Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 236

Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Doc. 236

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TERRY GODDARD Attorney General Firm Bar No. 14000 Mary O'Grady, No. 011434 Solicitor General Carrie J. Brennan, No. 018250 Barbara A. Bailey, No. 018230 Assistant Attorneys General 1275 West Washington Street Phoenix, Arizona 85007-2926 Tel: [phone] Fax: [phone] Attorneys for the State of Arizona and the Arizona Secretary of State IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MARIA M. GONZALEZ, et al., Plaintiffs, v. STATE OF ARIZONA, et al. Defendants. MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANTS STATE OF ARIZONA AND THE ARIZONA SECRETARY OF STATE (Assigned to the Honorable Roslyn O. Silver) (Oral Argument Requested) No. CV06-01268 PHX ROS No. CV06-1362 PCT JAT (Cons) No. CV06-1575 PHX EHC (Cons)

Dockets.Justia.com

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MOTION Pursuant to Fed. R. Civ. P. 56(b), Defendants State of Arizona and the Arizona Secretary of State ("Defendants") move for summary judgment as to certain claims asserted in the three respective complaints of these consolidated actions. This motion is supported by the Memorandum in Support of Motion for Partial Summary Judgment by Defendants State of Arizona and the Arizona Secretary of State, the Separate Statement of Facts in support of that motion, and the Declaration of Counsel in support thereof, all of which are filed herewith. MEMORANDUM OF POINTS AND AUTHORITIES Preliminary Statement The majority of the claims asserted in these consolidated cases either (1) have been decided on legal grounds by this Court and/or the Ninth Circuit; or (2) have not yet been presented to the Court for disposition but are appropriate for resolution because there is no dispute about the material facts pertaining to those claims. As to such claims, summary judgment is both warranted and appropriate.1 More than one year ago, Plaintiffs filed the first of these cases against Defendants State of Arizona and the Arizona Secretary of State ("Defendants") and numerous County defendants.2 Plaintiffs' actions challenge two voting changes that were adopted by Arizona ballot initiative ("Prop 200") in November 2004: (1) the requirement that applicants to register to vote show proof of U.S. citizenship; and (2) the requirement that persons voting at the polls on Election Day present identification. Plaintiffs' respective complaints assert a total of thirteen separate legal theories ranging from state statutory and common law claims to federal constitutional and statutory claims. Nearly all of

For the Court's convenience, the chart on page 15, infra, summarizes the claims that are the subject of Defendants' motion and indicates the respective Plaintiffs that assert such claims. 2 Each of the three actions was brought by a distinct set of plaintiffs. Where appropriate, this memorandum specifies the particular plaintiff(s) as "Gonzalez Plaintiffs" (No. CV 06-1268), "ITCA Plaintiffs" (No. CV 06-1362) and "Navajo Nation Plaintiffs" (No. CV 06-1575).
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those claims depend upon legal theories that either have been decided by this Court or the Ninth Circuit or should be decided because there is no factual dispute to warrant further litigation of those claims. The main argument advanced by the Gonzalez and ITCA Plaintiffs thus far in this Court is that the National Voter Registration Act ("NVRA") preempts Arizona's proof of citizenship requirement. Not only did this Court reject that legal theory, but the Ninth Circuit decided the matter by holding that the NVRA does not preempt Arizona's voter registration requirement of proof of citizenship. Thus, Plaintiffs' claims that depend on that legal theory (i.e., NVRA and Supremacy Clause claims) fail as a matter of law. Similarly, the Ninth Circuit affirmed this Court's reasoning in its preliminary injunction ruling, and rejected Plaintiffs' argument that the proof of citizenship requirement constitutes an unconstitutional poll tax. Defendants thus are entitled to judgment on that claim. In addition to those claims that have been decided by the Ninth Circuit, this Court previously decided on grounds of law and undisputed fact certain claims based upon the Civil Rights Act and Voting Rights Act § 5. appropriate on those claims at this time. Each of Plaintiffs' remaining claims at issue in this motion presents solely legal matters for the Court to decide. Those claims are based on Arizona Revised Statutes §§ 16-121.01 and 16-151(B) and common law mandamus. None of those claims involves any dispute about the facts. Moreover, as explained in this memorandum, under the applicable authorities each of those claims fails as a matter of law. Accordingly, summary judgment should be entered in favor of Defendants on those claims.3 Accordingly, summary judgment is

Although Defendants' motion does not seek summary judgment on every claim asserted in this litigation, Defendants expect to move for summary judgment on all or some of Defendants' remaining claims after completion of discovery in this matter. A scheduling conference in this matter is set for August 3, 2007; no scheduling order governing motion practice and other aspects of the case has been entered.
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Statement of Undisputed Facts On November 2, 2004, Arizona voters adopted by ballot initiative Proposition 200 ("Prop 200"). [SOF 1]4 Sections 3, 4 and 5 of that initiative amended Arizona's voting laws in two substantive ways: (1) applicants to register to vote would be required to submit proof of U.S. citizenship; and (2) voters who choose to vote in-person at the polls on Election Day (as opposed to early voters) would be required to present identification. [SOF 2] On December 9, 2004, the Arizona Attorney General submitted to the U.S. Department of Justice ("DOJ") a request for preclearance of Sections 3, 4 and 5 of Prop 200. [SOF 3] That request expressly stated, among other things, that Prop 200's amendments would "require applicants registering to vote to provide evidence of United States citizenship with the application." [SOF 4] The request also included an analysis by the Legislative Council of Prop 200's amendments to Arizona's voting laws. That analysis expressly stated, among other things, that the amendments "would require that evidence of United States citizenship be presented by every person to register to vote." [SOF 5] The submission package to the DOJ comprised many pages and attached exhibits of information about Prop 200, including copies of the initiative, the laws to be amended by Prop 200, and articles and other public information relating to its passage. [SOF 6] The DOJ precleared Prop 200's voting-related amendments on January 24, 2005. [SOF 7] Since the inception of the National Voter Registration Act in 1995, Arizona has used and accepted for voter registration the Federal Mail Voter Registration Form ("Federal Form"), which was developed by the U.S. Election Assistance Commission ("EAC"). [SOF 8; see 42 U.S.C. § 1973gg-7(a)(2)] Following the implementation of Prop 200, Arizona has continued to accept both the Federal Form and Arizona's form for voter registration purposes, although the State requires submission of proof of U.S. citizenship along with whichever application form the registrant submits. [SOF 9] The "SOF" refers to the Separate Statement of Facts in Support of Motion for Partial Summary Judgment by Defendants State of Arizona and the Arizona Secretary of State,
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Arizona Secretary of State makes the Federal Form available to anyone who requests it. [SOF 10] In addition, that form is available for downloading and printing on the EAC's website. [SOF 10] Most individuals who are eligible to register to vote already possess a driver's license or nonoperating identification card, and thus do not require any other identification to vote. [SOF 11] In addition, many counties send official election mail and voter registration cards and inform voters that they may use those items as identification at the polls. [SOF 12] Those items are free. [SOF 12] Legal Argument I. THE APPLICABLE LEGAL STANDARD. Summary judgment is appropriate upon a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Once a defendant has identified those parts of the record that indicate an absence of an issue of material fact, "the nonmoving party must `designate specific facts showing that there is a genuine issue for trial.'" Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1048 (9th Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)) (internal quotations omitted). Moreover, "`[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Summary judgment should be granted if the evidence is merely colorable or if it is not significantly probative. Id. II. SUMMARY JUDGMENT IS WARRANTED ON PLAINTIFFS' NVRA CLAIM FOR THE REASONS STATED IN THE DECISIONS OF THIS COURT AND THE NINTH CIRCUIT. The Gonzalez and ITCA Plaintiffs assert that Arizona's proof of citizenship requirement violates the National Voter Registration Act ("NVRA"). Section 6 of the NVRA provides that states either must accept and use the federal mail-in registration

which is filed herewith.
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form prescribed by the Election Assistance Commission or must develop and use the state's own form, which must conform to the federal guidelines. [See 42 U.S.C. § 1973gg-7(a)(2)] According to Plaintiffs, the Act prohibits states from requiring proof of citizenship to register to vote because the federal form includes a "check box" for applicants to verify citizenship but does not contain a separate requirement of proof of citizenship. Plaintiffs' NVRA argument, however, was thoroughly considered and rejected by the Court in its fifteen-page Opinion and Order denying Plaintiffs' request for a temporary restraining order. [See Op. & Order dated 6/19/06] Although the Court's decision was made in the context of injunction proceedings, the basis for that ruling was that the Plaintiffs' NVRA preemption theory fails as a matter of law. [See id. at 13 ("Plaintiffs have not shown that the requirements of Proposition 200 conflict with a plain language reading of the NVRA.")] The Ninth Circuit affirmed this Court's decision and analysis on Plaintiffs' NVRA claim. The Ninth Circuit expressly held that "[t]he language of the statute does not prohibit documentation requirements. Indeed, the statute permits states to `require [] such identifying information . . . as is necessary to enable . . . election official[s] to assess the eligibility of the applicant.'" Gonzalez v. Arizona, Nos. 06-16521, 06-16702, 06-16706, __ F.3d __, 2007 WL 1163440, at *6 (9th Cir. Apr. 20, 2007) (quoting 42 U.S.C. § 1973gg-7(b)(1)) (alterations and ellipses in original). Because "[t]he NVRA clearly conditions eligibility to vote on United States citizenship," the Act's provisions permit states to require citizens to present evidence of citizenship when registering to vote. Id. Both this Court and the Ninth Circuit have soundly rejected Plaintiffs' NVRA claim. The respective courts did so on legal--not factual--bases. Accordingly, there is no reason to delay judgment in favor of Defendants on Plaintiffs' NVRA claim. In addition, because Plaintiffs' Supremacy Clause claim is based upon their preemption argument, the Court should grant judgment on that claim as well.5
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Moreover, the Supremacy Clause does not provide a basis for an independent
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III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE POLL TAX CLAIM. Plaintiffs assert that the proof of citizenship requirement constitutes a poll tax and therefore violates the Twenty-Fourth Amendment, which prohibits the denial or abridgement of citizens' right to vote based on a failure to pay any poll tax or other tax. Plaintiffs allege that some Arizona citizens do not have proof of citizenship and will be required to spend money to obtain such documentary proof. [ITCA Compl. ¶¶ 64-67; Gonzalez Compl. ¶¶ 84-86; Navajo Nation Compl. ¶¶ 64-67] In the preliminary injunction proceedings, this Court ruled that Plaintiffs did not show a strong likelihood of success on this claim. [10/11/06 Order at 10] The Court noted in its order that, unlike in Harman v. Forssenius, 380 U.S. 528 (1965), Arizona's voting requirements that are the subject of this litigation do not require the payment of any express poll tax. [Id. at 8-9] The Court stated that "[t]he only issue is whether requiring forms of identification should be classified as a poll tax under the reasoning of Harman." [Id. at 9] The Court considered plaintiffs' evidence which showed that "the vast majority of eligible voters" already possessed sufficient identification for registration. The Court denied the preliminary injunction motion because the identification requirement was not the type of indirect poll tax that would be objectionable under the reasoning in Harman. [See id. at

cause of action separate from Plaintiffs' preemption claim. The Supremacy Clause is not by itself a source of any federal rights. E.g., Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107-08 (1989) (stating that the Supremacy Clause is not a source of any federal rights but instead secures federal rights by according them priority whenever they conflict with state law); White Mountain Apache Tribe v. Williams, 810 F.2d 844, 848 (9th Cir. 1985) ("the Supremacy Clause, standing alone, `secures' federal rights only in the sense that it establishes federal-state priorities; it does not create individual rights, nor does it `secure' such rights within the meaning of § 1983"). To the extent that Plaintiffs have claims based on federal rights, they have asserted such claims directly under the respective federal authorities. Plaintiffs have identified no basis for any independent cause of action under the Supremacy Clause. E.g., Mashpee Tribe v. Watt, 542 F. Supp. 797, 806 (D. Mass. 1982) (dismissing independent claim based on Supremacy Clause: "The Supremacy Clause does not support direct causes of action.").
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9-10] The Ninth Circuit affirmed this Court's ruling and reasoning, and held that Arizona's proof of citizenship requirement is not a poll tax. The Court explained why the voting requirement at issue in this case is unlike the express poll tax before the Supreme Court in Harman. The Court stated: Here, voters do not have to choose between paying a poll tax and providing proof of citizenship when they register to vote. They have only to provide the proof of citizenship. Nor does Arizona's new law "make[] the affluence of the voter or payment of any fee an electoral standard." Gonzalez, 2007 WL 1163440, at *4. The reasoning of the Ninth Circuit's opinion, which affirms the reasoning and ruling of this Court, disposes of the merits of Plaintiffs' poll tax claim. Accordingly, the Court should grant summary judgment on that claim. The Court likewise should grant summary judgment on Plaintiffs' claim that the identification at the polls requirement constitutes a poll tax. As noted by the Court in its October 11, 2006, Order, the only issue is whether requiring the identification should be classified as a poll tax under the rationale of Harman. In Harman, Virginia required the payment of a $1.50 annual poll tax, and any potential voter not wishing to pay it could file a certificate of residency instead. 380 U.S. at 530-31. The Court stated that this system would be held invalid if it "impos[ed] a material requirement solely upon those who refuse[d] to surrender their constitutional right to vote in federal elections without paying a poll tax." Id. at 541. The Court concluded that Virginia's system was invalid. Id. However, the Court noted that it was not deciding "whether it would be within a State's power to abolish entirely the poll tax and require all voters--state and federal-- to file annually a certificate of residence." Id. at 538. Here, Prop 200 does not require the payment of a poll tax. Prop 200 allows for many different types of identification at the polls. Most individuals who are eligible to register to vote already possess a driver's license or nonoperating identification card, and thus do not require any other identification to vote. [SOF 11] Telephone, electricity or other utility bills can be used, and although these utilities may involve a fee paid to the
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provider, that cost is a fee for service, is beyond the control of the State, and existed long before Prop 200. For those who do not have those items, many counties send official election mail and voter registration cards to registered voters, and inform voters that they may use those mailings as acceptable forms of identification at the polls. [SOF 12] These forms of identification are free. [SOF 12] In addition, Native American tribes are free to provide their members with sufficient identification. Finally, registered voters who are unable or unwilling to present identification at the polls are free to vote early. They need not make any special showing to do so. See A.R.S. § 16-541(A). They may vote by mail or go to an early-voting location, and they can deliver their ballot any day within 33 days of the election, including the day of the election itself. See A.R.S. § 16-548(A). Prop 200's voter identification at the polls requirement does not constitute a poll tax, and this Court should enter judgment accordingly on that claim. IV. PLAINTIFFS CANNOT ESTABLISH A VIOLATION OF THE CIVIL RIGHTS ACT. Plaintiffs allege violations of 42 U.S.C. § 1971(a)(2)(A) and (B), which are part of the Civil Rights Act.6 [ITCA Compl. ¶¶ 68-74; Navajo Nation Compl. ¶¶ 125-129] Subsection (A) provides that no person acting under the color of law shall -- in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote. Both the ITCA and Navajo Nation Plaintiffs assert that Prop 200 violates subsection (A) because individuals voting in person are required to present

Several courts have held that there is no private right of action to enforce 42 U.S.C. § 1971. See McKay v. Thompson, 226 F.3d 752, 756 (6th Cir. 2000); Mixon v. State of Ohio, 193 F.3d 389 (6th Cir. 1999); Gilmore v. Amityville Union Free School, 305 F. Supp. 2d 271 (E.D.N.Y. 2004); Spivey v. Ohio, 999 F. Supp. 987, 996 (N.D. Ohio 1998); Willing v. Lake Orion Cmty. Sch. Bd. of Trustees, 924 F. Supp. 815, 820 (E.D. Mich. 1996); Good v. Roy, 459 F. Supp. 403 (D. Kan. 1978); but see Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003).
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identification, while those who vote early are not. [ITCA Compl. ¶ 70; Navajo Nation Compl. ¶ 127] As noted by the Court in its October 11, 2006, Order, early voting "is an inherently different procedure from voting in person, requiring a state which allows both in-person and absentee voting to apply different `standards, practices, or procedures' to these two groups of voters." [October 11, 2006 Order (quoting Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 840 (S.D. Ind. 2006)) (internal quotation marks omitted)].7 The application of different standards for two inherently different procedures does not violate subsection (A). The ITCA and Navajo Nation Plaintiffs also assert that the voter identification at the polls requirement violates § 1971(a)(2)(B), which states that no person acting under color of law may deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election. Specifically, Plaintiffs complain that the identification at the polls and proof of citizenship requirements violate subsection (B) because requiring such identification is not material in determining whether or not a voter is qualified to vote. [ITCA Compl. ¶¶ 73-74; Navajo Nation Compl. ¶ 129] However, the identity of a voter is a material component in determining that voter's eligibility to vote; the voters of Arizona clearly believed so when they passed Prop 200. E.g., Gonzalez, 2007 WL 1163440, at *6 (holding that the NVRA permits states to require identifying information, including citizenship status, as necessary to determine eligibility to vote). As one district court concluded, the presentation of identification in order to prove one's identity by definition "is not `an error or omission on any record or paper relating to any application, registration or other act requisite to voting.'" Common Cause/Georgia, League of Women Voters of Georgia, Inc. v. Billups, In an opinion authored by Judge Posner, the Seventh Circuit affirmed the Rokita decision earlier this year in Crawford v. Marion County Election Bd., 472 F.3d 949 (7th
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439 F. Supp. 2d 1294, 1358 (N.D. Ga. 2006) (quoting 42 U.S.C. § 1971(a)(2)(B)). In addition, because only citizens may vote, proof of citizenship is material to whether an individual is qualified to register to vote. Subsection (B) was intended to prevent requiring unnecessary information for voter registration in order to increase the numbers of possible errors and omissions on the applications, thus affording an excuse to deny the application. See Schwier v. Cox, 340 F.3d 1284, 1294 (11th Cir. 2003) (citing Condon v. Reno, 913 F. Supp. 946, 949-50 (D.S.C. 1995)). "For example, one `such tactic[] [was to] disqualify[] an applicant who failed to list the exact number of months and days in his age.'" Id. Obviously, the exact number of months and days in a person's age is not material to determining his or her eligibility to vote. But here, proof of citizenship is plainly material to determining eligibility and, therefore, does not fit under the language of subsection (B). The Court should grant summary judgment on Plaintiffs' claims based on 42 U.S.C. § 1971(a)(2)(A) and (B). V. DEFENDANTS DID NOT VIOLATE SECTION 5 OF THE VOTING RIGHTS ACT. The Gonzalez Plaintiffs assert that Defendants violated Section 5 of the Voting Rights Act ("VRA") by failing "to secure federal preclearance of their practice of rejecting mail voter registration forms prescribed by the U.S. Election Assistance Commission." [Gonzalez Compl. ¶ 96] Section 5 requires covered jurisdictions such as Arizona to obtain federal approval of legislative or other changes affecting voting before implementing such changes. See 42 U.S.C. § 1973c(a); 28 C.F.R. Part 51, App. (identifying Arizona as a covered jurisdiction). In earlier proceedings in this litigation, the Court addressed Plaintiffs' Section 5 claim and denied injunctive relief based on that claim. [See Op. & Order dated 6/19/06, at 13-14] The Court noted that the parties agree that Prop 200 was in fact precleared by the DOJ. [See id.] Indeed, there are no disputed facts regarding the steps the State took to obtain DOJ preclearance for the requirements of Prop 200. Moreover, nothing in the factual record before the Court has changed since the Court initially ruled against Plaintiffs on their Section 5 claim. Cir. 2007).
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As explained below, the Court should enter

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judgment on that claim. On December 9, 2004, following the adoption of Prop 200 by the Arizona voters, the Arizona Attorney General's Office sent an extensive Section 5 submission to the DOJ. [SOF 3-6] The submission requested preclearance of Prop 200's amendments to Arizona election law. [SOF 3] That submission included copies of the new law, as well as copies of the existing statutes to be amended by Prop 200. [SOF 6] The preclearance request letter also included an "Analysis by Legislative Council," which explicitly set forth the identification requirements of Prop 200. That analysis stated, "Proposition 200 would require that evidence of United States citizenship be presented by every person to register to vote." [SOF 5] The analysis further set forth the forms of identification specified by Prop 200 that would constitute satisfactory evidence of U.S. citizenship. [SOF 5] Based upon the materials submitted by the State, the DOJ precleared Prop 200's changes to the election laws on January 24, 2005. [SOF 7] Arizona voting registration officials have used and accepted the federal mail-in voter registration form since the inception of the NVRA in 1995. [SOF 8] That policy and practice have not changed since the implementation of the proof of citizenship requirement. Registration applicants are free to use the federal form to register to vote. They must provide proof, however, of their U.S. citizenship along with their application. The DOJ plainly knew of that requirement and precleared it. [SOF 9-10] Moreover, as explained above in Section II, the Ninth Circuit has since determined that the NVRA "does not prohibit documentation requirements." Gonzalez, 2007 WL 1163440, at *6. The DOJ precleared the proof of citizenship requirement, which the Ninth Circuit subsequently held does not violate the NVRA. Accordingly, summary judgment should be entered on Plaintiffs' claim based on Section 5 of the VRA.

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VI. PLAINTIFFS CANNOT ESTABLISH CLAIMS UNDER ARIZONA STATUTORY LAWS. The Gonzalez Plaintiffs allege that the proof of citizenship requirement violates Arizona Revised Statutes ("A.R.S.") §§ 16-151(B) and 16-121.01. [Gonzalez Compl. ¶¶ 104-109] a. There is no genuine dispute about the facts regarding those claims. Summary Judgment Is Appropriate on Plaintiffs' Claim Based on A.R.S. § 16-151(B). Accordingly, the Court should decide those claims as a matter of law.

Section 16-151(B) provides that "[t]he secretary of state shall make available for distribution through governmental and private entities the voter registration forms that are prescribed by the federal election commission." Plaintiffs allege that the Secretary does not make such federal mail-in voter registration applications available. [Gonzalez Compl. ¶ 108] The undisputed evidence, however, establishes that the Secretary does make such forms available to anyone who requests it. [SOF 10] In addition, that form is readily accessible on the Election Assistance Commission's website for downloading and printing. [SOF 10] Moreover, Plaintiffs do not allege that they ever requested such form from the Secretary and were denied it. b. Summary Judgment Is Appropriate on Plaintiffs' Claim Based on A.R.S. § 16-121.01.

Plaintiffs also allege that A.R.S. § 16-121.01 requires that a person be registered upon "completion of a registration form that includes, among other things, an affirmation of U.S. citizenship without the submission of further documentary proof." [Gonzalez Compl. ¶ 105] That statutory section, however, can (and should) be read in harmony with related registration provisions. E.g., Trickel v. Rainbo Baking Co. of Phoenix, 100 Ariz. 222, 228, 412 P.2d 852, 855 (1966) ("It is a fundamental rule that statutes are to be construed together and where different statutes bearing upon the same subject matter exist they must be construed so as to give effect to all."). Section 16-121.01(A) sets forth requirements for proper registration. It provides: A person is presumed to be properly registered to vote on completion of a registration form as prescribed by § 16-152 that contains at least the name, the residence address or the location, the date of birth
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and the signature or other statement of the registrant as prescribed by § 16152, subsection A, paragraph 20 and a checkmark or other appropriate indicator that the person answered "yes" to the question regarding citizenship. (Emphasis added.) Section 16-152(A), in turn, sets forth the content required for the registration form. That form must contain "[a] statement that the applicant shall submit evidence of United States citizenship with the application and that the registrar shall reject the application if no evidence of citizenship is attached." A.R.S. § 16-152(A)(23). The registrant must sign that form. Id. § 16-152(A)(19). In addition, the county recorder "shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship." Id. § 16-166(F). Those sections are related statutory provisions that comprise part of the election laws pertaining to voter registration. Accordingly, they should be construed together as though they constitute part of the same law. E.g., Moreno v. Jones, 213 Ariz. 94, 99, 139 P.3d 612, 617 (2006) (interpreting election law provisions; "If the statutes relate to the same subject or have the same general purpose-that is, statutes which are in pari materia-they should be read in connection with, or should be construed together with other related statutes, as though they constituted one law."). Read together, the statutory provisions require a completed registration form, which as provided in § 16-152(A) includes the statement that the applicant "shall submit evidence" of citizenship with the application, and require the counties to reject any applications that are not accompanied by such evidence. An interpretation of § 16-121.01(A) that permits voter registration without the applicant's providing proof of citizenship would contradict and defeat the requirements expressly set out in §§ 16-152(A)(23) and 16-166(F). Moreover, such an interpretation would contravene the legislative intent of the Arizona citizens who plainly intended to require each registrant to provide proof of citizenship. E.g., State v. Estrada, 201 Ariz. 247, 251, 34 P.3d 356, 360 (2001) (interpreting legislation adopted by initiative, and stating that "even where statutory language is clear and unambiguous, we will not
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employ a plain meaning interpretation that would lead to . . . a result at odds with the legislature's intent.") (internal quotation marks and alterations omitted). VII. THIS ACTION IS NOT PROPERLY A MANDAMUS ACTION. The Navajo Nation Plaintiffs seek mandamus relief to prevent Defendants from requiring voters at the polls to present identification. [Navajo Nation Compl. ¶¶ 102106] "Mandamus is an extraordinary remedy issued by a court to compel a public officer to perform an act which the law specifically imposes as a duty." Sears v. Hull, 192 Ariz. 65, 68, 961 P.2d 1013, 1016 (1998) (quoting Board of Educ. v. Scottsdale Educ. Ass'n, 109 Ariz. 342, 344, 509 P.2d 612, 614 (1973)). Summary judgment is appropriate on Plaintiffs' mandamus claim for at least two reasons. First, Plaintiffs do not seek to compel Defendants to perform any ministerial act. Plaintiffs are requesting that the Defendants be ordered to cease from requiring identification of Navajo voters who vote in person on the reservations. [See Navajo Nation Compl. ¶¶ 106(A), 109] Such injunctive relief cannot be the subject of a mandamus action. E.g., Sears, 192 Ariz. at 68, 961 P.2d at 1016 ("[T]his court has long held that mandamus will lie only `to require public officers to perform their official duties when they refuse to act,' and not `to restrain a public official from doing an act.'"). Second, apart from the injunctive nature of the relief improperly sought by Plaintiffs' mandamus claim, they cannot identify any ministerial duty imposed by law that would make mandamus relief appropriate here. Mandamus relief is not available "to compel an officer to perform acts not authorized or required by some plain provision of the law." Kahn v. Thompson, 185 Ariz. 408, 411, 916 P.2d 1124, 1127 (Ct. App. 1995). There is no "plain provision of the law" that requires Defendants to refrain from requiring voters at the polls to present identification. Instead, Defendants are following the "plain provision of the law" by requiring such identification for in-person voters. Nor are the Defendants required by any provision of law to ignore Arizona's voter identification requirement in order to treat in-person voters the same as early voters. [See Navajo Nation Compl. ¶ 106] To the contrary, as the Court previously

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noted in this case, "[e]arly voting is an inherently different procedure from voting in person, requiring a state which allows both in-person and absentee voting to apply different standards, practices, or procedures to these two groups of voters." [Order dated 10/11/06 (quoting Rokita, 485 F. Supp. 2d at 840) (internal quotation marks omitted)] Relief Requested For the foregoing reasons, the Court should grant summary judgment in favor of Defendants State of Arizona and the Arizona Secretary of State and against Plaintiffs as stated in this memorandum and as summarized in the chart below. Claim National Voter Registration Act (42 U.S.C. § 1973gg-4) Supremacy Clause Poll Tax Plaintiff Gonzalez (Eighth Cause) Inter Tribal Council (Count Six) Gonzalez (First Cause) Gonzalez (Third Cause) Inter Tribal Council (Count Two, in part) Navajo Nation (Fourth Claim) Inter Tribal Council (Count Three) Navajo Nation (Fifth Claim) Inter Tribal Council (Count Four) Navajo Nation (Fifth Claim) Gonzalez (Sixth Cause of Action) Gonzalez (Tenth Cause) Challenged requirement Proof of citizenship

Proof of citizenship Both requirements

Civil Rights Act (42 U.S.C. § 1971(a)(2)(A)) Civil Rights Act (42 U.S.C. § 1971(a)(2)(B)) Voting Rights Act § 5 A.R.S. § 16-151(B) A.R.S. § 16-121.01 Mandamus

ID at the polls

Both requirements

Proof of citizenship Proof of citizenship

Gonzalez (Ninth Cause) Proof of citizenship Navajo Nation ID at the polls (First Claim)

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RESPECTFULLY SUBMITTED this 4th day of June, 2007. TERRY GODDARD Arizona Attorney General s/Barbara A. Bailey Mary O'Grady Solicitor General Carrie J. Brennan Barbara A. Bailey Assistant Attorneys General Attorneys for the State of Arizona and the Arizona Secretary of State

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CERTIFICATE OF SERVICE I hereby certify that on the 4th day of June, 2007, I caused the foregoing document to be electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants: David J. Bodney Karen J. Hartman-Tellez Steptoe & Johnson LLP 201 East Washington St., Ste. 1600 Phoenix, Arizona 85004-2382 [e-mail] [e-mail] David B. Rosenbaum (served electronically and hand-delivered) Thomas L. Hudson Sara S. Greene Osborn Maledon, P.A. 2929 N. Central, 21st Floor Phoenix, Arizona 85012-2793 [e-mail] [e-mail] [e-mail] Jon Greenbaum Benjamin Blustein Lawyers' Committee For Civil Rights Under Law 1401 New York Avenue, Ste. 400 Washington, D.C. 20005 [e-mail] Neil Bradley ACLU Southern Regional Office 2600 Marquis One Tower 245 Peachtree Center Avenue Atlanta, Georgia 30303 [e-mail]

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Elliot M. Mincberg People for the American Way Foundation 2600 M Street, NW, Ste. 400 Washington, DC 20036 [e-mail] Luis Roberto Vera, Jr. League of United Latin American Citizens 111 Soledad, Ste. 1325 San Antonio, Texas 78205-2260 [e-mail] Daniel B. Kohrman AARP Foundation Litigation 601 E Street, N.W., Ste. A4-240 Washington, DC 20049 [e-mail] Joe P. Sparks Susan B. Montgomery Sparks, Tehan & Ryley PC The Inter Tribal Council of Arizona, Inc. 7503 First Street Scottsdale, Arizona 85251 [e-mail] David J. Becker People for the American Way Foundation 2000 M Street, NW, Suite 400 Washington, D.C. 20036 [e-mail] Daniel R. Ortega, Jr. Roush McCracken Guerrero Miller & Ortega 650 N. 3rd Avenue Phoenix, Arizona 85003 [e-mail]

Nina Perales (served electronically and via FedEx)

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Mexican American Legal Defense and Education Fund 110 Broadway, Ste. 300 San Antonio, Texas 78205 [e-mail] M. Colleen Connor MCAO Division of County Counsel 222 N. Central Avenue, Ste. 1100 Phoenix, Arizona 85003 [e-mail] Dennis I. Wilenchik Kathleen Rapp Wilenchik and Bartness, P.C. 2810 N. Third Street Phoenix, Arizona 85004 [e-mail] [e-mail] Judith M. Dworkin (served electronically and hand-delivered) Marvin S. Cohen Patricia Ferguson-Bohnee SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd. 4th Scottsdale, Arizona 85251-3693 [e-mail] Criss E. Candelaria Bradley Carlyon Apache County Attorneys Office PO Box 637 St. Johns, Arizona 86025 [e-mail] Melvin R. Bowers, Jr. Lance B. Payette Navajo County Attorneys Office PO Box 668 Holbrook, Arizona 86025 [e-mail] Brenna L. Clani Navajo County Department of Justice

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PO Box 2010 Window Rock, Arizona 86515 [e-mail] Jean E. Wilcox Coconino County Attorney's Office 110 East Cherry Ave. Flagstaff, Arizona 86001 [e-mail] COPY of the foregoing filed electronically this 4th day of June, 2007. COPY of the foregoing hand-delivered with Notice of Electronic Filing this 4th day of June, 2007 to: The Honorable Roslyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, AZ 85003-2158

/s Elizabeth A. Stark
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