.” Ass’n for Los Angeles Deputy

25

26

2 Nor have Plaintiffs alleged “only backward-looking costs,” as the Secretary

contends. See Doc. 30 at 6. The Second Amended Complaint makes clear that Plaintiffs

27 Voto Latino and Priorities USA will have to divert resources in the future in advance of

upcoming elections should the Election Day Receipt Deadline remain in effect. See Doc.

28 21 at ¶¶ 17, 18.

7

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 13 of 22

1 Sheriffs v. Cty. of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011) (citation omitted)

2 (emphases added). To clear this bar, the complaint must plead “enough facts to state a claim

3 to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

4 (2007). “‘The motion to dismiss for failure to state a claim is viewed with disfavor and is

5 rarely granted.’” Thompson v. Paul, 657 F. Supp. 2d 1113, 1123 (D. Ariz. 2009) (quoting

6 Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997)).

7

B. Plaintiffs sufficiently allege that the Election Day Receipt Deadline inflicts

8

serious burdens on the right to vote not justified by state interests.

9

The Secretary’s contention that Plaintiffs have not sufficiently alleged an Anderson-

10 Burdick claim misunderstands the law and ignores the ample facts pleaded in Plaintiffs’

11 Complaint. Dismissal of Plaintiffs’ Anderson-Burdick claim is not appropriate at the motion

12 to dismiss stage. The Anderson-Burdick analysis necessarily involves an intense factual

13 inquiry, requiring both discovery and a developed factual record.

14

Indeed, Soltysik v. Padilla, 910 F.3d 438 (9th Cir. 2018), forecloses dismissal at this

15 stage for that reason. In Soltysik, the Ninth Circuit reversed a district court’s dismissal of an

16 Anderson-Burdick claim at the motion to dismiss stage because the district court could not

17 consider the challenged election law’s justifications and burdens without a factual record.

18 Id. at 447 (“[W]ithout any factual record at this stage, we cannot say that the Secretary’s

19 justifications outweigh the constitutional burdens on [plaintiff] as a matter of law.”). The

20 Ninth Circuit instructed the district court to reassess the plaintiff’s Anderson-Burdick claim

21 “with the benefit of a complete evidentiary record regarding both the burden [the challenged

22 law inflicted on the plaintiff] . . . and the interests of the State.” Id. at 449. The same factual

23 development should result here—the Court cannot dismiss the Plaintiffs’ Anderson-Burdick

24 claim without considering an evidentiary record demonstrating the magnitude of the burden

25 on the right to vote or else it will find itself “in the position of Lady Justice: blindfolded and

26 stuck holding empty scales.” Id. at 450 (quotation omitted).3

27 3 Other courts have come to identical conclusions about motions to dismiss regarding
28

8

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1

Tellingly, the Secretary has not cited a single case supporting dismissal of an

2 Anderson-Burdick case at the pleading stage, relying instead on cases decided at other

3 stages of litigation.4 For example, the Secretary relies on Short v. Brown, 893 F.3d 671 (9th

4 Cir. 2018), for the proposition that plaintiffs “may not state a claim under Anderson/Burdick

5 by merely alleging that a given state statute or practice violates the right to vote.” Doc. 30

6 at 7. But Short, which considered a preliminary injunction motion, does not stand for this

7 proposition. In Short, the Ninth Circuit did not consider the sufficiency of plaintiffs’

8 allegations; rather, it focused on whether plaintiffs had a likelihood of success on the merits.

9 See 893 F.3d at 675. And unlike this case, see Doc. 21 at ¶ 2, the plaintiffs in Short had not

10 alleged that the challenged law resulted in disenfranchisement nor had they provided any

11 evidence that the law would prevent anyone from voting. Short, 893 F.3d at 677–78. On the

12 contrary, the challenged law in Short “ma[de] it easier for some voters to cast their ballots

13 by mail,” which the court concluded imposed not even a moderate burden. Id. The Secretary

14 also relies on Arizona Libertarian Party v. Reagan, but that case was decided on summary

15 judgment after the development of factual record, not on a motion to dismiss. See 798 F.3d

16 723, 726 (9th Cir. 2015). As the Ninth Circuit explained in Soltysik, relying on summary-

17 judgment decisions to determine whether a plaintiff has adequately alleges an Anderson-

18 Burdick claim, “support[s], rather than undermine[s], [the] conclusion that further factual

19 development is necessary and appropriate” for Anderson-Burdick claims. Soltysik, 910 F.3d

20
Anderson-Burdick claims. See, e.g., Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 109 21 (2d Cir. 2008) (explaining, in reversing lower court’s dismissal, that while plaintiffs offered
little evidence about the burden that election law imposed, “[f]or our initial purposes, it is 22 important only that there is at least some burden on the voter-plaintiffs’ rights”); One Wis.
Inst., Inc. v. Nichol, 155 F. Supp. 3d 898, 905 (W.D. Wis. 2015) (“Whether Wisconsin’s 23 restrictions have actually burdened Democratic voters, and if so, to what degree, is a
question of fact that cannot be resolved at the pleading stage . . . . Here, plaintiffs have 24 alleged facts that plausibly suggest that they are entitled to relief under the First and
Fourteenth Amendments. Defendants’ motion to dismiss this claim will therefore be 25 denied.”).
4 The Secretary also relies on Friedman v. Snipes, 345 F. Supp. 2d 1356, 1377 (S.D. 26 Fla. 2004), in which the Plaintiffs challenged Florida’s deadline for absentee ballots. That
case, however, was not resolved on a motion to dismiss, but on a preliminary injunction 27 motion, meaning that the court in Snipes was not asked to consider the sufficiency of the
plaintiffs’ claims, but the likelihood of their merit. Moreover, Snipes was filed on Election 28 Day itself, and thus without a meaningful record for the court to review.

9

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 15 of 22

1 at 449. So too here. Just as it was in Soltysik⸺and has been in other cases to consider this

2 question as well⸺factual development is necessary, and the Secretary’s Motion must be

3 denied.

4

The facts that Plaintiffs have alleged regarding the burden on voters and state interest

5 are more than sufficient at this stage. First, Plaintiffs have sufficiently alleged that the

6 Election Day Receipt Deadline poses severe burdens on the right to vote. As alleged, the

7 law results in the disenfranchisement of thousands of Arizona voters each year. Doc. 21 at

8 ¶¶ 32, 35. At least 3,000 voters in 2018, 4,100 in 2012, and 1,600 in 2008 were

9 disenfranchised only because their ballots arrived after the Election Day Receipt Deadline.

10 Id. And the late arrival was through no fault of their own. Id. at ¶¶ 47, 51. The mail system

11 in Arizona, particularly in rural areas, is not reliable. Id. at ¶ 46; see also id. (discussing

12 lack of mailboxes, personal mail delivery services, and extensive travel undertaken to

13 receive or send mail); id. at ¶ 50 (discussing challenges faced by urban, predominantly

14 minority voters with mail). And many voters receive inconsistent, or even incorrect advice,

15 on when to mail their ballots. Id. at ¶¶ 33–35, 54. These burdens are all but certain to

16 increase as the COVID-19 crisis continues, and as Arizona voters are increasingly required

17 to rely on the mail to cast their ballots. See generally Doc. 32.

18

Courts throughout the country have recognized that disenfranchisement, even for a

19 comparatively small number of people, imposes severe burdens on voting rights. See, e.g.,

20 League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 244 (4th Cir. 2014)

21 (“[T]he basic truth that even one disenfranchised voter—let along several thousand—is too

22 many.”), cert. denied, 135 S. Ct. 1735 (2015); Anderson v. Celebrezze, 460 U.S. 780, 784-

23 86 (1983) (holding unconstitutional a filing deadline that affected candidates who received

24 less than 6% of statewide vote); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666

25 (1966) (observing that poll taxes, even if it not burdensome for the average voter, violate

26 Fourteenth Amendment of U.S. Constitution because of burdens they impose on poor

27 voters); Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 593 (6th Cir. 2012) (law

28 likely unconstitutional even though it affected only 0.248% of total ballots cast). And

10

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 16 of 22

1 burdens on voting rights are especially serious when voters are harmed through no fault of

2 their own. See Husted, 696 F.3d at, 597 (holding that an Ohio law that rejected ballots cast

3 in the wrong precinct but the correct polling place solely because of poll worker error

4 imposed “substantial” burdens on voters).

5

For those same reasons, the Secretary’s arguments that the Election Day Receipt

6 Deadline is not burdensome because a large percentage of voters are able to comply with it

7 and because other states have similar laws are not persuasive. The Supreme Court has

8 emphasized that when assessing the severity of the burden, courts must consider the effects

9 of the restriction on those voters who are actually impacted by the law. See, e.g., Crawford,

10 553 U.S. at 198, 201 (controlling op.) (explaining that “[t]he burdens that are relevant to

11 the issue before us are those imposed on persons who are eligible to vote but do not possess

12 a [photo ID],” not the burdens on all voters); Pub. Integrity All., Inc. v. City of Tucson, 836

13 F.3d 1019, 1024 n.2 (9th Cir. 2016) (finding that courts should consider “not only a given

14 law’s impact on the electorate in general, but also its impact on subgroups, for whom the

15 burden, when considered in context, may be more severe.”). That some voters can comply

16 with the Election Day Receipt Deadline, or that other states also have such deadlines, is

17 therefore of no importance to the determination that this Court must make here⸺i.e., how

18 are the Arizona voters who are disenfranchised by this law burdened⸺and is certainly

19 insufficient to warrant dismissal at the pleading stage.5

20

States’ election laws are also not fungible. For example, state voter ID laws are not

21 universally constitutional or unconstitutional—instead, each state’s law must be considered

22 individually, taking into account the burden on that state’s voters. See, e.g., Ohio State

23 Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 547 n.7 (6th Cir. 2014), (“[W]e do not

24

25

5 In particular, Plaintiffs have alleged not only that the law imposes burdens on all

voters who vote by mail, but that it poses particular burdens on Hispanic and Latino voters,

26 Native American voters, and rural voters, who are not only disenfranchised at a

disproportionate rate, but are more likely to be subject to slower mail and circuitous postal

27 routes, lack home postal delivery, or even lack access to a post office. See Doc. 21 ¶¶ 46–

55. Thus, the burden on these voters specifically, not just the burden on all voters generally

28 must be evaluated.

11

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 17 of 22

1 find that other states’ electoral laws and practices are relevant to our assessment of the

2 constitutionality or legality” of Ohio law), vacated on other grounds, No. 14-3877, 2014

3 WL 10384647 (6th Cir. Oct. 1, 2014). And, just a few weeks ago, in the context of COVID-

4 19, the U.S. Supreme Court, evaluating a district court’s decision under Anderson-Burdick,

5 allowed a district court’s determination that an Election Day Receipt Deadline was

6 unconstitutional to stand. See Republican Nat’l Comm., 2020 WL 1672702. While other

7 states may have Election Day Receipt Deadlines, much like the law in Republican National

8 Committee, that does not mean that they are constitutional, nor does it mean that Arizona’s

9 Election Day Receipt Deadline is constitutional. Their existence says nothing about the

10 strength or sufficiency of Plaintiffs’ pleadings.

11

Second, Plaintiffs have also sufficiently alleged that the state has no adequate interest

12 in the Election Day Receipt Deadline. See Doc. 21 at ¶¶ 43, 65-66. Not only, as explained,

13 is this inherently a factual determination, Soltysik, 910 F.3d at 447, but many of the

14 justifications identified by the Secretary are refuted in Plaintiffs’ Complaint. See Doc. 21 at

15 ¶¶ 5-6. For instance, while the Secretary asserts an interest in a clear deadline, Doc. 30 at

16 12, Plaintiffs’ proposed deadline to mail ballots is also clear—that is, by Election Day.

17 Indeed, if anything, Plaintiffs’ proposed deadline is clearer than Arizona’s current deadline

18 to mail ballots, which varies by county and is, in the Secretary’s own words, “imprecise,”

19 Doc. 30 at 10. Likewise, while the Secretary asserts an interest having a “known universe

20 of ballots to process,” Doc. 30 at 12, Plaintiffs have already alleged that the ballot count is

21 not final, and results are not tallied until days after Election Day. See Doc. 21 at ¶¶ 5-6. Nor

22 does the Deadline advance the Secretary’s interest in preventing voter confusion, Doc. 30

23 at 12, because, as Plaintiffs allege, voters have a reasonable expectation that it is the

24 postmark on mail that makes it timely. See Doc. 21 at ¶ 4. Plaintiffs have pleaded sufficient

25 facts to demonstrate that the justifications set forth by the State are inadequate, and their

26 Complaint should survive a motion to dismiss.

27

Finally, contrary to the Secretary’s argument, Plaintiffs’ challenge is not merely a

28 policy debate; it is a concrete claim of direct harm that is wholly appropriate for judicial

12

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 18 of 22

1 review. Courts have regularly held that election deadlines must give way for voters to have

2 their votes cast and counted when a state’s laws prevent otherwise valid votes from being

3 counted, making it clear that claims similar to Plaintiffs’ regularly withstand a motion to

4 dismiss. In the context of the Uniformed and Overseas Citizens Absentee Voting Act, for

5 example, courts have extended ballot-receipt deadlines. One district court engaged in an

6 Anderson-Burdick analysis and extended the deadline for receiving countable overseas

7 ballots by ten days, observing that the initial deadline imposed a “severe burden” on

8 overseas voters. Doe v. Walker, 746 F. Supp. 2d 667, 677 (D. Md. 2010). Another federal

9 court ordered Virginia to “count as validly-cast all timely-requested absentee ballots

10 received within thirty days of the close of the polls on November 4, 2008, so as to uphold

11 and give meaning to the dearest of individual rights.” United States v. Cunningham, No.

12 3:08cv709, 2009 WL 3350028, at *4 (E.D. Va. Oct. 15, 2009). And just this past month, as

13 noted, a federal court in Wisconsin extended the deadline for voters to send in their absentee

14 ballots because voters faced disenfranchisement from the state’s receipt deadline in light of

15 the current COIVD-19 public health crisis. See Democratic Nat’l Comm. v. Bostelmann,

16 20-cv-249, 2020 WL 1638374, at *12 n.14 (W.D. Wis. Apr. 2, 2020) (explaining that “[the

17 state] cannot enforce laws that, even due to circumstances out of its control, impose

18 unconstitutional burdens on voters”). While the Secretary tries to recast Plaintiffs’

19 constitutional claims as a policy debate over an arbitrary deadline, see Doc. 30 at 15, there

20 is ample precedent of judicial review of analogous deadlines—and courts ordering

21 deadlines to change to ensure that voters’ ballots are counted when voters stand to be

22 disenfranchised.

23

C. Plaintiffs sufficiently allege that the Election Day Receipt Deadline violates

the Procedural Due Process Clause. 24

Plaintiffs have also sufficiently alleged that the Election Day Receipt Deadline

25

violates the procedural due process clause of the Fourteenth Amendment. See Doc. 21 at ¶¶

26

66-76. As an initial matter, the Secretary erroneously states that procedural due process

27

claims are reviewed under Anderson-Burdick. See Doc. 30 at 14. This is not the standard.

28

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1 The case the Secretary cites to support this standard, Dudum v. Arntz, 640 F.3d 1098, 1106

2 n.15 (9th Cir. 2011), involved an appeal from a substantive due process claim. See Dudum

3 v. City & Cty. of S.F., No. C 10-00504 RS, 2010 WL 3619709, *15 (N.D. Cal. Sept. 9,

4 2010) (“Plaintiffs argue San Francisco’s three choice limitation has substantive due process

5 implications.”). These two types of due process claims are distinct: A substantive due

6 process claim challenges actions the government cannot take no matter how many

7 procedures are in place, while a procedural due process claim challenges a deprivation of a

8 life, liberty, or property interest “without due process of law.” Zinermon v. Burch, 494 U.S.

9 113, 125 (1990); see also Oceanside Golf Inst., Inc. v. City of Oceanside, Nos. 88-5647, 88-

10 6056, 1989 WL 61771, at *4 (9th Cir. June 1, 1989) (“[T]he analysis of a procedural due

11 process claim differs in several respects from the analysis of a substantive due process

12 claim.”). Because Plaintiffs have brought a procedural due process claim, not a substantive

13 due process claim, the argument set out in the Secretary’s brief regarding due process is

14 inapplicable.

15

Plaintiffs have also sufficiently pleaded this claim under the correct standard. Courts

16 engage in a three-step inquiry in analyzing procedural due process claims. Mathews v.

17 Eldridge, 424 U.S. 319, 334–35 (1976). First, courts consider “the nature of the interest that

18 will be affected by the official action, and in particular, to the ‘degree of potential

19 deprivation that may be created.’” Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178,

20 1192–93 (9th Cir. 2015) (quoting Mathews, 424 U.S. at 341). Second, “courts must consider

21 the ‘fairness and reliability’ of the existing procedures and the ‘probable value, if any, of

22 additional procedural safeguards.’” Id. at 1193 (quoting Mathews, 424 U.S. at 343). Third,

23 “courts must assess the public interest, which ‘includes the administrative burden and other

24 societal costs that would be associated with additional or substitute procedures.” Id.

25 (quoting Mathews, 424 U.S. at 347).

26

Here, Plaintiffs have alleged the interest affected by the Election Day Receipt

27 Deadline is the liberty interest in voting and in having one’s voted counted, which cannot

28 be “confiscated without due process.” Raetzel v. Parks/Bellemont Absentee Election Bd.,

14

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 20 of 22

1 762 F. Supp. 1354, 1357 (D. Ariz. 1990); see also Zessar v. Helander, No. 05C1917, 2006

2 WL 642646, at *6 (N.D. Ill. Mar. 13, 2006) (recognizing voting as a liberty interest); United

3 States v. Texas, 252 F. Supp. 234, 250 (W.D. Tex. 1966), aff’d, 384 U.S. 155 (“[I]t cannot

4 be doubted that the right to vote is one of the fundamental personal rights included within

5 the concept of liberty as protected by the due process clause.”).6

6

Second, Plaintiffs have asserted that Arizona’s Election Day Receipt Deadline is

7 neither fair nor reliable. Even though Arizona’s vote-by-mail system works for many of the

8 Arizonans who cast mail-in ballots, see Doc. 21 at ¶ 1, the Deadline results, as Plaintiffs

9 allege, in thousands of ballots not being counted because of the timing of their arrival. See

10 Doc. 21 at ¶ 32. The procedure to vindicate the fundamental liberty interest in voting is

11 currently left to a voter’s guesswork on mail delivery times and varies depending the voter’s

12 location within the state, see id. at ¶¶ 33, 35, a method that even the Secretary admits is

13 “imprecise.” Doc. 30 at 10. Then, if a voter’s ballot arrives after the Deadline and is not

14 counted, “the election procedures do not give some form of post-deprivation notice to the

15 affected individual so that any defect in eligibility can be cured and the individual is not

16 continually and repeatedly denied so fundamental a right.” Raetzel, 762 F. Supp. at 1358.

17 The Election Day Receipt Deadline disenfranchises voters each election because of the

18 absence of post-deprivation notice to voters that their ballot was not counted. See id. (“The

19 disqualified voter may never ascertain the justification for the rejection of their vote in order

20 to cure the defect for future eligibility.”).

21

Finally, Plaintiffs have alleged that because none of these procedures are fair or

22 reliable, voters would substantially benefit from additional safeguards. See Doc. 21 at ¶ 74.

23 In another vote by mail challenge, this Court recognized that “[w]hile the state is able to

24 regulate absentee voting, it cannot disqualify ballots, and thus disenfranchise voters,

25

26

6 The Secretary implies that this Court need not meticulously examine Arizona’s

procedures for voting by mail because Arizona is not required to offer this option to voters.

27 See Doc. 30 at 7-8. But “a voter has a sufficient liberty interest once ‘the State permits

voters to vote absentee.’” Saucedo v. Gardner, 335 F. Supp. 3d 202, 215 (D.N.H. 2018)

28 (quoting Zessar, 2006 WL 642646, at *5).

15

Case 2:19-cv-05685-DWL Document 36 Filed 04/20/20 Page 21 of 22

1 without affording the individual appropriate due process protection.” Raetzel, 762 F. Supp.

2 at 1358. Here, Plaintiffs are seeking a reasonable extension for otherwise valid ballots to be

3 received and counted. See Doc. 21 at ¶ 75. Not only would the public interest benefit from

4 Plaintiffs’ proposed substitute procedures but, as alleged, these procedures would involve

5 very little administrative burden on Arizona. Id. Plaintiffs have thus adequately alleged a

6 deprivation of their procedural due process rights.

7

CONCLUSION

8

For the reasons stated above and based on the allegations of the Second Amended

9 Complaint, Plaintiffs respectfully request that this Court deny the Secretary’s Motion to

10 Dismiss on all grounds.

11 12 Dated: April 20, 2020 13 14 15

s/ Amanda R. Callais
Alexis E. Danneman (# 030478) Sarah R. Gonski (# 032567) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788

16

Marc E. Elias*

17

John Devaney*

Amanda R. Callais*

18

K’Shaani O. Smith*

Zachary J. Newkirk*

19

Christina A. Ford*

20

PERKINS COIE LLP

700 Thirteenth Street NW, Suite 800

21

Washington, D.C. 20005-3960

22 *Admitted pro hac vice
23 Attorneys for Plaintiffs
24

25

26

27

28

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 20, 2020, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

4

5

s/ Amanda R. Callais

6

7

8

9

10

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 Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 1 of 13

1

Mark Brnovich Attorney General

2 Linley Wilson (027040)
3 Kara Karlson (029407)

4 Dustin Romney (034728) 2005 North Central Avenue

5 Phoenix, AZ 85004-1592

6

Telephone (602) 542-4951 Facsimile (602) 542-4385

7 kara.karlson@azag.gov linley.wilson@azag.gov
8 adminlaw@azag.gov

9 Mary R. O’Grady (011434)

10

Emma J. Cone-Roddy (034285) OSBORN MALEDON, P.A.

11

2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2793

12

(602)640-9000 mogrady@omlaw.com

13 econe-roddy@omlaw.com

14

Attorneys for Defendant Arizona Secretary of State Katie Hobbs

15 UNITED STATES DISTRICT COURT
16 FOR THE DISTRICT OF ARIZONA
17

18 Voto Latino, Inc., et al,

19 Plaintiffs,
20

v. 21

22

Katie Hobbs, in her official capacity as Arizona Secretary of State,

23 Defendant.
24

No: 2:19-cv-05685-DWL
ARIZONA SECRETARY OF STATE’S REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT

25

The Arizona law that Plaintiffs allege is unconstitutional––A.R.S. § 16–548(A)––

26 has existed for 23 years. See 1997 Ariz. Legis. Serv. 2nd Spec. Sess. Ch. 5 (S.B. 1003).

27 This statute plainly and simply requires ballots to be “received by the county recorder or

28 other officer in charge of elections or deposited at any polling place in the county no later

1

Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 2 of 13

1 than 7:00 p.m. on election day.” A.R.S. § 16–548(A) (“Election Day Deadline”).

2 Plaintiffs do not contest that the State must impose a deadline for receiving ballots; they

3 simply prefer a later deadline that would require elections officials to accept any ballots

4 that are postmarked and received up to, “at a minimum, five business days” after an

5 election. (Doc. 21 at 25.) In support of their claim that the Election Day Deadline

6 imposes an undue burden on the right to vote and amounts to a denial of procedural due

7 process,1 Plaintiffs note that in 2018, “more than 3,000 ballots” were rejected as late.

8 (Id. at ¶ 2.) But this number represents less than 1% of all ballots cast in that election

9 (see id. at ¶ 23 [noting that “over 1.9 million voters voted by mail” in the 2018 election]).

10 It is undisputed that over 99% of all ballots in Arizona arrive by Election Day to be

11 counted. (See Doc. 30 at 4.)

12

As discussed in the Secretary’s motion to dismiss, the organizational plaintiffs––

13 Voto Latino and Priorities USA––lack standing to challenge the Election Day Deadline,

14 under either an associational standing or organizational standing theory. (See Doc. 30

15 at 4–7.) Plaintiffs defend only an organizational standing theory (Doc. 36 at 10–12 & n.1

16 [disavowing any claim of associational standing]), but their arguments do not

17 demonstrate a frustration of their missions or a diversion of their resources in mitigating

18 the alleged effects of the Election Day Deadline. Indeed, the organizational plaintiffs

19 would still educate voters about any ballot deadline––even if it is the one Plaintiffs

20 propose––because voter education is core to their missions. (See Doc. 21 at ¶ 17

21 [Voto Latino “educates voters, among other things, on when to cast their mail ballots”],

22 ¶ 18 [Priorities USA “works to help educate, mobilize, and turn out voters”].)

23

Plaintiffs attempt to paint this lawsuit as one that involves the disenfranchisement

24 of Hispanic, Latino, Native American, and rural voters. (See Doc. 36 at 11.) Not so.

25 The Election Day Deadline applies to all voters, and it is well-established that generally-

26 applicable election regulations do not violate the Constitution simply because they may

27

28

1 Plaintiffs mistakenly assert that their Second Amended Complaint alleges an Equal Protection violation. (Compare Doc. 21 with Doc. 36 at 6.)

2

Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 3 of 13

1 incidentally impact some voters more than others. See Crawford v. Marion Cty. Election

2 Bd., 553 U.S. 181, 198-200 (2008) (plurality op.) (upholding identification requirement

3 to vote even though some voters would have a more difficult time managing “life’s

4 vagaries” to obtain the required identification or go through a special process to cast a

5 provisional ballot); McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802,

6 810-11 (1969) (“Constitutional safeguards are not . . . offended simply because some

7 [voters] . . . find voting more convenient than appellants.”). Thus, even taking Plaintiffs’

8 allegations as true, their claims fail as a matter of law. The motion to dismiss should be

9 granted.

10

ARGUMENT

11 I. 12

Organizational Plaintiffs Lack Standing To Challenge The Election Day Deadline

13

As noted above, Plaintiffs Voto Latino and Priorities USA lack standing to

14 challenge the Election Day Deadline under an organizational standing theory, which

15 requires these Plaintiffs to show: “(1) frustration of [their] organizational mission[s]; and

16 (2) diversion of [their] resources” to mitigate the effects of the challenged law. Smith v.

17 Pac. Props. and Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004). Plaintiffs must show

18 that they would have “suffered some other injury” if they had not “diverted resources to

19 counteracting the problem.” La Asociacion de Trabajadores de Lake Forest v. Lake

20 Forest, 624 F.3d 1083, 1088 (9th Cir. 2010).

21

Here, Voto Latino repeats its vague contention that it will have to “expend and

22 divert additional funds and resources that it would otherwise spend on its efforts to

23 accomplish its mission in other states or its own registration efforts in Arizona” as a

24 result of the Election Day Deadline. (Doc. 36 at 10 [quoting Doc. 21 at ¶ 17].)

25 Likewise, Priorities USA asserts that the Election Day Deadline frustrates its mission by

26 “burden[ing] and disenfranchis[ing] the voters Priorities supports through its work and

27 contributions in Arizona.” (Doc. 36 at 11 [quoting Doc. 21 at ¶ 18].) These assertions

28 are too vague and conclusory to show that Voto Latino and Priorities USA have

3

Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 4 of 13

1 organizational standing. Plaintiffs cite Nat’l Council of La Raza v. Cegavske, 800 F.3d

2 1032, 1040 (9th Cir. 2015), for the proposition that organizational standing can be

3 “broadly alleged” (Doc. 36 at 11), but in Cegavske, the allegations were much more

4 concrete and specific. In Cegavske, the plaintiffs alleged that they would spend “fewer

5 resources on voter registration drives in communities where DHHS clients should be

6 offered voter registration opportunities at DHHS offices” and that “[b]ut for defendant’s

7 violations[,]” the plaintiffs “would be able to allocate substantial resources to other

8 activities central to [their] mission[s].” 800 F.3d at 1040. Accordingly, the Ninth Circuit

9 concluded in Cegavske that the complaint “clearly allege[d] that Plaintiffs changed their

10 behavior as a result of [the] alleged violation” of the law. Id. The same cannot be said

11 here. Neither Voto Latino nor Priorities USA have alleged any resources they would

12 have allocated to other activities “but for” the Election Day Deadline.

13

Plaintiffs’ reliance on El Rescate Legal Servs., Inc. v. Exec. Office of Immigration

14 Review, 959 F.2d 742, 748 (9th Cir. 1991) (Doc. 36 at 12), is also misplaced. There, the

15 Ninth Circuit relied on Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982),

16 where the Supreme Court held that where the defendants’ “practices have perceptibly

17 impaired [the organizational plaintiff’s] ability to provide [the services it was formed to

18 provide] … there can be no question that the organization suffered injury in fact.” See

19 El Rescate, 959 F.2d at 748 (quoting Havens, 455 U.S. at 379). In El Rescate, the

20 organizations “were established to assist Central American refugee clients, most of

21 whom are unable to understand English, in their efforts to obtain asylum and withholding

22 of deportation in immigration court proceedings.” 959 F.2d at 748. The defendant’s

23 policy at issue was “not to interpret many portions of immigration court hearings,” id. at

24 745, and thus, the Ninth Circuit held that the policy frustrated the goals of the

25 organizations and required them to “expend resources in representing clients they

26 otherwise would spend in other ways[,]” which was “enough to establish standing.” Id.

27 Here, Election Day Deadline has not impaired Voto Latino or Priorities USA from

28 providing any services or expending resources they would not otherwise provide.

4

Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 5 of 13

1

Simply put, Voto Latino and Priorities USA have not alleged a frustration of their

2 organizational missions or diversion of resources as a result of the Election Day

3 Deadline. And even though the Secretary has not challenged the voter’s standing to

4 bring this lawsuit, this Court should nonetheless dismiss the organizational Plaintiffs for

5 lack of standing. See We Are Am./Somos Am., Coal. of Ariz. v. Maricopa Cty. Bd. of

6 Supervisors, 809 F. Supp. 2d 1084, 1091 (D. Ariz. 2011) (stating that the general rule

7 permitting appellate courts to determine whether one plaintiff has standing “does not

8 strictly prohibit a district court, in a multiple plaintiff case … from considering the

9 standing of the other plaintiffs even if it finds that one plaintiff has standing”).

10 Voto Latino and Priorities USA should not be permitted to “effectively piggyback[]” on

11 the voter’s claims here. See id. at 1092 (discussing the “compelling reasons for

12 addressing the standing of all of the remaining plaintiffs”). Moreover, Article III

13 standing “is relevant not only with respect to who may access federal courts initially, but

14 it is also relevant to who may obtain a judgment.” Id. “Therefore, before deciding the

15 precise nature of [any] relief to award herein, necessarily, this court would have to decide

16 the issue of the organizations’ standing.” Id.

17 II. Plaintiffs’ Claims Fail As A Matter of Law

18

Plaintiffs insist that their claims are fact-intensive and require a developed factual

19 record. (Doc. 36 at 13.) But their claims should be dismissed because even taking their

20 allegations as true, the Election Day Deadline is constitutional.

21

A. The Election Day Deadline Is Not An Undue Burden On The Right To

22

Vote

23

Casting a ballot by the Election Day deadline is not burdensome, and the deadline

24 is easily justified by the State’s interests without factual development. The federal

25 Constitution authorizes State legislatures to prescribe the “Times, Places and Manner of

26 holding Elections . . .” US Const. art. I, § 4, cl. 1. States “retain broad authority to

27 structure and regulate elections.” Short v. Brown, 893 F.3d 671, 676 (9th Cir. 2018). As

28 noted in the Secretary’s motion to dismiss (Doc. 30 at 7–8), constitutional challenges to

5

Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 6 of 13

1 election regulations are evaluated under the two-part Anderson/Burdick framework.

2 See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428,

3 434 (1992). Under this framework, courts “must first consider the character and

4 magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate.”

5 Short, 893 F.3d at 676 (quoting Anderson, 460 U.S. at 789). If the asserted injury

6 evidences no burden, there is “no reason to call on the State to justify its practice.”

7 Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 732 n.12 (9th Cir. 2015). Minimal

8 burdens from generally-applicable, even-handed regulations are justified by a State’s

9 important regulatory interests. Timmons v. Twin Cities Area New Party, 520 U.S. 351,

10 358 (1997).

11

Here, contrary to Plaintiffs’ contention that the Election Day Deadline “poses

12 severe burdens on the right to vote” (Doc. 36 at 15), requiring a ballot to be received by

13 elections officials by 7:00 p.m. on Election Day is, at most, minimal. See Friedman v.

14 Snipes, 345 F. Supp.2d 1356, 1375 (S.D. Fla. 2004) (rejecting the argument that a ballot

15 receipt deadline is subject to strict scrutiny) (citing Burdick, 504 U.S. at 434); Dudum v.

16 Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011) (“We have repeatedly upheld as ‘not severe’

17 restrictions that are generally applicable, even-handed, politically neutral, and … protect

18 the reliability and integrity of the election process.”). As the Secretary discussed in her

19 motion to dismiss, the State’s interests in the Election Day deadline far outweigh the

20 minimal burden that Plaintiffs allege. (Doc. 30 at 13.) The State’s interests include

21 preventing voter confusion, preserving election integrity, promoting voter confidence,

22 and establishing rules for orderly election administration. See Timmons, 520 U.S. at

23 364–65; Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“Confidence in the integrity of our

24 electoral processes is essential to the function of our participatory democracy.”);

25 Crawford, 553 U.S. at 192-97 (recognizing state’s interest in promoting voter confidence

26 and improving and modernizing election administration). States have a substantial

27 interest in regulating their elections through various deadlines, like the deadline

28

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Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 7 of 13

1 challenged here, to ensure that “some sort of order, rather than chaos, is to accompany

2 the democratic processes.” Burdick, 504 U.S. at 433.

3

Indeed, there is no constitutional right to early voting, see McDonald, 394 U.S. at

4 807–10, and the challenged law here “merely imposes a deadline”––nothing more.

5 See Friedman, 345 F. Supp.2d at 1376 (reasoning that Florida’s ballot-receipt-deadline

6 statute “does not deny the right to vote to a class of persons” and “merely imposes a

7 deadline by which Plaintiffs must return their absentee ballots”); see also Mays v.

8 LaRose, 951 F.3d 775, 791-92 (6th Cir. 2020) (“Ohio’s generally applicable deadline for

9 requesting absentee ballots is constitutional because it imposes only a minimal burden on

10 Plaintiffs’ right to vote” and the state’s interests “justify that burden”) (citing McDonald,

11 394 U.S. at 807–09). Accordingly, Arizona’s Election Day Deadline for receiving

12 ballots is constitutional, even assuming some voters may need to account for slower mail

13 service if they opt to send ballots back to elections officials through the United States

14 Postal Service. See Friedman, 345 F. Supp. 2d at 1377 (“Florida’s 7 p.m. deadline of

15 returning ballots on election day does not disenfranchise a class of voters.”).

16

Plaintiffs suggest that the Ninth Circuit held in Soltysik v. Padilla, 910 F.3d 438

17 (9th Cir. 2018), that it is never appropriate to dismiss a challenge to an election law

18 under Rule 12(b)(6). (Doc. 36 at 13.) Soltysik made no such holding. Rather, when a

19 plaintiff “adequately plead[s] … more than a minimal burden, … further factual

20 development is necessary.” Soltysik, 910 F.3d at 449. Because the burden is minimal

21 here, dismissal is appropriate. See Storer v. Brown, 415 U.S. 724, 728 (1974) (affirming

22 dismissal of challenges to election law); Rubin v. City of Santa Monica, 308 F.3d 1008,

23 1012–13, 1019–20 (9th Cir. 2002) (same). Plaintiffs have not adequately pleaded more

24 than a minimal burden, at best.

25

Plaintiffs also cite Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019,

26 1024 n.2 (9th Cir. 2016), for the proposition that courts should consider “the effects of

27 the restriction on those voters who are actually impacted by the law” to assess “the

28 severity of the burden” (Doc. 36 at 16), but Pub. Integrity All., Inc., does not help them.

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Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 8 of 13

1 There, the Ninth Circuit noted that “[r]estrictions that block access to the ballot or

2 impede individual voters or subgroups of voters in exercising their right to vote receive

3 different treatment from rules establishing an overall, generally applicable electoral

4 system.” Pub. Integrity All., Inc., 836 F.3d at 1024 n.2. The law at issue here is a

5 “generally applicable” deadline that applies to all early ballots. See A.R.S. § 16–548(A).

6 It does not block access to the ballot or impede individual voters or groups in exercising

7 their right to vote.

8

B. The Election Day Deadline Does Not Implicate Procedural Due

9

Process

10

Plaintiffs’ claim that the Election Day Deadline violates voters’ right to

11 procedural due process under the Fourteenth Amendment (Doc. 36 at 18–21) also fails as

12 a matter of law. “The requirements of procedural due process apply only to the

13 deprivation of interests encompassed by the Fourteenth Amendment’s protection of

14 liberty and property.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569

15 (1972). The Election Day Deadline does not deprive anyone of liberty or property.

16

Plaintiffs’ procedural due process claim is governed by the Anderson/Burdick

17 standard. Doc. 30 at 13–15. See Dudum, 640 F.3d at 1106 n.15 (stating that the

18 Supreme Court has addressed First Amendment, Due Process, and Equal Protection

19 claims “collectively using a single analytical framework”) (citing Anderson, 460 U.S. at

20 787 n.7); see also Lemons v. Bradbury, 538 F.3d 1098, 1104–05 (9th Cir. 2008)

21 (rejecting procedural due process challenge to procedures for verifying referendum

22 petition signatures under the Anderson/Burdick test, and reasoning State’s regulatory

23 interests “are sufficient to justify the state’s ‘reasonable, nondiscriminatory

24 restrictions’”) (quoting Burdick, 504 U.S. at 434).

25

As the Secretary noted in the motion to dismiss (Doc. 30 at 15), Arizona law

26 requires every ballot to be accompanied by written instructions making clear to voters

27 that ballots must be delivered to the officer in charge of elections by 7:00 p.m. on

28 Election Day. A.R.S. § 16–547(C). That Arizona law provides this pre-election notice

8

Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 9 of 13

1 about the deadline to voters refutes Plaintiffs’ allegation that the Election Day Deadline

2 is not a “reliable” or “fair” way of administering voting by mail. (Doc. 21 at ¶ 73.)

3

Critically, Plaintiffs do not acknowledge A.R.S. § 16–547(C), let alone respond to

4 the Secretary’s argument. (See Doc. 36 at 18–21.) They instead assert that the Election

5 Day Deadline “disenfranchises voters each election because of the absence of post-

6 deprivation notice to voters that their ballot was not counted.” (Doc. 36 at 20.) But

7 voters indisputably have pre-deprivation notice as a matter of law under

8 A.R.S. § 16-547(C) (and post-deprivation notice, as discussed below). The Election Day

9 Deadline is not a secret; to the contrary, voters receive notice of the deadline with every

10 ballot they receive in advance of any election in which they decide to vote early.

11

Plaintiffs argue that their procedural due process claim is not governed by the

12 Anderson/Burdick test, and that the claim should instead be evaluated under Mathews v.

13 Eldridge, 424 U.S. 319, 335 (1976). (Doc. 36 at 18–21.) But as discussed above, the

14 Ninth Circuit has applied the Anderson/Burdick test to both substantive and procedural

15 due process claims. See Dudum, 640 F.3d at 1106 n.15; Lemons, 538 F.3d at 1104–05.

16 Nonetheless, even if Plaintiffs were correct, their claim still fails under Mathews, which

17 requires consideration of three factors: (1) “the private interest that will be affected by

18 the official action;” (2) “the risk of an erroneous deprivation of such interest through the

19 procedures used, and the probable value, if any, of additional or substitute procedural

20 safeguards;” and (3) the government’s interest, “including the function involved and the

21 fiscal and administrative burdens that the additional or substitute procedural requirement

22 would entail.” 424 U.S. at 321.

23

A voter has a liberty interest in the fundamental right to vote because, generally

24 speaking, fundamental rights constitute liberty interests under the Due Process Clause.

25 Burdick, 504 U.S. at 433. Plaintiffs cite a New Hampshire district court decision,

26 Saucedo v. Gardner, 335 F. Supp. 3d 202, 215 (D.N.H. 2018), for their suggestion that

27 “a voter has a sufficient liberty interest” to vote by mail once ‘the State permits voters to

28 vote absentee.’” (Doc. 36 at 20 n.6.) But the Supreme Court has emphasized that “the

9

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1 range of interests protected by procedural due process is not infinite,” Roth, 408 U.S. at

2 570, and has rejected the notion that states must extend absentee voting privileges in a

3 way that provides “a more convenient method of exercising the franchise[,]”

4 McDonald, 394 U.S. at 810–11. Thus, Mathews’ first factor does not weigh in Plaintiffs’

5 favor.

6

Arizona’s law establishing a deadline by which ballots must be received also does

7 not create a risk of erroneous deprivation of any liberty interest under Mathews’ second

8 factor. In Saucedo, this factor was significant because a voter could comply with all

9 legal requirements to have his/her ballot counted, but untrained election officials could

10 incorrectly declare a mismatched signature. See 355 F. Supp. 3d at 217–220 (providing

11 detailed explanation of uncontroverted evidence showing a relatively high risk that

12 untrained lay people would incorrectly find a mismatched signature and reject a ballot

13 for that reason). Here, in contrast, that voters must decide when to mail their ballots to

14 comply with the deadline––of which they have notice under A.R.S. § 16–547(C)––

15 cannot establish a “deprivation” under Mathews. Notably, the plaintiffs argued in

16 Saucedo that the New Hampshire law at issue violated procedural due process “because

17 it lacks any pre-deprivation process” where voters “receive neither prior notice of, nor an

18 opportunity to cure, a rejection due to a signature mismatch.” 335 F. Supp. 3d at 214.

19 Unlike Saucedo, Arizona voters have “pre-deprivation” notice that, “[i]n order to be

20 valid and counted, the ballot and affidavit must be delivered to the office of the county

21 recorder or other officer in charge of elections or may be deposited at any polling place

22 in the county no later than 7:00 p.m. on election day.” A.R.S. § 16–547(C). This notice

23 obviates any need for “post-deprivation notice” that Plaintiffs argue is lacking. (Doc. 36

24 at 20.)

25

Additionally, voters in Arizona have an opportunity to track the status of their

26 early or provisional ballots via the Secretary’s online voter information portal.2 Thus, a

27 2 See https://my.arizona.vote/PortalList.aspx (last visited Apr. 26, 2020). This Court

28

may take judicial notice of the publicly-available information displayed on the online portal. See Daniels-Hall v. Nat. Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010)

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1 voter has pre-deprivation notice of the deadline and post-deprivation notice of whether

2 his/her ballot was counted. Plaintiffs’ reliance on Raetzel v. Parks/Bellemont Absentee

3 Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990) (see Doc. 36 at 20–21), is

4 misplaced because in Raetzel, there was an “absence of any procedure which furnishes

5 post-deprivation notice to an individual whose absentee ballot has been disallowed[.]”

6 (Emphasis added.) Mathews’ second factor does not support Plaintiffs.

7

Third, as discussed above, the State has numerous interests that support the

8 Election Day Deadline––preventing voter confusion, preserving election integrity,

9 promoting voter confidence, and establishing rules for orderly election administration.

10 See Lemons, 538 F.3d at 1104 (noting that a state’s interest “in the orderly administration

11 of elections are weighty and undeniable”). The “substitute procedural requirement” that

12 Plaintiffs request here, see Mathews, 424 U.S. at 335, would entail additional

13 administrative burdens requiring election officials to count ballots for up to seven full

14 days after an election. For example, such a procedure would be burdensome for county

15 boards of supervisors, who must comply with statutory deadlines that are triggered after

16 every primary and general election for canvassing election results. See

17 A.R.S. §§ 16-642(A), –645. Thus, the value of Plaintiffs’ substitute procedure “is

18 negligible, and the burden on plaintiffs’ interests from the state’s failure to adopt their

19 proposed procedures is slight at most.” See Lemons, 538 F.3d at 1105.

20

Due process requirements are “flexible and cal[l] for such procedural protections

21 as the particular situation demands[.]” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

22 Arizona has extended more than adequate process to voters to ensure that voters’ ballots

23 are fairly counted.

24

25

26

27

(taking judicial notice of information on websites of school districts in reviewing district court’s dismissal for failure to state a claim, noting the information “was made publicly

28

available by government entities” and “neither party disputes the authenticity of the websites or the accuracy of the information displayed therein”) (citing Fed. R. Evid. 201).

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1

Finally, despite Plaintiffs’ discussion of the current COVID-19 public health crisis

2 (Doc. 36 at 7, 15 18), the circumstances surrounding COVID-19 do not affect the legal

3 analysis of the Secretary’s motion to dismiss.

4 III. Conclusion

5

The Court should dismiss the complaint in its entirety.

6

RESPECTFULLY SUBMITTED this 27th day of April, 2020.

7

8

MARK BRNOVICH ATTORNEY GENERAL

9

/s/ Linley Wilson

10

Linley Wilson (027040)

11

Kara Karlson (029407)

Dustin Romney (034728)

12

2005 North Central Avenue

13

Phoenix, AZ 85004-1592 (602) 542-4951

14 OSBORN MALEDON, PA
15

16

Mary R. O’Grady (011434)

Emma J. Cone-Roddy (034285)

17

OSBORN MALEDON, P.A.

18

2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012–2793

19

(602) 640-9000

20

Attorneys for Defendant Arizona

21

Secretary of State Katie Hobbs

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Case 2:19-cv-05685-DWL Document 40 Filed 04/27/20 Page 13 of 13

1

CERTIFICATE OF SERVICE

2

The foregoing was e-filed with the Clerk of the Federal Court for the District of

3 Arizona using the CM/ECF System on April 27, 2020.

4 Copy emailed this same day to:
5

6 Alexis E. Danneman PERKINS COIE LLP
7 2901 North Central Avenue, Suite 2000

8

Phoenix, Arizona 85012-2788 adanneman@perkinscoie.com

9 Amanda R. Callais
10 Christina A. Ford

11 John M. Devaney K’Shaani O. Smith
12 PERKINS COIE LLP

13

700 Thirteenth Street NW, Suite 600 Washington, D.C. 20005-3960

14 acallais@perkinscoie.com christinaford@perkinscoie.com
15 jdevaney@perkinscoie.com

16 kshaanismith@perkinscoie.com

17 /s/ Susan Peterson

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