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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Brian Edward Malnes, 

Plaintiff, 

v. 

State of Arizona, et al., 

Defendants.

No. CV-16-08008-PCT-GMS

ORDER 

 Pending before the Court is the Motion to Dismiss for failure to state a claim by 

Defendants. (Doc. 38.) For the following reasons, the Court grants the motion with 

prejudice. All other pending motions are therefore moot. Specifically, the Motion for 

Preliminary Injunction and for Temporary Restraining Order by Brian Edward Malnes 

(“Malnes”) (Doc. 18), Motion for Preliminary Injunction and for Temporary Restraining 

Order by Malnes (Doc. 35), Motion to Strike Memorandum in Support of Preliminary 

Injunction by Defendants (Doc. 40), Motion to Strike Motion to Strike Memorandum in 

Support of Preliminary Injunction by Malnes (Doc. 41), and Motion to Strike 

Defendant’s Notice of Errata by Malnes (Doc. 46) are moot. 

BACKGROUND 

 Brian Edward Malnes is a citizen of Arizona who resides in Flagstaff. Malnes 

alleges that on January 19, 2016, he attempted to register to vote on the State of 

Arizona’s Voter Registration page but could not do so because under Arizona law, a 

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resident of the state may register to vote only if he satisfies various criteria, one of which 

is that he “[h]as not been convicted of treason or a felony, unless restored to civil rights.”1

 

(Compl. ¶ 2.) Malnes contends that this law violates his constitutional rights under the 

Fifteenth and Twenty-Sixth Amendments. He now brings a claim against the State of 

Arizona as well as the Secretary of the State of Arizona. 

DISCUSSION 

 As a preliminary matter, the Eleventh Amendment bars Malnes, an Arizona 

citizen, from bringing a claim against the State of Arizona. Pennhurst State Sch. & Hosp. 

v. Halderman, 465 U.S. 89, 100 (1984) (“This Court's decisions thus establish that ‘an 

unconsenting State is immune from suits brought in federal courts by her own citizens as 

well as by citizens of another state.’” (internal citations omitted)). There are narrow 

exceptions to this rule, which include: where the State has consented to suit, where the 

State has waived its immunity, or where Congress specifically abrogated the immunity. 

Id. at 101-02. However, none of these exceptions apply here, and therefore, the State of 

Arizona and its agencies are immune from Malnes’ claims. 

 However, Malnes may bring a claim against a state official for a present violation 

of federal law. Edelman v. Jordan, 415 U.S. 651, 664 (1974) (holding that the Eleventh 

Amendment does not bar an action seeking to enjoin a state official from enforcing a 

statute which is claimed to violate the Unites States Constitution). But, Malnes may only 

seek prospective relief. Id. at 664, 677-78. The Court will therefore only consider 

Malnes’ claims against the Secretary in her official capacity for injunctive relief. 

I. Legal Standard 

 To survive a motion to dismiss for failure to state a claim pursuant to Federal Rule 

of Civil Procedure 12(b)(6), a plaintiff must allege sufficient facts to state a claim to 

relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to 

 

1

 Although Malnes cited A.R.S. § 16-101(B), it is clear from his complaint that he meant to cite A.R.S. § 16-101(A)(5), which contains the above quoted text. Section (B) defines 

“resident,” a term which is not at issue in this case. 

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability 

requirement,’ but it asks for more than a sheer possibility that a defendant has acted 

unlawfully.” Id.

 “[T]he tenet that a court must accept as true all of the allegations contained in a 

complaint is inapplicable to legal conclusions.” Id. “When there are well-pleaded factual 

allegations, a court should assume their veracity and then determine whether they 

plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a 

complaint states a plausible claim for relief will . . . be a context-specific task that 

requires the reviewing court to draw on its judicial experience and common sense.” Id. 

 However, pro se litigants will not be held to the same pleading standards as 

lawyers. “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, 

however inartfully pleaded, must be held to less stringent standards than formal pleadings 

drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. 

Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted); cf. F.R.C.P. 8(f) 

(“All pleadings shall be so construed as to do substantial justice”). 

II. Analysis 

 A. Malnes fails to state a facially plausible claim under the Fifteenth 

 Amendment. 

 Under Arizona law, “[e]very resident of the state is qualified to register to vote if 

he” meets certain criteria bearing on citizenship, age, residency, ability, and capacity, as 

well as the requirement that a voter must not have been “convicted of treason or a felony, 

unless restored to civil rights.” A.R.S. § 16-101(A) (1993). Malnes claims that the 

statute violates the Fifteenth Amendment because the state “cannot deny franchise to a 

felon who has served [his] term of servitude.” (Compl. at 2–3.) 

 To properly plead a Fifteenth Amendment violation, a plaintiff must show that his 

or her vote was “denied or abridged by the United States or by any State on account of 

race, color, or previous condition of servitude.” U.S. Const. amend. XV, § 1. The 

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language in the Fifteenth Amendment assuring that suffrage cannot be denied because of 

a “previous condition of servitude” was drafted to ensure that a person’s status as a newly 

emancipated slave could not be used as a race-based means of denying voting rights: 

“Enacted in the wake of the Civil War, the immediate concern of the [Fifteenth] 

Amendment was to guarantee to the emancipated slaves the right to vote, lest they be 

denied the civil and political capacity to protect their new freedom.” Rice v. Cayetano, 

528 U.S. 495, 512 (2000). “The design of the Amendment is to reaffirm the equality of 

races at the most basic level of the democratic process, the exercise of the voting 

franchise.” Id.

 “Felon disenfranchisement laws have a long history in the United States . . . 

predat[ing] the Jim Crow era and, with a few notable exceptions, have not been adopted 

based on racial considerations.” Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir. 

2010) (internal citation omitted). “Many such laws were in effect when the Fourteenth 

and Fifteenth Amendments were ratified; indeed, felon disenfranchisement has an 

affirmative sanction in the Fourteenth Amendment.” Id. (citing Richardson v. Ramirez,

418 U.S. 24, 54 (1974)). “[A]n overwhelming number of states—including all states in 

our circuit—disenfranchise felons.” Id.

 The Constitution prohibits states from disenfranchising felons only when such 

disenfranchisement is designed to effect racial discrimination. See Hunter v. Underwood, 

471 U.S. 222, 233 (1985) (holding a disenfranchisement statute unconstitutional under 

the Fourteenth Amendment where “purposeful racial discrimination attend[ed] [its] 

enactment and operation”); Farrakhan, 623 F.3d at 993 (“[P]laintiffs bringing a [section 

2 of the Voting Rights Act] challenge to a felon disenfranchisement law based on the 

operation of a state’s criminal justice system must at least show that the criminal justice 

system is infected by intentional discrimination or that the felon disenfranchisement law 

was enacted with such intent.”); cf. Gomillion v. Lightfoot, 364 U.S. 339, 346-47 (1960) 

(holding that gerrymandering violates the Fifteenth Amendment where the legislature 

“singles out a readily isolated segment of a racial minority for special discriminatory 

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treatment”). “To state a cause of action under the Fifteenth Amendment, the plaintiffs 

must show an outright denial of the ballot by the state with a racially discriminatory 

motive.” Irby v. Fitz-Hugh, 692 F. Supp. 610, 616-17 (E.D. Va. 1988), aff’d sub nom. 

Irby v. Virginia State Bd. of Elections, 889 F.2d 1352 (4th Cir. 1989); see also White v. 

Tennessee, No. 2:14-CV-118, 2014 WL 3339625, at *3 (E.D. Tenn. July 8, 2014), appeal 

dismissed (Aug. 20, 2014); Jones v. Edgar, 3 F. Supp. 2d 979, 980-81 (C.D. Ill. 1998). In 

the absence of intentional racial discrimination, a person’s “previous criminal record” is 

an “obvious” factor “which a State may take into consideration in determining the 

qualifications of voters.” Richardson, 418 U.S. at 53 (quoting Lassiter v. Northampton 

Cty. Bd. of Elections, 360 U.S. 45, 51 (1959)). 

 Malnes does not allege that A.R.S. § 16-101(A)(5) intentionally effects racial 

discrimination. As such, Malnes does not present a claim which “plausibly suggests 

entitlement to relief.” See Iqbal, 556 U.S. at 678; See also Erickson, 551 U.S. at 94. 

 

B. Malnes fails to state a facially plausible claim under the Twenty-Sixth 

 Amendment. 

 To claim relief under the Twenty-Sixth Amendment, Malnes must allege that he is 

eighteen years old and that his right to vote has been “denied or abridged . . . on account 

of age.” U.S. Const. amend. XXVI. (emphasis added). Here, Malnes has not alleged his 

age, nor has he alleged that his right to vote was denied or abridged because of his age. 

(Compl. ¶ 2.) Thus, Malnes has not properly alleged a plausible claim under which this 

court may grant relief under the Twenty-Sixth Amendment.

CONCLUSION 

 Arizona’s statute disenfranchising convicted felons violates neither the Fifteenth 

nor the Twenty-Sixth Amendment, and therefore the Court grants Defendants’ motion to 

dismiss. All other pending motions are therefore moot. 

IT IS THEREFORE ORDERED that the Motion to Dismiss by Defendants 

(Doc. 15) is GRANTED with prejudice. The Clerk of Court is directed to enter 

judgment accordingly. 

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 IT IS FURTHER ORDERED that the Motion for Temporary Restraining Order 

and Motion for Preliminary Injunction by Brian Edward Malnes (Doc. 18) is DENIED as 

moot. 

 IT IS FURTHER ORDERED that the Motion for Temporary Restraining Order 

and Motion for Preliminary Injunction by Brian Edward Malnes (Doc. 35) is DENIED as 

moot. 

 IT IS FURTHER ORDERED that the Motions to Strike Memorandum in 

Support of Preliminary Injunction by Defendants (Docs. 40-41) are DENIED as moot. 

 IT IS FURTHER ORDERED that the Motion to Strike Defendant’s Notice of 

Errata by Brian Edward Malnes (Doc. 46) is DENIED as moot. 

 Dated this 5th day of July, 2016. 

Honorable G. Murray Snow

United States District Judge

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