Krieger v. Peoria, City of et al

Filing 39

ORDER granting 12 Motion for TRO. Signed by Judge David G Campbell on 8/22/2014.(DGC, nvo)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Ken Krieger, et al.

No. CV-14-01762-PHX-DGC
Plaintiffs,

10
11

v.

12

TEMPORARY RESTRAINING
ORDER

Peoria, City of, et al.,

13

Defendants.

14

Plaintiffs have filed a motion for a temporary restraining order (“TRO”) and a

15

preliminary injunction. Doc. 12. Defendants have filed a joint response (Doc. 27) and

16

Plaintiffs have replied (Doc. 32). The Court heard oral argument on August 22, 2014.

17

For the reasons that follow, the Court will grant the motion and enter a TRO.

18

I.

Background.

19

Plaintiffs are Dr. Ken Krieger and “Dr. Ken Krieger for Peoria City Council,” a

20

political committee. There are several defendants: the City of Peoria; Peoria Mayor Bob

21

Barrett, in his official capacity; Peoria City Council members Tony Rivero, Carlo Leone,

22

Ron Aames, Jon Edwards, Ben Toma, and Bill Patena, in their official capacities; Peoria

23

City Clerk Rhonda Geriminsky, in her official capacity; Maricopa County; Maricopa

24

County Supervisors Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and

25

Marie Lopez, in their official capacities; Clerk of the Maricopa County Board of

26

Supervisors Fran McCarroll, in her official capacity; Maricopa County Recorder Helen

27

Purcell, in her official capacity; Maricopa County Elections Director Karen Osborne, in

28

her official capacity; the Election and Tally Boards for the Mesquite District in the City

1

of Peoria; the State of Arizona; Ben Toma, in his individual capacity; and Bridget

2

Binsbacher.

3

This case concerns an election for a seat on the Peoria City Council representing

4

Peoria’s Mesquite District. The Mesquite District seat became vacant when its previous

5

occupant resigned to run for Mayor of Peoria. Doc. 27 at 3. There are three candidates –

6

Plaintiff Krieger, Defendant Toma, and Defendant Binsbacher. Toma is currently serving

7

as the Mesquite District’s interim council member. Id. at 4.
The Mesquite District primary election is scheduled to be held on August 26,

8
9

2014, in conjunction with state and federal elections.

Early voting has already

10

commenced. If a candidate receives at least “50% plus one” of the votes in the primary,

11

he or she will immediately take office. Id. If not, a run-off would occur in November,

12

with the winner taking office shortly thereafter. Id. There is no dispute that all three

13

candidates properly qualified for the ballot.

14

Early voting ballots were mailed to registered voters in the Mesquite District on

15

July 31, 2014 (the “First ballot”). Doc. 12 at 2. The following day, it was discovered

16

that Krieger’s name had been omitted from the ballot. Id. In an effort to correct the

17

error, Defendants Purcell, Osborne, and Geriminsky decided to send replacement ballots,

18

which were mailed on August 5, 2014 (the “Second ballot”). Id. Surprisingly, Krieger’s

19

name was omitted again. The parties agree that the vendor responsible for printing the

20

ballots – not Defendants – is responsible for these errors.

21

The Peoria City Council held an emergency meeting on August 7, 2014, to find a

22

solution. Id. at 3. The Council decided by a 3-2 vote, with Toma abstaining, that a new

23

ballot would be mailed to all registered voters in the Mesquite District (the “Third

24

ballot”), that remote voting stations would be set up to accept Third ballots or allow

25

voters to cast Third ballots, and that votes cast for the Mesquite District race on the First

26

or Second ballots would be counted unless the voter also submitted a Third ballot. Id.

27

The Third ballots were mailed to registered voters on August 9, 2014, along with this

28

notice:

-2-

1
The enclosed replacement ballot includes a list of all candidates for the City
of Peoria Special Primary Election for the Mesquite District Council seat
only. If you have previously received a ballot, you may use that ballot to
vote for all offices except the Mesquite District Council seat. Please use
the enclosed ballot to vote for the Mesquite District council seat. If you
have already voted in the Mesquite District Council Election and do not
return this ballot, your prior vote will be counted. If you have not already
voted an early ballot, you may vote a full ballot (State, County, and City
items) at your designated polling place on Election Day. Replacement
Voting Centers will be open through August 26th to vote only for the
Mesquite District Council seat.

2
3
4
5
6
7
8
9
10

Doc. 27-2 at 8.

11

Defendants state that if voters return either the First or Second ballots, the last one

12

received will be counted. Doc. 27 at 5. If a voter returns a Third ballot by mail, casts a

13

Third ballot at a remote voting location, or casts a full ballot at the polls on Election Day,

14

that vote will be counted for the Mesquite District election rather than any vote indicated

15

on a previously received ballot. Id.

16

Following the Council’s decision, Plaintiffs filed this action asserting claims under

17

42 U.S.C. § 1983 for denial of equal protection and due process under the Fourteenth

18

Amendment to the United States Constitution, and denial of freedom to associate under

19

the First Amendment. They also assert claims for violation of Arizona’s early voting and

20

ballot preparation statutes and violation of Peoria’s ballot preparation law. Doc. 15.

21

Plaintiffs ask the Court to enjoin the Mesquite District primary election and order that a

22

special election be held.

23

II.

Standing.

24

To establish standing, a plaintiff generally must show three elements: (1) the

25

plaintiff has suffered an “injury in fact,” (2) a causal connection exists between the injury

26

and the conduct complained of, and (3) there is a likelihood the injury will be redressed

27

by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

28

Defendants dispute only the first element, arguing that Plaintiffs have not suffered injury

-3-

1

in fact. The Court disagrees. There can be little doubt that Plaintiff Krieger, a candidate,

2

will be injured by an election process in which a meaningful number of votes are cast on

3

ballots that do not include his name.

4

Plaintiff Krieger also asserts his rights as a voter and the associated rights of other

5

voters in the Mesquite District. The Supreme Court has held that “[a] citizen’s right to a

6

vote free of arbitrary impairment by state action has been judicially recognized as a right

7

secured by the Constitution,” Baker v. Carr, 369 U.S. 186, 207-08 (1962); see also Gray

8

v. Sanders, 372 U.S. 368, 375 (1963), and a loss of a constitutional right constitutes

9

actual injury. In addition, Courts have recognized the standing of candidates to bring an

10

action on behalf of affected voters:

11
[W]e believe that both candidates and voters may challenge on its face on
equal protection grounds a candidacy restriction because of its impact on
voting rights. A candidate for public office, such as the appellee, is so
closely related to and dependent upon those who wish to vote for him and
his litigation will so vitally affect their rights that courts will relax the rule
of practice (which is designed to assure vibrant representation of the vital
interests of non-parties) and will permit a candidate to raise the
constitutional rights of voters.

12
13
14
15
16
17
18

Mancuso v. Taft, 476 F.2d 197, 190 (1st Cir. 1973); see also Bullock v. Carter, 405 U.S.

19

134 (1972).
Plaintiffs have shown a sufficient injury in fact on behalf of Plaintiff Krieger and

20
21

voters whose constitutional rights Plaintiffs may raise in this case.

22

IV.

TRO Requirements.

23

An injunction may be granted only where the movant shows that “he is likely to

24

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

25

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

26

the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see

27

also Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.

28

2009). A request for a TRO is governed by the same general standards that govern the

-4-

1

issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox. Co.,

2

434 U.S. 1345, 1347 n.2 (1977).

3

A.

4

Plaintiffs assert several different constitutional violations in their § 1983 claims:

5

violation of procedural and substantive due process, denial of equal protection, and

6

violation of the First Amendment right of association as expressed through the voting

7

process. Courts have applied several different tests to constitutional claims arising out of

8

elections. During the hearing in this case, both sides agreed that the “fundamental

9

unfairness” test applied by the Ninth Circuit in Bennett v. Yoshina, 140 F.3d 1218 (9th

10

Likelihood of Success on the Merits.

Cir. 1998), is most relevant.

11

Bennett held that “an election is a denial of substantive due process if it is

12

conducted in a manner that is fundamentally unfair.” Id. at 1226. The Ninth Circuit

13

explained, however, that there is a distinction “between ‘garden variety’ election

14

irregularities and a pervasive error that undermines the integrity of the vote.” Id. “In

15

general, garden variety election irregularities do not violate the Due Process Clause, even

16

if they control the outcome of the vote or election.” Id. To trigger a constitutional

17

violation, the irregularities must “transcend garden variety problems.” Id.

18

Bennett cited several cases that illustrate garden variety irregularities. Id. These

19

include human error in miscounting votes, delays in the arrival of voting machines,

20

technical deficiencies in printing ballots, and malfunctioning voting machines. The cited

21

cases hold that such common irregularities should be resolved through state-law remedies

22

and do not amount to a violation of constitutionally protected rights. The cases rightly

23

recognize that federal courts should be reluctant to intervene in state election procedures.

24

To illustrate election problems that warrant federal intervention, the Ninth Circuit

25

relied on Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).1 Absentee and shut-in voters in

26

Griffin were allowed to use mail-in ballots, as in this case, to vote in a primary election

27
28

1

The Ninth Circuit also relied on Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995), a
case consistent with Griffin.
-5-

1

for a city council seat. After the election, the Rhode Island Supreme Court found “no

2

constitutional or statutory basis for allowing absentee and shut-in voters to cast their

3

votes in a primary election,” and invalidated the ballots. Id. at 1068. Disenfranchised

4

voters sued in federal court, arguing that their constitutional rights had been violated.

5

The First Circuit applied the “fundamental unfairness” analysis adopted by the

6

Ninth Circuit in Bennett and accepted by the parties in this case. Several observations in

7

Griffin are relevant.

8

The First Circuit began by confirming that “the plaintiffs’ right to vote in this

9

primary as in other elections is protected under the Constitution.” Id. at 1074. Griffin

10

recognized that federal courts should not intervene in common election irregularities, but

11

that some cases do require the protection of federal rights:

12
13
14
15
16

The right to vote remains, at bottom, a federally protected right. If the
election process itself reaches the point of patent and fundamental
unfairness, a violation of the due process clause may be indicated and relief
under § 1983 therefore in order. . . . [T]here is precedent for federal relief
where broad-gauged unfairness permeates an election, even if derived from
apparently neutral action.

17
18
19
20
21
22
23
24
25
26
27
28

Id. at 1077.
During the hearing in this case, the Court asked the parties to identify the dividing
line between garden variety irregularities and those that raise serious constitutional
violations. Defendants asserted that a finding of intentional discrimination or other
wrongful intent is needed before election problems violate constitutional rights. Plaintiffs
argued that wrongful intent is not required and that fundamental unfairness is sufficient.
The Court agrees with Plaintiffs. As noted in the above quotation from Griffin, broadgauged fundamental unfairness violates the constitution even it results from “apparently
neutral action” on the part of state or local officials. Id. This certainly was true in
Griffin, where the unconstitutional action was a decision by the Rhode Island Supreme
Court. Bennett likewise contains no suggestion that wrongful intent is required before a
constitutional violation can be found.
-6-

1
2

After discussing two cases in which federal courts rightly intervened in local
elections, Griffin provides this helpful guidance on the dividing line:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

While there is no single bright line to distinguish [the two cases] from the
cases . . . in which federal courts have declined to intervene, it is apparent
that in both cases the attack was, broadly, upon the fairness of the official
terms and procedures under which the election was conducted. The federal
courts were not asked to count and validate ballots and enter into the details
of the administration of the election. Rather they were confronted with an
officially-sponsored election procedure which, in its basic aspect, was
flawed. Due process, representing a profound attitude of fairness between
. . . individual and government, is implicated in such a situation.
Id. at 1078 (emphasis added; citations and quotation marks omitted).
Applying this requirement of broad, fundamental unfairness, which was adopted
by the Ninth Circuit in Bennett, the Court concludes that Plaintiffs have shown a
likelihood of success on the merits of their constitutional claims. Plaintiffs do not base
their claim on the two misprinted ballots that were mailed to voters. Those errors were
unintended irregularities. Plaintiffs instead complain about the official action taken by
Defendants to remedy those errors, actions that, although clearly undertaken in good
faith, produced fundamental unfairness.
Defendants decided that votes cast on either the First or Second ballots would be
counted, despite the fact that both ballots omit Krieger’s name. Under that decision,
some portion of the voters will make choices in the primary election with only the names
of Krieger’s two opponents before them. Unfortunately, this prospect is not eliminated
by the remedial measures Defendants adopted.
The instruction included with the Third ballot and quoted earlier in this order is, at
best, confusing. It tells voters that they are to use the Third ballot for their votes for the
Mesquite District council seat, but does not say why. It says nothing about the error in
the earlier ballots voters have received. The notice then tells voters that their votes on the
First and Second ballots will be counted, contradicting the statement that the Third ballot
must be used.
-7-

1

Voters who have already mailed in the First or Second ballots may not even bother

2

to open or read the third mailing. Others may read it, see that their earlier mail-in vote

3

will be counted, and not bother to examine the Third ballot to see how it differs from the

4

first two. Nor could they compare the new ballot to the earlier versions which they have

5

already mailed. What’s more, the Third ballot was mailed and the election will be held in

6

August which is prime vacation time in the desert, and some voters who mailed in earlier

7

ballots therefore may not even see the third mailing before the election. The Court finds

8

each of these scenarios plausible, even likely for at least some of the voters. In every one

9

of them, voters will cast their votes on the basis of an incomplete list of candidates and

10
11

Plaintiff Krieger will lose his right to be considered for their votes.
This fundamental unfairness is more than isolated.

Statistics provided by

12

Defendants show that half of the registered voters in the Mesquite District receive early

13

ballots by mail. Of the votes cast in the 2012 election, 86% were cast by mail-in ballots,

14

14% at polling places. Doc. 27 at 17. Thus, the defective ballots in this case were mailed

15

to approximately one-half of the voters, and the vast majority of the votes in this election

16

are likely to come from mail-in ballots. Although Defendants have taken steps to provide

17

voters with a correct ballot, it was not mailed out until August 9, and defense counsel

18

acknowledged during the hearing that Defendants began receiving completed mail-in

19

ballots on August 1. Thus, it is a certainty that some votes have been cast using the

20

defective ballots. Because Defendants have decided to count votes cast on the First and

21

Second ballots, it appears likely that some significant percentage of the votes for the

22

Mesquite District council seat will have been made with ballots that omit Plaintiff

23

Krieger’s name.

24

This procedure, like the procedure struck down in Griffin, reflects “broadly upon

25

the fairness of the official terms and procedures under which the election [is] conducted.”

26

Griffin, 570 F.2d at 1078. It is “an officially-sponsored election procedure which, in its

27

basic aspect, [is] flawed.” Id. To use the Ninth Circuit’s words, it includes “a pervasive

28

error that undermines the integrity of the vote.” Bennett, 140 F.3d at 1226.

-8-

1

Because the Court finds an election based in part on incomplete ballots that omit a

2

candidate’s name to be fundamentally unfair, the Court concludes that it likely violates

3

Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment. Plaintiffs

4

are likely to succeed on the merits of this claim.

5

The Court wishes to emphasize that it finds absolutely no wrongdoing on the part

6

of Defendants. They have acted in good faith to remedy a problem not of their making.

7

But the Court also finds that the selected remedy is fundamentally flawed.

8

B.

Likelihood of Irreparable Harm.

9

Plaintiffs are likely to succeed in showing irreparable harm. Plaintiffs do not

10

assert their right to win the election; they assert their right to a fair election and the

11

voters’ right to cast an accurate and valid vote. The loss of these rights satisfies the

12

irreparable harm requirement. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (election

13

case noting that the loss of constitutional rights “for even minimal periods of time,

14

unquestionably constitutes irreparable injury”); Fla. Democratic Party v. Hood, 342 F.

15

Supp. 2d 1073 (N.D. Fla. 2004) (“A person who is denied the right to vote suffers

16

irreparable injury.”).

17

C.

Balance of Equities and Public Interest.

18

The last two requirements for a TRO are also satisfied. The balance of equities

19

tips in favor of Plaintiffs, who are likely to suffer a serious violation of their

20

constitutional rights, not in favor of Defendants, who seek to implement an election

21

procedure that is fundamentally unfair. Similarly, an injunction of the unfair election is

22

in the public interest, which is not served by an election based in part on defective ballots.

23

V.

Temporary Restraining Order.

24

Plaintiffs ask the Court to enjoin Defendants from counting votes cast for the

25

Mesquite District council seat in the ongoing primary election and to order a special

26

election. The Court has considered whether lesser measures would solve the problem in

27

this case, but has found none that is viable. One possible solution would be to order

28

Defendants not to count votes on the First and Second ballots, but such an order would

-9-

1

effectively disenfranchise voters who relied on the statement in the third mailing that

2

their votes on those ballots would be counted. It is entirely possible that some voters read

3

the third mailing with care, understood the problem in the first two ballots, and chose not

4

to send in the Third ballot or vote at a polling place because they wanted to cast their vote

5

for Toma or Binsbacher and relied on the assurance that such a vote on the First and

6

Second ballots would be counted. Invalidating their votes is not a fair solution. In the

7

absence of any other reasonable alternative, the Court concludes that Plaintiffs’ requested

8

relief should be granted.

9
10

IT IS ORDERED:
1.

Defendants shall not count votes cast in the Mesquite District primary

11

election for the Peoria City Council, whether cast by mail-in ballot or at any polling

12

place, in connection with the August 26, 2014 primary election, nor shall they announce

13

any result related to the Mesquite District primary election for the Peoria City Council.

14

2.

Defendants shall instead hold a special election for the Mesquite District

15

primary election for the Peoria City Council. Defendants shall, within ten days of this

16

order and after conferring with Plaintiffs and Candidates Toma and Binsbacher, advise

17

the Court concerning the details of the special election.

18
19

3.

The parties shall, by 3:00 p.m. on August 29, 2014, jointly file a statement

advising the Court of any further proceedings they believe to be necessary in this case.

20

4.

No bond shall be required of Plaintiffs for entry of this TRO.

21

Dated this 22nd day of August, 2014.

22
23
24
25
26
27
28

- 10 -