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Mark Brnovich

Attorney General

James Driscoll-MacEachron, Bar No. 027828

Kara M. Karlson, Bar No. 029407

Assistants Attorney General

1275 W. Washington

Phoenix, Arizona 85007-2997

Telephone: (602) 542-8137

Fax: (602) 542-8308

James.Driscoll-MacEachron@azag.gov 

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Brian Edward Malnes,

Plaintiff,

vs.

State of Arizona; Michele Reagan,

Defendants.

Case No: 3:16-cv-08008-GMS

DEFENDANTS’ RESPONSE TO 

PLAINTIFF’S MOTION FOR 

TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION

Defendants the State of Arizona and Arizona Secretary of State Michele Reagan 

(“the Secretary”) respectfully request this Court deny Plaintiff Brian Edward Malnes’ 

Motion for Temporary Restraining Order and Preliminary Injunction (“TRO”) because 

Plaintiff fails to allege the facts required to support his allegations, and in any event, 

Plaintiff would fail to meet the standard required for injunctive relief. Thus, the Court 

should deny Plaintiff’s TRO.

I. BACKGROUND

Plaintiff filed a Complaint against the State of Arizona and the Secretary on 

January 20, 2016. The Complaint alleges that A.R.S. § 16-101(A)(5), which prohibits

felons from voting if their civil rights are not restored, violates the Fifteenth and TwentyCase 3:16-cv-08008-GMS Document 24 Filed 03/17/16 Page 1 of 11
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Sixth Amendments. In the lawsuit, Plaintiff seeks a permanent injunction against 

enforcement of A.R.S. § 16-101(A)(5) and $10 million.

Defendants timely filed a Motion to Dismiss on February 16, 2016, arguing that 

the Eleventh Amendment disposes of the majority of Plaintiff’s claims and that the 

remainder of his claims may be disposed of as a matter of law because felon 

disenfranchisement pursuant to A.R.S. § 16-101(A)(5) is constitutional. See generally

Defs’ Mot. to Dismiss. Plaintiff’s Response argued, in essence, that all prisoners are 

slaves, and thus the Fifteenth Amendment’s ban on discrimination based on “prior 

condition of servitude” renders felon disenfranchisement unconstitutional. Defendants 

filed a reply on March 3, 2016, refuting Plaintiff’s claims.

Plaintiff filed the TRO on March 1, 2016. Plaintiff seeks a preliminary injunction 

finding that the Defendants are violating his Fifteenth Amendment right “in restricting 

franchise to ex-felons.” P’s Mem. in Support of TRO and Prelim. Inj. (“Mem.”) at 1. 

Plaintiff also seeks a TRO finding that “the Defendants are violating 18 U.S.C. 

§ 1512(b)—Obstruction by Intimidation, Threats, Persuasion, or Deception” and 

ordering the Defendants to not physically harm the Plaintiff and refrain from obstructing 

his federal campaign. Id. at 3-4. 

To support his claim that Defendants are violating his civil rights, Plaintiff 

attaches email exchanges between him and members of the Attorney General’s Office 

(“AGO”) and the Secretary’s Office from February 16 to February 26, 2016. Exh. 1 to 

Mem. The emails demonstrate that Plaintiff began accusing Defendants and the AGO of 

criminal civil rights violations shortly after receiving Defendants’ Motion to Dismiss. 

Exh. 1 at 7. Despite the increasing aggressiveness of Plaintiff’s communications with 

both the Secretary and the AGO, see, e.g., id. at p. 12 (“Bad way to end a 4 month 

employment, but maybe being a lawyer was not for you?”), Defendants acted with 

professionalism toward Plaintiff, see, e.g., id. at 13-14.

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II. Plaintiff Cannot Meet the High Showing Required to Support the 

Extreme Remedy He Seeks.

Although fashioned by Plaintiff in this case as two separate forms of relief, a 

request for a preliminary injunction and a request for a temporary restraining order are 

judged by the same standard. New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 

1345, 1347 n.2 (1977). Preliminary injunctive relief is generally disfavored because it is 

an extreme remedy. Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 

1052 (9th Cir. 2009). Such relief should only be provided on a clear showing that the 

movant is entitled to the requested relief. Id. 

To obtain the relief he seeks, Plaintiff bears the burden of demonstrating to the 

Court that he is likely to succeed on the merits of his claim, likely to suffer irreparable 

harm if the relief he seeks is not immediately granted, the balance of equities tips in his 

favor, and that the injunction is in the public interest. Winter v. Natural Res. Def.

Council, 555 U.S. 7, 20 (2008). Indeed, the possibility of irreparable harm is 

insufficient; the plaintiff must prove that irreparable harm is likely to prevail. Id. at 22.

A. Plaintiff Is Unlikely to Succeed on the Merits.

Not only is Plaintiff unlikely to succeed in his Fifteenth and Twenty-Sixth

Amendment claims, he fails to raise a claim in his Amended Complaint upon which 

relief can be granted. For reasons fully explained in Defendants’ Motion to Dismiss, and 

incorporated herein by this reference, Plaintiff has raised a claim seeking the Court’s 

protection of a right that Plaintiff does not possess. Defs’ Mot. to Dismiss at 10 (citing

e.g., Harvey v. Brewer, 605 F. 3d 1067, 1079 (9th Cir. 2010) (explaining that felons do 

not have a constitutionally protected right to vote)). Because Plaintiff—an admitted 

convicted felon—does not possess a constitutional right to vote, he cannot succeed on 

the merits of the claim in his Amended Complaint. Thus, his request for a TRO barring 

enforcement of A.R.S. § 16-101(A)(5) should fail on this basis alone.

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As to the claims accusing the Secretary and the AGO of violating criminal 

statutes, Plaintiff is equally likely to fail. He not only has not amended his Amended 

Complaint to allege facts to support his claims of criminal violations, neither his 

Memorandum nor the attached exhibit demonstrate facts that would support his claims of 

criminal violations.1

To support his criminal allegations, Plaintiff primarily relies on an article that 

reports that Matt Roberts, the Secretary’s spokesman, stated that “[a]ccording to state 

law, a person must be a ‘qualified elector’ to run for office, which means he must be 

eligible to register to vote, and must be registered to vote.” Mem. at 2-3 (quoting Andrea 

Kelly, 1st Congressional District Candidate Might Not Qualify, ARIZ. PUB. MEDIA (Feb. 

16, 2016) https://news.azpm.org/p/arizona-news/2016/2/16/82127-independentcandidate-in-azs-first-congressional-district-might-not-qualify/). Plaintiff also notes that

the article explains that the Secretary’s Office does not investigate candidate eligibility 

unless another person files a challenge and that Plaintiff has acknowledged that he is not 

registered to vote. Id.

2

 Plaintiff also relies on the email exchanges attached in exhibit 1. 

Plaintiff asserts that Defendants violated 18 U.S.C. § 241. Mem. at 4. To prove a 

conspiracy under 18 U.S.C. § 241, the Plaintiff must demonstrate that Defendants agreed 

to accomplish an illegal objective and had the requisite intent necessary to commit the 

underlying offense. United States v. Allen, 341 F.3d 870, 891 (9th Cir. 2003) (upholding 

 1 Plaintiff has no civil remedy for the criminal violations he alleges. Aldabe v. Aldabe, 616 F. 2d 

1089, 1092 (9th Cir. 1980) (upholding dismissal of civil claims of violations of 18 U.S.C. 

§§ 241, 242 because the criminal statutes “provide no basis for civil liability”); Cooley v. 

Keisling, 45 F.Supp. 2d 818, 820 (D. Ore. 1999) (refusing to allow civil claims for alleged 

violations of 18 U.S.C. § 245); Rowland v. Prudential Fin. Inc., 362 F.App’x. 596, 596-97 (9th

Cir. 2010) (mem.) (affirming decision dismissing 18 U.S.C. § 1512 claims for failure to state a 

proper basis for civil liability). 

2 As part of his request for relief, Plaintiff correctly cites Schaefer v. Townsend, 215 F.3d 1031 

(9th Cir. 2000) for the proposition that the substantive requirements for a congressional 

candidate are limited to the requirements found in the U.S. Constitution. Mem. at 3. However, 

Plaintiff has not claimed that the Arizona law requiring candidates for federal office to be 

qualified electors is unconstitutional. Because Plaintiff has no claim regarding this request, 

Defendants do not substantively address it here. Nevertheless, because Defendant’s attorneys 

have a duty of candor to the Court, they acknowledge Plaintiff is not barred from federal 

candidacy solely due to his status as a convicted felon.

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conspiracy conviction of a non-member of the Ku Klux Klan when co-conspirator was 

seen wielding a weapon and searching a park with other KKK members and yelling 

racial slurs at minorities found in the park); United States v. Skillman, 922 F.2d 1370, 

1373 (9th Cir. 1990) (finding a conspiracy when defendant built a cross, rode on a 

bicycle with a co-conspirator to the home of an African-American family, lit the cross 

and watched it burn in the family’s front yard). Plaintiff does not demonstrate that 

Defendants agreed to intentionally accomplish an illegal objective or that Defendants 

willfully sought to deprive him of his rights. Indeed, the exhibit Plaintiff attached to the 

Memorandum demonstrates that Defendants have treated Plaintiff fairly, with due regard 

to his rights.

Plaintiff also asserts that Defendants violated 18 U.S.C § 242, a claim that 

Plaintiff cannot support. Section 242 allows for criminal charges to be brought against a 

Defendant who, under color of law, “willfully subjects any person . . . to the deprivation 

of any rights . . . by reason of his color, or race.” See, e.g., Reitman v. Mulkey, 387 U.S. 

369, 380-81 (1967) (regarding a state law authorizing racial discrimination in the 

housing market). This criminal statute does not provide any relief to Plaintiff, a private 

litigant. Allen v. Gold Country Casino, 464 F.3d 1033, 1048 (9th Cir. 2006) (affirming 

the dismissal of a § 242 claim because it is a criminal statute, not an avenue to enforce 

civil liability). Moreover, Plaintiff has not submitted any fact supporting a claim that his 

rights are being willfully violated by any of the Defendants. At best, Plaintiff has 

demonstrated that Roberts made a single statement summarizing Arizona law requiring 

candidates to be qualified electors to the press, along with an explanation that no 

enforcement activity can be independently brought by the Secretary. This simply does 

not rise to the level of a willful, criminal violation of Plaintiff’s civil rights. See, e.g,. 

Koon v. United States, 518 U.S. 81, 86-87 (1996) (reviewing sentencing of officers 

convicted of § 242 charges for beating Rodney King, continuing to stomp on King’s

back and neck after he lay prone and unresponsive); United States v. Reese, 2 F.3d 870, 

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878 (9th Cir. 1993) (outlining various offenses by arresting officers, including planting 

cocaine on a suspect, taking money recovered during arrests, and choking multiple 

suspects without provocation). 

Plaintiff also asserts that Defendants violated 18 U.S.C. § 245(b)(1)(A), which 

requires the Plaintiff to show that Defendants acted by “force or threat of force.” See, 

e.g., United States v. Allen, 341 F.3d 870, 896 (9th Cir. 2003). But Plaintiff does not 

allege any force or threat of force was used against him. Rather, the exhibit Plaintiff

attached to his memorandum demonstrates the exact opposite; that he was consistently 

treated with respect and courtesy by Defendants while he continued to make unfounded 

allegations, demand resignations, and insist on special treatment. Plaintiff does not 

allege any facts that show that any of the Defendants willfully engaged in force or the 

threat of force to injure or intimidate him out of exercising any rights. Other than 

Plaintiff’s self-serving claims of “again, a threat” (Exh. 1, p. 22) in response to an email 

that explicitly stated “no one at this office or the Secretary’s office has threatened you in 

any way,” id., he provides no facts to show that anyone acting under the Defendants’ 

authority threatened him in any way. Indeed, they did not. 

Finally, Plaintiff’s claim of a violation of 18 U.S.C. § 1512(b) is frivolous. 

Although Plaintiff fashions this as “Obstruction by Intimidation, Threats, Persuasion, or 

Deception,” it is a witness-tampering statute. Specifically, the law states:

(b) Whoever knowingly uses intimidation, threatens, or corruptly 

persuades another person, or attempts to do so, or engages in misleading

conduct toward another person, with intent to—(1) influence, delay, or 

prevent the testimony of any person in an official proceeding; . . . .

Defendants have not used intimidation or threats to influence or otherwise 

improperly interfere with any official proceeding. Rather, Plaintiff seems to 

believe that Roberts’ single statement to the press, accurately describing state 

law, is a violation of a federal witness-tampering statute; it is not. For these 

reasons, Plaintiff cannot demonstrate that he is likely to succeed on the merits, 

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and his request for a preliminary injunction and temporary restraining order 

should be denied.

B. Plaintiff Has Not Demonstrated a Likelihood of Irreparable Harm.

Plaintiff’s inability to demonstrate any cognizable harm arising from his inability 

to vote is linked to his inability to succeed on the merits. Because a felon has no 

constitutional right to vote, Plaintiff does not demonstrate a redressable harm. See, e.g., 

Harvey, 605 F.3d at 1079 (“[Felon re-enfranchisement] is not a fundamental right; it is a 

mere benefit that (as plaintiffs admit) Arizona can choose to withhold entirely.”). 

Instead, Plaintiff seeks the assistance of this Court to rewrite state laws barring felons 

from voting that have been consistently upheld by courts across the country, rather than 

seeking to restore his civil rights pursuant to A.R.S. § 13-909.

Plaintiff has not demonstrated that Defendants have interfered with his right to 

run as a federal candidate, assuming he meets the three requirements provided by the 

Constitution and the procedural requirements required of every other federal candidate in 

the State. As explained in the very article that Plaintiff complains about, the Secretary 

does not review nomination petitions, but is included in any qualification challenge 

raised by other candidates once nominating petitions are filed. Mem. at 3. Plaintiff has 

not alleged that there has been any challenge to his qualifications for office. Indeed, the 

first day that Plaintiff can file nomination papers with the Secretary’s office is May 2, 

2016, and the last day is June 1, 2016. A.R.S. § 16-311(A) (requiring filing of a 

nomination paper “not less than ninety nor more than one hundred twenty days before 

the primary election.”). In other words, Defendants have not taken any steps to harm 

Plaintiff’s federal campaign, much less taken any steps that would irreparably harm his 

ability to run. “Speculative injury does not constitute irreparable injury sufficient to 

warrant granting a preliminary injunction.” Caribbean Marine Servs. Co., Inc. v. 

Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).

//

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C. The Balance of Equities Tips Against Plaintiff.

The Court must analyze the potential for harm all parties face if the injunction is 

or is not granted. In this case, Plaintiff has no right to vote, and thus faces no cognizable 

harm. On the other hand, “a state suffers irreparable injury whenever an enactment of its 

people or their representatives is enjoined.” Coal. For Econ. Equity v. Wilson, 122 F.3d 

718, 719 (9th Cir. 1997). Plaintiff’s request to enjoin A.R.S. § 16-101(A)(5) shortly 

before an election could disrupt election procedures and therefore the balance of equities

tips in favor of the State.

The relief Plaintiff seeks regarding the alleged criminal violations likewise tips 

sharply against him. Plaintiff seeks a TRO that will function as a de facto declaratory 

judgment that the Defendants have engaged in a concerted effort to deny his civil rights 

and are violating criminal statutes. See (Purposed) (sic) Temporary Restraining Order, 

Doc. 18-1. Moreover, Plaintiff’s requested relief would effectively prevent the AGO 

from defending the State and the Secretary, despite the AGO’s statutory and 

constitutional role as the attorney for both entities. A.R.S. § 41-192(A) (stating that the 

Attorney General serves as the chief legal officer of the State and State agencies). These 

are strong remedies that are simply not available as a preliminary matter when Plaintiff 

has not provided any evidence of witness tampering (18 U.S.C. § 1512(b)), conspiracy 

(18 U.S.C. § 241), or use of force to infringe upon Plaintiff’s civil rights (18 U.S.C. 

§ 245(b)). See Winter, 555 U.S. at 376 (“A preliminary injunction is an extraordinary 

remedy never awarded as of right.”).

D. The Injunction Is Not in the Public’s Best Interest.

In allowing felon disenfranchisement, the Arizona Legislature has provided a 

clear expression of public interest—felons should be granted the right to participate in 

the electoral franchise under narrowly prescribed circumstances. “[T]he public clearly 

has an interest in the enforcement of its statutes.” Enyart v. Nat’l Conf. of Bar Exam’rs, 

Inc., 630 F.3d 1153, 1167 (9th Cir. 2011); see also Golden Gate Rest. Ass’n v. Cnty. of 

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San Francisco, 512 F.3d 1112, 1127 (9th Cir. 2008) (“The public interest may be 

declared in the form of a statute.”); Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943) 

(“[I]t is in the public interest that federal courts of equity should exercise their 

discretionary power with proper regard for the rightful independence of state 

governments in carrying out their domestic policy.”). Although restrictions on the right 

to vote may fairly be viewed with skepticism under certain circumstances, those

circumstances are not present here. Rather, Plaintiff seeks to litigate whether he should 

be granted the right the right to vote despite his admitted status as a convicted felon, a 

proposition that the Supreme Court has stated is an “obvious example” of a factor that 

the State may legitimately consider in determining voter qualification. Lassiter v. 

Northampton Cnty. Bd. of Elections, 360 U.S. 45, 50 (1959). 

When a party seeks an injunction that will adversely affect the public interest, 

“the court may in public interest withhold relief until a final determination of the rights 

of the parties, though the postponement may be burdensome to the plaintiff.”

Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (internal quotation marks 

omitted). The Legislature has stated the public’s interest, and it excludes convicted 

felons from re-enfranchisement unless the felon takes specific steps to qualify to vote 

(which Plaintiff has not done).

Plaintiff’s accusations of federal criminal actions are similarly antithetical to the 

public’s best interest. Plaintiff’s allegations of criminal conduct and demands for a 

preliminary injunction prohibiting state action against him seeks to undermine the 

electoral process and punish state employees from taking steps to carry out their duties. 

If we expect to attract talented and well-motivated lawyers to serve the 

public interest, we cannot allow them to be subject to frivolous and 

vexatious litigation. Not only will these lawyers look elsewhere for 

employment, but the enforcement of state laws will suffer because of 

the chilling effect that such litigations will have upon those charged 

with enforcement. Although this court will not hesitate to condemn 

“overreaching” on the part of administrative agencies, we likewise will 

not close our eyes to blatant efforts at frustrating legitimate enforcement 

proceedings.

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Challenge, Inc. v. State ex rel. Corbin, 673 P.2d 944, 950 (Ariz. App. 1983) (internal 

citations omitted). 

This case is not indicative of any “overreaching” on the part of the State, the 

Secretary, or the AGO. Rather, when faced with a frivolous lawsuit, Defendants 

protected the State’s interest and moved to have Plaintiff’s suit dismissed pursuant to the 

rules of civil procedure. In the performance of his duties, the Secretary’s spokesperson 

made an accurate statement of Arizona state law to the press. This is the factual 

foundation from which Plaintiff conjures a criminal conspiracy to obstruct his 

congressional run. But Plaintiff cannot point to a single action demonstrating an actual 

conspiracy or concrete steps taken to undermine his ability to run, because there simply 

are none. The preliminary relief that Plaintiff seeks would harm the public’s best interest 

and militate in favor of denying his request for early relief.

III. CONCLUSION

Plaintiff has not articulated any facts to reach the high bar required for 

preliminary equitable relief. Therefore, the Court should deny Plaintiff’s Motion for 

Temporary Restraining Order and Preliminary Injunctions. 

Respectfully submitted this 17th day of March, 2016.

Mark Brnovich

Attorney General

 s/ Kara M. Karlson

James Driscoll-MacEachron

Kara M. Karlson 

Assistants Attorney General

Attorneys for Defendants

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I certify that I electronically transmitted the attached document to the Clerk’s 

Office using the CM/ECF System for filing and transmittal of a Notice of Electronic

Filing to the following, if CM/ECF registrants, and mailed a copy of same if non- registrants, this 17th day of March, 2016:

Brian Edward Malnes

2157 W. Alaska Ave.

Flagstaff, AZ 86001

Plaintiff pro per

 s/ Maureen Riordan

#4971878

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