Arizona Libertarian Party et al v. Reagan

Filing 17

ORDER denying 10 Motion for TRO; denying 10 Motion for Preliminary Injunction. On or before 6/10/2016, the parties shall jointly file a memorandum setting forth their views of how the remainder of the case should proceed. Signed by Judge David G Campbell on 5/27/2016.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Arizona Libertarian Party, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-16-01019-PHX-DGC

Michele Reagan,

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Defendant.

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On April 12, 2016, Plaintiffs filed this lawsuit challenging the constitutionality of

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A.R.S. §§ 16-321 and 16-322, as amended in 2015 by H.B. 2608. Doc. 1. On May 12,

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2016, Plaintiffs filed an emergency motion for a temporary restraining order and

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preliminary injunction. Doc. 10. The Court ordered expedited briefing and held a

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hearing for May 24, 2016. Doc. 11. For the following reasons, the Court will deny

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Plaintiffs’ motion for preliminary injunctive relief.

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I.

Background.

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Plaintiffs are the Arizona Libertarian Party (“AZLP”) and Michael Kielsky, the

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party’s chairman and a candidate for public office. Defendant Michele Reagan is the

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Arizona Secretary of State (“the Secretary”), the state officer responsible for

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administering elections in Arizona. Plaintiffs seek to enjoin the enforcement of certain

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portions of A.R.S. §§ 16-321 and 16-322, as amended in 2015 by H.B. 2608.

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In Arizona, a candidate who wishes to have her name printed on a primary ballot

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must comply with certain statutory requirements. One requirement is that the candidate

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file a valid nomination petition with the Secretary by a specified deadline. A.R.S. § 16-

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314(A). The petition must contain a minimum number of signatures from the relevant

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jurisdiction.

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depending on the office sought. Id. The purpose of the signature requirement is “to

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ensure that candidates have ‘adequate support from eligible voters to warrant being

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placed on the ballot.’” Jenkins v. Hale, 190 P.3d 175, 176, ¶ 6 (Ariz. Ct. App. 2008)

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(quoting Lubin v. Thomas, 144 P.3d 510, 512, ¶ 15 (Ariz. 2006)).

See A.R.S. § 16-322(A).

The required number of signatures varies

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On March 31, 2015, the Arizona Legislature passed H.B. 2608. Doc. 12 at 3. The

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Governor signed the bill into law on April 13, 2015, and it took effect on July 3, 2015.

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Id. H.B. 2608 made several changes to Arizona’s election statutes that are relevant here.

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H.B. 2608 changed the pool of persons from which candidates affiliated with a

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political party could collect signatures for a nomination petition. Under the old system, a

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candidate could collect signatures from electors who were qualified to vote in the

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candidate’s primary election. See 2015 Ariz. Sess. Laws Ch. 293, §§ 2-3 (H.B. 2608). If

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a candidate’s party chose to hold an open primary, the candidate could collect signatures

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from registered party members, registered independents, and unaffiliated voters. If a

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candidate’s party chose to hold a closed primary, the candidate could collect signatures

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only from registered party members. After H.B. 2608, a candidate can collect signatures

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from “qualified signers,” defined as (1) a registered member of the candidate’s party,

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(2) a registered member of a political party that is not entitled to continued representation

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on the ballot under A.R.S. § 16-804, or (3) a voter who is registered as independent or

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having no party preference. A.R.S. §§ 16-321(F), 16-322(A).

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In addition, candidates must now obtain the number of signatures equal to a

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certain percentage of qualified signers in the relevant jurisdiction, rather than a

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percentage of qualified electors who were qualified to vote in the candidate’s primary

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election. A.R.S. § 16-322(A). For most offices, H.B. 2608 lowered the percentage of

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signatures of qualified signers the candidate must collect. See 2015 Ariz. Sess. Laws Ch.

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293, § 3 (H.B. 2608).

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The deadline by which candidates must submit nomination petitions this year is

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June 1, 2016. Doc. 10 at 6. The deadline by which candidates must file as write-in

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candidates is July 21, 2016. Id. The primary election is scheduled for August 30, 2016.

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Id. at 5. The AZLP will have a closed primary this year – only its registered members

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may vote. Doc. 12-1 at 3, ¶ 11.

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Plaintiffs ask the Court to require the Secretary to place their candidates on the

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primary election ballot if, by the June 1, 2016 deadline, they submit nomination petitions

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containing the number of signatures that Sections 16-321 and 16-322 required before

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their amendment in 2015. Doc. 5 at 5. Plaintiffs also ask the Court to require the

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Secretary “to place their primary election write-in candidates on the general election

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ballot pursuant to Section 16-645(E) if the candidates receive at least as many votes in

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the primary election as the number of signatures” that would have been required before

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the enactment of H.B. 2608. Id. at 6.

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II.

Laches.

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“Laches – unreasonable and prejudicial delay – requires denial of injunctive relief,

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including preliminary relief.” Ariz. Pub. Integrity All. Inc. v. Bennett, No. CV-14-01044-

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PHX-NVW, 2014 WL 3715130, at *2 (D. Ariz. June 23, 2014). Over the last 25 years,

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the Arizona Supreme Court has repeatedly cautioned that litigants should bring election

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challenges in a timely manner or have their requests for relief denied on the basis of

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laches. See Lubin, 144 P.3d at 511-12, ¶¶ 10-11 (“We caution, however, that a party’s

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failure to diligently prosecute an election appeal may in future cases result in a dismissal

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for laches.”); Sotomayor v. Burns, 13 P.3d 1198, 1200, ¶ 9 (Ariz. 2000) (“We repeat our

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caution that litigants and lawyers in election cases must be keenly aware of the need to

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bring such cases with all deliberate speed or else the quality of judicial decision making

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is seriously compromised.”) (quotation marks and citation omitted); Harris v. Purcell,

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973 P.2d 1166, 1169, ¶ 15 (Ariz. 1998) (“In election matters, time is of the essence

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because disputes concerning election and petition issues must be initiated and resolved,

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allowing time for the preparation and printing of absentee voting ballots.”) (citations

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omitted); Mathieu v. Mahoney, 851 P.2d 81, 85 (Ariz. 1993) (“Special interest groups and

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the lawyers who represent them are aware of the difficult time pressures involved in

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ballot litigation. They have an affirmative duty to bring their challenges as early as

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practicable.”); Kromko v. Super. Ct. In & For Cty. of Maricopa, 811 P.2d 12, 18 (Ariz.

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1991) (“Moreover, disputes concerning election and petition matters must be initiated and

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heard in time to prepare the ballots for absentee voting to avoid rendering an action

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moot.”).

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Laches applies when there is both unreasonable delay and prejudice. Sotomayor,

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13 P.3d at 1200, ¶ 8 (citation omitted). “In the context of election matters, the laches

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doctrine seeks to prevent dilatory conduct and will bar a claim if a party’s unreasonable

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delay prejudices the opposing party or the administration of justice.” Ariz. Pub. Integrity

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All., 2014 WL 3715130, at *2 (citations omitted). To determine whether delay was

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unreasonable, a court considers the justification for the delay, the extent of the plaintiff’s

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advance knowledge of the basis for the challenge, and whether the plaintiff exercised

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diligence in preparing and advancing his case. Harris, 973 P.2d at 1169-70, ¶¶ 16-18.

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To determine whether delay has prejudiced a defendant, a court considers only

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prejudice that stems from the plaintiff’s delay in bringing suit, not difficulties caused by

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the fact of having been sued. Shouse v. Pierce Cty., 559 F.2d 1142, 1147 (9th Cir. 1977).

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Defendants are entitled to reasonable time to consider and develop their case, McCarthy

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Western Constructors, Inc. v. Phoenix Resort Corp., 821 P.2d 181, 187 (Ariz. Ct. App.

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1991), including “the opportunity to develop and present their own evidence, hire an

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expert, or prepare their cross-examination,” Mathieu, 851 P.2d at 84-85.

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To determine whether delay has prejudiced the administration of justice, a court

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considers prejudice to the courts, candidates, citizens who signed petitions, election

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officials, and voters. Sotomayor, 13 P.3d at 1200, ¶ 9; Mathieu, 851 P.2d at 85. As

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Arizona cases have noted, “[t]he real prejudice caused by delay in election cases is to the

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quality of decision making in matters of great public importance.” Sotomayor, 13 P.3d at

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1200, ¶ 9; see also Mathieu, 851 P.2d at 85. Unreasonable delay can prejudice the

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administration of justice “by compelling the court to steamroll through . . . delicate legal

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issues in order to meet” election deadlines. Lubin, 213 Ariz. at 497-98 (quotation marks

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and citations omitted).

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reasonably process and consider the issues . . . and rush appellate review, leaving little

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time for reflection and wise decision making.’” Sotomayor, 13 P.3d at 1200, ¶ 9 (quoting

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Mathieu, 851 P.2d at 86).

“Late filings ‘deprive judges of the ability to fairly and

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In Arizona Public Integrity Alliance v. Bennett, the Alliance and four voters sought

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to enjoin the Secretary of State from enforcing statutory requirement that candidates’

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nomination petitions contain a certain number of signatures from voters in at least three

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counties. 2014 WL 3715130, at *1. The plaintiffs had begun seriously examining the

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constitutionality of the county-distribution requirement in December 2013. Id. at *2. In

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the 2014 primary election cycle, nomination petitions were due by May 28, challenges to

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the petitions were due by June 11, and early primary voting was set for July 28. Id. On

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May 2, 2014, the plaintiffs provided notice to the state that they intended to seek an

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injunction, but they did not do so until May 15. Id. The court set an accelerated briefing

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schedule and a hearing for May 29. Id.

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The court found that the plaintiffs had unreasonably delayed in bringing their suit

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because the plaintiffs had been considering a constitutional challenge since December

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2013 and could have relied on sworn affidavits instead of waiting to file suit until after

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receiving their certified voting records. Id. The plaintiffs’ unreasonable delay prejudiced

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the defendant because he did “not respond on the merits for inability to marshal facts and

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authorities in the short time left.” Id. at *3. The court concluded that “[h]ad Plaintiffs

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filed suit promptly, a motion for preliminary injunction could have been briefed and

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decided without unreasonable burden on the Defendant, the Court, and the election

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process.” Id. at *2. The court held that the plaintiffs’ request for preliminary injunctive

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relief was barred by laches. Id. at *1.

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This case has followed almost the same timeline. H.B. 2608 became effective on

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July 3, 2015. In late August, Plaintiff Kielsky told State Election Director Eric Spencer

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that the AZLP intended to challenge the constitutionality of the new law. Doc. 12-1 at 3-

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4, ¶¶ 12-13. Plaintiffs were therefore aware of the underlying basis for their challenge by

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August 2015.

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Despite this knowledge, Plaintiffs did not file their complaint until April 12, 2016

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(Doc. 1), and did not file their “emergency” motion for a temporary restraining order

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until May 12, 2016 (see Doc. 10), less than three weeks before the June 1 deadline for

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nomination petitions. As a result, the Court has been forced to set an expedited briefing

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schedule and hold a hearing on Plaintiffs’ motion only eight days before the deadline.

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Plaintiffs argue that their delay was justified by the Secretary’s unreasonable delay

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in releasing the 2016 petition signature requirements on March 21, 2016. Doc. 14 at 2-3.

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The Court is not persuaded. First, the Secretary did not delay unreasonably. As defense

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counsel noted during oral argument, the Secretary was required by statute to use the

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March 1, 2016 voter registration data to calculate the primary election signature

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requirements. See A.R.S. § 16-322(B). Second, Plaintiffs’ own complaint and exhibits

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show that they had access to the necessary information months ago. Plaintiffs’ complaint

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attaches charts detailing the 2012 and 2014 petition signature requirements for Maricopa

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County. Doc. 1 at 32-33. Plaintiffs also cited the Secretary’s January 2016 voter

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registration statistics. Id. at 9, ¶ 25. Even a cursory examination of this data reveals that

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H.B. 2608 significantly increased the number of signatures AZLP candidates must obtain

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to secure a place on the primary ballot. This evidence fully supports the claims made by

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Plaintiffs in this case – that AZLP members are required to obtain an unconstitutionally

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high percentage of signatures from AZLP members, or to seek signature from non-AZLP

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voters. Plaintiffs were not required to wait for the March 21, 2016 numbers before

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asserting these arguments.

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(“Plaintiffs say they delayed their filing because it took a long time to obtain Plaintiffs’

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certified voting records. . . . [T]hey could have attested in sworn affidavits that they are

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qualified electors. The time it took to obtain certified voting records does not justify a

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delay.”). Plaintiffs have not provided an adequate justification for their delay.

See Ariz. Pub. Integrity All., 2014 WL 3715130, at *2

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The Secretary argues, with some persuasive force, that Plaintiffs’ unreasonable

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delay prejudiced her “ability to fully develop facts and arguments for the Court to assess

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in ruling on whether to grant” Plaintiffs’ request for preliminary injunctive relief.

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Doc. 12 at 5-6. Laches is designed to protect a defendant from this precise type of

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prejudice. See Mathieu, 851 P.2d at 84-85 (“Defendants did not have the opportunity to

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develop and present their own evidence, hire an expert, or prepare their cross-

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examination. Defendants should have had this opportunity even if plaintiffs did not

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present evidence[.]”) (emphasis in original).

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More importantly, Plaintiffs’ delay has prejudiced the administration of justice.

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Plaintiffs’ delay left the Court with only 18 days before the petition-submission deadline

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to obtain briefing, hold a hearing, evaluate the relevant constitutional law, rule on

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Plaintiffs’ motion, and advise the Secretary and the candidates which statutory petition

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requirement applies. See Doc. 12 at 5-6. What is more, signature gathering is well under

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way. Nomination petitions are due next week. Candidates who have been collecting

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signatures under the current law could be greatly disadvantaged by any injunctive relief

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that changes the rules at the last minute. Doc. 12 at 4.1

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In summary, the Court finds that Plaintiffs unreasonably delayed seeking

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preliminary relief. The Court also finds that the delay prejudiced Defendant and the

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administration of justice. The Court therefore will apply the doctrine of laches.

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In some cases, laches requires dismissal of the entire claim, while in others it

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justifies only the denial of expedited relief. Compare Harris, 973 P.2d at 1169-71

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(affirming dismissal of complaint challenging certification procedure for ballot

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proposition), with Ariz. Pub. Integrity All., 2014 WL 3715130, at *2-3 (denying

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plaintiffs’ request for preliminary injunctive relief, but allowing plaintiffs’ constitutional

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challenge to county signature requirements to proceed). Like the plaintiffs in Arizona

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At oral argument, Plaintiffs’ counsel asserted that all AZLP candidates have been
collecting signatures in compliance with the pre-H.B. 2608 signature requirements in
anticipation of injunctive relief, but Plaintiffs have provided no evidence to verify this
broad assertion and there is no time to do so now.
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Public Integrity Alliance, Plaintiffs challenge a signature requirement that will continue

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to apply in future elections if it is not invalidated by a court or revised by the Legislature.

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This is different than a challenge to a ballot proposition will either be passed or defeated

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in the election. The Court therefore concludes that laches should bar only Plaintiffs’

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request for emergency relief. The merits of the case may continue without the prejudice

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caused by the late-filed request for that relief.

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IT IS ORDERED that Plaintiffs’ emergency motion for a temporary restraining

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order and preliminary injunction (Doc. 10) is denied. On or before June 10, 2016, the

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parties shall jointly file a memorandum setting forth their views of how the remainder of

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this case should proceed.
Dated this 27th day of May, 2016.

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