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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’ MOTION TO DISMISS

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

(“the Secretary”), through undersigned counsel, move to dismiss Plaintiff’s Complaint 

because Plaintiff Brian Edward Malnes fails to state a claim for which relief can be 

granted. Under the Eleventh Amendment, the State is immune from suit in federal court,

and the Secretary is immune from a suit for damages. With regard to the remaining 

claim for injunctive relief against the Secretary in her official capacity, Plaintiff cannot 

state a claim that Ariz. Rev. Stat. § 16-101(A)(5) violates either the Fifteenth 

Amendment or the Twenty-Sixth Amendment. Thus, the Court should dismiss 

Plaintiff’s case with prejudice.

/ / /

/ / /

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I. BACKGROUND

Criminals have had their right to vote and participate in civil society restricted 

since the Greco-Roman era. Jason Schall, The Consistency of Felon Disenfranchisement 

with Citizenship Theory, 22 Harvard Black Letter L.J. 53, 54 (2006). The English law 

preventing felons from exercising civil rights was imported to the colonies, and then 

quickly adopted by the majority of new States after the American Revolution. Id. at 55. 

After the Civil War, rebel States had to submit their constitutions to Congress for 

ratification before they could be re-admitted the Union. Even after the Fourteenth 

Amendment was enacted, States were re-admitted to the Union with felon 

disenfranchisement provisions in their state constitutions. Richardson v. Ramirez, 418 

U.S. 34, 51-52 (1974); see also Cong. Globe, 39th Cong., 1st Sess. 2535 (1866) (“Under 

a Congressional act persons convicted of a crime against the laws of the United States, 

the penalty for which is imprisonment in the penitentiary, are now and always have been 

disfranchised.”). Indeed, the Reconstruction Act of March 2, 1867, Chap. LXX, 15 Stat. 

73, p 75 (1868), conditioned re-admittance on the promise that state constitutions would 

never be amended “to deprive any citizen or class of citizens of the United States of the 

right to vote in said State, who are entitled to vote by the constitution thereof herein 

recognized, except as a punishment for such as are now felonies at common law.” 

Currently, a felony conviction does not impose any restriction on a person’s right 

to vote in only two states: Maine and Vermont. American Civil Liberties Union, State 

Criminal Re-enfranchisement Laws (Map) available at https://www.aclu.org/map/statecriminal-re-enfranchisement-laws-map (last visited Feb. 4, 2016). Conversely, Florida 

and Iowa both permanently revoke felon’s voting rights. Id. The remaining forty-six 

states have some restrictions on a felon’s ability to vote. Id.

It is against this backdrop that Plaintiff brings his claim alleging that Ariz. Rev. 

Stat. § 16-101(A)(5) is unconstitutional. Section 16-101(A)(5) bars an otherwise 

qualified citizen from registering to vote if he or she has “been convicted of treason or a 

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felony, unless restored to civil rights.” Id. (emphasis added). By law, a person 

convicted of a felony may be restored to civil rights in multiple ways. First, a person 

who has been convicted of a felony for the first time is entitled to automatic restoration 

of civil rights upon completion of their sentence, including probation, and payment of 

any associated fines or restitution imposed as part of the sentence. A.R.S. § 13-912(A). 

A person convicted of two or more felonies may apply for the restoration of his or her 

civil rights upon completion of his or her sentence and payment of associated fines and 

restitution. A.R.S. §§ 13-905-906, -909, -910(A). 

According to his Complaint, Plaintiff was unable to register to vote on the State of 

Arizona’s Voter Registration webpage due to his status as a felon.1 Am. Compl. at p. 2, 

¶ 1 (Jan. 26, 2016). Plaintiff therefore seeks to enjoin the application of A.R.S. § 16-

101(A)(5), arguing that it violates his Fifteenth and Twenty-Sixth Amendment rights. 

Id.

II. STANDARD OF REVIEW

A complaint will survive a Rule 12(b)(6) motion to dismiss only if it includes 

enough facts to state a claim for relief that is plausible on its face. Clemens v. Daimler 

Chrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008). The plausibility standard requires 

the plaintiff to provide sufficient factual allegations to allow the court “to draw the 

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

Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

556 (2007)). The Ninth Circuit thus applies to a two-step process:

First, to be entitled to the presumption of truth, allegations in a complaint or 

counterclaim may not simply recite the elements of a cause of action, but 

must contain sufficient allegations of underlying facts to give fair notice 

and to enable the opposing party to defend itself effectively. Second, the 

factual allegations that are taken as true must plausibly suggest an 

 1 The online voter registration form is available at Service Arizona, Voter Registration, 

https://servicearizona.com/webapp/evoter/register?execution=e1s2 (last visited Feb. 4, 2016). 

One of the first questions the form asks is whether the potential registrant is a convicted felon 

who has not had their civil rights restored.

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entitlement to relief, such that it is not unfair to require the opposing party 

to be subjected to the expense of discovery and continued litigation.

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Plaintiff has not and cannot plead 

facts sufficient to satisfy this standard.

III. THE ELEVENTH AMENDMENT IS DISPOSITIVE FOR THE 

MAJORITY OF THE PLAINTIFF’S CLAIMS.

Plaintiff seeks damages and injunctive relief from the State and from the 

Secretary. The Plaintiff’s claims for damages are barred by the Eleventh Amendment, 

and only the Plaintiff’s claim for prospective relief against the Secretary may proceed 

under Ex Parte Young, 209 U.S. 123 (1908).

A. The Eleventh Amendment Bars Plaintiff’s Claims for Monetary Relief.

The Eleventh Amendment generally prohibits United States citizens from suing a 

State or an arm of a State in federal court. Puerto Rico Aqueduct & Sewer Auth. v. 

Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Hans v. Louisiana, 134 U.S. 1, 10 

(1890) (prohibiting a resident citizen of a State from suing the State in which he resides). 

Eleventh Amendment immunity applies to the State of Arizona and state agencies. 

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The Plaintiff 

thus cannot state a claim against the State or the Secretary of State’s office for damages 

or prospective relief unless the State consents to the suit, waives its immunity, or the 

immunity is specifically abrogated by Congress. Id. at 99, 101-02. Here, the State has 

not consented to suit nor waived its immunity, and none of Plaintiff’s bases for relief 

specifically abrogate the State’s rights under the Eleventh Amendment. Quern v. 

Jordan, 440 U.S. 332, 345 (1979) (explaining that Congress must clearly state that it is 

abrogating a State’s Eleventh Amendment immunity and that Congress did not intend 42 

U.S.C. § 1983 to abrogate State immunity from suit in federal courts). Thus, the claims 

against the State should be dismissed.

The claims for monetary relief against the Secretary should also be dismissed. 

See Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988) (“[T]he [E]leventh [A]mendment 

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bars actions against state officers sued in their official capacities for past alleged 

misconduct involving a complainant’s federally protected rights, where the nature of the 

relief sought is retroactive, i.e., money damages, rather than prospective, e.g., an 

injunction.”). The Secretary State’s office is unquestionably a state agency for purposes 

of the Eleventh Amendment. See Pennhurst, 465 U.S. at 100 (“It is clear, of course, that 

in the absence of consent a suit in which the State or one of its agencies or departments 

is named as the defendant is proscribed by the Eleventh Amendment.”). The Secretary 

of State’s office has been a state agency since Arizona became a State in 1912, a 

statewide role secured by the Arizona Constitution. Ariz. Const. art. V, § 9. Moreover, 

the Secretary of State is reliant upon state funds for its budget,2 which is a key factor in 

determining whether Eleventh Amendment immunity applies to an agency. Savage v. 

Glendale Union High Sch. Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1040-41 (9th

Cir. 2003). Thus, neither the State of Arizona nor the Secretary of State’s Office are 

liable for damages in federal courts because of the immunity conferred by the Eleventh 

Amendment.

B. Ex Parte Young Only Allows a Suit Against the Secretary for 

Prospective Relief.

Ex Parte Young provides a limited exception to the Eleventh Amendment that 

allows private federal actions against state officials that will remedy present violations of 

federal law to prevent state officials from using the Eleventh Amendment to avoid 

complying with federal law. Papasan v. Allain, 478 U.S. 265, 278 (1986). The 

exception permits prospective declaratory and injunctive relief only against state 

officials acting in their official capacity. Nevada v. Hall, 440 U.S. 410, 420 n.19 (1979). 

This exception does not provide retrospective relief. Pennhurst, 465 U.S. at 105; 

Jackson v. Hayakawa, 682 F.2d 1344, 1351 (9th Cir. 1982) (distinguishing the 

prospective relief allowed in Ex parte Young with claims for compensation for past 

 2 Arizona Secretary of State Fiscal Year 2015 Annual Report at 8, available at 

http://www.azsos.gov/sites/azsos.gov/files/fy15_annual_report_online_version.pdf.

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violations). Assuming that Plaintiff is suing the Secretary in her official capacity,

Plaintiff cannot seek $10 million in monetary damages from the Secretary because 

Plaintiff is seeking redress for what Plaintiff claims is past harm. Plaintiff theoretically 

could proceed with a claim for injunctive relief; however, as shown below, Plaintiff has 

not stated a claim for relief.

IV. PLAINTIFF HAS NOT STATED A CLAIM UNDER THE 

FIFTEENTH AMENDMENT. 

As an initial matter, Plaintiff’s Amended Complaint states only one fact that the 

Court should take as true: that Plaintiff could not register to vote because he had been 

convicted of a felony. The remainder of the Amended Complaint is a string of incorrect 

legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009) (explaining that 

the plaintiff’s conclusion that the government adopted a law enforcement policy because 

of, not merely in spite of, adverse consequences to an identifiable group was not entitled 

to the assumption of truth because it is conclusory). In this case, nearly the entire 

Amended Complaint is a legal conclusion and therefore does not meet the pleading 

standards required by Rule 8 of the Federal Rules of Civil Procedure. Bell Atlantic Co. 

v. Twombly, 550 U.S. 544, 555 (2007) (finding that Rule 8(a)(2) requires more than 

“labels and conclusions or a formulaic recitation of the elements of a cause of action”). 

For example, Plaintiff states that:

By using A.R.S. § 16-101(5) [sic], which states: “Has not been 

convicted of treasons or a felony, unless restored to civil rights,” the 

Defendants are violating the 15th Amendment because incarceration 

in this country is slavery as defined by the 13th Amendment . . . .

Am. Compl. at ¶ 3. This legal conclusion and the others like it are not 

entitled to the assumption of truth.

After the statements that are not entitled to an assumption of validity are 

eliminated, the Court should look at the remaining factual allegations to determine if 

they “plausibly suggest entitlement to relief.” Iqbal, 556 U.S. at 682. And Plaintiff’s 

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lone factual allegation—that he could not register to vote because he was a felon—does 

not suggest any entitlement to relief.

For his claim under the Fifteenth Amendment, Plaintiff must show that his right 

to vote has been “denied or abridged . . . on account of race, color, or previous condition 

of servitude.” U.S. Const. amend. XV, § 1. The Fifteenth Amendment was passed after 

the Civil War, specifically to prohibit States from discriminating against racial 

minorities. For example, in Gomillion v. Lightfoot, 364 U.S. 339 (1960), the Supreme 

Court held that gerrymandering the city of Tuskegee, Alabama in such a way that almost 

all black people were excluded from city limits violated the Fifteenth Amendment. Id.

at 341(explaining that the new boundaries would remove all but four or five of the city’s 

four hundred registered black voters, while not removing a single white voter, from the 

city). “When a legislature thus singles out a readily isolated segment of a racial minority 

for special discriminatory treatment, it violates the Fifteenth Amendment.” Id. at 346.

Plaintiff makes no claim that A.R.S. § 16-101(A)(5) denies the right to vote based 

on race or color—and indeed he cannot. Section 16-101(A)(5) is race-neutral on its face:

it bars all felons from voting unless their civil rights are restored, regardless of race. 

And Plaintiff has not and cannot show that racial animus motivated Arizona’s 

disenfranchisement statutes. Cf. Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir. 

2010) (“[P]laintiffs bringing a section 2 VRA 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.”). In Hunter v. Underwood, 471 

U.S. 222, 229 (1985), the Supreme Court found a constitutional provision 

disenfranchising felons unconstitutional because it was clearly intended as an end-run 

around the rights of racial minorities. See id. (quoting the president of Alabama 

Constitutional Convention of 1901, John B. Knox, stating that “it is within the limits 

imposed by the Federal Constitution, to establish white supremacy in this State”). 

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A.R.S. § 16-101(A)(5) has no similar legislative history. Plaintiff has thus failed to 

plead any facts that would prove a racially discriminatory intent or purpose required to 

sustain a claim under the Fifteenth Amendment. 

Plaintiff instead argues that felon disenfranchisement is premised on a “previous 

condition of servitude” that cannot stand under the Fifteenth Amendment because the 

Thirteenth Amendment identifies criminal incarceration as “involuntary servitude.” Am. 

Comp. at ¶¶ 2-3. This argument misapprehends the Thirteenth Amendment, which states 

“Neither slavery or involuntary servitude, except as a punishment for a crime whereof 

the party shall have been duly convicted, shall exist within the United States.” U.S. 

Const. amend. XIII (emphasis added). This statement does not mean that incarceration 

is involuntary servitude that may not exist within the United States. Rather, the 

dependent clause acknowledges that incarceration for a crime is constitutional when it 

follows from a lawful conviction and that such incarceration is not the evil sought to be 

prohibited by the anti-slavery amendments arising out of Reconstruction. United States 

v. Kozminski, 487 U.S. 931, 943-44 (1988) (“By its terms the [13th] Amendment 

excludes involuntary servitude imposed as legal punishment for a crime.”); Wesley v. 

Collins, 605 F.Supp. 802, 813 (M.D. Tenn. 1985) aff’d, 791 F.2d 1255 (6th Cir. 1986) 

(“Felons are not disenfranchised based on any immutable characteristic, such as race, but 

on their conscious decision to commit an act for which they assume the risks of detection 

and punishment.”). Plaintiff’s claim under the Fifteenth Amendment should be 

dismissed because he has not and cannot plead facts that would establish a claim for 

relief under the Fifteenth Amendment.

/ / /

/ / /

/ / /

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V. PLAINTIFF HAS NOT STATED A CLAIM FOR RELIEF UNDER 

THE TWENTY-SIXTH AMENDMENT.

To state a claim for relief under the Twenty-Sixth Amendment, Plaintiff must 

show that his right to vote has been “denied or abridged . . . on account of age.” U.S. 

Const. amend. XXVI. The Twenty-Sixth Amendment was aimed solely at providing the 

right to vote to people in the eighteen to twenty-year-old age bracket who were being 

conscripted to fight in the nation’s wars but forbidden from voting in federal elections. 

See, e.g., Dwight D. Eisenhower, State of the Union Address (1954) (“For years our 

citizens between the ages of eighteen and twenty-one have, in time of peril, been 

summoned to fight for America. They should participate in the political process that 

produces this fateful summons.”). This amendment has no impact at all on the ability of 

individual States to determine the other qualifications of a voter. See U.S. Const. art. I, § 

2, cl. 1 (“[T]he Electors in each State shall have the Qualifications requisite for Electors 

of the most numerous Branch of the State Legislature.”); Lassiter v. Northampton Cty. 

Bd. of Elections, 360 U.S. 45, 50 (1959) (holding that States have broad power to 

determine conditions for suffrage, absent a course of conduct that the Constitution 

condemns). Because A.R.S. § 16-101(A)(5) applies equally to all felons of voting age, 

Plaintiff cannot state a claim that A.R.S. § 16-101(A)(5) violates the Twenty-Sixth 

Amendment.

VI. A.R.S. § 16-101(A)(5) IS CONSTITUTIONAL.

Plaintiff has made his allegations under the Fifteenth and Twenty-Sixth 

Amendments, presumably with full knowledge that courts have consistently upheld 

limitations on the right to vote for felons under the Fourteenth Amendment. See 

Richardson, 418 U.S. at 56 (finding that the Constitution permits a State to

disenfranchise felons who have otherwise completed their sentence and parole); Lassiter, 

360 U.S. at 51 (“Residence requirements, age, previous criminal record are obvious 

examples indicating factors which a state may take into consideration in determining the 

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qualifications of voters.”) (internal citations omitted); Harvey v. Brewer, 605 F.3d 1067, 

1081 (9th Cir. 2010) (holding that state statutes disenfranchising felons are constitutional 

and rationally related to a legitimate state interest); Owens v. Barnes, 711 F.2d 25, 27 (3d 

Cir. 1983) (applying Richardson to find that classifications regarding felon 

disenfranchisement are to be analyzed using rational basis review); Williams v. Taylor, 

677 F.2d 510, 514 (5th Cir. 1982) (holding that a felon’s “interest in retaining his right to 

vote is constitutionally distinguishable from the ‘right to vote’ claims of individuals who 

are not felons.”); see also Romer v. Evans, 517 U.S. 620, 634 (1996) (distinguishing the

facts at issue from the disenfranchisement of felons, stating that such 

disenfranchisement is “unexceptionable”). Plaintiff’s attempt to circumvent these cases

should not succeed; regardless of the provision under which Plaintiff brings his 

Complaint, A.R.S. § 16-101(A)(5) is a constitutionally permissible qualification on the 

right to vote.

VII. NO AMENDMENT TO THE COMPLAINT CAN CURE THE 

DEFECTS IN PLAINTIFF’S CLAIM. 

Plaintiff’s Amended Complaint should be dismissed with prejudice because there 

are no amendments that would be sufficient to remedy the defects in the claim. 

Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 767 (9th Cir. 1986) (“The denial 

of plaintiff’s motion for leave to amend was a proper exercise of discretion because 

amendment would have been futile.”). Pursuant to this Court’s order, the Plaintiff and 

Defendant conferred via telephone on February 5, 2016 before this Motion to Dismiss 

was filed. During the call, Plaintiff failed to provide any new facts that would sustain a 

claim for relief. Indeed, the Amended Complaint not only fails to allege sufficient facts 

to entitle Plaintiff to relief, it seeks relief for circumstances that are not actionable. 

Because Plaintiff has no legally cognizable claim, no amendments are able to save his 

Amended Complaint and the Court should dismiss it with prejudice in its entirety

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

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VIII. CONCLUSION

Plaintiff’s claim is not actionable. The Eleventh Amendment bars all of his 

claims against the State, and it bars his claim for money damages against the Secretary. 

Plaintiff also seeks injunctive relief against the Secretary; however, Plaintiff’s facts do 

not provide any support for the contention that his constitutional rights were violated. 

Moreover, because the facts complained of—specifically, that Plaintiff alleged that his 

felony conviction bars him from registering to vote—are not unconstitutional, Plaintiff 

cannot amend his Amended Complaint to state a claim for which relief may be granted. 

Therefore, the Court should dismiss Plaintiff’s Amended Complaint with prejudice.

Respectfully submitted this 16th day of February, 2016.

Mark Brnovich

Attorney General

 s/ Kara M. Karlson

James Driscoll-MacEachron

Kara M. Karlson 

Assistants Attorney General

Attorneys for Defendants

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 nonregistrants, this 16th day of February, 2016:

Brian Edward Malnes

2157 W. Alaska Ave.

Flagstaff, AZ 86001

Plaintiff pro per

 s/ Maureen Riordan

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CERTIFICATION OF CONFERRAL

I certify that I conferred with Plaintiff Brian Malnes via telephone on February 5, 

2016 to determine whether an amendment to the Complaint would resolve the issues 

raised in this Motion to Dismiss, pursuant to this Court’s order. After a good faith 

discussion, the parties were unable to resolve the issues raised in this Motion.

s/ Kara Karlson

#4911641

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