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Kathleen E. Brody (Bar No. 026331)

Darrell L. Hill (Bar No. 030424)

American Civil Liberties Union of Arizona

3707 North 7th Street, Suite 235

Phoenix, AZ 85014

Tel.: (602) 650-1854

kbrody@acluaz.org

dhill@acluaz.org

Theresa J. Lee* (NY Bar No. 5022769)

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor

New York, NY 10004 

Tel.: (212) 549-2500

tlee@aclu.org

Attorneys for Third Party Movant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________________________

)

League of United Latin American )

Citizens Arizona; Arizona Students’ )

Association, )

)

Plaintiffs, )

)

v. )

)

Michele Reagan, in her official )

capacity as Secretary of State of Arizona;)

Adrian Fontes, in his official )

capacity as Maricopa County Recorder )

)

Defendants. )

_________________________________)

No. 2:17-cv-04102-DGC

MOTION TO COMPEL 

COMPLIANCE WITH CONSENT 

DECREE

(Expedited Relief Requested)

Luis Cisneros is a United States citizen and Arizona resident, who meets all the 

qualifications to vote in Arizona. Mr. Cisneros is exactly the sort of Arizona voter who the 

Consent Decree in this action was intended to protect. He moves this Court to enforce the June 

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18, 2018 Consent Decree entered by all parties and the Court. He moves the Court to restore 

him to be a Full Ballot Voter and to have his voter registration be deemed to have occurred on 

October 8, 2018, the date on which he originally submitted his voter registration. He also moves 

the Court to order that all individuals who are similarly situated have their provisional ballots 

counted if they show their proof of citizenship to the County Recorder before the time for 

verification of provisional ballots, ten days after the election. As verification of provisional 

ballots must occur within 10 calendar days of the election, Friday, November 16, 2018, Mr. 

Cisneros seeks emergency expedited action on this Motion.

STATEMENT OF FACTS

In November 2017, the League of United Latin American Citizens Arizona (“LULACArizona”) and the Arizona Students’ Association (“ASA”) brought suit in this Court challenging 

Arizona’s dual registration scheme, which treated Arizonans differently merely based on which 

voter registration form they happened to use, as an unconstitutional burden on the right to vote 

and as a violation of the Equal Protection Clause. Complaint, ECF No. 1. Rather than fight 

over this scheme, the State—recognizing that current technology allows for identical treatment 

of the various methods of voter registration—agreed to enter into the Consent Decree now at 

issue. Joint Motion for Entry of Consent Decree at 3, ECF No. 36. This Court entered the 

Consent Decree on June 18, 2018, mandating how certain voter registration scenarios were to be 

treated. Consent Decree, ECF No. 37.

The Consent Decree, among other things, recognized that certain driver licenses were 

enrolled in the Motor Vehicle Division (“MVD”) system with a presumption that their holders 

were not United States citizens (“F-type license”). Id. at Definitions ¶ 11. This is pertinent to 

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the question of voter registration because Arizona law requires a completed voter registration 

form to contain the individual’s Arizona driver license or nonoperating identification license 

number or last four digits of the individuals Social Security Number. Ariz. Rev. Stat. § 16-

121.01(A). This driver license number is then used to check citizenship against the MVD 

database for certain registrants to satisfy the requirements of Proposition 200, Arizona’s 

documentary proof of citizenship (“DPOC”) law. As the parties to this litigation were aware of 

the use of the MVD database in this way and aware that certain driver licenses were of a type 

that would not lead to citizenship confirmation through the MVD, the Consent Decree addresses 

this situation. Consent Decree, Order ¶¶ 2(d)(i), 3. The Consent Decree provides that if the 

check against the MVD database indicates that someone who registered to vote using the State 

Form has an “F-Type” license, this will be flagged for the County Recorder. Id. ¶ 2(d)(i). The 

Recorder is then to notify the would-be voter and “shall also inform the applicant that the 

applicant can provide valid DPOC to the County Recorder in order to become a Full Ballot 

Voter.” Id. This notification is to be accompanied by the DPOC form contemplated in the 

Consent Decree, which allows for the submission of DPOC without requiring completion of a 

whole new voter registration form. Id. The Consent Decree also requires that applicants who 

have submitted their voter registration 29 days before the election and their DPOC by 5:00 p.m. 

local time on the Thursday before the election “will be made Full Ballot Voters by the County 

Recorder and may vote in the upcoming election as a Full Ballot Voter.” Id. ¶ 3(A). “The 

registrations of such applicants shall be deemed to have occurred on the date that they originally 

submitted their State Form application.” Id.

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Prior to any of that, Mr. Cisneros naturalized in 2014, becoming a United States citizen 

after having been a permanent resident. Declaration of Theresa J. Lee in Support of Mr. 

Cisneros’s Motion to Compel (“Lee Decl.”) Ex. G (Declaration of Luis Cisneros (“Cisneros 

Decl.”) ¶ 2). He has been a resident of Arizona since 2001. Id. ¶ 1. After becoming a citizen, 

he registered and voted in the 2016 election in Cochise County, Arizona, where he lived at the 

time. Id. ¶ 3. 

Around the same time that the Consent Decree was being entered, in the summer of 2018, 

Mr. Cisneros moved to his current residence in Pima County, Arizona. Id. ¶ 4. Upon learning 

that he had to re-register since he had moved counties, on October 8, 2018, Mr. Cisneros went to 

the Pima County Recorder’s Office in order to register in time for the November 2018 election. 

Id. ¶ 5; Ariz. Rev. Stat. § 16-120(A). At the Recorder’s Office, he filled out a voter registration 

form and submitted it in-person. While there, he was told he only needed his driver license in 

order to register to vote, so he provided his license to the staff along with his completed voter

registration form. Cisneros Decl. ¶ 5. He received a receipt copy of the completed voter 

registration form he had submitted with the notation “Saw AZ DR. LIC. 10/8/18” in the corner. 

Lee Decl. Ex. B. Based on this, Mr. Cisneros understood that he was registered to vote in time 

for the 2018 November election, and was excited to do so. Cisneros Decl. ¶ 8.

On October 21, 2018, upon returning home from a week-long vacation, Mr. Cisneros 

discovered a letter from the Pima County Recorder’s Office which he understood to mean that 

he was not registered because he was not eligible to vote because he was not a United States 

citizen. Id. ¶ 6. The letter indicated that he had to submit a new voter registration form, which 

had to be received no later than 29 days before the election. Lee Decl. Ex. D. At this point, it 

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was after the voter registration deadline for the November 2018 election. The next day, eager to 

resolve the problem, Mr. Cisneros went to the Pima County Recorder’s Office again to discuss 

the letter that he had received. Cisneros Decl. ¶ 7. There, he was told that his account was 

“flagged” because the MVD communicated to the Pima County Recorder’s Office that he was 

not a U.S. citizen. Id. After finding out this information, Mr. Cisneros showed the Pima County 

Recorder’s Office representative his United States passport. After viewing his passport, the staff 

member registered Mr. Cisneros to vote. He received a receipt copy of the completed voter 

registration form he had submitted with the notation “passport presented @ EV site Eastside JM 

10/22” in the corner. Lee Decl. Ex. C. However, he was told that he was not eligible to vote in 

the 2018 general election as his registration was “too late.” Cisneros Decl. ¶ 11. As he knew he 

had first registered before the voter registration deadline, Mr. Cisneros still cast a provisional 

ballot during early vote on October 22, 2018, with the hope that the problem would be resolved 

and his ballot counted. Id. at 12.

ARGUMENT

I. Mr. Cisneros and Others Similarly Situated Arizonans Can Enforce the Consent 

Decree

A. Arizonans Who Submit Voter Registration Forms Are the Intended Beneficiaries of 

the Consent Decree

“In construing consent decrees, courts use contract principles.” Hook v. Ariz. Dep’t of 

Corr., 972 F.2d 1012, 1015 (9th Cir. 1992). Someone is an intended beneficiary under a 

contract—consent decree—if they can “show that the contract was made for its direct benefit.” 

Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999), 

opinion amended on denial of reh’g, 203 F.3d 1175 (9th Cir. 2000); see also Marques v. Wells 

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Fargo Home Mortg., Inc., No. 09-cv-1985-L(RBB), 2010 WL 3212131 at *3 (S.D. Cal. Aug. 

12, 2010) (considering the same with respect to a consent decree). “The intended beneficiary 

need not be specifically or individually identified in the contract, but must fall within a class 

clearly intended by the parties to benefit from the contract.” Klamath Water, 204 F.3d at 1211. 

The parties to the Consent Decree intended that it “benefit Arizona’s citizens.” Consent 

Decree at 3. The State entered into the Consent Decree in order “to serve Arizona’s citizens” 

and “making the voter registration process using the State Form easier.” Id. at Preliminary 

Recitals ¶ 8. And beyond the generic public benefit, the terms of the Consent Decree confer 

clear specific rights upon Arizonans who submit a voter registration form. Pertinent to the 

situation here, the Consent Decree provides an express benefit to voters who have an F-type 

driver license and submitted a State voter registration form—that is, they can submit their proof 

of citizenship up until 5:00 p.m. on Election Day in order for their voter registration be restored 

to the date at which they first registered, and they “may vote in the upcoming election as a Full 

Ballot Voter.” Consent Decree at Order ¶¶ 2(d)(i), 3(A). The specifics of the rights of specific 

voters to be enrolled and exercise their right to vote in an upcoming election demonstrates that 

they were intended to be beneficiaries of the contract, unlike the incidental benefit to the public 

derived from other government contracts.1

 

 1 Nor is this a case where the contract disclaims conferral of rights on third parties. See, e.g., 

United States v. FMC Corp., 531 F.3d 813, 821 (9th Cir. 2008) (finding certain parties not 

intended beneficiaries of Consent Decree which included the language: “Nothing in this Consent 

Decree is intended either to create any rights in or grant any cause of action to any person not a 

party to this Consent Decree, or to release or waive any claim, cause of action, demand, or 

defense in law or equity that any party to this Consent Decree may have against any person(s) or 

entity not a party to this Consent Decree.”).

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As the Consent Decree confers direct benefits—beyond a generalized benefit to the 

public—upon Mr. Cisneros and other similarly situated voters with F-type licenses, these 

would-be voters are the intended beneficiaries of the Consent Decree.

B. Intended Beneficiaries May Enforce Consent Decrees

Under Ninth Circuit precedent, it is clear that intended third party beneficiaries may 

enforce consent decrees. United States v. FMC Corp., 531 F.3d 813, 820 (9th Cir. 2008); see 

also Fed. R. Civ. P. 71 (“When an order grants relief for a nonparty . . . , the procedure for 

enforcing the order is the same as for a party.”). 

Here, the Consent Decree confers rights upon “Applicants who submit their State Form 

application at least [29] days before an election . . . and whose valid DPOC . . . is received by 

their County Recorder by 5 p.m. local time on the Thursday before the election.” Consent 

Decree at Order ¶ 3(A). It grants relief to Arizona voters who would otherwise be denied the 

right to vote based upon the information included in a database whose primary purpose is 

neither documenting citizenship or ensuring the right to vote. As Mr. Cisneros is plainly such 

an Arizona voter, who was intended to benefit from the Consent Decree, he can enforce the 

Consent Decree.

II. Under the Terms of the Consent Decree, Mr. Cisneros and Others Similarly 

Situated Are Full Ballot Voters Entitled to Vote in the November 6, 2018 

Election

The situation faced by Mr. Cisneros when he tried to register and vote is exactly as 

contemplated in the Consent Decree, and the actions of the Pima County Recorder were wholly 

inconsistent with the governing provisions of the Decree. 

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On October 8, 2018, 29 days before the November 6, 2018 election and the last day that 

Arizonans could register to vote in order to be eligible to vote in that election, Mr. Cisneros 

went to the Pima County Recorder’s Office and registered to vote in person using the State voter 

registration form. Based on the letter received by Mr. Cisneros, Lee Decl. Ex. D, it appears that 

his is an F-type license so his voter registration was “flagged.” This is the scenario addressed in 

the Consent Decree Order at ¶ 2(d)(i). Once this happened, under the terms of the Consent 

Decree, Mr. Cisneros should have been notified of this and that he could provide valid DPOC in 

order to become a Full Ballot Voter. Id. This notification was to be accompanied by the DPOC 

Submission Form. Id. Instead, Mr. Cisneros received a letter that directed him to fill out a new 

voter registration form, along with an admonition that this new form had to be received no later 

than 29 days before the election. Lee Decl. Ex. D. Of course, there was not sufficient time to 

return the completed voter registration form in time for the November 2018 election as Mr. 

Cisneros had registered in the first instance on the final day in order to be eligible for this 

election. 

Responding as promptly as he could, on October 22, 2018, Mr. Cisneros went in person 

with his passport in order to prove his citizenship and have his voter registration restored. 

Cisneros Decl. ¶¶ 7, 10. Under the Consent Decree, the cut-off date to provide proof of 

citizenship if a voter registration was flagged by the MVD, for this election, was Thursday, 

November 1, 2018, at 5:00 p.m. local time. Thus, when Mr. Cisneros brought his passport to the 

Recorder’s Office, his voter registration date should have been entered as October 8, 2018, and 

he should have been made a Full Ballot Voter. Consent Decree at Order ¶ 3(A). Of course, Mr. 

Cisneros did not have the DPOC Submission Form contemplated in the Consent Decree. This 

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was through no fault of his own as the Recorder’s Office did not send him such a form as 

required under the Consent Decree, instead sending a new voter registration form. In any event, 

at the very least, Mr. Cisneros must be made a Full Ballot Voter under ¶ 3(B). Mr. Cisneros’s 

passport information and the new voter registration form he submitted on October 22, 2018, 

certainly provide all of the possible information needed to link the presentation of his DPOC to 

the earlier submitted voter registration form.

Mr. Cisneros was not made a Full Ballot Voter in time for the November 2018 election. 

He did however still insist on voting a provisional ballot. This ballot must be counted as Mr. 

Cisneros should already have been properly registered to vote in the current election. The

Secretary of State agrees with our analysis of the duties under the Consent Decree. She 

“believes that Mr. Cisnero[s] acted appropriately and, pursuant to the Consent Decree, should 

have his vote counted.” Lee Decl. Ex. F.

In working to remedy this deprivation of rights, counsel for Mr. Cisneros became aware 

that there are likely numerous other voters who are in the same situation. Lee Decl. ¶ 7. While 

Mr. Cisneros insisted on pursuing his rights, there may be an untold number of would-be voters 

who received the same notification as did Mr. Cisneros, which was in violation of the Consent 

Decree in this case, and were dissuaded from continuing to register to vote or submit their 

DPOC because they believed it too late for this election. Under the Consent Decree, it was the 

duty of the State to ensure that these Arizonans were given notice that they needed only submit 

DPOC and that if they did so by November 1, 2018, they would be registered and able to vote in 

this week’s election. For any voters, who like Mr. Cisneros, cast a provisional ballot despite the 

information given to them by the state, this Court should grant them the same relief here sought.

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CONCLUSION

Based on the foregoing, Mr. Cisneros moves this Court to compel compliance with the 

Consent Decree. He seeks to be restored to a Full Ballot Voter and to have his voter registration 

be deemed to have occurred on October 8, 2018, the date on which he originally submitted his 

voter registration. He also moves the Court to order that all individuals who are similarly 

situated have their provisional ballots counted if they show their proof of citizenship to the 

County Recorder before the time for verification of provisional ballots, ten days after the 

election.

November 9, 2018 Respectfully submitted,

/s Kathleen E. Brody

Theresa J. Lee* (N.Y. Bar No. 5022769)

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor

New York, NY 10004 

Tel.: (212) 549-2500

tlee@aclu.org

* pro hac vice forthcoming

Kathleen E. Brody (Bar No. 026331)

Darrell L. Hill (Bar No. 030424)

American Civil Liberties Union of Arizona

3707 North 7th Street, Suite 235

Phoenix, AZ 85014

Tel.: (602) 650-1854

kbrody@acluaz.org

dhill@acluaz.org

Attorneys for Third Party Movant

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CERTIFICATE OF SERVICE

I, Kathy Brody, hereby certify that this Motion to Compel Compliance with the 

Consent Decree was served upon all counsel of record in this case via ECF. 

/s/ Kathy Brody

Attorney for Third Party Movant

Luis Cisneros

Case 2:17-cv-04102-DGC Document 39 Filed 11/09/18 Page 11 of 11