Arizona Democratic Party et al v. Reagan

Filing 1

COMPLAINT (TRO Requested). Filing fee received: $ 400.00, receipt number 0970-13519705 filed by Democratic National Committee, Arizona Democratic Party (submitted by Sambo Dul). (Attachments: # 1 Civil Cover Sheet)(DXD)

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Kevin J. Hamilton (Wash. Bar #15648)
[e-mail]
(Pro Hac Vice Application To Be Filed)
Marc Erik Elias (D.C. Bar #442007)
[e-mail]
(Pro Hac Vice Application To Be Filed)
PERKINS COIE LLP
700 Thirteenth Street, N.W., Suite 600
Washington, District of Columbia 20005-3960
Telephone: [phone]
Facsimile: 202.654.6211
[e-mail]
Attorneys for Plaintiffs
Sambo Dul (SBA #030313)
Alexis E. Danneman (SBA #030478)
Thomas D. Ryerson (SBA # 028073)
Joshua L. Boehm (SBA # 033018)
PERKINS COIE, LLP
2901 N. Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Arizona Democratic Party and the Democratic
National Committee,
Plaintiffs,

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v.
Michele Reagan, Arizona Secretary of State,

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Defendant.

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133291098.4

No.
VERIFIED COMPLAINT FOR
INJUNCTIVE AND
DECLARATORY RELIEF

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Plaintiffs the Arizona Democratic Party (“ADP”) and the Democratic National

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Committee (“DNC”) (collectively, “Plaintiffs”), by and through their undersigned

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attorneys, file this Complaint for Injunctive and Declaratory Relief against Defendant

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Michele Reagan, in her official capacity as the Secretary of State of the State of Arizona

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(“Defendant” or “Secretary”). Upon information and belief, Plaintiffs allege the

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following:

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NATURE OF THE CASE
1.

The right to vote is “a fundamental matter in a free and democratic society.”

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Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667 (1966) (citation and quotation

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marks omitted). “No right is more precious in a free country than that of having a voice in

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the election of those who make the laws under which, as good citizens, we must live.

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Other rights, even the most basic, are illusory if the right to vote is undermined.”

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Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Plaintiffs bring this lawsuit to protect this

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most precious of rights.

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2.

A substantial number of Arizona voters are at risk of unlawful

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disenfranchisement in the November 8, 2016 General Election (“November 8 Election”)

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due to Defendant’s insistence that this year’s voter registration deadline fall on October 10,

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2016, a federal and state holiday (Columbus Day).

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3.

Because the deadline fell on a holiday, and the final day of a three-day

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weekend, many of the typical and most popular avenues for registration used by Arizona

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voters—including in-person registration at motor vehicle offices and registration by

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postmarking registration forms in the U.S. Mail—were simply unavailable on October 10

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(a holiday). The post office was also closed on Sunday, October 9, and Motor Vehicle

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Department (“MVD”) offices were closed on October 8 and 9 for the weekend.

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Accordingly, for a significant number of voters who tried to register on or shortly before

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the registration deadline, the promise of being able to register on that date was illusory.

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4.

Arizona’s registration deadline of October 10, 2016 violates the National

Voter Registration Act (“NVRA”), the First and Fourteenth Amendments of the United
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States Constitution, and Arizona state law.
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In light of the foregoing, a substantial number of voters are at immediate

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risk of unlawful and unnecessary disenfranchisement in the November 8 Election. To

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avoid such irreparable injury, this Court should enjoin Defendant from disqualifying any

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eligible voter from voting a regular ballot in the November 8 Election if the voter

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submitted an otherwise valid voter registration application before midnight on October 11,

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2016. These voters should not be turned away at the polls, but instead allowed to exercise

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their fundamental right to vote.

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JURISDICTION AND VENUE
6.

Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the

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deprivation under the color of state law of rights secured by the U.S. Constitution, as well

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as 52 U.S.C. § 50210 to remedy Defendant’s violations of the NVRA.

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7.

This Court has jurisdiction to hear Plaintiffs’ claims pursuant to 28 U.S.C.

§§ 1331, 1343(a)(3), 1357, and 1367.
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This Court has jurisdiction over Defendant, as she is sued in her official

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capacity as an elected official in Arizona or Maricopa County. Further, Defendant works

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or resides in the State of Arizona.

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9.

Venue in this district is proper under 28 U.S.C. § 1391(b) because a

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substantial part of the events or omissions giving rise to the claims occurred in this

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judicial district and in this division.

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10.

This Court has the authority to grant declaratory and injunctive relief

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pursuant to 28 U.S.C. §§ 2201 and 2202. Further, this Court has the authority to enter a

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declaratory judgment and to provide preliminary and permanent injunctive relief pursuant

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to Rules 57 and 65 of the Federal Rules of Civil Procedure.

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PARTIES
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Plaintiff Arizona Democratic Party is a state committee, as defined by 52

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U.S.C. § 30101. ADP’s purpose is to elect candidates of the Democratic Party to public

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office throughout the State of Arizona. To accomplish this purpose, ADP engages in
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vitally important activities, including supporting Democratic Party candidates in national,

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state, and local elections through fundraising and organizing efforts; protecting the legal

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rights of voters; and ensuring that all voters have the meaningful ability to cast ballots in

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Arizona. ADP has members and constituents from across Arizona, including many voters

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who regularly support and vote for candidates affiliated with the Democratic Party, as

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well as voters who would do so but for the unconstitutional procedure challenged in this

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litigation.

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12.

Defendant’s refusal to extend the voter registration deadline, as required by

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both state and federal law and the U.S. Constitution, has disenfranchised voters who

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registered or attempted to register on October 11, 2016. It is likely that citizens who

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would have registered as Democrats or voted for Democrats registered on October 11 ,

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thereby decreasing the overall likelihood that ADP will be successful in its efforts to help

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elect Democratic candidates to public office. The Arizona Democratic Party brings these

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claims on behalf of those citizens, as well as in its own right.

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13.

Plaintiff the Democratic National Committee is a national committee, as that

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term is defined and used by 52 U.S.C. §30101, dedicated to electing local, state, and

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national candidates of the Democratic Party to public office throughout the United States.

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The DNC has members and constituents across the United States, including voters in

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Arizona. To accomplish its mission, among other things, the DNC works closely with

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Democratic public officials and assists state parties and candidates by contributing money;

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making expenditures for their benefit; and providing active support through the

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development of programs benefiting Democratic candidates.

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14.

Defendant’s refusal to allow those who registered on October 11, 2016 to

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vote in the November 8 Election also directly harms the DNC, its members, and

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constituents. It is likely that citizens who would have registered as Democrats or voted for

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Democrats registered on October 11, 2016. As a result, the Defendant’s decision further

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decreases the likelihood that the DNC will be successful in its efforts to help elect

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candidates of the Democratic Party to public office.
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Defendant Michele Reagan is the Secretary of State for the State of Arizona

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and is the Chief Elections Officer for Arizona. A.R.S. § 16-142. As Arizona’s Chief

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Elections Officer, the Secretary is responsible for overseeing the voting process in

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Arizona, and is empowered with broad authority to carry out that responsibility. The

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Secretary is sued in her official capacity for actions taken under color of state law.

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STATEMENT OF FACTS
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This year, Defendant, in her official capacity as the Arizona Secretary of

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State, set the voter registration deadline on October 10, 2016 and instructed Arizona’s

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County Recorders to use that date as the last day Arizona residents may register to be

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eligible to vote in the November 8 Election.
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Under Arizona law, when the deadline to perform a function falls on a

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holiday, performance is deemed within the deadline if done on the next business day. See

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A.R.S. § 1-303 (“[I]t may be performed on the next ensuing business day with effect as

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though performed on the appointed day.”); see also A.R.S. § 1-243(A).

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Thus, prospective Arizona voters who registered on October 11, 2016, the

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next business day after Columbus Day, should be deemed eligible to vote in the

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November 8 Election.

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In the weeks prior to the registration deadline, Plaintiffs and others wrote to

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relevant Arizona state and county officials asking them to confirm and clarify to voters

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that they could register for the November 8 Election up to and including October 11, 2016.

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But these simple requests to comply with state law were met with near

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universal refusal. With the exception of just one county recorder, in Mohave County, all

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Arizona county recorders relied on the October 10, 2016 deadline set by the Secretary in

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refusing to entertain any deadline extension.

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The Arizona Attorney General’s office refused to provide a legal opinion

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confirming that voters could register on October 11, 2016 and asserted—notwithstanding

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the plain and contrary text of A.R.S. § 1-303—that the Secretary’s October 10, 2016

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deadline was a permissible exercise of discretion.
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Plaintiffs had informed relevant Arizona state and county officials that, even

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if certain registration options (such as online registration) remained available on

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Columbus Day, some of the most popular, and federally mandated, options would not be.

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Historically, over 40% of voter registration applications in Arizona are

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submitted either through the U.S. Mail or in-person at MVD offices. Neither of those

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options were available on Columbus Day, since post offices and MVD offices were closed.

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The Secretary’s own statistics further underscored the importance of an

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unambiguous deadline with all registration options available. Those statistics showed that

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over the previous three presidential election cycles, the top three days in Arizona voter

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registration volume were the three registration deadline dates for those cycles: 21,442

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voters in 2004, 38,872 voters in 2008, and 24,390 voters in 2012. These numbers

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demonstrate that voters often wait until the deadline to register. Therefore, the fact that the

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Secretary’s imposed deadline fell on a federal and state holiday, when not all registration

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options were available and the postal service and other government services and offices

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were closed, significantly impacts Arizonans’ ability to register in time for the November

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8 Election.

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25.

By refusing to extend the registration deadline, Defendants needlessly,

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predictably and unlawfully prevented many Arizona citizens from exercising their

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fundamental right to vote.

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Moreover, the State’s online registration option was only available to

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residents with a driver’s license and internet access. Therefore, this option was

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unavailable to many Arizona citizens, a disproportionate share of whom are racial or

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language minorities.

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Arizonans who are new citizens, many of whom are also racial and language

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minorities, experienced serious problems registering both online and at MVD offices due

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to their recent citizenship status. The MVD records for these voters did not accurately

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reflect their U.S. citizenship, so they were unable to register online using their MVD-

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issued driver’s license numbers. They were also unable to go to the MVD office to
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correct their citizenship status because those offices were closed on Columbus Day.
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Plaintiff ADP kept its field offices open throughout Columbus Day to

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collect in-person registrations, but these efforts were too little, too late, given the

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widespread confusion as to what registration options were available on that day.

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29.

On October 11, 2016, Plaintiff ADP had a number of Arizonans show up to

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its field offices seeking to register to vote for the upcoming election. They came wanting

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to register, and Plaintiff ADP helped them do so, but based on the deadline the Secretary

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imposed, they were too late to be eligible to vote in the November 8 Election. These

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Arizonans were understandably frustrated and disappointed to learn that they would be

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turned away at the polls in the upcoming election.

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CLAIMS FOR RELIEF

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COUNT I

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(Violation of the National Voter Registration Act)

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Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and in the paragraphs in the counts below as though fully set forth herein.
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The purpose of the National Voter Registration Act (“NVRA”) is to, among

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other things, “establish procedures that will increase the number of eligible citizens who

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register to vote in elections for Federal office.” 52 U.S.C. § 20501(b)(1).

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To accomplish this, the NVRA requires that states provide for voter

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registration via several methods: registration with an application for a driver’s license, 52

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U.S.C. § 20504; registration by mail, 52 U.S.C. § 20505; and in-person registration at

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registration sites or government offices, 52 U.S.C. § 20506.

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33.

Section 8 of the NVRA, 52 U.S.C. § 20507(a)(1), requires each state to

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ensure that an eligible applicant is registered to vote in an election if “the valid voter

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registration form of the applicant” is: i) “submitted to the appropriate State motor vehicle

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authority;” ii) “postmarked;” iii) “accepted at the voter registration agency;” or iv)

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otherwise “received by the appropriate State election official . . . not later than the lesser

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of 30 days, or the period provided by State law, before the date of the election.” 52

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U.S.C. § 20507(a)(1)(A)-(D).

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Arizona law requires that voter registration forms be “received . . . prior to

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midnight of the twenty-ninth day preceding the date of the election.” A.R.S. § 16-120.

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Twenty-nine days before the November 8 Election is October 10, 2016, which is

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registration deadline the Secretary had set. Because that date fell on Columbus Day, it was

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impossible for Arizonans to register using certain NVRA-mandated methods. For

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example, MVD and post offices were closed on Columbus Day. Post offices were also

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closed on October 9, 2016 because it was a Sunday. MVD offices were also closed on

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October 8 and October 9 because it was the weekend. Therefore, Arizonans were required

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to register to vote via mail, by the latest, Saturday, October 8, 2016, and at the MVD by

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Friday, October 7. These “shadow deadlines” were 31 and 32 days before the November 8

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Election, respectively, and both violate the NVRA. See 52 U.S.C. § 20507(a)(1).

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35.

Put differently, given that 29 days before the November 8 Election falls on

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Columbus Day, the first available day to require a voters to register through the NVRA

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methods that is “not later” than 29 days before the election is Tuesday, October 11, 2016.

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Accordingly, Arizona’s insistence that voters who registered by October 11, 2016 may not

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vote in the November 8 Election is inconsistent with, and a violation of, the NVRA.

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COUNT II

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(Undue Burden on the Right to Vote in Violation of the First Amendment and
the Equal Protection Clause of the Fourteenth Amendment)
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Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
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Under the First Amendment and the Equal Protection Clause of the

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Fourteenth Amendment, a court considering a challenge to a state election law must

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carefully balance the character and magnitude of the injury to First and Fourteenth

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Amendment rights that the plaintiff seeks to vindicate against the justifications put

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forward by the state for the burdens imposed by the rule. See Burdick v. Takushi, 504 U.S.
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428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
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The court “must weigh ‘the character and magnitude of the asserted injury

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to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to

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vindicate’ against ‘the precise interests put forward by the State as justifications for the

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burden imposed by its rule,’ taking into consideration ‘the extent to which those interests

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make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting

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Anderson, 460 U.S. at 789).

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39.

Unless Plaintiffs are granted the relief requested, the right to vote of many

Arizonans, including Plaintiff’s members and constituents, will be severely burdened in
the November 8 Election.
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Many registration options were closed to registrants on October 10, 2016.

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Again, historically, over 40% of voter registration applications in Arizona are submitted

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either through the U.S. Mail or in-person at MVD offices. None of those options were

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available on Columbus Day, since MVD and post offices were closed. That Arizona

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allowed individuals to register online on October 10, 2016 does not sufficiently mitigate

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this burden.

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41.

The State has not provided any colorable justification for its refusal to

extend the voter registration deadline to comply with state and federal law.

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COUNT III

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(Violation of Arizona Statutory Law Applicable to Voting Registration)

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42.

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Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
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As a general matter, voter registrations in Arizona state elections must be

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“received by the county recorder. . . prior to midnight of the twenty-ninth day preceding

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the date of the election,” which was October 10, 2016 for this cycle. A.R.S. § 16-120.

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But because October 10 was a state holiday, Columbus Day, Arizona law

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required that voting registration could be performed this cycle “on the next ensuing

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business day,” October 11, 2016. A.R.S. § 1-303.
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45.

Under long-standing Arizona executive and judicial authority, it is clear that

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the deadline extension under A.R.S. § 1-303 applies to election statutes such as A.R.S.

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§ 16-120. See Ariz. Att’y Gen. Op. No. 58-74 (1958); Dedolph v. McDermott, 230 Ariz.

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130, 132 (2012).

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46.

In violation of Arizona law, Defendant refused to clarify and ensure, in her

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capacity as chief election officer of the State, that Arizona voter registrations this cycle

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would be processed through October 11, 2016.

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PRAYER FOR RELIEF

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Wherefore, Plaintiffs respectfully request that this Court enter judgment:

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A.

Declaring that all otherwise eligible Arizona voters who submitted a valid

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voter registration application, through any acceptable means, before midnight on October

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11, 2016 are eligible to vote in the November 8 Election;

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B.

Preliminarily and permanently enjoining Defendant from disqualifying any

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Arizona voter from voting a regular ballot in the November 8 Election solely because he

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or she did not register by October 10, 2016, if he or she submitted a valid voter

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registration application before midnight on October 11, 2016 and is otherwise eligible to

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vote;

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C.

Requiring Defendant to ensure that voter registration applications submitted

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before midnight on October 11, 2016 are processed in time for eligible voters to be able to

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vote a regular ballot in the November 8 Election;

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D.

Requiring Defendant to identify all eligible Arizona voters who submitted a

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voter registration application at any time October 11, 2016, and notify such voters that

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they are eligible to vote in the November 8 Election by: (1) mailing a notice to each

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voter’s current residential address (post-marked as soon as possible but, in any event, no

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later than November 1, 2016); and (2) posting a prominent notice to this effect on

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Defendant’s website;

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E.

Requiring Defendant to provide to Plaintiffs (as soon as possible but, in any

event, no later than November 1, 2016) a list of all eligible Arizona voters who submitted
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a voter registration application at any time on October 11, 2016;
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Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees

pursuant to, inter alia, 42 U.S.C. §1988 and other applicable laws; and
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Granting such other and further relief as the Court deems just and proper.

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Dated: October 19, 2016

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PERKINS COIE LLP
By:/s/ Sambo Dul
Sambo Dul (SBA #030313)
Alexis E. Danneman (SBA #030478)
Thomas D. Ryerson (SBA # 028073)
Joshua L. Boehm (SBA # 033018)
PERKINS COIE, LLP
2901 N. Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788

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133291098.4

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VERIFICATION

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Spencer G. Scharff, declares that he is the Voter Protection Director for

the Arizona

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Democratic Pafty, and that he is authorized to make this verification for and on behalf of the

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Arizona Democratic Party; that he has read the foregoing Verified Complaint for Injunctive and

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Declaratory Relief, and knows the contents thereof; and that the same is true

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knowledge except as to the matters therein stated to be alleged upon information and belief, and,

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as to those matters, he believes them to be true.

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I declare under penalty of perjury under the laws of the

-ll&¿ay of octob er,2016.

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own

State of Arizona that the foregoing

is true and correct.
Dated tnis

of his

G. Scharff

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CERTIFICATE OF SERVICE

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I hereby certify that on October 19, 2016, I electronically transmitted the
attached documents to the Clerk’s Office using the CM/ECF System for filing.
s/ Indy Fitzgerald

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