Case: 2:20-cv-658 As of: 06/10/2020 10:31 AM MST 1 of 14
CLOSED,MIDP,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:20−cv−00658−DWL

Arizonans for Fair Elections et al v. Hobbs et al Assigned to: Judge Dominic W Lanza Case in other court: Ninth Circuit, 20−15719 − Mandate
05/19/20 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 04/02/2020 Date Terminated: 04/17/2020 Jury Demand: None Nature of Suit: 950 Other Statutes: Constitutionality of State Statutes Jurisdiction: Federal Question

Arizonans for Fair Elections AZAN, an Arizona nonprofit corporation

represented by Israel G Torres Torres Law Group PLLC 2239 W Baseline Rd. Tempe, AZ 85283 480−588−6120 Email: israel@thetorresfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline Mendez Soto Torres Law Group PLLC 2239 W Baseline Rd. Tempe, AZ 85283 480−588−6120 Email: jacqueline@thetorresfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Evans Barton , II Torres Law Group PLLC 2239 W Baseline Rd. Tempe, AZ 85283 602−626−8805 Fax: 602−626−8889 Email: james@TheTorresFirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Arizonans Fed up with Failing Healthcare Healthcare Rising AZ, an Arizona nonprofit corporation

represented by Israel G Torres (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline Mendez Soto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Evans Barton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Randi L Turk an individual

represented by Israel G Torres (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Jacqueline Mendez Soto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Evans Barton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Katie Hobbs Arizona Secretary of State
Defendant Edison Wauneka Apache County Recorder Defendant David Stevens Cochise County Recorder

represented by Jillian Laura Andrews Ballard Spahr LLP − Phoenix, AZ 1 E Washington St., Ste. 2300 Phoenix, AZ 85004−2555 602−798−5400 Email: andrewsj@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roy Herrera , Jr. Ballard Spahr LLP − Phoenix, AZ 1 E Washington St., Ste. 2300 Phoenix, AZ 85004−2555 602−798−5400 Fax: 602−798−5595 Email: herrerar@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Abraham Arellano Ballard Spahr LLP − Phoenix, AZ 1 E Washington St., Ste. 2300 Phoenix, AZ 85004−2555 602−798−5400 Fax: 602−798−5595 Email: arellanod@ballardspahr.com ATTORNEY TO BE NOTICED
represented by Britt Wesley Hanson Office of Cochise County Attorney PO Drawer CA Bisbee, AZ 85603 520−432−8700 Fax: 520−432−8778 Email: bhanson@cochise.az.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Joyce Roberts Cochise County Attorney P.O. Box CA Bisbee, AZ 85603 520−432−8754

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Fax: 520−432−8778 Email: croberts@cochise.az.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Patty Hansen Coconino County Recorder

represented by Rose Marie Winkeler Coconino County Attorneys Office 110 E Cherry Ave. Flagstaff, AZ 86001−4627 928−679−8200 Email: rwinkeler@coconino.az.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sadie Jo Bingham Gila County Recorder

Defendant
Wendy John Graham County Recorder

Defendant
Sharie Miheiro Greenlee County Recorder

Defendant
Richard Garcia La Paz County Recorder

represented by Ryan Norton Dooley La Paz County Attorneys Office 1320 Kofa Ave. Parker, AZ 85344 928−669−6118 Email: rdooley@lapazcountyaz.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Adrian Fontes Maricopa County Recorder

represented by Joseph James Branco Maricopa County Attorneys Office − Phoenix (Central Ave.) 222 N Central Ave., Ste 1100 Phoenix, AZ 85004−2206 602−506−8541 Fax: 602−506−8567 Email: brancoj@mcao.maricopa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Eugene LaRue Maricopa County Attorneys Office − Phoenix (Central Ave.) 222 N Central Ave., Ste 1100 Phoenix, AZ 85004−2206 602−506−8541 Fax: 602−506−8567 Email: ca−civilmailbox@mcao.maricopa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

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Kristi Blair Mohave County Recorder

represented by Jeffrey Blane Haws Mohave County Attorneys Office P.O. Box 7000 Kingman, AZ 86402−7000 928−753−0770 Email: jeff.haws@mohavecounty.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Doris Clark Navajo County Recorder

represented by Jason Stanley Moore Navajo County Attorneys Office P.O. Box 668 Holbrook, AZ 86025 928−524−4307 Fax: 928−524−4307 Email: jason.moore@navajocountyaz.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
F Ann Rodriguez Pima County Recorder

represented by Daniel S Jurkowitz Pima County Attorneys Office 32 N Stone Ave., Ste. 2100 Tucson, AZ 85701 520−740−5750 Fax: 520−740−5600 Email: Daniel.Jurkowitz@pcao.pima.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Virginia Ross Pinal County Recorder

represented by Craig Charles Cameron Pinal County Attorneys Office P.O. Box 887 Florence, AZ 85132 520−866−6466 Fax: 520−866−6521 Email: craig.cameron@pinal.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Suzanne Sainz Santa Cruz County Recorder

represented by Kimberly Janiece Hunley Santa Cruz County Attorney 2150 N Congress Dr., Ste. 201 Nogales, AZ 85621−1090 520−375−7780 Fax: 520−375−7793 Email: khunley@co.santa−cruz.az.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Leslie Hoffman Yavapai County Recorder

Defendant
Robyn Pouquette Yuma County Recorder

represented by William J Kerekes Yuma County Attorneys Office 250 W 2nd St., Ste. G

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Yuma, AZ 85364 928−817−4300 Fax: 928−817−4321 Email: YCAttyCivil@yumacountyaz.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Arizona, State of
Movant Speaker of the Arizona House of Representatives
Movant President of the Arizona Senate

represented by Drew Curtis Ensign Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−5200 Fax: 602−542−4377 Email: drew.ensign@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert John Makar Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−4389 Fax: 602−542−4377 Email: Robert.Makar@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Aaron Brown Cantelme & Brown PLC 2020 S McClintock Dr., Ste. 109 Tempe, AZ 85282 602−200−0104 Fax: 602−200−0106 Email: dbrown@cb−attorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J Cantelme Cantelme & Brown PLC 2020 S McClintock Dr., Ste. 109 Tempe, AZ 85282 602−200−0104 Fax: 602−200−0106 Email: djc@cb−attorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Aaron Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J Cantelme (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Amicus Arizona Republican Party

represented by Dennis Ira Wilenchik Wilenchik & Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Fax: 602−606−2811 Email: admin@wb−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Douglas Wilenchik Wilenchik & Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Email: jackw@wb−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Miller Wilenchik & Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Fax: 602−606−2811 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Arizona Free Enterprise Club

represented by Timothy Andrew LaSota Timothy A LaSota PLC 2198 E Camelback Rd., Ste. 305 Phoenix, AZ 85016 602−515−2649 Fax: 602−340−0888 Email: tim@timlasota.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Goldwater Institute 500 E. Coronado Rd. Phoenix, AZ 85004 602−462−5000

represented by Timothy Mason Sandefur Goldwater Institute 500 E Coronado Rd. Phoenix, AZ 85004 602−462−5000 Email: tsandefur@goldwaterinstitute.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/02/2020
04/02/2020

# Docket Text
1 COMPLAINT (TRO Requested). Filing fee received: $ 400.00, receipt number 0970−18138834 filed by Randi L Turk, Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Submitted by James E. Barton II) (Attachments: # 1 Civil Cover Sheet)(MSA) (Entered: 04/02/2020)
2 MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, Randi L Turk. (Submitted by James E. Barton II) (Attachments: # 1 Text of Proposed Order)(MSA) (Entered: 04/02/2020)

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04/03/2020
04/04/2020 04/04/2020 04/04/2020 04/04/2020 04/04/2020 04/04/2020

3 AFFIDAVIT of Anabel Maldonado by Plaintiffs Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, Randi L Turk. (Submitted by James E. Barton II ) (MSA) (Entered: 04/02/2020)
4 AFFIDAVIT of Jessica Grennan by Plaintiffs Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, Randi L Turk. (Submitted by James E. Barton II) (MSA) (Entered: 04/02/2020)
5 AFFIDAVIT of Randi L. Turk by Plaintiffs Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, Randi L Turk. (Submitted by James E. Barton II) (MSA) (Entered: 04/02/2020)
6 Corporate Disclosure Statement by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections (Submitted by James E. Barton II) (MSA) (Entered: 04/02/2020)
7 Filing fee paid, receipt number 0970−18138834. This case has been assigned to the Honorable Dominic W Lanza. All future pleadings or documents should bear the correct case number: CV−20−00658−PHX−DWL. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (MSA) (Entered: 04/02/2020)
8 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 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. (MSA) (Entered: 04/02/2020)
9 ORDER: IT IS ORDERED that Plaintiffs shall serve Defendants with the complaint (Doc. 1), summons, motion for a TRO (Doc. 2), and this Order as soon as practicable, and in any case by April 6, 2020. Plaintiffs shall also file with the Court proof of service of Defendants. IT IS FURTHER ORDERED that Defendants shall file a Response to Plaintiffs' motion for a TRO (Doc. 2) by April 10, 2020. IT IS FURTHER ORDERED setting a hearing on Plaintiffs' motion for a TRO (Doc. 2) on April 14, 2020, at 10:30 a.m. Due to the Covid−19 pandemic, this will be a telephonic hearing. See D. Ariz. G.O. 20−17 ("To protect the safety and health of all those entering and working in the Courthouse, the Court ORDERS that all proceedings, except those court proceedings deemed necessary by the Court, are continued until further order of the Court.... Individual judges may hold hearings in civil matters as they deem necessary in the safest manner possible. Hearings deemed necessary by the Court will be scheduled and conducted by video teleconference or telephone to the extent possible."). Counsel are directed to call (866) 390−1828; Access Code: 9667260 five minutes before the scheduled hearing. Counsel are advised that speaker phones and cell phones are not permitted [see attached Order for details]. Signed by Judge Dominic W Lanza on 4/3/20. (MAW) (Entered: 04/03/2020)
10 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
11 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
12 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
13 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
14 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
15 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)

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04/06/2020

16 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
17 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
18 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
19 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
20 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
21 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
22 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
23 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/04/2020)
24 Summons Issued as to Sadie Jo Bingham, Kristi Blair, Doris Clark, Richard Garcia, Patty Hansen, Wendy John, Virginia Ross, David Stevens. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons)(BAS). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 04/06/2020)
25 NOTICE TO FILER OF DEFICIENCY re: 15 Summons Submitted filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, 10 Summons Submitted filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, 23 Summons Submitted filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, 22 Summons Submitted filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. Names on summonses do not match complaint. FOLLOW−UP ACTION REQUIRED: Please refile corrected document. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 04/06/2020)
26 Summons Issued as to Suzanne Sainz. (BAS). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 04/06/2020)
27 NOTICE of Appearance by Jason Stanley Moore on behalf of Doris Clark. (Moore, Jason) (Entered: 04/06/2020)
28 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/06/2020)
29 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/06/2020)
30 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/06/2020)
31 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/06/2020)
32 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/2/2020 to Adrian Fontes, Maricopa County Recorder. (Barton, James) *Modified text on 4/7/2020 (DXD). (Entered: 04/06/2020)
33 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/2/2020 to F. Ann Rodriguez, Pima County Recorder. (Barton, James) *Modified text on 4/7/2020 (DXD). (Entered: 04/06/2020)

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04/07/2020

34 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/2/2020 to Kristi Blair, Mohave County Recorder . (Barton, James) (Entered: 04/06/2020)
35 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/3/2020 to Patty Hansen, Coconino County Recorder . (Barton, James) (Entered: 04/06/2020)
36 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/2/2020 to Sharie Milheiro, Greenlee County Recorder . (Barton, James) (Entered: 04/06/2020)
37 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/3/2020 to David Stevens . (Barton, James) (Entered: 04/06/2020)
38 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/3/2020 to Virginia Ross, Pinal County Recorder . (Barton, James) (Entered: 04/06/2020)
39 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/3/2020 to Doris Clark, Navajo County Recorder . (Barton, James) (Entered: 04/06/2020)
40 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/3/2020 to Suzie Sainz, Santa Cruz County Recorder . (Barton, James) (Entered: 04/06/2020)
41 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/3/2020 to Katie Hobs, Secretary of State . (Barton, James) (Entered: 04/06/2020)
42 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/3/2020 to Robyn Pouquette, Yuma County Recorder . (Barton, James) (Entered: 04/06/2020)
43 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/3/2020 to Leslie Hoffman, Yavapai County Recorder . (Barton, James) (Entered: 04/06/2020)
44 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/2/2020 to Wendy John, Graham County Recorder. (Barton, James) *Modified text on 4/7/2020 (DXD). (Entered: 04/06/2020)
45 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/2/2020 to Richard Garcia, La Paz County Recorder . (Barton, James) (Entered: 04/06/2020)
46 MOTION to Intervene by State of Arizona. (Attachments: # 1 Text of Proposed Order)(Ensign, Drew) (Entered: 04/06/2020)
47 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Affidavit of Service re: Complaint, Motion for Temporary Restraining Order, Affidavits, MIDP Notice, Hearing Order upon Edison Wauneka, Apache County Recorder on 04/06/2020. (Barton, James) (Entered: 04/06/2020)
48 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Affidavit of Process re: Complaint, Summons, Motion for Temporary Restraining Order, Affidavits, MIDP Notice, Hearing Order upon Sadie Jo Bingham, Gila County Recorder on 04/06/2020. (Barton, James) (Entered: 04/06/2020)
49 Summons Issued as to Leslie Hoffman, Sharie Miheiro, Robyn Pouquette. (Attachments: # 1 Summons, # 2 Summons)(BAS). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 04/07/2020)

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04/07/2020
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50 NOTICE TO FILER OF DEFICIENCY re: 28 Summons Submitted filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. Defendant name does not match complaint. FOLLOW−UP ACTION REQUIRED: Please refile corrected document. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 04/07/2020)
51 SUMMONS Submitted by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/07/2020)
52 SERVICE EXECUTED filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections: Rule 4 Waiver of Service of Summons. Waiver sent on 4/2/2020 to Sadie Jo Bingham, Gila County Recorder . (Barton, James) (Entered: 04/07/2020)
53 RESPONSE to Motion re: 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by F Ann Rodriguez. (Jurkowitz, Daniel) (Entered: 04/07/2020)
54 NOTICE of Appearance by Ryan Norton Dooley on behalf of Richard Garcia. (Dooley, Ryan) (Entered: 04/07/2020)
55 Summons Issued as to Edison Wauneka. (BAS). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 04/08/2020)
56 NOTICE of Appearance by Joseph Eugene LaRue on behalf of Adrian Fontes. (LaRue, Joseph) (Entered: 04/08/2020)
57 ORDER: The Court has reviewed the State of Arizona's motion to intervene (Doc. 46 ) and is inclined to grant it. However, because Plaintiffs appear to oppose the motion, they will be given an opportunity to respond before any final determination is made. Plaintiffs' response is due by Noon on April 9, 2020. This schedule will permit the State to comply with the existing TRO briefing schedule (Doc. 9 ) if intervention is permitted. Ordered by Judge Dominic W Lanza on 4/8/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 04/08/2020)
58 NOTICE of Appearance by Daniel S Jurkowitz on behalf of F Ann Rodriguez. (Jurkowitz, Daniel) (Entered: 04/08/2020)
59 *RESPONSE in Opposition re: 46 MOTION to Intervene filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, Randi L Turk. (Barton, James) *Modified to add filer on 4/9/2020 (DXD). (Entered: 04/08/2020)
60 MOTION to Intervene by Speaker of the Arizona House of Representatives, President of the Arizona Senate. (Attachments: # 1 Exhibit 1 − Draft Answer, # 2 Text of Proposed Order)(Cantelme, David) (Entered: 04/08/2020)
61 ORDER: IT IS ORDERED that the State of Arizona's motion to intervene (Doc. 46 ) is granted. As set out in a prior order, the State's response to the TRO motion is due no later than April 10, 2020 [see attached Order for details]. Signed by Judge Dominic W Lanza on 4/9/20. (MAW) (Entered: 04/09/2020)
62 RESPONSE to Motion re: 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Adrian Fontes. (LaRue, Joseph) (Entered: 04/09/2020)
63 RESPONSE in Opposition re: 60 MOTION to Intervene filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/10/2020)
64 NOTICE of Appearance by Craig Charles Cameron on behalf of Virginia Ross. (Cameron, Craig) (Entered: 04/10/2020)
65 *RESPONSE to Motion re: 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Virginia Ross. (Cameron, Craig) *Document not in Compliance with LRCiv 7.1(c). Attorney Notified on 4/13/2020 (DXD). (Entered: 04/10/2020)

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04/10/2020 04/10/2020 04/10/2020
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04/12/2020

66 NOTICE of Appearance by William J Kerekes on behalf of Robyn Pouquette. (Kerekes, William) (Entered: 04/10/2020)
67 Joinder re: 62 Response to Motion for Temporary Restraining Order by Defendant Robyn Pouquette. (Kerekes, William) (Entered: 04/10/2020)
68 ORDER: The Court has received inquiries from media representatives who wish to listen to the April 14, 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 April 14, 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 4/10/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 04/10/2020)
69 REPLY to Response to Motion re: 60 MOTION to Intervene filed by President of the Arizona Senate, Speaker of the Arizona House of Representatives. (Cantelme, David) (Entered: 04/10/2020)
70 NOTICE of Appearance by Daniel Abraham Arellano on behalf of Katie Hobbs. (Arellano, Daniel) (Entered: 04/10/2020)
71 NOTICE of Appearance by Jeffrey Blane Haws on behalf of Kristi Blair. (Haws, Jeffrey) (Entered: 04/10/2020)
72 Joinder re: 65 Response to Motion, 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order by Defendant Doris Clark. filed by Doris Clark. (Moore, Jason) (Entered: 04/10/2020)
73 RESPONSE to Motion re: 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Kristi Blair. (Haws, Jeffrey) (Entered: 04/10/2020)
74 **Corrected at (Doc. 77 )** RESPONSE in Opposition re: 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Arizona, State of. (Attachments: # 1 Affidavit Makar Declaration)(Ensign, Drew) *Modified on 4/13/2020 (DXD). (Entered: 04/10/2020)
75 ORDER: IT IS ORDERED that Proposed Intervenors' motion to intervene (Doc. 60 ) is denied. IT IS FURTHER ORDERED authorizing Proposed Intervenors to file an amicus brief [see attached Order for details]. Signed by Judge Dominic W Lanza on 4/10/20. (MAW) (Entered: 04/10/2020)
76 MOTION to File Amicus Curiae by The Arizona Republican Party. (Attachments: # 1 Exhibit Amicus Brief, # 2 Text of Proposed Order Order)(Wilenchik, John) (Entered: 04/10/2020)
77 RESPONSE in Opposition re: 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order (Corrected Brief) filed by Arizona, State of. (Attachments: # 1 Affidavit Makar Declaration)(Ensign, Drew) (Entered: 04/10/2020)
78 RESPONSE to Motion re: 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order Response of Arizona Secretary of State Katie Hobbs to Motion for Temporary Restraining Order and Preliminary Injunction filed by Katie Hobbs. (Attachments: # 1 Affidavit Dul Declaration)(Herrera, Roy) (Entered: 04/10/2020)
79 Additional Attachments to Main Document re: 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order Affidavit of Christopher Gallaway by Plaintiffs Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/12/2020)

Case: 2:20-cv-658 As of: 06/10/2020 10:31 AM MST 12 of 14

04/13/2020 04/13/2020 04/13/2020 04/13/2020
04/13/2020 04/13/2020 04/14/2020 04/14/2020 04/14/2020 04/14/2020 04/14/2020

80 Amicus Curiae APPEARANCE entered by Timothy Andrew LaSota on behalf of Arizona Free Enterprise Club. (Attachments: # 1 Exhibit Proposed Amicus Brief)(LaSota, Timothy) (Entered: 04/13/2020)
81 NOTICE of Appearance by Rose Marie Winkeler on behalf of Patty Hansen. (Winkeler, Rose) (Entered: 04/13/2020)
82 MOTION for Reconsideration re: 75 Order on Motion to Intervene by President of the Arizona Senate, Speaker of the Arizona House of Representatives. (Cantelme, David) (Entered: 04/13/2020)
83 ORDER: IT IS ORDERED that the Arizona Republican Party's motion for leave to file an amicus brief (Doc. 76 ) is granted. The Clerk of Court is directed to file the amicus brief (Doc. 76−1). No response or reply will be permitted regarding the amicus brief unless later ordered by the Court. IT IS FURTHER ORDERED that the Arizona Free Enterprise Club's motion for leave to file an amicus brief (Doc. 80 ) is granted. The Clerk of Court is directed to file the amicus brief (Doc. 80−1). No response or reply will be permitted regarding the amicus brief unless later ordered by the Court [see attached Order for details]. Signed by Judge Dominic W Lanza on 4/13/20. (MAW) (Entered: 04/13/2020)
84 NOTICE of Appearance by Kimberly Janiece Hunley on behalf of Suzanne Sainz. (Hunley, Kimberly) (Entered: 04/13/2020)
85 Joinder re: 62 Response to Motion FOR TEMPORARY RESTRAINING ORDER by Defendant Suzanne Sainz. filed by Suzanne Sainz. (Hunley, Kimberly) (Entered: 04/13/2020)
86 Amicus Curaie BRIEF by Amicus Arizona Republican Party. (DXD) (Entered: 04/14/2020)
87 Amicus Curiae BRIEF by Amicus Arizona Free Enterprise Club. (DXD) (Entered: 04/14/2020)
88 NOTICE of Appearance by Christine Joyce Roberts on behalf of David Stevens. (Roberts, Christine) (Entered: 04/14/2020)
89 MOTION to File Amicus Curiae Brief by Goldwater Institute. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Text of Proposed Order Granting Leave to File Amicus Brief)(Sandefur, Timothy) (Entered: 04/14/2020)
90 MINUTE ENTRY for proceedings held before Judge Dominic W Lanza: Telephonic Motion Hearing held on 4/14/2020. Argument held. IT IS ORDERED taking under advisement 2 Motion for Temporary Restraining Order.

04/14/2020 04/14/2020

APPEARANCES: Telephonic appearance by James Barton, II, for Plaintiffs. Telephonic appearances by Jeffrey Haws, Jason Moore, Joseph LaRue, Rose Winkeler, Daniel Arellano, Roy Herrera, Jr., Wiliam Kerekes, Daniel Jurkowitz, Craig Cameron and Kimberly Hunley for Defendants. Telephonic appearance by Drew Ensign for Intervenor Defendant. Telephonic appearance by Aaron Brown for the Speaker of the Arizona House of Representatives and the President of the Arizona State Senate. Also present on the phone: Jeff Dalton for Defendant Sadie Bingham, Thomas Stoxen for Defendant Leslie Hoffman and Jeremy Ford for Defendant Sharie Miheiro. (Court Reporter Candy Potter) Hearing held 10:38 AM to 12:04 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 04/14/2020)
91 ORDER: For the reasons given in the Court's April 13, 2020 order (Doc. 83 ), IT IS ORDERED that the Goldwater Institute's motion to file amicus curiae brief (Doc. 89 ) is granted. The Clerk of Court is directed to file the amicus brief (Doc. 89−1). No response or reply will be permitted regarding the amicus brief unless later ordered by the Court. Ordered by Judge Dominic W Lanza on 4/14/20. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 04/14/2020)
92 Amicus Curiae BRIEF by Amicus Goldwater Institute. (GMP) (Entered: 04/14/2020)

Case: 2:20-cv-658 As of: 06/10/2020 10:31 AM MST 13 of 14

04/14/2020 04/15/2020 04/15/2020 04/15/2020 04/15/2020
04/15/2020 04/15/2020
04/16/2020 04/17/2020 04/17/2020 04/17/2020
04/17/2020

93 TRANSCRIPT REQUEST State of Arizona's Transcript Request re 4/14/2020 Telephonic Motion Hearing by Arizona, State of for proceedings held on 4/14/2020, Judge Dominic W Lanza hearing judge(s). (Makar, Robert) (Entered: 04/14/2020)
94 NOTICE TO FILER OF DEFICIENCY re: 88 Notice of Appearance/Association of Counsel. Document not in compliance with LRCiv 7.1(a)(3) − Party names must be capitalized using proper upper and lower case type. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DXD) (Entered: 04/15/2020)
95 AMENDED DOCUMENT by Suzanne Sainz. Amendment to 84 Notice of Appearance/Association of Counsel . (Hunley, Kimberly) (Entered: 04/15/2020)
96 TRANSCRIPT REQUEST by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections for proceedings held on 4/14/2020, Judge Dominic W Lanza hearing judge(s). (Barton, James) (Entered: 04/15/2020)
97 NOTICE TO FILER OF DEFICIENCY re: 96 Transcript Request filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. Document not in compliance with LRCiv 5.5(g) ELECTRONIC FILING − Documents signed by an attorney shall be filed using that attorney's ECF log−in and password and shall not be filed using a log−in and password belonging to another attorney. FOLLOW−UP ACTION REQUIRED: Please refile with sections 1 & 19 matching the name of the ECF registered user under whose log−in and password the document will be re−submitted under. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) (Entered: 04/15/2020)
98 AMENDED TRANSCRIPT REQUEST pursuant to 97 Notice of Deficiency by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections for proceedings held on 4/14/2020, Judge Dominic W Lanza hearing judge(s). (Barton, James) (Entered: 04/15/2020)
102 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of TELEPHONIC MOTION HEARING proceedings held on 04/14/2020, before Judge DOMINIC W. LANZA. [Court Reporter: Candy L. Potter, RMR, CRR, Telephone number (602) 322−7246]. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/6/2020. Redacted Transcript Deadline set for 5/18/2020. Release of Transcript Restriction set for 7/14/2020. (RAP) (Entered: 04/17/2020)
99 MOTION Conditional Request To Certify Issue To Arizona Supreme Court by Arizona, State of. (Attachments: # 1 Text of Proposed Order Proposed Order)(Ensign, Drew) (Entered: 04/16/2020)
100 MOTION Conditional Request To Certify Issue To Arizona Supreme Court (Corrected PDF) by Arizona, State of. (Attachments: # 1 Text of Proposed Order Proposed Order)(Ensign, Drew) (Entered: 04/17/2020)
101 RESPONSE in Opposition re: 100 MOTION Conditional Request To Certify Issue To Arizona Supreme Court (Corrected PDF) filed by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections. (Barton, James) (Entered: 04/17/2020)
103 ORDER − Plaintiffs' Complaint (Doc. 1 ) is dismissed without prejudice due to a lack of subject matter jurisdiction. Plaintiffs' Motion for a TRO (Doc. 2 ) is denied as moot. The Motion for Reconsideration (Doc. 82 −) is denied as moot. The State's Conditional Motion to Certify questions to the Arizona Supreme Court (Docs. 99 , 100 ) are denied as moot. The Clerk shall terminate this action and enter judgment accordingly. Signed by Judge Dominic W Lanza on 4/17/20. (DXD) (Entered: 04/17/2020)
104 CLERK'S JUDGMENT − Pursuant to the Court's Order filed April 17, 2020, judgment of dismissal due to lack of subject matter jurisdiction is entered. Plaintiff to take nothing, and the complaint and action are dismissed without prejudice. (DXD) (Entered: 04/17/2020)

Case: 2:20-cv-658 As of: 06/10/2020 10:31 AM MST 14 of 14

04/20/2020
04/20/2020
04/21/2020 04/21/2020 05/19/2020

105 *Redocket at Doc. 106 ** NOTICE re: Notice of Appeal by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, Randi L Turk. (Barton, James) *Modified to docket using correct event/ add filer on 4/20/2020 (DXD). (Entered: 04/20/2020)
106 NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 103 Order, 104 Clerks Judgment by Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections, Randi L Turk. NOTE: Doc 105 redocketd using correct event. (DXD) (Entered: 04/20/2020)
107 USCA Case Number re: 106 Notice of Appeal. Case number 20−15719, Ninth Circuit. (LAD) (Entered: 04/21/2020)
Appeal to 9th Circuit Court of Appeals Fee Received: $ 505.00 receipt number 0970−18204117. (Barton, James) (Entered: 04/21/2020)
108 MANDATE of USCA (20−15719) granting appellants' motion to dismiss re: 106 Notice of Appeal filed by Arizonans Fed up with Failing Healthcare, Randi L Turk, Arizonans for Fair Elections. The parties shall bear their own costs on appeal. A copy of this order shall serve as and for the mandate of this court. (LAD) (Entered: 05/19/2020)

 
 Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 1 of 22

1 Israel G. Torres (#020303)

2 James E. Barton II (#023888) Jacqueline Mendez Soto (#022597)

3 TORRES LAW GROUP, PLLC

4

2239 West Baseline Road Tempe, Arizona 85283

5 (480) 588-6120

6

James@TheTorresFirm.com Jacqueline@TheTorresFirm.com

7 Attorneys for Plaintiffs

8

9

UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF ARIZONA

11

12 Arizonans for Fair Elections (AZAN),

13

an Arizona nonprofit corporation; Arizonans Fed Up with Failing

14 Healthcare (Healthcare Rising AZ) an

Arizona nonprofit corporation; and 15 Randi L. Turk, an individual,

16

Plaintiffs,

17 v.
18 Katie Hobbs, Arizona Secretary of
19 State; Edison Wauneka, Apache County

20 Recorder; David Stevens, Cochise County Recorder; Patty Hansen,
21 Coconino County Recorder; Sadie Jo

22 Bingham, Gila County Recorder; Wendy John, Graham County Recorder;
23 Sharie Miheiro, Greenlee County

24 Recorder; Richard Garcia, La Paz County Recorder; Adrian Fontes,
25 Maricopa County Recorder; Kristi Blair,

26

Mohave County Recorder; Doris Clark, Navajo County Recorder; F. Ann

27 Rodriguez, Pima County Recorder;

28 Virginia Ross, Pinal County Recorder;

Case No.:
COMPLAINT AND REQUEST FOR INJUNCTION

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 2 of 22

1 Suzanne Sainz, Santa Cruz County

2

Recorder; Leslie Hoffman, Yavapai County Recorder; and Robyn Pouquette,

3 Yuma County Recorder; all in their

4 official capacities,

5

Defendant.

6

7

Plaintiffs file this Complaint and Request for Injunctive Relief against Defendants,

8 Katie Hobbs, as the Secretary of State (the “Secretary”) for Arizona and the County

9 Recorders of each Arizona County in their official capacities, and allege as follows:

10 I. NATURE OF ACTION
11

12

1. At issue in this action is the constitutionality of certain provisions of title

13 19, Chapter 1, Arizona Revised Statutes, related to the signature-gathering process for
14 initiative measures, under the current pandemic posed by the 2019 Novel Coronavirus
15 16 (“COVID-19”). Plaintiffs contend that to the extent these provisions deny the committees

17 supporting initiatives and voters who would like to sign petitions in support of these

18 initiatives access to the State’s secure online signature gathering system, they are 19 20 unconstitutional because, given the current pandemic, they unduly burden and restrict the

21 people’s right to petition their government and gather signatures petitioning their

22 government, an activity that is protected by the First Amendment as freedom of speech

23 and association.
24

25

2. Plaintiffs seek injunctive relief to require the Defendants to take or refrain

26 from taking certain actions that would cause irreparable harm to the Plaintiffs and other
27 similarly situated organizations and individuals. The COVID-19 pandemic, which is
28

2

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 3 of 22

1 forcing people into quarantine and other self-isolating and social-distancing measures,

2 makes enforcement of Title 19 provisions requiring signatures to be gathered in the 3 4 presence of a circulator an unconstitutional burden at this time. Injunctive relief is

5 necessary to avoid imposing an unconstitutional burden on the Plaintiff’s Free Speech

6 rights that would prevent the people and organizations from qualifying their initiative

7 measures to be on the ballot for the November 3, 2020 General Election.
8

9

II. THE PARTIES

10

3. Plaintiff Arizonans for Fair Elections (AZAN) (“AFE”) is an Arizona non-

11 profit organization with its principal place of business in Phoenix, Arizona. AFE is a
12

13 social welfare nonprofit corporation within the meaning of Section 501(c)(4) of the

14 Internal Revenue Code and was formed to promote the Fair Elections Act, a ballot

15 initiative. It is registered as a ballot measures committee with the Secretary as Committee 16 17 Number 100141.

18

4. Plaintiff Arizonans Fed Up with Failing Healthcare (Healthcare Rising AZ)

19 (“HRAZ”) is an Arizona non-profit organization with its principal place of business in 20
Phoenix, Arizona. HRAZ is a social welfare nonprofit corporation within the meaning of 21
22 Section 501(c)(4) of the Internal Revenue Code and was formed to promote the Stop

23 Surprise Billing and Protect Patients Act, a ballot initiative. It is registered as a ballot
24 measures committee with the Secretary as Committee Number 100082.
25

26

27

28

3

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 4 of 22

1

5. Plaintiff Randi L. Turk is a qualified elector within the State of Arizona

2 who would like to sign the petitions supported by the Committee Plaintiffs but has not 3 4 yet done so.

5

6. Defendant Katie Hobbs is Arizona’s Secretary of State and Chief Elections

6 Officer. A.R.S. § 16-142. As Arizona’s Chief Elections Officer, the Secretary is 7
responsible for overseeing the filing and processing of candidate and initiative petitions 8
9 in elections and certifying the results of the elections. A.R.S. §§ 16-301 through -351.01

10 and 19-101 through -161. The Secretary is sued in her official capacity for omissions and
11 actions taken under color of law that have infringed upon the people’s constitutional
12 13 rights.

14

7. Defendants Edison Wauneka, Apache County Recorder; David Stevens,

15 Cochise County Recorder; Patty Hansen, Coconino County Recorder; Sadie Jo Bingham, 16 17 Gila County Recorder; Wendy John, Graham County Recorder; Sharie Miheiro, Greenlee

18 County Recorder; Richard Garcia, La Paz County Recorder; Adrian Fontes, Maricopa

19 County Recorder; Kristi Blair, Mohave County Recorder; Doris Clark, Navajo County 20
Recorder; F. Ann Rodriguez, Pima County Recorder; Virginia Ross, Pinal County 21
22 Recorder; Suzanne Sainz, Santa Cruz County Recorder; Leslie Hoffman, Yavapai County

23 Recorder; and Robyn Pouquette, Yuma County Recorder; are the County Recorders in
24 each Arizona County and are sued in their official capacity.
25

26

27

28

4

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 5 of 22

1

III. JURISDICTION

2

8. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the

3

4 deprivation, under color of state law, of rights secured by the U.S. Constitution.

5

9. This Court has original jurisdiction over the subject matter of this action

6 pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under

7 the Constitution and laws of the United States.
8

9

10. This Court has personal jurisdiction over the Secretary and the County

10 Recorders, who are sued in their official capacity only.
11 11. Venue is proper in this district under 28 U.S.C. § 1391(b) because the
12 13 Secretary and all County Recorders resides in Arizona and the events that gave rise to

14 Plaintiffs’ claims occurred in this judicial district. Venue is proper in the Phoenix division

15 because a substantial part of the events or omissions giving rise to this complaint occurred 16 17 in Maricopa, County.

18

12. This Court has authority to enter declaratory and injunctive relief under 28

19 U.S.C. §§2201 and 2202 and Rule 65 of the Federal Rules of Civil Procedure.

20 IV. GENERAL ALLEGATIONS
21

22

Background

23

13. Pursuant to the Arizona Constitution, the people of Arizona have the power

24 to enact or reject legislation through the initiative and referendum process. Ariz. Const.,
25

26 art. 4, pt. 1, § 1.

27

28

5

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 6 of 22

1

14. The power to enact or reject laws by initiative and referendum is equal to

2 the legislative power vested with the Arizona Legislature; indeed, the people’s legislative 3 4 power is the first such power described in the Arizona Constitution. See Ariz. State

5 Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2660 (2015).

6

15. The power to legislate by initiative begins with the filing of an initiative or

7 referendum application with the Secretary for the purpose of obtaining a “serial” number
8

9 that will be used in the processing of the initiative petition. See Ariz. Const., art. 4, pt. 1,

10 § 4; A.R.S. § 19-111(A).
11 16. The serial number is essential to the petition and the sheets that will be used
12 13 to gather signatures in support of the initiative’s placement on the ballot.

14

17. On October 4, 2019, HRAZ received its serial number I-24-2020 in order

15 to begin circulating the Stop Surprise Billing and Protect Patients Act. (Arizona Secretary 16 17 of State, Initiative, Referendum and Recall Applications, available at

18 https://apps.arizona.vote/info/IRR/2020-general-election/18/0)

19

18. On January 29, 2020, AFE received its serial number I-29-2020 in order to

20 begin circulating Fair Elections Act. (Arizona Secretary of State, Initiative, Referendum
21

22 and Recall Applications, available at https://apps.arizona.vote/info/IRR/2020-general-

23 election/18/0)
24 19. Immediately upon applying for and obtaining a serial number from the
25 26 Secretary, HRAZ and AFE began to circulate initiative petitions through volunteer and

27 paid circulators.

28

6

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 7 of 22

1

20. While petition gathering was underway, information regarding COVID-19

2 began to surface in the United States. This highly infectious illness, which causes fever, 3 4 shortness of breath, and in some cases death, has quickly and steadily spread through

5 many parts of the world, including Arizona.

6

21. On January 21, 2020, the Center for Disease Control and Prevention

7 (“CDC”) confirmed the first case of COVID-19 within the United States. See CDC Press
8

9 Release, 1/21/2020, available at https://www.cdc.gov/media/releases/2020/p0121-novel-

10 coronavirus-travel-case.html (last accessed on April 1, 2020).
11 22. On March 11, 2020, the World Health Organization classified COVID-19 as a pandemic.
12 13 See Chappell, Coronavirus: COVID-19 Is Now Officially a Pandemic, WHO Says, National Public Radio,

14 2020, at https://www.npr.org/sections/goatsandsoda/2020/03/11/ 814474930/coronavirus-covid-19-is-now-

15 officially-a-pandemic-who-says (last accessed on March 25, 2020).

16

17

23. Also on March 11, 2020, the Governor of Arizona issued a Declaration of

18 Emergency. See Governor Doug Ducey, Declaration of Emergency - COVID-19, (Mar.

19 11 2020, at https://azgovernor.gov/sites/default/files/declaraton_0.pdf (last accessed on

20 March 25, 2020).
21

22

24. Since then the Governor has issued orders and recommendations to contain

23 the spread of the virus. These orders and recommendations include the closing of all
24 schools for the remainder of the school year, staying home, attending a place of work only
25 26 if essential and, should people be required to go out, to maintain at least six feet of

27 separation from others.

28

7

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 8 of 22

1

25. On March 13, 2020, President Donald Trump declared a national

2 emergency to the pandemic. See President Donald Trump, Proclamation on Declaring a 3 4 National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,

5 (Mar. 13, 2020), at https://www.whitehouse.gov/presidential-actions/proclamation-

6 declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-

7 outbreak/.
8

9

26. None of the emergency orders issued by the Governor or any other state

10 official provide relief for obstacles to ballot access faced by initiative proponents,

11 signature gatherers, or those who wish to support initiatives in light of COVID-19.
12

13

27. The orders and recommendations from the medical community and federal,

14 state and local governments have led Arizonans to quarantine themselves and maintain at

15 least six feet of separation from others should it be necessary that they be out in public. 16 17 These measures must be taken to prevent and reduce transmission of the virus, which is

18 now believed to be spread in many cases by entirely asymptomatic carriers.

19

28. On March 30, 2020, Governor Ducey issued a stay-at-home order for

20 Arizona effective until April 30, 2020. See Physical Distancing to Mitigate COVID-19
21

22 Transmission (Mar. 31, 2020, at https://azgovernor.gov/sites/default/files/eo_2020-

23 18_stay_home_stay_healthy_stay_connected_1.0.pdf
24 29. Plaintiff Randi L. Turk has not had an opportunity to sign the petitions
25 26 circulated by AFE and HRAZ.

27

28

8

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 9 of 22

1

30. Plaintiff Randi L. Turk desires to sign the petitions, but is not willing to

2 violate quarantines, social distancing practices, or the shelter-in-place order to do so.

3

4

31. The quarantines, social-distancing practices, and shelter-in-place order

5 have dramatically burdened signature-gathering efforts underway by both AFE and

6 HRAZ. 7
32. As of March 18, 2020, AFE suspended their in-person signature-gathering 8
9 efforts for the health and safety of the circulators as well as that of the community.

10

33. On March 11, 2020, HRAZ also suspended their signature-gathering

11 campaign for the same reasons.
12

13

34. Thus, the requirements under Title 19 have restrained the Plaintiffs’ right

14 to free speech, and are, therefore, unconstitutional as applied during the current crisis.

15

The Initiative Process

16

17

35. “Constitutional and statutory requirements for statewide initiative measures

18 must be strictly construed and persons using the initiative process must strictly comply

19 with those constitutional and statutory requirements.” See A.R.S. § 19-102.01. 20
36. The initiative petition itself must substantially comply with the form 21
22 prescribed by statute. See A.R.S. § 19-101 and -102.

23

37. The initiative process places specific requirements on the petition circulator

24 and the signer (the elector), including:
25

26

27

28

9

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 10 of 22

1

(i) “Every qualified elector signing a petition shall do so in the presence

2 of the person who is circulating the petition and who is to execute the affidavit of 3 4 verification.” See A.R.S § 19-112(A)

5

(ii) In addition to signing the petition, the qualified elector must also

6 print his or her first and last name, residence address or description of residence location 7
if the elector does not have an address, and the date on which the elector signed the 8
9 petition. See A.R.S. § 19-112(A).

10

(iii) Further, signature sheets must have attached at all times “a full and

11 correct copy of the title and text of the measure.” See A.R.S. § 19-112(B).
12

13

(iv) The circulator must, by affidavit, “subscribe and swear before a

14 notary public” that each signature, name and address were printed by the elector on the

15 date indicated, that in the circulator’s belief, the signer was a qualified elector, and that a 16 17 copy of the title and text of the petition was attached to the signature sheet at all times

18 during circulation. See A.R.S. § 19-112(C).

19

38. Additional print requirements include: (1) printing the petition serial

20 number in the lower right-hand corner on each signature sheet; (2) if applicable, printing
21

22 the circulator’s registration number in the lower right-hand corner of each signature sheet;

23 (3) print that is at least eight-point type; and (4) print in black ink on white or recycled
24 white pages fourteen inches in width by eight and one-half inches in length, with a margin
25 26 of at least one-half inch at the top and one-fourth inch at the bottom of each page. See

27 A.R.S. § 19-121(A).

28

10

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 11 of 22

1

Qualifying for the Ballot

2

39. The signature sheets collected by the circulator must be filed with the

3

4 Secretary not less than four months preceding the date of the election at which the

5 measure is to be voted upon. See Ariz. Const., art. 4, pt. 1, § 4.

6

40. For the November 3, 2020 General Election, the signature sheets must be

7 filed with the Secretary by July 2, 2020.
8

9

41. The initiative petition is filed by tendering the signature sheets to the

10 Secretary by mail or in-person, who will issue a receipt based on an estimate made to the

11 Secretary of the purported number of sheets and signatures filed. See A.R.S. § 19-121.
12

13

42. The Secretary may allow for electronic filing of the signature sheets, but to

14 date has not adopted a method for doing so. See A.R.S. § 19-121(C).

15

43. For the initiative measure to be placed on the ballot, it must be supported

16

17 by at least 10 percent of the qualified electors. The qualified electorate is based on the

18 total number of votes cast for all candidates for governor in the preceding gubernatorial

19 election. See Ariz. Const., art. 4, pt. 1, §§ 2, 7. 20
44. For the 2020 election cycle, individuals and organizations seeking to place 21
22 initiative measures on the ballot for the November 3, 2020 General Election must gather

23 237,645 valid signatures from qualified electors. See ARIZONA SEC’Y OF STATE,
24 http://www.azsos.gov/elections/initiative-referendum-and-recall.
25

26

27

28

11

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 12 of 22

1

45. Once the Secretary receives the petitions, the Secretary must engage in a

2 series of steps to remove entire sheets that do not strictly comply with the aforementioned3 4 requirements and otherwise invalid signatures. See A.R.S. § 19-121.01

5

46. For example, the Secretary must remove entire sheets, which would include

6 valid signatures from qualified electors, that (1) do not have an attached copy of the title 7
and text of the initiative; (2) do not have the correct petition serial number and, if 8
9 applicable, the paid circulator registration number in the lower right-hand corner of each

10 side; (3) do not contain the circulator’s notarized affidavit, or contain a defective
11 notarization; (4) contain a circulator’s or notary date that is earlier than the dates on which
12 13 the electors signed the petition; and (5) were collected by an unregistered circulator. See

14 A.R.S. § 19-121.01(A).

15

47. It is not until after the Secretary has removed entire sheets based on print

16

17 mistakes and notary deficiencies that the Secretary and county recorders review the

18 validity of individual signatures under the criteria set by See A.R.S. § 19-121.01.

19

48. Within fifteen court days of receiving facsimiles of signature sheets from

20 the Secretary that identify a 5% sample of signatures, County Recorders must determine
21

22 which signatures of individuals are disqualified for a variety of reasons. See A.R.S. § 19-

23 121.02.
24 49. Signatures are disqualified based on a comparison with the signature on the
25 26 affidavit of the signer’s registration. See Id. -121.02(A)(7).

27

28

12

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 13 of 22

1

50. After this process of eliminating entire sheets and individual signatures, the

2 proponent of the initiative must have 237,645 valid signatures to get on the ballot.

3

4

51. Understandably, people and organizations supporting an initiative measure

5 will seek to obtain substantially more than 237,645 signatures in the event signatures are

6 stricken through this arduous review process.

7 E-Qual System
8

9

52. Candidate nominating petitions are required to include the following

10 information for qualified electors signing the petitions: signature, printed name, actual
11 residence address, description of place of residence or Arizona post office box address,
12 13 city or town, and date of signing. See A.R.S. § 16-316(A)(4).

14

53. Initiative petitions shall be in substantially the same form as referendum

15 petitions, A.R.S. § 19-102(A), which means qualified electors signing the petition must 16 17 include: signature, printed name, actual address, Arizona post office address & zip code,

18 city or town, and date signed. See A.R.S. § 19-101(A).

19

54. Arizona has implemented secure online signature collection for candidates

20 for statewide and legislative offices. See A.R.S. § 16-316.
21

22

55. This system is known as “E-Qual,” and it allows for signing candidate

23 nominating petitions and making five-dollar qualifying contributions to publicly funded

24 candidates.
25

See Secretary of State, Welcome to E-Qual (available at

26 https://apps.azsos.gov/equal/).

27

28

13

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 14 of 22

1

56. Arizona law denies initiative campaigns access to the E-Qual system or any

2 other electronic signature filing alternative.

3

4

Restraint on Freedom of Speech and Association

5

57. AFE and HRAZ began their signature gathering efforts immediately upon

6 obtaining their serial numbers form the Secretary. 7
58. At that point, COVID-19 had not been declared a pandemic and people 8
9 carried about their normal business.

10

59. The circulators of the petitions approached people to request their support

11 for the initiative the campaign was sponsoring and obtained their signature on the
12

13 petitions.

14

60. The circulators carried the sheets with the title and text of the measure of

15 the petition on a clip board and they provided a pen to the elector to sign the petition.

16

17

61. This encounter requires the circulator and elector to stand close to each

18 other, in all likelihood in a face-to-face posture, and they exchange material (the

19 clipboard, signature sheet, and pen) with each other. 20
62. This seemingly ordinary activity in “normal” times could prove to be 21
22 harmful during the COVID-19 pandemic, and would be in violation of recommendations

23 from the government and medical experts to remain at home and avoid being in close

24 proximity to others (six feet apart).
25

26

63. As of March 25, 2020, there were 54,453 cases and 737 deaths in the United

27 States.

See Centers for Disease Control and Prevention, at

28

14

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 15 of 22

1 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html

(last

2 accessed on April 2, 2020).

3

4

64. As of the same time, there were 410 confirmed cases of COVID-19 in

5 Arizona and six deaths. See ARIZ. DEPT. OF HEALTH SERVICES, at

6 https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious-disease-

7 epidemiology/index.php#novel-coronavirus-home (last accessed on April 2, 2020).
8

9

65. The continuing spread of COVID-19 threatens to exhaust medical facilities

10 and deplete medical equipment in Arizona, not to mention the lives that will be lost or

11 severely harmed as the pandemic spreads.
12

13

66. The Arizona Health Director stated that the illness would peak in April and

14 that hospitalizations will peak in May, with the number of cases in Arizona significantly

15 increasing. See Polletta, Illnesses from Coronavirus Could Peak in April with 16 17 Hospitalizations Topping Out in May, Health Officials Say, Arizona Republic, 2020,

18 available at https://www.azcentral.com/story/news/local/arizona-health/2020/03/26/coronavirus-arizona-

19 cases-could-peak-april-may-health-officials-covid-19-news/5083947002/ (last accessed on April 2, 2020). 20
67. The Health Director further elaborated that the State could face a shortage 21
22 of 13,000 hospital beds and 1,500 Intensive Care Unit beds. See Id.

23

68. The government officials’ recommendations and orders for people to stay

24 at home, and to keep at least six feet apart from others when required to be in public, must
25

26 be adhered to strictly to avoid aggravating the crisis at hand.

27

28

15

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 16 of 22

1

69. For those reasons, and to safeguard the health and safety of circulators and

2 the community, AFE and HRAZ were compelled to stop their in-person signature3 4 gathering efforts.

5

70. The requirement that electors sign the petition “in the presence of the person

6 who is circulating the petition,” A.R.S § 19-112(A), cannot be accomplished during the

7 pandemic.
8

9

71. Likewise, the requirement that the circulator sign his or her affidavit

10 “before a notary public” cannot be accomplished during the pandemic. See A.R.S. § 19-

11 112(C)
12

13

72. Strictly enforcing these provisions, as the Secretary is required to do absent

14 court intervention, A.R.S. § 19-102.01, puts the public’s health at risk, contributes to the

15 strain on medical services, and prolongs the pandemic.

16

17

73. Plaintiff Randi L. Turk is required to literally endanger her life in violation

18 of public health warnings and stay-at-home orders in order to exercise her free speech.

19

74. Failure to obtain the required number of signatures under the Secretary’s

20 strict enforcement during the quarantine and social-distancing period, and thereby fail to
21

22 qualify for the November 3, 2020 General Election ballot, in effect restrains the Plaintiffs’

23 freedom of speech and association. 24

25

26

27

28

16

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 17 of 22

1

V. IRREPARABLE INJURY

2

75. Plaintiffs seek injunctive relief from the strict enforcement of the provisions

3

4 in the law that unduly burden and effectively restrain freedom of speech and association

5 during the term of the COVID-19 pandemic.

6

76. Plaintiffs cannot continue in-person signature gathering methods, either

7 volunteer or paid, in light of the present pandemic and related state and federal advisories.
8

9 [Maldonado Decl. ¶ 33; Grennan Decl. ¶ 22.]

10

77. Plaintiffs also seek injunctive relief from the unequal protection of the right

11 to gather and submit electronic signatures.
12

13

78. Absent injunctive relief, Plaintiff[s] will suffer irreparable injury. Under

14 the laws governing initiatives, it is impossible for Plaintiffs obtain signatures during the

15 pandemic to qualify their measure for the ballot. [Gallaway Decl. ¶ 44.]

16

17

79. But for the COVID-19 pandemic, campaigns would be expected to gather

18 approximately 160,000 signatures during the period of time that the shelter-in-place

19 recommendations and orders have been and will continue to be in effect (March 11

20 through April 30). [Gallaway Decl. ¶ 47.]
21

22

80. There are no remedies available to compensate them for their harm or to

23 qualify their measure for the ballot.
24 81. The hardship to Plaintiff outweighs any burden on the Defendants by
25 26 granting relief.

27

82. The injunctive relief sought does not hurt the public interest.

28

17

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 18 of 22

1

VI. CLAIMS FOR RELIEF

2

COUNT I

3

4

First Amendment

5

83. Plaintiffs reallege and incorporate by reference all prior paragraphs in this

6 Complaint as realleged herein. 7
84. The government shall make no law abridging the freedom of speech and to 8
9 assemble. U.S. Const., amend. I.

10

85. The First Amendment is at the core of petition circulation; petition

11 circulation is “core political speech” because it involves interactive communication
12

13 concerning political change. See Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182,

14 188 (1999) (quoting Meyer v. Grant, 486 U.S. 414 (1988)).

15

86. The freedom to engage in political speech, the advancement of beliefs and

16

17 ideas, is an inseparable aspect of the liberty assured by the Due Process Clause of the

18 Fourteenth Amendment, which embraces the freedom of speech.” See Anderson, 460 U.S.

19 at 787, 130 S.Ct. at 1569 (quoting NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163

20 (1958)).
21

22

87. The Secretary’s strict enforcement of A.R.S. §19-112, requiring that an

23 elector sign in the presence of a circulator and that the circular sign an affidavit before a
24 notary public, unduly burdens the public’s right to engage in political speech during the
25 26 COVID-19 pandemic.

27

28

18

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 19 of 22

1

88. During the pandemic, it is impossible for electors and circulators to satisfy

2 the requirements of A.R.S. § 19-112, and consequently, the supporters of the initiatives 3 4 promoted by AFE and HRAZ will not obtain sufficient signatures by July 2, 2020, to

5 qualify for the November 3, 2020 General Election Ballot.

6

89. For these reasons, the Defendants must be restrained from enforcing these

7 provisions that unduly burden and restrict the Plaintiffs’ First Amendment rights.
8

9

90. Plaintiffs seeks a preliminary injunction allowing them to gather signatures

10 by means other than those prescribed under A.R.S. § 19-112 and prohibiting the Secretary
11 from disqualifying those signatures under the A.R.S. § 19-121.01(A); and similarly,
12 13 County Recorders disqualifying under A.R.S. § 19-121.02(A)(7).

14

COUNT II

15

First and Fourteenth Amendment Undue Burden

16

17

91. Plaintiffs reallege and incorporate by reference all prior paragraphs in this

18 Complaint as realleged herein.

19

92. Denying initiative proponents like AFE and HRAZ, and potential petition

20 signers like Plaintiff Randi L. Turk access to Arizona’s E-Qual system burdens right to
21

22 engage in the initiative process.

23

93. The state need not confer to its people the right of the initiative, but once it

24 has, it may not regulate that right in a way that violates the federal constitution. See Idaho
25
26 Coalition United for Bears, 342 F.3d 1073, 1077 (9th Cir. 2003) (citing Bush v. Gore, 531

27 U.S. 98, 104 (2000)).

28

19

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 20 of 22

1

94. A burden on the right to initiative is undue if it cannot be justified by

2 weighing the magnitude of the burden imposed on the plaintiffs by the State’s specific 3 4 purpose for imposing the burden and necessity to vindicate that purpose by imposing the

5 burden. See, e.g., Feldman v. Arizona Sec’y of State's Office, 840 F.3d 1057, 1078 (9th

6 Cir. 2016). 7
95. Such analysis is dependent on the specific circumstances in which the 8
9 burden is imposed.

10

96. As described above, denying access to E-Qual in light of the current

11 pandemic places an extraordinary burden on Plaintiffs AFE and HRAZ in their effort to
12

13 gather signatures.

14

97. Likewise, it literally requires Plaintiff Randi L Turk to put her life at risk in

15 order to exercise her Freedom of Speech.

16

17

98. The State’s specific purpose of preventing fraud can be accomplished

18 without denying Plaintiffs access to the E-Qual system.

19

99. The Secretary’s allowing candidates to obtain signatures on their

20 nomination petition via E-Qual, A.R.S. § 16-316, while restricting such access for
21

22 initiatives under A.R.S. § 19-112, -121.01, and -121.02 during the COVID-19 pandemic

23 results in an undue burden on the exercise of Free Speech.

24 WHEREFORE, Plaintiffs respectfully request that this Court:
25

26

A. Declare the provisions governing the signature-gathering requirements for

27 initiative measures under Title 19, Chapter 1, of the Arizona Revised Statutes, violate the

28

20

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 21 of 22

1 First and Fourteenth Amendments to the United States Constitution during the state of

2 emergency in Arizona caused by the COVID-19 pandemic;

3

4

B. Enjoin the Secretary from strictly enforcing the signature gathering

5 requirements for initiative petitions as related to accepting electronic signatures gathered

6 during the state of emergency in Arizona caused by the COVID-19 pandemic; 7
C. Order the Secretary to allow the electronic submission of signatures through 8
9 E-Qual or a similar electronic process for submitting signatures in support of initiative

10 measures during the state of emergency in Arizona caused by the COVID-19 pandemic;
11 D. Enjoin County Recorders from striking signatures based solely on their
12 13 submission in electronic form during the state of emergency in Arizona caused by the

14 COVID-19 pandemic;

15

E. Award Plaintiffs their costs, disbursements, and reasonable attorneys’ fees

16

17 incurred in bringing this action pursuant to 42 U.S.C. § 1988 and other applicable laws;

18 and

19

F. Grant any other relief the Court deems just and proper.

20 RESPECTFULLY SUBMITTED this 2nd day of April, 2020.
21

22

TORRES LAW GROUP, PLLC

23

/s/James E. Barton II

24

James E. Barton II (#023888)

Jacqueline Mendez Soto (#022597)

25

TORRES LAW GROUP, PLLC

26

2239 West Baseline Road

Tempe, Arizona 85283

27

(480) 588-6120

28

James@TheTorresFirm.com

21

Case 2:20-cv-00658-DWL Document 1 Filed 04/02/20 Page 22 of 22

1

Jacqueline@TheTorresFirm.com

2

Attorneys for Plaintiff

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

22

 
 Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 1 of 17

1 Israel G. Torres (#020303) James E. Barton II (#023888)
2 Jacqueline Mendez Soto (#022597)
3 TORRES LAW GROUP, PLLC 2239 West Baseline Road
4 Tempe, Arizona 85283
5 (480) 588-6120 James@TheTorresFirm.com
6 Jacqueline@TheTorresFirm.com
7 Attorneys for Plaintiff

8

UNITED STATES DISTRICT COURT 9

10

FOR THE DISTRICT OF ARIZONA

11
12 Arizonans for Fair Elections (AZAN), an Arizona nonprofit corporation;
13 Arizonans Fed Up with Failing 14 Healthcare (Healthcare Rising AZ), an
Arizona nonprofit corporation; and 15 Randi L. Turk, an individual;

Case No.:
MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

16

Plaintiffs,

17

v.

18 Katie Hobbs, Arizona Secretary of
19 State, Edison Wauneka, Apache

20 County Recorder; David Stevens, Cochise County Recorder; Patty
21 Hansen, Coconino County Recorder;

22 Sadie Jo Bingham, Gila County Recorder; Wendy John, Graham
23 County Recorder; Sharie Miheiro,

24 Greenlee County Recorder; Richard Garcia, La Paz County Recorder;

25 Adrian Fontes, Maricopa County

26

Recorder; Kristi Blair, Mohave County Recorder; Doris Clark, Navajo County

27 Recorder; F. Ann Rodriguez, Pima 28 County Recorder; Virginia Ross, Pinal

(Oral Argument Requested)

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 2 of 17

1 County Recorder; Suzanne Sainz, Santa Cruz County Reorder; Leslie Hoffman,
2 Yavapai County Recorder; and Robyn
3 Pouquette, Yuma County Recorder; all in their official capacities,
4
Defendants. 5

6 Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs Arizonans
7
8 for Fair Elections (AZAN) and Arizonans Fed Up with Failing Healthcare (Healthcare

9 Rising AZ) (separately, “AFE” and “HRAZ,” collectively “Plaintiff Committees”),

10 together with Randi L. Turk (all collectively “Plaintiffs”), move the Court for entry of a 11 12 Temporary Restraining Order and Preliminary Injunction ordering the Arizona Secretary

13 of State (the “Secretary”) to allow initiative petition proponents and supporters to use

14 Arizona’s secure online signature collection system for qualified electors to electronically
15 sign initiative petitions, and enjoining the Secretary and the named Defendant County
16
17 Recorders (collectively the “Defendants”) 19-121.01, -121.02, and -121.04 solely due to

18 the signatures being collected using this system, during the COVID-19 pandemic,
19 pending entry by the Court of a final judgment in this action. This motion is supported
20 21 by the following Memorandum of Points and Authorities. A proposed order is

22 concurrently submitted to the Court. Oral argument is respectfully requested.

23

DONE this 2nd day of April, 2020.

24

25

TORRES LAW GROUP, PLLC

26

/s/James E. Barton II

James E. Barton II

27

Jacqueline Mendez Soto

28

Attorneys for Plaintiffs

2

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 3 of 17

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I.
3
4

BACKGROUND Arizona is under a state of emergency due to the COVID-19 pandemic. For a

5 period of time, people have been adhering to the recommendations and orders from

6 federal, state, and local governments and medical experts to quarantine, self-isolate, and 7 8 practice social-distancing when in a public setting, to prevent the transmission of the

9 COVID-19 virus and bring an end to the pandemic. These measures, however, have

10 denied proponents and supporters of initiative measures their right to freedom of speech 11
and association by depriving them of the ability to gather signatures to qualify their 12
13 initiatives for the November 3, 2020 General Election ballot.

14

At this time, the Secretary’s denial to these individuals of access to Arizona’s

15 secure online signature system for electronic signature submission places a specific and
16

17 undue burden on this exercise of Free Speech guaranteed under the First and Fourteenth

18 Amendments. Thus, Plaintiffs seek an order temporarily enjoining the Secretary and the
19 County Recorders from each county from enforcing the provisions governing initiative
20 21 measures under Title 19, Chapter 1, of the Arizona Revised Statutes (“A.R.S.”), in so far

22 as they prevent processing signatures in support of initiatives via Arizona’s secure online

23 signature gathering system for qualification for the November 3 General Election ballot. 24
Further, Plaintiffs seek an order requiring the Secretary to allow for the electronic 25
26 submission of signatures by qualified electors in support of initiative measures, in the

27 same manner qualified electors may currently submit signatures in support of candidate 28

3

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 4 of 17

1 nomination petitions, so that initiative sponsors and supporters may continue to gather

2 and provide signatures during the pandemic.

3 A. The Initiative Process
4

5

1. Gathering Signatures

6

The initiative process allows the electorate to adopt legislation. See Ariz. Const.,

7 art. 4, pt. 1, § 1; Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 8 9 2652, 2660 (2015). The power to enact or reject laws by initiative is equal to the

10 legislative power vested with the Arizona Legislature. See Id., 135 S. Ct. at 2660.

11

“Constitutional and statutory requirements for statewide initiative measures must

12 be strictly construed and persons using the initiative process must strictly comply with
13

14 those constitutional and statutory requirements.” See A.R.S. § 19-102.01. The initiative

15 petition itself must substantially comply with the form prescribed by statute. See A.R.S.

16 § 19-101 and -102.
17

18

The initiative process places specific requirements on the circulator and the signer

19 (the elector), including: (i) “Every qualified elector signing a petition shall do so in the

20 presence of the person who is circulating the petition and who is to execute the affidavit 21 22 of verification,” see A.R.S § 19-112(A); (ii) In addition to signing the petition, the

23 qualified elector must also print his or her first and last name, residence address or

24 description of residence location if the elector does not have an address, and the date on 25
which the elector signed the petition, see A.R.S. § 19-112(A); (iii) Further, signatures 26
27 can only be done on paper sheets, not electronically, and the signature sheets must have

28 attached at all times “a full and correct copy of the title and text of the measure[,]” see

4

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 5 of 17

1 A.R.S. § 19-112(B); (iv) The circulator must, by affidavit, “subscribe and swear before

2 a notary public” that each signature, name, and address were printed by the elector on the
3 date indicated, that in the circulator’s belief, the signer was a qualified elector, and that a
4 5 copy of the title and text of the petition was attached to the signature sheet at all times

6 during circulation, see A.R.S. § 19-112(C).

7

Additional print requirements include: (1) printing the petition serial number in

8

9 the lower right-hand corner on each signature sheet; (2) if applicable, printing the

10 circulator’s registration number in the lower right-hand corner of each signature sheet;

11 (3) print that is at least eight-point type; and (4) print in black ink on white or recycled 12
white pages fourteen inches in width by eight and one-half inches in length, with a margin 13
14 of at least one-half inch at the top and one-fourth inch at the bottom of each page. See

15 A.R.S. § 19-121(A).
16 2. Processing by the Secretary and Recorders
17

18

The signature sheets collected by the circulator must then be filed with the

19 Secretary not less than four (4) months preceding the date of the election at which the
20
21 measure is to be voted upon. See Ariz. Const., art. 4, pt. 1, § 4. For the November 3,

22 2020 General Election, the signature sheets must be filed with the Secretary by July 2,

23 2020. The initiative petition is filed by tendering the signatures to the Secretary by mail 24
or in-person, who will issue a receipt based on an estimate made to the Secretary of the 25

26 purported number of sheets and signatures filed. See A.R.S. § 19-121. The Secretary

27 may allow for electronic filing of the signature sheets, but to date has not adopted a 28

5

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 6 of 17

1 method for doing so. See A.R.S. § 19-121(C).

2

For the initiative measure to be placed on the ballot, it must be supported by at

3 least ten (10) percent of the qualified electors. The qualified electorate is based on the
4

5 total number of votes cast for all candidates for governor in the preceding gubernatorial

6 election. See Ariz. Const., art. 4, pt. 1, §§ 2, 7. For the 2020 election cycle, individuals

7 and organizations seeking to place initiative measures on the ballot for the November 3, 8 9 2020 General Election must gather 237,645 valid signatures from qualified electors. See

10 ARIZONA SEC’Y OF STATE, http://www.azsos.gov/elections/initiative-referendum-and-

11 recall. 12
Once the Secretary receives the petitions, the Secretary must engage in a series of 13
14 steps to remove entire sheets that do not strictly comply with the aforementioned-

15 requirements and otherwise invalid signatures. See A.R.S. § 19-121.01 For example, the
16 Secretary must remove entire sheets, which would include valid signatures from qualified
17 18 electors, that (1) do not have an attached copy of the title and text of the initiative; (2) do

19 not have the correct petition serial number and, if applicable, the paid circulator

20 registration number in the lower right-hand corner of each side; (3) do not contain the 21 22 circulator’s notarized affidavit, or contain a defective notarization; (4) contain a

23 circulator’s or notary date that is earlier than the dates on which the electors signed the

24 petition; and (5) were collected by an unregistered circulator. See A.R.S. § 19-121.01(A). 25
It is not until after the Secretary has removed entire sheets based on print mistakes 26
27 and notary deficiencies that the Secretary and County Recorders review the validity of

28 individual signatures under the criteria set by A.R.S. § 19-121.01. Individual signatures

6

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 7 of 17

1 will then be invalidated by the County Recorder based on additional criteria. See A.R.S.

2 § 19-121.02. After this process of eliminating entire sheets and individual signatures, the
3 proponent of the initiative must have 237,645 valid signatures to get on the ballot.
4 5 Understandably, people and organizations supporting an initiative measure will seek to

6 obtain substantially more than 237,645 signatures in the event signatures are stricken

7 through this arduous review process.

8

9

B. COVID-19

10

On January 21, 2020, the Center for Disease Control and Prevention (“CDC”) confirmed the first

11 case of COVID-19 within the United States. See CDC Press Release, 1/21/2020, available at 12
https://www.cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-case.html (last accessed on 13
14 March 25, 2020). On March 11, 2020, the World Health Organization classified COVID-19 as a pandemic.

15 See Chappell, Coronavirus: COVID-19 Is Now Officially a Pandemic, WHO Says, National Public Radio
16 2020 at https://www.npr.org/sections/goatsandsoda/2020/03/11/814474930/coronavirus-covid-19-is-now-
17 18 officially-a-pandemic-who-says (last accessed on March 25, 2020).

19

On March 13, 2020, President Donald Trump declared the pandemic a national

20 emergency. See President Donald Trump, Proclamation on Declaring a National 21 22 Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, (Mar. 13,

23 2020), at https://www.whitehouse.gov/presidential-actions/proclamation-declaring-

24 national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. State 25
governments across the country are taking steps, specifically with regard to elections, to 26
27 respond to changing conditions due to the COVID-19 pandemic. See National

28 Conference of State Legislature, COVID-19 and Elections (Mar. 30, 2020,

7

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 8 of 17

1 https://www.ncsl.org/research/elections-and-campaigns/state-action-on-covid-19-and-

2 elections.aspx (last accessed on April 1, 2020) (collecting examples).
3 Also on March 11, 2020, the Governor of Arizona issued a Declaration of
4 5 Emergency. See Governor Doug Ducey, Declaration of Emergency - COVID-19, (Mar.

6 11, 2020, at https://azgovernor.gov/sites/default/files/declaraton_0.pdf (last accessed on

7 April 1, 2020). Governor Ducey has since issued Executive Order 2020-18 further 8 9 encouraging Arizonans to practice social distancing and to “stay home.” See Physical

10 Distancing to Mitigate COVID-19 Transmission (Mar. 31, 2020, at

11 https://azgovernor.gov/sites/default/files/eo_202018_stay_home_stay_healthy_stay_con
12 nected_1.0.pdf)
13

14

C. On-line Signature Gathering in Arizona

15

Arizona has implemented secure online signature collection for candidates for

16 statewide and legislative offices, as well as for federal offices. See A.R.S. §§ 16-316, -
17

18 318. The electronic system contains safeguards for only qualified electors to sign a

19 petition for a particular candidate. See Id. This system is known as “E-Qual” and allows

20 for signing candidate nominating petitions and making five-dollar qualifying 21 22 contributions to publicly funded candidates. See Secretary of State, Welcome to E-Qual

23 (available at https://apps.azsos.gov/equal/).

24

Although not yet implemented, Arizona law has required secure online signature

25 collection for municipal and county offices since January 1, 2017. See A.R.S. § 16-317.
26

27 Furthermore, current law envisions electronic processing of petition signatures providing

28 that the Secretary may “prescribe the method of filing, including electronic filing.” See

8

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 9 of 17

1 A.R.S. § 19-121.

2 II. STANDARD FOR INJUNCTIVE RELIEF
3 The standard for issuing a temporary restraining order is the same as the standard
4 5 for issuing a preliminary injunction. See Quiroga v. Chen, 735 F. Supp. 2d 1226, 1228

6 (D. Nevada 2010). A plaintiff seeking preliminary injunction relief must show that (1)

7 he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the 8 9 absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that

10 an injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555

11 U.S. 7, 20 (2008). Where plaintiffs establish a likelihood of irreparable injury, and the 12
balance of harms tip sharply toward the plaintiff, the court should grant a preliminary 13
14 injunction, even if serious questions on the merits exist. All. for the Wild Rockies v.

15 Cottrell, 632 F.3d 1127, 1132, 1139 (9th Cir. 2011).

16 III. ARGUMENT
17

18

A. Denying Initiative Supporters Use of E-Qual During the COVID-19

Pandemic Unduly Burdens Free Speech and the People’s Right to

19

Initiative.

20

The right to engage in political activity, including the collection of signatures in

21

22 support of candidates or other measures is a right protected by the First Amendment as

23 freedom of speech and association. See Buckley v. Am. Const. Law Found., Inc., 525 U.S.

24 182, 194-95 (1999) (quoting Meyer v. Grant, 486 U.S. 414 (1988)). The freedom to 25
engage in political speech, and the advancement of beliefs and ideas, is an inseparable 26
27 aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment,

28 which embraces the freedom of speech. See Anderson, 460 U.S. at 787, 130 S.Ct. at 1569

9

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 10 of 17

1 (quoting NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163 (1958)). The statutes at

2 issue have frozen the people’s ability to gather signatures during the pandemic. During
3 the COVID-19 pandemic, the Secretary and County Recorders cannot enforce these
4 5 statutes and at the same time avoid unduly burdening the citizens’ right to Free Speech,

6 given the much less restrictive means available to accomplish the State’s interest in

7 protecting against fraud.

8

9

1. Success on the Merits

10

In extraordinary circumstances like those currently facing the State of Arizona,

11 courts have the power to prevent undue burdens on the exercise of constitutional rights. 12
In Florida Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016) the 13
14 district court held that Florida’s statutory registration framework, which did not contain

15 a provision that extended the voter registration deadline in the event of an emergency,
16 completely disenfranchised thousands of voters and thus, amounted to a severe burden on
17 18 the right to vote. The court explained that “if aspiring eligible Florida voters are barred

19 from registering to vote then those voters are stripped of one of our most precious

20 freedoms.” See Id. at 1258. More recently, courts have recognized the need to prevent 21 22 election laws from unduly restricting participation in the election process in light of the

23 COVID-19 pandemic. In Democratic Nat'l Comm. v. Bostelmann, 20-CV-249-WMC,

24 2020 WL 1320819 (W.D. Wis. Mar. 20, 2020) the district court granted a temporary 25
restraining order to extend the deadline by which an individual can register online to vote, 26
27 specifically due to the extenuating circumstances surrounding the current COVID-19

28 health crisis. Similarly, a Virginia court recently granted injunctive relief to a candidate

10

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 11 of 17

1 allowing him to appear on the ballot with fewer than the statutorily required number of

2 signatures, acknowledging that the signature requirement, although only a modest burden
3 under normal circumstances, constituted a severe burden in light of the COVID-19 public
4 5 health crisis. Omari Faulkner et al. v. Virginia Dep’t of Elections et al., CL-20-1456 (Va.

6 Cir. Ct. March 25, 2020).

7

When considering the constitutionality of a state election law, courts must weigh

8

9 “the character and magnitude of the asserted injury to the rights protected by the First and

10 Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests

11 put forward by the State as justifications for the burden imposed by its rule,” while 12
considering “the extent to which those interests make it necessary to burden the plaintiff's 13
14 rights.” Burdick, 504 U.S. at 434, 112 S.Ct. 2059 ((quoting Anderson, 460 U.S. at 789,

15 103 S.Ct. 1564), commonly referred to as the Anderson/Burdick framework.
16 In the instant case, the burden on the right to circulate and sign initiative petitions
17 18 is profound. The Plaintiff Committees are compelled to stop public signature gathering

19 in order to avoid the very real risk to public health. See Grennan Decl. ¶ 22; Maldonado

20 Decl. ¶ 33. Without public signature gathering, each committee has lost the opportunity 21 22 to collect up to 160,000 signatures between March 11, 2020, and April 30, 2020, the

23 period during which people have been ordered to stay home and practice social-distancing

24 when it is necessary to be in public. See Gallaway Decl. ¶ 47. 25
Plaintiff Randi L. Turk, and those similarly situated are also prevented from 26
27 exercising their right to sign the petition for fear of exposing themselves to COVID-19.

28 Indeed, the Governor has explicitly directed citizens of the state to remain at home unless

11

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 12 of 17

1 going outdoors is an essential activity. See Governor Douglas A. Ducey, Executive Order

2 2020-18, Stay Home, Stay Healthy, Stay Connected: Physical Distancing to Mitigate

3 COVID-19 Transmission (March 30, 2020).
4

5

The State’s interest in requiring signatures to be gathered by a petition circulator

6 who complies with the numerous requirements of Title 19 is to ensure that the hundreds

7 of thousands of required signatures for placement on the ballot come from qualified 8 9 electors. See, e.g., Parker v. Tucson, 233 Ariz. 422, 431, 314 P3d 100, 109 (App. 2013);

10 see also Harris v. Bisbee, 219 Ariz. 36, 40, 192 P.3d 162, 166 (App. 2008). The circulator

11 must attest to their eligibility in an affidavit on the back of each petition sheet. See A.R.S. 12
§ 19-112(D). Under ordinary circumstances, requiring such gathering of signatures 13
14 would provide somewhat of a burden, but it could arguably be justified by the State’s

15 interest in preventing fraud; however, the present circumstance created by the pandemic
16 forbids the type of interaction required by the statutes. This extreme burden on gathering
17 18 a sufficient number of signatures in the presence of the signers—237,645 valid signatures

19 of qualified electors, see https://azsos.gov/elections/initiative-referendum-and-recall —is

20 a burden that cannot be justified.

21

22

This is particularly true because the State already system in place that enables

23 qualified electors to sign candidate petitions on-line. The existence of the E-Qual system

24 means, in terms of the Anderson/Burdick test, that mandating non-electronic signature 25
gathering is not necessary to vindicate the state’s interest in preventing fraud. Therefore, 26
27 the Plaintiffs are likely to prevail in the merits.

28

12

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 13 of 17

1

2. Irreparable Harm

2

Continuing to deny Plaintiffs access to on-line signature collection in the face of

3 the current pandemic will cause irreparable harm. Under Arizona law, “in no event shall
4

5 the secretary of state accept an initiative petition that was issued for circulation more than

6 twenty-four months before the general election at which the measure is to be included on

7 the ballot.” See A.R.S. § 19-121(D). Thus, the signatures gathered so far in the campaigns 8 9 will become useless and their value forever lost because they cannot be used in a future

10 election. Furthermore, the right to present these questions to Arizona voters in this

11 election cycle can never be replicated. Denying Plaintiffs the opportunity to present the
12 measures to the voters is the epitome of an irreparable harm.
13

14

3. Balance of Equities

15

In assessing the balance of equities, the Court should weigh “‘the character and

16 magnitude of the asserted injury to the rights protected by the First and Fourteenth
17

18 Amendments that the plaintiff seeks to vindicate against ‘the precise interests put forward

19 by the State as justifications for the burden imposed by its rule,’ taking into consideration

20 ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” 21 22 See Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. 789, 103 S.Ct. 1570). “The

23 rigorousness of the Court’s inquiry into the propriety of a state election law depends upon

24 the extent to which a challenged regulation burdens the First and Fourteenth Amendment 25
rights. When those rights are subject to ‘severe’ restrictions, the regulation must be 26
27 ‘narrowly drawn to advance a state interest of compelling importance.’” See Compell v.

28 Hull, 73 F.Supp. 2d 1081, 1086 (1999) (citing to Burdick, 504 U.S. at 434). When it

13

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 14 of 17

1 comes to laws governing the processes and procedures for getting an issue on the ballot,

2 the severity of the “ballot access law” is directly proportional to the degree of scrutiny it
3 will receive by a court.” See id. The question will be whether with reasonable diligence,
4 5 the group seeking to get a measure on the ballot could be expected to meet the

6 requirements, or if they will only rarely succeed. See Id., at 1086-87.

7

The injury to the Plaintiffs is the Plaintiffs not being able to obtain the required

8

9 number of signatures by the July 2, 2020 deadline, thus the question is not presented to

10 the voters whether to approve their respective initiatives. The orders and

11 recommendations for self-isolation and social distancing remain in effect, and based on 12
the most recent reports from the Arizona Health Director, the illness is likely to peak in 13
14 April, hospitalizations will peak in May, resulting in a significant increase in the number

15 of cases in Arizona. See Polletta, Illnesses from Coronavirus Could Peak in April with

16 Hospitalizations Topping Out in May, Health Officials Say, Arizona Republic, 2020,
17

18 available

at

https://www.azcentral.com/story/news/local/arizona-

19 health/2020/03/26/coronavirus-arizona-cases-could-peak-april-may-health-officials-

20 covid-19-news/5083947002/. Thus, it is unreasonably burdensome, if not impossible, for 21 22 Plaintiffs and other similarly situated ballot measure groups to gather the 237,645

23 signatures needed by July 2, 2020 under the current scheme.

24

This is balanced against the minimal administrative burden of allowing ballot

25 measure signatures to be collected in the exact fashion that signatures are currently
26

27 collected, supporting statewide candidate nominating petitions. “E-Qual” boasts of

28 allowing qualified electors to support their candidate by signing their petition “from the

14

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 15 of 17

1 comfort of [their] home or anywhere internet access is available.” See Welcome to E-

2 Qual, Apps.azsos.gov/equal, 2012 Ariz. Secretary of State. The system already
3 accommodates statewide candidate petitions. Therefore, the balance of harms tips sharply
4 5 in favor of granting the Plaintiffs relief.

6

4. Public Interest

7

Temporarily lifting the state’s ban on initiative petitions gathering signatures

8

9 electronically serves two crucial public interests. First, it serves the public interest in

10 permitting Arizona’s initiative process to continue to function in light of this pandemic.

11 See Ariz. Const., art. 4, pt. 1 § 1. Second, it serves the interest in obeying State “stay-at12
home” orders and preserving public health by eliminating a motivation for initiative 13
14 proponents to make physical contact with large numbers of individuals in pursuit of

15 hundreds of thousands of signatures.

16 B. Plaintiffs Seek Relief for Only the Duration of the State of Emergency.
17

18

The relief described in both DNC v. Bostelmann, and Faulkner v. Virgninia Dep’t

19 of Elections, cited above, was narrowly tailored for the specific circumstances of those

20 cases, and specifically in light of the present pandemic. Indeed, in both cases the laws 21 22 temporarily enjoined due to circumstances leading to a national emergency would be

23 relatively unburdensome, but for the COVID-19 pandemic. The same is true in the instant

24 case. Application of the Anderson/Burdick test to Arizona’s statutes denying initiative 25
petition supporters access to E-Qual only leads to the conclusion that the restriction is 26
27 unduly burdensome because of the current quarantines, self-isolation, and social-

28 distancing orders and recommendations issued by federal, state, and local governments

15

Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 16 of 17

1 and medical experts, currently in place in response to the COVID-19 pandemic. When

2 this crisis passes, the State’s denial of access to E-Qual no longer needs to be enjoined.

3 IV. CONCLUSION
4

5

For the foregoing reasons, Plaintiffs ask that this Court grant its motion. A

6 proposed form of Order is attached herewith.

7

DONE this 2nd day of April, 2020.

8

9

TORRES LAW GROUP, PLLC

10

11

/s/James E. Barton II

12

James E. Barton II

Jacqueline Mendez Soto

13

Attorney for Plaintiff

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Case 2:20-cv-00658-DWL Document 2 Filed 04/02/20 Page 17 of 17

1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 2, 2020 I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

4

/s/ Monse Vejar

5

6

7

8

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 Case 2:20-cv-00658-DWL Document 46 Filed 04/06/20 Page 1 of 9

1 MARK BRNOVICH

ATTORNEY GENERAL

2 Drew C. Ensign (No. 25463)

Deputy Solicitor General 3 Robert J. Makar (Bar No. 33579)

4

Assistant Attorney General 2005 N. Central Avenue

5

Phoenix, Arizona 85004 Telephone: (602) 542-5200

6 Drew.Ensign@azag.gov

7 Attorneys for Proposed IntervenorDefendant State of Arizona
8

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11 Arizonans for Fair Elections, et al.,

12 vs.
13

Plaintiffs,

14 Katie Hobbs, et al.,

Defendants, 15

and

16

State of Arizona,

17

Proposed Intervenor-

18

Defendant.

19

20

21

22

23

24

Case No: 2:20-cv-00658-DWL STATE’S MOTION TO INTERVENE

25

26

27

28

1

Case 2:20-cv-00658-DWL Document 46 Filed 04/06/20 Page 2 of 9

1

The State of Arizona (“State”) respectfully moves under Rule 24 to intervene in

2 this matter to defend the laws challenged in this action. Plaintiffs oppose this motion,

3 while Secretary of State Katie Hobbs (the “Secretary”) takes no position.

4

INTRODUCTION

5

The State seeks to intervene in this rapidly developing challenge to several of its

6 statutory provisions, namely those “governing the signature-gathering requirements for

7 initiative measures under Title 19, Chapter 1, of the Arizona Revised Statutes” (the

8 “Acts”). Complaint at 20-21. All of the requirements for intervention as of right are

9 readily satisfied here. First, this motion is timely—filed a mere two business days after

10 Plaintiffs’ challenge was first filed and the same day as the Secretary’s public

11 announcement regarding her position in this litigation. Second, the State has protectable

12 interests in defending and enforcing its laws, which would be impaired by the relief

13 sought. Third, the “minimal burden” of demonstrating the inadequacy of existing parties

14 is demonstrated by the fact that (1) the lead Defendant, Secretary Hobbs, has expressly

15 stated that she does not intend to defend this suit and “won’t oppose the request being

16 made by these organizations,”1 and (2) it is unclear whether remaining Defendants have

17 the resources necessary to mount a vigorous defense in the extremely compressed time

18 table on which this case must be litigated.

19

Alternatively, this Court should grant permissive intervention. The State seeks to

20 raise common arguments of law and fact in defense of the Acts and its participation will

21 aid this Court. In particular, the State’s participation may facilitate coordination among

22 Defendants and streamline the number of submissions to this Court.

23

24

25

26

27 1 See Secretary of State, Press Release (Apr. 6, 2020) available at 28 https://azsos.gov/about-office/media-center/press-releases/1158.

2

Case 2:20-cv-00658-DWL Document 46 Filed 04/06/20 Page 3 of 9

1

LEGAL STANDARD

2

Rule 24 provides for intervention both permissively and as-of right. A party may

3 intervene as of right under Rule 24(a). In Wilderness Society v. U.S. Forest Service, the

4 Ninth Circuit set forth its four-part test for motions to intervene of right:

5

(1) the motion must be timely; (2) the applicant must claim a

“significantly protectable” interest relating to the property or

6

transaction which is the subject of the action; (3) the applicant

must be so situated that the disposition of the action may as a

7

practical matter impair or impede its ability to protect that

interest; and (4) the applicant’s interest must be inadequately

8

represented by the parties to the action.

9 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc).

10

This analysis is “guided primarily by practical considerations, not technical

11 distinctions.” Sw Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001)

12 (cleaned up); accord Wilderness Soc’y, 630 F.3d at 1179 (reiterating importance of

13 “practical and equitable considerations” as part of judicial policy favoring intervention).

14 “[A] district court is required to accept as true the non-conclusory allegations made in

15 support of an intervention motion.” Berg, 268 F.3d at 819.

16

In addition, Rule 24(b)(1)(B) provides that “the court may permit anyone to

17 intervene who … has a claim or defense that shares with the main action a common

18 question of law or fact.” Along with timeliness, “all that is necessary for permissive

19 intervention is that intervenor’s ‘claim or defense and the main action have a question of

20 law or fact in common.’” Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108 (9th 21 Cir. 2002) (quoting 24(b)(1)(B).2

22

The Attorney General is empowered by Arizona law to seek intervention in federal

23 court on behalf of the State. See A.R.S. § 41-193(A)(3) (empowering Department of Law

24 to represent the State in federal courts); see also A.R.S. § 41-192(A) (vesting Attorney

25 General with direction and control of Department of Law).

26

27 2 Kootenai Tribe also has language regarding intervention as of right that was overruled
28 in Wilderness Society. Wilderness Society does not undermine Kootenai Tribe’s holding regarding permissive intervention, however.

3

Case 2:20-cv-00658-DWL Document 46 Filed 04/06/20 Page 4 of 9

1

ARGUMENT

2 I. THE STATE IS ENTITLED TO INTERVENE AS OF RIGHT

3 Each of the four requirements for intervention as of right are satisfied here: (1) the

4 State’s motion is timely, (2-3) the State has protectable interests in defending and

5 enforcing its laws, which would plainly be impaired by the requested relief, and (4) the

6 existing parties do not adequately represent the State’s interest, particularly as the only

7 State official now joined has expressly declined to defend the statute at issue.

8

A. The State’s Motion To Intervene Is Timely

9

The State’s motion is plainly timely. This suit was filed Thursday, a mere four

10 days (and two business days) ago. The Ninth Circuit has found timely considerably

11 greater intervals. See, e.g., Fund for Animals v. Norton, 322 F.3d 728, 735 (9th Cir.

12 2003) (holding motion to intervene was timely when it was filed “less than two months

13 after the plaintiffs filed their complaint and before the defendants filed an answer”);

14 Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1994) (motion was

15 timely when motion filed “four months after [plaintiff] filed the action” and “before any

16 hearings or rulings on substantive matters.”); Sierra Club v. EPA, 995 F.2d 1478, 1481

17 (9th Cir. 1993) (holding intervention was clearly timely where it was filed “before the

18 EPA had even filed its answer”).

19

The State further agrees to abide by the existing briefing schedule, which will

20 avoid any prejudice to Plaintiffs.

21

B. The State Has A Significant Protectable Interest In The Subject Matter Of

This Action, Which Would Be Affected By Any Adverse Ruling

22

23

The State has an unquestionable interest in defending the constitutionality of its

24 laws. “[A] State has standing to defend the constitutionality of its statute.” Diamond v.

25 Charles, 476 U.S. 54, 62 (1986); see also Fed. R. Civ. P. 5.1(c) (permitting intervention

26 by state attorney general when constitutionality of state’s statutes is questioned).

27 Similarly, “a state suffers irreparable injury whenever an enactment of its people or their

28 representatives is enjoined.” Coalition for Economic Equity v. Wilson, 122 F.3d 718, 719

4

Case 2:20-cv-00658-DWL Document 46 Filed 04/06/20 Page 5 of 9

1 (9th Cir. 1997); accord Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in

2 chambers) (same). And “because the Article III standing requirements are more stringent

3 than those for intervention under rule 24(a),” where a State has standing to defend a law,

4 that “standing under Article III compels the conclusion that they have an adequate

5 interest under” Rule 24. Yniguez v. State of Arizona, 939 F.2d 727, 735 (9th Cir. 1991).

6

The State also has a compelling interest in structuring its elections. See Burdick v.

7 Takushi, 504 U.S. 428, 433 (1992); John Doe No. 1 v. Reed, 561 U.S. 186, 197 (2010)

8 (“The State’s interest in preserving the integrity of the electoral process is undoubtedly

9 important.”). Invalidation of any state election procedure undoubtedly has an effect on

10 the State sufficient to support intervention. And because that is precisely the relief that

11 Plaintiffs seek, the potential-impairment requirement is plainly satisfied here.

12

C. Existing Parties Do Not Adequately Represent The State’s Interests

13

The “burden of showing inadequacy of representation is ‘minimal’ and satisfied if

14 the applicant can demonstrate that representation of its interests ‘may be’ inadequate.”

15 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011)

16 (quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)). Courts consider

17 several factors, including

18

(1) whether the interest of a present party is such that it will undoubtedly

make all of a proposed intervenor’s arguments; (2) whether the present

19

party is capable and willing to make such arguments; and (3) whether a

20

proposed intervenor would offer any necessary elements to the proceeding

that other parties would neglect.

21

22 Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 952 (9th Cir. 2009).

23

The Secretary has expressly disclaimed any intent to defend the Arizona laws

24 challenged by Plaintiffs. See supra at 1 & n.1. Thus far from “mak[ing] all of [the

25 State’s] arguments” in defense here, id., the Secretary is not intending or “willing” to

26 make any of them in the context of the particular challenge brought here. Id. Given the

27 absence of any state official willing to defend Arizona law here as a party, the State

28 should be granted intervention.

5

Case 2:20-cv-00658-DWL Document 46 Filed 04/06/20 Page 6 of 9

1

It is also unclear whether the County Defendants would be able to mount a

2 vigorous defense of the laws at issue here given the extremely accelerated time frame

3 here—a mere eight days from filing of this suit to a brief in opposition to a preliminary

4 injunction. See Doc. 9. Nor is it clear that they intend to make all of the arguments that

5 the State intends to—and indeed there is not even time to ascertain fully what arguments

6 they intend to make here. But the State, through its Attorney General/Department of

7 Law, has extensive experience with electoral challenges. The potential that this expertise

8 may be material in this highly expedited suit further supports the State’s position.

9

Given these unique circumstances, the State’s motion satisfies the minimal burden

10 of demonstrating inadequacy of representation.

11 II. 12

ALTERNATIVELY, THIS COURT SHOULD GRANT PERMISSIVE INTERVENTION

13

Even if the Court declines to grant the State’s motion to intervene as of right, this

14 is precisely the type of case where permissive intervention is warranted. Federal courts

15 may permit intervention by litigants who have “a claim or defense that shares with the

16 main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Where a

17 litigant “timely presents such an interest in intervention,” the Court should consider:

18

the nature and extent of the intervenors’ interest, their

standing to raise relevant legal issues, the legal position they

19

seek to advance, and its probable relation to the merits of the

20

case[,] whether changes have occurred in the litigation so that

intervention that was once denied should be reexamined,

21

whether the intervenors’ interests are adequately represented

22

by other parties, whether intervention will prolong or unduly delay the litigation, and whether parties seeking intervention

23

will significantly contribute to full development of the

underlying factual issues in the suit and to the just and

24

equitable adjudication of the legal questions presented.

25

26 Perry v. Schwarzenegger, 630 F.3d 898, 905 (9th Cir. 2011).

27

As explained more fully above, the State has a compelling interest in the outcome

28 of this action and has standing to defend the constitutionality of its laws. See also A.R.S.

6

Case 2:20-cv-00658-DWL Document 46 Filed 04/06/20 Page 7 of 9

1 § 41-193(A)(3) (granting authority to the Attorney General to defend the State in federal

2 court). It further seeks to advance “defense[s] that share[] with the main action …

3 common questions of law or fact,” Fed. R. Civ. P. 24(b)(1)(B)—i.e., arguments that the

4 State’s Acts are constitutional.

5

Furthermore, the State’s motion is timely as discussed above. And the State’s

6 participation will not unnecessarily prolong, prejudice, or unduly delay the litigation.

7 Indeed, the State’s participation will “significantly contribute to … the just and equitable

8 adjudication of the legal questions presented.” Schwarzenegger, 630 F.3d at 905.

9

Permissive intervention is also warranted for three additional reasons. First, if a

10 State statute is to be enjoined, it should be defended by at least one state official. Basic

11 principles of federalism should permit the State the opportunity to defend its laws before

12 they are declared unconstitutional. And county officials do not necessarily share the

13 same interest in defending laws that are not theirs. Cf. Fed. R. Civ. P. 5.1(a)(1)(B)

14 (permitting automatic intervention in the absence of a “state” agency or officer or

15 employee in an official capacity). The interests of justice strongly support adjudication

16 on the merits here, rather than permitting the Secretary’s non-defense to be the State’s

17 last (and only) word in this litigation. Second, the State can serve a useful role in

18 coordinating defensive efforts on behalf of the Fifteen County Defendants. Absent such

19 coordination, this Court’s consideration of the issues presented could easily be frustrated

20 by a proliferation of filings. But if the State is granted intervention, it commits to

21 coordinating defensive efforts to the greatest extent possible consistent with its duties to

22 defend its laws. Third, granting intervention to the State will obviate the need to examine

23 whether there is any justiciable Article III “case or controversy” here given the

24 Secretary’s agreement with Plaintiffs. Granting intervention to the State will ensure that

25 there is a Defendant that is truly adverse to Plaintiffs.

26

CONCLUSION

27

For the reasons stated above, the State requests that the Court grant its motion to

28 intervene, either as of right or permissively.

7

Case 2:20-cv-00658-DWL Document 46 Filed 04/06/20 Page 8 of 9

1 Respectfully submitted this 6th day of April, 2020.

2

MARK BRNOVICH

3

ATTORNEY GENERAL

4 By: s/ Drew C. Ensign

5

Drew C. Ensign (No. 25463)

6

Deputy Solicitor General

Robert J. Makar (Bar No. 33579)

7

Assistant Attorney General

8

Attorneys for Proposed Intervenor-

9

Defendant State of Arizona

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

Case 2:20-cv-00658-DWL Document 46 Filed 04/06/20 Page 9 of 9

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 6th day of April, 2020, I caused the foregoing

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

4 System for Filing, which 2020, which will send notice of such filing to all registered

5 CM/ECF users.

6

7 s/ Drew C. Ensign 8 Drew C. Ensign

9 Attorneys for Proposed Intervenor-
10 Defendant State of Arizona

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

 
 Case 2:20-cv-00658-DWL Document 53 Filed 04/07/20 Page 1 of 6

BARBARA LAWALL PIMA COUNTY ATTORNEY
CIVIL DIVISION

1 BARBARA LAWALL 2 PIMA COUNTY ATTORNEY
CIVIL DIVISION
3 Daniel Jurkowitz, SBN 018428
4 Deputy County Attorney 32 North Stone Avenue, Suite 2100
5 Tucson, Arizona 85701
Telephone: 520-724-5700 6 Daniel.Jurkowitz@pcao.pima.gov
7 Attorney for Pima County Recorder F. Ann Rodriguez

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF ARIZONA

10

11 Arizonans for Fair Elections, et al.,

No. 2:20-CV-00658-DWL

12
13 v.
14

Plaintiffs,

15 Katie Hobbs, et al.,

PIMA COUNTY RECORDER’S RESPONSE TO MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

16

Defendants,

17

Assigned to: Honorable Dominic W. Lanza

18

19

The Pima County Recorder F. Ann Rodriguez responds to Plaintiffs’ Motion

20 for Temporary Restraining Order and Preliminary Injunction as follows:

21

The Pima County Recorder agrees with Plaintiffs that electronic signature

22 gathering for initiative petitions should be temporarily allowed during the pendency

23 of COVID-19 restrictions imposed by the State of Arizona. There does not appear to

24 be any technological reason why the Secretary of State could not implement such a 25 process. Electronic signature gathering is authorized under Arizona law for 26 candidates seeking statewide and legislative offices, A.R.S. § 16-315(E), for

1 of 6

Case 2:20-cv-00658-DWL Document 53 Filed 04/07/20 Page 2 of 6

BARBARA LAWALL PIMA COUNTY ATTORNEY
CIVIL DIVISION

1 candidates seeking municipal, county and precinct committeemen offices, A.R.S. §

2 16-317, and for candidates seeking federal offices, A.R.S. § 16-318. The Secretary of

3 State has implemented A.R.S. §§ 16-315(E) and 16-318 with her E-Qual internet

4 portal. Since the portal already can verify registered Arizona voters in signing for

5 candidates, it should be able to verify registered Arizona voters in signing for

6 initiatives.

7

If the Court is inclined to order such relief and such process is implemented,

8 the Pima County Recorder would not disqualify any signatures for the reason that

9 they were collected using E-Qual when she conducts her certification pursuant to

10 A.R.S. § 19-121.02.

11

12 RESPECTFULLY SUBMITTED April 7, 2020.

13

BARBARA LAWALL, PIMA COUNTY ATTORNEY

14

15

By: /s/ Daniel Jurkowitz Daniel Jurkowitz

16

Deputy County Attorney

17

18

19

20

21

22

23

24

25

26

2 of 6

Case 2:20-cv-00658-DWL Document 53 Filed 04/07/20 Page 3 of 6

BARBARA LAWALL PIMA COUNTY ATTORNEY
CIVIL DIVISION

1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 7, 2020, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of

4 a Notice of Electronic Filing to the following ECF registrants:

5
James E. Barton II 6 Jacqueline Mendez Soto 7 Torres Law Group, PLLC
2239 West Baseline Road 8 Tempe, Arizona 85283 9 James@TheTorresFirm.com
Jacqueline@TheTorresFirm.com 10 Attorneys for Plaintiffs

11 Drew Curtis Ensign
12 Robert John Makar Arizona Attorney General’s Office
13 2005 North Central Avenue 14 Phoenix, AZ 85004
Drew.Ensign@azag.gov 15 Robert.Makar@azag.gov 16 Attorneys for Defendant Arizona Secretary of State Katie Hobbs

17 William J. Kerekes

18

Deputy County Attorney Yuma County Attorney’s Office

19 250 West 2nd Street

Street G 20 Yuma, AZ 85364-2235

21 Bill.kerekes@yumacountyaz.gov Attorney for Defendant Yuma County Recorder
22
Britt W. Hanson 23 Deputy County Attorney

24 Cochise County Attorney’s Office PD Drawer CA

25 Bisbee, AZ 85603-0170

26

bhanson@cochise.az.gov Attorney for Defendant Cochise County Recorder

3 of 6

Case 2:20-cv-00658-DWL Document 53 Filed 04/07/20 Page 4 of 6

BARBARA LAWALL PIMA COUNTY ATTORNEY
CIVIL DIVISION

1

2 Christopher C. Keller
Craig C. Cameron 3 Deputy County Attorneys
4 Pinal County Attorney’s Office P.O. Box 887
5 Florence, AZ 85132-0887
6 Chris.keller@pinalcountyaz.gov Craig.cameron@pinalcountyaz.gov
7 Attorneys for Defendant Pinal County Recorder

8 Glenn Buckelew
9 Deputy County Attorney La Paz County Attorney’s Office
10 1316 South Kofa Avenue
11 Suite 607 Parker, AZ 85344
12 gbuckelew@co.la-paz.az.us
13 Attorney for Defendant La Paz County Recorder

14 Jason S. Moore Deputy County Attorney
15 Navajo County Attorney’s Office P.O. Box 668
16 Holbrook, AZ 86025-0668 17 Jason.moore@navajocountyaz.gov
Attorney for Defendant Navajo County Recorder 18

19 Joseph La Rue Talia Offord

20 Deputy County Attorneys

21

Maricopa County Attorney’s Office 301 West Jefferson Street

22 Phoenix, AZ 85003

laruej@mcao.maricopa.gov 23 offordt@mcao.maricopa.gov

24 Attorneys for Defendant Maricopa County Recorder

25 Rose M. Winkeler 26 Senior Civil Deputy
Coconino County Attorney’s Office

4 of 6

Case 2:20-cv-00658-DWL Document 53 Filed 04/07/20 Page 5 of 6

BARBARA LAWALL PIMA COUNTY ATTORNEY
CIVIL DIVISION

1

110 East Cherry Avenue Flagstaff, AZ 86001-4627

2 rwinkeler@coconino.az.gov Attorney for Defendant Coconino County Recorder
3

Kim Hunley 4 Chief Civil Deputy

5 Santa Cruz County Attorney’s Office 2150 North Congress Drive
6 Nogales, AZ 85621

7 khunley@santacruzcountyaz.gov Attorney for Defendant Santa Cruz County Recorder
8

9

Thomas M. Stoxen Yavapai County Attorney’s Office

10 255 East Gurley Street Prescott, AZ 86301
11 Thomas.Stoxen@yavapai.us

12 Attorney for Defendant Yavapai County Recorder

13 Joseph Young

14 Apache County Attorney’s Office P.O. Box 637
15 St. Johns, AZ 85936

16

JYoung@Apachelaw.net Attorney for Defendant Apache County Recorder

17 Jeff Dalton
18 Gila County Attorney’s Office

19 1400 East Ash Street Globe, AZ 85501
20 jdalton@gilacountyaz.gov

21 Attorney for Defendant Gila County Recorder

22 Kenneth Angle

23

Graham County Attorney’s Office 800 Main Street

24 Safford, AZ 85546

kangle@graham.az.gov 25 Attorney for Defendant Graham County Recorder

26

5 of 6

Case 2:20-cv-00658-DWL Document 53 Filed 04/07/20 Page 6 of 6

BARBARA LAWALL PIMA COUNTY ATTORNEY
CIVIL DIVISION

1
2 Jeremy Ford Greenlee County Attorney’s Office
3 P.O. Box 1717 Clifton, AZ 85533
4 jford@co.greenlee.az.us 5 Attorney for Defendant Greenlee County Recorder

6 Ryan Esplin

7 Mohave County Attorney’s Office 315 North 4th Street

8 Kingman, AZ 86401

9

Ryan.Esplin@mohavecounty.us Attorney for Defendant Mohave County Recorder

10

11 By: /s/ Lenora R. Anderson 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6 of 6

 
 Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 1 of 11

1 Israel G. Torres (#020303) James E. Barton II (#023888)
2 Jacqueline Mendez Soto (#022597)
3 TORRES LAW GROUP, PLLC 2239 West Baseline Road
4 Tempe, Arizona 85283
5 (480) 588-6120 James@TheTorresFirm.com
6 Jacqueline@TheTorresFirm.com
7 Attorneys for Plaintiff

8

UNITED STATES DISTRICT COURT 9

10

FOR THE DISTRICT OF ARIZONA

11

12 Arizonans for Fair Elections (AZAN), et al;
13

14

Plaintiffs,

15

v.

16 Katie Hobbs, Arizona Secretary of State, et al,
17

18

Defendants.

Case No.: 2:20-cv-00658-DWL
PLAINTIFFS’ OPPOSITION TO THE STATE’S MOTION TO INTERVENE (Oral Argument Requested)

19 INTRODUCTION
20

21

This instant matter concerns a plea for emergency relief from burdens on the

22 exercise of Free Speech and the right to initiative that have become unbearable in light of
23 the present pandemic, which has prompted national, state, and local governments to
24 25 instruct citizens to refrain from unnecessary person-to-person contact—an essential

26 component of circulating initiative petitions. The matter names as defendants each

27 government official tasked with administering the qualification of statewide initiatives 28

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 2 of 11

1 for the ballot. The State of Arizona (“The State”), as represented by the Arizona Attorney

2 General, should not be permitted to intervene in this action, and Plaintiffs Arizonans for
3 Fair Elections, et. al (“Plaintiffs”) hereby oppose the State’s Motion to Intervene
4
5 (“Motion”).

6

The State fails to establish that it may intervene as of right pursuant to Rule 24(a)

7 of the Arizona Rules of Civil Procedure (“A.R.C.P.”) because it asserts only a vague, 8 9 undifferentiated interest in this matter. The State does have an interest in ensuring that

10 its laws are upheld, just as it has an interest in ensuring that those laws do not

11 unconstitutionally burden the exercise of Free Speech or the constitutional right to 12
initiative. But, such a vague interest in the state’s laws and constitution being upheld 13
14 cannot be compromised by the outcome of this instant matter. Similarly, the State’s

15 interest cannot be necessary to defend such an interest. Indeed, on matters of
16 administering a particular election, the State relies on the both the Secretary of State and
17
18 the County Recorders. They are all named as parties to this action and, with regard to the

19 emergency, one-time accommodation in light of the current pandemic adequately

20 represents the interests enumerated in the State’s Motion. Likewise, the Court should, in 21 22 its discretion, deny permissive intervention to avoid undue delay when prompt resolution

23 of the matter at hand is crucial.

24

LEGAL STANDARD

25 To establish entitlement to intervention under Rule 24(a)(2) A.R.C.P., a movant
26

27 must show each of the following: (1) that their motion was timely; (2) an interest relating

28 to the property or transaction that is the subject of the action; (3) that disposing of the

2

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 3 of 11

1 action, as a practical matter, may impair its ability to protect its interest; and (4) its interest

2 is not adequately represented by existing parties to the litigation. See Fed. R. Civ. P.
3 24(a)(2); Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003), as amended (May
4 5 13, 2003). The burden of showing that each of these have been met rests with the moving

6 party. See e.g., Fair Political Practices Comm'n v. Eisen, 543 Fed. Appx. 730 (9th Cir.

7 2013).

8

9

As for permissive intervention, after an applicant satisfies the threshold

10 requirements, the district court must exercise discretion in considering permissive

11 intervention, especially when granting intervention would unduly delay or prejudice the

12 original parties. See Venegas v. Skaggs, 867 F.2d 527, 530–31 (9th Cir. 1989).
13

14

ARGUMENT

15

A. The State Is Not Entitled to Intervene as of Right

16 The State can only show that it satisfies the requirement to file its Motion timely.
17

18 None of the remaining requirements for intervention as of right are satisfied here.

19

1. The State has not asserted a sufficiently specific interest.

20

The underlying action does not challenge the facial constitutionality of the statutes

21

22 at issue; nor does it seek to permanently alter Arizona’s system for qualifying initiatives

23 for the ballot. Instead, it seeks emergency action to ensure that current laws, as applied

24 during the pandemic, do not unduly burden the exercise of Free Speech and Arizona’s

25 constitutional right to initiative.
26

27

Even when a lawsuit challenges the constitutionality of a statute, intervention as

28 of right requires more than a hope that the state’s laws survive the challenge. See One

3

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 4 of 11

1 Wisconsin Inst., Inc. v. Nichol, 310 F.R.D. 394, 397 (W.D. Wis. 2015) (“a legislator’s

2 personal support does not give him or her an interest sufficient to support intervention”);
3 Am. Ass’n of People With Disabilities v. Herrera, 257 F.R.D. 236, 251 (D.N.M.2008)
4
5 (where proposed intervenor “shares his interest with almost everyone else” he “has no

6 particularized interest in this case”).

7

The State’s claimed interests here are (1) “defending the constitutionality of its

8

9 laws” [Mot. At 4] and (2) “structuring its elections,” [Mot. at 5]. The former is the sort

10 of undifferentiated interest disallowed by the cases cited above. The latter ignores the

11 fact that the relief sought in the instant cases does not fundamentally change the structure 12
of Arizona’s elections. Rather, Plaintiffs propose a temporary adaption to sustain the 13
14 constitutionality of Arizona’s system in the face of a global pandemic.

15

2. Neither the constitutionality of Arizona’s laws nor the structure of

16

its elections will be compromised by the disposition of this action.

17

The State has not articulated how disposing of this action may, as a practical

18 matter, impair or impede its ability to protect its interest. The State cannot demonstrate
19
20 that the outcome of this action may, as a practical matter, impair or impede its ability to

21 defend the constitutionality of state laws or structure its elections. Again, this rests on

22 the nature of the relief sought. The Plaintiffs’ request that the ban on electronic signature
23 gathering for initiative petitions be temporarily lifted in response to the COVID 19
24

25 pandemic will neither threaten the enforcement of Title 19, nor ultimately alter the

26 structure of Arizona’s elections past the pandemic emergency.

27

3. The Arizona Secretary of State adequately represents the interest

28

stated by the State.

4

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 5 of 11

1 The Arizona Secretary of State (“the Secretary”) is the chief elections officer. She
2
3 is tasked with administering the elections. As the elected official tasked with this purpose,

4 she adequately represents the State’s interest in maintaining the structure of its elections
5 and ensuring its election laws are enforced in a constitutional manner. See Ariz. Const.,
6 7 art. V, § 10; A.R.S. § 41-121 (certifies election results); § 16-407 (oversees elections and

8 adopts rules for elections); § 16-452 (prescribes election rules, instructions and

9 procedures).
10 Notably, the Secretary is constitutionally tasked with the initiative process that is
11

12 at issue in this case. See Ariz. Const., art. IV, Pt. 1, § 1. Moreover, the Secretary is

13 responsible for providing personnel who are experts in electronic voting systems and
14 procedures, and in electronic voting system security, to field check and review electronic
15
16 voting systems and recommend needed statutory and procedural changes. See A.R.S. §

17 16-452(D). Furthermore, the Secretary provides and oversees the E-Qual system for the
18 submittal of electronic signatures by qualified electors. See A.R.S § 16-316. By the
19 20 Secretary’s constitutionally and statutorily defined duties, she is obligated to adequately

21 represent the interests of the State.

22

The fact that some elected officials disagree with the position taken by the

23

Secretary in her press release does not mean that she has failed to represent the interests 24

25 of the State. Indeed, there are surely other elected officials who support the Secretary’s

26 position or perhaps believe that some other action should be taken. The Secretary is
27 representing the State’s interest in enforcing its laws in a constitutional manner, and
28

5

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 6 of 11

1 structuring its elections in light of the current pandemic.

2

The State merely implies that its position is different than the Secretary’s by

3 claiming an absence of any state official willing to defend Arizona law. [Mot. at 5.] That
4

5 another party might take a different position than a party to the litigation fails to meet the

6 requirement that the existing party inadequately represents its interest.

7

B. Intervention will result in undue delay.

8

9

The Court should use its discretion to deny permissive intervention and thus avoid

10 the risk of undue delay. The main thrust of the motion to intervene is that the Secretary

11 agrees it is feasible to make a temporary accommodation to the signature gathering system 12
by lifting the ban on initiative committee’s access to E-Qual and thereby restore to 13
14 Arizona citizens a mechanism to safely exercise their rights in the face of a pandemic.

15

This fact does not suggest that the Court needs to hear from elected officials other

16 than the State’s and the counties’ chief elections officers. To the contrary, it makes clear
17

18 that granting the Attorney General’s motion to intervene will result in unnecessary delay.

19

Prompt resolution of this matter is essential if the supporters and proponents of

20 initiative campaigns for the 2020 ballot are to have any hope of presenting their issues to 21 22 Arizona voters. Such undue delay is recognized as a prejudice to the parties because “Rule

23 24(b) is just about economy in litigation.” See City of Chi. v. Fed. Emergency Mgmt.

24 Agency, 660 F.3d 980, 987 (7th Cir.2011). When, as in this case, the harm at issue is 25
engaging in such core First Amendment activities with an impending election “[a] delay 26
27 of even a day or two may be intolerable.” See Klein v. City of San Clemente, 584 F.3d

28 1196, 1208 (9th Cir. 2009).

6

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 7 of 11

1

The nature of the relief also supports the Court denying the proposed intervenor’s

2 motion. The relief sought is narrowly focused on the administration of the 2020 ballot
3 measure elections. The named parties are all of the state officials tasked with
4
5 administering this election, including performing signature verification. Adding parties

6 that are not involved in the initiative process and who have no expertise in administering

7 elections will only serve to encumber the proceedings where prompt resolution is crucial.

8

9

Further, in the pending State action, Arizonans for Second Chances, CV-20-0098-

10 SA, the State has taken the position that the Governor, with the police power vested in

11 him during this emergency situation, should first engage in a fact finding mission to 12
determine how the COVID-19 pandemic affects statewide signature gathering and what, 13
14 if any, procedures and rules should be modified. Until then, the State argues the courts

15 are unable to decide such matters. See Proposed Intervenor-Respondent Attorney
16 General’s Pre-Telephonic Conference Memo, p. 4, Apr. 3, 2020, Arizonans for Second
17 18 Chances et al. v. Katie Hobbs et al., CV-20-0098-SA. The State’s position before the

19 Arizona Supreme Court, if taken in this matter as well, will unduly delay these

20 proceedings.

21

22

For the foregoing reasons, Plaintiffs ask that this Court deny the State’s motion.

23

DONE this 8th day of April, 2020.

24

TORRES LAW GROUP, PLLC

25

/s/James E. Barton II

James E. Barton II

26

Jacqueline Mendez Soto

27

Attorney for Plaintiffs

28

7

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 8 of 11

1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 8, 2020 I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing, and transmitted a copy to the follow parties via email.

4

5

6

7

8

/s/ Monse Vejar

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 9 of 11

1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 8, 2020 I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing, and transmitted a copy to the follow parties via email.

4

5

6

7

Joseph Young Deputy County Attorney

8 Apache County Attorney’s Office

9

P.O. Box 637 St. Johns, AZ 85936

10 JYoung@Apachelaw.net

Attorney for Defendant Edison Wauneka, Apache County Recorder 11

12 Britt W. Hanson Deputy County Attorney
13 Cochise County Attorney’s Office 14 bhanson@cochise.az.gov
Attorney for Defendant David W. Stevens, Cochise County Recorder 15
16 Rose M. Winkeler Senior Civil Deputy
17 Coconino County Attorney’s Office 18 110 E. Cherry Ave.
Flagstaff, AZ 86001-4627 19 rwinkeler@coconino.az.gov 20 Attorney for Defendant Patty Hansen, Coconino County Recorder

21 Gila County Attorney’s Office

22

1400 E. Ash St. Globe, AZ 85501

23 jdalton@gilacountyaz.gov

Attorney for Sadie Jo Bingham Gila Count Defendants 24

25 Graham County Attorney’s Office 800 Main St.
26 Safford, AZ 85546
27 jdalton@gilacountyaz.gov Attorney for Wendy John, Graham County Recorder
28

2

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 10 of 11

1 Greenlee County Attorney’s Office P.O. Box 1717
2 Clifton, AZ 85533

3 jford@co.greenlee.az.us Attorney for Sharie Milheiro Greenlee County Recorder
4

5 La Paz County Attorney’s Office 1316 S. Kofa Ave., Ste. 607
6 Parker, AZ 85344

7

rdooley@lapazcountyaz.org Attorney for Defendant Richard Garcia, La Paz County Recorder

8

9

Joseph LaRue Maricopa County Attorney’s Office

10 222 N. Central Ave. , Suite 1100 Phoenix, AZ 85004
11 laruej@mcao.maricopa.gov

12 Attorney for Adrian Fontes, Maricopa County Recorder

13 Ryan Esplin
14 Mohave County Attorney's Office 928-75-0770
15 Ryan.Esplin@mohavecounty.us
16 Attorney for Defendant Kristi Blair, Mohave County Recorder

17 Jason S. Moore

18 Deputy County Attorney Navajo County Attorney’s Office

19 PO Box 668

20

Holbrook, AZ 86025-0668 Jason.moore@navajocountyaz.gov

21 Attorney for Doris Clark, Navajo County Recorder

22 Daniel Jurkowitz 23 Pima County Attorney’s Office
32 N. Stone Ave., #200 24 Tucson, AZ 85701 25 Daniel.jurkowitz@pcao.pima.gov
Attorney for Defendant F. Ann Rodriguez, Pima County Recorder 26
27 Pinal County Attorney’s Office PO Box 887
28 Florence, AZ 85132-0887

3

Case 2:20-cv-00658-DWL Document 59 Filed 04/08/20 Page 11 of 11

1 Chris.keller@pinalcountyaz.gov Craig.cameron@pinalcountyaz.gov
2 Attorneys for Defendant
3 George E. Silva
4 Santa Cruz County Attorney’s Office 5 2150 N. Congress Drive
Nogales, AZ 85621 6 gsilva@santacruzcountyaz.gov 7 Attorney for Defendant Santa Cruz County Recorder

8 Yavapai County Attorney’s Office

9

255 E. Gurley St. Prescott, AZ 86301

10 Thomas.Stoxen@yavapai.us

Attorneys for Defendant Yavapai County Recorder 11

12 Yuma County Attorney’s Office 250 W. 2nd Street, St. G
13 Yuma, AZ 85364-2235
14 Bill.kerekes@yumacountyaz.gov Attorney for Defendants
15

16 Roy Herrera Daniel A. Arellano

17 Ballard Spahr LLP

18 1 East Washington Street, Suite 2300 Phoenix, AZ 85004-2555

19 602.798.5430

20

HerreraR@ballardspahr.com arellanod@ballardspahr.com

21 Attorneys for Katie Hobbs, Secretary of State

22

23

24

25

26

27

/s/ Monse Vejar

28

4

 
 Case 2:20-cv-00658-DWL Document 60 Filed 04/08/20 Page 1 of 8

1 CANTELME & BROWN, P.L.C.

2

A Professional Liability Company

2020 S. McClintock Drive, Suite 109

3

Tempe, Arizona 85282

Tel (602) 200-0104 Fax (602) 200-0106

4 E-mail: david@cb-attorneys.com/aaron@cb-
attorneys.com

5 David J. Cantelme, Bar No. 006313 D. Aaron Brown, Bar No. 022133

6 Attorneys for Intervenors

7

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF ARIZONA

10 Arizonans for Fair Elections (AZAN), an Arizona nonprofit corporation; et al.,
11
Plaintiffs, 12
v. 13
Katie Hobbs, Arizona Secretary of State; 14 et al., all in their official capacities,

15

Defendants.

16

Case No. 2:20-cv-00658-DWL
MOTION TO INTERVENE OF PROPOSED INTERVENOR DEFENDANTS SPEAKER OF THE ARIZONA HOUSE OF REPRESENTATIVES AND PRESIDENT OF THE ARIZONA SENATE

17

Pursuant to Rule 24(a), Fed. R. Civ. P., proposed intervenors the Speaker of the

18 Arizona House of Representatives ("Speaker") and the President of the Arizona Senate

19 ("President") move to intervene in their official capacities to defend the constitutionality

20 of the Arizona law challenged in the complaint. Arizona Revised Statutes § 12-1841

21 confers standing on these state officers to defend the constitutionality of Arizona laws,

22 and as shown in the following memorandum of points and authorities, the Speaker and

23 President satisfy all four prongs of the test for intervention of right under Rule 24(a). As

24 required by Rule 24(c), a copy of the proposed answer to be filed by the Speaker and

25 President is attached as Exhibit 1. Before filing an answer, however, the Speaker and

26 President intend to move to dismiss the case.

Case 2:20-cv-00658-DWL Document 60 Filed 04/08/20 Page 2 of 8

1

Alternatively, pursuant to Rule 24(b), the Speaker and President move to intervene

2 permissively in their official capacities. And again, as shown in the following

3 memorandum, the Speaker and President satisfy all three prongs of the test for permissive

4 intervention.

5

Plaintiffs Arizonans for Fair Elections, Arizonans Fed Up with Failing Healthcare,

6 and Randi L. Turk declined to stipulate to intervention. For their part, defendants

7 Secretary of State Katie Hobbs and Pima County Recorder F. Ann Rodriguez have both

8 refused to defend this lawsuit. Whether the other defendants will do so is unknown.

9 Under these circumstances, and for all the reasons that follow, the Court should grant the

10 Speaker and President's motion.

11

MEMORANDUM OF POINTS AND AUTHORITIES

12 1. THE TRUE NATURE OF THE CHALLENGE.

13

At root, Plaintiffs challenge the signature-gathering requirements that have

14 governed initiatives in Arizona for the last 108 years, in good times and bad, through

15 World War I, the 1918–19 Spanish influenza pandemic, the polio epidemic, the Great

16 Depression, World War II, the Great Recession, and all the other epic events that state

17 history records.

18

From the beginning, the Arizona Constitution has required that a qualified elector

19 sign an initiative petition in the presence of the circulator, who must attest before a notary

20 to the elector's qualifications. THE RECORDS OF THE ARIZONA CONSTITUTIONAL

21 CONVENTION OF 1910 at 1404 (John S. Goff ed., 1991). Specifically, article 4, part 1,

22 section 1(9) of the Arizona Constitution provides:

23

Form and contents of initiative and of referendum petitions;

24

verification. Every initiative or referendum petition shall be addressed to

the secretary of state in the case of petitions for or on state measures, and to

25

the clerk of the board of supervisors, city clerk, or corresponding officer in

26

the case of petitions for or on county, city, or town measures; and shall

contain the declaration of each petitioner, for himself, that he is a qualified

2

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1

elector of the state (and in the case of petitions for or on city, town, or county measures, of the city, town, or county affected), his post office address, the

2

street and number, if any, of his residence, and the date on which he signed

such petition. Each sheet containing petitioners' signatures shall be attached

3

to a full and correct copy of the title and text of the measure so proposed to

4

be initiated or referred to the people, and every sheet of every such petition

containing signatures shall be verified by the affidavit of the person who

5

circulated said sheet or petition, setting forth that each of the names on said

6

sheet was signed in the presence of the affiant and that in the belief of the affiant each signer was a qualified elector of the state, or in the case of a city,

7

town, or county measure, of the city, town, or county affected by the measure

so proposed to be initiated or referred to the people. 8

9

Plaintiffs overlook these constitutional requirements and instead focus their attack

10 on A.R.S. § 19-112. See Compl. ¶¶ 37, 70–71, 87–88, 90, & 99. But the statute's

11 signature-gathering provisions merely restate those found in the Arizona Constitution,

12 and so it is the constitutional provisions that Plaintiffs ultimately challenge. By its nature,

13 a constitution is meant to endure all the vicissitudes of life—even the current pandemic.

14 And no matter the expediency, neither the Secretary nor the county recorders (nor the

15 Legislature, for that matter) has the power to alter the constitution's terms, including by

16 allowing online signature-gathering for initiative campaigns.

17

In this context, the ultimate questions framed by the complaint are (1) whether the

18 Arizona Constitution's initiative-petition signature-gathering requirements conflict with

19 the United States Constitution's free-speech and equal-protection guarantees; and (2) if

20 so, whether the Court may resolve that conflict by ordering the Secretary to enforce and

21 apply signature-gathering rules she otherwise has no power to adopt.

22 2. THE RIGHT OF THE SPEAKER AND PRESIDENT TO INTERVENE.

23

For their part, the Speaker and President have authority under A.R.S. § 12-1841 to

24 intervene in an action challenging the constitutionality of an Arizona law, as does the

25 Arizona Attorney General. This does not suggest that the Speaker and President can

26 sidestep Rule 24's requirements for intervention. It does mean, however, that the Speaker

3

Case 2:20-cv-00658-DWL Document 60 Filed 04/08/20 Page 4 of 8

1 and President have legal authority to defend a challenged Arizona law, and that they have

2 Article III standing to do so.

3 3. INTERVENTION OF RIGHT.

4

"Rule 24 traditionally receives liberal construction in favor of applicants for

5 intervention." Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). Rule 24(a)

6 sets a four-pronged test for intervention of right:

7

(1) the motion must be timely; (2) the applicant must claim a "significantly

protectable" interest relating to the property or transaction which is the

8

subject of the action; (3) the applicant must be so situated that the disposition

of the action may as a practical matter impair or impede its ability to protect

9

that interest; and (4) the applicant's interest must be inadequately represented

by the parties to the action.

10

11 United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010). The Speaker

12 and President satisfy all four elements.

13

A. Timeliness.

14

The present motion is timely. On April 2, 2020, Plaintiffs filed the complaint and

15 request for injunction (ECF No. 1), together with their TRO motion (ECF No. 2), and the

16 Court set a hearing on the motion for TRO for April 14, 2020 (ECF No. 9). Although

17 Secretary Hobbs has not yet filed an answer, on April 6 she announced that she will not

18 oppose Plaintiff's complaint and request for injunction. See https://azsos.gov/about-

19 office/media-center/press-releases/1158. On April 8, Pima County Recorder Rodriguez

20 indicated that she will not defend this lawsuit either. ECF No. 53. Two days ago, the

21 Attorney General moved to intervene on behalf of the State (ECF No. 46); this

22 intervention motion timely follows.1

23

24 1 While not directly applicable, Rule 5.1 supports the timeliness of the current motion. It
25 allows the United States Attorney General up to 60 days to intervene in an action in which 26 the constitutionality of a federal law is challenged. The present motion comes well within
such 60 days.

4

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1

B. Significantly Protectable Interest.

2

The Speaker and President have a "significantly protectable interest" involved in

3 this action—i.e. upholding the Arizona Constitution and the laws that implement it. "An

4 applicant for intervention has a significantly protectable interest if the interest is protected

5 by law and there is a relationship between the legally protected interest and the plaintiff's

6 claims." United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004) (internal

7 citations and quotation marks omitted). The proposed intervenor "need not show that the

8 interest he asserts is one that is protected by the statute under which litigation is brought[;]

9 [i]t is enough that the interest is protectable under any statute." Id.

10

The Speaker and President pass this test. A.R.S. § 12-1841 confers on them

11 authority to defend the State's interest in upholding the constitutionality of Arizona laws.

12 See also Karcher v. May, 484 U.S. 72, 82 (1987) (concluding that there had been a proper

13 defendant-appellant below where New Jersey law authorized the presiding legislative

14 officers to defend legislative enactments). And practical experience repeatedly has

15 proven the necessity of their intervention to defend the constitutionality of state laws.

16 See, e.g., Horne v. Flores, 557 U.S. 433, 443 (2009) (Speaker and President intervened

17 where "the principal defendants in the in the action [were] siding with the plaintiffs").

18 The Speaker and President must intervene here, where at least two of the defendants—

19 Secretary Hobbs and Recorder Rodriguez—have refused to defend the laws at issue, and

20 instead have sided with Plaintiffs.

21

C. Practical Impairment.

22

As a practical matter, the Speaker and President's legally protected interest in

23 upholding Arizona's laws and constitution would be impaired if this matter were resolved

24 in Plaintiffs' favor. The Speaker and President are the presiding officers of the

25 Legislature that makes Arizona's laws, consistent with the constitutional command. To

26

5

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1 strike down, suspend, or rewrite those laws would necessarily impair the Legislature's

2 (and its presiding officers') constitutional role.

3

D. Adequacy of Representation.

4

An applicant's burden in showing inadequacy of representation is "minimal": the

5 question is not whether representation will be inadequate, but rather whether it "may be"

6 inadequate. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983). In

7 determining adequacy of representation, the court considers: (1) whether the interest of

8 a present party is such that it will undoubtedly make all the proposed intervenor's

9 arguments; (2) whether the present party is capable and willing to make such arguments;

10 and (3) whether the proposed intervenor would offer any necessary elements to the

11 proceeding that other parties would neglect. Arakaki, 324 F.3d at 1086.

12

Here, there are grave doubts whether the named defendants can adequately

13 represent the Speaker and President's interests. Secretary Hobbs and

14 Recorder Rodriguez have already made plain that they cannot do so—both have refused

15 to defend the State's laws and have instead sided with Plaintiffs. Whether the other

16 county recorders are willing or able to make the Speaker and President's arguments, or

17 would otherwise defend this lawsuit as energetically as would the Speaker and President,

18 is presently unknown. Finally, although the Attorney General has moved to intervene

19 on behalf of the State, it is unclear whether he will make the same arguments as the

20 Speaker and President. That is particularly true given the position the Attorney General

21 has taken in the similar litigation pending before the Arizona Supreme Court.

22 4. 23

ALTERNATIVELY, PERMISSIVE INTERVENTION SHOULD BE GRANTED.

24

As an alternative to intervention of right, compelling grounds exist for the Court

25 to grant permissive intervention. "[A] court may grant permissive intervention where the

26 applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion

6

Case 2:20-cv-00658-DWL Document 60 Filed 04/08/20 Page 7 of 8

1 is timely; and (3) the applicant's claim or defense, and the main action, have a question

2 of law or a question of fact in common." Nw. Forest Res. Council v. Glickman, 82 F.3d

3 825, 839 (9th Cir. 1996).

4

All three prongs are met in this case. As shown above, the Speaker and President

5 have authority under A.R.S. § 12-1841 to defend the initiative laws (and thus Article III

6 standing under Karcher, 484 U.S. at 81–82), and the motion is timely. The common-

7 question prong also is satisfied. The same legal issues relative to the constitutionality of

8 A.R.S. § 19-112(A) and (C) apply both to the Secretary and to the Speaker and President.

9 The case is not being adequately defended. Permissive intervention should be granted.

10 5. CONCLUSION.

11

For the foregoing reasons, intervention of right, or alternatively, permissive

12 intervention should be granted.

13

14

RESPECTFULLY SUBMITTED on April 8, 2020.

15

CANTELME & BROWN, P.L.C.

16

/s/ David J. Cantelme, SBN 006313

17

2020 S. McClintock Drive, Suite 109

Tempe, Arizona 85282

18

Attorneys for Proposed Intervenor Defendants

Speaker of the Arizona House of Representatives and

19

President of the Arizona Senate

20

21

22

23

24

25

26

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Case 2:20-cv-00658-DWL Document 60 Filed 04/08/20 Page 8 of 8

CERTIFICATE OF SERVICE 1

2

I hereby certify that on April 8, 2020, I caused the foregoing document to be electronically transmitted to the Clerk's Office using the CM/ECF System for Filing,

3 which will send notice of such filing to all registered CM/ECF users.

4 /s/ Megan Bilek
5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

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23

24

25

26

8

 
 Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 1 of 10

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Arizonans for Fair Elections, et al.,

No. CV-20-00658-PHX-DWL

10

Plaintiffs,

ORDER

11 v.

12 Katie Hobbs, et al.,

13

Defendants.

14

15

On April 4, 2020, Plaintiffs filed a complaint alleging that certain statutes governing

16 Arizona’s citizen initiative process, which appear in Title 19 of the Arizona Revised

17 Statutes, constitute an unconstitutional inhibition of their First and Fourteenth Amendment 18 rights in light of the state and local responses to the COVID-19 pandemic. (Doc. 1.) 19 Specifically, Plaintiffs allege that the state and local responses make it impossible to gather

20 initiative-petition signatures in the manner required by Title 19. (Id.) Plaintiffs list Arizona 21 Secretary of State Katie Hobbs (the “Secretary”), who oversees Arizona’s elections, as well

22 as each of Arizona’s county recorders, who oversee local elections and assist the Secretary 23 with certain statutory duties, as defendants. (Id.)

24

Also on April 4, 2020, Plaintiffs filed a motion for a temporary restraining order

25 (“TRO”), asking the Court to order the Secretary to permit the use of Arizona’s “E-QUAL”

26 system to gather initiative-petition signatures electronically and to enjoin the Secretary and 27 county recorders from striking any signatures gathered via that system. (Doc. 2.) Plaintiffs

28 sought this order without notice to Defendants, but the Court concluded “this is not the sort

Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 2 of 10

1 of unusual case where proceeding without notice to the adverse parties would be

2 appropriate.” (Doc. 9 at 2.) The Court instead set a briefing schedule and scheduled a

3 hearing for April 14, 2020. (Id. at 3.)

4

Since the Court issued its order, the State of Arizona, represented by the Arizona

5 Attorney General, has moved to intervene in this case pursuant to Rule 24. (Doc. 46.)

6 Plaintiffs oppose that request. (Doc. 59.) For the following reasons, the intervention

7 motion will be granted.

8

ANALYSIS

9

“Rule 24 recognizes two types of intervention: (1) intervention of right; and (2)

10 permissive intervention. Courts must permit intervention of right, but may permit or deny

11 permissive intervention.” Gensler, 1 Federal Rules of Civil Procedure, Rules &

12 Commentary, Rule 24, at 690 (2020). Here, the State seeks to intervene under both

13 theories.

14 I. Intervention Of Right

15

Intervention of right is available to anyone who “claims an interest relating to the

16 property or transaction that is the subject of the action, and is so situated that disposing of

17 the action may as a practical matter impair or impede the movant’s ability to protect its

18 interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2).

19 Courts in the Ninth Circuit employ a four-part test when analyzing intervention of right:

20

(1) the motion must be timely; (2) the applicant must claim a “significantly

21

protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition

22

of the action may as a practical matter impair or impede its ability to protect

that interest; and (4) the applicant’s interest must be inadequately represented

23

by the parties to the action.

24 Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (quoting Sierra
25 Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993)). These requirements are broadly
26 construed, because “a liberal policy in favor of intervention serves both efficient resolution
27 of issues and broadened access to the courts.” Id. (citation omitted).
28 …

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Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 3 of 10

1

A. Timeliness

2

“Timeliness is a flexible concept; its determination is left to the district court’s

3 discretion.” United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004). In

4 determining whether a motion to intervene is timely, courts consider: “(1) the stage of the

5 proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and

6 (3) the reason for and length of the delay.” Id. (citation omitted).

7

Here, as Plaintiffs concede (Doc. 59 at 3), the motion is timely. When intervention

8 is sought “at the outset of the litigation,” it is well within a court’s discretion to allow it.

9 Sierra Club, 995 F.2d at 1481. Such is the case here—the State sought to intervene within

10 48 hours of when this suit was initiated and before most of the defendants had even been

11 served, let alone answered.

12

Given that, the other two factors are easy to resolve. The State has agreed to abide

13 by the Court’s briefing schedule. (Doc. 46 at 4.) Thus, there is no possible prejudice in

14 allowing the State to intervene. Finally, given that there was no delay in filing its motion,

15 the State need not explain the reason for and length of the delay.

16

B. Significant Protectable Interest

17

“The ‘interest’ test is not a bright-line rule.” Alisal Water Corp., 370 F.3d at 919.

18 It is a fact-bound inquiry and “no specific legal or equitable interest need be established.”

19 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011).

20 In fact, “Rule 24(a)(2) does not require a specific legal or equitable interest . . . . [T]he

21 ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many

22 apparently concerned persons as is compatible with efficiency and due process.”

23 Wilderness Soc., 630 F.3d at 1179 (citation and quotation marks omitted). See also

24 Gensler, Rule 24, at 700 (noting that the Ninth Circuit does not “rigidly require that the

25 interest derive from a substantive right”).

26

There is “no doubt” that a state has standing to defend the constitutionality of its

27 statutes. Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019). Moreover,

28 the Supreme Court has emphasized that states in general—and Arizona in particular—have

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Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 4 of 10

1 a “compelling interest in preserving the integrity of [the] election process” because

2 “[c]onfidence in the integrity of our electoral processes is essential to the functioning of

3 our participatory democracy. Voter fraud drives honest citizens out of the democratic

4 process and breeds distrust of our government. Voters who fear their legitimate votes will

5 be outweighed by fraudulent ones will feel disenfranchised.” Purcell v. Gonzalez, 549

6 U.S. 1, 4 (2006). Here, Plaintiffs seek to enjoin enforcement of portions of Title 19, which

7 the State has unequivocally indicated are meant to safeguard the integrity of the election

8 process. A.R.S. § 19-101.01 (“The legislature . . . finds and determines that strict

9 compliance with the constitutional and statutory requirements for the referendum process

10 and in the application and enforcement of those requirements provides the surest method

11 for safeguarding the integrity and accuracy of the referendum process.”); Id. § 19-

12 102.01(A) (same as to initiative process). Plaintiffs acknowledge as much. (Doc. 2 at 12

13 [“The State’s interest in requiring signatures to be gathered by a petition circulator who

14 complies with the numerous requirements of Title 19 is to ensure that the hundreds of

15 thousands of required signatures for placement on the ballot come from qualified electors.

16 . . . Under ordinary circumstances, requiring such gathering of signatures would provide

17 somewhat of a burden, but it could arguably be justified by the State’s interest in preventing

18 fraud . . . .”].). Thus, the State has not asserted “a vague, undifferentiated interest,” as

19 Plaintiffs suggest (Doc. 59 at 2), but an interest that cuts to the core of the State’s role in

20 effectuating the democratic process.

21

Plaintiffs’ arguments to the contrary are unpersuasive. They cite two cases for the

22 proposition that “a legislator’s personal support does not give him or her an interest

23 sufficient to support intervention” (Doc. 59 at 4), but that argument is inapplicable here,

24 where the Attorney General has explicit statutory authority to assert the State’s interest.

25 A.R.S. § 41-193(A)(3). See also Bethune-Hill, 139 S. Ct. at 1951 (“[A] State must be able

26 to designate agents to represent it in federal court.”) (quotation omitted).

27

In a similar vein, Plaintiffs argue that the State’s interest is minimal because “the

28 relief sought in the instant cases does not fundamentally change the structure of Arizona’s

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Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 5 of 10

1 elections” and Plaintiffs are merely “propos[ing] a temporary adaption to sustain the

2 constitutionality of Arizona’s system in the face of a global pandemic.” (Doc. 59 at 4.)

3 The State’s papers indicate, however, that it contests this point—that is the entire reason it

4 seeks to intervene. (Doc. 46 at 4-5 [“Invalidation of any state election procedure

5 undoubtedly has an effect on the State sufficient to support intervention. And because that

6 is precisely the relief the Plaintiffs seek, the potential-impairment requirement is plainly

7 satisfied here.”].) Plaintiffs’ objection, then, is essentially an argument on the merits.

8 Courts “should not prematurely reach the merits” of a case when deciding whether to allow

9 intervention. See Gensler, Rule 24, at 699.

10

C. Practical Impairment

11

“If an absentee would be substantially affected in a practical sense by the

12 determination made in an action, he should, as a general rule, be entitled to intervene.”

13 Fed. R. Civ. P. 24, 1966 advisory committee note. This element “follows” from the other

14 factors, Sierra Club, 995 F.2d at 1486, and once those factors are satisfied, courts often

15 “have little difficulty concluding that the disposition of [a] case may, as a practical matter,

16 affect” an intervenor’s interests. California ex rel. Lockyer v. United States, 450 F.3d 436,

17 442 (9th Cir. 2006).

18

Such is the case here. The Court has little difficulty concluding that disposition of

19 this case may affect the State’s interests. Plaintiffs seek exceptions to a litany of statutory

20 requirements aimed at ensuring that initiative-petition signatures are legitimate, including

21 requirements that all petitions be signed in person, on paper sheets, with a full and correct

22 copy of the initiative attached. (Doc. 2 at 4-5.) Then, the signature gatherer must sign a

23 sworn affidavit attesting that those signatures were obtained legitimately. (Id.) The

24 Arizona Supreme Court has stated that the requirements imposed on signature gatherers,

25 in particular, “represent[] a reasonable means of fostering transparency . . . and mitigating

26 the threat of fraud or other wrongdoing infecting the petition process.” Stanwitz v. Reagan,

27 429 P.3d 1138, 1144 (Ariz. 2018) (citation omitted). The perceived benefit of those

28 requirements could be lost if the State were forced to allow for electronic submission of

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Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 6 of 10

1 petition signatures.

2

That Plaintiffs seek only temporary changes to Arizona’s election laws does not

3 alter the analysis. (Doc. 59 at 4.) As an initial matter, it is impossible to gauge how

4 “temporary” the requested adjustments may be. Plaintiffs’ relief is tied to the ongoing

5 COVID-19 pandemic. It is folly for anyone to predict exactly how long the pandemic will

6 last and how long the state and local responses to the pandemic will remain in effect. More

7 important, the State has an interest in maintaining the integrity of every election, not every

8 election except this one. There is no mulligan rule when it comes to elections.

9

D. Adequate Representation

10

Finally, the State must show that existing parties “may not adequately represent [its]

11 interest.” Citizens for Balanced Use, 647 F.3d at 898. This requires a “minimal” showing

12 and is satisfied if existing parties’ representation of its interest “may be” inadequate. Id.

13 To determine adequacy, courts examine: “(1) whether the interest of a present party is such

14 that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the

15 present party is capable and willing to make such arguments; and (3) whether a proposed

16 intervenor would offer any necessary elements to the proceeding that other parties would

17 neglect.” Id. (citation omitted).

18

Thus far, the Court knows the position of only two defendants: the Secretary and

19 the Pima County Recorder. Both have indicated they do not intend to oppose Plaintiffs’

20 TRO request—in fact, they support it. (Doc. 46 at 5-6; Doc. 53.) Thus, it appears neither

21 of those officials is willing to make the arguments the State seeks to make. Moreover,

22 because Plaintiffs’, the Secretary’s, and the Pima County Recorder’s interests have

23 apparently converged, this case could—absent intervention—come dangerously close to

24 asking the Court to issue an advisory opinion, something it is forbidden from doing.

25 Golden v. Zwickler, 394 U.S. 103, 110 (1969) (“No federal court, whether [the Supreme

26 Court] or a district court, has jurisdiction to pronounce any statute, either of a state or of

27 the United States, void . . . except as it is called to adjudge the legal rights of litigants in

28 actual controversies.”) (citation omitted). Allowing the State to intervene resolves this

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Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 7 of 10

1 issue, thus “offer[ing] [a] necessary element[] to the proceeding.” Citizens for Balanced

2 Use, 647 F.3d at 898.

3

This analysis disposes of Plaintiffs’ argument to the contrary, which seeks to

4 characterize the issue as “some elected officials disagree[ing] with the position taken by

5 the Secretary.” (Doc. 59 at 5.) In Plaintiffs’ view, because the Secretary and the county

6 recorders are the officials constitutionally responsible for elections, their opinions and

7 positions are the only ones that matter. (Id.) It’s true that the Secretary is Arizona’s lead

8 election official, but in light of the clear interest the State has in the enforcement of its

9 election laws, combined with the Secretary’s lack of interest in opposing Plaintiffs’ motion,

10 the State’s interest would go unrepresented were it not allowed to intervene. As the State

11 aptly puts it in its motion: “[I]f a State statute is to be enjoined, it should be defended by at

12 least one state official. Basic principles of federalism should permit the State the

13 opportunity to defend its laws before they are declared unconstitutional.” (Doc. 46 at 7.)

14

Finally, Plaintiffs contend that the Secretary, as the chief elections officer,

15 necessarily represents the interests of the State on election matters. Setting aside that this

16 wouldn’t avoid the advisory opinion issue discussed above, if the Secretary truly thought

17 she alone represented the State’s interests on this matter, she presumably would have

18 opposed the State’s intervention request. She declined to do so. (Doc. 46 at 2.)

19

Thus, the State meets all four requirements for intervention of right. Accordingly,

20 the Court “must permit” the State to intervene and its motion is granted.1

21 II. Permissive Intervention

22

The State also satisfies the requirements for permissive intervention. “On timely

23 motion, the court may permit anyone to intervene who . . . has a claim or defense that

24 shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).

25 1

Rule 24(c) requires that a motion to intervene “be accompanied by a pleading that

26

sets out the claim or defense for which intervention is sought.” The State failed to do so. However, the Ninth Circuit has been emphatic that “failure to comply with the Rule 24(c)

27

requirement for a pleading is a purely technical defect which does not result in the disregard of any substantial right.” Westchester Fire Ins. v. Mendez, 585 F.3d 1183, 1188 (9th Cir.

28

2009) (quotations omitted). “Courts . . . have approved intervention motions without a pleading where the court was otherwise apprised of the grounds for the motion.” Beckman

Indus. Inc., v. Int’l Ins. Co., 966 F.2d 470, 474 (9th Cir. 1992).

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Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 8 of 10

1 “[A] court may grant permissive intervention where the applicant for intervention shows

2 (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s

3 claim or defense, and the main action, have a question of law or a question of fact in

4 common.” United States v. City of Los Angeles, 288 F.3d 391, 403 (9th Cir. 2002) (citation

5 omitted). “The district court is given broad discretion to make this determination.” Perry

6 v. Schwarzenegger, 630 F.3d 898, 905 (9th Cir. 2011).

7

The first two requirements are easily satisfied. This isn’t a case where a party is

8 seeking to intervene so it may assert a claim over which the Court would otherwise lack

9 subject matter jurisdiction. See generally Hartley Pen Co. v. Lindy Pen Co., 16 F.R.D.

10 141, 146-47 (S.D. Cal. 1954) (“A pending suit within federal jurisdiction is by definition

11 [a] prerequisite to intervention. And it may be stated as a general rule that where

12 intervention is merely permissive, jurisdiction of the intervener’s claim—like jurisdiction

13 of a permissive counterclaim—must rest upon independent jurisdictional grounds.”). See

14 also FTC v. Lucaslawcenter “Incorporated,” 2010 WL 11523682, *6 (C.D. Cal. 2010)

15 (denying motion for permissive intervention because movant sought to “assert[] only state

16 law causes of action” and the movant and adverse party were both “California residents,”

17 so “the Court lacks independent jurisdiction pursuant to both 28 U.S.C. §§ 1331 and

18 1332”). Instead, the State seeks to serve as an additional defendant in a matter that is

19 already properly before the Court under 28 U.S.C. § 1331. (Doc. 1 ¶ 9.) Thus, the State

20 meets the first requirement. And as discussed above, the State’s motion is timely, so the

21 second requirement is met, too.

22

That leaves the third requirement. When determining whether to grant permissive

23 intervention, courts look to:

24

[T]he nature and extent of the intervenors’ interest, their standing to raise

25

relevant legal issues, the legal position they seek to advance, and its probable relation to the merits of the case, . . . whether the intervenors’ interests are

26

adequately represented by other parties, whether intervention will prolong or

unduly delay the litigation, and whether parties seeking intervention will

27

significantly contribute to full development of the underlying factual issues

28

in the suit and to the just and equitable adjudication of the legal questions

presented.

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Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 9 of 10

1 Perry, 630 F.3d at 905 (quoting Spangler v. Pasadena Bd. of Educ., 552 F.2d 1326, 1329

2 (9th Cir. 1977)). All of these factors favor permissive intervention. As discussed, the State

3 has standing to defend the constitutionality of its election statues, which are at the core of

4 the State’s duties as well as at the core of the merits of this case. As it stands, Plaintiffs are

5 currently wanting for actual opposition to their motion—the Secretary and the only county

6 recorder to have participated so far both agree with Plaintiffs and will not oppose their

7 motion. Whatever the merits, without the State, there is a real danger that its interests will

8 go unrepresented and the Court will be forced to render an opinion on an underdeveloped

9 record. Finally, because the State has already agreed to abide by the briefing schedule,

10 there is no risk of undue delay. Were there any chance the State could not intervene as of

11 right, permissive intervention is more than warranted.2

12

CONCLUSION

13

Although the Court understands Plaintiffs’ objection to the State’s intervention

14 request from a tactical standpoint, the issues raised here are too important to be resolved

15 through a one-sided process where all parties agree with each other. Although nothing in

16 this order should be interpreted as prejudgment on the merits, the Court thinks it is essential

17 to the correct resolution of this case that the State be allowed to present a full defense of

18 its statutes and policies.

19

…

20

…

21

…

22

…

23

…

24

…

25

…

26

…

27

28

2 Plaintiffs do not seriously contest that the State may permissively intervene but argue the Court should exercise its discretion to prevent undue delay. (Doc. 59 at 3, 6-7.)

As discussed, this argument is unavailing.

- 9 -

Case 2:20-cv-00658-DWL Document 61 Filed 04/09/20 Page 10 of 10

1

Accordingly, IT IS ORDERED that the State of Arizona’s motion to intervene

2 (Doc. 46) is granted. As set out in a prior order, the State’s response to the TRO motion

3 is due no later than April 10, 2020.

4

Dated this 9th day of April, 2020.

5

6

7

8

9

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12

13

14

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- 10 -

 
 Case 2:20-cv-00658-DWL Document 62 Filed 04/09/20 Page 1 of 4

1

ALLISTER ADEL MARICOPA COUNTY ATTORNEY

2 By: 3
4

JOSEPH E. LA RUE (Bar No. 031348) JOSEPH BRANCO (Bar No. 031474) Deputy County Attorneys MCAO Firm No. 0003200

5

CIVIL SERVICES DIVISION 222 N. Central Avenue, Suite 1100

6

Phoenix, Arizona 85004 Telephone (602) 506-8541

7

Facsimile (602) 506-8567 laruej@mcao.maricopa.gov

8

brancoj@mcao.maricopa.gov ca-civilmailbox@mcao.maricopa.gov

9 Attorneys for Defendant Adrian Fontes

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE DISTRICT OF ARIZONA

12

13 Arizonans for Fair Elections, et al.,

No. CV-20-00658-PHX-DWL

14

Plaintiffs,

15 v.

16 Katie Hobbs, et al.,

17

Defendants.

DEFENDANT MARICOPA COUNTY RECORDER ADRIAN FONTES’ RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

18

19

INTRODUCTION

20

Plaintiffs’ complaint and temporary restraining order application are limited ones.

21 Both seek relief only during the pendency of the current COVID-19 pandemic. (Doc. 1 at

22 20-21 [Prayer for Relief]; Doc. 2 at 16 (stating Plaintiffs’ position that “[w]hen this crisis

23 passes, the State’s denial of access to E-Qual no longer needs to be enjoined”).) Defendant

24 Maricopa County Recorder Adrian Fontes (the “Recorder”) is a nominal defendant in this

25 action who takes no position on Plaintiffs’ limited request. If the Court determines that the

26 relief requested is warranted, the Recorder will not disqualify any signatures solely because

27 they were collected using E-Qual when he conducts his certification pursuant to A.R.S. §

28
MARICOPA COUNTY ATTORNEY’S OFFICE CIVIL SERVICES DIVISION
222 N. CENTRAL AVENUE, SUITE 1100 PHOENIX, ARIZONA 85004

19-121.02. The Recorder files this response, however, to emphasize the constitutional nature

Case 2:20-cv-00658-DWL Document 62 Filed 04/09/20 Page 2 of 4

1 of his Office and the important legislative delegation of authority for initiative-petition

2 signature verification to the county recorders, not to the secretary of state.

3

ARGUMENT

4

The Arizona Constitution created the Office of the Recorder. Ariz. Const. art. XII §

5 3. It expressly provided to the Recorder all the duties and powers that the legislature chooses

6 to grant to that Office. Ariz. Const. art. XII § 4. Courts should not enjoin or alter that

7 delegation of responsibility and authority lightly. In Marston v. Superior Court, 109 Ariz.

8 209, 210 (1973), the Arizona Supreme Court ruled that, because of the constitutional

9 delegation of power, the Recorder “may not be enjoined from performing his official acts

10 except in instances in which he is acting illegally or in excess of the powers conferred upon

11 him by law.” In that case, the court considered the power of the county recorder to appoint

12 and remove deputy county registrars. Id. at 209-11. The court noted that, although someone

13 might believe a better system could be devised, “it is for the legislature to change the law—

14 not petitioner nor this court.” Id. at 211.

15

The legislature expressly delegated to the Recorder the authority and responsibility

16 to verify the validity of initiative petition signatures. A.R.S. § 19-121.02. Plaintiffs suggest

17 that the secretary of state’s E-Qual signature-verification system is at least as good, if not

18 better, than the legislature’s choice. (Doc. 2 at 12, 13-14.) As the Marston court recognized,

19 however, whether a better system could be proposed is for the legislature to decide. As

20 Plaintiffs correctly recognize, the State has an important interest in preventing initiative

21 petition signature fraud. (Doc. 2 at 12.) The legislature has chosen to delegate to the

22 Recorder, as part of his signature verification duties, important responsibilities aimed at

23 minimizing such possible fraud. So, for example, the Recorder is responsible to disqualify

24 the signatures of individuals whose signatures do not match their signatures in their voter

25 registration files. A.R.S. § 19-121.02(A)(9). He is also responsible to disqualify signatures

26 of individuals who were not qualified electors on the date they signed the initiative petition,

27
28
MARICOPA COUNTY ATTORNEY’S OFFICE CIVIL SERVICES DIVISION
222 N. CENTRAL AVENUE, SUITE 1100 PHOENIX, ARIZONA 85004

A.R.S. § 19-121.02(A)(5), as well as duplicate signatures from the same elector, A.R.S. § 19-121.02(A)(8). The legislature chose to delegate these important fraud-prevention duties
2

Case 2:20-cv-00658-DWL Document 62 Filed 04/09/20 Page 3 of 4

1 to the county recorders, not the secretary of state.

2

CONCLUSION

3

As already stated, the Recorder is a nominal defendant who takes no position on

4 Plaintiffs’ limited request for relief, and will comply with whatever this Court determines is

5 appropriate.

6

RESPECTFULLY SUBMITTED this 9th day of April, 2020.

7

ALLISTER ADEL

8

MARICOPA COUNTY ATTORNEY

9

BY: /s/Joseph E. La Rue

10

JOSEPH E. LA RUE

JOSEPH BRANCO

11

Deputy County Attorneys

12

Attorneys for Defendant Maricopa County Recorder Adrian Fontes

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MARICOPA COUNTY

3

ATTORNEY’S OFFICE

CIVIL SERVICES DIVISION

222 N. CENTRAL AVENUE, SUITE 1100

PHOENIX, ARIZONA 85004

Case 2:20-cv-00658-DWL Document 62 Filed 04/09/20 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 9, 2020 I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing.

4 /s/Joseph E. La Rue
5

6

7
S:\CIVIL\CIV\Matters\EC\2020\AZAN v. Hobbs (E-Qual)\Dist. Ct\Filings\RESPONSE (TRO)\Recorder’s Response to TRO (FINAL)
8

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28

MARICOPA COUNTY

4

ATTORNEY’S OFFICE

CIVIL SERVICES DIVISION

222 N. CENTRAL AVENUE, SUITE 1100

PHOENIX, ARIZONA 85004

 
 Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 1 of 10

1 Israel G. Torres (#020303) James E. Barton II (#023888)
2 Jacqueline Mendez Soto (#022597)
3 TORRES LAW GROUP, PLLC 2239 West Baseline Road
4 Tempe, Arizona 85283
5 (480) 588-6120 James@TheTorresFirm.com
6 Jacqueline@TheTorresFirm.com
7 Attorneys for Plaintiffs

8

UNITED STATES DISTRICT COURT 9

10

FOR THE DISTRICT OF ARIZONA

11

12 Arizonans for Fair Elections (AZAN), Case No.: 2:20-cv-00658-DWL

et al.;

13

14

Plaintiffs,

PLAINTIFFS’ OPPOSITION TO MOTION TO INTERVENE OF

15

v.

PROPOSED INTERVENOR DEFENDANTS SPEAKER OF THE

16 Katie Hobbs, Arizona Secretary of

ARIZONA HOUSE OF

State, et al., in their official capacities, 17

18

Defendants.

REPRESENTATIVES AND PRESIDENT OF THE ARIZONA
SENATE

19

20

21

Plaintiffs Arizonans for Fair Elections (AZAN), et al. (“Plaintiffs”), by and

22 through undersigned counsel, hereby submit their opposition to the Motion to Intervene

23 of Proposed Intervenor Defendants Speaker of the Arizona House of Representatives and 24
President of the Arizona Senate (“Motion to Intervene”) (collectively, “Proposed 25
26 Intervenors”), and state as follows:

27 /// 28

Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 2 of 10

1

INTRODUCTION

2

Proposed Intervenors argue that they have authority to intervene under section 12-

3 1841 of the Arizona Revised Statutes (A.R.S.) and that they meet the requirements to
4

5 intervene as of right. Alternatively, they argue that they should be allowed permissive

6 intervention. Section 12-1841 does not grant Proposed Intervenors automatic

7 intervention, nor do they qualify to intervene as of right or under permissive intervention.

8

9

A. A.R.S. § 12-1841

10

Section 12-1841 grants Proposed Intervenors no more than an option to seek

11 intervention in a matter. Specifically, A.R.S. § 12-1841(A) provides that if a statute’s 12
constitutionality is challenged, the attorney general and the speaker of the house of 13
14 representatives and the president of the senate shall be entitled to be heard. To be

15 “entitled” means that they have a right to be heard, but not that they must become parties
16 to the action. Indeed, A.R.S. § 12-1841(D) specifies that the attorney general, speaker,
17
18 and president are not compelled to intervene as a party in any proceeding or to be named

19 as defendants in a proceeding. If they choose to intervene, however, they must still meet

20 the requirements to intervene under Rule 24 of the Federal Rules of Civil Procedure. See 21 22 Miracle v. Hobbs, 333 F.R.D. 151, n.3 (D. Ariz. 2019).

23

B. As of Right

24

To intervene under Fed. R. Civ. P. 24(a)(2), the proposed intervenor must show

25 (1) that their motion was timely; (2) an interest relating to the property or transaction that
26

27 is the subject of the action; (3) that disposing of the action, as a practical matter, may

28 impair its ability to protect its interest; and (4) its interest is not adequately represented

2

Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 3 of 10

1 by existing parties to the litigation. See Fed. R. Civ. P. 24(a)(2); Arakaki v. Cayetano, 324

2 F.3d 1078, 1083 (9th Cir. 2003), as amended (May 13, 2003). The burden of showing
3 that each of these requirements has been met rests with the moving party. See, e.g., Fair
4 5 Political Practices Comm'n v. Eisen, 543 Fed. Appx. 730 (9th Cir. 2013).

6

1) Timing

7

Plaintiffs do not challenge the timeliness of the Motion to Intervene. However,

8

9 regardless of the timing of the Motion to Intervene, Proposed Intervenors do not meet any

10 of the remaining requirements for intervention.

11

2) Significant Protectable Interest

12 The Proposed Intervenors seek to intervene in their official capacities “to defend
13

14 the constitutionality of the Arizona law challenged in the complaint.” (See Motion to

15 Intervene at 1). This is the same interest asserted by the State in its motion to intervene,

16 which has been granted. (See Doc. 61).
17

18

As a general matter, the Proposed Intervenors’ interest lies in the power to make

19 laws, and this interest is not challenged in this matter. See Newdow v. U.S. Congress, 313

20 F.3d 495, 499 (9th Cir. 2002). When the legislature’s institutional power is not at issue, 21 22 a legislative member’s desire to see laws enforced is not sufficient to show a significant

23 protectable interest. See id. at 498; see also United States v. Arizona, No. CV 10-1413-

24 PHX-SRB, 2010 WL 11470582, at *2 (D. Ariz. Oct. 28, 2010) (finding that individual 25
legislators do not have legally protectable interests in defending legislation sufficient to 26
27 support intervention in the absence of some sort of personal injury). Proposed Intervenors

28 have not shown what significant protectable interest they have other than what any citizen

3

Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 4 of 10

1 of Arizona has—the desire to see laws enforced—which is an interest already represented

2 by the State.
3 Proposed Intervenors’ citation to Horne v. Flores, 557 U.S. 433, 443 (2009) is not
4
5 applicable to this matter. As Proposed Intervenors state, the speaker of the house and the

6 president of the senate were allowed to intervene in Flores because the principal

7 defendants in the action had sided with the plaintiffs. While in this case, two of the 8 9 originally named Defendants, the Secretary of State (the “Secretary”) and the Pima

10 County Recorder, have stated that they will not oppose the relief sought by Plaintiffs, the

11 Court has granted the State’s intervention. The State intends to defend the challenged 12
laws in Plaintiffs’ complaint. (See Doc. 46 at 7). Thus, this interest is represented by the 13
14 appropriate party, the State.

15

Likewise, Proposed Intervenors’ citation to Karcher v. May, 484 U.S. 72 (1987) is

16 not instructive in this case. Karcher did not consider the question of intervention, but
17

18 rather whether the legislator intervenors could appeal an adverse judgment after they had

19 left office. See Id. at 74. As with Flores, the legislators in Karcher had been allowed to

20 intervene because the original defendants would not defend the statute. See Id. at 75. As 21 22 previously stated, this matter has a party who will defend the statutes at issue.

23

3) Practical Impairment

24

Because Proposed Intervenors do not have a significant protectable interest in this

25 matter, resolution of this case does not impair any interest they may have. If the resolution
26

27 of the complaint does not affect the intervenor applicant, the requirement that there be a

28 significant protectable interest has not been met. See Arakaki, 324 F.3d at 1084.

4

Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 5 of 10

1

4) Adequate Representation

2

The Court has granted the State’s intervention, and the State has asserted its intent

3 to defend the laws at issue in this matter. (See Doc. 7). Proposed Intervenors refer to the
4

5 Attorney General’s position in the litigation pending before the Arizona Supreme Court

6 to conclude that it is “unclear whether he will make the same arguments as the Speaker

7 and the President.” (See Motion to Intervene at 6). The State asserted, however, that it is 8 9 “commit[ed] to coordinating defensive efforts [among county recorders] to the greatest

10 extent possible consistent with its duties to defend its laws…. Granting intervention to

11 the State will ensure that there is a Defendant that is truly adverse to Plaintiffs.” (See Id.)

12 Therefore, a defense will be mounted by the State.
13

14

“When an applicant for intervention and an existing party have the same ultimate

15 objective, a presumption of adequacy of representation arises.” See Arakaki, 324 F.3d at
16 1087. “In the absence of a ‘very compelling showing,’ the government adequately
17 18 represents its citizens in the protection of its laws. See Id. (citations omitted). Differences

19 in litigation strategy do not normally justify intervention. See Id. At best, Proposed

20 Intervenors only offer an alternative litigation strategy to defending the challenged laws.

21

22

C. Permissive Intervention.

23

To meet the criteria for permissive intervention, the applicant must demonstrate

24 (1) independent grounds for jurisdiction; (2) timeliness; and (3) the applicant’s claim or 25
defense and the main action have a question of law or a question of fact in common. See 26
27 S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002). In considering permissive

28 intervention, a court must consider whether intervention will unduly delay or prejudice

5

Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 6 of 10

1 the original parties, whether the applicant’s interests are adequately represented by the

2 existing parties and whether judicial economy favors intervention. Venegas v. Skaggs,

3 867 F.2d 527, 530-31 (9th Cir. 1989).
4

5

Proposed Intervenors do not have an independent ground for jurisdiction. They

6 claim that the issue in this matter is whether the initiative-related provisions of the

7 Arizona Constitution conflict with the United States Constitution, and if so, whether the 8 9 Secretary can adopt rules that she has no power to adopt. (See Motion to Intervene, p. 3).

10 While the former is a federal question, the latter is not. However, this case is not a federal

11 preemption case. Federal courts recognize the states’ right to regulate elections if they 12
are to be fair and honest. See Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Thus, 13
14 Proposed Intervenors have raised claims that are not relevant to this matter. Plaintiffs do

15 not seek to permanently invalidate a State statute, or the State Constitution for that matter.
16 Plaintiffs seek temporary relief from statutory requirements that have frozen Plaintiffs’
17 18 freedom of speech and association during the COVID-19 pandemic.

19

Furthermore, Proposed Intervenors would cause undue delay. They seek to file a

20 motion to dismiss, which would extend the motion filing period and delay resolution of 21 22 this case. (See Motion to Intervene at 1).

23

CONCLUSION

24

For the foregoing reasons, Plaintiffs ask that this Court deny Proposed Intervenors’

25 Motion to Intervene. The Motion to Intervene fails to establish the required elements for
26

27 intervention as of right and permissive intervention.

28

DONE this 10th day of April, 2020.

6

Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 7 of 10

1

TORRES LAW GROUP, PLLC

2

3 /s/James E. Barton II

4

James E. Barton II

5

Jacqueline Mendez Soto

Attorney for Plaintiffs

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 8 of 10

1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 8, 2020 I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing, and transmitted a copy to the follow parties via email.

4

5

6

7

Joseph Young Deputy County Attorney

8 Apache County Attorney’s Office

9

P.O. Box 637 St. Johns, AZ 85936

10 JYoung@Apachelaw.net

Attorney for Defendant Edison Wauneka, Apache County Recorder 11

12 Britt W. Hanson Deputy County Attorney
13 Cochise County Attorney’s Office 14 bhanson@cochise.az.gov
Attorney for Defendant David W. Stevens, Cochise County Recorder 15
16 Rose M. Winkeler Senior Civil Deputy
17 Coconino County Attorney’s Office 18 110 E. Cherry Ave.
Flagstaff, AZ 86001-4627 19 rwinkeler@coconino.az.gov 20 Attorney for Defendant Patty Hansen, Coconino County Recorder

21 Gila County Attorney’s Office

22

1400 E. Ash St. Globe, AZ 85501

23 jdalton@gilacountyaz.gov

Attorney for Sadie Jo Bingham Gila Count Defendants 24

25 Graham County Attorney’s Office 800 Main St.
26 Safford, AZ 85546
27 jdalton@gilacountyaz.gov Attorney for Wendy John, Graham County Recorder
28

8

Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 9 of 10

1 Greenlee County Attorney’s Office P.O. Box 1717
2 Clifton, AZ 85533

3 jford@co.greenlee.az.us Attorney for Sharie Milheiro Greenlee County Recorder
4

5 La Paz County Attorney’s Office 1316 S. Kofa Ave., Ste. 607
6 Parker, AZ 85344

7

rdooley@lapazcountyaz.org Attorney for Defendant Richard Garcia, La Paz County Recorder

8

9

Joseph LaRue Maricopa County Attorney’s Office

10 222 N. Central Ave. , Suite 1100 Phoenix, AZ 85004
11 laruej@mcao.maricopa.gov

12 Attorney for Adrian Fontes, Maricopa County Recorder

13 Ryan Esplin
14 Mohave County Attorney's Office 928-75-0770
15 Ryan.Esplin@mohavecounty.us
16 Attorney for Defendant Kristi Blair, Mohave County Recorder

17 Jason S. Moore

18 Deputy County Attorney Navajo County Attorney’s Office

19 PO Box 668

20

Holbrook, AZ 86025-0668 Jason.moore@navajocountyaz.gov

21 Attorney for Doris Clark, Navajo County Recorder

22 Daniel Jurkowitz 23 Pima County Attorney’s Office
32 N. Stone Ave., #200 24 Tucson, AZ 85701 25 Daniel.jurkowitz@pcao.pima.gov
Attorney for Defendant F. Ann Rodriguez, Pima County Recorder 26
27 Pinal County Attorney’s Office PO Box 887
28 Florence, AZ 85132-0887

9

Case 2:20-cv-00658-DWL Document 63 Filed 04/10/20 Page 10 of 10

1 Chris.keller@pinalcountyaz.gov Craig.cameron@pinalcountyaz.gov
2 Attorneys for Defendant
3 George E. Silva
4 Santa Cruz County Attorney’s Office 5 2150 N. Congress Drive
Nogales, AZ 85621 6 gsilva@santacruzcountyaz.gov 7 Attorney for Defendant Santa Cruz County Recorder

8 Yavapai County Attorney’s Office

9

255 E. Gurley St. Prescott, AZ 86301

10 Thomas.Stoxen@yavapai.us

Attorneys for Defendant Yavapai County Recorder 11

12 Yuma County Attorney’s Office 250 W. 2nd Street, St. G
13 Yuma, AZ 85364-2235
14 Bill.kerekes@yumacountyaz.gov Attorney for Defendants
15

16 Roy Herrera Daniel A. Arellano

17 Ballard Spahr LLP

18 1 East Washington Street, Suite 2300 Phoenix, AZ 85004-2555

19 602.798.5430

20

HerreraR@ballardspahr.com arellanod@ballardspahr.com

21 Attorneys for Katie Hobbs, Secretary of State

22

23

24

25

26

27

/s/ Monse Vejar

28

10

 
 Case 2:20-cv-00658-DWL Document 69 Filed 04/10/20 Page 1 of 3

1 CANTELME & BROWN, P.L.C.

2

A Professional Liability Company

2020 S. McClintock Drive, Suite 109

3

Tempe, Arizona 85282

Tel (602) 200-0104 Fax (602) 200-0106

4 E-mail: david@cb-attorneys.com/aaron@cb-
attorneys.com

5 David J. Cantelme, Bar No. 006313 D. Aaron Brown, Bar No. 022133

6 Attorneys for Proposed Intervenors

7 UNITED STATES DISTRICT COURT
8 DISTRICT OF ARIZONA
9

10 Arizonans for Fair Elections (AZAN), an
11 Arizona nonprofit corporation; et al.,

Case No. 2:20-cv-00658-DWL

12

Plaintiffs,

13

v.

14 Katie Hobbs, Arizona Secretary of State; et al., all in their official capacities,
15
Defendants. 16

REPLY IN SUPPORT OF THE SPEAKER OF THE ARIZONA HOUSE OF REPRESENTATIVES AND PRESIDENT OF THE ARIZONA SENATE'S MOTION TO INTERVENE

17

18

Rusty Bowers, Speaker of the Arizona House of Representatives, and Karen Fann,

19 President of the Arizona State Senate, respectfully submit this reply memorandum in

20 support of their motion to intervene (Doc. 60).

21

1. Plaintiffs Arizonans for Fair Elections, et al., admit that, under Arizona Revised

22 Statutes § 12-1841, the Speaker and President "have a right to be heard" in a case like

23 this, where the constitutionality of a statute is challenged. (Doc. 63 at 2.) Plaintiffs point

24 out that the Speaker and President nonetheless must satisfy the requirements of Rule 24

25 (id.); the Speaker and President agree, and they do (see Doc. 60 at 3–4).

26

2. Regarding intervention of right, Plaintiffs agree that the Speaker and President's

Case 2:20-cv-00658-DWL Document 69 Filed 04/10/20 Page 2 of 3

1 motion was timely. (Doc. 63 at 3.) Plaintiffs also acknowledge that the Speaker and

2 President's interest in defending the constitutionality of Arizona laws must count as a

3 significantly protectable interest. (See id.) Plaintiffs dispute that "the legislature's

4 institutional power is . . . at issue," because the Speaker and President's "interest lies in

5 the power to make laws, and this interest is not challenged in this matter." (Id.) But the

6 Legislature's constitutional power to make laws means little if the Legislature's presiding

7 officers cannot defend those laws against efforts (like the Plaintiffs') to suspend them.

8 That is why § 12-1841(A) gives the presiding officers the same right as the attorney

9 general to intervene in lawsuits like this, different though their constitutional roles may

10 be. And assuming this interest is protectable, resolving this case in Plaintiffs' favor clearly

11 would impair it. (See Doc. 61 at 5–6; see also Doc. 63 (arguing only that "[b]ecause

12 Proposed Intervenors do not have a significant protectable interest in this matter,

13 resolution of this case does not impair any interest they may have.")

14

Plaintiffs contend that the attorney general—whose intervention they opposed

15 (Doc. 59)—will mount an adequate defense. (Doc. 63 at 5.) But state law recognizes that

16 the attorney general's intervention in a case has no bearing on the Speaker and President's

17 intervention: Section 12-1841(A) "entitle[s]" both the attorney general and the

18 Legislature's presiding officers to intervene when the constitutionality of a law is

19 challenged, at least partly in recognition that their substantive positions may be different.

20

3. Regarding permissive intervention, Plaintiffs argue that they "do not seek to

21 permanently invalidate a State statute, or the State Constitution for that matter."

22 (Doc. 63.) But the fact that Plaintiffs seek to run roughshod over Arizona's laws and

23 constitution only temporarily is no reason to deny the Speaker and President intervention.

24

And that intervention will cause no delay. The Speaker and President can (and, if

25 allowed, will) file their opposition to Plaintiffs' motion for a temporary restraining order

26 and preliminary injunction (Doc. 2) by today’s deadline. The Speaker and President will

2

Case 2:20-cv-00658-DWL Document 69 Filed 04/10/20 Page 3 of 3

1 be prepared to appear and participate in the TRO hearing on April 14.1 And the filing

2 and briefing of their anticipated motion to dismiss should be expedited, it will draw on

3 the legal analysis made in the opposition to the TRO, and it will cause no undue delay.

4

The Speaker and President's intervention motion should be granted.

5

RESPECTFULLY SUBMITTED on April 10, 2020.

6

CANTELME & BROWN, P.L.C.

7

8

/s/ David J. Cantelme, SBN 006313 2020 S. McClintock Drive, Suite 109

9

Tempe, Arizona 85282 Attorneys for Proposed Intervenor Defendants

10

Speaker of the Arizona House of Representatives and President of the Arizona Senate

11

12

13

14

CERTIFICATE OF SERVICE

15

I hereby certify that on April 10, 2020, I caused the foregoing document to be

electronically transmitted to the Clerk's Office using the CM/ECF System for Filing,

16 which 2020, which will send notice of such filing to all registered CM/ECF users.

17 /s/ Megan Bilek
18

19

20

21

22

23 1 Of course, an evidentiary hearing ordinarily is required before a preliminary injunction 24 is issued. See Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir. 1988)
("Generally 'the entry or continuation of an injunction requires a hearing. Only when the 25 facts are not in dispute, or when the adverse party has waived its right to a hearing, can 26 that significant procedural step be eliminated.'" (quoting Prof'l Plan Examiners of N.J.,
Inc. v. Lefante, 750 F.2d 282, 288 (3d Cir. 1984)).

3

 
 Case 2:20-cv-00658-DWL Document 72 Filed 04/10/20 Page 1 of 2

BRAD CARLYON
1 Navajo County Attorney
2 Jason S. Moore Deputy County Attorney
3 P.O. Box 668 Holbrook, AZ 86025
4 jason.moore@navajocountyaz.gov (928) 524-4026
5 State Bar No. 019911 Attorneys for Doris Clark
6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10

Arizonans for Fair Elections (AZAN), an Arizona nonprofit corporation;

Case No. 2:20-cv-00658-DWL

11 Arizonans Fed Up with Failing

12 Healthcare (Healthcare Rising AZ), an NAVAJO COUNTY RECORDER DORIS

Arizona non profit corporation; and CLARK’S NOTICE OF JOINDER TO PINAL

13 Randi L. Turk, an individual,

COUNTY DEFENDANT’S

14

Plaintiffs,

RESPONSE/OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER AND

15
vs.

PRELIMINARY INJUNCTION

16

Katie Hobbs, in her official capacity as 17 Secretary of State for the State of

18 Arizona; Edison J. Wauneka, in his official capacity as Apache County

19 Recorder; David Stevens,

PattyHansen, Coconino County 20 Recorder, Sadie Jo Bingham, Gila

21 County Recorder; Weny John, Graham County Recorder; Sharie

22 Meheiro, Greenlee County Recorder;

Richard Garcia, La Paz County 23 Recorder; Adrian Fontes, Maricopa

24 County Recorder; Kristi Blair, Mohave County Recorder; Doris Clark, Navajo

25 County Recorder, F. Ann Rogriguez,

Pima County Recorder; Virginia Ross,
26
Pinal County Recorder, Suzanne Sainz,

27 Santa Cruz County Recorder; Leslie

Hoffman, Yavapai County Recorder; 28 and Robyn Pouquette, Yuma County

Navajo County - For Official Use Only

Case 2:20-cv-00658-DWL Document 72 Filed 04/10/20 Page 2 of 2

1 Recorder; all in their official capacities,
2
Defendants.
3

4

The Navajo County Recorder, Doris Clark, hereby responds to Plaintiffs’ Motion for

5
Temporary Restraining Order by giving the Clerk of Court notice of her joinder with Pinal
6
County’s Response/Opposition to Motion For Temporary Restraining Order and Preliminary
7
8 Injunction (Doc. No. 65).

9

RESPECTFULLY SUBMITTED this 10th day of April, 2020.

10

11

/s/ Jason S. Moore

.

12

Jason S. Moore

Deputy County Attorney
13

14

CERTIFICATE OF SERVICE

15 I hereby certify that on April 10, 2020 I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing.
16
17 I hereby certify that the foregoing Document was filed and electronically
18 Served electronically this 10thth Day April, 2020 upon:
19

20
By: Jason S. Moore .
21

22

23

24

25

26

27

28

Navajo County - For Official Use Only

 
 Case 2:20-cv-00658-DWL Document 73 Filed 04/10/20 Page 1 of 4

Matthew J. Smith Mohave County Attorney Jeffrey B. Haws, SBN 031798 Deputy County Attorney 315 N. 4th Street P.O. Box 7000 Kingman, AZ 86402 Telephone: (928) 753-0770 Fax: (928) 753-4290 Jeff.Haws@mohavecounty.us CAOcivil.Court@mohavecounty.us Attorney for Mohave County Recorder Kristi Blair
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Arizonans for Fair Elections, et al., Plaintiffs,
v.
Katie Hobbs, et al.,
Defendants,

No. 2:20-CV-00658-DWL
MOHAVE COUNTY RECORDER’S RESPONSE TO MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

The Mohave County Recorder, Kristi Blair, responds to Plaintiff’ Motion for Temporary Restraining Order and Preliminary Injunction as follows:
The Mohave County Recorder takes no position as to whether the Court should suspend a portion of the Arizona Constitution to temporarily allow electronic signature gathering for ballot initiative petitions during the pendency of the ongoing COVID-19 public health crisis as requested by Plaintiffs.

Case 2:20-cv-00658-DWL Document 73 Filed 04/10/20 Page 2 of 4
................................................................................................................................................................

1

The Mohave County Recorder notes that there does not appear to be any

2
technological reason that the E-Qual internet portal operated by the Arizona Secretary of
3
State cannot be utilized to collect electronic ballot initiative signatures of qualified
4

5 electors in the same fashion that such electronic signatures are collected for nomination

6 petitions for candidates for office as authorized under A.R.S. § 16-315(E). The only
7
impediment to electronic signature collection in the context of ballot initiative petitions
8
9 appears to be the plain and specific language of the Arizona Constitution governing the

10 form and contents of initiative and referendum petitions. Currently the Arizona

11
Constitution requires that
12

13

[…] every sheet of every such petition containing signatures shall be

verified by the affidavit of the person who circulated said sheet or

14

petition, setting forth that each of the names on said sheet was signed in

15

the presence of the affiant and that in the belief of the affiant each signer

was a qualified elector of the state[.]

16

17 Article IV, Pt. 1 § 1.(8). Understandably, Plaintiff’s complain that compliance with the

18 Article IV requirements of the initiative petition process are now more difficult in light of

19 the COVID-19 public health crisis and social distancing principles and guidelines set forth
20
in the Arizona Governor’s March 11, 2020 Declaration of Emergency and Executive
21
22 Order 2020-18.

23

Plaintiffs’ request to temporarily suspend Article IV, Pt. 1 § 1.(8) of the Arizona

24
Constitution does not appear to be an issue over which the Mohave County Recorder has
25

26 any control. If the Court orders the Secretary of State to adhere to these provisions of the

27 Arizona Constitution as written in evaluating the validity of ballot initiative signatures,

28
the Mohave County Recorder will fulfill her obligation under A.R.S. § 19-121.02 to

2

Case 2:20-cv-00658-DWL Document 73 Filed 04/10/20 Page 3 of 4
................................................................................................................................................................

1 review for disqualification and appropriately certify all signature sheets received from the

2
Secretary of State. If the Court orders Article IV, Pt. 1 § 1.(8) of the Arizona Constitution
3
suspended and the Secretary of State to permit Plaintiffs to gather signatures and sign the
4

5 ballot initiative through the E-Qual system, The Mohave County Recorder will not

6 disqualify any signatures based on collection through the E-Qual portal.
7

8

9

RESPECTFULLY SUBMITTED this 10th day of April, 2020.

10

MOHAVE COUNTY ATTORNEY

11

MATTHEW J. SMITH

12

13

By /s/ Jeffrey B. Haws

DEPUTY COUNTY ATTORNEY

14

JEFFREY B. HAWS

15

Attorney for Defendant Mohave County Recorder Kristi Blair

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Case 2:20-cv-00658-DWL Document 73 Filed 04/10/20 Page 4 of 4
................................................................................................................................................................

1
CERTIFICATE OF SERVICE
2

3

I hereby certify that on April 10, 2020, I electronically transmitted the attached

4
document to the Clerk’s Office using CM/ECF System for Filing.
5

6

/s/ Jeffrey B. Haws

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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28

4

 
 Case 2:20-cv-00658-DWL Document 75 Filed 04/10/20 Page 1 of 8

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Arizonans for Fair Elections, et al.,

No. CV-20-00658-PHX-DWL

10

Plaintiffs,

ORDER

11 v.

12 Katie Hobbs, et al.,

13

Defendants.

14

15

On April 4, 2020, Plaintiffs filed a complaint alleging that certain statutes governing

16 Arizona’s citizen initiative process, which appear in Title 19 of the Arizona Revised

17 Statutes, impose an unconstitutional inhibition of their First and Fourteenth Amendment

18 rights in light of the state and local responses to the COVID-19 pandemic. (Doc. 1.)

19 Specifically, Plaintiffs allege that the state and local pandemic responses make it 20 impossible to gather the initiative-petition signatures in the manner required by Title 19. 21 (Id.) Plaintiffs list Arizona Secretary of State Katie Hobbs (the “Secretary”), who oversees 22 Arizona’s elections, as well as each of Arizona’s county recorders, who oversee local 23 elections and assist the Secretary with certain statutory duties, as defendants. (Id.)

24

Also on April 4, 2020, Plaintiffs filed a motion for a temporary restraining order

25 (“TRO”), asking the Court to order the Secretary to allow the use of Arizona’s “E-QUAL”

26 system to gather petition signatures electronically and to enjoin the Secretary and county

27 recorders from striking any signatures gathered via that system. (Doc. 2.) Plaintiffs sought 28 this order without notice to Defendants, but the Court concluded “this is not the sort of

Case 2:20-cv-00658-DWL Document 75 Filed 04/10/20 Page 2 of 8

1 unusual case where proceeding without notice to the adverse parties would be appropriate.”

2 (Doc. 9 at 2.) The Court instead set a briefing schedule and scheduled a hearing for April

3 14, 2020. (Id. at 3.)

4

On April 6, 2020, the State of Arizona, represented by the Arizona Attorney

5 General, moved to intervene in this case pursuant to Rule 24. (Doc. 46.) The Court granted

6 that motion. (Doc. 61.)

7

On April 8, 2020, while the State’s motion to intervene was pending, the Speaker

8 of the Arizona House of Representatives and the Arizona Senate President (collectively,

9 “Proposed Intervenors”) moved to intervene. (Doc. 60.) Plaintiffs oppose that request.

10 (Doc. 63.) For the following reasons, Proposed Intervenors’ motion will be denied.

11

ANALYSIS

12

“Rule 24 recognizes two types of intervention: (1) intervention of right; and (2)

13 permissive intervention. Courts must permit intervention of right, but may permit or deny

14 permissive intervention.” Gensler, 1 Federal Rules of Civil Procedure, Rules &

15 Commentary, Rule 24, at 690 (2020). Here, Proposed Intervenors seek to intervene under

16 both theories.

17 I. Intervention Of Right

18

Intervention of right is available to anyone who “claims an interest relating to the

19 property or transaction that is the subject of the action, and is so situated that disposing of

20 the action may as a practical matter impair or impede the movant’s ability to protect its

21 interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2).

22 Courts in the Ninth Circuit employ a four-part test when analyzing intervention of right:

23

(1) the motion must be timely; (2) the applicant must claim a “significantly

24

protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition

25

of the action may as a practical matter impair or impede its ability to protect

that interest; and (4) the applicant’s interest must be inadequately represented

26

by the parties to the action.

27 Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (quoting Sierra
28 Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993)). These requirements are broadly

- 2 -

Case 2:20-cv-00658-DWL Document 75 Filed 04/10/20 Page 3 of 8

1 construed, because “a liberal policy in favor of intervention serves both efficient resolution

2 of issues and broadened access to the courts.” Id. (citation omitted). That said, “[f]ailure

3 to satisfy any one of the requirements is fatal to the application.” Perry v. Proposition 8

4 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009) (emphasis added).

5

A. Timeliness

6

“Timeliness is a flexible concept; its determination is left to the district court’s

7 discretion.” United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004). In

8 determining whether a motion to intervene is timely, courts consider: “(1) the stage of the

9 proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and

10 (3) the reason for and length of the delay.” Id. (citation omitted).

11

Plaintiffs acknowledge that Proposed Intervenors’ motion is timely. (Doc. 63 at 3.)

12 Accordingly, the Court need not dwell on this factor—Proposed Intervenors timely filed

13 their motion “at the outset of the litigation.” Sierra Club, 995 F.3d at 1481.

14

B. Significant Protectable Interest

15

“The ‘interest’ test is not a bright-line rule.” Alisal Water Corp., 370 F.3d at 919.

16 It is a fact-bound inquiry and “no specific legal or equitable interest need be established.”

17 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011).

18 In fact, “Rule 24(a)(2) does not require a specific legal or equitable interest . . . . [T]he

19 ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many

20 apparently concerned persons as is compatible with efficiency and due process.”

21 Wilderness Soc., 630 F.3d at 1179 (citation and quotation marks omitted). See also

22 Gensler, Rule 24, at 700 (noting that the Ninth Circuit does not “rigidly require that the

23 interest derive from a substantive right”).

24

Proposed Intervenors argue they have protectable interest in “upholding the Arizona

25 Constitution and the laws that implement it.” (Doc. 60 at 5.) In their view, A.R.S. § 12-

26 1841 imbues them with “the authority to defend the State’s interest in upholding the

27 constitutionality of Arizona laws.” (Doc. 60 at 5.)

28

This issue presents a close call. On the one hand, A.R.S. § 12-1841(A) provides

- 3 -

Case 2:20-cv-00658-DWL Document 75 Filed 04/10/20 Page 4 of 8

1 that “[i]n any proceeding in which a state statute . . . is alleged to be unconstitutional, the

2 attorney general and the speaker of the house of representatives and the president of the

3 senate shall be served with a copy of the pleading, motion or document containing the

4 allegation at the same time the other parties in the action are served and shall be entitled to

5 be heard.” Id. Additionally, subdivision (D) of the statute provides that “[t]he attorney

6 general, the speaker of the house of representatives or the president of the senate, in the

7 party’s discretion, may intervene as a party, may file briefs in the matter or may choose not

8 to participate in a proceeding that is subject to the notice requirements of this section.” Id.

9 Thus, there is some force to the argument that, at least under Arizona law, the House

10 Speaker and Senate President possess a unique stature that resembles that of the Attorney

11 General and distinguishes them from a run-of-the-mill individual legislator whose

12 generalized interest in defending the constitutionality of a statue would be insufficient to

13 confer standing. Compare Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951-

14 52 (2019) (the Virginia House of Delegates and its speaker lacked standing to appeal

15 redistricting decision because “Virginia law prescribes” that “[a]uthority and responsibility

16 for representing the State’s interests in civil litigation . . . rest exclusively with the State’s

17 Attorney General” and “Virginia has thus chosen to speak as a sovereign entity with a

18 single voice”) (emphasis added).

19

On the other hand, other courts in this District have rejected the exact argument that

20 Proposed Intervenors advance here, concluding that when the State itself (through the

21 Attorney General) has already intervened to defend the constitutionality of a state election

22 statute, the House Speaker and Senate President lack a sufficiently concrete interest to

23 satisfy the second element of the intervention-of-right test. Miracle v. Hobbs, 333 F.R.D.

24 151, 154-55 (D. Ariz. 2019) (“A.R.S. § 12-1841 does not confer blanket authority upon

25 Proposed Intervenors to defend the constitutionality of a state law—particularly where the

26 attorney general is already defending the law. The Court is similarly unmoved by the

27 highly generalized argument that Proposed Intervenors have an interest in upholding the

28

- 4 -

Case 2:20-cv-00658-DWL Document 75 Filed 04/10/20 Page 5 of 8

1 constitutionality of the Strikeout Law . . . .”).1

2

It is unnecessary to resolve this close question in this case. This is because, as

3 discussed below, Proposed Intervenors cannot satisfy the final element of the intervention-

4 of-right test.

5

C. Practical Impairment

6

“If an absentee would be substantially affected in a practical sense by the

7 determination made in an action, he should, as a general rule, be entitled to intervene.”

8 Fed. R. Civ. P. 24, 1966 advisory committee note. This element “follows” from the other

9 factors, Sierra Club, 995 F.2d at 1486, and once those factors are satisfied, courts often

10 “have little difficulty concluding that the disposition of [a] case may, as a practical matter,

11 affect” an intervenor’s interests. California ex rel. Lockyer v. United States, 450 F.3d 436,

12 442 (9th Cir. 2006).

13

Here, as noted, the Court does not reach whether Proposed Intervenors have

14 satisfied the “significant protectable interest” element. Because the presence or absence of

15 the “practical impairment” element largely turns on the resolution of the other elements,

16 the Court will also decline to address “practical impairment” and turn to the final element,

17 “inadequate representation.”

18

D. Inadequate Representation

19

To satisfy the final requirement of intervention of right, a party must demonstrate

20 that existing parties “may not adequately represent [its] interest.” Citizens for Balanced

21 Use, 647 F.3d at 898. This requires a “minimal” showing and is satisfied if existing parties’

22 representation of its interest “may be” inadequate. Id. To determine adequacy, courts

23 1

See also Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 797 (7th Cir. 2019)

24

(“Wisconsin law . . . provides that ‘the legislature may intervene . . . at any time . . . as a matter of right’ in an action ‘in state or federal court.’ This language implies that

25

intervention should be automatic, without any input from the trial court, as long as the conditions for authorization under [Wisconsin law] are met. Wisconsin’s courts may apply

26

[the statute] that way, but no one argues that this interpretation can control in federal court. The right to intervene ‘is a purely procedural right and even in a diversity suit it is the

27

Federal Rules of Civil Procedure rather than state law that dictate the procedures, including who may intervene, to be followed.’ The supremacy of federal procedure is even more

28

pronounced in a case, like this one, arising under the Federal Constitution. The parties agree on this point at least: the statute cannot supplant the Federal Rules of Civil Procedure

and make intervention automatic.”) (citations omitted).

- 5 -

Case 2:20-cv-00658-DWL Document 75 Filed 04/10/20 Page 6 of 8

1 examine: “(1) whether the interest of a present party is such that it will undoubtedly make

2 all of a proposed intervenor’s arguments; (2) whether the present party is capable and

3 willing to make such arguments; and (3) whether a proposed intervenor would offer any

4 necessary elements to the proceeding that other parties would neglect.” Id. (citation

5 omitted). However, “[w]here [a] party and the proposed intervenor share the same

6 ‘ultimate objective,’ a presumption of adequacy of representation arises, and the intervenor

7 can rebut that presumption only with a ‘compelling showing’ to the contrary.” Perry, 587

8 F.3d at 951 (citation omitted).

9

Proposed Intervenors’ interest here is in “upholding the Arizona Constitution and

10 the laws that implement it.” (Doc. 60 at 5.) The State, represented by the Attorney General,

11 advanced an interest in “defending the constitutionality of its laws” and “structuring its

12 elections.” (Doc. 46 at 4-5.) It is difficult to see how Proposed Intervenors’ interest

13 diverges from the State’s, and the State is already a party to this case. (Doc. 61.) In other

14 words, “it is apparent that the ultimate objective” of the Proposed Intervenors and the State

15 is identical—“defending the constitutionality” of state laws. Perry, 587 F.3d at 951.

16 Proposed Intervenors, then, must make a “compelling showing” that the State will

17 inadequately represent their interests. Id. at 952.

18

This is an “unenviable task,” Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d

19 793, 801 (7th Cir. 2019), that Proposed Intervenors fail to accomplish. They contend that

20 “it is unclear whether the [Attorney General] will make the same arguments as the Speaker

21 and President.” (Doc. 60 at 6. See also Doc. 69 at 2 [speculating that the State’s

22 “substantive positions may be different” from Proposed Intervenors’ but failing to provide

23 any examples of such differences].) But a mere disagreement over the best way to approach

24 litigation is insufficient to meet the “compelling showing” necessary to demonstrate

25 inadequate representation when interests have aligned. Perry, 587 F.3d at 954-55. Cf.

26 Kaul, 942 F.3d at 799-803.

27

Proposed Intervenors also argue that the “necessity of their intervention to defend

28 the constitutionality of state laws” has been repeatedly demonstrated through “practical

- 6 -

Case 2:20-cv-00658-DWL Document 75 Filed 04/10/20 Page 7 of 8

1 experience.” (Doc. 60 at 5.) To bolster this point, they cite Horne v. Flores, 557 U.S. 433

2 (2009), where legislative officers were allowed to intervene because “the principal

3 defendants in the action sid[ed] with the plaintiffs.” Id. at 443. But intervention in that

4 case “was vital to the defense of the law at issue because, among other things, the attorney

5 general failed to appeal the court’s judgment, as well as injunctions and related orders

6 issued in support of that judgment.” Miracle, 333 F.R.D. at 155. Proposed Intervenors

7 “demonstrate no such deficiencies in the present case,” as the State has shown it is more

8 than willing to defend this lawsuit. Id. Similarly, Karcher v. May, 484 U.S. 72 (1987),

9 involved a situation where the “Attorney General immediately announced that he would

10 not defend the statute” at issue. Id. at 75. That is not the case here. Cf. Kaul, 942 F.3d at

11 800 (“In fact, every decision the Legislature cites as favorable authority involves a situation

12 in which a legislature intervened once the governmental defendant’s default representative

13 had dropped out of the case. . . . Moreover, none discusses the propriety of intervention

14 under Rule 24 but merely recognized that intervention had occurred.”).

15

E. Conclusion

16

In sum, Proposed Intervenors have failed to satisfy at least one of the four

17 requirements to intervene of right. Accordingly, their motion to intervene under Rule 24(a)

18 must be denied.

19 II. Permissive Intervention

20

Proposed Intervenors also seek permissive intervention. “On timely motion, the

21 court may permit anyone to intervene who . . . has a claim or defense that shares with the

22 main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). “[A] court

23 may grant permissive intervention where the applicant for intervention shows (1)

24 independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim

25 or defense, and the main action, have a question of law or a question of fact in common.”

26 United States v. City of Los Angeles, 288 F.3d 391, 403 (9th Cir. 2002) (citation omitted).

27 “The district court is given broad discretion to make this determination.” Perry v.

28 Schwarzenegger, 630 F.3d 898, 905 (9th Cir. 2011). As such, “[e]ven if an applicant

- 7 -

Case 2:20-cv-00658-DWL Document 75 Filed 04/10/20 Page 8 of 8

1 satisfies those threshold requirements, the district court has discretion to deny permissive

2 intervention.” Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998). When

3 determining whether to grant permissive intervention, courts look to:

4

[T]he nature and extent of the intervenors’ interest, their standing to raise

relevant legal issues, the legal position they seek to advance, and its probable

5

relation to the merits of the case, . . . whether the intervenors’ interests are

6

adequately represented by other parties, whether intervention will prolong or

unduly delay the litigation, and whether parties seeking intervention will

7

significantly contribute to full development of the underlying factual issues

8

in the suit and to the just and equitable adjudication of the legal questions

presented.

9 Spangler v. Pasadena Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977).

10

In light of these considerations, the Court declines to grant permissive intervention.

11

Proposed Intervenors’ interests align with the State’s, and the Court doesn’t see how

12

Proposed Intervenors can more adequately defend state laws than the State itself. In the

13 same vein, Proposed Intervenors’ participation is unnecessary to the full development of

14

this case.

15 Nevertheless, in the interest of effectuating the policies underlying A.R.S. § 12-

16

1841, Proposed Intervenors are granted permission to file an amicus brief if they wish to

17

do so. See also Miracle, 333 F.R.D. at 156-57 (same).

18

Accordingly, IT IS ORDERED that Proposed Intervenors’ motion to intervene

19 (Doc. 60) is denied.

20

IT IS FURTHER ORDERED authorizing Proposed Intervenors to file an amicus

21 brief.

22

Dated this 10th day of April, 2020.

23

24

25

26

27

28

- 8 -

 
 Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 1 of 22

1 MARK BRNOVICH

ATTORNEY GENERAL 2 Drew C. Ensign (No. 25463)

Deputy Solicitor General 3 Robert J. Makar (No. 33579)

4

Jennifer J. Wright (No. 27145) Assistant Attorneys General

5 2005 N. Central Avenue Phoenix, Arizona 85004

6 Telephone: (602) 542-5200 Drew.Ensign@azag.gov

7

Attorneys for Intervenor8 Defendant State of Arizona

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11

Arizonans for Fair Elections, et al.,

12

Plaintiffs,

Case No: 2:20-cv-00658-DWL

13 vs.

14 Katie Hobbs, et al.,

15

Defendants,

STATE OF ARIZONA’S CORRECTED OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY

16

and

17 State of Arizona,

RESTRAINING ORDER AND PRELIMINARY INJUNCTION (DOC. 2)

18

Intervenor-Defendant.

19

20

21

22

23

24

25

26

27

28

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 2 of 22

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................... iii

3 INTRODUCTION........................................................................................................... 1

4 LEGAL STANDARD ..................................................................................................... 3

5 ARGUMENT .................................................................................................................. 3

6 I. PLAINTIFFS LACK ARTICLE III STANDING .................................................. 3

7 II. PLAINTIFFS’ CLAIMS LACK MERIT ............................................................... 4

8

A. The Anderson-Burdick Framework Governs Plaintiffs’ Claims ....................... 4

9

B. The Challenged Acts Do Not Impose A “Severe Burden” ............................... 5

10

C. The Acts Survive “Less Exacting” Review...................................................... 9

11

D. The First And Fourteenth Amendments Are Not A Source of Positive Rights10

12

E. Plaintiffs’ Case Law Is Inapposite ................................................................. 11

13

F. Accepting Plaintiffs’ Arguments Would Have Grave Consequences ............. 13

14 III. PLAINTIFFS HAVE NOT SATISFIED THE REMAINING REQUIREMENTS

15 FOR INJUNCTIVE RELIEF ..................................................................................... 14

16

A. Plaintiffs Have Not Demonstrated That They Are Likely To Suffer Irreparable

17

Harm ..................................................................................................................... 14

18

B. The Balance Of Equitites Disfavors Plaintiffs’ Request................................. 15

19 IV. PLAINTIFFS’ REQUESTED RELIEF IS UNWARRANTED ............................ 16

20 CONCLUSION ............................................................................................................. 16

21

22

23

24

25

26

27

28

ii

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 3 of 22

1

TABLE OF AUTHORITIES

2 CASES

PAGE

3 Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 1979) .......................................................................... 16
4 Angle v. Miller,
5 673 F.3d 1122 (9th Cir. 2012)................................................................... 2, 5, 7, 10, 12 Chamness v. Bowen,
6 722 F.3d 1110 (9th Cir. 2013)...................................................................................... 8
7 Coalition for Economic Equity v. Wilson, 122 F.3d 718 (9th Cir. 1997)...................................................................................... 15
8 DNC v. Bostelmann,
9 No. 20-CV-249-WMC, 2020 WL 1320819 (W.D. Wis. Mar. 20, 2020) ..................... 12 Florida Democratic Party v. Scott,
10 215 F. Supp. 3d 1250 (N.D. Fla. 2016) ...................................................................... 12
11 Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983).................................................................................... 11
12 Maryland v. King,
13 133 S. Ct. 1 (2012)..................................................................................................... 15 Meyer v. Grant,
14 486 U.S. 414 (1988)..................................................................................................... 8
15 Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008).................................................................................. 4, 7
16 Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n,
17 457 F.3d 941 (9th Cir. 2006)........................................................................................ 3 Omari Faulkner et al. v. Virginia Dep’t of Elections,
18 CL-2000-1456-00 (Va. Cir. Ct. March 25, 2020) ....................................................... 12
19 Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990)...................................................................................... 16
20 Prete v. Bradbury,
21 438 F.3d 949 (9th Cir. 2006).........................................................................1, 4, 5, 6, 9 Purcell v. Gonzalez,
22 549 U.S. 1 (2006)....................................................................................................9, 15
23 Randall v. Sorrell, 548 U.S. 230 (2006)................................................................................................... 13
24 Regan v. Taxation With Representation of Wash.,
25 461 U.S. 540 (1983)................................................................................................... 11 RNC v. DNC,
26 __ U.S. __, 2020 WL 1672702 (U.S. Apr. 6, 2020)........................................12, 13, 15

27

28

iii

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 4 of 22

1 CASES (cont.)

PAGE

2 Soltysik v. Padilla, 910 F.3d 438 (9th Cir. 2018)........................................................................................ 4
3 Stanwitz v. Reagan,
4 429 P.3d 1138 (Ariz. 2018).......................................................................................... 9 Summers v. Earth Island Inst.,
5 555 U.S. 488 (2009)................................................................................................. 1, 3
6 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)..................................................................................................... 4
7 Weinberger v. Romero-Barcelo,
8 456 U.S. 305 (1982)................................................................................................... 15 Winter v. NRDC,
9 555 U.S. 7 (2008)................................................................................................3, 4, 14
10 Zamani v. Carnes, 491 F.3d 990 (9th Cir. 2007)........................................................................................ 4
11

12 STATUTES
13 A.R.S. § 19-112..........................................................................................................9, 10 14 A.R.S. § 19-118............................................................................................................... 9
A.R.S. § 19-119.01.......................................................................................................... 9 15
A.R.S. § 19-121............................................................................................................... 5 16 A.R.S. § 19-121.02.......................................................................................................... 9
17

18 CONSTITUTIONAL PROVISIONS 19 Ariz. Const. art. IV, Pt. 1, § 1(6)(C)............................................................................... 10 20 Ariz. Const. art. IV, Pt. 1, § 1(9).............................................................................1, 3, 10

21 OTHER AUTHORITIES
22 2017 Ariz. Sess. Laws, ch. 151 § 3 ................................................................................ 10
23

24

25

26

27

28

iv

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 5 of 22

1

INTRODUCTION

2

Plaintiffs’ desire for relief from the coronavirus epidemic afflicting our nation is

3 understandable. Hundreds of millions of Americans are struggling to perform tasks and

4 exercise rights that have suddenly become substantially harder. But Plaintiffs’ Complaint

5 and request for preliminary injunctive relief are badly miscast and fail to establish any

6 basis for relief. This Court should therefore deny the request for a preliminary injunction.

7

As an initial matter, Plaintiffs lack standing. Plaintiffs ask this Court only to

8 enjoin “measures under Title 19, Chapter 1, of the Arizona Revised Statutes (‘A.R.S.’), in

9 so far as they prevent processing signatures in support of initiatives via Arizona’s secure

10 online signature gathering system.” Doc. 2 at 3. But Plaintiffs somehow missed that the

11 Arizona Constitution separately mandates that all petition signatures be “signed in the

12 presence of the affiant [i.e., circulator].” Ariz. Const. art. IV, Pt. 1, § 1(9). Thus, even if

13 the Court were to grant Plaintiffs the relief that they seek, Arizona law would still bar use

14 of the E-Qual system for initiative petitions. As such, Plaintiffs have failed to establish it

15 is “likely that a favorable judicial decision will prevent or redress the [alleged] injury.”

16 Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).

17

Justiciability issues aside, Plaintiffs’ claims fail on the merits. Plaintiffs’

18 submissions do not establish that the challenged Acts impose a “severe burden” under the

19 governing Anderson-Burdick framework. As such, strict scrutiny does not apply and the

20 challenged provisions of Title 19 (the “Acts”) are constitutional if they “serve[] an

21 important regulatory interest” and are “reasonably related” to that interest. Prete v.

22 Bradbury, 438 F.3d 949, 970-71 (9th Cir. 2006). Plaintiffs do not even attempt to

23 advance arguments under this “less exacting review” standard. Id. at 961.

24

This omission/waiver results in the lack of a “severe burden” being dispositive

25 here. And Plaintiffs have failed to establish the lack of such a burden for several reasons.

26 First, the pandemic has only affected a small portion—less than 10%—of the roughly 20

27 months of this election cycle available to collect signatures. That amount is not severe

28 relative to the total available gathering time that Plaintiffs had for the 2020 cycle.

1

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 6 of 22

1 Second, the Ninth Circuit looks to whether “reasonably diligent” circulators can qualify

2 for the ballot under the law. Angle v. Miller, 673 F.3d 1122, 1133 (9th Cir. 2012). Here,

3 at least one initiative campaign has already collected approximately 300,000 signatures—

4 i.e., well in excess of the 237,645 signatures required (assuming a reasonable validity

5 rate)—and thus is likely to qualify for the ballot. Plaintiffs have made no showing that

6 they could not have been as diligent/effective as this campaign. Third, Plaintiffs’

7 submissions fail to establish that coronavirus will have a severe impact on their overall

8 efforts. Fourth, the Acts are viewpoint-neutral and even-handed: applying to all

9 initiatives regardless of their subject matter or position, which militates against finding a

10 severe burden. Fifth, the relief that Plaintiffs seek is actually less speech—i.e., the

11 elimination of expressive exchanges between circulators and voters during the initiative

12 process. It does not “severely burden” Plaintiffs’ First Amendment rights for the State to

13 decline to facilitate reductions in expressive exchanges.

14

Moreover, Plaintiffs’ arguments fail because the First and Fourteenth

15 Amendments do not provide positive rights—i.e., they restrict the government from

16 taking certain specified actions, but they do not affirmatively require the government to

17 assist individuals in dealing with the burdens imposed by external circumstances that the

18 government did not create. For example, political candidates cannot demand that the

19 State provide them moneys they otherwise would have fundraised but for coronavirus.

20 The political branches certainly may choose to grant relief to individuals affected—and

21 Arizona and the United States have quite properly chosen to do so in numerous instances.

22 But individuals do not generally have a constitutional right to demand such assistance in

23 addressing the burdens caused by external, non-governmental forces.

24

Plaintiffs have also failed to establish that the remaining factors favor their

25 request. Plaintiffs notably have not established that they are likely to suffer irreparable

26 harm. Moreover, the balance of equities does not favor Plaintiffs’ requested relief.

27

Finally, Plaintiffs have not established that the remedy that they seek is the

28 appropriate one. Even assuming that they otherwise are entitled to relief, other forms of

2

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 7 of 22

1 relief could be better tailored to their injury and they have not established that the

2 injunction sought should issue here.

3

LEGAL STANDARD

4

“A preliminary injunction is an extraordinary remedy never awarded as of right,”

5 but instead “upon a clear showing that the plaintiff is entitled to such relief.” Winter v.

6 NRDC, 555 U.S. 7, 22, 24 (2008). “[P]laintiff[s] seeking a preliminary injunction must

7 establish that [(1) they are] likely to succeed on the merits, that [(2) they are] likely to

8 suffer irreparable harm in the absence of preliminary relief, that [(3)] the balance of

9 equities tips in [their] favor, and that [(4)] an injunction is in the public interest.” Id. at

10 20.

11

ARGUMENT

12 I. PLAINTIFFS LACK ARTICLE III STANDING

13

Plaintiffs’ claims fail as a threshold matter because they have not established

14 Article III standing. Specifically, Plaintiffs have not established that it is “likely that a

15 favorable judicial decision will prevent or redress the [alleged] injury.” Summers, 555

16 U.S. at 493.

17

Plaintiffs here seek only to enjoin certain statutory provisions of Title 19. Mot. at

18 3. But even if those provisions are enjoined, the Arizona Constitution still would prohibit

19 use of the E-Qual system for initiative petitions. Specifically, Article IV, Part 1, Section

20 1 (9) requires that “every sheet of every such petition [i.e., initiative petitions] containing

21 signatures shall be verified by the affidavit of the person who circulated said sheet or

22 petition, setting forth that each of the names on said sheet was signed in the presence of

23 the affiant” (emphasis added). Because signatures gathered through E-Qual are not

24 signed in the presence of anyone competent to sign an affidavit—and Plaintiffs do not

25 contemplate that any such affidavit would be provided in any event—it would violate the

26 Arizona Constitution to accept them. Plaintiffs’ alleged injury thus simply will not be

27 redressed even if their proposed relief is granted. See, e.g., Nuclear Info. & Res. Serv. v.

28 Nuclear Regulatory Comm’n, 457 F.3d 941, 955 (9th Cir. 2006) (holding that Article III

3

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 8 of 22

1 redressability was lacking where a separate “rule would control even if the [challenged]

2 rule was wiped off the books”).1

3 II. PLAINTIFFS’ CLAIMS LACK MERIT

4

Each of Plaintiffs’ two claims fail on the merits. Plaintiffs are thus not “likely to

5 succeed on the merits.” Winter, 555 U.S. at 20.2

6

A. The Anderson-Burdick Framework Governs Plaintiffs’ Claims

7

The Ninth Circuit has repeatedly held that all constitutional challenges to election

8 regulations are governed by “a single analytic framework”—i.e., the Anderson-Burdick

9 framework. Dudum v. Arntz, 640 F.3d 1098, 1106 n.15 (9th Cir. 2011). That includes

10 “First Amendment, Due Process, [and] Equal Protection claims.” Id. All such claims are

11 “folded into the Anderson/Burdick inquiry.” Soltysik v. Padilla, 910 F.3d 438, 449 n.7

12 (9th Cir. 2018). Plaintiffs correctly appear to acknowledge that Anderson-Burdick

13 governs both of their claims. Mot. at 11.

14

The Anderson-Burdick framework recognizes that “States may, and inevitably

15 must, enact reasonable regulations of parties, elections, and ballots to reduce election-

16 and campaign-related disorder.” Prete, 438 F.3d at 961 (quoting Timmons v. Twin Cities

17 Area New Party, 520 U.S. 351, 358 (1997)).

18

Under the Anderson-Burdick framework, “an election regulation that imposes a

19 severe burden is subject to strict scrutiny.” Nader v. Brewer, 531 F.3d 1028, 1035 (9th

20 Cir. 2008). In contrast, “Lesser burdens trigger less exacting review, and a State’s

21

22 1 The State anticipates that Plaintiffs will respond to this remarkable oversight by

23 challenging the Arizona Constitution as unconstitutional as well. Any such attempt

would be waived by being raised first in a reply brief. Zamani v. Carnes, 491 F.3d 990,

24 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first

time in a reply brief.”). In any event, if Plaintiffs attempt to do so, this Court should 25 provide the State with an opportunity to respond before ruling on the merits (if the Court

26

declines to find waiver). If a provision of its Constitution is to be invalidated, the State should be given at least one opportunity to respond to Plaintiffs’ actual arguments, rather

27 than anticipated ones. 2 Based on the arguments presented here, Plaintiffs’ claims should be dismissed under

28 Rule 12. The State intends to file a timely motion to dismiss, if necessary, following this

Court’s resolution of the motion for a preliminary injunction.

4

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 9 of 22

1 important regulatory interests will usually be enough to justify reasonable,

2 nondiscriminatory restrictions.” Angle, 673 F.3d at 1132 (quoting Prete, 438 F.3d at

3 961) (cleaned up). Notably, “voting regulations are rarely subjected to strict scrutiny.”

4 Dudum, 640 F.3d at 1106.

5

As explained below, Plaintiffs fail to establish that the Acts impose a “severe

6 burden” on them. As such, less exacting scrutiny applies—a standard under which

7 Plaintiffs do not even attempt to argue they can prevail.

8

B. The Challenged Acts Do Not Impose A “Severe Burden”

9

The Acts that Plaintiffs challenge, even as-applied during this pandemic, do not

10 impose a severe burden for five reasons.

11

First, the epidemic is only likely to affect a small portion of the total election cycle

12 during which Plaintiffs could collect signatures. The signature gathering period for the

13 2020 election cycle is about 20 months long.3 Plaintiffs’ own declarations use the

14 Governor’s March 11 emergency declaration as the relevant starting date of

15 consideration/impact. See Doc. 3 at 4, 5 (¶¶21, 29); Doc. 4 at 3-4 (¶¶15, 17, 22).

16 Assuming that is the proper starting point,4 the pandemic has impacted only about one

17 month of the 20-month cycle—roughly 5%. The President’s current guidelines

18 restricting interactions presently last only until April 30—roughly another half month, or

19 7.5% in total. Nor do Plaintiffs provide evidence to establish the impacted period is

20 likely to last longer than that. In Plaintiffs’ own telling, they merely do “not know if

21 [they] will be able to resume [their] efforts by April 30.” Doc. 4 at 4-5 (¶23) (emphasis

22 added); accord Doc. 3 at 6 (¶35).

23

24 3 See A.R.S. § 19-121(D) (“[I]n no event shall the secretary of state accept an initiative

petition that was issued for circulation more than twenty-four months before the general 25 election at which the measure is to be included on the ballot.”); see also

26

https://apps.arizona.vote/info/IRR/2020-general-election/18/0 (the earliest application for the current cycle was filed November 13, 2018). The signature gathering period for this

27 cycle is thus from November 3, 2018 (2 years before the November 3, 2020 election) to the July 2, 2020 deadline for submitting initiative petitions.

28 4 Notably, the Governor did not issue any stay-at-home order until March 30. Doc. 3 at

6 (¶31).

5

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 10 of 22

1

Even assuming that coronavirus has completely shut down signature gathering

2 during the March 11-April 30, 2020 window, that would only represent a single-digit

3 percentage of the total time available to collect signatures for the 2020 election cycle

4 (~7.5%). Furthermore, it would barely exceed 10% if the pandemic continued to shut

5 down circulating efforts for another month after that until May 31 (i.e., ~12.5%). And

6 Plaintiffs do not submit any evidence that it will.

7

Plaintiffs do not cite any precedent for the proposition that an impact accounting

8 for less than/around 10% total hindrance is a “severe burden.” See Prete, 438 F.3d at 967

9 (holding there was no severe burden where “plaintiffs did not prove that [challenged law]

10 significantly limits the available pool of people willing to circulate petitions” (emphasis

11 added)); accord id. at 953 n.5. Indeed, it stretches the meaning of “severe” past its

12 breaking point to treat it as such.

13

Notably, Plaintiff Arizonans for Fair Elections did not file an application with the

14 Secretary until October 30, 2019. Doc. 3 at 2 (¶8). In doing so, it wasted more than half

15 of the available time in which it could have been gathering signatures. Similarly, it

16 appears likely that Plaintiff Health Care Rising AZ did not file an application with the

17 Secretary until August 20, 2019. Doc. 4 at 2 (¶7).5 In doing so, it wasted over 9 of the 20

18 available months.

19

It was Plaintiffs’ choice—not the State’s—to procrastinate and dither away time

20 that might later become critical. Plaintiffs’ delay absolutely dwarfs the time period that

21 COVID-19 is likely to affect their signature gathering efforts. Plaintiffs’ situation amply

22 demonstrates the wisdom of the advice given innumerable times by parents everywhere:

23 “Don’t wait until the last minute.” The First and Fourteenth Amendments do not exist to

24 bail the Plaintiffs out from their lack of diligence. And while it is certainly true that this

25 pandemic is extraordinary, there are innumerable more-common contingencies (e.g., key

26

27 5 The Grennan declaration attests that this was done on “August 26, 2020,” Doc. 4 at 2 (¶7)—a date that has not occurred—which appears to be a typographical error. Read in
28 context of subsequent events discussed, which occurred in late 2019 (id. at 2 (¶9)) it
appears likely that the actual date is August 26, 2019.

6

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 11 of 22

1 staff members quitting, uncommonly bad weather, unexpected cost overruns, lack of

2 public/donor interest) that could have occurred that cumulatively could have had a much

3 greater impact on their ability to gather signatures within the short window Plaintiffs

4 allotted themselves.

5

Second, and relatedly, it appears likely that Plaintiffs could have qualified for the

6 ballot had they exerted reasonable diligence. The Ninth Circuit has explained that the

7 applicable test for considering challenges to initiative regulations is similar to whether

8 “‘reasonably diligent’ candidates can normally gain a place on the ballot, or whether they

9 will rarely succeed in doing so.” Angle, 673 F.3d at 1132 (quoting Nader, 531 F.3d at

10 1035). Here, another initiative campaign (Smart and Safe Arizona)—which has filed a

11 similar suit in the Arizona Supreme Court—has attested that it was “gathered

12 approximately 300,000 signatures” so far. Makar Decl. Ex. A. That notably exceeds the

13 237,645 signatures it needs by more than 25%, and it is thus quite likely to qualify for the

14 2020 ballot. That is particularly true as even Plaintiffs appear to contemplate that they

15 will have some post-emergency time to circulate before the July 2, 2020 submission

16 deadline. Doc. 3 at 6 (¶35); Doc. 4 at 4-5 (¶23).

17

Notably, the earliest applicants for initiatives in this election cycle applied far

18 earlier on November 13, 2018.6 Plaintiffs have not submitted any evidence that, had they

19 been as diligent, they would still be in their current predicament.

20

Third, Plaintiffs’ evidentiary submissions fall far short of satisfying their burden

21 under Winter, or answering obvious questions they beg. Plaintiffs, for example, never

22 explain why they could not be using this time to communicate with voters—through

23 phones, emails, social media, etc.—to obtain their interest/commitment to sign, and then

24 arrange for actual execution after the pandemic has receded. Although Arizona statutory

25 and constitutional law requires in-person execution of the signatures, that hardly means

26 that Plaintiffs cannot be making productive use of this time to try to secure

27 interest/support from voters.

28 6 See https://apps.arizona.vote/info/IRR/2020-general-election/18/0.

7

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 12 of 22

1

Nor do any of the declarants squarely allege that they cannot proceed absent the

2 proposed relief. None of the Plaintiffs declarants appear to consider genuinely measures

3 such as using single-use signature sheets, social distancing, or scheduling petition signing

4 in advance at prepared and sanitary locations. Perhaps those measures would be

5 sufficient. Perhaps not. But Plaintiffs bear the burden of proof, and their declarations are

6 simply too thin a reed to satisfy it. Neither do they explain how any remedy other than

7 use of E-Qual would be insufficient. See infra Section IV.

8

Fourth, the Acts are viewpoint-neutral and even-handed: applying to all initiatives

9 regardless of their subject matter or position, which militates against finding a severe

10 burden. The Ninth Circuit explained in Chamness v. Bowen that because the challenged

11 regulation was “viewpoint neutral … [that] support[ed] the conclusion that it imposes

12 only a slight burden on speech.” 722 F.3d 1110, 1118 (9th Cir. 2013). Similarly, the

13 Ninth Circuit has “repeatedly upheld as ‘not severe’ restrictions that are generally

14 applicable, even-handed, [and] politically neutral.” Dudum, 640 F.3d at 1106 (cleaned

15 up). The Acts are just that: they apply to all initiatives, regardless of the subjects they

16 address and no matter which political groups favor or oppose them, or what messages

17 they are trying to convey.

18

Fifth, it is notable that the purportedly “severe burden” on Plaintiffs’ First

19 Amendment rights is not any restriction on speech, but rather the State’s refusal to

20 sanction the elimination of expressive activity that would otherwise occur. Specifically,

21 courts have long recognized that in-person initiative circulation “of necessity involves

22 both the expression of a desire for political change and a discussion of the merits of the

23 proposed change.” Meyer v. Grant, 486 U.S. 414, 421 (1988). But Plaintiffs do not

24 argue that the State is seeking to interfere with that expressive activity; instead, they want

25 the State to eliminate any requirement that it occur, and transform signature gathering to

26 non-expressive exchanges between voters and inanimate objects (i.e., computers). But it

27 is not a “severe burden” on Plaintiffs’ First Amendment rights for the State to decline to

28

8

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 13 of 22

1 facilitate reductions in expressive exchanges. The First Amendment, after all, guarantees

2 freedom of speech, not freedom from speech.

3

C. The Acts Survive “Less Exacting” Review

4

Because the Acts do not impose a severe burden, they are constitutional if they

5 “serve[] an important regulatory interest” and are “reasonably related” to that interest.

6 Prete, 438 F.3d at 970-71. There is no dispute that the Acts do so under ordinary times:

7 Plaintiffs admit that “When this crisis passes, the State’s denial of access to E-Qual no

8 longer needs to be enjoined.” Mot. at 16. Plaintiffs thus concede the existence of

9 important government interests generally.

10

In any event, “‘A State indisputably has a compelling interest in preserving the

11 integrity of its election process.’” (citation omitted)). Purcell v. Gonzalez, 549 U.S. 1, 4

12 (2006). To that end, the State has enacted several statutes to serve that compelling

13 interest. See, e.g., A.R.S. § 19-112 (requiring a witness who affirms through notarized

14 affidavit); -115 (criminalizing intentionally duplicative or forged signatures); -118

15 (requiring certain circulators to register); -119.01 (criminalizing certain fraudulent acts by

16 circulators); -121.02 (disqualifying signatures, among other reasons, that don’t match the

17 signer’s voter registration file). As this Court has recognized, Plaintiffs “seek exceptions

18 to a litany of statutory requirements aimed at ensuring that initiative-petition signatures

19 are legitimate[.]” Doc. 61 at 5. Moreover, “The Arizona Supreme Court has stated that

20 the requirements imposed on signature gatherers, in particular, ‘represent[] a reasonable

21 means of fostering transparency ... and mitigating the threat of fraud or other wrongdoing

22 infecting the petition process.’” Id. (quoting Stanwitz v. Reagan, 429 P.3d 1138, 1144

23 (Ariz. 2018)).

24

These comprehensive laws to prevent, detect, and prosecute fraud are largely

25 incompatible with E-Qual. In addition, use of E-Qual will eliminate handwriting samples

26 to not only compare against the voter registration file, but also to potentially identify the

27 forgers. Similarly, the absence of an in-person circulator witnessing the electronic

28 signature deprives the State of a witness to possible forgeries. In fact, under the E-Qual

9

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 14 of 22

1 system, a person could “sign” on behalf of many others as long as they had some minimal

2 pedigree information and the State would have little ability to detect it.

3

Arizona also has a significant interest in promoting dialogue by requiring

4 proponents of initiatives to individually engage signers and in so doing provide

5 opportunity for meaningful discussion. Arizona thus specifically requires a circulator be

6 present when the petition is signed with a copy of the measure, facilitating active

7 discussion. Ariz. Const. art. IV, Pt. 1, § 1(9); A.R.S. § 19-112(B). Facilitating those

8 exchanges helps to serve the State’s “undeniably … important regulatory interest ‘in

9 making sure that an initiative has sufficient grass roots support to be placed on the

10 ballot.’” Angle, 673 F.3d at 1135 (citation omitted). Signatures that are the product of

11 expressive exchanges between citizens are more likely to ensure meaningful support than

12 a non-expressive exchange of binary bits with a computer. That is particularly true as the

13 internet is notorious for viral and ephemeral campaigns/memes/etc.

14

Finally, the State has a significant interest in safeguarding the integrity of its

15 initiative process because initiatives, once approved, are extremely difficult to amend or

16 repeal. In 1998, voters approved the Voter Protection Act (“VPA”) which amended

17 Arizona’s constitution to require three-fourths of both houses of the Arizona Legislature

18 to amend any voter-approved initiative. Ariz. Const. art. IV, Pt. 1, § 1(6)(C). In 2017,

19 the Arizona Legislature found the VPA “impairs the ability of the legislature … to

20 implement changes to or corrective measures for voter-approved initiatives” making the

21 initiative process an “extraordinary power” of which the State has an interest in

22 “safeguarding the integrity and accuracy of the initiative process.” 2017 Ariz. Sess.

23 Laws, ch. 151 § 3.

24

For all of these same reasons, the Acts would survive strict scrutiny, if it applied.

25

D. The First And Fourteenth Amendments Are Not A Source Of Positive

Rights 26

27

Plaintiffs’ claims also run afoul of the fundamental nature of the U.S. Constitution,

28 which generally provides for freedom from governmental action, not an affirmative

10

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 15 of 22

1 entitlement to governmental assistance in addressing external, non-governmental forces.

2 “[T]he Constitution is a charter of negative rather than positive liberties.... The men who

3 wrote the Bill of Rights were not concerned that government might do too little for the

4 people but that it might do too much to them. The Fourteenth Amendment, adopted in

5 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression

6 by state government, not to secure them basic governmental services.” Jackson v. City of

7 Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983).

8

Governments can and should assist citizens in addressing the myriad challenges

9 posed by the coronavirus. But the First and Fourteenth Amendments do not demand that

10 the State take any particular action to do so. Indeed, it is well-established that “a

11 legislature’s decision not to subsidize the exercise of a fundamental right does not

12 infringe the right[.]” Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549

13 (1983). Notably, Regan upheld the denial of public subsidies to organizations engaged in

14 lobbying—which unquestionably was protected activity under the First Amendment. But

15 the federal government had no obligation to expend federal resources to subsidize that

16 activity.

17

The same result should obtain here. The First and Fourteenth Amendments do not

18 command the State to expend resources to alleviate the burdens imposed by an external

19 force on Plaintiffs, such as by the State extending E-Qual to permit electronic execution

20 of signatures in contravention of its own constitutional and statutory law.

21

E. Plaintiffs’ Case Law Is Inapposite

22

Plaintiffs’ brief is notable for what it does not cite: i.e., a single Ninth Circuit

23 Anderson-Burdick case. Indeed, outside of the legal standard for a PI (Mot. at 9),

24 Plaintiffs do not cite any Ninth Circuit authority at all. Plaintiffs have thus failed to make

25 any argument under the standards that the Ninth Circuit has actually set forth for

26 analyzing electoral regulations of initiatives under Anderson-Burdick, such as in Prete

27 and Angle.

28

11

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 16 of 22

1

Plaintiffs instead rely almost exclusively on non-precedential, out-of-circuit trial

2 court cases. That reliance is misplaced.

3

Florida Democratic Party v. Scott was an October 10, 2016 order imposing a

4 single-day extension of the voter registration deadline, from October 11 to October 12,

5 2016 due to a hurricane. 215 F. Supp. 3d 1250 (N.D. Fla. 2016). While citizens have a

6 fundamental right to vote on the officials that represent them, there is no requirement that

7 the States make lawmaking-by-initiative available at all or ensure that there are measures

8 on every general election ballot. Angle, 673 F.3d at 1127. Indeed, while state

9 government can easily survive an election cycle with few or no initiatives on the ballot, it

10 will rapidly crumble if no officials are elected and elected offices are vacant. The Scott

11 reasoning is also so expansive as to be unpersuasive/impossible to apply elsewhere. The

12 Scott court remarkably held that Florida’s interests were insufficient under rational basis

13 review—which is in this context is tantamount to holding they do not exist. Id. at 1257.

14 Plaintiffs do not even attempt to argue as much here.

15

DNC v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1320819 (W.D. Wis. Mar.

16 20, 2020) was a temporary restraining order issued two days after filing of the relevant

17 complaint, and two days prior to the intervention of the defending party that later

18 successfully obtained a stay from the U.S. Supreme Court of a preliminary injunction

19 issued in that case. See RNC v. DNC, __ U.S. __, 2020 WL 1672702 (U.S. Apr. 6, 2020).

20 It too involved the right to vote on candidates, rather than qualify initiatives for a ballot,

21 thus threatening some individuals with a total deprivation of the right to vote an election,

22 rather than partial reduction in the time available to collect signatures.

23

Omari Faulkner et al. v. Virginia Dep’t of Elections, CL-2000-1456-00, *3 (Va.

24 Cir. Ct. March 25, 2020) was effectively a default judgment, where the Commonwealth

25 of Virginia declined to oppose the plaintiff, and the court consequently found it had no

26 state interests “to weigh against ‘the character and magnitude of the asserted injury to the

27 rights protected’” by the Constitution. Id.

28

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1

There is no precedential decision that has resulted from any of these cases,

2 although the U.S. Supreme Court stayed injunctive relief in the same Wisconsin election

3 as Bostelmann. See RNC, 2020 WL 1672702, at *1.

4

F. Accepting Plaintiffs’ Arguments Would Have Grave Consequences

5

Accepting Plaintiffs’ arguments would also open a veritable Pandora’s Box of

6 other potential constitutional challenges. Few, if any, people’s lives have been untouched

7 by coronavirus and virtually everyone could point to activities that have been impaired—

8 including the exercise of constitutional rights. For example, candidates for political

9 office have a right to raise money and U.S. residents have a right to contribute money.

10 Randall v. Sorrell, 548 U.S. 230 (2006). But coronavirus has undoubtedly interfered

11 substantially with fundraising efforts—as would be expected without the ability to hold

12 dinners, meetings, and rallies.7 Undoubtedly that burden is in many cases (unlike here)

13 severe. But that hardly means that political candidates should be able to demand that

14 governments either (1) make up the difference by directly funding their campaigns to

15 make up the shortfalls or (2) must waive or substantially expand contribution limits, so

16 that candidates can raise the money they otherwise would have collected.

17

Similarly, many political groups often rely on meeting, rallies, and pamphleteering

18 to spread their message—which are obviously less effective now. But that hardly means

19 that they can demand that the government fund alternative speech or allocate channels of

20 governmental speech to alleviate the impacts. In many cases, they simply will have to

21 live with the inevitable diminution of their expressive capacities as an unavoidable—and

22 non-governmentally-caused—result of the pandemic.

23

In short, hardships abound in this crisis. But that does not mean that Plaintiffs

24 alone should be excused from generally applicable laws. And it is doubtful that our

25 system of government can tolerate all of the exceptions that would necessarily be

26

27 7 See, e.g., Severns, Maggie and Arkin, James, Politico, ‘It can be catastrophic’:
28 Coronavirus tanks campaign fundraising (March 20, 2020) available at https://www.politico.com/news/2020/03/20/coronavirus-campaign-fundraising-138381.

13

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 18 of 22

1 required if Plaintiffs’ arguments were accepted and fairly applied to all others impacted

2 by coronavirus.

3 III. 4 5

PLAINTIFFS HAVE NOT SATISFIED THE REMAINING REQUIREMENTS FOR INJUNCTIVE RELIEF
A. Plaintiffs Have Not Demonstrated That They Are Likely To Suffer Irreparable Harm

6

Plaintiffs’ submissions also fail to establish that they are “likely to suffer

7 irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20 (emphasis

8 added). Plaintiff Healthcare Rising AZ notably already has 273,786 signatures—i.e.,

9 36,141 more signatures than the required number. Doc. 4 at 3-4 (¶¶ 10, 17). It thus

10 likely will qualify for the ballot with post-crisis circulation and reasonable diligence.

11 Indeed, it may already have a sufficient number of valid signatures. And it tellingly

12 offers no details to support their entirely conclusory statement that “it is unreasonable to

13 expect the Committee to meet the statutory signature requirement by July 2, 2020.” Id. at

14 5 (¶24).

15

In contrast, Plaintiff Arizonans for Fair Elections has collected far fewer

16 signatures: only 110,333 as March 11, 2020—only about 40% of the number assuming

17 100% were valid. Doc. 3 at 5 (¶29). Given this paltry pre-pandemic showing, there is

18 thus strong reason to doubt that it would have collected the requisite number absent this

19 emergency. It thus has not likely suffered irreparable harm caused by the challenged

20 Acts, rather than by its own inadequate progress. Indeed, the committee tellingly does

21 not even allege either that (1) it was likely to qualify for the ballot absent the pandemic

22 or (2) it is likely to qualify even if the requested injunction issues.

23

As to Plaintiff Turk, she only alleges that she “would like to sign petitions [she is]

24 in favor of in order to bring these initiatives to the ballot, and provide the people of

25 Arizona with an opportunity to voice their vote.” Doc. 5 at 2 (¶10). But she notably does

26 not allege that she will not have an opportunity to do so before the applicable July

27 deadline. The mere delay in her ability to sign petitions—rather than any actual outright

28

14

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 19 of 22

1 denial for the 2020 election cycle—does not constitute irreparable harm. Cf. Weinberger

2 v. Romero-Barcelo, 456 U.S. 305, 311 (1982).

3

Because Plaintiffs have not established that they are likely to suffer irreparable

4 harm, their motion should be denied on that basis alone.

5

B. The Balance Of Equities Disfavors Plaintiffs’ Request

6

The balance of equities also tips against issuance of a preliminary injunction. “[A]

7 state suffers irreparable injury whenever an enactment of its people or their

8 representatives is enjoined.” Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719

9 (9th Cir. 1997); accord Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in

10 chambers) (same). These harms outweigh Plaintiffs’ speculative, skeletal and unlikely

11 harms. See supra at 14-15.

12

Moreover, “Court orders affecting elections, especially conflicting orders, can

13 themselves result in voter confusion and consequent incentive to remain away from the

14 polls.” Purcell, 549 U.S. at 4-5. The July 2 deadline for submitting petitions with

15 signatures is now rapidly approaching. And any order granting a preliminary injunction

16 could potentially be appealed and reversed—causing further electoral chaos.

17

For these reasons, the U.S. Supreme Court recently stayed a coronavirus-based

18 injunction permitting additional time to mail in ballots—which could result in voters

19 outright losing an opportunity to vote. See RNC, 2020 WL 1672702, at *1. Here,

20 however, Plaintiffs will lose at most a small portion of the 20 months available to them to

21 collect signatures. The equities thus militate even more against a preliminary injunction

22 here than they did in RNC v. DNC.

23

Plaintiffs’ request should further be rejected because it seeks mandatory relief—

24 i.e., compelling the Secretary to enable use of the E-Qual system. Mandatory injunctions

25 like this one “‘go[] well beyond simply maintaining the status quo pendente lite [and]

26 [are] particularly disfavored.’” Stanley v. USC, 13 F.3d 1313, 1320 (9th Cir. 1994)

27 (citation omitted). Plaintiffs seeking this “disfavored” remedy must meet a heightened

28 burden; indeed, district courts must “deny such relief, ‘unless the facts and law clearly

15

Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 20 of 22

1 favor the moving party.’” Id. (emphasis added) (citation omitted)); accord Anderson v.

2 United States, 612 F.2d 1112, 1115 (9th Cir. 1979). Plaintiffs have made no such legal or

3 factual showing.

4 IV. PLAINTIFFS’ REQUESTED RELIEF IS UNWARRANTED

5

Even if Plaintiffs had established their entitlement to some relief—including a

6 likely violation of the U.S. Constitution—their requested injunction is ill-explained and

7 inequitable. Plaintiffs have not, for example, explained why a pro rata reduction of the

8 signature requirement would not be a more appropriate remedy than use of the E-Qual

9 system. (For example, if coronavirus renders signature gathering half as effective for two

10 months, a 5 (0.5 * 2 months / 20 months) pro rata reduction could be ordered.) Similarly,

11 Plaintiffs have not explained why a relaxation of the in-person execution requirement—

12 e.g., to permit “virtual presence” through live audio/video transmission—would not

13 remedy their harm more precisely (and in a more narrowly tailored manner). See, e.g.,

14 Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir. 1990) (Injunctions “must

15 be narrowly tailored to give only the relief to which plaintiffs are entitled.”). Nor have

16 Plaintiffs explained why an injunction simply permitting them to apply signatures they

17 have collected for qualifying for the 2022 election would not be sufficient. (That

18 obviously would be a delay, but delays abound to millions of Americans for a myriad of

19 tasks they otherwise could accomplish earlier absent this pandemic.) Such issues should

20 be resolved before any injunction issues.

21

CONCLUSION

22

Plaintiffs’ request for a temporary restraining order and preliminary injunction

23 should be denied.

24

25

26

27

28

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1 Respectfully submitted this 10th day of April, 2020.

2

MARK BRNOVICH

3

ATTORNEY GENERAL

4

By: s/ Drew C. Ensign

5

Drew C. Ensign (No. 25463)

6

Deputy Solicitor General

Robert J. Makar (No. 33579)

7

Jennifer J. Wright (No. 27145)

Assistant Attorneys General 8

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Attorneys for Intervenor-

Defendant State of Arizona

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Case 2:20-cv-00658-DWL Document 77 Filed 04/10/20 Page 22 of 22

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 10th day of April, 2020, I caused the foregoing

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

4 System for Filing, which will send notice of such filing to all registered CM/ECF users.

5

6 s/ Drew C. Ensign 7 Drew C. Ensign

8 Attorneys for Intervenor-
9 Defendant State of Arizona
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 Case 2:20-cv-00658-DWL Document 78 Filed 04/10/20 Page 1 of 13

Ballard Spahr LLP 1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555 Telephone: 602.798.5400

1 Roy Herrera (#032901)

2

herrerar@ballardspahr.com Daniel A. Arellano (#032304)

3 arellanod@ballardspahr.com

Jillian L. Andrews (#034611) 4 andrewsj@ballardspahr.com

5 BALLARD SPAHR LLP 1 East Washington Street, Suite 2300

6 Phoenix, AZ 85004-2555

7

Telephone: 602.798.5400 Facsimile: 602.798.5595

8 Attorneys for Defendant Katie Hobbs,

Arizona Secretary of State 9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE DISTRICT OF ARIZONA

12 Arizonans for Fair Elections (AZAN), an 13 Arizona nonprofit corporation; Arizonans
Fed Up with Failing Healthcare (Healthcare 14 Rising AZ), an Arizona nonprofit 15 corporation; and Randi L. Turk, an
individual, 16
Plaintiffs, 17

18

vs.

No. CV-20-00658-PHX-DWL
RESPONSE OF ARIZONA SECRETARY OF STATE KATIE HOBBS TO MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

19 Katie Hobbs, Arizona Secretary of State, et 20 al.

21

Defendants.

22

23

24

INTRODUCTION

25

In light of the current public health emergency, Katie Hobbs, in her official capacity

26 as Arizona Secretary of State, does not oppose the narrow relief sought by Plaintiffs for

27 this election year: access to the E-Qual system to electronically collect signatures for

28 statewide initiative petitions, just as some candidates already do for nomination petitions.

Case 2:20-cv-00658-DWL Document 78 Filed 04/10/20 Page 2 of 13

Ballard Spahr LLP 1 East Washington Street, Suite 2300
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1 Indeed, the Secretary believes that such relief would further the public interest by

2 protecting public health while facilitating the continuity of democratic processes—here,

3 Arizonans’ fundamental constitutional right to legislate by initiative—in the midst of an

4 unprecedented global pandemic. Should the Court grant the relief that Plaintiffs request,

5 the Secretary stands ready to begin implementing the necessary modifications to the E-

6 Qual system to allow qualified voters to electronically sign statewide initiative petitions

7 but requests that the Court place certain limitations on the relief to minimize administrative

8 burden under the current circumstances.

9

FACTUAL BACKGROUND

10 I. The Initiative Process in Arizona.

11

Arizona’s Constitution grants its citizens the power to propose laws and

12 constitutional amendments through initiative. Ariz. Const. art. IV, Pt. 1 § 1(1). Statewide

13 initiative petitions must be filed with the Arizona Secretary of State no later than four

14 months before the election at which the measure will be voted upon. Id. § 1(4). Initiative

15 petitions for statutory changes must be signed by at least ten percent of the total number of

16 all votes cast in the most recent gubernatorial election, and petitions for constitutional

17 amendments must be signed by at least 15 percent. Id. § 1(2). This year, the signature

18 minimums are 237,645 and 356,467, respectively, and the deadline to submit petitions is

19 July 2, 2020. See https://azsos.gov/elections/initiative-referendum-and-recall.

20

To begin the process of circulating petitions, an initiative proponent must file with

21 the Secretary a statement of organization to register as a political committee and an

22 application for a petition serial number, including with the application a copy of the text of

23 the measure and a 100-word summary of its principal provisions. A.R.S. § 19-111(A).

24 Upon receipt of these materials, the Secretary assigns an official serial number to the

25 petition, which must appear on the lower right-hand corner of each copy of the petition.

26 A.R.S. § 19-111(B).

27

Signature sheets, a template of which is provided by the Secretary, must be printed

28 on legal-sized paper and must include a descriptive title of the initiative, a 100-word

2

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1 summary, the petition serial number, and an indication whether the circulator is paid or is

2 a volunteer. A.R.S. §§ 19-102, 19-121(A). The signature sheets must be attached at all

3 times during circulation to a full and correct copy of the title and text of the measure.

4 A.R.S. § 19-112(B). Only qualified electors may sign and must do so in the presence of

5 the circulator. A.R.S. § 19-112(A). The circulator must sign an affidavit (printed on the

6 back of the signature sheet) before a notary public, subscribing and swearing that: (i) each

7 of the names on the sheet was signed and the name and address were printed by the elector

8 on the date indicated; (ii) in his or her belief, each signer was a qualified elector of the

9 applicable county on the date indicated; and (iii) at all times during circulation of the

10 signature sheet, a copy of the title and text was attached to the signature sheet. A.R.S. § 19-

11 112(C).

12

Once signature circulation is complete, the initiative proponent files the petition

13 sheets by tendering them to the Secretary, who then issues a receipt indicating the estimated

14 number of purported signatures and sheets. A.R.S. § 19-121(B). Once a receipt is issued,

15 no additional petition sheets may be accepted for filing. Id.

16

Upon filing of the petition, the Secretary has 20 days to conduct a review and to

17 remove in their entirety any deficient petition sheets (e.g., those not attached to a copy of

18 the title and text of the measure) and strike through any individual signatures missing any

19 accompanying required information (e.g., an address or date). A.R.S. § 19-121.01(A). The

20 Secretary must then randomly select 5% of the total signatures for verification by the

21 County Recorders. A.R.S. § 19-121.01(B). Once the Secretary sends the random samples

22 to the County Recorders, the Recorders have 15 days to verify the signatures and the

23 electors’ eligibility and then certify to the Secretary which signatures were disqualified,

24 along with the overall disqualification rate. A.R.S. § 19-121.02. The Secretary then has

25 72 hours to determine the total number of valid signatures based on the Secretary’s initial

26 review and the County Recorders’ signature verification. A.R.S. § 19-121.04(A). If the

27 remaining valid signatures equal or exceed the minimum amount required by the

28 Constitution, the Secretary notifies the proponent committee and the Governor that the

3

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1 initiative will be placed on the ballot. A.R.S. § 19-121.04(B). If the remaining valid

2 signatures do not satisfy the constitutional minimum, the Secretary notifies the proponent

3 that the initiative will not be placed on the ballot. A.R.S. § 19-121.04(C).

4 II. The E-Qual System.

5

Candidates for public office in Arizona must submit nomination petitions with a

6 required number of signatures from qualified electors. A.R.S. § 16-314(B). The Secretary

7 is statutorily vested with the authority to create a secure internet portal by which state and

8 federal candidates can create, use, and submit petitions in electronic form for qualified

9 electors to sign electronically. A.R.S. §§ 16-316, 16-318.1 Those statutes require that the

10 system provide a method to verify the identity and eligibility of qualified electors who sign

11 a petition. Id.

12

Pursuant to these statutes, the Secretary has developed an electronic platform for

13 signature collection called E-Qual. The E-Qual system allows for qualified voters to sign

14 nomination petitions for federal, statewide, and legislative candidates through a secure

15 internet portal that properly verifies the voter’s identity and eligibility to sign a particular

16 petition. Dul Decl. at 2 ¶¶ 3, 8-10. Candidates may choose to use E-Qual instead of

17 collecting signatures on hard-copy petition forms or as a supplement to their hard-copy

18 signatures. Id. at 2 ¶ 3. In order to use E-Qual to collect signatures electronically,

19 candidates must first create an account in the Secretary of State’s Candidate Portal. Id. at

20 3 ¶ 5. Candidate Portal enables candidates to create an E-Qual petition, upload nomination

21 paperwork, and populate their online profile, which will be displayed on the Secretary of

22 State’s elections website once the candidate qualifies for the ballot. Id. When a candidate

23 clicks “Create E-Qual Petition” in Candidate Portal, the candidate is prompted to review

24 and approve the information in the petition caption. Id.

25

Once a candidate has created their E-Qual petition, the candidate can circulate the

26 1 The Secretary also is tasked with making the electronic system available to local

27 candidates, but that system is still under development due to the logistical complexities of

28

accommodating numerous jurisdictions’ election systems and providing the necessary training and administrative support for local filing officers and candidates. A.R.S. § 16-

317; Dul Decl. at 5 ¶ 4.

4

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Ballard Spahr LLP 1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555 Telephone: 602.798.5400

1 weblink to voters to sign the petition. Id. at 3 ¶ 6. An eligible voter may also access a

2 candidate’s E-Qual petition by going directly to the E-Qual website and viewing the

3 petitions available for that voter to sign. Id. When a candidate is ready to file their

4 nomination paperwork, the candidate will log in to their Candidate Portal account, “close

5 out” their E-Qual petition, print the petition, and sign the cover page which contains a

6 circulator statement. Id. at 3 ¶ 7. The printed E-Qual petition lists each signer’s printed

7 name, actual residence address, date of signing, and voter identification number and enters

8 “/S/” followed by the voter’s first name and last name into the signature field. Id. at 3–4

9 ¶ 7. The candidate must print and file the E-Qual petition and signed cover page with the

10 Secretary’s office by the filing deadline for their E-Qual signatures to apply to their total

11 signature count. Id. at 4 ¶ 7.

12

Registered voters who wish to sign a petition electronically through E-Qual must

13 first authenticate their identity by entering into the log-in screen the voter’s name and date

14 of birth, and either the voter’s: (i) Arizona driver’s license number, or (ii) voter

15 identification number and last four digits of the voter’s Social Security number. Id. at 4

16 ¶ 8. The information provided must match the voter’s registration record in order for the

17 voter to log in to E-Qual and sign petitions electronically. Id.

18

In addition to verifying the voter’s identity by authenticating the voter’s identifying

19 information at log-in, E-Qual interfaces with the statewide voter registration system—the

20 Arizona Voter Information Database (AVID)—to verify the voter’s registration status and

21 assigned districts, and to determine the petitions the voter is eligible to sign. Id. at 4 ¶ 9.

22 If E-Qual is unable to authenticate eligibility to sign because the person is not registered to

23 vote or their registration status does not make them a qualified signer, a notification

24 message is displayed and the user will not be able to access the system. Id. Because E-

25 Qual verifies that a person is properly registered, resides in the correct district to be

26 qualified to sign a particular petition, and is otherwise eligible to sign that petition, E-Qual

27 signatures are generally counted as valid without further review by the filing officer or the

28 County Recorder unless a court challenge is filed and the specific signature is challenged.

5

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1 Id. at 4 ¶ 10.

2 III. Feasibility of Making E-Qual Available to Statewide Initiative Measures.

3

If the Court were to order that the Secretary allow Plaintiffs to use the E-Qual system

4 to electronically collect signatures for statewide initiative petitions this year, the

5 Secretary’s office estimates that it could develop and implement such functionality in about

6 four weeks’ time. Id. at 4 ¶ 11. It is feasible to create a statewide initiative petition in E-

7 Qual, the layout of which would be populated with the necessary data about the initiative—

8 including the serial number and full title and text of the measure—that is already captured

9 in the Secretary’s systems and is displayed on the Secretary’s website. Id. at 5 ¶ 12. An

10 initiative committee could be provided with credentials to manage its E-Qual petitions

11 similar to how candidates manage their nomination petitions in the system. Id. at 5 ¶ 13.

12 The committee could share a weblink to the petition with electors who could then access

13 and sign the petition electronically after providing identifying information that verifies

14 their identity and is checked against AVID to verify their eligibility to sign the E-Qual

15 petition. Id. When the initiative committee is ready to file the petition, it would simply

16 close out the E-Qual petition, at which point the system will generate a circulator

17 coversheet and PDF list or CSV file of the first and last name, residential address, date of

18 signing, and voter identification number for each voter who signed the petition. Id.

19

The list of E-Qual signers and signed circulator coversheet could then be filed with

20 the Secretary’s Office along with any signatures collected on hard-copy petition sheets. Id.

21 Once the petition is closed out and the PDF list or CSV file of signers is created, voters can

22 no longer sign the petition, nor can the petition be re-opened. Id.

23

ARGUMENT

24 I. The Secretary Does Not Oppose the Narrow Relief Plaintiffs Seek and Can Implement Necessary Changes to E-Qual If Ordered by the Court.
25 The COVID-19 pandemic has necessitated drastic adjustments to many facets of
26 life in Arizona over the last several weeks, and these adjustments will likely continue for
27 at least the next several months. In light of the unprecedented challenges created by the
28 current public health emergency and the known risks inherent to in-person interactions, the

6

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Ballard Spahr LLP 1 East Washington Street, Suite 2300
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1 Secretary does not oppose Plaintiffs’ request that they be permitted to electronically collect

2 signatures for statewide initiative petitions through E-Qual in advance of the July 2, 2020

3 filing deadline. Rather, the Secretary believes that such relief would further the public

4 interest by protecting public health while facilitating the continuity of democratic

5 processes—here, Arizonans’ constitutional right to legislate by initiative.

6

Should the Court grant the relief that Plaintiffs request, the Secretary can implement

7 the necessary modifications to the E-Qual system to allow qualified voters to electronically

8 sign statewide initiative petitions this year. As detailed above, the E-Qual system is

9 currently available for federal, statewide, and legislative candidates to electronically collect

10 nomination petition signatures. Expanding E-Qual to allow for electronic signature

11 collection for statewide initiatives can be accomplished in approximately four weeks. Dul

12 Decl. at 4 ¶ 11. Because the E-Qual system interfaces with the statewide voter registration

13 database to verify voter identity and eligibility to sign a given petition, the system obviates

14 the need to manually verify the identity and registration status of those who sign an E-Qual

15 petition. Id. For these reasons, the Secretary does not oppose Plaintiffs’ requested relief.

16 II. 17 18

If the Court Grants Plaintiffs’ Request, the Secretary Requests Three Limitations to Limit Administrative Burden and Protect the Safety of the Secretary’s Staff.
While the Secretary does not oppose Plaintiffs’ request to be allowed to use E-Qual

19 to collect signatures for statewide initiatives in light of the extraordinary circumstances

20 created by the current public health emergency, the Secretary respectfully requests that, if

21 the Court were to order such relief, it impose three limitations to avoid imposing undue

22 administrative burden on the Secretary’s office and help protect the safety of the

23 Secretary’s staff. The Court has “broad latitude in fashioning equitable relief,” High Sierra

24 Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir 2004) (internal quotation marks

25 omitted), and can provide a remedy that is “no more burdensome to the [Secretary] than

26 necessary to provide complete relief to the plaintiffs before the court.” L.A. Haven

27 Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (internal quotation marks

28 omitted).

7

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1

Specifically, for the reasons detailed below, if the Court were to grant Plaintiffs’

2 requested relief, the Secretary requests that the Court’s order: (i) limit relief to those

3 initiatives that have already applied for a petition serial number as of the filing of this

4 lawsuit; (ii) require initiative committees to submit, upon the creation of their E-Qual

5 petition, all signatures collected on paper petition sheets up to that date, and allow those

6 committees one supplemental filing, including E-Qual and/or traditional signatures, by the

7 July 2, 2020 deadline; and (iii) specify whether the 5% sample of signatures required by

8 A.R.S. § 19-121.01(B) to be randomly drawn from all signatures submitted for a petition

9 should include E-Qual signatures or only those signatures submitted on a hard-copy

10 petition sheet.

11

A. Limiting Relief to Already-Active Initiative Measures.

12

While implementing the necessary technical functionality to make E-Qual available

13 to initiative measures would be a one-time requirement that is feasible, maintaining and

14 supporting a large number of individual E-Qual petitions for statewide initiative measures

15 could present significant workload and infrastructure challenges. Dul Decl. at 6 ¶ 15. The

16 number of signatures at issue for even a few statewide initiative measures could dwarf that

17 for all candidate petitions historically handled by the system by several orders of

18 magnitude. For example, in the 2020 candidate filing period that just ended, 226 candidates

19 filed nomination petitions with the Secretary’s office and qualified for the ballot. Id. Over

20 half of those candidates filed fewer than 1,000 signatures and, altogether, the 226

21 candidates filed approximately 338,000 signatures, only about 17% of which were E-Qual

22 signatures. Id. By comparison, a single statewide statutory initiative measure requires

23 237,645 signatures to qualify for the ballot; a constitutional measure requires 356,467

24 signatures. Id.

25

The Secretary anticipates needing to bring on additional webservers to support the

26 expanded workload, and the system would need to support additional workload for each

27 additional statewide measure that is allowed to collect signatures on E-Qual. Id. In

28 addition to the infrastructure demands, each additional statewide initiative with an E-Qual

8

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1 account will require staff time to on-board the new initiative committee and provide

2 troubleshooting and support as issues arise with specific petitions. Id. The more initiative

3 petitions there are with E-Qual accounts, the higher the demands for such support will be,

4 and the higher the burden for the Secretary’s staff. Id.

5

As a result, an order that the Secretary make E-Qual available to statewide initiative

6 measures should be limited to those initiative measures that have applied for a petition

7 serial number as of the filing of this lawsuit. Doing so would enable the Secretary to

8 develop and implement the necessary systems feasibly while limiting accommodation to a

9 discrete number of measures (encompassing each Plaintiff in this case) and avoiding the

10 administrative burden of onboarding and supporting currently unknown numbers of new

11 initiative measures. Such a limit would also ensure fairness by making relief available to

12 Plaintiffs and those committees that have been active in, and expended resources on,

13 collecting signatures and could not have anticipated or planned for the exigencies of the

14 COVID-19 pandemic.

15

B. Requiring Submission of Paper Petitions Upon Creating an E-Qual

Petition.

16 In addition, if the Court were to grant Plaintiffs’ requested relief, the Secretary

17 respectfully requests the Court also require initiative measures that wish to utilize the E-

18 Qual system to submit, upon their creation of their E-Qual petition, all signatures collected

19 on paper petitions up to that date, and allow those committees to submit one supplemental

20 filing, including E-Qual signatures and any additional traditional signatures gathered after

21 creation of the E-Qual petition, by the July 2, 2020 filing deadline. This would be

22 notwithstanding A.R.S § 19-121(B), which provides that an initiative petition is deemed

23 filed once petition sheets are tendered to the Secretary and may not thereafter be

24 supplemented with additional petition sheets.

25 Providing for such staggered submission, and having the final, supplemental filing

26 or the filing deadline (whichever is earlier) trigger the start of the 20-day period for the

27 Secretary to complete her processing duties, would enable the Secretary’s staff to process

28 the paper petition sheets in a manner that complies with current public health

9

Case 2:20-cv-00658-DWL Document 78 Filed 04/10/20 Page 10 of 13

Ballard Spahr LLP 1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555 Telephone: 602.798.5400

1 recommendations on social distancing and allow them to complete initial processing in a

2 timely manner despite reduced staffing in the office due to COVID-19. Indeed, in light of

3 public health directives and recommendations, most of the Secretary’s staff have been

4 transitioned to teleworking, particularly those most vulnerable or with caretaker or

5 childcare needs. Dul Decl. at 7 ¶ 17.

6

Once a statewide initiative proponent files its petition and the hundreds of thousands

7 of necessary signatures, the Secretary ordinarily would have only 20 days to process the

8 petition sheets and conduct the initial review required by Arizona law. A.R.S. § 19-

9 121.01(A). During this process, the Secretary’s staff must: receive the hard-copy petitions,

10 de-staple each petition sheet from the title and text of the measure, conduct an initial review

11 of petition sheets for deficiencies that disqualify an entire sheet, separate wholly

12 disqualified petition sheets from the sheets that need to be scanned into the petition review

13 software for review of individual signature lines, bates-number all sheets, and scan all

14 sheets into the system. Dul Decl. at 7 ¶ 18. These are all time- and labor-intensive tasks

15 that cannot be done remotely. Id. And this is all before each individual signature can be

16 reviewed through a petition review software. If all petition sheets were filed at once on or

17 near the July 2, 2020 deadline, the Secretary anticipates needing up to 60 staff, including

18 temporary staff, in the office at once—in close proximity to one another and contrary to

19 public health recommendations—to timely process the petitions within the statutory 20-

20 day period. Id.

21

C. Specifying Whether 5% Sample Shall Include E-Qual Petitions.

22

Finally, the Secretary notes that, following the 20-day initial review period for filed

23 initiative petitions, she must randomly select 5% of the total signatures for verification by

24 the County Recorders, who then have 15 days to verify the identity and eligibility of signers

25 in the samples they receive. A.R.S. §§ 19-121.01(B), 19-121.02(A). As discussed above,

26 the E-Qual system, by interfacing with the statewide voter registration database, verifies

27 the identity and eligibility of voters who sign an E-Qual petition, obviating the need to

28 verify those signatures again after the fact. Still, the Secretary takes no position on whether

10

Case 2:20-cv-00658-DWL Document 78 Filed 04/10/20 Page 11 of 13

Ballard Spahr LLP 1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555 Telephone: 602.798.5400

1 the 5% sample should be selected from all signatures (including those collected through E-

2 Qual) or only those collected through traditional paper means.

3

In any event, the Secretary asks that any order from this Court address how the

4 sample is to be taken to avoid any ambiguity or dispute on this matter in the future. Indeed,

5 County Recorders have already indicated differing views on this: the Pinal County

6 Recorder’s response suggests that E-Qual petitions need not be verified by the County

7 Recorder because the E-Qual system already verifies identity and eligibility to sign (Doc.

8 65), while the Maricopa County Recorder’s response suggests that it remains within the

9 province of County Recorders to verify E-Qual petition signatures (Doc. 62).

10

CONCLUSION

11

To protect public health while ensuring the continuity of democratic processes in

12 the face of the extraordinary circumstances created by COVID-19, the Secretary does not

13 oppose the narrow relief sought by Plaintiffs for this election year and can implement

14 necessary modifications to the E-Qual system if ordered by the Court. If the Court grants

15 the relief sought by Plaintiffs, however, the Secretary asks that the Order provide:

16

 That relief is available only to Plaintiffs and those initiative measures that

17

have already applied for a petition serial number by the filing of this lawsuit;

18

 That, notwithstanding A.R.S § 19-121(B), initiative measures electing to use

19

E-Qual must submit their paper signature sheets upon their creation of an E-

20

Qual petition, and may supplement their signatures once before the July 2,

21

2020 filing deadline, with the supplemental filing or the filing deadline

22

(whichever is earlier) triggering the 20-day period for the Secretary to

23

process the petition and submit a 5% random sample to the County Recorder

24

for verification; and

25

 Clarification whether the 5% sample required under A.R.S. § 19-121.01(B)

26

is to be randomly drawn from all signatures submitted for a petition

27

(including E-Qual signatures) or only those submitted on a paper signature

28

sheet.

11

Case 2:20-cv-00658-DWL Document 78 Filed 04/10/20 Page 12 of 13

Ballard Spahr LLP 1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555 Telephone: 602.798.5400

1

RESPECTFULLY SUBMITTED this 10th day of April, 2020.

2

BALLARD SPAHR LLP

3

By: /s/ Roy Herrera

Roy Herrera

4

Daniel A. Arellano

Jillian L. Andrews

5

1 East Washington Street, Suite 2300

Phoenix, AZ 85004-2555

6

Attorneys for Defendant Katie Hobbs,

Arizona Secretary of State

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Case 2:20-cv-00658-DWL Document 78 Filed 04/10/20 Page 13 of 13

Ballard Spahr LLP 1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555 Telephone: 602.798.5400

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 10th day of April, 2020, I electronically transmitted

3 the foregoing document to the U.S. District Court for the District of Arizona Clerk’s

Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 4 Filing to all CM/ECF registrants.

5

6 7 /s/ Javaughn Salas

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Case 2:20-cv-00658-DWL Document 79 Filed 04/12/20 Page 11 of 13

1 CERTIFICATE OF SERVICE
2

3

I hereby certify that on April 12, 2020 I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing, and transmitted a

4 copy to the follow parties via email.

5

6 Joseph Young

7 Deputy County Attorney Apache County Attorney’s Office

8 P.O. Box 637

9

St. Johns, AZ 85936 JYoung@Apachelaw.net

10 Attorney for Defendant Edison Wauneka, Apache County Recorder

11 Britt W. Hanson 12 Deputy County Attorney
Cochise County Attorney’s Office 13 bhanson@cochise.az.gov 14 Attorney for Defendant David W. Stevens, Cochise County Recorder

15 Rose M. Winkeler 16 Senior Civil Deputy
Coconino County Attorney’s Office 17 110 E. Cherry Ave.
18 Flagstaff, AZ 86001-4627 rwinkeler@coconino.az.gov
19 Attorney for Defendant Patty Hansen, Coconino County Recorder

20 Gila County Attorney’s Office

21 1400 E. Ash St.

22

Globe, AZ 85501 jdalton@gilacountyaz.gov

23 Attorney for Defendant Sadie Jo Bingham Gila County Recorder

24 Kenneth Angle
25 Graham County Attorney’s Office 800 Main St.
26 Safford, AZ 85546
27 jdalton@gilacountyaz.gov Attorney for Wendy John, Graham County Recorder
28

Case 2:20-cv-00658-DWL Document 79 Filed 04/12/20 Page 12 of 13

1 Greenlee County Attorney’s Office P.O. Box 1717
2 Clifton, AZ 85533

3 jford@co.greenlee.az.us Attorney for Defendant Sharie Milheiro Greenlee County Recorder
4

5 La Paz County Attorney’s Office 1316 S. Kofa Ave., Ste. 607
6 Parker, AZ 85344

7

rdooley@lapazcountyaz.org Attorney for Defendant Richard Garcia, La Paz County Recorder

8

9

Joseph LaRue Maricopa County Attorney’s Office

10 222 N. Central Ave., Suite 1100 Phoenix, AZ 85004
11 laruej@mcao.maricopa.gov

12 Attorney for Adrian Fontes, Maricopa County Recorder

13 Ryan Esplin
14 Mohave County Attorney's Office 928-75-0770
15 Ryan.Esplin@mohavecounty.us
16 Attorney for Defendant Kristi Blair, Mohave County Recorder

17 Jason S. Moore

18 Deputy County Attorney Navajo County Attorney’s Office

19 PO Box 668

20

Holbrook, AZ 86025-0668 Jason.moore@navajocountyaz.gov

21 Attorney for Doris Clark, Navajo County Recorder

22 Daniel Jurkowitz 23 Pima County Attorney’s Office
32 N. Stone Ave., #200 24 Tucson, AZ 85701 25 Daniel.jurkowitz@pcao.pima.gov
Attorney for Defendant F. Ann Rodriguez, Pima County Recorder 26
27 Craig Cameron Pinal County Attorney’s Office
28 PO Box 887

2

Case 2:20-cv-00658-DWL Document 79 Filed 04/12/20 Page 13 of 13

1 Florence, AZ 85132-0887 Craig.cameron@pinalcountyaz.gov
2 Attorney for Defendant Virginia Ross, Pinal County Recorder
3 George E. Silva
4 Santa Cruz County Attorney’s Office 5 2150 N. Congress Drive
Nogales, AZ 85621 6 gsilva@santacruzcountyaz.gov 7 Attorney for Defendant Suzanne Sainz, Santa Cruz County Recorder

8 Yavapai County Attorney’s Office

9

255 E. Gurley St. Prescott, AZ 86301

10 Thomas.Stoxen@yavapai.us

Attorney for Defendant Leslie M. Hoffman, Yavapai County Recorder 11

12 Yuma County Attorney’s Office 250 W. 2nd Street, St. G
13 Yuma, AZ 85364-2235
14 Bill.kerekes@yumacountyaz.gov Attorney for Defendant Robin S. Pouquette, Yuma County Recorder
15

16 Roy Herrera Daniel A. Arellano

17 Ballard Spahr LLP

18 1 East Washington Street, Suite 2300 Phoenix, AZ 85004-2555

19 602.798.5430

20

HerreraR@ballardspahr.com arellanod@ballardspahr.com

21 Attorneys for Defendant Katie Hobbs, Secretary of State

22

23

24

25 /s/ Monse Vejar
26

27

28

3

 
 Case 2:20-cv-00658-DWL Document 85 Filed 04/13/20 Page 1 of 2

1 GEORGE E. SILVA
SANTA CRUZ COUNTY ATTORNEY 2

GEORGE E. SILVA, SBA #019596, COUNTY ATTORNEY 3 KIMBERLY HUNLEY, SBA #019141, CHIEF CIVIL DEPUTY COUNTY ATTORNEY

4

Santa Cruz County Attorney’s Office 2150 North Congress Drive, Suite 201

5 Nogales, Arizona 85621 Tel: (520) 375-7780; Fax: (520) 375-7793

6 gsilva@santacruzcountyaz.gov khunley@santacruzcountyaz.gov

7 Attorneys for Defendant Suzanne Sainz

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF ARIZONA

10

11 Arizonans for Fair Elections, et. al.,

Case No. No. CV-20-00658-PHX-DWL

12

Plaintiffs,

13 v.

14 Katie Hobbs, et. al.
15

16

SANTA CRUZ COUNTY RECORDER’S JOINDER IN DEFENDANT MARICOPA COUNTY RECORDER ADRIAN FONTES’ RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
(Assigned to the Honorable Dominic W. Lanza)

17

Defendant, Suzanne Sainz, Santa Cruz County Recorder hereby joins in Defendant

18 Maricopa County Recorder Adrian Fontes’ Response to Plaintiffs’ Motion for Temporary

19 Restraining Order filed April 9, 2020.

20

RESPECTFULLY SUBMITTED this 13th day of April, 2020.

21 GEORGE E. SILVA

22

SANTA CRUZ COUNTY ATTORNEY

23

/s/ Kimberly J. Hunley

________________________________

24

Kimberly J. Hunley

Chief Civil Deputy County Attorney

25

1

26

Case 2:20-cv-00658-DWL Document 85 Filed 04/13/20 Page 2 of 2

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 13th day of April, 2020, I electronically transmitted the
3
4 foregoing document to the Clerk’s Office using the CM/ECF System for filing and transmittal
5 of a Notice of Electronic Filing to the CM/ECF registrants on record.

6

7

By: _/s/ Kimberly J. Hunley .

8

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26

 
 Case 2:20-cv-00658-DWL Document 100 Filed 04/17/20 Page 1 of 4

1 MARK BRNOVICH

ATTORNEY GENERAL 2 Drew C. Ensign (No. 25463)

Deputy Solicitor General 3 Robert J. Makar (No. 33579)

4

Jennifer J. Wright (No. 27145) Assistant Attorneys General

5

2005 N. Central Avenue Phoenix, Arizona 85004

6 Telephone: (602) 542-5025 Drew.Ensign@azag.gov

7

Attorneys for Intervenor8 Defendant State of Arizona

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11

Arizonans for Fair Elections, et al.,

12

Plaintiffs,

Case No: 2:20-cv-00658-DWL

13 vs.

14 Katie Hobbs, et al.,

15

Defendants,

STATE’S CONDITIONAL MOTION TO CERTIFY

16

and

17 State of Arizona,

18

Intervenor-Defendant.

19

20

21

22

23

24

25

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27

28

Case 2:20-cv-00658-DWL Document 100 Filed 04/17/20 Page 2 of 4

1

CONDITIONAL MOTION FOR CERTIFICATION

2

Intervenor-Defendant the State of Arizona (the “State”) hereby formalizes in

3 writing the oral, conditional request for certification that it made at the hearing on April

4 14. See 4/14/20 Tr. at 37:20-24. As explained in the State’s brief, Doc. 77 at 1-4, Article

5 IV, Part 1, Section 1(9) of the Arizona Constitution (hereinafter, “Article IV Presence

6 Requirement”) independently mandates in-person signature signing of initiative petitions

7 and Plaintiffs’ failure to challenge results in them lacking standing. Plaintiffs, for the

8 first time at oral argument, contended that they could overcome the Article IV Presence

9 Requirement through “substantial compliance.” See 4/14/20 Tr. at 11:2-17; 20:18-23.

10

That argument is plainly waived due to its omission in Plaintiffs’ motion and

11 eleventh-hour presentation at argument. See 4/14/20 Tr. at 37:1-4. If this Court

12 concludes otherwise, however, it may need to reach that important issue of state law—

13 assuming Plaintiffs’ request for a temporary restraining order and preliminary injunction

14 does not fail for the many independent reasons advanced by the State. Because one

15 cannot “substantially comply” with a requirement by obliterating it, it is at least a

16 reasonably debatable question of Arizona law whether Plaintiffs’ could obtain the relief

17 they seek without violating the Arizona Constitution. As such, this Court should certify

18 that question to the Arizona Supreme Court if that issue is dispositive. See, e.g.,

19 Arizonans for Official English v. Arizona, 520 U.S. 43, 75-79 (1997).

20

The State recognizes that the Arizona Supreme Court could not resolve that

21 question with sufficient speed to resolve Plaintiffs’ request for a temporary restraining

22 order. But the Arizona Supreme Court will be considering an identical issue in Arizonans

23 for Second Chances v. Hobbs, in which briefing is scheduled to be complete on April 24,

24 2020 and a decision is expected shortly thereafter. It is therefore likely that this Court

25 could receive an answer to a certified question with sufficient speed to adjudicate

26 Plaintiffs’ request for a preliminary injunction.

27

For similar reasons, the State also conditionally seeks certification for any issue of

28 severability—should it become relevant. Severability is a question of state law. See

1

Case 2:20-cv-00658-DWL Document 100 Filed 04/17/20 Page 3 of 4

1 Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (1985). And it is at least a

2 reasonably debatable issue whether the framers of the Arizona Constitution would have

3 permitted lawmaking by initiative in contexts where courts would not permit them to

4 insist upon in-person signing of initiative petitions—a constitutional requirement they

5 considered fundamentally important. See 4/14/20 Tr. at 45:7-21. Thus, if this Court were

6 to conclude that the Article IV Presence Requirement imposed a severe and

7 unconstitutional burden on Plaintiffs’ First and Fourteenth Amendment rights as applied,

8 this Court should certify the severability of the Article IV Presence Requirement from the

9 rest of Article IV to the Arizona Supreme Court as applied in this context.

10

CONCLUSION

11

For the foregoing reasons, this Court should certify the issues of Arizona law

12 indicated above to the Arizona Supreme Court if they are (1) not waived and (2)

13 necessary to resolve Plaintiffs’ request for a preliminary injunction. If this Court

14 concludes that the relevant arguments by Plaintiffs are waived or that Plaintiffs’ request

15 for preliminary injunctive relief fails on other grounds, however, there is no need to

16 certify any question of Arizona law and this conditional request can be denied as moot.

17

18 Respectfully submitted this 16th day of April, 2020.

19

MARK BRNOVICH

20

ATTORNEY GENERAL

21 By: s/ Drew C. Ensign

22

Drew C. Ensign (No. 25463)

23

Deputy Solicitor General Robert J. Makar (No. 33579)

24

Jennifer J. Wright (No. 27145)

Assistant Attorneys General 25

26

Attorneys for IntervenorDefendant State of Arizona

27

28

2

Case 2:20-cv-00658-DWL Document 100 Filed 04/17/20 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 16th day of April, 2020, I caused the foregoing

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

4 System for Filing, which will send notice of such filing to all registered CM/ECF users.

5

6 s/ Drew C. Ensign 7 Drew C. Ensign

8 Attorney for Intervenor-Defendant State of Arizona
9

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 Case 2:20-cv-00658-DWL Document 101 Filed 04/17/20 Page 1 of 6

1 Israel G. Torres (#020303) James E. Barton II (#023888)
2 Jacqueline Mendez Soto (#022597)
3 TORRES LAW GROUP, PLLC 2239 West Baseline Road
4 Tempe, Arizona 85283
5 (480) 588-6120 James@TheTorresFirm.com
6 Jacqueline@TheTorresFirm.com
7 Attorneys for Plaintiff

8

UNITED STATES DISTRICT COURT 9

10

FOR THE DISTRICT OF ARIZONA

11

12 Arizonans for Fair Elections (AZAN), et al;
13

14

Plaintiffs,

15

v.

16 Katie Hobbs, Arizona Secretary of State, et al,
17

18

Defendants.

Case No.: 2:20-cv-00658-DWL
PLAINTIFFS’ OPPOSITION TO THE STATE’S CONDITIONAL
MOTION TO CERTIFY

19 Plaintiffs oppose the Intervenor’s request that the Court certify questions
20
21 concerning the interpretation of Arizona’s Constitution to the Arizona Supreme Court.

22 The Plaintiffs have not challenged Article IV, Part 1, Section 1(9). The Court does not
23 need to rule on the application of this section to the E-Qual system. Intervenor and the
24 25 several Amici are wrong in claiming that it is necessary to challenge this section.

26

Intervenor is fully aware that but for recent changes to Arizona’s Title 19,

27 substantial compliance, not strict compliance, applies to the requirements for gathering 28

Case 2:20-cv-00658-DWL Document 101 Filed 04/17/20 Page 2 of 6

1 initiative signatures. “Accordingly, in the context of the formal requirements for

2 initiatives, substantial compliance means that the petition as circulated fulfills the purpose
3 of the relevant statutory or constitutional requirements, despite a lack of strict or technical
4
5 compliance.” Feldmeier v. Watson, 211 Ariz. 444, 447, ¶ 14, 123 P.3d 180, 183 (2005)

6 (gathering cases). The Arizona Constitution does not explicitly require in-person

7 signature gathering. Ariz. Const. art. IV, Pt. 1 § 1. Title 19, however, requires that 8 9 “[c]onstitutional and statutory requirements for statewide initiative measures must be

10 strictly construed and persons using the initiative process must strictly comply with those

11 constitutional and statutory requirements.” A.R.S. § 19-102.01(A). This statute was 12
enacted in 2017 to reverse the well-established case law of substantial compliance. 2017 13
14 Ariz. Legis. Serv. Ch. 151 (H.B. 2244).

15

The Court does not need to rule on the application of Arizona’s Constitution to E-

16 Qual to decide this case. Nor have Plaintiffs asked it to do so. The question need not be
17

18 certified to the Arizona Supreme Court. For these same reasons, the Court does not need

19 to address the State’s request for certification of its severability question.

20

For the foregoing reasons, Plaintiffs ask that this Court deny the State’s motion.

21

22

RESPECTFULLLY SUBMITTED this 17th day of April, 2020

23

/s/James E. Barton II

TORRES LAW GROUP, PLLC

24

James E. Barton II

25

Jacqueline Mendez Soto

Attorneys for Plaintiffs 26

27

28

2

Case 2:20-cv-00658-DWL Document 101 Filed 04/17/20 Page 3 of 6

1 CERTIFICATE OF SERVICE
2

3

I hereby certify that on April 17, 2020 I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing, and transmitted a

4 copy to the follow parties via email.

5 Roy Herrera
6 Daniel A. Arellano

7 Ballard Spahr LLP 1 East Washington Street, Suite 2300

8 Phoenix, Arizona 85004

9

(602) 798-5400 herrerar@ballardspahr.com

10 arellanod@ballardspahr.com

11

andrewsj@ballardsparh.com Attorneys for Katie Hobbs, Secretary of State

12

Joseph Young 13 Apache County Attorney’s Office

14 Post Office Box 637

St. Johns, Arizona 85936 15 (928) 337-7560

16 JYoung@Apachelaw.net Attorney for Defendant Edison Wauneka, Apache County Recorder
17

18 Britt W. Hanson Christine J. Roberts

19 Cochise County Attorney

20 Post Office Drawer CA Bisbee, Arizona 85603

21 (520) 432-8700

22

CVAttmeo@cochise.az.gov Bhanson@cochise.az.gov

23 Attorneys for Defendant David Stevens, Cochise County Recorder

24 Rose M. Winkeler
25 Coconino County Attorney 110 East Cherry Avenue
26 Flagstaff, Arizona 86001
27 (928) 679-8200 rwinkeler@coconino.az.gov
28 Attorney for Defendant Patty Hansen, Coconino County Recorder

Case 2:20-cv-00658-DWL Document 101 Filed 04/17/20 Page 4 of 6

1 Jeff Dalton
2 Gila County Attorney’s Office

3 1400 East Ash Street Globe, Arizona 85501
4 (928-402-8630

5 jdalton@gilacountyaz.gov Attorney for Sadie Jo Bingham Gila County Defendants

6

7

Kenneth Angle Graham County Attorney’s Office

8 800 West Main Street

9

Safford, Arizona 85546 (928) 428-3620

10 kangle@graham.az.gov

Attorney for Wendy John, Graham County Recorder 11

12 Jeremy Ford Greenlee County Attorney’s Office
13 Post Office Box 1717
14 Clifton, Arizona 85533 (928) 865-2072
15 jford@co.greenlee.az.us
16 Attorney for Sharie Milheiro, Greenlee County Recorder

17 Tony Rogers

18 La Paz County Attorney’s Office 1320 Kofa Avenue

19 Parker Arizona 85344

20

(928) 669-6118 trogers@lapazcountyaz.org

21 Attorney for Defendant Richard Garcia, La Paz County Recorder

22 Joseph E. La Rue
23 Joseph Branco Maricopa County Attorney’s Office
24 Civil Services Division
25 222 North Central Avenue, Suite 1100 Phoenix, Arizona 85004
26 (602) 506-8541
27 laruej@mcao.maricopa.gov branco@mcao.maricopa.gov
28 Attorneys for Adrian Fontes, Maricopa County Recorder

2

Case 2:20-cv-00658-DWL Document 101 Filed 04/17/20 Page 5 of 6

1 Jeffrey B. Haws
2 Mohave County Attorney’s Office 3 315 North 4th Street
Post Office Box 7000 4 Kingman, Arizona 86402
5 (928) 753-0770 Jeff.Haws@mohavecounty.us
6 Attorney for Defendant Kristi Blair, Mohave County Recorder

7 Brad Carlyon

8 Jason S. Moore

9

Navajo County Attorney’s Office Post Office Box 668

10 Holbrook, AZ 86025

(928) 524-4026 11 Jason.moore@navajocountyaz.gov

12 Attorneys for Doris Clark, Navajo County Recorder

13 Daniel Jurkowitz
14 Pima County Attorney’s Office, Civil Division 32 North Stonve Avenue, Suite 2100
15 Tucson, Arizona 85701
16 (520) 724-5700 Daniel.jurkowitz@pcao.pima.gov
17 Attorney for Defendant F. Ann Rodriguez, Pima County Recorder

18 Kent Volkmer

19 Craig Cameron

20

Pinal County Attorney Post Office Box 887

21 Florence, AZ 85132

22

(520) 866-6466 Craig.cameron@pinalcountyaz.gov

23 Attorneys for Defendant Virginia Ross, Pima County Recorder

24 Kimberly Hunley
25 Santa Cruz County Attorney’s Office 2150 North Congress Drive, #201
26 Nogales, Arizona 85621
27 (520) 375-7780 khunley@santacruzcountyaz.gov
28 Attorney for Defendant Suzanne Sainz, Santa Cruz County Recorder

3

Case 2:20-cv-00658-DWL Document 101 Filed 04/17/20 Page 6 of 6

1 Thomas M. Stoxen
2 Yavapai County Attorney’s Office

3 255 East Gurley Street Prescott, Arizona 86301
4 (928) 777-7143

5 Thomas.Stoxen@yavapai.us Attorney for Defendant Yavapai County Recorder
6

7

William J. Kerekes Office of the Yuma County Attorney

8 250 West Second Street, Suite G

9

Yuma, Arizona 85364 (928) 817-4300

10 YCAttyCivil@yumacountyaz.gov

Bill.Kerekes@yumacountyaz.gov 11 Attorney for Defendant Robyn Pouquette, Yuma County Recorder

12

13

/s/ Monse Vejar

14

15

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 Case 2:20-cv-00658-DWL Document 103 Filed 04/17/20 Page 1 of 30

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Arizonans for Fair Elections, et al.,

No. CV-20-00658-PHX-DWL

10

Plaintiffs,

ORDER

11 v.

12 Katie Hobbs, et al.,

13

Defendants.

14

15

INTRODUCTION

16

In Arizona, the people’s right to enact laws via the initiative process is sacrosanct.

17 This right has been enshrined in Arizona’s constitution since Arizona’s inception, and the

18 debate over whether to adopt it was the “burning” and “most important” question raised 19 during Arizona’s constitutional convention. Whitman v. Moore, 125 P.2d 445, 450 (Ariz. 20 1942).

21

The relevant provisions appear in Article IV of the Arizona constitution. Among

22 other things, Article IV provides that “the people reserve the power to propose laws and

23 amendments to the constitution and to enact or reject such laws and amendments at the

24 polls, independently of the legislature” and that “[u]nder this power ten per centum of the 25 qualified electors shall have the right to propose any measure.” See Ariz. Const., Art. IV, 26 Part 1, § 1(1), (2). Additionally, and most relevant here, Article IV contains detailed 27 requirements concerning the “[f]orm and contents of initiative and referendum petitions” 28 and “verification.” Id. §1(9). Those requirements include the following:

Case 2:20-cv-00658-DWL Document 103 Filed 04/17/20 Page 2 of 30

1

Every initiative or referendum petition . . . shall contain the declaration of

2

each petitioner, for himself, that he is a qualified elector . . . , his post office

address, the street and number, if any, of his residence, and the date on which

3

he signed such petition. Each sheet containing petitioners’ signatures shall

4

be attached to a full and correct copy of the title and text of the measure so proposed to be initiated or referred to the people, and every sheet of every

5

such petition containing signatures shall be verified by the affidavit of the

6

person who circulated said sheet or petition, setting forth that each of the names on said sheet was signed in the presence of the affiant and that in

7

the belief of the affiant each signer was a qualified elector . . . .

8 Id. (emphasis added). In other words, the rule in Arizona for over 100 years has been that

9 an initiative proponent must (1) submit a “sheet” containing the signatures of the qualified

10 electors who have agreed to support the initiative, and (2) submit an affidavit from the

11 signature gatherer (also known as the circulator) certifying that he or she was physically

12 present when each qualified elector’s signature was obtained.

13

Although these requirements arise from the constitution, the Arizona Legislature

14 has enacted statutes that reaffirm and effectuate them. Under A.R.S. § 19-112(A), “[e]very

15 qualified elector signing a petition shall do so in the presence of the person who is

16 circulating the petition and who is to execute the affidavit of verification.” Under A.R.S.

17 § 19-112(C), “[t]he person before whom the signatures, names and addresses were written

18 on the signature sheet”—that is, the circulator—“shall subscribe and swear before a notary

19 public that each of the names on the sheet was signed and the name and address were

20 printed by the elector and the circulator on the date indicated . . . .” Finally, under A.R.S.

21 § 19-121.01, the Arizona Secretary of State must disregard any signature sheets that aren’t

22 accompanied by the required circulator affidavit and disregard any entries on particular

23 sheets in which “the signature of the qualified elector is missing.” Id. § 19-

24 121.01(A)(1)(d), (A)(3)(a).

25

Enter the coronavirus. In this lawsuit, the plaintiffs—a pair of ballot measure

26 committees that hope to place initiatives on the ballot for the November 2020 election, plus

27 an individual Arizona voter who wishes to sign the committees’ initiative petitions

28 (collectively, “Plaintiffs”)—argue that the COVID-19 pandemic has effectively eliminated

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1 their ability to comply with Arizona’s rules requiring in-person signature gathering for

2 initiative petitions. Plaintiffs further note that Arizona has already created a system (known

3 as “E-Qual”) for obtaining electronic signatures from qualified electors and authorizes the

4 use of that system in one specific context—by candidates for statewide and legislative

5 offices who are gathering signatures for candidate nominating petitions. Thus, Plaintiffs

6 seek a declaration that “the provisions governing the signature-gathering requirements for

7 initiative measures under Title 19, Chapter 1 of the Arizona Revised Statutes, violate the

8 First and Fourteenth Amendments to the United States Constitution during the state of

9 emergency caused by the COVID-19 pandemic” as well as an injunction requiring the

10 Secretary of State “to allow the electronic submission of signatures through E-Qual . . .

11 during the state of emergency in Arizona caused by the COVID-19 pandemic” and

12 precluding Arizona’s various county recorders “from striking signatures based solely on

13 their submission in electronic form.” (Doc. 1 at 20-21.)

14

Now pending before the Court is Plaintiffs’ motion for temporary restraining order

15 (“TRO”), which essentially seeks the same injunctive relief sought in the complaint.

16 (Doc. 2.) As explained in more detail below, this motion will be denied and this action

17 will be dismissed due to a lack of jurisdiction.

18

First, Plaintiffs’ complaint and moving papers do not challenge Arizona’s

19 constitutional provisions governing the initiative process. Instead, Plaintiffs only seek to

20 challenge the Arizona statutes requiring in-person signature gathering. This approach

21 raises serious doubts about whether the requested relief would even redress Plaintiffs’

22 alleged injuries—as noted, the Arizona constitution has always required in-person

23 signature verification. During the TRO hearing, Plaintiffs attempted to belatedly address

24 this issue by arguing that the solicitation of electronic signatures through the E-Qual system

25 could be deemed “substantial compliance” with Article IV of the Arizona constitution. Not

26 only does this argument seem questionable, but Plaintiffs are effectively asking a federal

27 court to make a guess about an unsettled question of state law and then, based on that guess,

28 overturn a century-old state-law election rule. This outcome would be distressing from a

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1 federalism perspective and is precluded by both (1) the rule requiring a party invoking a

2 federal court’s subject matter jurisdiction to establish a likelihood of redressability, not the

3 mere possibility of redressability, and (2) the rule requiring a party seeking a TRO—which

4 is an extraordinary remedy never awarded as a matter of right—to clearly demonstrate that

5 the requested relief is necessary to avoid irreparable injury.

6

Second, Plaintiffs have not, in any event, demonstrated a likelihood of success or

7 even serious questions going to the merits of their First and Fourteenth Amendment-based

8 claims. This is not the first time a litigant has attempted to invoke those provisions to

9 challenge state laws governing the signature gathering process for initiative petitions.

10 Under Ninth Circuit law, such a challenger must show that the law creates a “severe

11 burden” on the ability to successfully place an initiative on the ballot, and burdensomeness

12 is gauged in part by assessing whether a “reasonably diligent” initiative committee could

13 have succeeded despite the law. Here, although it is undeniable that the COVID-19

14 pandemic is currently wreaking havoc on initiative committees’ ability to gather signatures,

15 it is undisputed that some Arizona initiative committees (including one of the committees

16 in this case) had gathered enough signatures to qualify before the pandemic took hold. It

17 is also undisputed that the two committees in this case didn’t start organizing and gathering

18 signatures until the second half of 2019, whereas some of their counterparts began

19 organizing as early as November 2018. Finally, although it is impossible to predict how

20 the pandemic will play out in the coming weeks and months, it is possible that conditions

21 will abate to the point that in-person signature gathering again becomes viable before the

22 July 2020 submission deadline for signatures. On this record, Plaintiffs have not

23 demonstrated that Arizona law creates a severe burden that would prevent a reasonably

24 diligent initiative committee from placing its proposed initiative on the ballot. And because

25 Plaintiffs failed to make this showing, the challenged laws are subject to a relaxed form of

26 scrutiny that is easily satisfied by Arizona’s interests in preventing fraud and promoting

27 political speech and civic engagement.

28

Third, in large part because of the considerations discussed above, the Court does

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1 not believe the issuance of a TRO would properly balance the equities or be in the public

2 interest. Although Plaintiffs are correct that the COVID-19 pandemic constitutes an

3 “extraordinary circumstance[]” that has resulted in “profound” dislocations (Doc. 2 at 10-

4 11), it is also a profound thing for a federal court to rewrite state election laws that have

5 been in place since the 1910s. The difficulty is underscored by the arguments made by

6 some of the defendants in this case who don’t oppose the relief sought by Plaintiffs. Those

7 state and local officials have identified an array of granular policy choices this Court would

8 need to make in order to effectively implement that relief. Such an approach would raise

9 significant separation of powers and federalism concerns and run afoul of the Ninth

10 Circuit’s exhortation that, “[w]hile we are mindful that federal courts have a duty to ensure

11 that national, state and local elections conform to constitutional standards, we undertake

12 that duty with a clear-eyed and pragmatic sense of the special dangers of excessive judicial

13 interference with the electoral process.” Soules v. Kauaians for Nukoli Campaign Comm.,

14 849 F.2d 1176, 1182-83 (9th Cir. 1988).

15

BACKGROUND

16 A. The Parties

17

The three Plaintiffs in this action are (1) Arizonans for Fair Elections (AZAN)

18 (“AFE”), a non-profit corporation that was formed to promote a ballot initiative known as

19 the Fair Elections Act, (2) Arizonans Fed Up with Failing Healthcare (Healthcare Rising)

20 (“HRAZ”), a non-profit corporation that was formed to promote a ballot initiative known

21 as the Stop Surprise Billing and Protect Patients Act, and (3) Randi Turk, “a qualified

22 elector within the State of Arizona who would like to sign the petitions supported by the

23 Committee Plaintiffs but has not yet done so.” (Doc. 1 ¶¶ 3-5.)

24

The defendants named in the complaint are Katie Hobbs, Arizona’s Secretary of

25 State (“the Secretary), and the county recorders from Arizona’s 15 counties. (Doc. 1 ¶¶ 6-

26 7.) However, after the Secretary made public statements suggesting she would not oppose

27 Plaintiffs’ requests, the state of Arizona (“the State”), represented by the Arizona Attorney

28 General, moved to intervene. (Doc. 46.) That motion was granted over Plaintiffs’

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1 opposition. (Docs. 59, 61.)1

2 B. Procedural History

3

On April 2, 2020, Plaintiffs filed their complaint and motion for a TRO. (Docs. 1,

4 2.) In support of their motion, Plaintiffs filed declarations from four individuals: (1)

5 Anabel Maldonado, a campaign manager for AFE (Doc. 3); (2) Jessica Grennan, a

6 campaign manager for HRAZ (Doc. 4); (3) Randi Turk, the individual Plaintiff (Doc. 5);

7 and (4) Christopher Gallaway, an employee of a company that “provides campaign-related

8 services to clients seeking to place initiatives on the ballot for voting by the electorate”

9 (Doc. 79).

10

That same day, four different initiative committees filed a corrected petition for

11 special action in the Arizona Supreme Court that raises claims and requests similar to those

12 presented here. See Arizonans for Second Chances Rehabilitation & Safety et al. v. Hobbs,

13 No. CV-20-0098-SA.2

14

On April 10, 2020, the State filed a corrected response to the TRO motion. (Doc.

15 77.) In support of the response, the State provided an affidavit that had been filed by one

16 of the plaintiff-committees in the state-court action. (Doc. 77-1 at 3-8.)

17

Between April 7-13, 2020, some of the officials named as defendants in the

18 complaint also filed responses to Plaintiffs’ motion. In a nutshell, the county recorders

19 from Pinal and Navajo Counties oppose the TRO request (Docs. 65, 72), the county

20 recorder from Pima County “agrees with Plaintiffs that electronic signature gathering for

21 initiative petitions should be temporarily allowed during the pendency of COVID-19

22 restrictions” (Doc. 53), the Secretary likewise “does not oppose the narrow relief sought

23 by Plaintiffs for this election year,” and “[i]ndeed . . . believes that such relief would further

24

25 1

The Speaker of the Arizona House of Representatives and the President of the

Arizona Senate also moved to intervene (Doc. 60) but their request was denied (Doc. 75).

26 2 The State has also intervened in the state-court action, the Supreme Court has issued

a schedule that calls for briefing to be completed by April 27, 2020, and the Supreme Court 27 has announced no oral argument will be held. The docket is available at 28 https://apps.supremecourt.az.gov/aacc/appella/ASC/CV/CV200098.pdf.

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1 the public interest by protecting public health while facilitating continuity of democratic

2 processes,” but “requests that the Court place certain limitations on the relief to minimize

3 administrative burden under the current circumstances” (Doc. 78), and the county recorders

4 from Maricopa, Yuma, Mohave, and Santa Cruz Counties “take no position” on the merits

5 of Plaintiffs’ request (Docs. 62, 67, 73, 85).

6

Additionally, between April 10-14, 2020, the Court authorized the filing of amicus

7 briefs by the Arizona Republican Party (Doc. 86), the Arizona Free Enterprise Club (Doc.

8 87), and the Goldwater Institute (Doc. 92).

9

On April 14, 2020, the Court held a telephonic hearing on the motion for a TRO.

10 (Docs. 90, 102.) The bulk of the argument was provided by counsel for Plaintiffs and the

11 State, and counsel for the Secretary and the Maricopa County recorder also provided

12 remarks. (Id.) Media organizations and members of the public were allowed to listen to

13 the hearing telephonically. (Doc. 68.)

14

On April 16, 2020, the State conditionally moved to certify certain questions to the

15 Arizona Supreme Court. (Docs. 99, 100.) Specifically, the State requested that, if the

16 Court determined this case turned on whether signatures gathered through E-Qual would

17 “substantially comply” with the Arizona constitution, the Court certify that issue to the

18 Arizona Supreme Court. (Doc. 100 at 2.) The State further requested that, if the Court

19 found that certain provisions of the Arizona constitution violated the First and Fourteenth

20 Amendments, it certify the question of whether those provisions could be severed from the

21 rest of the constitution. (Id. at 2-3.) Plaintiffs oppose the certification request, arguing that

22 both questions are unnecessary to resolve their motion. (Doc. 101).

23

ANALYSIS

24 I. Standing

25

The State asserts that Plaintiffs lack standing to pursue this action. (Doc. 77 at 3-

26 4.) Specifically, the State argues that Plaintiffs have only sought to enjoin the statutory

27 provisions in Title 19 governing signature collection but have not challenged the provisions

28 of Article IV of the Arizona constitution that, by and large, impose the same requirements.

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1 (Id.) In the State’s view, this creates a standing problem—even if Plaintiffs succeed in

2 arguing that Title 19 is unconstitutional, the Arizona constitution would stand and

3 Plaintiffs’ injury would not be redressed. (Id.)3 During oral argument, Plaintiffs responded

4 by acknowledging that they are not challenging Article IV of the Arizona constitution but

5 arguing that the requested relief would still redress their injury because, once Title 19’s

6 requirements are stripped away, the Arizona courts would be free to conclude that

7 gathering electronic signatures via E-Qual during a pandemic qualifies as “substantial

8 compliance” with Article IV’s requirements.

9

Plaintiffs’ arguments are unavailing. “A litigant must demonstrate . . . a substantial

10 likelihood that the judicial relief requested will prevent or redress the claimed injury to

11 satisfy the ‘case or controversy’ requirement.” Duke Power Co. v. Carolina Env’t Study

12 Grp., Inc., 438 U.S. 59, 79 (1978). Thus, “[t]o establish redressability, a plaintiff must

13 show that it is ‘likely, as opposed to merely speculative, that the injury will be redressed

14 by a favorable decision.’” M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018) (quoting

15 Lujan v. Defs. Of Wildlife, 504 U.S. 555, 561 (1992)). Here, it is entirely speculative that

16 Arizona courts would conclude that gathering electronic signatures through the E-Qual

17 system constitutes “substantial compliance” with Article IV’s requirements.

18

As an initial matter, it is not entirely clear that Arizona courts would apply a

19 “substantial compliance” standard in this context. It’s true that Arizona courts have

20 frequently stated that “[w]hen considering challenges to the form of initiative petitions,

21 Arizona courts follow a rule of substantial compliance.” Wilhelm v. Brewer, 192 P.3d 404,

22 405 (Ariz. 2008). The origin of this standard dates back to 1914, when the Arizona

23 Supreme Court decided Arizona v. Osborn, 143 P. 117 (Ariz. 1914). The plaintiffs in that

24 case sought to prevent an initiative from being placed on the ballot by invoking a statute

25

26 3

Several amici make variants of the same argument. (Doc. 87 at 2 [“The elephant in

the room is the Plaintiffs’ failure to discuss the Arizona Constitution, and . . . the E-Qual

27 system . . . cannot be instituted in a manner that is in compliance with the Arizona Constitution’s provisions on the right to initiative itself.”]; Doc. 92 at 5 [“[T]he relief

28 Plaintiffs request would violate the Arizona Constitution, which expressly requires inperson signature gathering for initiatives.”].)

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1 that authorized courts to enjoin the secretary of state from certifying an initiative “[o]n a

2 showing that any petition is not legally sufficient.” Id. at 117. In addressing whether the

3 challenged petition was “legally sufficient,” the court examined the statutory law of states

4 with similar initiative procedures and concluded that the words “legally sufficient” in the

5 statute indicated “the Legislature meant to describe a valid petition, signed by legal voters,

6 and complying substantially, not necessarily technically, with the requirements of the law.”

7 Id. at 118 (quoting Oregon v. Olcott, 125 P. 303, 304 (Ore. 1912)).

8

Osborn has served as the foundation for the Arizona courts’ subsequent application

9 of the “substantial compliance” standard. Kromko v. Superior Court, 811 P.2d 12, 19

10 (Ariz. 1991) (“The term ‘legal sufficiency, as used [in a statute], requires substantial, not

11 necessarily technical, compliance with the requirements of the law.”) (quoting Osborn);

12 Feldmeier v. Watson, 123 P.3d 180, 183 (Ariz. 2005) (citing Kromko); Wilhelm, 192 P.3d

13 at 405 (citing Feldmeier). However, it appears that no case applying that standard

14 expressly rooted it in the Arizona Constitution. Some, like Osborn, instead focused on

15 statutory interpretation. Kromko, 811 P.2d at 19. Thus, whether substantial compliance

16 survives as the applicable standard may be called into question by the Arizona Legislature’s

17 enactment in 2017 of A.R.S. § 19-102.01, which requires strict compliance with statutory

18 and constitutional requirements. It is notable that the Arizona Supreme Court has, thus far,

19 avoided answering that question. Stanwitz v. Reagan, 429 P.3d 1138, 1142 (Ariz. 2018)

20 (“As our decision does not turn on whether the Committee strictly complied with § 19-

21 118(C), we need not determine the constitutionality of the strict compliance requirement

22 of § 19-102.01(A).”). See also Morales v. Archibald, 439 P.3d 1179, 1181 (Ariz. 2019).

23

But even assuming that “substantial compliance” survives as the applicable standard

24 in Arizona, it is entirely speculative that the Arizona courts would deem the gathering of

25 electronic signatures via E-Qual to be substantially compliant with Article IV’s

26 requirements. Again, the text of Article IV requires an initiative proponent to submit an

27 “affidavit of the person who circulated said sheet or petition, setting forth that each of the

28 names on said sheet was signed in the presence of the affiant . . . .” Ariz. Const., Art. IV,

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1 Part 1, § 1(9). The Arizona courts have repeatedly commented upon the importance and

2 significance of this physical-presence requirement. See, e.g., Stanwitz, 429 P.3d at 1143

3 (“[W]e note that the Arizona Constitution specifically envisions a signature verification

4 requirement . . . and this Court has observed that ‘[t]he circulator is the only person in the

5 process who is required to make a sworn statement and is, therefore, the person under the

6 greatest compulsion to lend credibility to the process.’”) (citation omitted). Thus, even

7 though the “substantial compliance” standard allows Arizona courts to overlook

8 “technical” errors and “errors in petition formalities” if they do not undermine “the

9 purposes of the relevant statutory or constitutional requirements,” Wilhelm, 192 P.3d at

10 405, it is difficult to see how non-compliance with the physical-presence requirement could

11 be disregarded under these standards. Cf. Porter v. McCuen, 839 S.W.2d 521, 523 (Ark.

12 1992) (rejecting request “not to impose too rigid a standard of compliance with the

13 requirement that signatures be obtained ‘in the presence’ of the person circulating the

14 petition” and concluding “that where the signatures are gathered in areas and places while

15 the canvasser is neither physically or proximately present . . . substantial compliance is

16 lacking”).

17

One final point is worth emphasizing. Whether the use of E-Qual could be deemed

18 substantially compliant with Article IV’s requirements is a pure question of state law. It is

19 also a question the Arizona Supreme Court may be asked to decide in the coming weeks in

20 the parallel lawsuit noted above.4 These circumstances amplify the federalism concerns

21 4 Although two amici suggest the Court should abstain from hearing this case under

22

the Pullman abstention doctrine (Doc.86 at 7-8; Doc. 92 at 7), Plaintiffs and the State both asserted during oral argument that Pullman abstention is unwarranted. The Court agrees.

23

“Pullman abstention is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy that is properly before it,” Porter v. Jones, 319 F.3d 483,

24

492 (9th Cir. 2003) (citation omitted), and the Ninth Circuit has emphasized that Pullman abstention is particularly inappropriate in cases—like this case—involving First

25

Amendment challenges. Chula Vista Citizens for Jobs & Fair Competition v. Norris, 782 F.3d 520, 528 (9th Cir. 2015) (“It is rarely appropriate for a federal court to abstain under

26

Pullman in a First Amendment case.”) (citation omitted). Additionally, although it might theoretically be possible to certify the “substantial compliance” question to the Arizona

27

Supreme Court, see generally Doyle v. City of Medford, 565 F.3d 536, 543 (9th Cir. 2009) (“[W]e could simply abstain from deciding this case under the Pullman doctrine . . . [but]

28

certification is appropriate in Pullman-type abstention cases . . . .”), there is no need to pursue certification here because the unsettled nature of the question alone is enough to

prevent Plaintiffs from meeting their burden of establishing a likelihood of redressability

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1 that would flow from ruling in Plaintiffs’ favor on a TRO request. Cf. M.S., 902 F.3d at

2 1090 (acknowledging that “[t]he interaction between the federalism limits on a district

3 court’s remedial power . . . and a district court’s power in general to order prospective relief

4 against state executive officials . . . remains an open and contentious area of the law” but

5 concluding that “where, as here, a plaintiff sues state officials seeking intrusive affirmative

6 relief that is incompatible with democratic principles and where there is no basis for the

7 district court to invoke its equitable power, such relief would also violate principles of

8 federalism”).

9 II. Merits

10

Plaintiffs’ failure to establish redressability means this action must be dismissed due

11 to a lack of subject matter jurisdiction—an outcome that, in turn, means Plaintiffs’ TRO

12 request must be denied as moot. See, e.g., Appalachian Voices v. Bodman, 587 F. Supp.

13 2d 79, 83 (D.D.C. 2008) (“[B]ecause the court determines that the plaintiffs lack standing,

14 the court . . . denies as moot the plaintiffs’ motion for a preliminary injunction.”).

15 Nevertheless, to provide a complete record in the event of appellate review, the Court will

16 proceed to analyze the merits of the TRO request.

17

“A preliminary injunction is an extraordinary and drastic remedy, one that should

18 not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

19 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quotation omitted). See also Winter

20 v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an

21 extraordinary remedy never awarded as of right.”). A plaintiff seeking a preliminary

22 injunction must show that (1) he is likely to succeed on the merits, (2) he is likely to suffer

23 irreparable harm without an injunction, (3) the balance of equities tips in his favor, and (4)

24 an injunction is in the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only

25 26 and, relatedly, a likelihood that the requested relief is necessary to avoid irreparable harm.
Indeed, the parties have not identified any precedent supporting the issuance of a certified 27 question in the middle of a TRO proceeding and such an approach would seem self-
defeating—the whole point of a TRO is that the plaintiff needs immediate relief. That is 28 why the law places such a heavy burden on the party seeking a TRO and authorizes the
issuance of a TRO only in cases presenting a clear entitlement to relief.

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1 show that there are ‘serious questions going to the merits’—a lesser showing than

2 likelihood of success on the merits—then a preliminary injunction may still issue if the

3 balance of hardships tips sharply in the plaintiff’s favor, and the other two Winter factors

4 are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)

5 (quotation omitted). Under this serious-questions variant of the Winter test, “[t]he elements

6 . . . must be balanced, so that a stronger showing of one element may offset a weaker

7 showing of another.” Lopez, 680 F.3d at 1072.

8

Regardless of which standard applies, the movant “carries the burden of proof on

9 each element of the test.” Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016,

10 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a

11 mandatory preliminary injunction, which should not be granted “unless the facts and law

12 clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th

13 Cir. 1986). A court should not issue such an injunction “unless extreme or very serious

14 damage will result.” Marlyn Nutraceuticals v. Mucos Pharma Gmbh & Co., 571 F.3d 873,

15 878-89 (9th Cir. 2009). They “are not issued in doubtful cases.” Id.

16

A. Likelihood of Success

17

1. Appropriate Standard

18

It is necessary to begin by identifying the correct test governing Plaintiffs’ claims.

19 The State argues, and Plaintiffs seem to agree, that the Anderson/Burdick framework

20 supplies the relevant test.5 That framework is a flexible approach that balances the severity

21 of the restriction against the government’s purported interest. Dudum v. Arntz, 640 F.3d

22 1098, 1105-1106 (9th Cir. 2011). Severe restrictions trigger strict scrutiny, but less-than-

23 severe restrictions only require the government to demonstrate “important regulatory

24 interests.” Id.

25

The State cites Dudum as establishing that “all constitutional challenges to election

26 regulations are governed by” the Anderson/Burdick framework. (Doc. 74 at 8.) Dudum,

27

28 5

This framework draws its name from Anderson v. Celebreeze, 460 U.S. 780 (1983),

and Burdick v. Takushi, 504 U.S. 428 (1992).

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1 however, focused specifically on “[r]estrictions on voting,” 640 F.3d at 1105,6 and the

2 Ninth Circuit has suggested in subsequent decisions that ballot access regulations (and, in

3 particular, regulations governing the signature gathering process for initiative petitions)

4 raise unique issues that aren’t present in pure voting restriction cases. Angle v. Miller, 673

5 F.3d 1122, 1130 (9th Cir. 2012) (“Although . . . a district-by-district system of counting

6 votes in a statewide election would violate equal protection, . . . district-by-district counting

7 of signatures obtained to qualify an initiative for the ballot [does not] present[] the same

8 problem. Votes and petition signatures are similar in some respects, but ballot access

9 requirements and elections serve different purposes.”) (citations omitted). Thus, before

10 turning to the parties’ specific arguments, it is helpful to begin by summarizing the two

11 most analogous Ninth Circuit decisions involving challenges to state laws governing the

12 signature gathering process for initiative petitions.

13

First, Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006), involved a challenge to an

14 Oregon law that “prohibit[ed] . . . payment to electoral petition signature gatherers on

15 a . . . per signature basis.” Id. at 951. The plaintiffs argued this law violated the First

16 Amendment but the district court rejected their challenge and the Ninth Circuit affirmed.

17 Id. The court began by noting that, although “the circulation of initiative and referendum

18 petitions involves core political speech,” state regulation in this area is “inevitabl[e]” and

19 “States allowing ballot initiatives have considerable leeway to protect the integrity and

20 reliability of the initiative process.” Id. at 961 (citations and internal quotation marks

21 omitted). Thus, the court held that the plaintiffs’ First Amendment challenge was governed

22 by the same general test later articulated in Dudum: severely burdensome regulations must

23 pass strict scrutiny, but less burdensome regulations trigger less exacting review. Id. As

24 for the first part of this test—whether the law created a “‘Severe’ or ‘Lesser’ Burden”—

25 the court concluded it created a lesser burden because, among other things, (1) the

26 6

Specifically, Dudum involved a challenge to San Francisco’s practice, following the

27 its adoption of the instant runoff voting method, to restrict the number of rankings on each ballot to three. 640 F.3d at 1100-02. The Dudum plaintiffs argued this limitation was

28 unconstitutional because it had the practical effect of disenfranchising certain voters and/or diluting certain votes. Id. at 1107-14.

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1 declarations proffered by the plaintiffs to illustrate the supposed difficulty of gathering

2 signatures under the law were based on “unsupported speculation” (id. at 964-65), and (2)

3 at least one referendum petition qualified for the ballot after the enactment of the law and

4 it had a relatively low signature error rate (id. at 966-67). This finding, in turn, meant that

5 the challenged law was only subject to “less exacting review,” and the court concluded that

6 Oregon’s “important regulatory interest in preventing fraud and its appearances in its

7 electoral processes” was sufficient to insulate the law from constitutional challenge. Id. at

8 969-71.7

9

Next, Angle involved a challenge to a Nevada law that required the proponents of a

10 ballot initiative to obtain signatures from at least 10% of the registered voters in each of

11 Nevada’s congressional districts. 673 F.3d at 1126-27. The plaintiffs argued this law

12 violated the First Amendment but the district court rejected this claim and the Ninth Circuit

13 affirmed.8 Id. at 1127. The court analyzed the claim under the same test it had applied in

14 Prete—that is, an initial assessment of whether the regulation resulted in a “severe

15 burden[]” on the plaintiffs’ First Amendment rights, then the application of either strict

16 scrutiny or “less exacting review” depending on the outcome of that assessment. Id. at

17 1132.

18

During the first step of that analysis, the court noted that “restrictions on the

19 initiative process” have the potential to create two different types of First Amendment

20 burdens: first, they can “restrict one-on-one communication between petition circulators

21 and voters,” and second, they “can make it less likely that proponents will be able to garner

22 the signatures necessary to place an initiative on the ballot, thus limiting their ability to

23 make the matter the focus of statewide discussion.” Id. (citations and internal quotation

24 7 The Prete court also noted that Oregon law (like Arizona law) requires that

25

“[p]etition circulators must certify that the signatures on the petitions were obtained in the presence of the circulator . . . .” Id. at 969 n.26.

26 8

The plaintiffs in Angle also raised an unsuccessful equal protection challenge to the

Nevada law, id. at 1127-32, but it is unnecessary to summarize the Ninth Circuit’s equal

27 protection analysis because this case does not involve an equal protection challenge. The absence of an equal protection claim also distinguishes this case from Idaho Coal. United

28 for Bears v. Cenarrusa, 342 F.3d 1073 (9th Cir. 2003), which invalidated an Idaho law governing the signature requirements for initiative petitions on equal protection grounds.

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1 marks omitted). The court concluded the first category was inapplicable because the

2 challenged Nevada law “does not restrict one-on-one communication between petition

3 circulators and votes” and indeed “likely increases the total quantum of speech on public

4 issues, by requiring initiative proponents to carry their messages to voters in different parts

5 of the state.” Id. at 1132-33 (citation and internal quotation marks omitted). As for the

6 second category, the court stated that the test was whether a “reasonably diligent” initiative

7 campaign could have secured a place on the ballot despite the challenged regulation. Id.

8 at 1133 (citing Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008)). Although the plaintiffs

9 had submitted declarations asserting that the regulation would inhibit their ability to place

10 initiatives on the ballot, the court concluded these affidavits were “too vague, conclusory

11 and speculative” and also noted that the plaintiffs had failed to present evidence that “other

12 initiative proponents have been unable to qualify initiatives for the ballot as a result of the

13 [challenged law].” Id. at 1133-34. Given this backdrop, the court applied less exacting

14 scrutiny and concluded the law passed constitutional muster because it was supported by

15 important regulatory interests—Nevada’s interests in ensuring state-wide support for

16 initiatives and avoiding voter confusion. Id. at 1134-36.

17

In sum, under Prete and Angle, Plaintiffs bear the initial burden of showing that the

18 challenged provisions of Title 19 impose a severe burden on their First Amendment rights.

19 Such a burden may take the form of an impediment on their ability to engage in one-on-

20 one communication or a limitation on their ability to actually earn a place on the ballot. If

21 Plaintiffs demonstrate the existence of severe burden, strict scrutiny applies, but if not, a

22 relaxed degree of scrutiny applies. See also Ariz. Green Party v. Reagan, 838 F.3d 983,

23 985 (9th Cir. 2016) (“Ballot access litigation follows a common pattern. The scrutiny

24 courts employ . . . turns on the severity the law imposes on . . . First and Fourteenth

25 Amendment rights. The plaintiff bears the burden of showing the severity of the burden

26 on those constitutional rights; evidence that the burden is severe, de minimis, or something

27 in between, sets the stage for the analysis by determining how compelling the state’s

28 interest must be to justify the law in question.”); id. at 988 (“This is a sliding scale test,

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1 where the more severe the burden, the more compelling the state’s interest must be, such

2 that a state may justify election regulations imposing a lesser burden by demonstrating that

3 the state has important regulatory interests.”) (quotation omitted).9

4

2. Whether The Burden Is Severe

5

As noted, initiative-related regulations can create two different types of First

6 Amendment harms: (1) they can inhibit one-on-one communication with voters, and/or (2)

7 they can interfere with the proponents’ ability to secure a place on the ballot. Although

8 Plaintiffs focus primarily on the second type of harm in their complaint and moving

9 papers,10 some portions of the complaint can be interpreted as alleging the first type of

10 harm. (See, e.g., Doc. 1 ¶¶ 85-87 [arguing that “[t]he First Amendment is at the core of

11 petition circulation . . . because it involves interactive communication concerning political

12 change,” that such “advancement of beliefs and ideas[] is an inseparable aspect of the

13 liberty assured by the Due Process Clause of the Fourteenth Amendment,” and that “[t]he

14 Secretary’s strict enforcement of A.R.S. § 19-112 . . . unduly burdens the public’s right to

15 engage in political speech during the COVID-19 pandemic”).

16

To the extent Plaintiffs intended to allege the first type of harm, their claim is

17 unavailing. The in-person signature requirements of Title 19 affirmatively promote speech.

18 See, e.g., Angle, 673 F.3d at 1132-33 (stating that Nevada’s signature requirements “likely

19 increase[d] the total quantum of speech on public issues, by requiring initiative proponents

20 to carry their messages to voters in different parts of the state”). To the extent Plaintiffs

21 aren’t currently able to engage in face-to-face interaction with qualified electors, that’s the

22 fault of the COVID-19 pandemic, not the Title 19 requirements. It’s only when a state law

23 bars certain individuals from serving as petition circulators that the first category of First

24 Amendment harm might arise. Compare Meyer v. Grant, 486 U.S. 414, 422-23 (1986)

25 9 In any event, the level of review is something more than rational basis. Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1025 (9th Cir. 2016) (en banc).
26 10 See, e.g., Doc. 1 ¶ 78 (“Absent injunctive relief, Plaintiff[s] will suffer irreparable 27 injury . . . [because] it is impossible for Plaintiffs [to] obtain signatures during the pandemic
to qualify their measure for the ballot.”); Doc. 2 at 14 (“The injury to the Plaintiffs is the 28 Plaintiffs not being able to obtain the required number of signatures by the July 2, 2020
deadline . . . .”).

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1 (holding that a Colorado law was unconstitutional in part because “it limits the number of

2 voices who will convey appellees’ message and the hours they can speak”).

3

Plaintiffs’ arguments concerning the second category of harm present a closer call.

4 Plaintiffs contend they were forced to stop collecting signatures in mid-March 2020 due to

5 the outbreak of the pandemic. At the time of cessation, AFE had collected 110,033

6 signatures (Doc. 3 ¶ 29) and HRAZ had collected 273,786 signatures (Doc. 4 ¶ 17). During

7 this election cycle, Arizona law requires at least 237,645 valid signatures—meaning that

8 HRAZ has already collected more than the minimum number—but Plaintiffs have

9 submitted a declaration from Christopher Gallaway, their professional organizer, who

10 avers that, “[i]n my experience, ballot initiative committees should obtain one and a half

11 to two times the number of required signatures to account for signature sheets that may be

12 eliminated and signatures that may be stricken for deficiencies. In this case, it means that

13 [Plaintiffs] should obtain between 356,468 to 475,290 signatures.” (Doc. 79 ¶ 27.) Mr.

14 Gallaway also states in his declaration that, but for the COVID-19 outbreak, his firm “could

15 have gathered an average of 160,000 signatures per initiative campaign” during the period

16 between March 11, 2020 and April 30, 2020, which is period of time during which

17 government entities have ordered or recommended social distancing. (Id. ¶ 47.) Finally,

18 Plaintiffs and Mr. Gallaway all state in their respective declarations that it is impossible as

19 a practical matter to gather any new signatures while the various government orders remain

20 in effect. (Doc. 3 ¶¶ 31-33; Doc. 4 ¶¶ 19-25; Doc. 79 ¶¶ 35-46.)

21

In response, the State offers four reasons why the burdens on Plaintiffs arising from

22 Title 19’s signature-gathering requirements shouldn’t be considered severe. (Doc. 77 at 5-

23 9.) Three of those arguments are unpersuasive. First, the State argues that Plaintiffs

24 haven’t really shown that it’s impractical to keep gathering in-person signatures in the

25 present environment because “[n]one of the Plaintiffs[’] declarants appear to consider

26 genuinely measures such as using single-use signature sheets, social distancing, or

27 scheduling petition signing in advance at prepared and sanitary locations. Perhaps those

28 measures would be sufficient. Perhaps not. But Plaintiffs bear the burden of proof, and

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1 their declarations are simply too thin a reed to satisfy it.” (Id. at 6.) The Court appreciates

2 the State’s emphasis on the burden of proof, but Plaintiffs’ averments on this point are

3 compelling and consistent with common sense. The fact the TRO hearing was held

4 telephonically, pursuant to a recent General Order postponing most court hearings in the

5 District of Arizona and requiring that all others be held “in the safest manner possible” and

6 “scheduled and conducted by video teleconference or telephone to the extent possible” (D.

7 Ariz. G.O. 20-17), underscores this point.

8

Second, the State contends that, because the challenged Title 19 requirements “are

9 viewpoint-neutral and even handed[,] applying to all initiatives regardless of their subject

10 matter or position,” this viewpoint neutrality “militates against finding a severe burden.”

11 (Doc. 77 at 8.) The problem with this argument is that it conflates First Amendment

12 principles that apply in other contexts with the specific inquiry required under Angle—

13 whether the burden created by the challenged regulation should be considered “severe”

14 because it “make[s] it less likely that proponents will be able to garner the signatures

15 necessary to place an initiative on the ballot.” 673 F.3d at 1132.11 Angle itself involved a

16 viewpoint-neutral law, yet the Ninth Circuit didn’t suggest that a different or less stringent

17 test applied due to its neutrality.

18

Third, during oral argument, the State asserted—in response to a hypothetical

19 question about whether a pandemic that persisted across an entire election cycle could be

20 considered a severe burden—that “it’s important to note that there’s no constitutional right

21 to make laws by petition at all. And, in fact, most states do not do so. So if that were

22 actually the case, Arizona would for that election cycle simply become like most other

23 states in not having an opportunity to law make by initiative.” (Doc. 102 at 42-43.) This

24 argument, like the previous one, is foreclosed by Angle, which repeatedly emphasized that,

25 although a state is not required to allow its citizens to enact legislation through the initiative

26 11 The case cited by the State in support of its viewpoint-neutrality argument, 27 Chamness v. Bowen, 722 F.3d 1110 (9th Cir. 2013), involved a constitutional challenge to
a California law that “eliminat[ed] party primaries and general elections with party28 nominated candidates, and substitute[ed] a nonpartisan primary and a two-candidate
runoff.” Id. at 1112.

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1 process, a state that chooses to make that process available must not restrict it in an

2 unconstitutional manner. See, e.g., 673 F.3d at 1127-28 (although a “state may decline to

3 grant a right to legislate through ballot initiatives . . . when a state chooses to give its

4 citizens the right to enact laws by initiative, it subjects itself to the requirements of the

5 Equal Protection Clause”) (citations and internal quotation marks omitted); id. at 1133

6 (although “[t]here is no First Amendment right to place an initiative on the ballot . . . we

7 assume that ballot access restrictions . . . trigger strict scrutiny[] when they significantly

8 limit the ability of initiative proponents to place initiatives on the ballot”); id. at 1133 n.5

9 (“The state’s power to ban initiatives thus does not include a lesser power to restrict them

10 in ways that unduly hinder political speech”).

11

The State’s final argument—diligence—has more force. The State notes that

12 Plaintiffs could have begun organizing and gathering signatures in November 2018 (as at

13 least one other initiative committee did) yet didn’t file the necessary registration paperwork

14 with the Secretary until August 20, 2019 (HRAZ) and October 30, 2019 (AFE), thereby

15 wasting between 45% and 55% of the 20-month election cycle. (Doc. 77 at 5-7 & nn.3, 6.)

16 In contrast, the State notes that the government-issued social distancing guidelines arising

17 from the COVID-19 pandemic, which came into effect on March 11, 2020, will cover only

18 7.5% to 12.5% of the election cycle, depending on whether they remain in effect through

19 April 30, 2020 or May 31, 2020. (Id.) And the States notes that a different committee,

20 which is serving as one of the plaintiffs in the state-court lawsuit, had already gathered

21 around 300,000 signatures by the time of the pandemic outbreak. (Id. at 7, citing Doc. 77-

22 1 at 5 ¶ 5.) Given all of this, the State concludes: “It was Plaintiffs’ choice—not the

23 State’s—to procrastinate and dither away time that might later become critical. Plaintiffs’

24 delay absolutely dwarfs the time period that COVID-19 is likely to affect their signature

25 gathering efforts. . . . [I]t appears likely that Plaintiffs could have qualified for the ballot

26 had they exerted reasonable diligence.” (Id. at 6-7.)

27

The Court agrees with the State that, on this record, Plaintiffs have not established

28 that the Title 19 requirements create a “severe burden” on the ability to place an initiative

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1 on the ballot. As noted, “the burden on plaintiffs’ rights should be measured by whether,

2 in light of the entire statutory scheme regulating ballot access, ‘reasonably diligent’

3 initiative proponents can gain a place for their proposed initiative on the ballot.” Angle,

4 673 F.3d at 1133 (quotation omitted). The party challenging the regulation bears the

5 burden of establishing severity. Reagan, 838 F.3d at 989. “Speculation, without

6 supporting evidence,” is insufficient to demonstrate that the statutory scheme results in a

7 severe burden. Angle, 673 F.3d at 1134; Prete, 438 F.3d at 964 (rejecting “unsupported

8 speculation” as insufficient to demonstrate severe burden).

9

Here, a “reasonably diligent” committee could have placed its initiative on the

10 November 2020 ballot despite the Title 19 requirements and the COVID-19 outbreak. It

11 is notable that Plaintiffs’ declarations fail to provide any explanation (let alone

12 justification) for why they waited so long to begin organizing and gathering signatures.

13 The State has presented evidence that at least one Arizona initiative committee began that

14 process in November 2018, yet the two committees in this case waited until the second half

15 of 2019, thereby missing out on essentially a year’s worth of time to work toward the

16 237,645 signature cutoff.12 Moreover, notwithstanding that delay, one of the Plaintiffs was

17 able to gather over 270,000 signatures—much more than the amount required under state

18 law, albeit not enough to provide the buffer recommended by Mr. Gallaway—in the few

19 months it was operating, and a different Arizona committee was able to gather around

20 300,000 signatures during the same abbreviated timeframe. All of this strongly suggests

21 that, had Plaintiffs simply started gathering signatures earlier, they could have gathered

22 more than enough to qualify for the ballot before the COVID-19 pandemic started

23 interfering with their efforts.

24 12 The Court recognizes there may be sound reasons for an initiative committee to 25 delay the ramp-up process until the latter part of the election cycle and that it may be the
norm for committees to engage in such delay. The difficulty here is that Plaintiffs haven’t 26 proffered any evidence of those reasons and norms in their declarations. (Doc. 102 at 33
[Plaintiffs’ acknowledgement that “we haven’t provided evidence that it’s typical”].) It’s 27 hornbook law that the party seeking a TRO bears the burden of establishing a clear
entitlement to relief, and Prete and Angle emphasize that, even outside the TRO context, 28 the party raising a constitutional challenge to a state electoral law must present non-
speculative evidence in support of its claim that the law creates a severe burden.

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1

This analysis, to be clear, should not be interpreted as a criticism of Plaintiffs. They

2 are hardly the only members of our community who failed to anticipate and plan for a once-

3 in-a-century pandemic. But the relief they are seeking in this case is profound—the

4 displacement of a bedrock component of Arizona law. Such laws should not be wantonly

5 overturned, and that is why courts (including the Ninth Circuit) require parties raising

6 constitutional challenges to state ballot access laws to show not only that they have been

7 thwarted by the law, but that a reasonably diligent party would have been thwarted, too.

8 Thus, in Prete, the Ninth Circuit rejected the challenge to Oregon’s law in part because a

9 different referendum campaign was able to “qualif[y] for the . . . Oregon ballot, after the

10 passage of [the challenged law]”—an outcome that “weighs against plaintiffs’ claim.” 438

11 F.3d at 967. Similarly, in Angle, the Ninth Circuit rejected the challenge to Nevada’s law

12 in part because the plaintiffs “have not presented any evidence” that “other initiative

13 proponents have been unable to qualify initiatives for the ballot as a result of the

14 [challenged law].” 673 F.3d at 1134.13

15

Finally, the Court is unpersuaded by Plaintiffs’ citation of three decisions in which

16 other courts issued emergency injunctive relief in an attempt to address unanticipated

17 electoral dislocations. As an initial matter, none of those decisions were issued by courts

18 in the Ninth Circuit and none applied the Ninth Circuit standards addressed above.

19 Additionally, each is distinguishable for other reasons.

20

First, in Florida Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016),

21 the plaintiffs sought a TRO requiring an emergency extension of Florida’s voter

22 registration deadline because “[j]ust five days before that deadline . . . Hurricane Matthew

23 bore down and unleashed its wrath on the State of Florida. Life-threatening winds and rain

24 forced many Floridians to evacuate or, at a minimum, hunker down in shelters or their

25 homes.” Id. at 1254. The district court concluded that because “Florida’s statutory

26

27

13 For these reasons, Plaintiffs’ contention that they “lost the opportunity to collect up to 160,000 signatures between March 11, 2020, and April 30, 2020” due to the combination

28

of Title 19 and the COVID-19 responses (Doc. 79 ¶ 47) misses the mark. Even assuming that 160,000 figure is accurate, a reasonably diligent campaign wouldn’t have needed to

put all of its eggs in the March/April basket.

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1 framework would categorically deny the right to vote” to those who failed to register before

2 the hurricane, it amounted to a severe burden that warranted strict scrutiny. Id. at 1257.

3

Second, Plaintiffs cite Democratic Nat’l Comm. v. Bostelmann, 2020 WL 1320819

4 (W.D. Wis. 2020). There, the plaintiffs sought a TRO extending the date by which

5 individuals could register to vote electronically, rather than in-person, in light of the

6 COVID-19 pandemic. The court, relying on Florida Democratic Party, found that the

7 existing voter registration deadline presented an “excruciating dilemma that will soon be

8 faced by eligible voters . . . [to] either venture into public spaces, contrary to public

9 directives and health guidelines or stay at home and lose the opportunity to vote.” Id. at

10 *5. The court concluded that the dilemma presented “an undue burden” and that

11 Wisconsin’s proffered reasons for maintaining the deadline were insufficient to justify it.

12 Id. at *5-*6.

13

The key difference between those cases and this one is that Florida Democratic

14 Party and Bostelmann were both voting restriction cases, while this is a ballot access case.

15 As discussed above, the overarching standard is the same, but the key distinction comes in

16 how courts analyze whether a severe burden is present. When assessing whether a state

17 law presents a severe burden on ballot access, courts in the Ninth Circuit look to whether

18 a reasonably diligent initiative proponent would have been able to get the issue on the ballot

19 despite the law. Regulations on the right to vote, in contrast, do not apply the “reasonably

20 diligent” standard. See, e.g., Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019,

21 1023-1027 (9th Cir. 2016); Dudum, 640 F.3d at 1105-07. See also Angle, 673 F.3d at 1130

22 (“Votes and petition signatures are similar in some respects, but ballot access requirements

23 and elections serve different purposes.”). Notably, neither Florida Democratic Party nor

24 Bostelmann examined whether a reasonably diligent voter would have already registered

25 by the time the respective crises struck.14

26 14 Additionally, Plaintiffs fail to cite recent decisions by other federal courts in

27

Wisconsin denying similar claims for relief. Taylor v. Milwaukee Election Comm’n, 2020 WL 1695454, *9 (E.D. Wisc. 2020) (denying motion for preliminary injunction to

28

postpone the Wisconsin election in light of the COVID-19 pandemic: “[I]t appears that tomorrow morning, those who have not yet voted will face a grim choice: go out to the

polling places (the ones that are open) and risk being exposed to the virus or spreading it

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1

Plaintiffs’ final case is Faulkner v. Va. Dep’t of Elections, CL-20-1456 (Va. Cir. Ct.

2 2020). There, a Virginia trial court enjoined enforcement of a Virginia statute requiring a

3 political candidate to gather a certain number of signatures in order to appear on the 2020

4 primary ballot. Id. at 3. The court found that, in light of the ongoing COVID-19 pandemic,

5 the statute imposed a “significant” burden and was therefore subject to strict scrutiny. Id.

6 at 2-3. Absent from the court’s order, however, is any discussion of whether a reasonably

7 diligent candidate would have acquired enough signatures in spite of the statute. Id.

8 Regardless of the reason for that omission, this Court is bound by Ninth Circuit law, which

9 requires an examination of what a reasonably diligent proponent would have accomplished

10 in the same circumstances.

11

3. Important Regulatory Interest

12

“Because [Plaintiffs] have not shown that [Title 19] imposes severe burdens, the

13 state need show only that the rule furthers an important regulatory interest.” Angle, 1134-

14 35. Additionally, the State need not demonstrate that the rule is narrowly tailored to

15 promote that interest. Dudum, 640 F.3d at 1114 (“[W]e emphasize that the City is not

16 required to show that its system is narrowly tailored . . . . [W]hen a challenged rule imposes

17 only limited burdens on the right to vote, there is no requirement that the rule is the only

18 or the best way to further the proffered interests.”).

19

The Supreme Court has recognized that Arizona (like other states) “indisputably has

20 a compelling interest in preserving the integrity of its election process. Confidence in the

21 integrity of our electoral processes is essential to the function of our participatory

22 democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (citation omitted). Here, the

23 provisions of Title 19 are clearly aimed at maintaining the integrity of the initiative process.

24 The Arizona Legislature has declared that “strict compliance with the constitutional and

25 to their friends and neighbors, or forego one of the most sacred rights of citizenship—the
26 right to have a say in the governance of their communities, their state and their nation. ‘Extraordinary’ is a feeble description of the circumstances that appear to be leading to that
27 choice. But this court must hold . . . that this federal court does not have the authority ‘to act as the state’s chief health official’ by making the decision that needs to be made to put
28 the health and safety of the community first. . . . The court DENIES the plaintiffs’ motion for preliminary injunction.”).

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1 statutory requirements for the referendum process and in the application and enforcement

2 of those requirements provides the surest method for safeguarding the integrity and

3 accuracy of the referendum process.” A.R.S. § 19-101.01 (emphasis added). It has made

4 the same finding with respect to the initiative process. Id. § 19-102.01(A). And the Arizona

5 Supreme Court has held that Title 19’s regulation of signature gatherers “represents a

6 reasonable means of fostering transparency . . . and mitigating the threat of fraud or other

7 wrongdoing infecting the petition process.” Stanwitz, 429 P.3d at 1144.

8

Plaintiffs do not appear to seriously contest this point. They acknowledge the

9 State’s interest in “ensur[ing] that the hundreds of thousands of required signatures on the

10 ballot come from qualified electors.” (Doc. 2 at 12.) Further, they don’t argue that Title

11 19’s requirements would fail under a standard of review below strict scrutiny. (Id. [“Under

12 ordinary circumstances, requiring [in-person] gathering of signatures would provide

13 somewhat of a burden, but it could arguably be justified by the State’s interest in preventing

14 fraud . . . .”].) Thus, it would seem that all agree that the State has an important regulatory

15 interest that satisfies the second component of the analysis. See also Prete, 438 F.3d at

16 969 (Oregon’s law restricting use of paid signature gatherers was supported by Oregon’s

17 “important regulatory interest in preventing fraud and its appearances in its electoral

18 processes”).15

19

Finally, the State also argues that Title 19’s requirements further the “significant

20 interest in promoting dialogue by requiring proponents of initiatives to individually engage

21 signers and in doing so provide opportunity for meaningful discussion.” (Doc. 77 at 10.)

22 Although neither party has cited any case addressing whether this interest qualifies an

23 important regulatory interest for purposes of the Prete/Angle framework, common sense

24 25 15 Given this conclusion, the Court need not resolve amicus’s contention that the E-
Qual system would be worse than the Title 19 requirements at preventing fraud (Doc. 86 26 at 2 [“E-Qual Is Highly Susceptible To Fraud”]) or Plaintiffs’ rejoinder during oral
argument that E-Qual may be better than the Title 19 requirements at preventing fraud. As 27 noted, when an electoral rule doesn’t create a severe burden, the state isn’t required to show
that it constitutes the best way to promote the regulatory interest at issue. Dudum, 640 F.3d 28 at 1114 (if relaxed scrutiny applies, “there is no requirement that the rule is the only or the
best way to further the proffered interests”).

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1 suggests it should qualify and Plaintiffs’ counsel did not dispute, during oral argument, that

2 it should qualify.16

3

4. Conclusion

4

For the reasons stated above, Plaintiffs have not demonstrated a likelihood of

5 success on the merits or even a substantial question going to the merits. This failure,

6 standing alone, requires the denial of their request for a TRO.

7

B. Irreparable Injury

8

“A plaintiff seeking a preliminary injunction must demonstrate that irreparable

9 injury is likely in the absence of preliminary relief. Mere possibility of harm is not

10 enough.” Enyart v. Nat. Conference of Bar Exam’rs, 630 F.3d 1153, 1165 (9th Cir. 2011)

11 (citation omitted).

12

The Court has already determined that Plaintiffs lack standing because it is

13 speculative, as opposed to substantially likely, that the relief sought in their complaint

14 would actually redress their injuries in light of their failure to challenge Article IV of the

15 Arizona constitution. This means Plaintiffs also cannot demonstrate they will likely suffer

16 irreparable injury in the absence of a TRO. Cf. Hispanic Affairs Project v. Perez, 141 F.

17 Supp. 3d 60, 67 n.6 (D.D.C. 2015) (“Whether the requested injunctive relief can redress

18 plaintiff Llacua’s injuries . . . dovetails with consideration of the showing of irreparable

19 harm . . . .”).

20

Additionally, putting aside the Article IV issue, it is unclear whether each

21 committee’s inability to gather in-person signatures during the pandemic will cause it to

22 fail to secure a place on the November 2020 ballot. As for AFE, it only gathered 110,333

23 signatures before March 11, 2020—which is only 46% of the required minimum figure of

24 237,645 and only 31% of the “buffer” figure of 356,468 provided by Mr. Gallaway—and

25 the Court is dubious of Plaintiffs’ assertion that AFE would have gathered 160,000

26 16 Instead, Plaintiffs’ counsel disputed the State’s contention that shifting to electronic 27 signature gathering through the E-Qual system would result in less speech, arguing that E-
Qual would result in meaningful exchanges of speech, too. But again, “there is no 28 requirement that the rule is the only or the best way to further the proffered interests.”
Dudum, 640 F.3d at 1114.

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1 additional signatures during the March/April timeframe. The only evidence Plaintiffs have

2 proffered in support of this anticipated increase in AFE’s collection rate is the assertion in

3 Mr. Gallaway’s declaration that “[b]y the week of February 22, 2020, FieldWorks, on

4 behalf of each Ballot Initiative Committee, was in full swing gathering signatures and

5 ahead of schedule to meet the goals for obtaining a sufficient number of signatures.” (Doc.

6 79 ¶ 32.) This assertion is conclusory and lacks foundation. The Court has no basis for

7 understanding what it means for a committee to be “in full swing” or why gathering only

8 31-46% of the required signatures during the first 16 months of a 20-month collection cycle

9 could nevertheless be considered “ahead of schedule.” On these facts, Plaintiffs have not

10 demonstrated that it is likely, as opposed to merely possible, that but-for the COVID-19

11 pandemic, AFE would have gathered at least 237,645 signatures, and perhaps as many as

12 356,468 signatures, by the July 2, 2020 cutoff and therefore qualified for the November

13 2020 ballot.

14

As for HRAZ, the issue is that it had already gathered 273,786 signatures before the

15 COVID-19 restrictions came into force. This is tens of thousands more than the required

16 minimum figure. Although the Court appreciates Mr. Gallaway’s observation that prudent

17 ballot initiative committees “should” obtain additional signatures, above and beyond the

18 required figure, to account for the possibility that some of the signatures will be deemed

19 invalid and stricken, this is not the same thing as cognizable evidence establishing a

20 likelihood that HRAZ’s 273,786 signatures will prove insufficient. It would be

21 inappropriate to issue a TRO based on speculation concerning its necessity. Winter, 555

22 U.S. at 22 (“Issuing a preliminary injunction based only on a possibility of irreparable harm

23 is inconsistent with our characterization of injunctive relief as an extraordinary remedy that

24 may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”).17

25

26

17 The Court appreciates the difficulty of demonstrating irreparable harm in this context—a committee with too few signatures cannot establish it, and neither can a

27

relatively better-off committee that is seeking preliminary injunctive relief in an abundance of caution. But this difficulty is a function of the TRO standards, which rightly recognize

28

that because “[a] preliminary injunction is an extraordinary and drastic remedy,” one “should not be granted unless the movant, by a clear showing, carries the burden of

persuasion.” Lopez, 680 F.3d at 1072.

- 26 -

Case 2:20-cv-00658-DWL Document 103 Filed 04/17/20 Page 27 of 30

1

Finally, as for Ms. Turk, although the Court has already stated that it agrees with

2 Plaintiffs’ contention that the COVID-19 pandemic is currently interfering with the

3 committees’ ability to gather in-person signatures en masse, it doesn’t follow that an

4 injunction is required so Ms. Turk can personally sign the committees’ petitions. There is

5 plenty of time between now and July 2, 2020 for Ms. Turk to make arrangements, while

6 adhering to social distancing requirements, to sign each committee’s petition in the

7 presence of a circulator.

8

C. Balance of Equities

9

“[D]istrict courts must give serious consideration to the balance of equities.” Earth

10 Island Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir. 2010) (citation omitted). In doing so,

11 courts must consider “all of the competing interests at stake.” Id.

12

Plaintiffs’ arguments concerning the balance-of-equities factor are all predicated on

13 the assumption that the challenged provisions of Title 19 create a severe burden on

14 Plaintiffs’ First Amendment rights and will preclude Plaintiffs from qualifying for the

15 November 2020 ballot. (Doc. 2 at 13-15.) But as discussed above, that assumption is

16 unfounded.

17

On the other hand, a state “suffers an irreparable injury whenever an enactment of

18 its people or their representatives is enjoined.” Coal. For Econ. Equity v. Wilson, 122 F.3d

19 718, 719 (9th Cir. 1997). Additionally, it is significant that Plaintiffs are seeking to enjoin

20 the State’s election rules midway through the election cycle. The Supreme Court has

21 repeatedly instructed courts to exhibit caution when faced with such requests. See, e.g.,

22 Purcell, 549 U.S. at 4 (“Faced with an application to enjoin operation of voter identification

23 procedures just weeks before an election, the Court of Appeals was required to weigh, in

24 addition to the harms attendant upon issuance or nonissuance of an injunction,

25 considerations specific to election cases . . . .”).

26

At bottom, the balance-of-equities factor weighs against issuing a TRO.

27

D. Public Interest

28

When considering whether to grant preliminary injunctive relief, courts must

- 27 -

Case 2:20-cv-00658-DWL Document 103 Filed 04/17/20 Page 28 of 30

1 consider the requested injunction’s impact on the public interest. Stormans, Inc. v. Selecky,

2 586 F.3d 1109, 1138-39 (9th Cir. 2009). When a proposed injunction is narrow and limited

3 to the parties, the public interest “will be at most a neutral factor in the analysis.” Id. at

4 1139. “If, however, the impact of an injunction reaches beyond the parties, carrying with

5 it a potential for public consequence, the public interest will be relevant to whether the

6 district court grants the preliminary injunction.” Id.

7

Here, Plaintiffs seek an injunction that would apply to all “initiative and petition

8 proponents and supporters.” (Doc. 2 at 2.) Thus, the injunction they seek extends to the

9 public at large.

10

The public interest weighs against issuing such a TRO. Although the public has a

11 strong interest in enacting laws through the initiative process, and although the Court is

12 loathe to take any action (or inaction) that would expose Arizonans to an increased risk of

13 harm during these challenging times, the signature requirements Plaintiffs seek to displace

14 have been a part of Arizona’s constitutional and electoral landscape for over a century.

15 These requirements reflect a considered judgment, which has stood the test of time, about

16 how best to prevent electoral fraud and promote civic engagement. The public has a strong

17 interest in the continued adherence to such requirements, even during challenging times.

18

The State has also explained that, due to unique features of Arizona law, it is

19 extremely difficult to amend a law that was enacted via the initiative process. (Doc. 77 at

20 10.) This underscores the public’s interest in adhering to a sound initiative process, with

21 time-tested procedures to prevent fraud and promote civic engagement, in every election,

22 not just every election except this one.

23

Finally, although Plaintiffs’ complaint and moving papers suggest it would be easy

24 for the Court to simply decree that the use of the E-Qual system is now permissible for

25 initiative-related signature gathering, other parties paint a different and more complicated

26 picture. For example, the Secretary (who supports Plaintiffs’ request) included in her

27 response to the TRO motion a “request[] that the Court place certain limitations on the

28 relief to minimize the administrative burden under the current circumstances,” including

- 28 -

Case 2:20-cv-00658-DWL Document 103 Filed 04/17/20 Page 29 of 30

1 “specify[ing] whether the 5% sample of signatures required by A.R.S. § 19-121.01(B) to

2 be randomly drawn from all signatures submitted for a petition should include E-Qual

3 signatures or only those signatures submitted on a hard-copy petition sheet.” (Doc. 78 at

4 2, 8.) During oral argument, the Secretary’s counsel explained that further clarification

5 was needed on this issue because there are two ways to draw the random sample but, if E-

6 Qual signatures are considered presumptively valid, “it could make sense from a policy

7 perspective” to require that samples be drawn only from the hard-copy signature sheets.

8 (Doc. 102 at 61.) In response to this argument, counsel for the Maricopa County recorder

9 (who takes no position on Plaintiffs’ request) argued the Court shouldn’t consider E-Qual

10 signatures to be presumptively valid and instead should require the sample to be drawn

11 from both sets of signatures. (Id. at 64-65.)

12

A consistent theme in this order is that Plaintiffs’ request raises significant

13 federalism and separation-of-powers concerns. This exchange underscores those concerns.

14 The people of Arizona, through their elected representatives (or, perhaps, through the

15 initiative process), should be the ones making policy choices about how to draw signature

16 samples and whether to treat signatures generated through the E-Qual system as

17 presumptively valid. The Court does not, in any way, fault the Secretary or the recorders

18 for seeking clarification on those issues—it is appropriate and prudent to seek clarity so

19 elections can run smoothly—but a federal judge should not be making those choices on the

20 fly as part of a TRO proceeding. The public’s interest in having such policy choices made

21 through appropriate channels is an additional factor weighing against relief.

22

Accordingly, IT IS ORDERED that:

23

(1) Plaintiffs’ complaint (Doc. 1) is dismissed without prejudice due to a lack

24 of subject matter jurisdiction.

25

(2) Plaintiffs’ motion for a TRO (Doc. 2) is denied as moot.

26

(3) The motion for reconsideration filed by the House Speaker and Senate

27 President (Doc. 82) is denied as moot.

28

(4) The State’s conditional motion to certify questions to the Arizona Supreme

- 29 -

Case 2:20-cv-00658-DWL Document 103 Filed 04/17/20 Page 30 of 30

1 Court (Docs. 99, 100) is denied as moot.

2

(5) The Clerk of Court shall terminate this action and enter judgment

3 accordingly.18

4

Dated this 17th day of April, 2020.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20 18 Although it might be appropriate, under other circumstances, to afford a plaintiff

21

who has failed to establish standing an opportunity to amend the complaint in an attempt to cure the deficiency, Plaintiffs made clear during oral argument—and reaffirmed in a

22

post-argument filing—that their intention is to challenge the Title 19 requirements without challenging Article IV of the Arizona constitution. (Doc. 101 at 1 [“Plaintiffs have not

23

challenged Article IV, Part 1, Section 1(9). . . . The Court does not need to rule on the application of Arizona’s Constitution to E-Qual to decide this case. Nor have Plaintiffs

24

asked it to do so.”]; Doc. 102 at 22 [Plaintiffs’ confirmation during oral argument that the “omission from [Plaintiffs’] moving papers and complaint [of] any challenge to the

25

constitutional provisions within the Arizona Constitution . . . was intentional”].). Thus, granting leave to amend would be futile. Cf. Carrico v. San Francisco, 656 F.3d 1002,

26

1008 (9th Cir. 2011) (“Appellants’ principal argument is that the allegations of their amended complaint are sufficient to confer standing . . . . [T]hey do not . . . propose any

27

specific allegations that might rectify their [lack of standing] . . . . Accordingly, we deny leave to amend as futile.”). Additionally, because the dismissal of the complaint (like all

28

dismissals based on a lack of jurisdiction) is without prejudice, Plaintiffs could re-file suit if a future decision by the Arizona Supreme Court in the parallel case changes the state-

law landscape concerning redressability.

- 30 -

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 20-15719 Nature of Suit: 3950 Constitutionality of State Statutes Arizonans for Fair Elections, et al v. Katie Hobbs, et al Appeal From: U.S. District Court for Arizona, Phoenix Fee Status: Paid

Docketed: 04/20/2020 Termed: 05/19/2020

Case Type Information: 1) civil 2) private 3) null

Originating Court Information:

District: 0970-2 : 2:20-cv-00658-DWL

Court Reporter: Candy Potter, Court Reporter

Trial Judge: Dominic Lanza, District Judge

Date Filed: 04/02/2020

Date

Date Order/Judgment

Order/Judgment:

EOD:

04/17/2020

04/17/2020

Date NOA Filed:
04/20/2020

Date Rec'd COA:
04/20/2020

Prior Cases: None

Current Cases: None

ARIZONANS FOR FAIR ELECTIONS, AZAN, an Arizona nonprofit corporation
Plaintiff - Appellant,

James Evans Barton, II Direct: 602-626-8805 [COR NTC Retained] Torres Law Group, PLLC 2239 West Baseline Road Tempe, AZ 85283

ARIZONANS FED UP WITH FAILING HEALTHCARE, Healthcare Rising AZ, an Arizona nonprofit corporation
Plaintiff - Appellant,

James Evans Barton, II Direct: 602-626-8805 [COR NTC Retained] (see above)

RANDI L. TURK, an individual Plaintiff - Appellant,

James Evans Barton, II Direct: 602-626-8805 [COR NTC Retained] (see above)

v.

KATIE HOBBS, Arizona Secretary of State Defendant - Appellee,

Daniel A. Arellano Direct: 602-798-5436 [COR NTC Retained] Ballard Spahr LLP 1 East Washington Street Suite 2300 Phoenix, AZ 85004-2555

EDISON WAUNEKA, Apache County Recorder
Defendant - Appellee,

DAVID STEVENS, Cochise County Recorder
Defendant - Appellee,

Britt W. Hanson, Esquire, Attorney Direct: 520-432-8700 [COR NTC Retained] OFFICE OF COCHISE COUNTY ATTORNEY P.O. Drawer CA Bisbee, AZ 85603

PATTY HANSEN, Coconino County Recorder
Defendant - Appellee,

Rose Marie Winkeler, Deputy County Attorney Direct: 928-679-8200 [COR LD NTC Dep County Counsel] Coconino County Attorney's Office 110 E. Cherry Avenue Flagstaff, AZ 86001

SADIE JO BINGHAM, Gila County Recorder
Defendant - Appellee,

WENDY JOHN, Graham County Recorder Defendant - Appellee,

SHARIE MIHEIRO, Greenlee County Recorder
Defendant - Appellee,

RICHARD GARCIA, La Paz County Recorder
Defendant - Appellee,

Ryan Norton Dooley, AT Direct: 928-699-6118 [COR NTC Dep County Counsel]

LA PAZ COUNTY ATTORNEY'S OFFICE 1320 S. Kofa Avenue Parker, AZ 85344

ADRIAN FONTES, Maricopa County Recorder
Defendant - Appellee,

Joseph James Branco, Assistant Counsel Direct: 602-506-8541 [COR LD NTC Dep County Counsel] Maricopa County Attorney's Office Civil Services Division Suite # 1100 222 N. Central Avenue Phoenix, AZ 85004-2206

KRISTI BLAIR, Mohave County Recorder Defendant - Appellee,

Jeffrey Haws Direct: 928-753-0770 [COR LD NTC Dep County Counsel] Mohave County Attorney's Office 315 N. 4th Street P.O. Box 7000 Kingman, AZ 86402-7000

DORIS CLARK, Navajo County Recorder Defendant - Appellee,

Jason S. Moore, Deputy Assistant Attorney General Direct: 928-521-3460 [COR LD NTC Dep County Counsel] NAVAJO COUNTY ATTORNEY'S OFFICE P.O. Box 668 Holbrook, AZ 86025

F. ANN RODRIGUEZ, Pima County Recorder
Defendant - Appellee,

Daniel Jurkowitz Direct: 520-740-5750 [COR LD NTC Dep County Counsel] Pima County Attorney's Office Suite 2100 32 North Stone Avenue Tucson, AZ 85701

VIRGINIA ROSS, Pinal County Recorder Defendant - Appellee,

Craig Charles Cameron Direct: 520-866-6466 [COR LD NTC Dep County Counsel] Pinal County Attorney's Office P.O. Box 887 Florence, AZ 85132

SUZANNE SAINZ, Santa Cruz County Recorder
Defendant - Appellee,

Kimberly Janiece Hunley, Esquire, DYCHC Direct: 520-375-7780 [COR LD NTC Dep County Counsel] SANTA CRUZ COUNTY ATTORNEY Suite 201 2150 N. Congress Dr. Nogales, AZ 85621

LELIE HOFFMAN, Yavapai County Recorder
Defendant - Appellee,

ROBYN POUQUETTE, Yuma County Recorder
Defendant - Appellee,

William J. Kerekes Direct: 928-817-4300 [COR LD NTC Dep County Counsel] YUMA COUNTY ATTORNEYS OFFICE Suite G 250 W 2nd Street Yuma, AZ 85364

STATE OF ARIZONA

Drew C. Ensign, Deputy Solicitor General

Intervenor-Defendant - Appellee, Direct: 602-542-5252

[COR LD NTC Dep State Aty Gen]

Arizona Attorney General's Office

2005 N. Central Avenue

Phoenix, AZ 85004

------------------------------

LEAGUE OF WOMEN VOTERS OF ARIZONA
Amicus Curiae,

Daniel J. Adelman, Esquire, Executive Director Direct: 602-258-8850 [COR LD NTC Retained] Arizona Center For Law In The Public Interest 514 W. Roosevelt Street Phoenix, AZ 85003
Spencer Garrett Scharff, Esquire Direct: 602-739-4417 [COR NTC Retained] Scharff PLC 502 W. Roosevelt Street Phoenix, AZ 85004

JANUARY CONTRERAS, Former Government Official
Amicus Curiae - Pending,
PAUL BENDER Amicus Curiae - Pending,
GRAND CANYON INSTITUTE Amicus Curiae - Pending,
LEGISLATIVE DEMOCRATS Amicus Curiae - Pending,
GOLDWATER INSTITUTE Amicus Curiae - Pending,

Rachel Winkler Direct: 202-807-8011 [COR LD NTC Retained] NIXON PEABODY Suite 500 799 9th Street NW Washington, DC 20001
Paul F. Eckstein, Attorney Direct: 602-351-8222 [COR LD NTC Retained] Perkins Coie 2901 North Central Avenue Suite 2000 Phoenix, AZ 85012-2788
Austin C. Yost Direct: 602-351-8460 [COR NTC Retained] Perkins Coie 2901 North Central Avenue Suite 2000 Phoenix, AZ 85012-2788
Stacy E. Scheff Direct: 520-471-8333 [COR LD NTC Retained] Law Office of Stacy Scheff P.O. Box 40611 Tucson, AZ 85717-0611
Rhonda Barnes, Attorney Direct: 602-926-5848 [COR LD NTC Retained] Arizona House of Representatives General Counsel 1700 W. Washington Street Phoenix, AZ 85007
Timothy Sandefur, Attorney Direct: 602-462-5000 [COR LD NTC Retained] Goldwater Institute 500 E. Coronado Road Phoenix, AZ 85004

BALLOT INITIATIVE STRATEGY CENTER
Amicus Curiae - Pending,

Becky S. James Direct: 310-492-5104 [COR LD NTC Retained] James & Associates 23564 Calabasas Road Suite 201 Calabasas, CA 91302

Joseph Eric Sandler Direct: 202-479-1111 [COR NTC Retained] Sandler Reiff Lamb Rosenstein & Birkenstock PC 1025 Vermont Ave NW Suite 300 Washington, DC 20005

CAMPAIGN LEGAL CENTER Amicus Curiae - Pending,

Tara Malloy Direct: 202-736-2200 [COR LD NTC Retained] Campaign Legal Center Firm: (202) 736-2200 1101 14th St. NW Suite 400 Washington, DC 20005

ARIZONA REPUBLICAN PARTY Amicus Curiae - Pending,

John Wilenchik Direct: 602-606-2810 [COR LD NTC Retained] WILENCHIK & BARTNESS, P.C. 2810 North Third Street Phoenix, AZ 85004

RUSSELL BOWERS, SPEAKER OF THE ARIZONA HOUSE OF REPRESENTATIVES
Amicus Curiae - Pending,

Andrew George Pappas, Attorney Direct: 602-926-5544 [COR LD NTC Retained] Arizona House of Representatives General Counsel 1700 W. Washington Street Phoenix, AZ 85007

KAREN FANN, PRESIDENT OF THE ARIZONA STATE SENATE
Amicus Curiae - Pending,

Andrew George Pappas, Attorney Direct: 602-926-5544 [COR LD NTC Retained] (see above)

ARIZONA FREE ENTERPRISE CLUB Amicus Curiae - Pending,

Timothy La Sota, Attorney Direct: 602-515-2649 [COR LD NTC Retained] Timothy A. La Sota, PLC 2198 E. Camelback Road Suite 305 Phoenix, AZ 85016

ARIZONANS FOR FAIR ELECTIONS, AZAN, an Arizona nonprofit corporation; ARIZONANS FED UP WITH FAILING HEALTHCARE, Healthcare Rising AZ, an Arizona nonprofit corporation; RANDI L. TURK, an individual,
Plaintiffs - Appellants,
v.
KATIE HOBBS, Arizona Secretary of State; EDISON WAUNEKA, Apache County Recorder; DAVID STEVENS, Cochise County Recorder; PATTY HANSEN, Coconino County Recorder; SADIE JO BINGHAM, Gila County Recorder; WENDY JOHN, Graham County Recorder; SHARIE MIHEIRO, Greenlee County Recorder; RICHARD GARCIA, La Paz County Recorder; ADRIAN FONTES, Maricopa County Recorder; KRISTI BLAIR, Mohave County Recorder; DORIS CLARK, Navajo County Recorder; F. ANN RODRIGUEZ, Pima County Recorder; VIRGINIA ROSS, Pinal County Recorder; SUZANNE SAINZ, Santa Cruz County Recorder; LELIE HOFFMAN, Yavapai County Recorder; ROBYN POUQUETTE, Yuma County Recorder,
Defendants - Appellees,
STATE OF ARIZONA,
Intervenor-Defendant - Appellee.

04/20/2020 1
30 pg, 1.08 MB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Appellants Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections and Randi L. Turk Mediation Questionnaire due on 04/27/2020. Transcript ordered by 05/20/2020. Transcript due 06/19/2020. Appellants Arizonans Fed up with Failing Healthcare, Arizonans for Fair Elections and Randi L. Turk opening brief due 07/29/2020. Appellees Sadie Jo Bingham, Kristi Blair, Doris Clark, Adrian Fontes, Richard Garcia, Patty Hansen, Katie Hobbs, Lelie Hoffman, Wendy John, Sharie Miheiro, Robyn Pouquette, F. Ann Rodriguez, Virginia Ross, Suzanne Sainz, State of Arizona, David Stevens and Edison Wauneka answering brief due 08/28/2020. Appellant's optional reply brief is due 21 days after service of the answering brief. [11666062] (JBS) [Entered: 04/20/2020 02:21 PM]

04/21/2020 2

Received notification from District Court re: payment of docket fee. Amount Paid: USD 505.00. Date paid: 04/21/2020. [11668614] (RT) [Entered: 04/22/2020 02:04 PM]

04/22/2020

3
83 pg, 673.52 KB

Filed (ECF) Appellants Arizonans Fed up with Failing Healthcare and Arizonans for Fair Elections EMERGENCY Motion for injunction pending appeal. Date of service: 04/22/2020. [11669144] [20-15719] (Barton, James) [Entered: 04/22/2020 10:28 PM]

04/23/2020 4
1 pg, 97.95 KB

Filed clerk order (Deputy Clerk: SZ): On April 22, 2020, appellants filed an emergency motion for injunction pending appeal. Any response thereto is due by April 29, 2020. The optional reply in support of the motion is due by May 1, 2020. The previously established briefing schedule remains in effect. [11670282] (AF) [Entered: 04/23/2020 04:44 PM]

04/27/2020 5
2 pg, 14.34 KB

Filed (ECF) Appellants Arizonans Fed up with Failing Healthcare and Arizonans for Fair Elections Mediation Questionnaire. Date of service: 04/27/2020. [11672822] [20-15719] (Barton, James) [Entered: 04/27/2020 01:59 PM]

04/27/2020 6

The Mediation Questionnaire for this case was filed on 04/27/2020. To submit pertinent confidential information directly to the Circuit Mediators, please use the following link. Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[11673506]. [20-15719] (AD) [Entered: 04/27/2020 06:44 PM]

04/28/2020 7
7 pg, 190.44 KB

MEDIATION CONFERENCE SCHEDULED - DIAL-IN AssessmentConference, 05/06/2020, 10:00 a.m., PACIFIC Time. The briefing schedule previously set by the court remains in effect. See order for instructions and details. [11674321] (VS) [Entered: 04/28/2020 11:52 AM]

04/28/2020

8
22 pg, 784.09 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by January Contreras, Former Government Official. Date of service: 04/28/2020. [11674658] [20-15719]--[COURT UPDATE: Attached corrected PDF of brief. 04/29/2020 by LA] (Winkler, Rachel) [Entered: 04/28/2020 02:50 PM]

04/28/2020 9

COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [11]. Original Text: Filed (ECF) Paul Bender Motion to become amicus curiae. Date of service: 04/28/2020. [11674799] [20-15719] (Eckstein, Paul) [Entered: 04/28/2020 04:00 PM]

04/28/2020 10

Entered appearance of Amici Curiae - Pending January Contreras and Paul Bender. [11674924] (LA) [Entered: 04/28/2020 04:40 PM]

04/28/2020 11
61 pg, 4.73 MB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Paul Bender. Date of service: 04/28/2020. [11674953]--[COURT ENTERED FILING to replace incorrect entry [9].] (LA) [Entered: 04/28/2020 04:52 PM]

04/28/2020

12
21 pg, 271.29 KB

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by League of Women Voters of Arizona. Date of service: 04/28/2020. [11674993] [20-15719]-[COURT UPDATE: Attached corrected PDF (corrected cover). 04/29/2020 by LA] (Scharff, Spencer) [Entered: 04/28/2020 05:14 PM]

04/28/2020 13

Entered appearance of Amicus Curiae - Pending League of Women Voters of Arizona. [11675004] (LA) [Entered: 04/28/2020 05:20 PM]

04/29/2020 14

COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [15]. Original Text: Filed (ECF) Grand Canyon Institute Motion to become amicus curiae. Date of service: 04/29/2020. [11675921] [20-15719] (Scheff, Stacy) [Entered: 04/29/2020 02:50 PM]

04/29/2020

15
22 pg, 651.83 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Grand Canyon Institute. Date of service: 04/29/2020. [11675926] [20-15719]--[COURT UPDATE: Attached corrected PDF of the motion and brief. 05/01/2020 by KWG] (Scheff, Stacy) [Entered: 04/29/2020 02:53 PM]

04/29/2020

16
19 pg, 271.38 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Legislative Democrats. Date of service: 04/29/2020. [11675977] [20-15719] (Barnes, Rhonda) [Entered: 04/29/2020 03:21 PM]

04/29/2020 17

Filed (ECF) Appellee Katie Hobbs response to motion ([3] Motion

6 pg, 84.88 KB (ECF Filing), [3] Motion (ECF Filing)). Date of service:

04/29/2020. [11676085] [20-15719] (Arellano, Daniel) [Entered: 04/29/2020 04:25 PM]

04/29/2020 18

Filed (ECF) notice of appearance of Austin Clark Yost (Perkins Coie, LLP, 2901 N Central Ave, Suite 2000, Phoenix AZ 85012) for Amicus Curiae - Pending Professor Paul Bender. Date of service: 04/29/2020. (Party was previously proceeding with counsel.) [11676122] [20-15719] (Yost, Austin) [Entered: 04/29/2020 04:37 PM]

04/29/2020 19

COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [27]. Original Text: Filed (ECF) Goldwater Institute Motion to become amicus curiae. Date of service: 04/29/2020. [11676127] [20-15719] (Sandefur, Timothy) [Entered: 04/29/2020 04:41 PM]

04/29/2020

27
22 pg, 718.06 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Goldwater Institute. Date of service: 04/29/2020. [11676538]--[COURT ENTERED FILING to correct entry [19].] (KWG) [Entered: 04/30/2020 10:13 AM]

04/29/2020 20
1 pg, 92.5 KB

Filed clerk order: The amicus brief [12] submitted by League of Women Voters of Arizona is filed. No paper copies are required at this time. [11676133] (LA) [Entered: 04/29/2020 04:44 PM]

04/29/2020 21

Added Attorney(s) Austin C. Yost for party(s) Amicus Curiae Pending Paul Bender, in case 20-15719. [11676177] (RR) [Entered: 04/29/2020 05:33 PM]

04/29/2020

22
33 pg, 411.12 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Ballot Initiative Strategy Center. Date of service: 04/29/2020. [11676193] [20-15719] (James, Becky) [Entered: 04/29/2020 06:17 PM]

04/29/2020

23
39 pg, 495.65 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Campaign Legal Center. Date of service: 04/29/2020. [11676194] [20-15719]--[COURT UPDATE: Attached corrected PDF of the brief. 04/30/2020 by KWG] (Malloy, Tara) [Entered: 04/29/2020 06:38 PM]

04/29/2020 24

Filed (ECF) Appellee State of Arizona Motion for miscellaneous

458 pg, 13.12 MB relief [Leave To File A Combined Response To Plaintiffs'

Emergency Motion For An Injunction Pending Appeal And To

Amicus Briefs]. Date of service: 04/29/2020. [11676250] [20-

15719] (Ensign, Drew) [Entered: 04/29/2020 11:46 PM]

04/30/2020 25

Filed (ECF) Appellee State of Arizona response opposing motion

41 pg, 322.47 KB ([3] Motion (ECF Filing), [3] Motion (ECF Filing) motion for

injunction pending appeal). Date of service: 04/30/2020. [11676319] [20-15719] (Ensign, Drew) [Entered: 04/30/2020 07:54 AM]

04/30/2020 26

Entered appearance of Amici Curiae - Pending Grand Canyon Institute, Legislative Democrats, Goldwater Institute, Ballot Initiative Strategy Center and Campaign Legal Center. [11676532] (KWG) [Entered: 04/30/2020 10:11 AM]

05/01/2020 28
89 pg, 4.79 MB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Arizona Republican Party. Date of service: 05/01/2020. [11678320] [20-15719]--[COURT UPDATE: Attached corrected PDF of the brief and motion. 05/04/2020 by KWG] (Wilenchik, Dennis) [Entered: 05/01/2020 03:00 PM]

05/01/2020

29
13 pg, 803.76 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Russell Bowers, Speaker of the Arizona House of Representatives, and Karen Fann, President of the Arizona State Senate. Date of service: 05/01/2020. [11678472] [20-15719]--[COURT UPDATE: Attached corrected PDF of the brief. 05/04/2020 by KWG] (Pappas, Andrew) [Entered: 05/01/2020 04:13 PM]

05/01/2020 30
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Filed (ECF) Appellee Katie Hobbs response to motion ([28] Motion (ECF Filing), [28] Motion (ECF Filing)). Date of service: 05/01/2020. [11678603] [20-15719] (Arellano, Daniel) [Entered: 05/01/2020 08:13 PM]

05/01/2020 31
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Filed (ECF) Appellants Arizonans Fed up with Failing Healthcare and Arizonans for Fair Elections reply to response (). Date of service: 05/01/2020. [11678612] [20-15719] (Barton, James) [Entered: 05/01/2020 09:52 PM]

05/02/2020 32

Filed (ECF) Appellee State of Arizona citation of supplemental

7 pg, 357.34 KB authorities. Date of service: 05/02/2020. [11678659] [20-15719]

(Ensign, Drew) [Entered: 05/02/2020 07:25 PM]

05/03/2020 33

COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [36]. Original Text: Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Arizona Free Enterprise Club. Date of service: 05/03/2020. [11678726] [20-15719]--[COURT UPDATE: Attached corrected PDFs, updated docket text to reflect correct amicus name. 05/05/2020 by LA] (La Sota, Timothy) [Entered: 05/03/2020 01:10 PM]

05/03/2020

36
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Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Arizona Free Enterprise Club. Date of service: 05/03/2020. [11680757]--[COURT ENTERED FILING to replace incorrect entry [33].] (LA) [Entered: 05/05/2020 10:20 AM]

05/04/2020 34

Entered appearance of Amici Curiae - Pending Arizona Republican Party, Russell Bowers and Karen Fann. [11678883] (KWG) [Entered: 05/04/2020 08:22 AM]

05/04/2020 35

Entered appearance of Amicus Curiae - Pending Arizona Free Enterprise Club. [11679178] (LA) [Entered: 05/04/2020 10:05 AM]

05/05/2020 37
2 pg, 141.54 KB

Filed order (BARRY G. SILVERMAN, JACQUELINE H. NGUYEN and DANIEL PAUL COLLINS) Appellee State of Arizona’s motion for leave to file a combined response to appellants’ emergency motion and to amicus briefs (Docket Entry No. [24]-1) is granted. The response has been filed (Docket Entry Nos. [24], [25]). Appellants’ emergency motion for injunctive relief (Docket Entry No. [3]) is denied. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). Appellants, having failed to challenge the Arizona constitutional requirement of in-person signatures, cannot get the redress from the court they now seek by only challenging the statute at issue. See Ariz. Const. art. IV, pt. 1, § 1(9) (initiative petitions must be “signed in the presence of the affiant”); see also M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018). All other pending motions will be addressed by separate order. The briefing schedule established previously remains in effect. [11680997] (WL) [Entered: 05/05/2020 11:40 AM]

05/07/2020 38
1 pg, 40.77 KB

Filed order MEDIATION (RSK): A dial-in telephone conference will be held on May 20, 2020, at 9:00 a.m. Pacific Time. Each participant will receive an email with dial-in information. [11683850] (AF) [Entered: 05/07/2020 01:27 PM]

05/18/2020 39
2 pg, 38.24 KB

Filed (ECF) Appellants Arizonans Fed up with Failing Healthcare and Arizonans for Fair Elections Unopposed Motion to dismiss case voluntarily pursuant to FRAP 42(b). Date of service: 05/18/2020. [11693658] [20-15719] (Barton, James) [Entered: 05/18/2020 11:27 AM]

05/19/2020 40
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Filed order (Deputy Clerk: RSK): The conference previously scheduled for May 20, 2020, is canceled. Appellants’ motion to dismiss this appeal (Docket Entry No. [39]) is granted. Fed. R. App. P. 42(b). The parties shall bear their own costs on appeal. A

copy of this order shall serve as and for the mandate of this court. [11695643] (AF) [Entered: 05/19/2020 01:32 PM]

 
 No. 20-15719 ______________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______________________
ARIZONANS FOR FAIR ELECTIONS, et al. Plaintiff-Appellants. v.
KATIE HOBBS in her official capacity as Arizona Secretary of State, Defendant-Appellee and
STATE OF ARIZONA, Intervenor-Defendant-Appellee,
______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case No. 2:20-cv-658 ______________________
STATE OF ARIZONA’S CORRECTED COMBINED RESPONSE TO PLAINTIFFS’ EMERGENCY MOTION FOR AN INJUNCTION PENDING APPEAL AND RESPONSE TO AMICI ______________________

Dated: April 29, 2020

MARK BRNOVICH ATTORNEY GENERAL
Drew C. Ensign Deputy Solicitor General
Robert J. Makar Jennifer J. Wright
Assistant Attorneys General 2005 N. Central Avenue Phoenix, AZ 85004 Telephone: (602) 542-5025 Facsimile: (602) 542-4377 Counsel for the State of Arizona

CIRCUIT RULE 27-3 COUNTER STATEMENT Pursuant to Circuit Rule 27-3, Intervenor-Defendant-Appellee State of Arizona (the “State”) provides the following information in response to Plaintiffs’ Circuit Rule 27-3 Statement: A. The Nature Of The Alleged Emergency Plaintiffs assert (at vii), without citation, that “Absent immediate injunctive relief pending the appeal, Plaintiffs will suffer irreparable harm.” But the district court has already expressly found that Plaintiffs were not likely to suffer irreparable harm absent issuance of injunctive relief. ADD-25-27. And Plaintiffs do not argue anywhere in their motion that these factual findings were clearly erroneous. More generally, the timeline of initiative circulation and this litigation both severely undermine Plaintiffs’ instant claim of an emergency. Initiative Timeline The time to begin collecting signatures to qualify for the Arizona 2020 ballot began on November 3, 2018. A.R.S. § 19-121(D). Notably, one committee (not a plaintiff here) applied to begin circulating two initiatives a mere ten days later on November 13, 2018.1 Plaintiffs, however, were amongst the last to begin circulating. Plaintiff Arizonans for Fair Elections only applied to begin circulating the operative
1 See 2020 General Election Initiative, Referendum and Recall Applications, Katie Hobbs Sec’y of State, https://apps.arizona.vote/info/IRR/2020-general-election/18/0 (last updated Feb. 26, 2020).
i

petition/initiative on January 29, 2020. Id. Plaintiff Arizonans Fed Up with Failing Healthcare (Healthcare Rising AZ) started modestly earlier, with their operative application being filed on October 4, 2019. Id.
As the district court explained: “It is notable that Plaintiffs’ declarations fail to provide any explanation (let alone justification) for why they waited so long to begin organizing and gathering signatures.” ADD-20. “The State has presented evidence that at least one Arizona initiative committee began that process in November 2018, yet the two [Plaintiff] committees … waited until the second half of 2019, thereby missing out on essentially a year’s worth of time to [qualify for the ballot].” Id.
That court further explained that “a reasonably diligent campaign wouldn’t have needed to put all of its eggs in the March/April basket.” ADD-21 n.13.
This Litigation Plaintiffs’ declarations use the Arizona Governor’s March 11 emergency declaration as the relevant starting date of consideration/impact by coronavirus. ADD-149-50 (¶¶21, 29); 155-56 (¶¶15, 17, 22). Plaintiffs, however, did not initiate this litigation until three weeks later on April 2. ADD-1. B. The Relief Requested As the district court properly observed, “there is a heightened burden where a plaintiff seeks a mandatory preliminary injunction, which should not be granted ‘unless the facts and law clearly favor the plaintiff.’” ADD-12 (quoting Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th Cir. 1986)).
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Here the relief sought by Plaintiffs is mandatory in nature: Plaintiffs seek affirmative creation of new technical capabilities in Arizona to permit electronic signatures to be gathered for initiative petitions. That capability does not presently exist, and no prohibitory injunction could bring it into existence.
Moreover, Plaintiffs do not merely seek, as they contend (at vii), “for the Secretary and County Recorders to be enjoined from striking electronic signatures.” They further seek affirmative placement on the ballot of initiatives that qualify by electronic signatures, notwithstanding the violation of Arizona statutory law (which even Plaintiffs agree is the case, and why they challenge it) and Arizona constitutional law (which they dispute).
Plaintiffs’ motion does not acknowledge the mandatory nature of the injunctive relief that they seek (or dispute its proper characterization as involving mandatory relief). Plaintiffs also do not attempt to satisfy the heightened burden applicable to mandatory injunctive relief. See infra at 23.
C. Effects Of Denying Requested Relief Although the cover of Plaintiffs’ brief indicates that “Relief is needed by: May
7, 2020,” no citation is provided in support. It appears that Plaintiffs’ are relying on two conclusory assertions in newly-submitted declarations for that date. See Maldonado Decl. ¶31; Grennan Decl. ¶20.
Based on the district court’s unchallenged factual findings that Plaintiffs are not likely to suffer irreparable harm, the State disagrees that Plaintiffs will suffer
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irreparable harm absent a decision by this Court by May 7 (or any other date). D. Whether Relief Was Sought In The District Court Plaintiffs concede (at ix) that they never sought an injunction pending appeal in
the district court. They argue that the exhaustion requirement of Rule 8(a) should be excused because “Plaintiffs must quickly avail themselves to relief” and “seeking [such an] injunction below would be futile.”
As explained below, infra at 6-7, Plaintiffs patent violation of Rule 8(a) alone justifies denying an injunction pending appeal here.

I declare under penalty of perjury that the foregoing is true and correct and based upon my personal knowledge. Executed in Phoenix, Arizona.

DATED: April 29, 2020.

Respectfully submitted,
By: /s/Drew C. Ensign_______ Drew C. Ensign Counsel for State of Arizona

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TABLE OF CONTENTS
PAGE(S) TABLE OF AUTHORITIES .............................................................................................vii INTRODUCTION ................................................................................................................1 BACKGROUND ...................................................................................................................3
A. Arizona’s Framework to Qualify Initiatives For The Ballot.......................3 B. This Litigation...................................................................................................4 C. District Court’s Decision.................................................................................5 LEGAL STANDARD ...........................................................................................................5 ARGUMENT ..........................................................................................................................6 I. PLAINTIFFS’ VIOLATION OF RULE 8(A) ALONE JUSTIFIES DENYING THEIR MOTION ................................................................................6 II. THE DISTRICT COURT’S FACTUAL FINDINGS AND EQUITABLE BALANCING ARE UNCHALLENGED HERE......................8 A. The District Court’s Express Findings That Plaintiffs Were
Unlikely To Suffer Irreparable Harm Is Unchallenged And, In Any Event, Not Clearly Erroneous................................................................9 B. There Was No Abuse Of Discretion In Balancing The Equities.............10 C. The District Court Did Not Abuse Its Discretion In Concluding That The Public Interest Disfavored Plaintiffs’ III. PLAINTIFFS LACK ARTICLE III STANDING ..............................................12 A. Plaintiffs Failed To Develop Any Redressability Argument Below.........12 B. Plaintiffs’ Substantial Compliance Argument—Which Was Not Developed Below—Is Unpersuasive ...........................................................13 C. Plaintiffs Have Waived Alternative Redressability Requirements............17
v

D. The Arizona Supreme Court Could Easily Moot This Case Soon ..........18 IV. PLAINTIFFS ARE NOT LIKELY TO PREVAIL ON THE MERITS
OF THEIR ANDERSON-BURDICK CLAIM ....................................................18 A. The District Court’s Conclusion That Plaintiffs’ Failed This
Court’s “Reasonable Diligence” Standard Is Plainly Correct ...................19 B. Plaintiffs’ Attempt To Replace This Court’s “Reasonable
Diligence Standard” With Out-Of-Circuit Non-Precedents Fails ...........20 V. THE REMAINING INJUNCTION-PENDING-APPEAL FACTORS
SUPPORT DENIAL OF PLAINTIFFS’ MOTION ..........................................22 VI. IF THIS COURT CONCLUDES THAT PLAINTIFFS’
REDRESSABILITY IS EVEN DEBATABLE, IT SHOULD CERTIFY THE ISSUE TO THE ARIZONA SUPREME COURT ...............23 VII. RESPONSE TO AMICI ..........................................................................................24 1. January Contreras (Doc. 8-1) ........................................................................25 2. Professor Bender (Doc. 11-3).......................................................................26 3. League of Women Voters of Arizona (“League”) (Doc. 12)....................27 4. Grand Canyon Institute (Doc. 15-2)............................................................28 5. Legislative Democrats (Doc. 16-2) ..............................................................19 CONCLUSION ....................................................................................................................30
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TABLE OF AUTHORITIES
PAGE(S)
CASES
Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012)........................................................................19, 21, 28
Arizonans For Second Chances v. Hobbs, No. CV-20-0098-SA .......................................................................................24
Arrett v. Bower, 237 Ariz. 74 (App. 2015) ................................................................................4
Baker v. Adams Cty./Ohio Valley Sch. Bd., 310 F.3d 927 (6th Cir. 2002) ..........................................................................7
Bayless v. Martine, 430 F.2d 873 (5th Cir. 1970) ..........................................................................7
Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060 (9th Cir. 2014)........................................................................9
Crawford v. Washington, 541 U.S. 36 (2004)...........................................................................................16
DNC v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1320819 (W.D. Wis. Mar. 20, 2020) ...21
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).........................................................................................6
Ferrigno Warren v. Griswold, 2020-CV-31011 (Colo. D. Ct. Apr. 21, 2020)..............................................22
Florida Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016) ........................................................20
Kuhn v. Williams, 418 P.3d 478 (Colo. 2018)..............................................................................22
Morales v. Archibald, 439 P.3d 1179 (Ariz. 2019).............................................................................14, 15
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Morrissey v. Garner, __ Ariz. __, 2020 WL 1918688 (Ariz. Apr. 21, 2020) ................................26
Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008)........................................................................19, 28
Nken v. Holder, 556 U.S. 418 (2009).........................................................................................6
Omari Faulkner et al. v. Virginia Dep’t of Elections, CL-2000-1456-00 (Va. Cir. Ct. March 25, 2020) .........................................22
Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) ..........................................................................19
Purcell v. Gonzalez, 549 U.S. 1 (2006) .............................................................................................10
Ramos v. Louisiana, __ U.S. __, 2020 WL 1906545 (U.S. Apr. 20, 2020)...................................16
RNC v. DNC, __ U.S. __, 2020 WL 1672702 (U.S. Apr. 6, 2020).....................................21
Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817 (9th Cir. 2002) ..........................................................................13
Stanley v. Univ. of S. Cal., 13 F.3d 1313 (9th Cir. 1994) ..........................................................................23
Stanwitz v. Reagan, 429 P.3d 1138 (Ariz. 2018).............................................................................14, 15
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir.2001) ...........................................................................5
Summers v. Earth Island Inst., 555 U.S. 488 (2009).........................................................................................2
Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) ..........................................................................6
United States v. Jefferson, 791 F.3d 1013 (9th Cir. 2015)........................................................................20
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Virginian Ry. Co. v. United States, 272 U.S. 658 (1926).........................................................................................6
Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426 (1991)........................................................................................15, 27
Winter v. NRDC, 555 U.S. 7 (2008) .............................................................................................9, 10, 11, 12
STATUTES A.R.S. § 19-102.01 ..............................................................................................4 A.R.S. § 19-112 ...................................................................................................4 A.R.S. Title XXII, et seq. (1913) ........................................................................4 OTHER AUTHORITIES Charles Alan Wright et al, 16A Fed. Prac. & Proc. Juris. §3954 (5th ed.)....6 Goelz, Christopher A., and Meredith J. Watts, Calif. Practice Guide: Fed. 9th Cir. Civ.
App. Practice, §6:652 (2011) ..........................................................................6 RULES Fed. R. Civ. P. 52(a)(6).......................................................................................9 CONSTITUTIONAL PROVISIONS Ariz. Const. art. IV, pt. 1, § 1(9) .......................................................................passim Ariz. Const. art. IV, pt. 1, § 1(11).....................................................................4 Ariz. Const. art. VII, §12 ...................................................................................4
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INTRODUCTION Plaintiffs’ request for an injunction pending appeal fails on every level. As an initial matter, Plaintiffs have flouted Rule 8(a) by not seeking such relief in the district court first and failed to provide any persuasive basis for waiving that requirement. This failure is particularly inexcusable as the district court acted with exceptional speed below: litigating the entire action, including Plaintiffs’ request for a temporary restraining order (“TRO”) and preliminary injunction, in a total of 15 days. Plaintiffs are also extremely unlikely to prevail on appeal. Notably, Plaintiffs’ motion utterly fails to recognize the deferential nature of this Court’s review. Notably, the district court made three determinations subject to deferential review that are each independently dispositive here: (1) that Plaintiffs were unlikely to suffer irreparable harm, ADD-25-27, (2) that the balance of equities disfavored the relief sought by Plaintiffs, ADD-27, and (3) so did the public interest, ADD-27-29. The first is reviewable only for clear error and the latter two only for abuse of discretion. But Plaintiffs do not even acknowledge the governing standards of review, let alone attempt to satisfy them. Instead, Plaintiffs appear to regard their appeal in this Court as a pure mulligan, advancing new legal arguments, citing new cases, and relying on new declarations to obtain an injunction that was expressly denied below, which is not even alleged to constitute an abuse of discretion. But that is not how appellate review operates, and the district court’s explicit factual findings and exercise of its equitable discretion cannot simply be ignored as inconvenient.
1

Even as to the issues on which this Court’s review is de novo or has de novo components—i.e., whether Plaintiffs have Article III standing and whether they are likely to prevail on their Anderson-Burdick claim—the district court’s decision is plainly correct. Plaintiffs’ briefs below literally did not even acknowledge a key provision of the Arizona Constitution (Article IV, pt. 1, § 1(9)), hereinafter “Article IV Presence Mandate”), which for 108 years has expressly mandated in-person signing of initiative petitions—and thus specifically bars the relief sought here. And Plaintiffs neither challenged it nor explained how their injury could be redressable given their failure to do so. (Indeed, their filings in this Court represent their first attempt to do so in writing.) Because the Article IV Presence Mandate affirmatively precludes Plaintiffs’ requested relief and is unchallenged, Plaintiffs have failed to show that it is “likely that a favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (emphasis added). And even if that were a debatable issue (and not waived), this Court should certify that pure question of Arizona law to the Arizona Supreme Court, which is presently considering an identical issue.
The district court also correctly held that Plaintiffs were unlikely to prevail on their Anderson-Burdick claim. Plaintiffs do not even attempt to satisfy the “reasonably diligent” circulator standard that this Court has set forth in ballot access cases. Instead, they contend (at 12) that the district court applied “the wrong framework” because it followed binding precedents of this Court explicitly addressing ballot access (including specifically for initiatives) instead of out-of-circuit, non-precedential district
2

court decisions largely addressing the right to vote. But the district court did not err by faithfully applying this Court’s directly-on-point precedents.
Plaintiffs’ motion should accordingly be denied. BACKGROUND
A. Arizona’s Framework to Qualify Initiatives for the Ballot Arizona has allowed initiative legislation since statehood in 1912. This right is
enshrined in the Arizona Constitution, in the same article that limits the legislature’s power. Ariz. Const. art. IV. That power is subject to limitations. For example, to qualify for the ballot an initiative measure must obtain signatures from 10% or 15% of all qualified electors in Arizona for statutory or constitutional amendments, respectively. Id. pt. 1 §1(2). For 2020, 10% is 237,645 valid signatures. ADD-17. Initiative petitions must be filed with the Secretary at least four months before the election, and will only go into effect if approved by a majority of voters. Id. §1(3)-(4).
Article IV provides explicit requirements for how signatures may be collected. In particular, the Article IV Presence Mandate provides:
[E]very sheet of every such [initiative] petition containing signatures shall be verified by the affidavit of the person who circulated said sheet or petition, setting forth that each of the names on said sheet was signed in the presence of the affiant and that in the belief of the affiant each signer was a qualified elector…. Ariz. Const. art. IV, pt. 1, §1(9) (emphasis added). Plaintiffs do not challenge the constitutionality of this provision under the U.S. Constitution. ADD-30 n.18. The Arizona Constitution expressly contemplates the legislature’s enactment of
3

legislation regarding initiatives. Ariz. Const. art. IV, pt. 1, § 1(11), art. VII, §12 (providing the legislature with authority to enact “registration and other laws to secure the purity of elections and guard against abuses of the elective franchise”); see also Arrett v. Bower, 237 Ariz. 74, 78 ¶10 (App. 2015). Legislation regulating the initiative process was adopted immediately upon statehood. A.R.S. tit. XXII, et seq. (1913).
Arizona statutory law mirrors the Article IV Presence Mandate and provides “[e]very qualified elector signing a petition shall do so in the presence of the person who is circulating the petition and who is to execute the affidavit of verification.” A.R.S. § 19-112(A). In addition, an Arizona statute requires strict compliance with applicable requirements for qualifying initiatives for the ballot. A.R.S. § 19-102.01. Plaintiffs do challenge these provisions as unconstitutional.
B. This Litigation Although Plaintiffs allege that the coronavirus epidemic effectively shutdown
their signature collection efforts on March 11, they did not file this suit until three weeks later on April 2. ADD-113-114. Plaintiffs filed a motion for a TRO and preliminary injunction the same day. Neither Plaintiffs’ Complaint nor their motion mentioned the Article IV Presence Mandate. ADD-107-145. The district court set a deadline for responses of April 10 and held a hearing on April 14. Doc. 9.
After the Secretary announced that she would not oppose the Plaintiffs’ requested relief, the State moved to intervene over Plaintiffs’ opposition. The district court granted that request. ADD-40. The State filed an opposition brief on April 10.
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Plaintiffs declined to file a reply brief. C. District Court’s Decision Following the April 14 hearing, the district court issued a comprehensive
decision on April 17. The district court first concluded that Plaintiffs had failed to establish Article III redressability because it was “entirely speculative” that Arizona courts would conclude that the Article IV Presence Mandate (which Plaintiffs did not challenge) would permit use of electronic signatures through E-Qual. ADD-7-11.
The district court then addressed the merits of Plaintiffs’ request for a TRO “to provide a complete record in the event of appellate review.” ADD-11. (Although the district court formally addressed only a TRO, the same standards apply to requests for preliminary injunctions. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir.2001)). In doing so, it concluded that Plaintiffs’ request for relief failed on multiple independent grounds, including that (1) “Plaintiffs have not … demonstrated a likelihood of success or even serious questions going to the merits of their First and Fourteenth Amendment-based claims,” ADD-4, 12-25; (2) Plaintiffs had failed to establish likely irreparable harm, and instead their request was “based on speculation,” ADD-25-27, (3) “the balance-of-equities factor weigh[ed] against” Plaintiffs’ request, ADD-27; and (4) so did the public interest. ADD-27-29.
LEGAL STANDARD An injunction pending appeal is “not a matter of right, even if irreparable injury might otherwise result to the appellant.” Virginian Ry. Co. v. United States, 272 U.S.
5

658, 672 (1926). Instead, an injunction pending appeal only issues if the applicant satisfies the following factors: 1) whether the applicant has “made a strong showing that he is likely to succeed on the merits;” 2) whether the applicant will suffer irreparable injury absent the requested relief; 3) whether the injunction will substantially injure other parties in the proceedings; and 4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009). The first two factors are the most critical, and the “mere possibility” of success on either factor (or both) is insufficient grounds for the issuance of an injunction pending appeal. Id. Appellate courts review the district court’s determination for whether an injunction should issue for abuse of discretion. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc); accord eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
ARGUMENT I. PLAINTIFFS’ VIOLATION OF RULE 8(A) ALONE JUSTIFIES
DENYING THEIR MOTION As an initial matter, Plaintiffs’ motion should be denied purely on the basis that Plaintiffs have flouted Rule 8(a). “The cardinal principle with respect to … [any] applications under Rule 8 is that the relief ordinarily must first be sought in the lower court.” Charles Alan Wright et al, 16A Fed. Prac. & Proc. Juris. §3954 (5th ed.). Thus, “Before filing an emergency motion, the movant should exhaust all alternatives in the lower court or agency.” Christopher A. Goelz & Meredith J. Watts, Calif. Practice Guide: Fed. 9th Cir. Civ. App. Practice, §6:652 (2011). Failure to comply with Rule
6

8(a)’s exhaustion requirement justifies denying relief. See Baker v. Adams Cty./Ohio Valley Sch. Bd., 310 F.3d 927, 931 (6th Cir. 2002).
Plaintiffs proffer two cursory excuses for their failure to exhaust (at ix): (1) potential delay and (2) exhausting “would be futile.” Both fail. The district court here operated with extraordinary speed: adjudicating the entire action in 15 days. There is no reason to believe that, having already gotten up to speed with the case, the district court could not have adjudicated a request for an injunction pending appeal quickly. The possibility of delay is always inherent in Rule 8(a)’s exhaustion requirement, but this Court nonetheless insists upon it; and the concern is particularly weak here given how quickly the district court acted below. Indeed, Plaintiffs took longer from decision below to their motion (5 days) than the district court took from oral argument to decision (3 days).
Nor was it futile to seek such relief below: “[i]t does not follow from the refusal to grant a preliminary injunction ... in the court below that the district court would refuse injunctive relief pending an appeal.” Bayless v. Martine, 430 F.2d 873, 879 n.4 (5th Cir. 1970). Indeed, every litigant seeking an injunction pending appeal has lost in the district court, but Rule 8(a) nonetheless demands exhaustion below. Exhaustion is no more “futile” here than in any other typical appeal.
Because Plaintiffs have violated the “cardinal principle” of Rule 8(a) and offered no defensible excuse, this Court should deny Plaintiffs’ motion without prejudice and direct them to exhaust in the district court.
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II. THE DISTRICT COURT’S FACTUAL FINDINGS AND EQUITABLE BALANCING ARE UNCHALLENGED HERE Plaintiffs expressly acknowledge (at ix) that district court “issued a thirty-page
opinion fully explaining the Court’s position on the merits and rejecting the arguments in support of the TRO below.” But although Plaintiffs acknowledge those holdings, they advance no actual arguments regarding most of the district court’s holdings, ignoring them completely.
The district court notably made three findings/holdings that independently bar any injunction pending appeal here even if Plaintiffs had standing and were likely to prevail on their Anderson-Burdick claim (but see infra Sections III-IV). Specifically, the district court held:
• “Plaintiffs have not demonstrated that it is likely, as opposed to merely possible” that they would suffer irreparable harm. ADD-25-27.
• “[T]he balance-of-equities factor weighs against” Plaintiffs’ srelief. ADD-27 • “The public interest weighs against” Plaintiffs’ relief as well. ADD-27-29. Each of these holdings is reviewed deferentially: the first only for clear error and the latter two only for abuses of discretion. See supra at 1. Thus, to prevail on appeal, Plaintiffs would have to show clear error in the factual and that the latter two exercises of the district court’s equitable authority were both abuses of discretion. But Plaintiffs’ motion does not even try. In any event, Plaintiffs are unlikely to prevail on any of these issues under the governing standards of review, let alone all of them.
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A. The District Court’s Express Findings That Plaintiffs Were Unlikely To Suffer Irreparable Harm Is Unchallenged And, In Any Event, Not Clearly Erroneous
To obtain any injunction, Plaintiffs must show that they are “likely to suffer irreparable harm.” Winter v. NRDC, 555 U.S. 7, 20 (2008) (emphasis added). This is a hard floor: a “‘possibility’ standard” was expressly rejected as “too lenient.” Id. at 22.
The district court expressly found Plaintiffs had failed to establish irreparable harm, explaining that one Plaintiff failed to “demonstrate[] that it is likely, as opposed to merely possible, that but-for the COVID-19 pandemic, … [it would have] qualified for the November 2020 ballot” and the other’s alleged harm was “based on speculation.” ADD-25-27. The district court further explained that Plaintiffs’ declarations were “conclusory and lack[ed] foundation.” ADD-26.
These factual findings can be set aside only if they were shown to be clearly erroneous. Fox Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060, 1066 (9th Cir. 2014); Fed. R. Civ. P. 52(a)(6). But Plaintiffs do not even try: not even acknowledging these factual findings, let alone attempting to show that they are clearly erroneous. This forfeiture alone means that Plaintiffs have no prospect of success on appeal.
Moreover, Plaintiffs’ irreparable harm arguments in this Court (at 13) are wholly conclusory in nature, and notably cites no precedent at all. Plaintiffs do not even attempt to demonstrate that the challenged statutes are likely to make the difference between them qualifying for the ballot or not. And to the extent that Plaintiffs are relying (at 13) on “health risks to circulators and initiative supporters, up
9

to and including death,” the district court properly found “that’s the fault of the COVID-19 pandemic, not the Title 19 requirements.” ADD-16.
Because Plaintiffs have not even attempted to satisfy their burden of demonstrating that the district court’s factual findings are clearly erroneous, Plaintiffs have not demonstrated any chance of success on appeal.
B. There Was No Abuse Of Discretion In Balancing The Equities Winter further requires that Plaintiffs demonstrate “that the balance of equities tips in [their] favor.” 555 U.S. at 20. The district court, exercising its equitable discretion, concluded that “the balance-of-equities factor weighs against” Plaintiffs’ relief. ADD-27. That conclusion was based both upon the irreparable harm to the State, and that “Plaintiffs are seeking to enjoin the State’s election rules midway through the election cycle,” which the “Supreme Court has repeatedly instructed courts” against. Id. (citing Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)). Plaintiffs again do not even acknowledge the district court’s equitable balancing, let alone attempt to demonstrate an abuse of discretion in performing it. That forfeiture similarly precludes Plaintiffs from demonstrating any likelihood of success on appeal, since the district court’s balancing of the harms is another fully sufficient ground for denying injunctive relief. Winter, 555 U.S. at 20. C. The District Court Did Not Abuse Its Discretion In Concluding
That The Public Interest Disfavored Plaintiffs’ Requested Relief To obtain injunctive relief, Plaintiffs also must show that “an injunction is in
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the public interest.” Winter, 555 U.S. at 20. The district court, however, concluded that “[t]he public interest weighs against issuing” injunctive relief. ADD-27-29.
Plaintiffs once again do not even acknowledge this holding, let alone attempt to demonstrate that it was an abuse of discretion. Instead, Plaintiffs advance only a single conclusory paragraph (at 14), that does not cite a single precedent, nor identify any fault with the district court’s actual reasoning. That perfunctory argument fails to demonstrate even the slightest chance that Plaintiffs will prevail in showing that the district court’s public-interest determination was an abuse of discretion.
The district court’s public-interest holding rests on several important considerations: i.e., that (1) the Article IV Presence Mandate has “been a part of Arizona’s constitutional and electoral landscape for over a century … [and] reflect a considered judgment, which has stood the test of time, about how best to prevent electoral fraud and promote civic engagement,” (2) it is “extremely difficult to amend a law that was enacted via the initiative process,” and (3) “Plaintiffs’ request raises significant federalism and separation-of-powers concerns.” ADD-28-29. The district court’s thoughtful weighing of the public interest was not an abuse of discretion.
* * * * * Ultimately, Plaintiffs’ motion constitutes a near-complete abdication of satisfying their applicable burdens on appeal. To establish any chance of success, Plaintiffs would have to show (1) that the district court clearly erred in its factual findings and that the lower court abused its discretion in (2) balancing the harms and
11

(3) weighing the public interest. The deference this Court accords to factual and equitable determinations of the district court is a bedrock principle of appellate litigation—which Plaintiffs’ instant arguments utterly flout.
Plaintiffs’ failure even to attempt to satisfy their burdens under deferential review necessarily means that Plaintiffs have failed to demonstrate any chance of prevailing on appeal. As such, no injunction pending appeal may issue. III. PLAINTIFFS LACK ARTICLE III STANDING
It is well-established that Plaintiffs must demonstrate that it is “likely that a favorable judicial decision will prevent or redress the injury.” Summers, 555 U.S. at 493 (2009) (emphasis added). The district court’s conclusion that Plaintiffs failed to do so is plainly correct, and Plaintiffs accordingly are not likely to succeed in challenging it.
Plaintiffs’ redressability problem is that the Arizona Constitution expressly mandates the presence of the circulator during signing of initiative petitions: “every sheet of every such [initiative] petition containing signatures shall be verified by the affidavit of the person who circulated said sheet or petition, setting forth that each of the names on said sheet was signed in the presence of the affiant.” Ariz. Const. art. IV, pt. 1, § 1(9) (emphasis added). By its plain and unambiguous terms, the Article IV Presence Mandate precludes use of the E-Qual system for initiative petitions.
A. Plaintiffs Failed To Develop Any Redressability Argument Below Although Plaintiffs claim to have been aware of this mandate previously, their Complaint is utterly silent as to it. ADD-61:25-62:19; ADD-1-30. So too is their
12

motion for a preliminary injunction/TRO. ADD-31-40. And when the State expressly raised that argument, ADD-167, Plaintiffs declined to file a reply brief.
The one and only time that Plaintiffs attempted to satisfy their burden of demonstrating Article III redressability below came at oral argument, only for a few short minutes. ADD-51:2-17; 63:2-68:1; 89:18-22. And Plaintiffs failed to cite even a single case in support of their redressability argument, even when specifically directed to do so. ADD-65:10-21 (“[Q:] [W]hat is your best case … that absent Title 19 strict compliance goes out the window and substantial compliance is all that’s required…. [A:] I don’t have th[at]…. I don’t have a good citation for that right in front of me.”).
The district court’s redressability holding is thus fully justified on waiver grounds alone. Plaintiffs only belatedly, at oral argument, suggested they could overcome the Article IV Presence Mandate through “substantial compliance,” but did not provide a single citation in support. The district court’s resulting conclusion Plaintiffs had failed to “establish a likelihood of redressability” is unassailable. ADD4. That is particularly true as the relevant inquiry is whether Plaintiffs’ Complaint establishes standing. Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir. 2002). And Plaintiffs’ Complaint is utterly silent on this critical issue.
B. Plaintiffs’ Substantial Compliance Argument—Which Was Not Developed Below—Is Unpersuasive
But even if Plaintiffs had actually developed their “substantial compliance” argument robustly in their brief below, it would still fail for four reasons. First, as the
13

district court noted, it is far from clear that the Arizona Supreme Court continues to apply a “substantial compliance” standard generally: “no case applying that [substantial compliance] standard expressly rooted it in the Arizona Constitution,” and “whether substantial compliance survives as the applicable standard may be called into question by the Arizona Legislature’s enactment in 2017 of A.R.S. § 19-102.01, which requires strict compliance with statutory and constitutional requirements.” ADD-9. Indeed, the Arizona Supreme Court avoided that question in 2018 and 2019, leaving it expressly open. Id. (citing Stanwitz v. Reagan, 429 P.3d 1138, 1142 (Ariz. 2018); Morales v. Archibald, 439 P.3d 1179, 1181 (Ariz. 2019).
Second, it is doubtful that the Arizona Supreme Court would ever apply a “substantial compliance” standard to the Article IV Presence Mandate, which has a specific and unequivocal mandate. That court, for example, has never permitted initiatives to qualify if they are signed by only 9% of electors from the last gubernatorial election, rather than the constitutionally mandated 10%—even though that might be considered “substantial compliance.” For express mandates like the 10% amount, or the presence mandate, compliance is binary—not multiple choice. And, because petitioners have disavowed any relief in this action against the Arizona Constitution, the Secretary’s theoretical enabling of E-Qual would be subject to collateral attack due to violating the Arizona Constitution. That uncontested redressability problem remains even now, one brief into the appeal.
Third, the Arizona Supreme Court has previously stressed the critical nature of
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the Article IV Presence Mandate, explaining that if it becomes “too inconvenient for present-day operation, the remedy is to amend it—not to ignore it.” Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 432 (1991). And it has further explained that “the integrity of the signature collection process is singularly dependent on the probity of circulators.” Stanwitz, 245 Ariz. at 349 (emphasis added). In light of those clear holdings, it is unlikely that the Arizona Supreme Court would conclude that use of EQual substantially complies with Article IV.
Fourth, one cannot “substantially comply” with a constitutional mandate by obliterating it out of existence—which is what Plaintiffs here effectively propose. Article IV expressly mandates in-person execution of petition initiatives between signers and a natural-person petition circulator who has the legal capacity to sign an affidavit. Permitting remote execution between a person and an inanimate object incapable of signing an affidavit is 100% non-compliance, not substantial compliance. See Morales, 439 P.3d at 1183 ¶22 (committee did not substantially comply with legal requirements where it “completely failed to comply” by failing to attach a copy of the application to petition sheets where statute required signature collection with a “facsimile of the time-and-date-marked copy”).
Petitioners’ arguments are akin to arguing that the State could “substantially comply” or “further the purpose” of the jury trial right of the Sixth Amendment by providing a bench trial in front of a judge. Notably, that would furnish a decisionmaker that is detached, neutral, and not beholden to the state (with tenure dependent
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only on the voters, not elected officials)—thus “substantially complying” with the purposes of that clause. And, in many cases, a bench trial might actually be more favorable for defendants than a jury trial (such as where there are prior admissible convictions or the alleged crimes are particularly heinous).
But such an outcome would be constitutionally ludicrous. The jury trial right is just that: a right to an actual jury, not a factfinder that purportedly serves the underlying purposes of the Jury Trial Clause. Indeed, the Supreme Court recently rejected a prior purposivist interpretation of the Sixth Amendment that had permitted non-unanimous verdicts, even though the Court had previously held that such verdicts sufficiently accomplished the purposes underlying the Sixth Amendment. Ramos v. Louisiana, __ U.S. __, 2020 WL 1906545, at *9 (U.S. Apr. 20, 2020) (“The deeper problem is that the [1972] plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment in the first place.”).
Similarly, the purposes of the Confrontation Clauses of the Sixth Amendment Arizona Constitution could likely be served by permitting criminal defendants to serve mandatory interrogatories on adverse witnesses, which would also eliminate infection risk. But that would flout the Confrontation Clauses, which not only have a purpose but a specific method of vindicating that purpose (there, in-person confrontation).2
2 See Crawford v. Washington, 541 U.S. 36, 61 (2004) (“To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed
16

So too with the Article IV Presence Mandate: it not only has specific purposes (i.e., deterring fraud and promoting meaningful expressive exchanges about proposed initiatives). It also mandates a specific procedure for effectuating them: in-person exchanges and execution, supported by affidavits executed by natural persons capable of being cross-examined and subject to perjury charges. Even if E-Qual substantially complied with the substantive purposes of the Article IV Presence Mandate (and it does not), that is irrelevant because the subsection further mandates a specific procedure for vindicating those purposes. Just as the Confrontation Clause would never permit alternative out-of-court procedures that supposedly further its purpose, so too does the Article IV Presence Mandate dictate a specific procedure for accomplishing its purposes—to the exclusion of all others.
C. Plaintiffs Have Waived Alternative Redressability Requirements Plaintiffs appear to argue (at 20) that their “pleas for relief” were sufficiently broad to establish redressability. But, in light of Plaintiffs’ express disavowal that they were challenging the constitutionality of the Article IV Presence Mandate, ADD-30 n.18, those arguments fail. If the Article IV Presence Mandate bars use of E-Qual, Plaintiffs’ injury is manifestly not redressable in light of their concession that they do not challenge its constitutionality.
in a particular manner: by testing in the crucible of cross-examination.”); id. (“The Clause thus reflects a judgment, not only about the desirability of reliable evidence … but about how reliability can best be determined.”).
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D. The Arizona Supreme Court Could Easily Moot This Case Soon Plaintiffs are unlikely to establish Article III redressability on appeal—and thus unlikely to prevail—for another independent reason: the Arizona Supreme Court is considering the precise issue of Arizona law now and is likely to rule against Plaintiffs. The State has specifically raised all of these issues, and the Arizona Supreme Court has agreed to resolve expeditiously. If the Arizona Supreme Court rules that the Article IV Presence Mandate precludes use of E-Qual, this case is moot. Plaintiffs have not asserted that this mandate violates the U.S. Constitution. It then is purely a question of Arizona law whether the Arizona Constitution precludes use of E-Qual for initiative petitions. And if it does, Plaintiffs’ alleged injury is necessarily not redressable. While this Court obviously has authority to disagree with the Arizona Supreme Court as to what federal law provides, that court’s resolution of Arizona law is binding and conclusive here. The possibility—indeed, likelihood—that the Arizona Supreme Court will hold as much further supports the State’s position on appeal. IV. PLAINTIFFS ARE NOT LIKELY TO PREVAIL ON THE MERITS OF THEIR ANDERSON-BURDICK CLAIM This Court has repeatedly held that all constitutional challenges to election regulations are governed by “a single analytic framework”—i.e., the Anderson-Burdick framework. Dudum v. Arntz, 640 F.3d 1098, 1106 n.15 (9th Cir. 2011). The AndersonBurdick framework recognizes that “States may, and inevitably must, enact reasonable
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regulations of parties, elections, and ballots to reduce election—and campaign-related disorder.” Prete v. Bradbury, 438 F.3d 949, 961 (9th Cir. 2006).
Under the Anderson-Burdick framework, “an election regulation that imposes a severe burden is subject to strict scrutiny.” Nader v. Brewer, 531 F.3d 1028, 1035 (9th Cir. 2008). In contrast, “Lesser burdens trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Angle v. Miller, 673 F.3d 1122, 1132 (9th Cir. 2012) (quoting Prete, 438 F.3d at 961) (cleaned up).
A. The District Court’s Conclusion That Plaintiffs’ Failed This Court’s “Reasonable Diligence” Standard Is Plainly Correct
Plaintiffs are also unlikely to prevail on the merits of their Anderson-Burdick claim, particularly given the district court’s unchallenged factual findings.
This Court has already addressed conclusively how the Anderson-Burdick framework applies to ballot access. Specifically, this Court explained that the applicable test is equivalent to whether “‘reasonably diligent’ candidates can normally gain a place on the ballot, or whether they will rarely succeed in doing so.” Angle, 673 F.3d at 1133 (quoting Nader, 531 F.3d at 1035).
Plaintiffs make zero effort to show that they can satisfy this Court’s “reasonably diligent” standard. In any event, the district court made express factual findings that “a ‘reasonably diligent’ committee could have placed its initiative on the November 2020 ballot despite the Title 19 requirements and the COVID-19 outbreak” if they
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had “simply started gathering signatures earlier.” ADD-20. Indeed, one committee that did start earlier, “had already gathered around 300,000 signatures by the time of the pandemic outbreak.” ADD-19.
Plaintiffs do not even attempt to argue that this factual finding was clearly erroneous. Plaintiffs’ claim thus fails under Angle and Nader. (Plaintiffs make no attempt to argue that they can prevail under Anderson-Burdick if the challenged acts do not impose a “severe burden.”)
B. Plaintiffs’ Attempt To Replace This Court’s “Reasonable Diligence Standard” With Out-Of-Circuit Non-Precedents Fails
Rather than attempting to satisfy the standard that this Court set forth in Angle, Plaintiffs instead place all their eggs (at 11-13) in the basket that the district court applied “the wrong framework for analyzing due diligence in light of a catastrophe.”
But Plaintiffs are unlikely to prevail on their argument that the district court erred by applying the very standard that this Court mandated. The Angle court set forth a standard that does not admit of the exception that Plaintiffs seek to smuggle into it, and a panel of this Court lacks authority to overrule Angle as precedent. United States v. Jefferson, 791 F.3d 1013, 1016 n.2 (9th Cir. 2015).
Against this Court’s actual binding precedents, Plaintiffs instead rely overwhelmingly upon out-of-circuit non-precedential opinions issued under such timepressured circumstances as to create substantial risk of error. For example, Florida Democratic Party v. Scott was an October 10, 2016 order imposing a single-day extension
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of the voter registration deadline, from October 11 to October 12, 2016 due to a hurricane. 215 F. Supp. 3d 1250 (N.D. Fla. 2016). While citizens have a fundamental right to vote on the officials that represent them, there is no requirement that the States make lawmaking-by-initiative available at all or ensure that there are measures on every general election ballot. Angle, 673 F.3d at 1127. Indeed, while state government can easily survive an election cycle with few or no initiatives on the ballot, it will rapidly crumble if no officials are elected and elected offices are vacant.
Moreover, the Scott reasoning is also so expansive as to be implausible on its face. The Scott court remarkably held that Florida’s interests were insufficient under rational basis review. 215 F. Supp. 3d at 1257. But adhering to pre-existing deadlines set by statute is at least a rational way to proceed, even if district courts or policymakers might decide a different approach is better. The Scott court’s holding that adhering to settled expectations set by statute was “wholly irrational” demonstrates its constitutional unseriousness. Id.
DNC v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1320819 (W.D. Wis. Mar. 20, 2020) was a temporary restraining order issued two days after filing of the relevant complaint, and two days prior to the intervention of the defending party that later successfully obtained a stay from the U.S. Supreme Court of a preliminary injunction issued in that case. See RNC v. DNC, __ U.S. __, 2020 WL 1672702 (U.S. Apr. 6, 2020). It too involved the right to vote on candidates, rather than qualify initiatives for a ballot, thus threatening some individuals with a total deprivation of the right to
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vote, rather than partial reduction in the time available to collect signatures. Omari Faulkner et al. v. Virginia Dep’t of Elections, CL-2000-1456-00, *3 (Va. Cir.
Ct. March 25, 2020) was effectively a default judgment, where the Commonwealth of Virginia declined to oppose the plaintiff, and the court consequently found it had no state interests “to weigh against ‘the character and magnitude of the asserted injury to the rights protected’” by the Constitution. Id.
Plaintiffs’ reliance on Ferrigno Warren v. Griswold, 2020-CV-31011 (Colo. D. Ct. Apr. 21, 2020) (order available at http://shorturl.at/crEQ1) is similarly misplaced. That case solely involved Colorado law, and thus is not relevant here. Moreover, it appears to have erred as a matter of state law, by directly violating Kuhn v. Williams, 418 P.3d 478 (Colo. 2018). Unsurprisingly, the Colorado Supreme Court granted review a mere week later. See http://shorturl.at/jHSU4. In any event, the relief provided in Warren was a reduction in the number of signatures needed—relief that Plaintiffs specifically disavowed below. ADD-74:7-ADD-76:13; ADD-180. V. THE REMAINING INJUNCTION-PENDING-APPEAL FACTORS
SUPPORT DENIAL OF PLAINTIFFS’ MOTION As explained above, the district court has already considered and resolved the final three injunction-pending-appeal/Winter factors, and Plaintiffs do not even attempt to demonstrate reversible error in those determinations. Supra at 8-12. Instead, Plaintiffs offer (at 14-15) a single conclusory paragraph on each, citing in total only a single supporting case for the underwhelming proposition that this “Court is
22

not prohibited from granting the relief sought.” Plaintiffs’ perfunctory paragraphs fail to satisfy their burden on any of the latter three factors here.
Moreover, this Court has long been clear that mandatory injunctions—such as what Plaintiffs seek here—“‘go[] well beyond simply maintaining the status quo pendente lite [and] [are] particularly disfavored.’” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (citation omitted). Plaintiffs seeking this “disfavored” remedy must meet a heightened burden; indeed, district courts must “deny such relief, ‘unless the facts and law clearly favor the moving party.’” Id. (emphasis added) (citation omitted)).
The district court properly concluded that Plaintiffs sought mandatory injunctive relief—i.e., affirmative expansion of E-Qual to permit electronic signatures for initiative petitions and affirmative placement on the Arizona ballot notwithstanding the violation of Arizona law. ADD-12. Plaintiffs do not challenge this determination, but never acknowledge this heightened burden—let alone argue that they satisfy it here. And the district court already concluded they had failed to “had failed “to clearly demonstrate that the requested relief is necessary.” ADD-4.
Plaintiffs’ failure even to attempt to meet the burden for mandatory injunctive relief further militates against an injunction pending appeal here. VI. IF THIS COURT CONCLUDES THAT PLAINTIFFS’
REDRESSABILITY IS EVEN DEBATABLE, IT SHOULD CERTIFY THE ISSUE TO THE ARIZONA SUPREME COURT Because Plaintiffs do not challenge the constitutionality of the Article IV Presence Mandate, the issue of whether it bars use of E-Qual for initiative petitions is
23

a potentially insurmountable barrier to Plaintiffs obtaining relief. If the Arizona Supreme Court holds that it is a bar, Plaintiffs’ request for relief here necessarily fails.
Given this uncertainty, if this Court believes that it is even debatable whether the Arizona Constitution precludes Plaintiffs from establishing redressability— particularly given their patent waiver below, which literally extends to failing to expend even a single written word in support of redressability—this Court should certify the controlling questions of Arizona law to the Arizona Supreme Court.
Notably, that Court is presently considering these very arguments in Arizonans For Second Chances v. Hobbs, No. CV-20-0098-SA, which is now fully briefed. The State’s briefs in that case are attached as ADD-273-406. Given that posture, this Court could reasonably anticipate an answer to any certified question expeditiously.
Ultimately, Plaintiffs have chosen not to challenge the constitutionality of the Article IV Presence Mandate. As such, if it governs as written, Plaintiffs lose. And that pure question of state law should be decided by the Arizona Supreme Court. Indeed, if the Arizona Supreme Court decides that issue against Plaintiffs, this action is completely moot even if not certified, since this Court cannot overrule the Arizona Supreme Court as to what Arizona law provides. VII. RESPONSE TO AMICI
The State hereby responds as follows to Plaintiffs’ Amici that filed by 5pm on the day of the State’s deadline. Given time limitations, it does not respond herein to briefs filed later than that (i.e., less than 7 hours before the State’s midnight deadline).
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1. January Contreras (Doc. 8-1) Ms. Contreras twice states suggests that issue of potential fraud need to be reviewed before E-Qual is expanded to initiative petitions. Specifically, she contends (at 4) “[t]hese issues deserve a review to validate the integrity of the online process” and (at 9) that she “agrees that a review of the security and integrity of the E-Qual online petition system is appropriate” (although it is “effective[]” in her judgment). But Ms. Contreras never indicates when such a review could occur. The district court never reached that issue due to the multitude of other failings in Plaintiffs’ request for injunctive relief (which she does not address). Nor does she contemplate that this Court would review those factbound issues before issuing relief here. Thus, even though she twice states that a review should occur before E-Qual is expanded, she fails to state how such a review could occur in these proceedings. Even if Ms. Contreras were correct, her arguments at most support a remand so that the district court could consider these factually intense issues. Ms. Contreras also hyperbolically contends (at 2, 9) that Arizona voters are being “effectively being deprived of their constitutional right to direct democracy” entirely and that “Arizona is depriving Arizonans of their constitutional right to direct democracy.” But the district court expressly found that “a ‘reasonably diligent’ committee could have placed its initiative on the November 2020 ballot despite the Title 19 requirements and the COVID-19 outbreak,” and the evidence “strongly suggests that, had Plaintiffs simply started gathering signatures earlier, they could have
25

… qualify[ied]” ADD-20. Ms. Contreras simply ignores these findings. Ms. Contreras further ignores that at least one committee that was more
diligent and started earlier, Smart and Safe Arizona, had already gathered approximately 300,000 signatures and looks highly likely to qualify for the 2020 ballot—refuting Ms. Contreras’s grandiose claims that the State has effectively eliminated direct democracy in 2020. ADD-19; ADD-187. As in all prior elections, reasonably diligent initiative campaigns can still qualify for the Arizona ballot.
2. Professor Bender (Doc. 11-3) Professor Bender’s primary claim appears to be (at 12) that “[a]llowing Plaintiffs to temporarily gather signatures … through E-Qual would also further, rather than conflict with, the purpose of article IV, part 1, section 1(9) of the Arizona Constitution.” But Professor Bender ignores that the Article IV Presence Mandate does not merely set forth a purpose, but also provides a specific procedure to accomplish that purpose—which Plaintiffs’ relief directly conflicts with. Supra at 17. And Professor Bender’s disavowal of constitutional text in favor of purpose is not how the Arizona Supreme Court approaches constitutional analysis. Indeed, just last week that court reiterated that “[a]s a general rule of constitutional interpretation, ‘clear and unambiguous language is given its plain meaning unless absurd or impossible consequences will result.’” Morrissey v. Garner, __ Ariz. __, 2020 WL 1918688, at *2 (Ariz. Apr. 21, 2020). And the Article IV Presence Mandate precludes E-Qual for initiative petitions in “clear and unambiguous language.”
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More generally, Professor Bender’s purposivist argument is precisely the sort of reasoning that would allow bench trials and out-of-court interrogatories to satisfy the Sixth Amendment’s Jury Trial and Confrontation Clauses. See supra at 15-17. Indeed, while the State expressly made this argument in response to Professor Bender in the Arizona Supreme Court, ADD-392-395, Professor Bender has made no effort to supplement his analysis here to provide a response.
In any event, Professor Bender’s purposivist arguments fail even on their own terms. While he contends (at 13) that “Electronic signature gathering through E-Qual is therefore far better at preventing fraud than in-person, face-to-face, signature gathering,” that claim is unsupported by the record. Notably, one of the amici below observed that all of the credentials needed to access the E-Qual system are public records obtainable by literally anyone, ADD-193, which Plaintiffs never disputed (nor did Petitioners or their amici in the Arizona Supreme Court dispute that). The verification that Professor Bender extols as “far better” thus may be easy to overcome by anyone intent on impersonating Arizona voters.
3. League of Women Voters of Arizona (“League”) (Doc. 12) The League’s brief is entirely policy based, and does not appear to raise any arguments that the district court erred. The Arizona Supreme Court has already made plain that policy arguments cannot be used to trump the Article IV Presence Mandate. See Western Devcor, 168 Ariz. at 432; supra at 14-15. The League also ignores that one of the initiative campaigns that is a petitioner in the Arizona Supreme Court has
27

begun to circulate via mail. See Makar Decl. Ex. A. Those same procedures could be effective to circulate amongst the populations that the League’s brief addresses.
4. Grand Canyon Institute (Doc. 15-2) Most of the Institute’s arguments appear directed at contending that the Plaintiffs satisfy this Court’s “reasonable diligence” standard. See Angle, 673 F.3d at 1133. Plaintiffs, however, have not made any argument on appeal that they satisfy that standard, thereby waiving any such contention. The Institute’s brief cannot not undo Plaintiffs’ forfeiture. Moreover, the Institute’s analysis is based upon examining “citizen initiatives that submitted signatures proposing constitutional amendments from 2012 to 2018.” Br. at 9. But none of that evidence is in the record. As the district court properly observed, “Plaintiffs haven’t proffered any evidence of those reasons and norms in their declarations.” ADD-20. Amici cannot reach outside the record to show that a district court’s factual findings were clearly erroneous based on evidence never submitted to it. Nor does the Institute even contend that the district court clearly erred, ignoring (like Plaintiffs) the standard of review here. In any event, the Institute’s analysis is inapposite. The relevant question is not when the least diligent campaigns that successfully qualified for the ballot began circulating (qualifying perhaps in spite of their level of diligence rather than because of it). Instead, this Court examines whether “‘reasonably diligent’ candidates can normally gain a place on the ballot, or whether they will rarely succeed in doing so.” Angle, 673 F.3d at 1133 (citation omitted). The reference to “normally” alone suggests
28

that exceptional events are off the table. In any event, the Smart and Safe campaign has provided powerful evidence that even now it is not the case that it is “rare” that an initiative will qualify for the ballot. Even in this pandemic, that initiative appears quite likely to qualify, supra at 26, which the Institute ignores entirely. It further ignores statutory initiatives completely for reasons that are not explained.
The Institute impugns the district court’s order as “requir[ing] that petition circulators seek signatures via door-to-door canvassing, rather than through E-Qual.” Br. at 14-16 (parading the horribles of “canvassing” at this time). This is a classic false choice as the district court required no such thing, and Plaintiffs’ refusal to consider alternatives undermines their arguments. See, e.g., ADD-298 (“Petitioners also do not explain why they could not be using this time to communicate with voters … and then arrange for actual execution after the pandemic has receded”).
The Institute also suggests (at 17-18) that there is only “minimal risk of fraud[],” citing federal law. But at least one amici argued below that all of the necessary pedigree information were public records, ADD-193—which was not disputed below. A remand would thus be required to resolve this disputed issue of fact if should it become relevant.
5. Legislative Democrats (Doc. 16-2) Legislative Democrats assert a false equivalence (at 9-10) that principles of “avoiding fraud are just as strong for candidates as they are for ballot measures”—so why not use the E-Qual for initiative petitions? But there is an enormous gulf
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between nominating a candidate who will likely face at least one opponent for a fixed term of office, and initiating legislation that is nigh-permanent as “it is extremely
difficult to amend a law that was enacted via the initiative process.” ADD-28. Moreover, Legislative Democrats offer precious little in terms of actual legal
argument (such as addressing the actual text of Article IV or addressing Western Devcor). Their brief makes almost no effort show any error by the district court—
indeed, not citing its opinion at all. CONCLUSION
For the foregoing reasons, Plaintiffs’ request for an injunction pending appeal should be denied.
Respectfully submitted,
MARK BRNOVICH ATTORNEY GENERAL
s/ Drew C. Ensign Drew C. Ensign
Deputy Solicitor General Robert J. Makar Jennifer J. Wright
Assistant Attorneys General 2005 N. Central Avenue Phoenix, AZ 85004 Telephone: (602) 542-5025 Facsimile: (602) 542-4377 Counsel for the State of Arizona
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CERTIFICATE OF SERVICE I, Drew C. Ensign, hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on April 29, 2020, which will send notice of such filing to all registered CM/ECF users.
s/ Drew C. Ensign Drew C. Ensign
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 No. 20-15719
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
__________________
ARIZONANS FOR FAIR ELECTIONS, et al.,
Plaintiffs-Appellants, v.
KATIE HOBBS, Arizona Secretary of State; et al. Defendants-Appellees,
STATE OF ARIZONA,
Intervenor-Defendant-Appellee
On Appeal from the United States District Court for the District of Arizona
No. 2:20-cv-00658-DWL
__________________
RESPONSE OF ARIZONA SECRETARY OF STATE TO AMICUS BRIEF BY ARIZONA REPUBLICAN PARTY
__________________
ROY HERRERA DANIEL A. ARELLANO JILLIAN L. ANDREWS BALLARD SPAHR LLP 1 East Washington Street, Suite 2300 Phoenix, Arizona 85004 602-798-5400 arellanod@ballardspahr.com
Counsel for Arizona Secretary of State Katie Hobbs __________________________________________________________________

The Arizona Secretary of State files this Response for the limited purpose of correcting a misstatement of fact made by the Arizona Republican Party and repeated by the Arizona Attorney General to this Court. As the Secretary explained to the District Court, a registered voter who wishes to sign a petition electronically using E-Qual must first authenticate the voter’s identity by entering the voter’s name, full date of birth, and either the voter’s (i) Arizona driver’s license number, or (ii) voter identification number and last four digits of the voter’s Social Security number. Resp. of Ariz. Sec’y of State Katie Hobbs to Mot. For TRO and Prelim. Inj. at 1, No. CV-20-00658-PHX-DWL (D. Ariz. Apr. 10, 2020, ECF No. 78.
In its Amicus Brief, the Arizona Republican Party, without citation to any source or authority, states that a voter’s name, date of birth, and driver’s license number are each public records that “can be obtained by literally anybody” from the Arizona Department of Transportation’s Motor Vehicle Division. Amicus Brief (Doc. 28) at 2. The Amicus Brief goes on to assert that “[a]nyone can easily acquire a list of Arizona voter names and corresponding [driver’s license] numbers and [dates of birth] from the DMV and enter that information to sign petitions.” Id. That is
1

not true, yet the Arizona Attorney General endorses it as fact. See Att’y Gen. Response (Doc. 25) at 27 (presenting the Arizona Republican Party’s assertion before the District Court “that all of the credentials needed to access the E-Qual system are public records obtainable by literally anyone” as undisputed fact).
The Attorney General—who is the State’s chief law enforcement officer and who, in fact, represents the Arizona Department of Transportation—should know better. The release and use of personally identifying information—including a person’s name, full date of birth, and driver’s license number—from the Arizona Department of Transportation is strictly circumscribed under the Driver’s Privacy Protection Act and Arizona law. See A.R.S. §§ 28-440–458; 18 U.S.C. §§ 2721–2725. Indeed, the Department may release such information only under a discrete set of limited circumstances, and Social Security numbers may be disclosed in fewer circumstances still. See A.R.S. § 28455(A)(2) (providing that absent express consent, highly restricted personal information, including Social Security numbers, can be disclosed only to government agencies to carry out their public functions; for use by licensed attorneys or private investigators in connection with
2

civil, criminal, administrative, or arbitral proceedings; to liability insurers for claims investigation activities, antifraud activities, rating, or underwriting; and by employers or their insurers to obtain or verify information about commercial driver’s licenses required under federal law); 18 U.S.C. § 2721(a)(2) (same). The only circumstance in which a requestor without a specifically defined professional need for the information may obtain an individual’s record is by demonstrating the written consent of the individual. A.R.S. § 28-455(C)(13).
A person requesting a driver record from the Department must “present personal identification and state the reason for making the request.” A.R.S. § 28-449(B). The Department must verify the person’s name and address and maintain a record of the request. A.R.S. § 28449(B), (D). The requestor must certify, under penalty of perjury, “that any records or information obtained pursuant to [the] request will be used solely for the uses indicated on [the request] form, and for no other use.” Ariz. Dep’t of Transp. Motor Vehicle Div., Motor Vehicle Record Request, https://apps.azdot.gov/files/mvd/mvd-forms-lib/46-4416.pdf (last visited May 1, 2020).
3

The requestor must also ask for each record individually; records may not be disclosed in bulk except with consent or under specifically defined and limited circumstances. A.R.S. § 28-455(E). There is no provision in either Arizona or federal law allowing the bulk release of highly restricted personal information, including social security numbers. And a person who obtains or discloses personal information from a motor vehicle record for any use not expressly permitted by law, or who obtains such information under false pretenses, is subject to civil and criminal liability. A.R.S. § 28-457; 18 U.S.C. § 2722–2724.
Access to personally identifying information from voter records is likewise strictly limited, and improper access or use is punishable as a felony. See A.R.S. § 16-168(F) (providing that a voter’s full date of birth, full or partial social security number, and driver’s license number, among other personal data, must not be made accessible except to discretely defined groups of professionals). And, perhaps needless to say, it is a crime fraudulently to sign a candidate nomination or initiative petition— whether on paper or through E-Qual. See A.R.S. § 16-1020 (“A person knowingly signing any name other than his own to a nomination petition [except on request by a person with a disability]. . . or who is not at the
4

time of signing a qualified elector entitled to vote at the election initiated by the petition, is guilty of a class 1 misdemeanor”); id. § 19-119.01(C) (providing that “a person who engages or participates in a pattern of petition signature fraud is guilty of a class 4 felony”). If the Attorney General is truly concerned about or aware of persons committing widespread fraud through E-Qual, he, as Arizona’s chief law enforcement officer, has the authority to investigate and bring those perpetrators to justice. There has been no such action by the Attorney General in his six years in office, yet he raises unsubstantiated specters of fraud as an excuse for limiting access to constitutional rights in the midst of a global pandemic.
For these reasons, the Arizona Republican Party and Attorney General are wrong to argue that E-Qual is susceptible to fraud based on the false assertion that a voter’s name, date of birth, driver’s license number, or social security number are each readily accessible to any member of the public. They are not.
5

Respectfully submitted this 1st day of May, 2020, By:/s/ Daniel A. Arellano ROY HERRERA JILLIAN L. ANDREWS DANIEL A. ARELLANO BALLARD SPAHR LLP 1 East Washington St, Suite 2300 Phoenix, Arizona 85004 602.798.5400 arellanod@ballardspahr.com Counsel for Arizona Secretary of State Katie Hobbs
6

CERTIFICATE OF SERVICE I hereby certify that on May 1, 2020, I electronically filed the foregoing Response with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF System. I further certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
By: /s/ Daniel A. Arellano
7

 
 UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAY 5 2020

ARIZONANS FOR FAIR ELECTIONS,

No. 20-15719

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

AZAN, an Arizona nonprofit corporation; et

al.,

D.C. No. 2:20-cv-00658-DWL

District of Arizona,

Plaintiffs-Appellants,

Phoenix

v.

ORDER

KATIE HOBBS, Arizona Secretary of State; et al.,

Defendants-Appellees,

STATE OF ARIZONA,

Intervenor-DefendantAppellee.

Before: SILVERMAN, NGUYEN, and COLLINS, Circuit Judges. Appellee State of Arizona’s motion for leave to file a combined response to
appellants’ emergency motion and to amicus briefs (Docket Entry No. 24-1) is granted. The response has been filed (Docket Entry Nos. 24, 25).
Appellants’ emergency motion for injunctive relief (Docket Entry No. 3) is denied. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). Appellants, having failed to challenge the Arizona constitutional requirement of inperson signatures, cannot get the redress from the court they now seek by only challenging the statute at issue. See Ariz. Const. art. IV, pt. 1, § 1(9) (initiative

sz/MOATT

petitions must be “signed in the presence of the affiant”); see also M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018).
All other pending motions will be addressed by separate order. The briefing schedule established previously remains in effect.

sz/MOATT

2

20-15719

 
 Case 2:20-cv-00658-DWL Document 108 Filed 05/19/20 Page 1 of 1
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAY 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

ARIZONANS FOR FAIR ELECTIONS, AZAN, an Arizona nonprofit corporation; et al.,
Plaintiffs-Appellants,
v.
KATIE HOBBS, Arizona Secretary of State; et al.,
Defendants-Appellees,
STATE OF ARIZONA,
Intervenor-DefendantAppellee.

No. 20-15719 D.C. No. 2:20-cv-00658-DWL District of Arizona, Phoenix
ORDER

The conference previously scheduled for May 20, 2020, is canceled. Appellants’ motion to dismiss this appeal (Docket Entry No. 39) is granted. Fed. R. App. P. 42(b). The parties shall bear their own costs on appeal. A copy of this order shall serve as and for the mandate of this court.
FOR THE COURT

rsk/mediation

By: Robert S. Kaiser Circuit Mediator

 
 SUPREME COURT OF ARIZONA

ARIZONANS FOR SECOND CHANCES,

)

REHABILITATION AND PUBLIC SAFETY )

(SPONSORED BY ASJ ACTION FUND); )

SMART AND SAFE ARIZONA; INVEST )

IN EDUCATION (SPONSORED BY AEA )

AND STAND FOR CHILDREN); and

)

SAVE OUR SCHOOLS ARIZONA,

)

)

Petitioners, )

)

v.

)

)

KATIE HOBBS, in her official

)

capacity as Arizona Secretary of )

State,

)

)

Respondent. )

)

__________________________________)

Arizona Supreme Court No. CV-20-0098-SA
FILED: 05/13/2020

O R D E R The Court en banc has considered Petitioners’ “Corrected Combined Petition for Special Action and Appendix,” the responses, replies and amicus briefs in this matter. Upon consideration, IT IS ORDERED accepting special action jurisdiction and denying relief. An opinion will issue in due course. Vice Chief Justice Timmer voted to grant relief.

DATED this 13TH day of May, 2020.

______/s/______________________ ROBERT BRUTINEL Chief Justice

Arizona Supreme Court Case No. CV-20-0098-SA Page 2 of 2
TO:
Roopali H Desai D Andrew Gaona Kristen M Yost Roy Herrera Daniel A Arellano Gregrey G Jernigan Mark Brnovich Oramel H Skinner Joseph A Kanefield Brunn W Roysden III Drew Curtis Ensign Jennifer Wright Anthony R Napolitano Robert J Makar David J Cantelme D Aaron Brown Timothy Sandefur Christina Sandefur Timothy A LaSota Daniel J Adelman Spencer Garrett Scharff Dennis I Wilenchik John D Wilenchik Paul F Eckstein Austin Yost Shawn K Aiken Lisette Flores Rhonda L Barnes Jane Ahern

 
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