Case: 2:17-cv-4102 As of: 09/30/2018 02:30 PM MST 1 of 8
CLOSED,MIDP,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:17−cv−04102−DGC

League of United Latin American Citizens Arizona et al v. Reagan et al Assigned to: Judge David G Campbell Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/07/2017 Date Terminated: 06/18/2018 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

League of United Latin American Citizens Arizona

represented by Adav Noti Campaign Legal Center 1411 K St. NW, Ste. 1400 Washington, DC 20005 202−736−2200 Email: anoti@campaignlegalcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew William Schwartz Shute Mihaly & Weinberger LLP 396 Hayes St. San Francisco, CA 94102 415−552−7272 Fax: 415−552−5816 Email: schwartz@smwlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arusha Gordon Lawyers Committee for Civil Rights Under Law 1401 New York Ave. NW, Ste. 400 Washington, DC 20005 202−662−8306 Email: agordon@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle M Lang Campaign Legal Center 1411 K St. NW, Ste. 1400 Washington, DC 20005 202−736−2200 Email: dlang@campaignlegalcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ezra D Rosenberg Lawyers Committee for Civil Rights Under Law 1401 New York Ave. NW, Ste. 400 Washington, DC 20005 202−662−8345 Email: erosenberg@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Gerald Hebert Campaign Legal Center 1411 K St. NW, Ste. 1400

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Washington, DC 20005 202−736−2200 Email: ghebert@campaignlegalcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jon Marshall Greenbaum Lawyers Committee for Civil Rights Under Law 1401 New York Ave. NW, Ste. 400 Washington, DC 20005 202−662−8315 Fax: 202−628−2858 Email: jgreenbaum@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manuel G Escobar , Jr. Manuel G Escobar Jr. Attorney at Law 201 W Poplar San Antonio, TX 78212 210−225−1400 Fax: 210−281−0333 Email: Escobarm1@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P Gaber Campaign Legal Center 1411 K St. NW, Ste. 1400 Washington, DC 20005 202−736−2200 Email: mgaber@campaignlegalcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M Smith Campaign Legal Center 1411 K St. NW, Ste. 1400 Washington, DC 20005 202−736−2200 Email: psmith@campaignlegalcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Spencer Garrett Scharff Goddard Law Office PLC 502 W Roosevelt St. Phoenix, AZ 85003 602−739−4417 Email: scharff@goddardlawplc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie L Safdi Shute Mihaly & Weinberger LLP 396 Hayes St. San Francisco, CA 94102 415−552−7272 Fax: 415−552−5816 Email: safdi@smwlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winter King

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Shute Mihaly & Weinberger LLP 396 Hayes St. San Francisco, CA 94102 415−552−7272 Fax: 415−552−5816 Email: king@smwlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Arizona Students' Association

represented by Adav Noti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew William Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arusha Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle M Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ezra D Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Gerald Hebert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon Marshall Greenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Manuel G Escobar , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P Gaber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul M Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Spencer Garrett Scharff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:17-cv-4102 As of: 09/30/2018 02:30 PM MST 4 of 8

Stephanie L Safdi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winter King (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Michele Reagan In her official capacity as Secretary of State of Arizona
Defendant

represented by David Andrew Timchak Wilenchik & Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Fax: 602−606−2810 Email: davidt@wb−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Ira Wilenchik Wilenchik & Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Fax: 602−606−2811 Email: diw@wb−law.com 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
Joseph Eugene LaRue Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−1763 Fax: 602−542−8308 Email: AdminLaw@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kara Karlson Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−8118 Fax: 602−542−8308 Email: AdminLaw@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Adrian Fontes In his official capacity as Maricopa County Recorder

represented by M Colleen Connor Maricopa County Attorneys Office 222 N Central Ave., Ste. 1100 Phoenix, AZ 85004 602−372−2275 Fax: 602−506−8567 Email: connorc@mcao.maricopa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Talia Janelle Offord Maricopa County Attorneys Office − Phoenix (Central Ave.) 222 N Central Ave., Ste 1100 Phoenix, AZ 85004−2206 602−506−8144 Email: offordt@mcao.maricopa.gov ATTORNEY TO BE NOTICED

Date Filed 11/07/2017 11/07/2017 11/07/2017 11/07/2017 11/07/2017 11/07/2017
11/07/2017 11/09/2017

# Docket Text
1 COMPLAINT. Filing fee received: $ 400.00, receipt number 0970−14838734 filed by League of United Latin American Citizens Arizona, Arizona Students' Association.(Submitted by Spencer Scharff) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Civil Cover Sheet)(KAS) (Entered: 11/07/2017)
2 SUMMONS Submitted by Arizona Students' Association, League of United Latin American Citizens Arizona. (Submitted by Spencer Scharff) (Attachments: # 1 Summons)(KAS) (Entered: 11/07/2017)
3 Corporate Disclosure Statement by League of United Latin American Citizens Arizona identifying Corporate Parent League of United Latin American Citizens for League of United Latin American Citizens Arizona. (Submitted by Spencer Scharff)(KAS) (Entered: 11/07/2017)
4 Corporate Disclosure Statement by Arizona Students' Association. (Submitted by Spencer Scharff)(KAS) (Entered: 11/07/2017)
5 Filing fee paid, receipt number 0970−14838734. This case has been assigned to the Honorable Judge David G Campbell. All future pleadings or documents should bear the correct case number: CV−17−4102−PHX−DGC. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (KAS) (Entered: 11/07/2017)
6 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. (KAS) (Entered: 11/07/2017)
7 Summons Issued as to Adrian Fontes, Michele Reagan. (Attachments: # 1 Summons)(KAS). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 11/07/2017)
Remark: Pro hac vice motions granted for Danielle Lang, Paul M Smith, J Gerald Hebert, and Mark P Gaber on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/09/2017)

Case: 2:17-cv-4102 As of: 09/30/2018 02:30 PM MST 6 of 8

11/09/2017
11/14/2017 11/14/2017 11/20/2017 11/20/2017 11/20/2017 11/20/2017 11/20/2017
11/22/2017 11/22/2017 11/22/2017 11/27/2017
11/29/2017 11/30/2017 12/01/2017

8 ORDER that motions pursuant to Fed. R. Civ. P. 12(b) are discouraged if the defect can be cured by filing an amended pleading. The parties must meet and confer prior to the filing of such motions to determine whether it can be avoided. FURTHER ORDERED that Plaintiff(s) serve a copy of this Order upon Defendant(s) and file a notice of service. See attached Order for complete details. Signed by Judge David G Campbell on 11/9/2017. (DGC, nvo) (Entered: 11/09/2017)
9 NOTICE of Appearance by M Colleen Connor on behalf of Adrian Fontes. (Connor, M) (Entered: 11/14/2017)
Remark: Pro hac vice motion granted for Adav Noti on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/14/2017)
10 NOTICE of Appearance by Kara Karlson on behalf of Michele Reagan. (Karlson, Kara) (Entered: 11/20/2017)
11 NOTICE re: of Service by Arizona Students' Association, League of United Latin American Citizens Arizona re: 8 Order re Rule 12(b) Motions . (Lang, Danielle) (Entered: 11/20/2017)
12 SERVICE EXECUTED filed by Arizona Students' Association, League of United Latin American Citizens Arizona: Affidavit of Service re: Summons and Complaint upon Michele Reagan, in her official capacity as Secretary of State of Arizona on November 8, 2017. (Scharff, Spencer) (Entered: 11/20/2017)
13 SERVICE EXECUTED filed by Arizona Students' Association, League of United Latin American Citizens Arizona: Affidavit of Service re: Summons and Complaint upon Adrian Fontes, in his official capacity as Maricopa County Recorder on November 8, 2017. (Scharff, Spencer) (Entered: 11/20/2017)
14 ORDER SETTING RULE 16 CASE MANAGEMENT CONFERENCE: Case Management Conference set for 1/24/2018 at 04:30 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. See document for complete details. Signed by Judge David G Campbell on 11/20/17. (EJA) (Entered: 11/20/2017)
15 NOTICE of Appearance by Dennis Ira Wilenchik on behalf of Michele Reagan. (Wilenchik, Dennis) (Entered: 11/22/2017)
16 MOTION for Extension of Time to File Answer by Michele Reagan. (Wilenchik, Dennis) (Entered: 11/22/2017)
17 Additional Attachments to Main Document re: 16 MOTION for Extension of Time to File Answer by Defendant Michele Reagan. (Attachments: # 1 Text of Proposed Order)(Wilenchik, Dennis) (Entered: 11/22/2017)
18 ORDER granting a one−time extension of time until 12/29/2017 for Defendant Reagan to respond to complaint. The parties' obligations to produce the information called for in the MIDP will be triggered by Defendant's answer to the complaint after the extension. The parties should be aware that the filing of a motion to dismiss under Rule 12(b)(6) will not postpone the time for compliance with the MIDP. General Order 17−08 provides that compliance may be deferred only for motions to dismiss based on lack of subject−matter jurisdiction, lack of personal jurisdiction, sovereign immunity, or absolute or qualified immunity of a public official. No further extensions will be granted. Signed by Judge David G Campbell on 11/27/2017. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC, nvo) (Entered: 11/27/2017)
19 Maricopa County Recorder's ANSWER to 1 Complaint for Declaratory and Injunctive Relief by Adrian Fontes.(Connor, M) (Entered: 11/29/2017)
Remark: Pro hac vice motions granted for Winter King, Andrew W Schwartz and Stephanie Safdi on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/30/2017)
Remark: Pro hac vice motion granted for Manuel G Escobar Jr on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/01/2017)

Case: 2:17-cv-4102 As of: 09/30/2018 02:30 PM MST 7 of 8

12/06/2017 12/07/2017 12/15/2017 12/15/2017 12/29/2017 01/04/2018 01/04/2018
01/17/2018 01/24/2018

20 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Joseph Eugene LaRue. (LaRue, Joseph) (Entered: 12/06/2017)
Remark: Pro hac vice motion granted for Jon M Greenbaum on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/07/2017)
Remark: Pro hac vice motion granted for Arusha Gordon on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/15/2017)
Remark: Pro hac vice motion granted for Ezra D Rosenberg on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/15/2017)
21 Defendant Arizona Secretary of State Michele Reagan's ANSWER to 1 Complaint by Michele Reagan.(Karlson, Kara) (Entered: 12/29/2017)
22 *Amended NOTICE of Appearance by Talia Janelle Offord on behalf of Adrian Fontes. (Offord, Talia) *Modified on 1/5/2018 (SLQ). (Entered: 01/04/2018)
Remark: As to out of state attorney Luis Roberto Vera, Jr. − removed for noncompliance with admission procedures; parties represented by other admitted counsel. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (KAS) (Entered: 01/04/2018)
23 Rule 26(f) Report for Mandatory Initial Discovery Pilot (MIDP) on behalf of all parties filed by Plaintiffs Arizona Students' Association, League of United Latin American Citizens Arizona. (Lang, Danielle) (Entered: 01/17/2018)
24 MINUTE ENTRY for proceedings held before Judge David G Campbell: Scheduling Conference held on 1/24/2018. Discussion held. Parties agree to a Magistrate Judge designation for settlement conference. Judge Eileen S. Willett randomly drawn. Parties to contact her Court to set a date and time. Deadlines discussed. Court will enter a case management order.

01/26/2018 01/29/2018
01/29/2018 01/29/2018 01/29/2018

APPEARANCES: Danielle Lang, Spencer Scharff, Andrew Schwartz for Plaintiffs. Joseph LaRue ad David Timchak for Defendant Michele Reagan. Colleen Connor and Talia Offord for Defendant Adrian Fontes. (Court Reporter Patricia Lyons.) Hearing held 4:28 PM to 4:59 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 01/25/2018)
25 CASE MANAGEMENT ORDER: Discovery due by 8/3/2018. Dispositive motions due by 12/14/2018.(see order for additional deadlines). Signed by Judge David G Campbell on 1/26/2018. (TCA) (Entered: 01/26/2018)
26 ORDER SETTING SETTLEMENT CONFERENCE − Telephonic Status Conference is set on Friday, September 28, 2018 at 2:00 p.m., before United States Magistrate Judge Eileen S. Willett, 602−322− 7620. All counsel who will participate in the Settlement Conference shall participate in the Telephonic Status Conference. A Settlement Conference shall be held before United States Magistrate Judge Eileen S. Willett in Courtroom 606, Sandra Day O'Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona, on Monday, October 22, 2018 at 9:30 a.m. The Settlement Conference shall continue until concluded by the court. (See document for complete details). Signed by Magistrate Judge Eileen S Willett on 1/29/18. (SLQ) (Entered: 01/29/2018)
27 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendant Michele Reagan. (LaRue, Joseph) (Entered: 01/29/2018)
28 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) Initial Disclosure Statement filed by Defendant Adrian Fontes. (Offord, Talia) (Entered: 01/29/2018)
29 NOTICE re: Service of Plaintiffs' MIDP Responses by League of United Latin American Citizens Arizona . (King, Winter) (Entered: 01/29/2018)

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01/29/2018 03/20/2018 03/22/2018 05/10/2018 05/10/2018
05/14/2018
06/04/2018 06/18/2018 09/21/2018

30 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Plaintiff League of United Latin American Citizens Arizona. Document 29 is being re−docketed with the correct event for statistical purposes. (SLQ) (Entered: 01/30/2018)
31 Joint MOTION for Extension of Time Adjournment of Time by Michele Reagan. (Attachments: # 1 Text of Proposed Order Order Granting Motion for Time)(LaRue, Joseph) (Entered: 03/20/2018)
32 ORDER granting 31 Motion for Extension of Time Deadline. Deadline to join parties, amend pleadings, and file supplemental pleadings is extended to 5/11/2018. Signed by Judge David G Campbell on 3/22/2018.(DGC, nvo) (Entered: 03/22/2018)
33 Second MOTION for Extension of Time SECOND JOINT MOTION FOR AN ADJOURNMENT OF TIME by Arizona Students' Association, League of United Latin American Citizens Arizona. (Attachments: # 1 Text of Proposed Order ORDER GRANTING SECOND JOINT MOTION FOR AN ADJOURNMENT OF TIME)(Schwartz, Andrew) (Entered: 05/10/2018)
34 NOTICE TO FILER OF DEFICIENCY re: 33 Second MOTION for Extension of Time SECOND JOINT MOTION FOR AN ADJOURNMENT OF TIME filed by League of United Latin American Citizens Arizona, Arizona Students' Association. Document not in compliance with LRCiv 7.1(a)(3) which states that 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. (SLQ) (Entered: 05/10/2018)
35 ORDER granting 33 Motion for Extension of Time Deadline. The Court will grant one more extension of the deadline for amending pleadings, adding parties, etc., to June 8, 2018. The Court will not grant further extensions of this deadline, and reminds the parties that the litigation schedule is in place and running. Signed by Judge David G Campbell on 5−14−18. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 05/14/2018)
36 Joint MOTION to Approve Consent Judgment by Arizona Students' Association, League of United Latin American Citizens Arizona. (Attachments: # 1 Text of Proposed Order Exhibit A Consent Decree)(Lang, Danielle) (Entered: 06/04/2018)
37 CONSENT DECREE − The Joint Motion for Approval of Consent Judgment (Doc. 36 ) is granted. The Clerk of Court is directed to terminate this action. (See document for complete details). Signed by Judge David G Campbell on 6/18/18. (SLQ) (Entered: 06/18/2018)
38 ORDER − A Consent Decree having been entered, IT IS ORDERED vacating Telephonic Status Conference set for September 28, 2018 and Settlement Conference set for October 22, 2018. Signed by Magistrate Judge Eileen S Willett on 9/21/18. (SLQ) (Entered: 09/21/2018)

 
 Case 2:17-cv-04102-DGC Document 1 Filed 11/07/17 Page 1 of 29

Spencer G. Scharff (Bar No. 028946) Goddard Law Office PLC 502 W. Roosevelt Street Phoenix, Arizona 85003 (602) 258-5521 scharff@goddardlawplc.com
Attorney for the Plaintiffs (additional counsel below)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

League of United Latin American No. Citizens Arizona; Arizona Students’ Association,

Plaintiffs,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

v.

Michele Reagan, in her official capacity as Secretary of State of Arizona; Adrian Fontes, in his official capacity as Maricopa County Recorder,
Defendants.

1. This is an action challenging Arizona’s arbitrary dual voter registration policies that irrationally disenfranchise thousands of eligible Arizona voters and further no legitimate state interests. After the Supreme Court held that the National Voter Registration Act (“NVRA”) did not allow Arizona to reject
1

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federal registration forms for lack of documentary proof of citizenship (“DPOC”), the Secretary of State implemented a dual registration system in order to enforce its DPOC requirement for state election voter registration. The design of this system, however, is so fundamentally flawed that it disenfranchises tens of thousands of Arizonans without furthering the state policies, however tenuous, behind the original DPOC requirement. 2. Arizona’s current registration policies arbitrarily disenfranchise eligible voters depending on whether they happen to complete the Arizona Voter Registration Form (“State Form”) (attached as Exhibit 1) or the National Mail Voter Registration Form (“Federal Form”) (attached as Exhibit 2) even though Arizona holds out its state form as an omnibus option for registering for all elections. 3. If the voter completes the Federal Form without DPOC, the voter is registered to vote in federal elections but not state elections and advised to submit DPOC to vote in state elections. However, if the voter completes the State Form without DPOC, the voter is not registered for state or federal elections and, in violation of prior court order, is not advised of the Federal Form option. 4. The Secretary’s policies also impose unjustified burdens on access to the right to vote by rejecting voter registration forms for lack of DPOC even
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when the Secretary of State’s office already has the type of evidence necessary to satisfy the statutory DPOC requirement readily available to it. 5. The impact of these unjustified policies on eligible Arizona voters is undeniable. Upon information and belief, at least 26,000 voters in Maricopa County alone have been disenfranchised by these policies. Moreover, based on a sample of over 2,000 rejected State Form registrations for lack of DPOC across eight counties, less than fifteen percent of the rejected voters successfully re-registered after receiving notice of the rejection of their registrations. Therefore, many eligible voters across Arizona have been disenfranchised by these unnecessary bureaucratic policies. 6. These policies violate prior federal court orders, have disenfranchised tens of thousands of Arizonans, and cannot survive constitutional scrutiny.
JURISDICTION AND VENUE 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343. 8. This Court has personal jurisdiction over the Defendant Secretary of State Reagan, an elected official for the State of Arizona and resident of the State of Arizona. 9. This Court has personal jurisdiction over the Defendant Maricopa County Recorder Fontes, an elected official for Maricopa County and resident of Maricopa County.
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10. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).
11. This Court has authority to issue declaratory and injunctive relief
pursuant to 28 U.S.C. §§ 2201 and 2202.
FACTS
Proposition 200
12. In 2004, Arizona passed a state initiative, Proposition 200, that would
require voters to present documentary proof of citizenship—in addition to the
already-existing attestation of U.S. citizenship requirement on federal and
state registration forms—to register to vote. Ariz. Rev. Stat. §§ 16-166(F), 16-
152(A)(23).
13. Under the law, sufficient DPOC includes:
• The number of the applicant’s driver license or nonoperating identification license issued after October 1, 1996 by the department of transportation or the equivalent governmental agency of another state within the United States if the agency indicates on the applicant's driver license or nonoperating identification license that the person has provided satisfactory proof of United States citizenship.
• A legible photocopy of the applicant’s birth certificate that verifies citizenship to the satisfaction of the county recorder.
• A legible photocopy of pertinent pages of the applicant’s United States passport identifying the applicant and the applicant’s passport number or presentation to the county recorder of the applicant's United States passport.
• A presentation to the county recorder of the applicant’s United States naturalization documents or the number of the certificate of naturalization. If only the number of the 4

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certificate of naturalization is provided, the applicant shall not be included in the registration rolls until the number of the certificate of naturalization is verified with the United States immigration and naturalization service by the county recorder.
• Other documents or methods of proof that are established pursuant to the immigration reform and control act of 1986.
• The applicant’s bureau of Indian affairs card number, tribal treaty card number or tribal enrollment number.
Ariz. Rev. Stat. § 16-166(F).
14. Proposition 200’s DPOC requirements are not the only proof of
citizenship required for applying to register to vote. Both the Federal Form
and the State Form require attestations, under penalty of perjury, of an
individual’s citizenship of the United States and residency in Arizona.1
1 This case challenges the Secretary of State’s dual registration policies, which cannot be justified even assuming a legitimate state interest in requiring DPOC of voters before they can register for state elections. However, Plaintiffs do not concede that Arizona has any such legitimate interest in requiring DPOC. There is no evidence of significant noncitizen voting anywhere in the country. In Kobach v. United States Election Commission, Arizona sought to force the Election Assistance Commission to include its DPOC requirement on the state-specific instructions for the Federal Form by arguing that it was necessary for it to determine the eligibility of voters. 772 F.3d 1183 (10th Cir. 2014). Applying traditional APA review standards, the Tenth Circuit held that the record established that Arizona “failed to advance proof that registration fraud in the use of the Federal Form prevented Arizona and Kansas from enforcing their voter qualifications.” Id. at 1188. Since then, further litigation in Kansas has led to additional court findings that DPOC requirements do not address any meaningful problem of noncitizen voting and result in large-scale disenfranchisement of eligible voters. Fish v. Kobach, 840 F.3d 710, 749, 755 (10th Cir. 2016) (“Here, Secretary Kobach offers us nothing more than the meager evidence of noncitizens registering to vote that he proffered in connection with his statutory arguments supra— evidence that we deemed insufficient to show that substantial numbers of noncitizens had registered to vote.”); (“On the other side of the equation is the near certainty that without the preliminary injunction over 18,000 U.S. citizens in Kansas will be disenfranchised for purposes of the 2016 federal elections—elections less than one month away.”).
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15. Initially, Arizona applied this additional step for voter registration to both state and federal elections. 16. However, Arizona residents and non-profit organizations (including Plaintiff League of United Latin American Citizens Arizona) filed suit alleging, among other things, that Proposition 200 violated the National Voter Registration Act (“NVRA”) by requiring additional information beyond that required on the Federal Form. The NVRA requires that all states “accept and use” the Federal Form for voter registration for federal offices. 52 U.S.C. § 20505(a)(1). The purpose of this provision and the NVRA overall was to “establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office.” 52 U.S.C. § 20501(b)(1). 17. In 2013, the Supreme Court held that the NVRA’s requirement that all states “accept and use” the uniform Federal Form for registration in federal elections, 52 U.S.C. § 20505(a)(1), preempted the law, at least insofar as it applied to Federal Form registrants. See Arizona v. Inter Tribal Council of Arizona (“Inter Tribal”), 133 S. Ct. 2247 (2013). 18. Therefore, Arizona is no longer permitted to restrict access to voting in federal elections based on provision of DPOC. 19. After Inter Tribal, the Arizona Attorney General issued an opinion, at the request of Arizona Secretary of State Ken Bennett, finding that Arizona law allows for a dual registration system for state and federal elections and
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determining that voters who do not attach DPOC should not be registered for state elections pursuant to state law. Ariz. Op. Atty. Gen. No. I13-011 (2013). 20. In June 2014, the Secretary of State published a new Election Procedures Manual to implement the bifurcated voter registration system proposed by the 2013 Attorney General Opinion. See State of Arizona Elections Procedures Manual (2014) (attached as Exhibit 3). 21. Unfortunately, the Secretary of State’s procedures do not solely implement the Attorney General’s command that “[f]or state and local matters, registration is contingent on each applicant’s providing evidence of citizenship.” Ariz. Op. Atty. Gen. No. I13-011 (2013). The Secretary of State’s procedures unnecessarily create a system that distinguishes and disenfranchises individuals in federal elections based solely on which registration form they use, not their eligibility to vote or what information they provide, and disenfranchises voters in state elections even when the required DPOC for those voters is readily available to the Secretary of State.
Arbitrary Failure to Register Voters for Federal Elections 22. The State Form and Federal Form collect the exact same information about voter registrants. If a voter uses a Federal Form and does not attach DPOC, she is registered for federal elections only and notified to submit DPOC in order to vote in state elections. But if that voter registrant happens to use a State Form—which Arizona election officials hold out as a universal
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form for state and federal elections—she is not registered for any elections, federal or state. The State Form does not inform the voters of this critical distinction, nor do nearly all county recorders’ offices, in clear violation of the District Court judgment in Inter Tribal, see infra at ¶¶ 28-36. There is no basis for this arbitrary treatment of voters. 23. Arizona disseminates its State Form as an omnibus option for registering for state and federal elections, pursuant to the NVRA, 52 U.S.C. § 20505(a)(2). 24. The 2014 Election Procedures Manual instructs registrars that “a federal form may not be rejected because the applicant has not provided evidence of citizenship.” Ex. 3 at 22. If the registrar is unable to verify citizenship through relevant MVD records, see infra, the registrant is still registered for federal elections. 25. Yet, the same manual instructs registrars to disregard State Form applications completely if they do not contain DPOC: “If the form is not accompanied by proper proof of citizenship, the voter registration form is not valid and either will not be entered into the system or if it was entered into the system, the record shall be canceled. If the registrant subsequently provides proof of citizenship, it must be accompanied by a new voter registration form and a new registration date.” Id. at 17.
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26. Apart from the DPOC requirement, there is no meaningful difference between the information provided on the State Form and the Federal Form with respect to proving eligibility to vote. Both forms include an attestation of citizenship, under penalty of perjury, and all the other necessary information to register to vote for federal elections. 27. Thus, in the absence of DPOC, the rejection of one citizen’s registration and the acceptance of another’s registration to vote in federal elections hinge entirely on what form the citizen submits, not whether they attach DPOC. 28. Defendants further exacerbate the harms of this arbitrary system by failing to educate voters about this critical distinction in violation of the District Court’s order in Inter Tribal. 29. The District Court’s order in Inter Tribal required Defendants, including the Secretary of State and all Recorders and Election Directors of Arizona’s counties, to “ensure that all written materials regarding the process for registering to vote, that Defendants distribute or make available to the public (including websites), include a statement that individuals may apply to register to vote in elections for Federal office using the Federal Form, and that, in using the Federal Form, applicants are not required to provide the documentary proof of citizenship information . . . in order to register to vote.” Gonzalez v. Arizona, No. CV-06-1268, 2013 WL 7767705, at *1 (D. Ariz. Sept. 11, 2013) (emphasis added).
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30. But this notification is absent from nearly all written materials distributed by election officials regarding voter registration. 31. First and foremost, the State Form lacks any notification of the Federal Form option, which does not require DPOC. See Ex. 1. To the contrary, the State Form instructs voters that DPOC is an unqualified requirement for voter registration. Id. 32. Therefore, when the State Form is distributed to voters at local agencies, registration drives, libraries, and other locations, voters are not aware of the Federal Form option. 33. Second, this notification is also absent from the instructions on voter registration given by election officials on most county recorders’ websites in all but two counties, Apache County, which has a population under 100,000, and Yavapai County, which has a population under 225,000. See Exhibit 4 (collecting the information provided on each county recorders’ website).2 34. Indeed, most recorders’ websites have instructions regarding the DPOC requirement that inform voters that they “must also include proof of citizenship or the form will not be processed” while failing to explain that this
2 The Pima County Recorder website includes information about the Federal Form in its Voter FAQs section under the following question: “Is there more than one form to register to vote in Arizona and are there differences between the forms?” However, on its voter registration page, it does not include any information about the Federal Form option and instead links to a document titled “New Voter Registration Requirements” that states that voter registration “must also include proof of citizenship” and does not include any information about the Federal Form option. Ex. 4 at 23-25.
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is not the case with respect to Federal Forms for federal elections. See, e.g., Pima County Recorder, Notice: New Voter Registration Requirements, https://www.recorder.pima.gov/docs/prop200.pdf; Ex. 4. 35. Finally, notification of the Federal Form option is notably absent from the Secretary of State’s proposed mail notification to voters that submit a State Form without DPOC. Ex. 3 at 316, 322. These potential voters, who were not able to attach DPOC when turning in the State Form, are the most relevant audience for this notification. But the Secretary’s proposed mail notification to these potential voters does not instruct officials to advise registrants of the Federal Form option. Instead, the sample letter states that the “law now requires that all NEW voter registration forms must be accompanied by satisfactory evidence of United States Citizenship” and “[y]our name will not be added to the voter registration file until we have received the new enclosed voter registration form with the required information.” Id. at 322 (emphasis added). 36. As a result, county recorders’ offices send notices to voters who submit State Forms without DPOC that do not explain the option of using the Federal Form to register for federal elections and instead suggest that
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providing DPOC is the only option to register to vote in any elections. See Exhibit 5 (form letters from eleven county recorders).3 37. The option to register to vote in federal elections without DPOC is particularly important for those voters who lack the underlying documentation, easy access to copying services, and/or transportation to a registration office to deliver DPOC. 38. It is also crucial for those voters who are only able to register prior to the deadline at a local registration drive, local library, or agency and do not have their birth certificate or other DPOC on their person at the time. 39. Upon information and belief, this system has barred at least 26,000 otherwise eligible voters who used the State Form from participating in federal elections in Maricopa County alone and thousands more in other counties.
Failure to Register Voters When MVD Records Confirm Citizenship 40. The Secretary of State’s policies also instruct election officials to reject the registrations of voters even when satisfactory DPOC for those voters is
3 Defendant Secretary of State’s website includes one notification on its website of the Federal Form option: “Individuals may apply to register to vote in elections for Federal office using the Federal Voter Registration Form (link is external). In using the Federal Form, applicants are not required to provide proof of citizenship in order to register to vote in elections for Federal office.” Arizona Secretary of State, Register to Vote or Update Your Current Voter Information, https://www.azsos.gov/elections/voting-election/register-vote-orupdate-your-current-voter-information (last visited Nov. 2, 2017).
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readily available to the Secretary of State through the ordinary voter registration process. 41. As part of the ordinary voter registration process, the Secretary of State’s office coordinates with the MVD to check every new voter registration, from both State and Federal Form registrants, against the MVD database. Where a driver’s license or identification license number is not provided on the registration form, “[t]he Secretary of State will match available data with the Arizona Motor Vehicle Division. If there is a match, data from MVD will be added to the record.” Ex. 3 at 17. 42. Pursuant to Ariz. Rev. Stat. § 16-166(F), valid DPOC includes a “number of the applicant’s driver license or nonoperating identification license issued after October 1, 1996 by the department of transportation or the equivalent governmental agency of another state within the United States if the agency indicates on the applicant’s driver license or nonoperating identification license that the person has provided satisfactory proof of United States citizenship.” 43. Thus, in the case of Federal Forms, the Secretary of State has a commonsense policy. Even if the voter does not affirmatively provide a driver’s license number, if there is a match with MVD that provides a driver’s license number and that driver’s license meets the statutory requirements above, election officials are instructed that “this constitutes proof of
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citizenship . . . even if the registrant provided no other form of proof of citizenship.” Ex. 3 at 25. 44. Yet, for State Form registrants that do not provide a driver’s license number or another form of proof of citizenship, election officials are instructed to reject outright the registration before the Secretary of State has the opportunity to conduct the MVD matching it would ordinarily perform and that could easily provide proof of citizenship. Id. at 17. (“If the form is not accompanied by proper proof of citizenship [including a Arizona driver’s license number], the voter registration is not valid and either will not be entered into the system or if it was entered into the system, the record shall be cancelled.”). 45. Regardless of Arizona’s interest in obtaining DPOC from its voters prior to state election registration, see supra note 1, Arizona does not have any legitimate interest in rejecting the registration forms of eligible Arizona voters for lack of “proof of citizenship” when the statutorily required proof is readily available to it. 46. Upon information and belief, Defendant Maricopa County Recorder’s office has begun to match voters’ registration data with MVD data to determine if adequate proof of citizenship is readily available before rejecting a voter’s registration for lack of DPOC regardless of whether the voter used the State Form or Federal Form.
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47. Upon information and belief, Defendant Fontes is also retroactively using this process for the approximately 26,000 previously disenfranchised voters who submitted State Forms to the Maricopa County Recorder’s office yet were never registered to vote. 48. Upon information and belief, Defendant Fontes has determined that at least 8,000 of those disenfranchised voters have a match in the Arizona driver’s license database and, therefore, many of those individuals’ citizenship can be readily verified. 49. Upon information and belief, following Defendant Reagan’s manual, other county recorders do not match MVD data for State Form registrants before rejecting them for failure to provide proof of citizenship although they match MVD data for Federal Form registrants and register those voters for all elections where the MVD match provides proof of citizenship. 50. There is no rational basis for this distinction. 51. There is no legitimate justification for disenfranchisement of voters where the statutory proof of citizenship is readily available to election officials. 52. Arizona’s DPOC statute and the Secretary of State’s DPOC policies impose additional unnecessary burdens on voters unrelated to the state’s asserted interest in obtaining DPOC from voters for registration.
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53. For instance, Arizona requires eligible voters to re-submit documentary proof of citizenship if a voter moves to another county within Arizona. See Ariz. Rev. Stat. § 16-166(G)-(H). Thus, once again, even where Defendants have voters’ proof of citizenship available to them in another county recorder’s office, election officials reject eligible voters’ registrations on the basis of lack of proof of citizenship. 54. Defendant Secretary of State’s policies also require voters who failed to include DPOC with their initial voter registration form to re-submit their voter registration forms rather than merely providing the missing information, even if the submitted forms were facially valid. See Ex. 4 (county recorder notices requiring voters to resubmit their voter registration forms). This policy imposes an unnecessary and unjustifiable burden on voters, particularly those with limited literacy who rely on assistance to complete forms.4 55. The Secretary of State’s policies also bar voters from updating their voter registration records with valid proof of citizenship after the voter registration deadline even though the Election Manual allows voters to
4 According to the 2003 National Assessment of Adult Literacy, twelve percent of adults in the United States have below basic document literacy (defined as “the knowledge and skills needed to perform document tasks”). Nat’l Ctr. For Educ. Statistics, Assessment of Adult Literacy, A First Look at the Literacy of America’s Adults in the 21st Century (2006), https://nces.ed.gov/NAAL/PDF/2006470.PDF. An example of document literacy is the ability to fill out a certified mail receipt based on given information. Id. at 26.
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update other “missing key information” in their voter registration applications up to the day before an election. Ex. 3 at 13, 35. 56. Finally, the Secretary of State has issued a draft chapter on registration of the 2017-2018 Election Procedures Manual (attached as Exhibit 6). Rather than developing policies that ensure that all voter registrants are registered so long as statutory DPOC is obtainable, the Secretary of State’s new proposed manual affirmatively requires election officials to reject State Form registrants for failure to provide DPOC before the MVD matching process, which could easily provide the necessary statutory proof. See Ex. 6 at 42 (“A State Form without accompanying satisfactory proof of citizenship must be rejected. A County Recorder may not acquire proof of citizenship on the registrant’s behalf.”). Moreover, it proposes ceasing to use MVD matching to verify citizenship for Federal Form registrants. Id. at 46 (“If a registrant failed to provide an AZ DL/ID # on the Federal Form but the AZ DL/ID # is later ‘acquired’ from the MVD proxy table, this does not constitute satisfactory proof of citizenship that allows that registrant to become a ‘full ballot voter.’”). 57. If this new draft chapter goes into effect, it will further compound the constitutional harms of the current policies by increasing the number of eligible voters disenfranchised despite Arizona’s access to adequate DPOC for those voters.
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58. The impact of these policies on eligible Arizona voters is undeniable. Upon information and belief, at least 26,000 voters in Maricopa County alone have been disenfranchised by these policies. Moreover, based on a sample of over 2,000 rejected State Form registrations for lack of DPOC across eight counties, less than fifteen percent of the rejected voters successfully reregistered after receiving notice of the rejection of their registrations. Therefore, many eligible voters across Arizona have been disenfranchised by these unnecessary bureaucratic policies.
PARTIES Plaintiffs League of United Latin American Citizens Arizona 59. Plaintiff League of United Latin American Citizens Arizona (LULACArizona) is the Arizona-based branch of the oldest and largest national Latino civil rights organization. LULAC is a non-profit membership organization with a presence in most of the fifty states. Founded in 1929, it works to advance the economic condition, educational attainment, political influence, health and civil rights, including voting rights, of the Hispanic population of the United States. 60. LULAC-Arizona members live in all sectors of the State. LULAC has local councils throughout Arizona including in Phoenix, San Luis, Tucson, Tempe, Yuma and other smaller communities.
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61. LULAC-Arizona’s members are affected by the undue burdens Arizona’s voter registration policies place on eligible Arizona citizens. Over 400,000 eligible Latino citizens in Arizona, or nearly half of eligible Latinos in Arizona, are not currently registered to vote. 62. Voter registration activity is key to LULAC’s mission of increasing civic participation of its members. LULAC-Arizona has committed and continues to commit time, personnel, and resources to voter registration drives in Arizona. 63. Voter registration is an ongoing yearly project, organized by LULAC and LULAC-Arizona together with other organizations and LULAC-Arizona members throughout the State. LULAC-Arizona members participate in registration drives in various forums including schools, college and universities, malls, fairs and organized block walking activities registering citizens to vote. 64. Due to Arizona’s unconstitutional and differential treatment of voter registrations depending on the form used, LULAC has had to divert and continues to divert its resources, including staff and volunteer time, to helping voters navigate the dual voter registration system. 65. Defendants’ disparate treatment of State and Federal Forms means that voter registration drive organizers must either use the State Form and forego registering voters without DPOC available to them, use the Federal
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Form and require volunteers to inform every potential voter of the DPOC requirement orally, or engage in an individualized assessment of which form to give to a voter based on their DPOC access. All of these options impose severe limitations on the success of LULAC-Arizona’s voter registration activity. 66. Since LULAC-Arizona conducts voter registration drives on-site in communities with the goal of completing voter registrations on-site, potential voters who do not have Arizona drivers’ licenses and/or do not have DPOC with them cannot fully participate. 67. As a result of Defendants’ ongoing unconstitutional policies, LULACArizona’s voter registration drivers are less successful; LULAC-Arizona must dedicate more resources in order to register the same number of members; and fewer LULAC-Arizona members are able to successfully register to vote.
Arizona Students’ Association 68. Plaintiff Arizona Students’ Association (“ASA”) is a student-led, nonpartisan membership organization created to represent the collective interest of the over 140,000 university students and over 400,000 community college students in Arizona. ASA advocates at the local, state, and national levels for the interests of students. As a part of its mission, ASA encourages students throughout Arizona to register to vote through voter registration activity.
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ASA has committed and continues to commit time and personnel to voter registration drives in Arizona. 69. ASA’s members, students throughout Arizona, are particularly affected by the undue burdens Arizona’s voter registration policies place on eligible Arizona citizens. Many students are young adults who are just becoming eligible to vote and therefore must register for the first time. Students in Arizona living on campuses often do not have easy access to their birth certificates or other underlying documentation. Many students eligible to vote in Arizona have out-of-state driver’s license that do not meet the statutory DPOC requirements. Many other students cannot afford to pay for state IDs or driver’s licenses. Finally, students in Arizona tend to relocate often and are required to re-submit DPOC anytime they move from one county to another. 70. ASA has regularly conducted and will continue to conduct voter registration drives in Arizona. These voter registration drives focus on registering students, many of whom are first time voters and unfamiliar with the voter registration system. ASA conducts its voter registration drives on school sites throughout Arizona. 71. Due to the State’s unconstitutional and differential treatment of voter registrations depending on the form used, ASA has had to divert and
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continues to divert its resources, including staff and volunteer time, to helping eligible voters navigate the dual voter registration system. 72. Defendants’ disparate treatment of State and Federal Forms means that voter registration drive organizers must either use the State Form and forego registering voters without DPOC available to them, use the Federal Form and require volunteers to inform every potential voter of the DPOC requirement orally, or engage in an individualized assessment of which form to give to a voter based on their DPOC access. All of these options impose severe limitations on the success of ASA’s voter registration activity. 73. Since ASA conducts voter registration drives on-site at schools with the goal of completing voter registrations on-site, potential ASA members and voters who do not have Arizona drivers’ licenses and/or do not have DPOC with them cannot fully participate. 74. As a result of Defendants’ ongoing unconstitutional policies, ASA’s voter registration drivers are less successful; ASA must dedicate more resources in order to register the same number of members; and fewer ASA members are able to successfully register to vote.
Defendants 75. Defendant Michele Reagan is the Arizona Secretary of State, a statewide elected public officer, and is named in her official capacity. The Secretary of State serves as the Chief Election Officer for Arizona. Ariz. Rev.
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Stat. § 16-142. The Secretary of State is the public officer responsible for supervising voter registration throughout the state and providing binding regulations and guidelines for voter registration. Id; see also Arizona Democratic Party v. Reagan, No. CV-16-03618, 2016 WL 6523427 at *6 (D. Ariz. Nov. 3, 2016) (“The Secretary has the authority to promulgate rules and procedures for elections, such as voter registration, which encompasses determining voter registration deadlines. . . . Any person who does not abide by the Secretary’s rules is subject to criminal penalties.”). 76. Defendant Adrian Fontes is the Maricopa County Recorder, a countywide elected officer, and is named in his official capacity. Ariz. Const. Art. XII § 3. The Maricopa County Recorder is responsible for conducting voter registration in Maricopa County.
CLAIMS Count 1: Undue Burden on the Right to Vote and Equal Protection,
14th Amendment (42 U.S.C. § 1983) 77. Plaintiffs reallege the facts set forth in paragraphs 1-76 above. 78. “There is no right more basic in our democracy than the right to participate in electing our political leaders.” McCutcheon v. FEC, 134 S. Ct. 1434, 1440–41 (2014). The Supreme Court has recognized that “voting is of the most fundamental significance under our constitutional structure” and the right to an effective vote is protected by the Equal Protection Clause of
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the Fourteenth Amendment. See Burdick v. Takushi, 504 U.S. 428, 433-44 (1992). Indeed, the right to vote is the “fundamental political right . . . preservative of all rights.” Reynolds v. Sims, 377 U.S. 533, 562 (1964) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). 79. When analyzing the constitutionality of a restriction on voting, the Court “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). 80. Defendants Secretary of State’s current procedures for Arizona’s dual registration system arbitrarily distinguish between Federal Form and State Form applicants and unjustifiably result in the disenfranchisement of eligible Arizona voters in both state and federal elections. 81. Upon information and belief, by failing to register State Form applicants without DPOC for federal elections—while registering Federal Form applicants that provide the exact same information for federal elections—Defendants deprive tens of thousands of eligible voters of the right to vote in federal elections. Defendants exacerbate these harms by failing to
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advise registrants of the Federal Form option. This policy does not serve Arizona’s asserted interest in obtaining DPOC from voters prior to their registration in state elections. 82. Upon information and belief, by instructing officials not to match State Form applicants’ data against MVD data to verify citizenship—even though Defendant Reagan instructs officials to conduct MVD matching as a matter of course during the registration process for all registrants and considers that data sufficient proof for similarly situated Federal Form applicants— Defendant Reagan deprives thousands of eligible voters the right to vote in both state and federal elections. This policy does not serve Arizona’s asserted interest in obtaining DPOC from voters prior to their registration in state elections because DPOC for the affected voters is readily available to Defendants. 83. By requiring voters to re-submit new proof of citizenship when they move to a new county, Defendants impose unnecessary and unjustifiable burdens on the right to vote of eligible Arizonans. This requirement does not serve Arizona’s asserted interest in obtaining DPOC from voters prior to their registration in state elections because DPOC for the affected voters is readily available to Defendants. 84. With the exception of the requirement that voters re-submit proof of citizenship when they move from one county to another, these policies are not
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required by state or federal law and are merely the result of the Secretary of

State’s policies.

85. These policies cannot survive even rational basis review and certainly

cannot survive the more exacting review given to voting restrictions.

Count 2: Undue Burden on the Right to Vote, 1st Amendment (42 U.S.C. § 1983)

86. Plaintiffs reallege the facts set forth in paragraphs 1-85 above.

87. Voting and participating in the election process is a form of speech and

expression. It is the ultimate form of political speech and association and is

entitled to First Amendment protection.

88. As unjustified restrictions on access to the right to vote, Defendants’

dual voter registration policies violate the First Amendment.

PRAYER FOR RELIEF

89.

WHEREFORE, Plaintiffs respectfully pray that this Court:

(1) Enter judgment in favor of Plaintiffs and against Defendants on

the claims for relief as alleged in this Complaint;

(2) Enter a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and

2202 declaring that the above-described policies of the Defendant Secretary of

State Reagan violate the Equal Protection Clause of the Fourteenth

Amendment and the First Amendment;

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(3) Grant Plaintiffs preliminary and/or permanent injunctive relief by ordering that Defendants:
a. Register State Form applicants to vote in federal elections if their forms are otherwise valid regardless of whether they attach DPOC;
b. Match State Form registrants’ data with MVD records to verify citizenship before rejecting State Form registrants for state and local elections;
c. Refrain from requiring State Form registrants to re-submit DPOC when they move from one county to another and reregister;
d. Notify potential voters of the option to register to vote in federal elections without DPOC in all written materials regarding the process for registering to vote that Defendants distribute or make available to the public (including websites).
(4) Retain jurisdiction over the Defendants for such period of time as may be appropriate to ensure the Defendants’ compliance with relief ordered by this Court;
(5) Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and
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(6) Grant Plaintiffs such other and further relief as may be just and
equitable.
November 7, 2017
By: /s/ Spencer G. Scharff
Spencer G. Scharff (AZ Bar No. 028946) Goddard Law Office PLC 502 W. Roosevelt Street Phoenix, Arizona 85003 Tel: (602) 258-5521 Email: scharff@goddardlawplc.com
Paul M. Smith (DC Bar No. 358870)* J. Gerald Hebert (VA Bar No. 38432)* Adav Noti (DC Bar No. 490714)* Danielle Lang (CA Bar No. 304450)* † Mark Gaber (DC Bar No. 988077)* Campaign Legal Center 1411 K Street NW Suite 1400 Washington, DC 20005 Tel: (202) 736-2200 Email: dlang@campaignlegalcenter.org †Admitted in New York and California only; practice limited to U.S. courts and federal agencies
Jon M. Greenbaum (DC Bar No. 489887)* Ezra D. Rosenberg (DC Bar No. 360927)* Arusha Gordon (DC Bar No. 1035129)* Lawyers’ Committee for Civil Rights Under Law 1401 New York Avenue NW Suite 400 Washington, DC 20005 Tel: (202) 662-8345 Email: erosenberg@lawyerscommittee.org
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Case 2:17-cv-04102-DGC Document 1 Filed 11/07/17 Page 29 of 29
Andrew W. Schwartz (CA Bar No. 87699)* Winter King (CA Bar No. 237958)* Stephanie L. Safdi (CA Bar No. 310517)* Shute, Mihaly & Weinberger LLP 396 Hayes Street San Francisco, CA 94102 Tel: (415) 552-7272 Email: schwartz@smwlaw.com Luis Roberto Vera, Jr. (TX Bar No. 20546740)* Law Office of Luis Roberto Vera Jr. LULAC National General Counsel 111 Soledad, Ste 1325 San Antonio, TX 78205 Tel: 210-225-3300 Email: lrvlaw@sbcglobal.net Manuel G. Excobar, Jr. (TX Bar No. 06665800)* LULAC National Legal Advisor 201 W. Poplar St. San Antonio, TX 78212 Tel: 210-225-1400 Email: Escobarm1@aol.com *Pro hac vice application forthcoming
29

 
 Case 2:17-cv-04102-DGC Document 26 Filed 01/29/18 Page 1 of 7

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10 League of United Latin American Citizens No. CV-17-04102-PHX-DGC Arizona, et al.,,

11

ORDER SETTING SETTLEMENT

Plaintiff,

CONFERENCE

12

v. 13

Michele Reagan, et al., 14

Defendants. 15

16

17

This case has been referred to United States Magistrate Judge Eileen S. Willett for

18 a settlement conference (Doc. 24). The purpose of the settlement conference is to

19 facilitate resolution of the referenced case.

20

Rule 408, Federal Rules of Evidence, applies to all aspects of the settlement

21 conference. All communications and information exchanges made in the settlement

22 process, not otherwise discoverable, will not be admissible in evidence for any purpose.

23 At the conclusion of the settlement conference, all documents submitted by the parties

24 shall be returned, destroyed, or otherwise disposed of in the manner directed by the

25 settlement judge.

26

Pursuant to Rule 16, Federal Rules of Civil Procedure, and 28 U.S.C. §473(b)(5),

27

IT IS ORDERED THAT:

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Case 2:17-cv-04102-DGC Document 26 Filed 01/29/18 Page 2 of 7

1

2

1. Telephonic Status Conference is set on Friday, September 28, 2018 at

3 2:00 p.m., before United States Magistrate Judge Eileen S. Willett, 602-322-7620. All

4 counsel who will participate in the Settlement Conference shall participate in the

5 Telephonic Status Conference. The Court will discuss the manner in which this

6 Magistrate Judge conducts Settlement Conferences. In addition, counsel should be

7 prepared to discuss any information which may assist the Court in helping the parties

8 reach a fair resolution of issues pending before the Court. Counsel shall deliver or mail

9 their respective Confidential Settlement Statement forms to the Magistrate Judge so that

10 the Magistrate Judge can read them in preparation for the Telephonic Status Conference.

11 Counsel for Plaintiff shall initiate the conference call to Chambers.

12

2. A Settlement Conference shall be held before United States Magistrate Judge

13 Eileen S. Willett in Courtroom 606, Sandra Day O’Connor U.S. Courthouse, 401 West

14 Washington Street, Phoenix, Arizona, on Monday, October 22, 2018 at 9:30 a.m. The

15 Settlement Conference shall continue until concluded by the court.

16

3. Sanctions may result, including possible dismissal of the case, if a party fails

17 to:

18

 Physically appear at the Settlement Conference;

19

 Participate in good faith at the Settlement Conference;

20  Timely submit the Confidential Settlement Statement attached
21 hereto; OR
22

23

 Comply with any other portion of this order.

24

4. Each named party shall be physically present at the Settlement Conference

25 unless the court finds good cause to permit a party to appear by telephone prior to the

26 settlement conference being held.

27 5. A corporation, association, partnership, business entity, organization,
28

- 2 -

Case 2:17-cv-04102-DGC Document 26 Filed 01/29/18 Page 3 of 7

1 governmental agency, or political body shall appear through a representative having full 2 binding settlement authority in addition to counsel.1

3

6. Counsel who will be responsible for trial of the lawsuit for each party shall

4 personally appear and participate in good faith at the Settlement Conference.

5 7. Each party (i.e. each separately represented party and each unrepresented party)
6 shall submit a completed settlement statement form (a copy is attached for your use) in an
7 envelope marked “Confidential” addressed to Honorable Eileen S. Willett, Settlement
8 Conference Judge, United States District Court, 401 West Washington Street, Suite 321,
9 SPC 13, Phoenix, Arizona, 85003-2120. The statement may be hand delivered or
10 mailed; however, it must be received by United States Magistrate Judge Eileen S. Willett
11 on or before Friday, September 21, 2018.
12

13

8. If a party believes that the Settlement Conference would be a futile act2

14 resulting in economic waste inconsistent with Rule 1, Fed. R. Civ. P., the party shall file a

15 notice with the Court no later than fourteen (14) days after the date of this Order. The

16 party shall also provide a copy of the notice to Magistrate Judge Eileen S. Willett’s

17 chambers. The notice shall explain in detail why the party believes the Settlement

18 Conference would not be an efficient use of time and resources of the parties and the

19 Court. Upon receiving the notice, the Court will arrange a telephonic conference with

20 counsel to discuss whether the Settlement Conference, or another form of alternative

21 dispute resolution, would help move the case towards resolution.

22

9. Failure to timely file the notice described in the preceding paragraph constitutes

23

24

25

1 “Full binding settlement authority” within this Order means that the individual

appearing for or on behalf of the Defendant(s) shall have the express authority and

26 discretion to authorize payment to, or accept the terms of, Plaintiff’s last settlement

27 demand.

28

2 A settlement conference may be deemed a futile act, for example, when a party

or insurer adopts a position from which that party or insurer refuses to deviate.

- 3 -

Case 2:17-cv-04102-DGC Document 26 Filed 01/29/18 Page 4 of 7

1 a party’s acknowledgment and agreement that there is a reasonable, good faith

2 opportunity to resolve the case at the Settlement Conference.

3

Dated this 29th day of January, 2018.

4

5

6

Honorable Eileen S. Willett

7

United States Magistrate Judge

8

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- 4 -

Case 2:17-cv-04102-DGC Document 26 Filed 01/29/18 Page 5 of 7

1

2

CONFIDENTIAL SETTLEMENT STATEMENT

3

4 IN RE: CV-

5

6 THIS DOCUMENT IS CONFIDENTIAL AND SHOULD BE SENT DIRECTLY
7 TO THE SETTLEMENT CONFERENCE JUDGE, HON. EILEEN S. WILLETT,
8 UNITED STATES DISTRICT COURT, 401 WEST WASHINGTON STREET,
9 SUITE 321, SPC 13, PHOENIX, AZ 85003. THIS DOCUMENT SHALL NOT BE
10 SERVED ON THE OPPOSING PARTY NOR FILED WITH THE CLERK OF
11 THE COURT. THIS DOCUMENT WILL BE DESTROYED AT THE
12 CONCLUSION OF THE SETTLEMENT CONFERENCE PROCEEDINGS. NO
13 REFERENCE TO THIS DOCUMENT OR ITS CONTENTS SHALL BE MADE IN
14 ANY MOTIONS, BRIEFS OR OTHER DOCUMENTS FILED IN THIS CASE.
15 THIS DOCUMENT SHALL BE INADMISSABLE IN EVIDENCE IN ANY
16 JUDICIAL PROCEEDING.
17

18

19 PARTY SUBMITTING STATEMENT:
20

21

NAME OF ATTORNEY SUBMITTING STATEMENT: (OR PARTY IF UNREPRESENTED BY COUNSEL)

22

23 ADDRESS:

24 25 PHONE: 26 FAX:

27

28

- 5 -

Case 2:17-cv-04102-DGC Document 26 Filed 01/29/18 Page 6 of 7
1 2 FACTS 3 Give a brief statement of the undisputed facts. Give a brief statement of the disputed 4 facts. 5 6 7 ISSUES 8 List all issues to be negotiated: 9 10 11 HISTORY 12 Give a chronology of significant events involving any prior settlement discussions and 13 mediations attended, including each offer or demand made. 14 15 16 CASE ANALYSIS: Yours 17 Describe from your perspective the strengths and weaknesses of your case: 18 19 20 CASE ANALYSIS: Theirs 21 Describe from their perspective the strengths and weaknesses of their case: 22 23 24 CRITERIA: 25 List the criteria you will use to decide if a proposal is acceptable: 26 27 28 List the criteria you believe they will use to decide if a proposal is acceptable:
- 6 -

Case 2:17-cv-04102-DGC Document 26 Filed 01/29/18 Page 7 of 7

1

2

3 OPTIONS:

4 Generate a list of possible options for each issue to be negotiated.

5

6

ISSUES

OPTIONS

7

8

9

10

11

12 ANY OTHER INFORMATION THAT YOU FEEL WOULD HELP THE 13 SETTLEMENT CONFERENCE JUDGE: 14

15

DATED this

day of

16

, 2014.

17

Signature of Counsel or Party

18

19

20

21

Please use the format provided to answer the questions posed. Please be

courteous and reasonable in the length of your responses. 22

23

24

25

26

27

28

- 7 -

 
 Case 2:17-cv-04102-DGC Document 36 Filed 06/04/18 Page 1 of 7

1 Danielle Lang (CA Bar No. 304450)

Paul M. Smith (DC Bar No. 358870) 2 J. Gerald Hebert (VA Bar No. 38432)

3 Adav Noti (DC Bar No. 490714) Mark Gaber (DC Bar No. 988077)

4 CAMPAIGN LEGAL CENTER

5

1411 K Street NW Suite 1400 Washington, DC 20005

6 Tel: (202) 736-2200

Email: dlang@campaignlegalcenter.org 7 Attorneys for the Plaintiffs

8 (additional counsel below)

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF ARIZONA

11

12

League of United Latin American Citizens Arizona; Arizona Students’ Association,

13 Plaintiffs,
14

Case No. 2:17-CV-04102-DGC
JOINT MOTION FOR ENTRY OF CONSENT DECREE

15

v.

(Expedited Relief Requested)

16 Michele Reagan, in her official capacity as

17

Secretary of State of Arizona; Adrian Fontes, in his official capacity as Maricopa

18 County Recorder,

19

Defendants.

20

21

22

Come now, Plaintiff League of United Latin American Citizens of Arizona (“LULAC-

23 Arizona”), Plaintiff Arizona Students’ Association (“ASA”), Defendant Michele Reagan, in her

24 official capacity as Secretary of State of Arizona (the “Secretary”), and Defendant Adrian Fontes,
25 in his official capacity as Maricopa County Recorder (“Recorder Fontes”), hereinafter the
26 27 “Parties,” by and through their attorneys of record, and hereby request that the Court approve and

28 enter the attached Consent Decree (Exhibit A) as an Order of this Court.

Joint Motion for Entry of Consent Decree CASE NO. 2:17-CV-04102-DGC

Case 2:17-cv-04102-DGC Document 36 Filed 06/04/18 Page 2 of 7

1

On November 7, 2017, LULAC-Arizona and ASA initiated this action against the

2 Secretary and Recorder Fontes. The complaint alleged that Arizona’s dual voter registration
3 policies violate the First and Fourteenth Amendments to the United States Constitution.
4 5 Specifically, LULAC-Arizona and ASA alleged that Arizona treats voter registration applicants

6 differently depending on whether they use Arizona’s state registration form (the “State Form”) or

7 the national registration form (the “Federal Form”). At the time the lawsuit was filed and currently,
8 fourteen of Arizona’s County Recorders reject State Form applications submitted without valid
9 10 documentary proof of citizenship (“DPOC”). Federal law requires the County Recorders to accept

11 Federal Form applications, even when they are submitted without DPOC. The Motor Vehicles

12 Department (“MVD”) Proxy Table is then electronically checked through an automated process
13 to determine whether the Federal Form applicants have a valid driver’s license, which indicates
14 15 that DPOC is supposed to be on file with the MVD. Those with DPOC on file are eligible to vote

16 in both state and federal elections (“Full Ballot Voter”). Those who do not have DPOC on file

17 with the MVD remained as Fed Only Voters, able to vote in federal elections.
18 As a result, whether one who does not present valid DPOC is registered to vote in federal
19 20 elections is entirely dependent on which form the applicant uses to register. Those using the

21 Federal Form, but not providing DPOC, are registered to vote in federal elections; and, depending

22 on the results of the Secretary’s automated review of the MVD database, may be registered to
23 vote in state elections as well. But those using the State Form, and not providing valid DPOC, are
24 25 not registered to vote in any elections because the application is rejected in its entirety. LULAC-

26 Arizona and ASA alleged that this dual voter registration process violated the First and Fourteenth

27 Amendments.
28
2
Joint Motion for Entry of Consent Decree CASE NO. 2:17-CV-04102-DGC

Case 2:17-cv-04102-DGC Document 36 Filed 06/04/18 Page 3 of 7

1

The Secretary denies that Arizona’s voter registration policies violate the First and

2 Fourteenth Amendments or are otherwise illegal under state or federal law. The Secretary asserts
3 that Federal and State Form applicants are not similarly situated for equal protection purposes.
4 5 The Secretary asserts that Arizona is constitutionally permitted to require those applying to

6 register to vote using the State Form to personally provide DPOC at the time that they submit their

7 State Form. The Secretary further asserts that there is no constitutional or statutory requirement
8 that Arizona election officials register applicants for federal elections when they have chosen to
9 10 use the State Form to register to vote rather than the Federal Form.

11

Nevertheless, the Secretary and Recorder Fontes desire to make it as easy possible for

12 Arizona’s citizens to register to vote, while remaining consistent with Arizona and federal law
13 and also providing necessary safeguards to deter those who would commit voter registration fraud.
14 15 Having reviewed the applicable law, the Secretary and Recorder Fontes have concluded that

16 current technology allows the Secretary, Recorder Fontes, and the other Arizona County

17 Recorders to treat State Form applications exactly as they treat Federal Form applications, and
18 that because of current technology such treatment is consistent with the provisions of Arizona
19 20 law, including the requirements of Proposition 200, codified at A.R.S. §§ 16-166(F) and 16-

21 152(A)(23). The Secretary and Recorder Fontes agree that treating Federal Form and State Form

22 applications the same will make it easier for Arizona’s citizens to register to vote, while also
23 providing important safeguards to prevent unlawful voter registration. Accordingly, on February
24 25 8, 2018, the Secretary and Recorder Fontes through their counsel notified counsel for LULAC-

26 Arizona and ASA of their desire to enter into an agreement that will resolve the underlying

27 litigation and also benefit Arizona’s citizens.
28
3
Joint Motion for Entry of Consent Decree CASE NO. 2:17-CV-04102-DGC

Case 2:17-cv-04102-DGC Document 36 Filed 06/04/18 Page 4 of 7

1

The Parties have negotiated in good faith and agree to the entry of this Consent Decree as

2 an appropriate resolution of all claims. The Consent Decree would resolve all substantive claims
3 of the Plaintiffs in the above-captioned case.1 The Court should approve the Consent Decree
4 5 because it is fair, reasonable, in the public interest, and will benefit Arizona’s voters and elections.

6 Of note, the deadlines and compliance timelines included in the Consent Decree were carefully

7 negotiated to ensure that eligible voters in Arizona would benefit from the Consent Decree before
8 the upcoming August 2018 Primary Elections. In light of the foregoing, the Parties respectfully
9 10 request that this Court approve the Consent Decree and enter it as an Order of this Court as soon

11 as possible.

12 Dated: June 4, 2018 13 14 15 16 17 18 19 20 21 22 23 24 25

Respectfully Submitted,
/s/ Danielle Lang________________
Danielle Lang (CA Bar No. 304450) Paul M. Smith (DC Bar No. 358870) J. Gerald Hebert (VA Bar No. 38432) Adav Noti (DC Bar No. 490714) Mark Gaber (DC Bar No. 988077) CAMPAIGN LEGAL CENTER 1411 K Street NW Suite 1400 Washington, DC 20005 Tel: (202) 736-2200 Email: dlang@campaignlegalcenter.org
Spencer G. Scharff (AZ Bar No. 028946) GODDARD LAW OFFICE PLC 502 W. Roosevelt Street Phoenix, Arizona 85003 Tel: (602) 258-5521 Email: scharff@goddardlawplc.com

26 1 The matter of Plaintiffs’ attorneys’ fees and costs has not been fully resolved. As agreed upon

27 in the consent decree, the Parties will continue to negotiate in good faith and if the matter is not

28

resolved, Plaintiffs will file a motion for fees and costs within 45 days after entry of this Consent Decree.

4

Joint Motion for Entry of Consent Decree

CASE NO. 2:17-CV-04102-DGC

Case 2:17-cv-04102-DGC Document 36 Filed 06/04/18 Page 5 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Joint Motion for Entry of Consent Decree CASE NO. 2:17-CV-04102-DGC

Ezra D. Rosenberg (DC Bar No. 360927) Arusha Gordon (DC Bar No. 1035129) Jon M. Greenbaum (DC Bar No. 489887) LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue NW Suite 400 Washington, DC 20005 Tel: (202) 662-8345 Email: erosenberg@lawyerscommittee.org
Andrew W. Schwartz (CA Bar No. 87699) Winter King (CA Bar No. 237958) Stephanie L. Safdi (CA Bar No. 310517) SHUTE, MIHALY & WEINBERGER LLP 396 Hayes Street San Francisco, CA 94102 Tel: (415) 552-7272 Email: schwartz@smwlaw.com
Manuel G. Escobar, Jr. (TX Bar No. 06665800) LULAC National Legal Advisor 201 W. Poplar St. San Antonio, TX 78212 Tel: 210-225-1400 Email: Escobarm1@aol.com
Attorneys for Plaintiffs
MARK BRNOVICH Attorney General
/s/ Joseph E. La Rue (With Permission) Kara M. Karlson Joseph E. La Rue Assistant Attorneys General 2005 N. Central Ave. Phoenix, AZ 85007
Dennis I. Wilenchik, Esq. John D. Wilenchik, Esq. David A. Timchak, Esq. The Wilenchik & Bartness Building
5

Case 2:17-cv-04102-DGC Document 36 Filed 06/04/18 Page 6 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Joint Motion for Entry of Consent Decree CASE NO. 2:17-CV-04102-DGC

2810 North Third Street Phoenix, Arizona 85004 admin@wb-law.com Attorneys for Defendant Arizona Secretary of State Michele Reagan WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY /s/ Talia J. Offord (With Permission) M. Colleen Connor Talia J. Offord connorc@mcao.maricopa.gov offordt@mcao.maricopa.gov Attorneys for Defendant Maricopa County Recorder Adrian Fontes
6

Case 2:17-cv-04102-DGC Document 36 Filed 06/04/18 Page 7 of 7

1

CERTIFICATE OF SERVICE

2

I hereby certify that, on June 4, 2018, I electronically filed the foregoing with the Clerk of

3 the Court using the CM/ECF system, which will send notification of such filing to all counsel of
4

5 record.

6

/s/ Danielle Lang

7

Danielle Lang

8

Counsel for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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28
7
Joint Motion for Entry of Consent Decree CASE NO. 2:17-CV-04102-DGC

 
 Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 1 of 16

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 League of United Latin American Citizens of Arizona; Arizona Students’ Association, No. CV17-4102-PHX DGC
9

10

11

v.

Plaintiffs,

CONSENT DECREE

12 Michele Reagan, in her official capacity as
13 Secretary of State of Arizona; Adrian Fontes, in his official capacity as Maricopa
14 County Recorder,

15

Defendants.

16

17

18

Before the Court is the Joint Motion Requesting Entry of Consent Decree, filed by

19 Plaintiff League of United Latin American Citizens of Arizona (“LULAC-Arizona”),

20 Plaintiff Arizona Students’ Association (“ASA”), Defendant Michele Reagan, in her
21 official capacity as Secretary of State of Arizona (the “Secretary”), and Defendant
22 Adrian Fontes, in his official capacity as Maricopa County Recorder (“Recorder
23 Fontes”). Doc. 36. All Plaintiffs and Defendants shall hereafter be referred to as the
“Parties.”
24
On November 7, 2017, LULAC-Arizona and ASA initiated this action against the
25
Secretary and Recorder Fontes. The complaint alleged that Arizona’s dual voter
26
registration policies violate the First and Fourteenth Amendments to the United States
27
Constitution. Specifically, LULAC-Arizona and ASA alleged that Arizona treats voter
28

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 2 of 16

1 registration applicants differently depending on whether they use Arizona’s state

2 registration form (the “State Form”) or the national registration form (the “Federal

3 Form”). At the time the lawsuit was filed, fourteen of Arizona’s County Recorders
4 rejected State Form applications submitted without valid documentary proof of
5 citizenship (“DPOC”). Federal law required the County Recorders to accept Federal
6 Form applications, even when they are submitted without DPOC. The Motor Vehicles
7 Department (“MVD”) Proxy Table was then electronically checked through an automated process to determine whether the Federal Form applicants had a valid driver’s
8
license, which indicates that DPOC is supposed to be on file with the MVD. Those with
9
DPOC on file are eligible to vote in both state and federal elections (“Full Ballot Voter”).
10
Those who did not have DPOC on file with the MVD were only able to vote in federal
11
elections (“Fed Only Voter”).
12
As a result, whether one who does not present valid DPOC is registered to vote in
13
federal elections is entirely dependent on which form the applicant uses to register.
14
Those using the Federal Form but not providing DPOC, are registered to vote in federal 15 elections; and, depending on the results of the Secretary’s automated review of the MVD 16 database, may be registered to vote in state elections as well. But those using the State
17 Form, and not providing valid DPOC, are not registered to vote in any elections because
18 the application is rejected in its entirety. LULAC-Arizona and ASA alleged that this dual
19 voter registration process violated the First and Fourteenth Amendments.

20

The Secretary denies that Arizona’s voter registration policies violate the First

21 and Fourteenth Amendments or are otherwise illegal under state or federal law. The

22 Secretary asserts that Federal and State Form applicants are not similarly situated for

23 equal protection purposes. The Secretary asserts that Arizona is constitutionally

24 permitted to require those applying to register to vote using the State Form to personally

25 provide DPOC at the time that they submit their State Form. The Secretary further

26 asserts that there is no constitutional or statutory requirement that Arizona election 27 officials register applicants for federal elections when they have chosen to use the State 28 Form to register to vote rather than the Federal Form.

2

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 3 of 16

1

Nevertheless, the Secretary and Recorder Fontes desire to make it as easy

2 possible for Arizona’s citizens to register to vote, while remaining consistent with

3 Arizona and federal law and also providing necessary safeguards to deter those who

4 would commit voter registration fraud. Having reviewed the applicable law, the

5 Secretary and Recorder Fontes have concluded that current technology allows the

6 Secretary, Recorder Fontes, and the other Arizona County Recorders to treat State Form

7 applications exactly as they treat Federal Form applications, and that because of current

technology such treatment is consistent with the provisions of Arizona law, including the
8

requirements of Proposition 200, codified at A.R.S. §§ 16-166(F) and 16-152(A)(23).
9
The Secretary and Recorder Fontes agree that treating Federal Form and State Form
10
applications the same will make it easier for Arizona’s citizens to register to vote, while
11
also providing important safeguards to prevent unlawful voter registration. Accordingly,
12
on February 8, 2018, the Secretary and Recorder Fontes through their counsel notified
13
counsel for LULAC-Arizona and ASA of their desire to enter into an agreement that will

14
resolve the underlying litigation and also benefit Arizona’s citizens.

15

The Parties have negotiated in good faith and agree to the entry of this Consent

16 Decree as an appropriate resolution. Accordingly, the Parties stipulate and agree as

17 follows:

18

PRELIMINARY RECITALS

19

1. LULAC-Arizona is the Arizona-based branch of the oldest and largest

20 national Latino civil rights organization. LULAC is a non-profit membership

21 organization with a presence in most of the fifty states. Founded in 1929, it works to

22 advance the economic condition, educational attainment, political influence, health and

23 civil rights, including voting rights, of the Hispanic population of the United States.

24

2. ASA is a student-led, non-partisan membership organization created to

25 represent the collective interest of the over 140,000 university students and over 400,000

26 community college students in Arizona. ASA advocates at the local, state, and national 27 levels for the interests of students. As a part of its mission, ASA encourages students 28 throughout Arizona to register to vote through voter registration activity.

3

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 4 of 16

1

3. Michele Reagan is the Arizona Secretary of State. The Secretary of State is

2 responsible for supervising voter registration throughout the state and providing binding

3 regulations and guidelines for voter registration. A.R.S. § 16-142. Secretary Reagan was

4 sued in her official capacity only.

5

4. Adrian Fontes is the Maricopa County Recorder, an elected countywide

6 officer. Recorder Fontes is responsible for conducting voter registration in Maricopa

7 County. A.R.S. §§ 16-131, -134. Recorder Fontes was sued in his official capacity only.

5. This action was brought by LULAC-Arizona and ASA to vindicate First
8

and Fourteenth Amendment rights relating to voter registration.
9
6. Arizona’s practice of treating Federal Form and State Form applications
10
differently, described above, arose from past Arizona election officials’ understanding of
11
the effect of Proposition 200, which was passed by Arizona’s voters in 2004 and codified
12
at A.R.S. §§ 16-166(F), 16-152(A)(23), in conjunction with the technology available at
13
the time. Since the passage of Prop. 200 in 2004, a new statewide voter registration

14
database has been implemented and provides additional tools to election officials.

15

7. Arizona’s voter registration technology, including its voter registration

16 database, now allows DPOC already on file with the MVD database to be associated

17 near-instantaneously with voter registration applications submitted without DPOC,

18 irrespective of whether the applications are State Forms or Federal Forms.

19

8. The Secretary denies that prior practices, challenged in this lawsuit, were

20 unlawful. By agreeing to this Consent Decree, the Secretary and Recorder Fontes seek

21 to serve Arizona’s citizens by (1) continuing to comply with Arizona law while (2)

22 making the voter registration process using the State Form easier.

23

DEFINITIONS

24

1. “ADOT” means the Arizona Department of Transportation, which is

25 established pursuant to A.R.S. § 28-331. It has the responsibility to “provide for an

26 integrated and balanced state transportation system.” The Arizona Motor Vehicles

27 Division is a division of ADOT. A.R.S. § 28-332(C).

28

2. “AHCCCS” means the Arizona Health Care Cost Containment System,

4

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 5 of 16

1 which is established pursuant to A.R.S. § 36-2902. AHCCCS is Arizona’s Medicaid

2 agency that offers health care programs to serve Arizona residents.

3

3. “Applicant” means an individual who has submitted an application to

4 register to vote in the State of Arizona.

5

4. “AVID Database” means the voter registration database, currently being

6 developed for the state of Arizona and intended to replace the current Database. The
7 AVID Database is projected to be operational sometime in 2019 or early 2020, but shall
be operational no later than July 1, 2020 except as provided in subparagraph (a), below.
8
(a) The date of July 1, 2020, contemplated for the operational function of the
9
AVID Database, is contingent on the vendor with whom the Secretary has contracted to
10
develop AVID fulfilling its obligations to have AVID operational in 2019 or early 2020
11
at the latest. Should the vendor be unable to meet this contingency, or should the
12
implementation of the AVID Database otherwise be delayed, the Secretary shall notify
13
the Court and the Parties to this Consent Decree, in writing, and shall indicate in writing
14
the date by which the vendor believes that AVID will be operational. Plaintiffs retain the 15 right to seek a remedy from the Court to enforce this agreement if the implementation of
16 the AVID database is unduly delayed.

17

(b) The provisions in this consent decree that apply to the AVID database will

18 also apply to any future voter registration system adopted by the Secretary of State’s

19 office.

20

5. “County Recorder” means the County Recorder of each of Arizona’s

21 fifteen counties, and includes all county election officials working in or in conjunction

22 with their offices.

23

6. “Database” means the existing electronic storage system developed and

24 administered by the Secretary that contains the official voter registration record for every

25 voter in the state. See A.R.S. § 16-168(J).

26

7. “DES” means the Arizona Department of Economic Security, which is

27 established pursuant to A.R.S. § 41-1952.

28

8. “Designated voter registration agencies” are agencies that are required to

5

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 6 of 16

1 provide voter registration services pursuant to the National Voter Registration Act.

2

9. “DHS” means the Arizona Department of Health Services, which is

3 established pursuant to A.R.S. § 36-102.

4

10. “DPOC” means documentary proof of citizenship, and is limited to the

5 forms of satisfactory evidence of citizenship listed in A.R.S. § 16-166(F).

6

11. “F-type License” means the designation that the MVD uses in its database

7 to distinguish Arizona driver’s license holders who, at the time that their driver’s licenses

were issued, were presumed by MVD to not be United States citizens.
8

12. “Fed Only Voter” means an individual who is registered to vote solely in
9
Arizona elections for federal office.
10
13. “Federal Form” means the National Mail Voter Registration Form,
11
provided by the U.S. Elections Assistance Commission and used to register to vote in
12
elections for federal office, as well as the Federal Write-in Absentee Ballot and Federal
13
Post Card Application as those terms are used in 52 U.S.C. §§ 20302 and 20303.

14
14. “Federal Office” means the office of President or Vice President; or of

15 Senator or Representative in, or Delegate or Resident Commissioner to, the United States

16 Congress. 52 U.S.C. § 20502(2).

17

15. “Full Ballot Voter” means an individual who is registered to vote in

18 Arizona elections for federal, state, and local office.

19

16. “Guidance” means formal guidance on voter registration procedures that

20 the Secretary of State will provide to the County Recorders pursuant to her role as chief

21 election official responsible for prescribing uniform procedures for voting. See A.R.S. §

22 16-142. The Secretary will provide Plaintiffs’ counsel with copies of her Guidance

23 before it is sent to the County Recorders.

24

17. “MVD” means the Arizona Motor Vehicles Division.

25

18. “MVD database” means the electronic storage system developed and

26 administered by the Arizona Motor Vehicle Department.

27

19. “MVD Proxy Table” means the MVD data provided to the Secretary of

28 State that includes the nightly updates of MVD transactions that occurred in the past

6

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 7 of 16

1 twenty-four hours that MVD sends to the Secretary in batch form.

2

20. “Procedures Manual” means the State of Arizona Elections Procedures

3 Manual, which provides the rules related to voting and the conduct of elections. A.R.S. §

4 16-452. The Secretary is required to develop the Procedures Manual in conjunction with

5 the fifteen County Recorders. Id. The Procedures Manual has the force of law. A.R.S. §

6 16-452(C). The Procedures Manual, 2018 Edition, has been drafted by the Secretary and
7 submitted to the Governor and Attorney General as required by law for their review. Id.
21. “Protected Voter Registration” means the program to ensure anonymity to
8
survivors of stalking, domestic violence, and sexual assault through the Address
9
Confidentiality Program provided by A.R.S. § 41-161, et seq., and certain other
10
individuals pursuant to A.R.S. § 16-153.
11
22. “Secretary” means the Arizona Secretary of State and her office, as well as
12
successors in office.
13
23. “State Form” means the options for voter registration created and provided
14
by the State of Arizona and its agencies, including but not limited to the online 15 registration available through Service Arizona, the paper application available on the
16 Secretary of State’s website, the paper application available at all County Recorder

17 offices, and the Protected Voter Registration process.

18

24. “State Office” means any elected statewide, county-wide, or municipal

19 public office, other than a Federal Office, for which a voter registered in the State of

20 Arizona is eligible to vote.

21

ORDER

22

Accordingly, the Parties having freely given their consent, and the terms of the

23 Consent Decree being fair, reasonable, and consistent with the requirements of state and

24 federal law,

25

IT IS ORDERED as follows:

26

1. The Joint Motion for Approval of Consent Judgment (Doc. 36) is granted.

27

2. The Procedures Manual. The Parties are aware that the draft Procedures

28

Manual, 2018 Edition has been submitted by the Secretary to Arizona’s Governor

7

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 8 of 16

1

and Attorney General for their review as required by statute. See A.R.S. § 16-

2

452(B). Within thirty days after entry of this Consent Decree, the Secretary shall

3

revise the Procedures Manual to incorporate the terms of this Consent Decree

4

(“Procedures Manual Revisions”) and send the Procedures Manual Revisions,

5

together with the Secretary’s recommendation of approval, to the Governor and

6

Attorney General for their review, see A.R.S. § 16-452(B), and also to Plaintiffs’

7

counsel. If Plaintiffs determine that the Procedures Manual Revisions do not

comply with this Consent Decree, Plaintiffs may seek review by this Court
8

through the Court’s procedures for motions. If the Governor and Attorney General
9
do not approve the Procedures Manual Revisions or request modifications, the
10
Secretary will send the Attorney General and/or Governor’s rejections or
11
proposed modifications to Plaintiffs’ counsel. If those rejections or proposed
12
modifications are in any respect inconsistent with this Consent Decree, Plaintiffs
13
may use any available legal remedies to secure compliance with this Consent

14
Decree.

15

2. State Form Applications Submitted Without DPOC. Within thirty days

16

after entry of this Consent Decree, the Secretary shall, in writing:

17

a. provide guidance to the County Recorders to accept State Form

18

applications submitted without DPOC;

19

b. provide guidance to the County Recorders to enter all such

20

applications in the Database (or, in the case of Maricopa County and

21

Pima County, to enter all such applications in their county voter

22

registration databases and transmit such entries to the Database);

23

c. provide guidance to the County Recorders to immediately register

24

the applicants for federal elections, provided the applicant is

25

otherwise qualified and the voter registration form is sufficiently

26

complete; and

27

d. check all State Form applications submitted without DPOC against

28

the MVD database Proxy Table, via the automated processes in the

8

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 9 of 16

1

Database, to determine whether the MVD has DPOC on file for the

2

applicants. If DPOC is located, the Secretary shall promptly notify

3

the applicable County Recorder via the automated processes in the

4

Database that the State Form applicant has DPOC on file with the

5

MVD and so must be made a Full Ballot Voter via the automated

6

process in the Database.

7

i. if the Secretary’s check performed by the automated

processes in the Database against the MVD database Proxy
8

Table indicates that a State Form applicant holds an F-Type
9
License, the Secretary shall promptly notify the applicable
10
County Recorder of that fact via the automated processes of
11
the Database. The automated processes of the Database will
12
also flag this issue so that the County Recorder will know to
13
change that applicant’s voter registration status to “not

14
eligible.” The Secretary shall provide guidance to the County

15

Recorders that the County Recorders shall notify the

16

applicant by U.S. Mail within ten business days after

17

receiving notice via the automated process in the database,

18

according to information on file with the MVD database, that

19

the applicant holds an F-Type License indicating non-

20

citizenship and so will not be registered to vote. The

21

notification from the County Recorder shall also inform the

22

applicant that the applicant can provide valid DPOC to the

23

County Recorder in order to become a Full Ballot Voter. The

24

notification will be accompanied by the form described in

25

Paragraph 3 (the “DPOC Submission Form”). The applicant

26

may submit DPOC to the County Recorder through the

27

process described in Paragraph 3 to become a Full Ballot

28

Voter.

9

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 10 of 16

1

ii. if the Secretary’s check via the automated features of the

2

Database determines that a State Form applicant does not

3

hold an F-Type License, but also does not have DPOC on file

4

with the MVD, the Secretary shall promptly notify the

5

applicable County Recorder of that result via the automated

6

processes of the Database. The County Recorder shall notify

7

these applicants by U.S. Mail within ten business days after

receiving notice from the Secretary that (1) the County
8

Recorder does not have the requisite DPOC to process their
9
application; (2) they must submit DPOC if they wish to be a
10
Full Ballot Voter; and, (3) until such time as they submit
11
DPOC, they will be a Fed Only Voter and so will only be
12
eligible to vote in Federal elections. The notification shall be
13
accompanied by the form described in Paragraph 3 (the

14
“DPOC Submission Form”). The applicant may submit

15

DPOC to the County Recorder through the process described

16

in Paragraph 3 to become a Full Ballot Voter. Until and

17

unless the applicant submits valid DPOC, the County

18

Recorders shall cause those voter registration applicants to be

19

made Fed Only Voters.

20

3. Provision of DPOC After the Submission of a State Form Application.

21 Applicants who do not submit DPOC with their State Form application and do not have

22 DPOC on file with MVD, and are notified by the applicable County Recorder that they

23 will be Fed Only Voters unless and until they submit DPOC, may submit valid DPOC to

24 become a Full Ballot Voter. To do so, they shall submit their DPOC to the County

25 Recorder with a form provided to them by that official. This form (the “DPOC

26 Submission Form”), which shall be developed by the Secretary and the County 27 Recorders within thirty days after entry of this Consent Decree, shall contain sufficient 28 information to allow the County Recorder to link the voter registration applicant’s DPOC

10

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 11 of 16

1 with his or her State Form application already on file in the Database.

2

A. Applicants who submit their State Form application at least twenty-nine

3 days before an election as required by statute, A.R.S. §§ 16-120(A), -134(C), and whose
4 valid DPOC with the DPOC Submission Form is received by their County Recorder by 5
5 p.m. local time on the Thursday before the election, will be made Full Ballot Voters by
6 the County Recorder and may vote in the upcoming election as a Full Ballot Voter. The
7 registrations of such applicants shall be deemed to have occurred on the date that they originally submitted their State Form application. If the County Recorder has already
8
transmitted a Fed Only early ballot to that voter, the voter will have the option to vote
9
either that Fed Only early ballot or else vote a provisional Full Ballot at the polling place
10
or vote center and comply with the rules regarding provisional ballots.
11
B. Applicants who submit their State Form application at least twenty-nine
12
days before an election, and whose valid DPOC is received by 5 p.m. local time on the
13
Thursday before the election, but who do not submit the DPOC Submission Form, may
14
be made Full Ballot Voters by the County Recorder if the County Recorder has sufficient 15 information to link the voter registration applicant’s DPOC with the applicant’s State 16 Form application already on file in the Database. If the County Recorder makes such an
17 applicant a Full Ballot Voter, and if the County Recorder has already transmitted a Fed
18 Only early ballot to that voter, the voter will have the option to vote either that Fed Only
19 early ballot or else vote a provisional Full Ballot at the polling place or vote center and

20 comply with the rules regarding provisional ballots.

21

C. Applicants who do not submit their State Form application at least twenty-

22 nine days before an election as provided by statute, or whose valid DPOC is received by

23 their County Recorder after 5 p.m. local time on the Thursday before the election, will

24 not be made Full Ballot Voters for the upcoming election. The County Recorder shall

25 make such applicants Full Ballot Voters within five business days after processing

26 provisional ballots, and they shall be Full Ballot Voters for subsequent elections.

27

D. For all applicants who submit State Form applications without valid

28 DPOC, but subsequently submit valid DPOC and do not submit the DPOC Submission

11

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 12 of 16

1 Form, the County Recorder may make the applicant a Full Ballot Voter if the County

2 Recorder has sufficient information to link the voter registration applicant’s DPOC with

3 the applicant’s State Form application already on file in the Database. If the County
4 Recorder lacks sufficient information to link the DPOC to the voter’s application in
5 order to make the applicant a Full Ballot Voter, the County Recorder may follow up with
6 the applicant to seek the missing information if the County Recorder has sufficient
7 information to do so. Applicants who subsequently provide the missing information necessary to link their DPOC to their applications shall be made Full Ballot Voters by
8
the County Recorder within ten business days.
9
4. State Form Applications Submitted On or After January 1, 2017. This
10
Consent Decree will govern all voter registration applications submitted after entry of
11
this Consent Decree, including applications submitted within thirty days after entry of
12
this Consent Decree. However, within thirty days after entry of this Consent Decree, the
13
Secretary shall also provide written guidance to all County Recorders except the
14
Maricopa County Recorder that, pursuant to the Consent Decree, they may, at their 15 discretion, implement the new procedures outlined in Paragraphs 2–3 of this Consent 16 Decree for State Form applications dating back to January 1, 2017, provided that they
17 have the capability to ensure that such applicants have not moved, become deceased, or
18 otherwise subsequently already registered to vote. Any applicants whose applications
19 were filed before entry of this Consent Decree who are newly registered as Fed Only or

20 Full Ballot Voters as a result of that process will be given the proper notice of their new

21 registration status by U.S. Mail.

22

Within ninety days of entry of this Consent Decree, the Maricopa County

23 Recorder shall implement the new procedures outlined in Paragraphs 2–3 of this Consent

24 Decree for State Form applications dating back to January 1, 2017. This process shall

25 include: (1) entering all State Forms submitted without DPOC into the database and

26 immediately registering those applicants for federal elections, (2) checking the 27 applicants’ status against the MVD database, and (3) sending the applicants notification 28 of their new registration status.

12

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 13 of 16

1

5. Federal Form Applications. Within thirty days after entry of this Consent

2 Decree, the Secretary shall provide written guidance to the County Recorders to

3 promptly register all applicants who submit their Federal Form application with valid

4 DPOC as Full Ballot Voters and promptly register all applicants who submit their

5 Federal Form application without valid DPOC as Fed Only Voters. From the date of the

6 entry of the Consent Decree, the Secretary shall also cause all new Federal Form

7 applications submitted without DPOC to be checked against the MVD Proxy Table

promptly upon entry into the Database, via the automated processes in the Database, to
8

determine whether the MVD has DPOC on file for such Federal Form applicants, and
9
take the following steps:
10
a. If this check determines that the MVD Proxy Table has DPOC on file for
11
any Federal Form applicant, the Secretary shall promptly notify the applicable County
12
Recorder via the automated process in the Database that the applicant has DPOC on file
13
with MVD and so must be made a Full Ballot Voter via the automated process in the

14
Database.

15

b. If this check determines that the MVD Proxy Table has information

16 indicating that any Federal Form applicant holds an F-Type License, the Secretary shall

17 promptly notify the applicable County Recorder of that fact via the automated processes

18 of the Database and flag this record for the County Recorder to change that applicant’s

19 voter registration status to “not eligible.” The County Recorder shall notify the applicant

20 by U.S. Mail within ten business days after receiving notice from the Secretary that,

21 according to information on file with the MVD database, the applicant holds an F-Type

22 License indicating non-citizenship and so will not be registered to vote. The County

23 Recorder’s notice shall also inform the applicant that, if this information is not correct,

24 the applicant may provide valid DPOC in order to become a Full Ballot Voter. The

25 notification will be accompanied by the DPOC Submission Form described in Paragraph

26 3. The applicant may submit valid DPOC to the County Recorder through the process

27 described in Paragraph 3 to become a Full Ballot Voter.

28

c. If this check determines for any applicant that the MVD database does not

13

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 14 of 16

1 have DPOC on file and also that the applicant does not hold an F-Type License, the

2 Secretary shall promptly notify the applicable County Recorder of that result via the

3 automated processes of the Database. The County Recorder shall notify these applicants

4 by U.S. Mail within ten business days after receiving notice from the Secretary that (1)

5 the County Recorder does not have the requisite DPOC to process their application; (2)

6 they must submit valid DPOC if they wish to be a Full Ballot Voter; and, (3) until such

7 time as they submit valid DPOC, they will be a Fed Only Voter and so will only be

eligible to vote in Federal elections. The notification will be accompanied by the DPOC
8

Submission Form described in Paragraph 3. The applicant may submit valid DPOC to
9
the County Recorder through the process described in Paragraph 3 to become a Full
10
Ballot Voter. Until and unless the applicant submits valid DPOC, the County Recorders
11
shall cause those voter registration applicants to be made Fed Only Voters.
12
d. Federal Form applicants who subsequently submit valid DPOC shall be
13
made Full Ballot Voters according to and in conformity with the process described in

14
Paragraph 3.

15

6. Registered Voters Who Move From One Arizona County to Another.

16 The AVID Database or another voter registration database similar to the AVID Database

17 shall be operational as described, and according to the terms set forth, in the Definitions

18 section of this consent decree. When the AVID Database is operational, the Secretary

19 and County Recorders will be able to verify DPOC and append that information to

20 applicants’ voting records when those applicants change voter registration from one

21 Arizona county to another. Consequently, once the AVID Database is operational and in

22 use by the Secretary and the County Recorders, registered Full Ballot Voters will not be

23 required to independently submit DPOC to their new County Recorder, so long as their

24 DPOC is in the AVID Database.

25

7. Application to Other Forms of Registration. The procedures outlined

26 above for processing voter registration applications submitted without valid DPOC will 27 apply equally to all forms of voter registration, including voter registration through 28 designated voter registration agencies, the Federal Post Card Application (FPCA), the

14

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 15 of 16

1 Federal Write-In Absentee Ballot, and the In-Person EZ Voter Registration system.

2

8. Education of the Public. The Secretary shall continue to make reasonable

3 efforts to better educate the citizens of Arizona concerning their opportunities to register

4 to vote, including opportunities presented by the Federal Form. The Secretary will

5 provide Plaintiffs’ counsel with a copy of the planned notice that she intends to place on

6 her website. Within thirty days after the entry of this Consent Decree, the Secretary shall:

7

a. Update her website to explain that:

i. the State Form requires valid DPOC for state elections only;
8

ii. submission of a sufficiently complete State Form with valid DPOC will
9
make the applicant a Full Ballot Voter;
10
iii. submission of a sufficiently complete State Form without DPOC will
11
make the applicant a Fed Only Voter;
12
iv. the Federal Form does not require DPOC;
13
v. submission of the Federal Form without valid DPOC will make the

14
applicant a Fed Only Voter; and

15

vi. submission of the Federal Form with valid DPOC will make the

16 applicant a Full Ballot Voter.

17

b. Provide guidance to the County Recorders that they should provide the

18 information required in this Section 8 on their websites;

19

c. Notify ADOT, DHS, AHCCCS, and DES of the changes in voter

20 registration procedures outlined in this Consent Decree;

21

d. Within four months after the entry of this Consent Decree, the Secretary

22 shall create a new State Form that explains that citizens who do not submit DPOC with

23 their registration forms will be registered only for federal elections until the appropriate

24 proof of citizenship is provided or acquired. The Secretary will provide notice to

25 Plaintiffs’ counsel regarding the form of the explanation described in the previous

26 sentence. The Secretary will create the new State Form within three months if the 27 Secretary determines that it is possible to do so. The Secretary shall provide guidance to 28 the County Recorders and all State Offices that disseminate voter registration forms,

15

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 16 of 16

1 including designated voter registration agencies, that they should utilize the new State

2 Form as soon as practicable. See A.R.S. § 16-352(C). Within thirty days after entry of

3 the Consent Decree, the Secretary will provide written notice to the County Recorders

4 that there will be changes made to the State Form within four months after the date the

5 Consent Decree was entered.

6

10. Continuing Jurisdiction. The Court shall retain jurisdiction over this

7 action until December 31, 2020 to enter such further relief as may be necessary for the

effectuation of the terms of this Consent Decree.
8
11. Attorneys’ Fees and Costs. The Parties will continue to confer regarding
9
what amount, if any, the State Defendants should pay to Plaintiffs for their attorneys’
10
fees and costs. If the Parties are unable to agree privately upon payment of fees and
11
costs, Plaintiffs will file a motion for attorneys’ fees and costs pursuant to 42 U.S.C. §
12
1988 within forty-five days after entry of this consent decree.
13
The Clerk of Court is directed to terminate this action.
14
Dated this 18th day of June, 2018.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

16

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 League of United Latin American Citizens No. CV17-4102 PHX DGC Arizona, et al.,

10

ORDER

Plaintiffs,

11

v. 12

Michele Reagan, in her official capacity as 13 Secretary of State of Arizona, et al.,

14

Defendants.

15

In November 2017, the League of United Latin American Citizens Arizona and

16 the Arizona Students’ Association (“Plaintiffs”) brought this action against Michele

17 Reagan, in her capacity as Secretary of State of Arizona, and Adrian Fontes, in his

18 capacity as Maricopa County Recorder (“Defendants”). Plaintiffs alleged that Arizona

19 had a dual voter registration system that violated various constitutional guarantees. The

20 parties settled the lawsuit by negotiating a Consent Decree to solve the problem identified

21 by Plaintiffs. Without admitting fault, Defendants agreed to take certain steps to ensure

22 that voters would not be disadvantaged by the issues Plaintiffs had noted. On stipulation

23 of the parties, the Court entered the Consent Decree on June 18, 2018. Doc. 37.

24

A federal, state, and local election was held on November 6, 2018. Three days

25 later, on November 9, 2018, the ACLU filed a motion on behalf of Luis Cisneros, arguing

26 that Defendants had violated the Consent Decree. Doc. 39. Although Mr. Cisneros was

27 not a party to the decree, the ACLU argued that he was entitled to enforce it because he

28 was an intended beneficiary. The motion asked the Court to issue orders to Defendant

1 Reagan and the Pima County Recorder. Although the Pima County Recorder was not a

2 party to the Consent Decree, the ACLU argued that the decree could be enforced against

3 her pursuant to Rules 65 and 71 of the Federal Rules of Civil Procedure. Doc. 39.

4

Mr. Cisneros complained that he is a naturalized United States citizen, that he

5 registered to vote in Pima County after moving there recently, and that he received a

6 letter from the Pima County Recorder advising him that he was not eligible to vote. His

7 ineligibility stemmed from the fact that Mr. Cisneros holds an F-type Arizona driver’s

8 license, which normally is issued to noncitizens. Knowing that he was a citizen, Mr.

9 Cisneros promptly went to the County Recorder’s office, submitted his passport as proof

10 of citizenship, and was registered as a voter. Although he was told that he would not be

11 able to vote until after the November 6th election, Mr. Cisneros submitted a provisional

12 ballot for the election. His motion asked the Court to order Defendant Reagan and the

13 Pima County Recorder to count his provisional ballot.

14

Mr. Cisneros’ ballot was later counted. See Doc. 45. As a result, his motion is

15 now moot.

16

On Monday, November 12, 2018, Plaintiffs filed a motion asking the Court to hold

17 that Defendants violated the Consent Decree. Doc. 40. Plaintiffs’ motion was based on

18 Mr. Cisneros’s situation. Because he, as a holder of an F-type driver’s license, initially

19 had not been allowed to register to vote, Plaintiffs alleged that others might be in the

20 same situation. Plaintiffs asked the Court to impose relief that will be described below.

21

Plaintiffs’ motion comes with some time pressure. As the parties agree, County

22 Recorders and the Secretary of State are required by statute to complete their verification

23 of ballots cast in the November 6th election by this Friday, November 16, 2018. This is a

24 time-intensive process that requires election officials to verify millions of votes cast in

25 Arizona last week. The canvas for the election must be completed ten days later, by

26 November 26, 2018. Counsel for the Maricopa County Recorder’s Office explained that

27 the canvas for Maricopa County will be thousands of pages in length and will provide

28 data on votes cast for each office, in each of hundreds of precincts, and substantial

- 2 -

1 additional information. The canvas must be approved by the Maricopa County Board of

2 Supervisors by November 26, 2018, and provided to the Secretary of State. Because of

3 these pressing dates, Plaintiffs asked that their motion be heard on an emergency basis.

4 Doc. 40 at 2.

5

On the afternoon of November 12th, the Court entered an order requiring the

6 affected persons – Defendant Reagan and the Pima County Recorder – to file responses

7 the next day, and scheduled a hearing for today at 9:00 a.m. Doc. 41. Defendant Reagan

8 and the Pima County Recorder filed their responses (see Docs. 46, 49), and the Court

9 held a hearing this morning for almost two hours. After confirming that the motion

10 brought by the ACLU is now moot, the hearing focused on issues raised in Plaintiffs’

11 motion and Defendants’ responses.

12

The Court’s schedule also creates time pressure. As the Court advised the parties

13 at the hearing, due to the press of other cases, it was not able to begin reading briefs on

14 this matter until 8:30 p.m. last night. The Court also advised the parties that it must rule

15 by early this afternoon because its schedule is fully committed the remainder of today and

16 on November 15th and 16th.

17

A. Complex Issues.

18

Plaintiff’s motion presents a number of complex issues. These include, but are not

19 limited to, the following:

20

1. Plaintiffs seek relief against the Pima County Recorder, who is not a party

21 to the Consent Decree. And Defendants assert that the relief requested by Plaintiffs

22 would require action on the part of every other County Recorder in Arizona. With the

23 exception of the Maricopa County Recorder, no County Recorder is a party to this action.

24

Plaintiffs contend that the Court may take action against nonparties pursuant to

25 Rule 71. But this rule does not provide a basis for the Court to hold that all County

26 Recorders within Arizona are bound by the Consent Decree. “While Rule 71 establishes

27 the procedure for enforcing an order against a nonparty, it does not define the scope of

28 individuals who are bound by an order, or grant the Court authority over any particular

- 3 -

1 categories of nonparties.” Llorens Pharm., Inc. v. Novis PR, Inc., No. 04-2188, 2010 WL

2 521144, at *6 (D.P.R. Feb. 9, 2010); see also Intl Millennium Consultants, Inc. v. Taycom

3 Bus. Solutions, 463 F.App’x. 506, 511 n.1 (6th Cir. 2012).

4

Plaintiffs also contend that the Consent Decree can be enforced against nonparty

5 County Recorders pursuant to Rule 65(d)(2)(C). That rule allows enforcement of an

6 order against “persons who are in active concert or participation” with a party to the

7 order. Fed. R. Civ. P. 65(d)(2)(C). Case law recognizes that this rule applies to two

8 categories of persons: nonparties who aid and abet a party in violating a court order, and

9 nonparties who are in privity with a nonparty, generally meaning nonparties who are in

10 some way legally identified with the enjoined party. See ADT LLC v. Northstar Alarm

11 Servs., Inc., LLC, 853 F.3d 1348, 1352 (11th Cir. 2017).

12

Whether County Recorders in Arizona can be said to be in privity with the

13 Arizona Secretary of State for purposes of Rule 65 is a question not easily answered. To

14 resolve this issue, the Court would need to research Arizona statutes and case law

15 concerning the relationship between the Secretary of State and County Recorders (an

16 issue on which the parties have strong disagreement), as well as the interpretation of

17 Rule 65 within the Ninth Circuit. The parties have not briefed this issue, and the Court

18 does not have time to research and resolve it.

19

2. Whether Defendant Reagan has violated the Consent Decree is another

20 complicated issue. The most relevant portion of the decree is section 2, beginning on

21 page 8. See Doc. 37. The first three subsections require the Secretary to “provide

22 guidance” to County Recorders regarding the decree. Id. The fourth section requires the

23 Secretary to compare all state voter registration applications submitted without

24 documentary proof of citizenship (“DPOC”) to a State database. If the database shows

25 that an applicant holds an F-type driver’s license, the Secretary is to notify the relevant

26 County Recorder of this fact. Upon receiving this notification, the County Recorder must

27 change the applicant’s voter registration to “not eligible” because F-type driver’s licenses

28 generally are issued to noncitizens. The Consent Decree then instructs the Secretary to

- 4 -

1 “provide guidance” to the County Recorders that they must notify the applicants by U.S.

2 Mail, within ten business days, that the applicant holds an F-type license, indicating

3 noncitizenship, and therefore will not be registered to vote. The notification must also

4 inform the applicant that he or she can provide valid DPOC to the County Recorder by

5 the Thursday before the election in order to receive authorization to vote. Id. at 9.

6

Defendant Reagan contends that she complied with these requirements. She notes

7 that she sent an email to all County Recorders advising them of this requirement of the

8 Consent Decree, attaching an explanatory Powerpoint presentation and a copy of the

9 Consent Decree. See Doc. 40-2. She further notes that she held a meeting with all

10 County Recorders to advise them of the Consent Decree requirements. She contends that

11 she complied with the requirement to advise County Recorders when applicants had F-

12 type driver’s licenses, and, to the extent County Recorders did not notify such applicants

13 that they could submit DPOC by the Thursday before the election, she was not at fault.

14

Plaintiffs contend that Defendant Reagan had an obligation to create a form that

15 would advise F-type license holders of the opportunity to submit DPOC by the Thursday

16 before the election. Plaintiffs assert that Defendant Reagan never did so, that the

17 opportunity to submit DPOC therefore was not communicated by County Recorders to

18 people in Mr. Cisneros’s position, and that Defendant Reagan therefore violated the

19 Consent Decree.

20

An essential part of this dispute concerns the authority of the Secretary of State.

21 Defendant Reagan contends that she does not control County Recorders. Plaintiffs

22 disagree. Each side cites statutes and case law. Resolving this issue, and parsing the

23 Consent Decree to determine whether or not a violation has occurred, would require

24 significant research and analysis. There is no time for such research and analysis.

25

3. As relief, Plaintiffs ask the Court to order Defendant Reagan to identify all

26 persons who attempted to register as voters but were advised they were not eligible

27 because they held an F-type driver’s license. From among these, Plaintiffs ask that

28 Defendant Reagan be ordered to identify all individuals who, like Mr. Cisneros,

- 5 -

1 submitted DPOC by the Thursday before the election and cast a provisional ballot.

2 Plaintiffs ask the Court to order that the ballots for such individuals be counted. For

3 persons who received notice that they were not eligible and did not submit DPOC by the

4 Thursday before the election, but nonetheless cast a provisional ballot, Plaintiffs ask the

5 Court to order that Defendant Reagan and the County Recorders allow the submission of

6 DPOC now, and, upon its submission, count the provisional ballots for such individuals.

7

Defendants contend that these steps would require extensive work and be highly

8 disruptive during this intense time of verifying and canvasing of ballots from the

9 November 6th election. They contend that special queries would have to be written for

10 the State database, and that County Recorders would have to be involved in identifying

11 which individuals received notices like Mr. Cisneros’s. Plaintiffs disagree, asserting that

12 Defendant Reagan has access to a comprehensive database from which this information

13 should be readily available.

14

The Court is not equipped to resolve this factual dispute. It has nothing more than

15 the parties’ assertions. But if the relief sought by Plaintiffs would significantly disrupt

16 the work of completing the election, it raises concerns discussed below.

17 B. The Problem of Rushed Election Litigation.

18

The parties’ briefing and today’s hearing show that Plaintiffs knew about some of

19 these problems in August. Plaintiffs’ counsel contacted counsel for Defendant Reagan on

20 August 1, 2018, asserting that Defendant Reagan was required to create a special form for

21 F-type license holders to be used in connection with the November 6th election.

22 Plaintiffs’ counsel asked that a copy of the form be created and shared with Plaintiffs.

23 Counsel for Defendant Reagan disagreed that the Consent Decree required the creation of

24 such a form. The parties exchanged emails in August, and again during the month of

25 October, but no resolution of this issue was reached. Plaintiffs’ counsel stated during

26 today’s hearing that counsel for Defendant Reagan assured her that the Secretary would 27 comply with the Consent Decree.1

28 1 Although the Court does not have all the facts, it also appears that counsel for

- 6 -

1

During today’s hearing, Plaintiffs’ counsel took the position that Defendant

2 Reagan’s failure to create a specific form for F-type driver’s license holders is at the heart

3 of the confusion caused to Mr. Cisneros and others in his position. In other words, the

4 very issue addressed by the parties in August has now created problems in the election.

5 Despite the fact that the issue arose back in August, Plaintiffs did not file their motion

6 until 10:00 a.m. on November 12, 2018, a full six days after the election and less than

7 five days before voter verification work must be completed.

8

As this Court has previously stated: “Over the last 25 years, the Arizona Supreme

9 Court has repeatedly cautioned that litigants should bring election challenges in a timely

10 manner or have their requests for relief denied on the basis of laches.” Arizona

11 Libertarian Party, et al. v. Reagan, 189 F.Supp.3d 920, 923 (D. Ariz. 2016). As the

12 Court further explained:

13

As Arizona cases have noted, the real prejudice caused by delay in election

14

cases is to the quality of decision making in matters of great public

importance. Unreasonable delay can prejudice the administration of justice

15

by compelling the court to steamroll through delicate legal issues in order

16

to meet election deadlines. Late filings deprive judges of the ability to

fairly and reasonably process and consider the issues and rush appellate

17

review, leaving little time for reflection and wise decision making.

18 Id. at 923 (internal citations, quotation marks, ellipses, and brackets omitted).

19

Federal courts have likewise recognized that problems can arise from rushed

20 election-related decisions. See Purcell v. Gonzalez, 549 U.S. 1, 5-6 (2006). They have

21 held that a court may refrain from deciding a contested issue where the election or results

22 of the election are imminent, and there is inadequate time to resolve the factual disputes.

23 Id.; see also Feldman v. Ariz. Sec’y of State’s Office, 840 F.3d 1165, 1166 (9th Circ.

24 2016) (Mem.) (declining to issue any order that would potentially disrupt the procedures

25 just four days before the election).

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27 Plaintiffs had concerns that the guidance created by Defendant Reagan in the form of an

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addendum to the state-wide manual used by County Recorders did not accurately reflect the Consent Decree. Those concerns were also communicated to Defendants months

before the election.

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The Court will refrain from resolving this issue. The Court does not have the

2 time, and Defendants have not provided sufficient briefing, to decide the complex issues

3 raised by the motion. Rather than rush to judgment and make a decision that might be

4 incorrect, or might seriously disrupt completion of the November 6th election process,

5 the Court will deny Plaintiffs’ motion. The denial is not because Plaintiffs have failed to

6 raise serious issues, but because those issues could have been raised months ago when a

7 careful decision would have been made.

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IT IS ORDERED:

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1. The motion filed by Mr. Cisneros (Doc. 39) is denied as moot.

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2. Plaintiff’s motion (Doc. 40) is denied for reasons stated above.

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Dated this 14th day of November, 2018.

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