Arizona Democratic Party et al v. Reagan
Filing
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ORDER - IT IS ORDERED: 1. That Plaintiffs' Motion to Strike (Doc. 31 ) is denied; 2. That Plaintiffs' Motion to Supplement (Doc. 34 ) is granted; 3. That the Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 2 ) is denied; 4. That the Motion to Modify the Relief Sought (Doc. 37 ) is denied as moot; 5. That Plaintiffs' request for declaratory judgment, permanent injunction is denied; and 6. That the Clerk of Court shall enter judgment accordingly and terminate this action. (See document for further details). Signed by Judge Steven P Logan on 11/3/16.(LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Arizona Democratic Party and
Democratic National Committee,
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Plaintiffs,
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vs.
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Michele Reagan, Secretary of State,
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Defendant.
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No. CV-16-03618-PHX-SPL
ORDER
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Both the United States and the State of Arizona observe two things: (1) general
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elections are to take place on the Tuesday following the first Monday in November in a
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given even number year, see 2 U.S.C. § 1, 7; 2 U.S.C. § 3; Ariz. Const. art. VII, § 11;
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Ariz. Rev. Stat. § 16-211; and (2) “Columbus Day” is a recognized holiday that falls on
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the second Monday in the month of October, see 5 U.S.C. § 6103(a); Ariz. Rev. Stat. § 1-
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301(A)(12). While these well-established events are seemingly non-controversial, this
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election cycle, Arizona has managed a way to sift out some uncertainty.
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Arizona law provides that “[n]o elector shall vote in an election... unless the
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elector has been registered to vote… and the registration has been received… prior to
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midnight of the twenty-ninth day preceding the date of the election.” Ariz. Rev. Stat. §
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16-120. Applying this calculation strictly, the Arizona voter registration deadline for the
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upcoming November 8, 2016 general election was set on the 29th day that preceded it -
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October 10, 2016, Columbus Day.
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Plaintiffs the Arizona Democratic Party and Democratic National Committee
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(“Committees”) filed the instant lawsuit suing Defendant Michele Reagan in her official
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capacity as the Secretary of State (“Secretary” or “State”). (Doc. 1.) The Committees
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claim that the Secretary’s decision not to extend the October 10, 2016 voter registration
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deadline, and to preclude certain voters whose registration applications were received on
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October 11, 2016 from voting in the November 8, 2016 general election, violated federal
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and state law, and imposed an unconstitutional burden on voters. The Committees request
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declaratory and injunctive relief. For the reasons that follow, the Court finds that the
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Committees prevail on the merits of their claims, in part, but concludes that they are not
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entitled to relief.
BACKGROUND1
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On February 10, 2016, the Secretary published its 2016 elections calendar on its
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website, listing October 10, 2016 as the “[v]oter registration deadline for General
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Election.” (Doc. 15-1 at 4-11, ¶ 4; Hr’g Exh. 25 ¶ 4; Doc. 4-5 at 29-33; Hr’g Exh. 7.)2
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Sometime in the months that followed, “at least one county asked [the Secretary’s
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Office] for guidance” with respect to the voter registration deadline and the Columbus
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Day holiday. (Doc. 30, Hr’g Tr. 68:4-17.) As a result, on August 25, 2016, Eric Spencer
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(“Spencer”), State Elections Director, sent an email to all fifteen counties notifying them
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that although it was Columbus Day, the voter registration deadline would fall on October
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10, 2016. (Doc. 15-1 at 4-11, ¶ 6; Hr’g Exh. 25 ¶ 6; Doc. 30, Hr’g Tr. 68:4-17.)
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On August 26, 2016, the Secretary issued the Arizona 2016 General Election
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Publicity Pamphlet. (Docs. 4-5 at 40-167; Hr’g Exh. 9;3 Doc. 15-1 at 4-11, ¶ 6; Hr’g Exh.
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25 ¶ 6.) See also Ariz. Rev. Stat. § 19-123(A) (“the secretary of state shall cause to be
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printed… a publicity pamphlet”). Following the Secretary’s message to voters, the
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pamphlet provides in relevant part:
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Unless otherwise noted, the following is not disputed by the parties.
Also found at: https://www.azsos.gov/elections/elections-calendar-upcomingevents (last visited November 3, 2016).
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Also
found
at:
https://www.azsos.gov/elections/voting-election/electioninformation (last visited November 3, 2016).
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DEADLINE: October 10 is the registration deadline for the 2016
General Election, if you are not already registered to vote.
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REGISTER ONLINE: Register to vote online by using the EZ voter
registration service at www.servicearizona.com. A valid Arizona driver’s
license or non-operating identification license is necessary.
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PAPER REGISTRATION: Voter registration forms are available:
• From the Secretary of State’s website (www.azsos.gov);
• By calling the Secretary of State’s Office at 1-877-THE-VOTE
(1-877-843-8683);
• By contacting your County Recorder’s Office (listed on page 11); or
• At other government offices and public locations throughout the state.
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*Paper forms must be received by your County Recorder or the Secretary
of State’s Office BEFORE 5:00 p.m., October 10, 2016. Please note, some
County Recorder Offices may be closed on October 10 for Columbus Day;
plan accordingly. Online registration is available through midnight on
October 10.
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10
11
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(Doc. 4-5 at 44 (emphasis in original.) The pamphlet was posted on the Secretary’s
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website and sent to each household with a registered voter. (Doc. 15-1 at 4-11, ¶ 5; Hr’g
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Exh. 25 ¶ 5.)
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On September 19, 2016, Spencer Scharff (“Scharff”), Voter Protection Director
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for the Arizona Democratic Party, sent letters to all fifteen Arizona county recorders
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requesting that the deadline be extended to October 11, 2016 pursuant to Ariz. Rev. Stat.
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§ 1-303, because certain voter registration methods would not be accessible to applicants
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on Columbus Day. (Doc. 5-1 at 4-4; Hr’g Exh. 12; Doc. 30, Hr’g Tr. 22:11-24:18.)
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Scharff sent a copy of those letters to Spencer. (Doc. 15-1 at 4-11; Hr’g Exh. 25; Doc. 30,
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Hr’g Tr. 22:15-22.) With the exception of Mohave County, all county recorders
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responded to Scharff informing him that they would not extend the registration deadline
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date “as determined by the Secretary of State.” (Doc. 5-1 at 6, 8, 10, 12; Hr’g Exhs. 13-
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16; Doc. 5 ¶ 3.) The Mohave county recorder responded by email advising that it would
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extend the voter registration deadline to October 11, 2016 because they were one of the
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few counties whose offices would be closed on the holiday. (Doc. 5-1 at 14; Hr’g Exh.
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17.)
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On September 19, 2016, Arizona House Minority Leader Eric Meyer sent a letter
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to Arizona Attorney General Mark Brnovich requesting a formal opinion as to last day to
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submit voter registration to be eligible to vote in the general election. (Doc. 5-1 at 16-17;
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Hr’g Exh. 18.) The letter expressed that the deadline should be extended to October 11th
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pursuant to Ariz. Rev. Stat § 1-303. (Id.) On September 28, 2016, Deputy Solicitor
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General for the Arizona Attorney General’s Office, Dominic Draye, responded to
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Meyer’s letter, declining to issue an official attorney general opinion regarding the
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“policy decision” of the Secretary. (Doc. 5-1 at 19; Hr’g Exh. 19.)
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In Arizona, residents may generally register to vote by one of the following
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methods: in-person at county recorder offices, Ariz. Rev. Stat. § 16-134; in-person
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through designated public assistance agencies, Ariz. Rev. Stat. §§ 16-134, 16-140; in-
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person at a Motor Vehicle Division (“MVD”) office, Ariz. Rev. Stat. § 16-112; by mail,
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§ 16-134; or online through the Service Arizona website, www.servicearizona.com (Doc.
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4-3 at 2-24; Doc. 4-4 at 1-24; Hr’g Exh. 4 at p. 36).
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On October 10, 2016, post offices and MVD offices were closed. With the
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exception of Mohave County, all 14 county recorder offices were open and received in-
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person voter registration applications (Doc. 15-1 at 4-11, ¶¶ 17, 20; Hr’g Exh. 25 ¶¶ 17,
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20.) Voter registration applications were received online via Service Arizona. The
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Secretary’s office was open and received voter applications in-person and by email (to
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Spencer). (Doc. 15-1 at 4-11, ¶ 18; Hr’g Exh. 25 ¶ 18; Hr’g Exh. 22.) Pursuant to an
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agreement with the counties, one of the headquarters or field offices for each of the
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democratic and republican parties was open and received in-person voter registration
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applications which would be accepted by the counties the following day. (Doc. 30, Hr’g
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Tr. at 116:3-10 and 63:4-8; Doc. 15-1 at 4-11, ¶ 18; Hr’g Exh. 25 ¶ 18.)
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On October 10th, however, there was a two-hour period of interruption on the
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voter registration website due to heavy traffic. Counsel for the Arizona Democratic
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Committee sent a letter to the Secretary concerning this issue and requesting that the
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voter registration deadline be extended to October 11, 2016. (Doc. 30, Hr’g Tr. 96:9-20,
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98:10 - 99-18, 117:18-24; Hr’g Exhs. 21, 22.) Spencer, rather than the Secretary,
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responded by email, declining to extend the deadline. (Doc. 30, Hr’g Tr. 99:19-100:23;
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Hr’g Exh. 22.) 4
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On October 11, 2016, county recorder offices continued to receive voter
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registration applications. (Doc. 15-1 at 4-11, ¶ 17; Hr’g Exh. 25 ¶ 17; Hr’g Exh. 22.)5
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Individuals went to the Committees’ field offices seeking to register to vote for the
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upcoming election. (Doc. 5 at 4, ¶ 12.) While individuals were provided with applications
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to complete that would be delivered to the Maricopa County recorder, voters were
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informed that because the deadline to register fell on October 10, they were too late to be
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eligible to vote in the general election. (Doc. 5 at 4, ¶¶ 12-13.)
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On October 19, 2016, nine days after the voter registration deadline had passed
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and one week into early voting, the Committees filed a complaint initiating the instant
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action. (Doc. 1.) In the complaint, they claim: that the October 10, 2016 deadline violated
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the National Voter Registration Act of 1993 (“NVRA”) (Count I); that the Secretary’s
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refusal to extend the voter registration deadline to October 11, 2016 unconstitutionally
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burdened individuals’ fundamental right to vote in violation of the First and Fourteenth
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Amendments to the United States (Count II); and that the October 10, 2016 deadline
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violated established state law (Count III).
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In the complaint, the Committees ask the Court to issue an order: (1) “[d]eclaring
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that all otherwise eligible Arizona voters who submitted a valid voter registration
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The parties do not dispute the number of voter registration applications received,
or the fact that the number will change with time due to the expedited nature of this
action. Thus, the Court notes that the number of voter registration applications received is
uncertain and the reported dates of those applications are unclear. Spencer’s affidavit
provides that 21,135 new voter registration applications had been received by county
officials. (Doc. 15-1 at 4-11; Hr’g Exh. 25 ¶ 17.) Spencer testified that on October 10,
2016, 15,000 voter registrations had been received online. (Doc. 30, Hr’g Tr. 79:4 –
80:25.) Comparatively, Mary Fontes, Federal Compliance Officer for Maricopa County,
testified that Maricopa County alone had received 48,000 voter registration forms on
October 10th, or which approximately 31,000 were received online via ServiceArizona,
while 17,000 were received over-the-counter and by mail. (Doc. 30, Hr’g Tr. 108:23 –
109:7; 112:14-23.)
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Spencer’s affidavit provides that 2,069 new voter registration applications had
been received by county officials on October 11, 2016. (Doc. 15-1 at 4-11, ¶ 17; Hr’g
Exh. 25 ¶ 17.)
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application, through any acceptable means, before midnight on October 11, 2016 are
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eligible to vote in the November 8 Election;” (2) [p]reliminarily and permanently
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enjoining [the Secretary] from disqualifying any Arizona voter from voting a regular
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ballot in the November 8 Election solely because he or she did not register by October
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10, 2016, if he or she submitted a valid voter registration application before midnight on
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October 11, 2016 and is otherwise eligible to vote;” (3) “[r]equiring [the Secretary] to
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ensure that voter registration applications submitted before midnight on October 11, 2016
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are processed in time for eligible voters to be able to vote a regular ballot in the
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November 8 Election;” (4) “[r]equiring [the Secretary] to identify all eligible Arizona
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voters who submitted a voter registration application at any time October 11, 2016, and
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notify such voters that they are eligible to vote in the November 8 Election by: (1)
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mailing a notice to each voter’s current residential address (post-marked as soon as
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possible but, in any event, no later than November 1, 2016); and (2) posting a prominent
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notice to this effect on Defendant’s website;” and (5) “[r]equiring [the Secretary] to
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provide to [the Committees] (as soon as possible but, in any event, no later than
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November 1, 2016) a list of all eligible Arizona voters who submitted a voter registration
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application at any time on October 11, 2016.” (Doc. 1 at 10-11.)
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The Committees now ask for modified relief, acknowledging the proximity of the
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upcoming general election. (Doc. 37.) The Committees request that the Court “modify”
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the relief sought and order the Secretary to: (1) “ensure that voters who registered on
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October 11, 2016 may vote a provisional ballot in the November 8 Election and that such
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provisional ballots will be counted upon confirmation that the voter registered on October
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11 and is otherwise eligible to vote;” and (2) “shall notify all October 11 registrants that
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they may vote a provisional ballot in the November 8 Election by: (1) immediately
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mailing a notice (marked as “Official Election Material,” and identifying the voter’s
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assigned polling place) to such voters’ current residential address; and (2) immediately
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posting a prominent notice to this effect on [the Secretary’s] website.” (Doc. 37 at 2.)
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Concurrent with the filing of the Complaint, Plaintiffs filed an emergency motion
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for a temporary restraining order and preliminary injunction. (Doc. 2.) In light of the
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looming general election, the Court ordered expedited briefing; a Response (Doc. 14),
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Reply (Doc. 22), and Surreply (Doc. 29) have been filed. The Court placed the parties on
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notice that the trial on merits would be consolidated with the hearing on the motion (Doc.
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8), and an expedited trial on the merits was held on October 21, 2016 (Docs. 17, 30).6
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The parties were provided with an opportunity to present relevant witnesses and
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testimony as well as oral argument on the controlling issues. The Court heard the
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testimony of three witnesses: Spencer Scharff, Eric Spencer, and Mary Fontes, a Federal
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Compliance Officer for Maricopa County. 7
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Subsequent to the hearing, the Committees filed: (1) a motion to strike exhibits
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attached to the Secretary’s sur-reply (Doc. 31); (2) a motion to supplement the record
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with an October 28, 2016 article in which the Secretary purportedly advocated for the
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inclusion of the 2,069 October 11, 2016 voter registration applications (Doc. 34); and (3)
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a motion to modify the relief requested (Doc. 37). The Secretary has filed responses
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Due to the nature of the relief requested in the motion and complaint, the Court
found that acceleration and consolidation was warranted; further delay would not
promote the interests in this action. Any extended period of discovery would serve only
to postpone the resolution of this case until after the election has passed, thereby mooting
the relief requested. See Arizona Green Party v. Reagan,__ F.3d ___, 2016 WL 5335037,
at *3 (9th Cir. Sept. 23, 2016); American Party of Texas v. White, 415 U.S. 767, 771
(1974). The Court observes that the evidentiary record is limited, specifically with regard
to number of the voter registrations received. However, this additional discovery would
not aid the Court’s decision or change the outcome in this case.
While the State contends that the expedited adjudication supports its position that
the doctrine of laches bars relief (see Doc. 29), neither party has objected to the Court’s
acceleration of the briefing or trial, nor opposed consolidation of the request for an
emergency injunction with the merits in this action. See Fed. R. Civ. P. 57 (“The court
may order a speedy hearing of a declaratory-judgment action”); Fed. R. Civ. P. 65(a)(2)
(the court may accelerate hearing on the merits of request for injunctive relief); Isaacson
v. Horne, 716 F.3d 1213, 1220 (9th Cir. 2013) (“A district court may consolidate a
preliminary injunction hearing with a trial on the merits, but only when it provides the
parties with clear and unambiguous notice of the intended consolidation either before the
hearing commences or at a time which will afford the parties a full opportunity to present
their respective cases”) (internal brackets and quotation marks omitted).
7
While there was some disagreement among the witnesses concerning the
application of election law, no evidence was presented to impeach their general
credibility. To the extent the witnesses expressed lay opinions of belief that are not by
corroborated by some evidence of record, unless otherwise noted, the Court’s findings do
not depend on those opinions.
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objecting to both. (Docs. 32, 36, 38.) The Secretary also filed a notice of supplemental
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authority (Doc. 33).
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LEGAL STANDARD
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“To be entitled to a permanent injunction, a plaintiff must demonstrate: (1) actual
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success on the merits; (2) that it has suffered an irreparable injury; (3) that remedies
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available at law are inadequate; (4) that the balance of hardships justify a remedy in
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equity; and (5) that the public interest would not be disserved by a permanent injunction.”
8
Indep. Training & Apprenticeship Program v. Cal. Dep’t of Indus. Relations, 730 F.3d
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1024, 1032 (9th Cir. 2013). See also Arizona Dream Act Coalition v. Brewer, 818 F.3d
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901, 919 (9th Cir. 2016); eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006);
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Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987) (“The standard
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for a preliminary injunction is essentially the same as for a permanent injunction with the
13
exception that the plaintiff must show a likelihood of success on the merits rather than
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actual success.”). In contrast to a prohibitory injunction, a mandatory injunction ordering
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a responsible party to take action should not issue “unless the facts and law clearly favor
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the moving party,” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994), and
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“extreme or very serious damage will result,” Marlyn Nutraceuticals, Inc. v. Mucos
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Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009). See also Park Vill. Apartment
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Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (“a
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mandatory injunction is particularly disfavored” and should not be “issued in
21
doubtful cases”); Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979).
22
An injunction is “an extraordinary remedy never awarded as of right.” Winter v.
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Natural Res. Defense Council, Inc., 555 U.S. 7, 24 (2008). See also eBay, 547 U.S. at
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391, 394 (“The decision to grant or deny permanent injunctive relief is an act of equitable
25
discretion by the district court”). Further, whether declaratory judgment should be
26
granted is discretionary. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 533 (9th
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Cir. 2008); Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995); Allstate Ins. Co. v.
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Herron, 634 F.3d 1101, 1107 (9th Cir. 2011); 28 U.S.C. § 2201 (“In a case of actual
8
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controversy within its jurisdiction,” the Court may “declare the rights and other legal
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relations of any interested party seeking such declaration.”).
DISCUSSION
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I.
Jurisdiction and Venue
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This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. §
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1331, as a case arising under the laws of the United States, 42 U.S.C. §§ 1983 and 1988
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and 52 U.S.C. § 20510; under 28 U.S.C. §§ 1343(a)(4) and 1357, as a case to secure
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equitable or other relief under any Act of Congress providing for the protection of civil
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rights, including the right to vote; and under 28 U.S.C. § 1367, which confers
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supplemental jurisdiction over the state law challenge. The requests for declaratory and
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injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, 52 U.S.C. § 20510, and
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Rules 57 and 65 of the Federal Rules of Civil Procedure.
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Jurisdiction over the Secretary exists because she is sued in her official capacity as
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an elected official of Arizona in which she resides, and venue is proper in this district
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pursuant to 28 U.S.C. § 1391(b) because the events or omissions giving rise to the claims
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occurred in this district.
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A.
Necessary Parties
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The Secretary argues that the Court should dismiss Counts II and III of the
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complaint due to the Committees’ failure to name necessary parties in this case –
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Arizona county officials. (Docs. 14, 29, 36.) This challenge is rejected.
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Rule 19 of the Federal Rules of Civil Procedure identifies when an absent party is
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“necessary” and must be joined in suit if feasible. First, a person is necessary if “the
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absence of the party would preclude the district court from fashioning meaningful relief
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as between the parties.” Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375
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F.3d 861, 879 (9th Cir. 2004). See Fed. R. Civ. P. 19(a)(1)(A). The sufficiency of the
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relief available “is determined on the basis of those persons who are already parties, and
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not as between a party and the absent person whose joinder is sought.” Angst v. Royal
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Maccabees Life Ins. Co., 77 F.3d 701, 705 (3rd Cir. 1996). “Second, a person is
9
1
necessary if he has an interest in the action and resolving the action in his absence may as
2
a practical matter impair or impede his ability to protect that interest.” Salt River Project
3
Agr. Imp. and Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012) (citing Fed. R.
4
Civ. P. 19(a)(1)(B)(i)). “Third, a person is necessary if he has an interest in the action and
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resolving the action in his absence may leave an existing party subject to inconsistent
6
obligations because of that interest.” Id. (citing Fed. R. Civ. P. 19(a)(1)(B)(ii)).
7
The Secretary maintains that because no election official with authority to enforce
8
the voter registration deadline has been named, any relief the Committees would receive
9
against the Secretary would be hollow. See Fed. R. Civ. P. 19(a)(1). She contends that
10
she “does not have authority under Arizona law to declare who is, and who is not, a
11
registered voter. Rather, Arizona law delegates to the Counties, not the State, the
12
responsibility for determining who is a registered voter when they prepare precinct
13
registers listing those eligible voters. A.R.S. § 16-168(A). And in that role, it is the
14
Counties, not the Secretary, who are responsible for disqualifying voters who fail to
15
comply with registration requirements.” (Doc. 29 at 8 (emphasis in original).)
16
Consequently, the Secretary contends she is unable to guarantee compliance with any
17
injunction issued by the Court, and the counties are the proper defendants. This argument
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is rejected.
19
The Secretary mischaracterizes the nature of her position and her relationship with
20
the counties in administering voter registration. The Secretary is Arizona’s chief election
21
officer who is responsible for overseeing and administering elections in Arizona.8 See
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Ariz. Rev. Stat. § 16-142(A). The Secretary has the authority to promulgate rules and
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procedures for elections, such as voter registration, which encompasses determining voter
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registration deadlines. See Ariz. Rev. Stat. § 16-452(A) (“the secretary of state shall
25
prescribe rules to achieve and maintain the maximum degree of correctness, impartiality,
26
uniformity and efficiency on the procedures for early voting and voting, and of
27
8
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The powers and duties of the Secretary of State are prescribed by law. Ariz. Const.
art. V, § 9.
10
1
producing, distributing, collecting, counting, tabulating and storing ballots.”); § 16-168(J)
2
(“The secretary of state shall develop and administer a statewide database of voter
3
registration information that contains the name and registration information of every
4
registered voter in this state”).9 Any person who does not abide by the Secretary’s rules
5
is subject to criminal penalties. See Ariz. Rev. Stat. § 16–452(C); Arizona Libertarian
6
Party, Inc. v. Bayless, 351 F.3d 1277, 1280–81 (9th Cir. 2003).
7
The Secretary does not serve as a mere legal adviser to the counties. From her
8
statutory responsibility to oversee elections in Arizona flows not only authority, but a
9
duty to ensure that voter registration regulations are administered in a fair and uniform
10
manner. See Harkless v. Brunner, 545 F.3d 445 (6th Cir. 2008) (the Secretary of State, as
11
designed by the state as the chief election official under 52 U.S.C. § 20509, is responsible
12
for the “implementation and enforcement” of the NVRA). This duty and authority
13
extends to the Secretary’s oversight of voter registration as carried out by the counties,
14
and is embodied in Arizona’s voter registration regulations. See, e.g., Ariz. Rev. Stat. §
15
16-407(A) (“no person may perform the duties or exercise the authority of an election
16
officer or of the clerk of the board of supervisors or the county recorder in performance
17
of election duties in or on behalf of any county unless the person is the holder of an
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election officer’s certificate issued by the secretary of state”); § 16-168(J) (“For the
19
purpose of maintaining compliance with the help America vote act of 2002, each
20
county voter registration system is subject to approval by the secretary of state for
21
compatibility with the statewide voter registration database system”); § 16-168(L) (“If
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the county recorder does not provide the requested materials within the applicable
23
9
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25
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27
28
In prior years, the registration deadlines have been set forth in the “Arizona
Election Procedures Manual,” issued prior to a given election by the Secretary under her
rulemaking authority. See Ariz. Rev. Stat. § 16-452(B); (Doc. 4-4 at 15-16; Hr’g Exh.
Exh. 4; Doc. 4-7 at 31; Hr’g Exh. 11). Notably, no Arizona Election Procedures Manual
was issued in 2016. See Arizona Elections Procedure Manual (last revised 2014),
https://www.azsos.gov/sites/azsos.gov/files/election_procedure_manual_2014.pdf (last
visited November 3, 2016). The Secretary’s authority to promulgate rules and enforce
them however does not cease because she does not exercise them. Similarly, her express
statutory authority to promulgate rules by way of the “Arizona Election Procedures
Manual” does not limit her authority to take action by other means.
11
1
time prescribed … a recognized political party may request that the secretary of state
2
provide precinct lists and access to information…The secretary of state may charge
3
the county recorder a fee determined by rule for each name or record produced.”).
4
In imposing the October 10, 2016 voter registration deadline, the counties deferred
5
to the Secretary’s determination. (See Doc. 5-1 at 6; Hr’g Exh. 13 (following “the
6
October 10, 2016 deadline date as determined by the Secretary of State’s office.”); Doc.
7
5-1 at 8, 10, 12; Hr’g Exhs. 14-16.) The fact that Mohave County extended its deadline
8
says little about whether, in light of the Secretary’s directive, it was permitted to do so.
9
Likewise, the Secretary’s failure to ensure Mohave County uniformly complied with the
10
October 10, 2016 deadline is not indicative of whether she had the ability or obligation to
11
do so. The mere possibility that a county might not follow the Secretary’s directive is
12
insufficient to show that an injunction against her would not accord the Committees the
13
complete relief they seek. “If in the future the plaintiffs believe that other officials are
14
acting in violation of federal [or state] law, they may bring another action against those
15
officials.” Salt River Project, 672 F.3d at 1180.
16
The Secretary next argues that absent joinder, this lawsuit will directly impair the
17
interests of the unnamed counties. See Fed. R. Civ. P. 19(a)(1)(B)(i). The Secretary
18
maintains that because county officials have not been named, “there is no representative
19
to articulate the magnitude of this administrative burden and expense.” (Doc. 14 at 5.)
20
That is not the case. The interests of the Secretary are aligned with the counties and she is
21
capable of presenting arguments on behalf of the absent county officials. See Salt River
22
Project, 672 F.3d at 1180. To this end, the Secretary presented the testimony of a county
23
elections official. Lastly, because the counties are conferred with the authority to
24
facilitate, not regulate voter registration, their absence would not leave the Secretary
25
subject to inconsistent obligations. See Fed. R. Civ. P. 19(a)(1)(B)(ii); Ariz. Rev. Stat. §§
26
16-131, 16-134 (setting forth the voter registration duties of the county recorder and
27
deputy registrars).
28
Therefore, the counties are not necessary parties and joinder is not required for a
12
1
just adjudication.
2
B.
3
The Secretary further challenges constitutional standing, on the basis that the
4
Constitutional Standing
injuries claimed are neither traceable to nor redressable by her. (Doc. 14, 29.)
5
Constitutional standing requires that a plaintiff: (1) must have suffered an injury in
6
fact, (2) the injury must be fairly traceable to the defendant’s conduct, and (3) the injury
7
could be likely redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504
8
U.S. 555, 560-61 (1992). Here, the Committees’ alleged injury is “traceable to the
9
challenged action of the defendant, and not...the result of the independent action of some
10
third party not before the court.” Lujan, 504 U.S. at 560. As noted above, the Secretary
11
made the determination concerning the voter registration deadline, and the counties
12
deferred to that determination. The “line of causation” between the Secretary’s actions
13
and the Committees’ alleged harm is far more than “attenuated.” Allen v. Wright, 468
14
U.S. 737, 757 (1984); Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir.2011)
15
Further, “it must be likely, as opposed to merely speculative,” that the
16
Committees’ alleged injury could be redressed by a favorable decision issued against the
17
Secretary. See Lujan, 504 U.S. at 561. The Secretary’s contention that she could not cure
18
any injury suffered because the counties directly administer voter registration is
19
unavailing. The Secretary promulgates the rules that are applicable to and mandatory for
20
statewide voter registration, and the counties are bound to follow them. Because the
21
Secretary has the authority to ensure compliance with election regulations, a mandatory
22
injunction issued against her would redress the Committees’ alleged injuries. See Bennett
23
v. Spear, 520 U.S. 154, 169–71 (1997)’ Wolfson v. Brammer, 616 F.3d 1045, 1057 (9th
24
Cir. 2010); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976) (“the relevant
25
inquiry is whether... the plaintiff has shown an injury to himself that is likely to be
26
redressed by a favorable decision.”). Similarly, declaratory relief would settle “some
27
dispute which affects the behavior of the defendant[s] toward the plaintiff[s].” Hewitt v.
28
Helms, 482 U.S. 755, 761, (1987).
13
Therefore, the Committees have made a sufficient showing of Article III standing
1
2
to pursue declaratory and injunctive relief against the Secretary.
3
II.
Merits
4
A.
Claim under the First and Fourteenth Amendments
5
The right to vote has long been recognized as essential to the protection and
6
exercise of constitutional rights and the constitutional structure itself. See Wash. State
7
Grange v. Wash State Republican Party, 552 U.S. 442, 451 (2008); Illinois Bd. of
8
Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) (“voting is of the most
9
fundamental significance under our constitutional structure”); Wesberry v. Sanders, 376
10
U.S. 1, 17, (1964) (“[o]ther rights, even the most basic, are illusory if the right to vote is
11
undermined.”). But “as a practical matter, there must be a substantial regulation of
12
elections if they are to be fair and honest and if some sort of order, rather than chaos, is to
13
accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730 (1974).
14
A state election law or policy, “whether it governs the registration and
15
qualification of voters, the selection and eligibility of candidates, or the voting process
16
itself, inevitably affects, at least to some degree, the individual’s right to vote.” Anderson
17
v. Celebrezze, 460 U.S. 780, 788 (1983). “A court considering a challenge to a state
18
election law must weigh ‘the character and magnitude of the asserted injury to the rights
19
protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’
20
against ‘the precise interests put forward by the State as justifications for the burden
21
imposed by its rule,’ taking into consideration ‘the extent to which those interests make it
22
necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992)
23
(quoting Anderson, 460 U.S. at 788-89). This “balancing and means-end fit framework,”
24
Public Integrity Alliance, Inc. v. City of Tucson, ___F.3d___, 2016 WL 4578366, at *3
25
(9th Cir. Sept. 2, 2016), “is a sliding scale test, where the more severe the burden, the
26
more compelling the state’s interest must be, such that ‘a state may justify election
27
regulations imposing a lesser burden by demonstrating the state has important regulatory
28
interests,’” Arizona Green Party, 2016 WL 5335037, at *4 (quoting Ariz. Libertarian
14
1
Party v. Reagan, 798 F.3d 723, 729–30 (9th Cir. 2015)).
2
1.
Burden on Voters
3
The Committees claim that the Secretary’s refusal to extend the October 10, 2016
4
voter registration holiday deadline impermissibly burdened constitutional rights and led
5
to the “ disenfranchisement of at least 2,069 voters” who registered on October 11,
6
2016. (Doc. 22 at 6.)
7
The Committees argue that October 10th deadline severely burdened a significant
8
portion of the voter registration population because the last day fell on a holiday. The
9
Committees submit that voters often wait until the last day to register; the Secretary’s
10
statistics show that the top three days for voter registration in Arizona were the
11
registration deadline dates in the past three presidential election cycles: 21,442 voters in
12
2004, 38,872 voters in 2008, and 24,390 voters in 2012. (Doc. 4-5 at 2-5; Hr’g Exh. 5.)
13
Historically, over 40%10 of the voter registration applications received in Arizona are by
14
mail or in-person at MVD offices. (Doc. 4-1 at 7-46; Doc. 4-2 at 1-45; Hr’g Exh. 2.) Due
15
to the holiday however, post offices and the MVD were closed on the deadline. Further,
16
although individuals could register to vote online, this method for registration was
17
unavailable to individuals without access to the internet and an Arizona driver’s license
18
or state-issued identification card. (Doc. 5 ¶ 11; Doc. 30, Hr’g Tr. 42:11-21, 87:4-16.)
19
Assuming that there was demonstrable number of individuals who did not register
20
to vote on October 10, 2016 because it fell on a holiday, those voters cannot be said to
21
have been disenfranchised by the Secretary’s deadline. In upholding registration
22
deadlines, both the Supreme Court and the Ninth Circuit observe the critical difference
23
between regulations that categorically deny the right to vote and those which merely
24
require an applicant to take some action to satisfy reasonable registration requirements.
25
See Rosario v. Rockefeller, 410 U.S. 752, 758 (1973) (finding the burden imposed on the
26
right to vote by the registration deadline was no so severe as to be unconstitutional,
27
10
28
The Secretary argues that this figure, reported by the U.S. Elections Assistance
Commission for 2010 – 2012 period, is misleading given the suspected rise of individuals
who register online. (Doc. 30, Hr’g Tr. 60:1 - 61:14.)
15
1
explaining that to the extent the plaintiffs’ “plight can be characterized as
2
disenfranchisement at all, it was not caused by [the statute], but by their own failure to
3
take timely steps to effect their enrollment.”); Burdick, 504 U.S. at 438 (finding state’s
4
write-in vote prohibition “imposed a very limited burden upon voters’ rights” because it
5
only required voters “to act in a timely fashion if they wish to express their views in the
6
voting booth.”); Barilla v. Ervin, 886 F.2d 1514, 1525 (9th Cir. 1989) (finding plaintiffs
7
were not “absolutely disenfranchise[d]” by the challenged provision... They could have
8
registered in time for the… election, but they failed to do so. What [was] at issue …
9
[was] not a ‘ban’ on the plaintiffs’ right to vote, but rather, a ‘time limitation’ on when
10
the plaintiffs had to act in order to be able to vote.”) overruled on other grounds by
11
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
12
The holiday deadline did not limit the methods of voter registration; it merely
13
imposed a timeframe in which voters had to act in order to register to vote in the general
14
election. Nor did the deadline impose restrictions in a disproportionate manner because
15
only certain methods for voter registration were available on Columbus Day. The
16
deadline did not prevent individuals from registering to vote in-person at the MVD11 or
17
by postmarked mail; it merely required those wishing to do so during open operating
18
business hours at some date and time prior to October 10, 2016. The voters at issue here
19
could have registered in time for the general election, but unfortunately did not do so.
20
The Committees point to the interruption on the website that occurred on October
21
10th which prevented voters from registering during a two-hour period. (Doc. 5 ¶ 10.)
22
They point to reports that individuals who had recently obtained United States citizenship
23
had difficulty registering online using their MVD-issued driver’s license numbers, and
24
were unable to register on October 10th because they could not go in-person to correct
25
11
26
27
28
As noted above, Mohave County, the only county closed on Columbus Day,
accepted voter registration applications on October 11, 2016. The remaining counties and
the Secretary’s office were open and accepting voter applications. Further, the political
parties had an agreement with the counties to accept voter registration on October 10,
2016 which could be delivered to the counties the following day. (Doc. 30, Hr’g Tr.
116:8-12.)
16
1
the issue because the MVD was closed. (Doc. 5 ¶ 14.) Assuming no other available
2
avenue to register was available to these voters on October 10, 2016, these circumstances,
3
while unfortunate, were not the result of the Secretary’s holiday deadline. Circumstances
4
like these could arise at any time an individual registers to vote at the last moment to do
5
so.12
6
The holiday deadline is also not “so severe as itself to constitute an
7
unconstitutionally onerous burden” on the exercise of the right to vote. Rosario, 410 U.S.
8
at 760. The fact that the deadline fell on a holiday was not sufficiently confusing,
9
unusual, or unexpected. Cf. Florida Democratic Party v. Scott, 2016 WL 6080990 (N.D.
10
Fla. Oct. 10, 2016) (enjoining defendants who had refused to extend voter registration
11
deadline where the hurricane unexpectedly prevented voters from registering). While the
12
Committees point to the fact that the Secretary moved the deadline in 2012 when the
13
voter registration holiday fell on Columbus Day (see Doc. 4-7 at 2-39; Hr’g Exh. 11), in
14
prior general election years, the deadline was not extended (see Doc. 15-1 at 13, 15-16;
15
Hr’g Exhs. 26, 27). The announcement of the deadline here occurred early in the calendar
16
year, notice of the deadline was provided to the public, and the deadline was not moved
17
or inconsistently reported. See Anderson, 460 U.S. at 797 (case precedent “reflect[s] a
18
greater faith in the ability of individual voters to inform themselves”).
19
Further, the Committees fail to identify a coherent link between the October 10,
20
2016 deadline and the alleged disenfranchised voters who registered on October 11,
21
12
22
23
24
25
26
27
28
The Committees also submit a report of an individual who had timely submitted
her voter registration, but due to the holiday weekend, did not receive the letter from the
county recorder’s office notifying her that her application was deficient until October 11,
2016. (Doc. 5 ¶ 15.) Because this individual was not required to cure the deficiency prior
to the deadline in order to vote in the general election, this argument is also unavailing.
See Ariz. Rev. Stat. § 16-134(B) (“If the information on the registration form is
incomplete or illegible and the county recorder is not able to process the registration
form, the county recorder shall notify the applicant within ten business days of receipt of
the registration form, shall specify the missing or illegible information and, if the missing
or illegible information includes any of the information prescribed by section 16-121.01,
subsection A, shall state that the registration cannot be completed until the information is
supplied. If the missing or illegible information is supplied before 7:00 p.m. on election
day, that person is deemed to have been registered on the date the registration was first
received.”).
17
1
2016. The Court recognizes that neither party has had the benefit of discovery in this
2
case. However, the Committees’ failure in this regard is not attributable to a lack of
3
evidentiary support, but rather, their lack of any developed theory. Merely pointing to the
4
voter registration applications on the basis that they received the day after the deadline is
5
insufficient. Assuming all 2,069 individuals were new voter registrants whose
6
applications were processed as received on October 11, 2016, the Committees identify no
7
theory on which the Court could conclude that but for some restrictions imposed by the
8
October 10, 2016 deadline, those registrants would have timely registered to vote. Rather,
9
the numbers standing alone suggest to the contrary. The number of voter registrations
10
received this cycle was reported to have been historically high; 187,855 voter
11
registrations were received between the August 1, 2016 primary election and the October
12
10, 2016 general election voter registration deadlines.13 3,588,466 voters total are
13
registered for the 2016 general election is. Viewed comparatively, the number of voter
14
registration applications received on October 11, 2016 alone is not indicative of some
15
voter registration restriction.
16
Absent evidence or argument demonstrating otherwise, the Court finds that the
17
holiday deadline, and the Secretary’s decision not to extend it, imposed only “a de
18
minimis burden on constitutional rights.” Arizona Green Party, 2016 WL 5335037, at *7.
19
2.
State’s Interests
20
The Committees argue that in weighing the burden posed on voter registrants by
21
the October 10, 2016 deadline, not one of the Secretary’s identified interests justified her
22
decision not to extend the voter registration deadline to October 11, 2016. The Court
23
disagrees.
First, the Secretary shows that adhering to the voter registration deadline served
24
25
13
26
27
28
The Court takes judicial notice of these statistical numbers as an undisputed
“matter of public record.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
These voter registration statistics are reflected in the supplemental article filed by the
Committees (see Doc. 34-1), and are part of public record that are readily available
online. See http://apps.azsos.gov/election/voterreg/2016-11-08.pdf (last visited November
3, 2016); Ariz. Rev. Stat. § 16-168(H).
18
1
(and serves) the State’s important interests in protecting the integrity and reliability of the
2
electoral process itself. “[P]ublic confidence in the integrity of the electoral process has
3
independent significance, because it encourages citizen participation in the democratic
4
process.” Crawford v. Marion County Election Bd., 553 U.S. 181, 189 (2008). See also
5
Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“A State indisputably has a compelling interest
6
in preserving the integrity of its election process.”). The Court thinks it fair to say that the
7
lengthy lines visited upon Arizona voters during the primary election this year did not
8
bode well in boosting voter confidence in the electoral system. It also thinks it fair to say
9
that public morale during this general election has not been at its highest. Thus, if the
10
State had extended the voter registration deadline last minute in the days leading up to
11
October 10th, or retroactively set an October 11th voter registration deadline now, it
12
poses a realistic possibility that the public’s confidence in the state’s ability to
13
competently administer elections and protect against disorder would be undermined and
14
dissuade them from going to the ballot box next week.
15
Second, the Secretary has demonstrated that the decision not to extend the voter
16
registration deadline in the weeks shortly before the deadline served (and serves) the
17
State’s important interests in the orderly, accurate, and reliable administration of
18
elections. See Marston v. Lewis, 410 U.S. 679, 681 (1973) (voter registration period was
19
necessary to permit preparation of accurate voter lists); Burdick, 504 U.S. at 443 (“ [A]s a
20
practical matter, there must be a substantial regulation of elections if they are to be fair
21
and honest and if some sort of order, rather than chaos, is to accompany the democratic
22
process’”); Clingman v. Beaver, 544 U.S. 581, 593 (2005) (states must inevitably enact
23
reasonable regulations “to reduce election - and campaign-related disorder.”). The
24
undisputed evidence shows that the voter registration deadline is only one step in a series
25
of orchestrated events that must take place before the election, and officials must
26
strategically undertake a multitude of critical tasks imposed by law. For example,
27
officials have only a brief window to transition from only receiving and processing voter
28
registration to also receiving and processing early ballots and ballot requests. The twenty19
1
nine day registration deadline only proceeds the early voting period by two days, which is
2
statutorily set to begin twenty-seven days before election day. See Ariz. Rev. Stat § 16-
3
542(C). When registered voters request an early ballot within twenty-seven days of the
4
election, county recorders must mail the ballot within forty-eight hours of the request.
5
Ariz. Rev. Stat. § 16-542(D). By the time of the hearing which took place approximately
6
a week after the voter registration deadline, Maricopa County reported that they had
7
received 1.5 million early ballot request forms. (Doc. 30, Hr’g Tr. 109:13-14.) By the
8
tenth day preceding the election, officials must prepare and transmit voter registration
9
poll lists. See Ariz. Rev. Stat. § 16-168(A).
10
The Court heard testimony regarding the administrative and technological actions
11
that election officials would have to take to retroactively extend the deadline and backlog
12
voter registration. If enjoined and required to process the October 11, 2016 voter
13
registrations, staff would have to be reassigned and counties would have to divert
14
significant resources that are presently dedicated to preparing for election day. It would
15
take staff approximately 450 hours to accomplish. (Doc. 30, Hr’g Tr. 111:4-12.)
16
Programming changes would have to be implemented in the electronic voter registration
17
systems to accept those voter registration forms that were received October 11th. (Id.) As
18
observed by the Committees, see infra, counties have already reported their precinct lists
19
to be added to the electronic poll lists. Consequently, additional action would be needed
20
to coordinate with all the counties to ensure those lists were updated statewide.
21
The Committees counter that “[w]hile the Secretary identifies administrative
22
burdens and inconvenience in its Response[], the evidence adduced at trial makes clear
23
that any administrative burdens would be easily manageable.” (Doc. 22 at 6.) Yet at trial,
24
testimony was offered that officials would be required to immediately reallocate
25
resources to voter registration and continue registering voters, after the early voting
26
period has begun and within a matter of weeks (now days) before the general election.
27
Nothing about this can be accurately described as mere administrative inconvenience or
28
“easily manageable.” But see Diaz v. Cobb, 541 F.Supp.2d 1319, 1332 (S.D. Fla. 2008)
20
1
(“The Constitution does not require states to prove that every component of every
2
election regulation is indispensably necessary to avoid either an election catastrophe or an
3
absolute impossibility of performance.”). Instead, the burden placed on unprepared
4
officials by this last minute request exponentially increases possibility for the disruption
5
to the electoral process and bears the potential to impair the State’s ability to guarantee
6
the integrity of its elections.
7
In turn, the Committees move to modify the relief sought, stating that “[t]hough
8
plaintiffs continue to question the actual severity of these alleged administrative burdens,
9
and whether any such burdens outweigh the fundamental right to vote of thousands of
10
Arizonans, in light of the fact that the election is now less than one week away, Plaintiffs
11
are willing to modify the relief requested to alleviate the concerns raised by Defendant’s
12
allegations.” (Doc. 37 at 2.) They contend that “[t]he modified relief would eliminate the
13
need to incorporate eligible October 11 registrants into current precinct registers or
14
ePollbooks. As such, the modified relief would minimize, if not completely avoid, any
15
interruption or delay to current election preparations, while still enabling those who
16
registered on October 11 to cast a vote in the November 8 Election.” (Doc. 37 at 3.) This
17
revision does not revive their claim.
18
While the Committees identify the language they would like the Court to include
19
in the proposed revised injunction, they do not identify exactly how it modifies the
20
demand for relief stated in their complaint. Therefore, as a practical matter, their request
21
does not serve to simplify and expedite relief, it frustrates it. Further, it is not apparent
22
that the proposed modifications sought would “alleviate the concerns” that would be
23
faced by the State between now and the general election. In order to obtain relief,
24
officials would be required to identify and process voter registration applications received
25
on October 11, 2016. Absent this step, the Secretary cannot comply with the proposed
26
injunction requiring her to ensure that registrants be notified that “they may vote a
27
provisional ballot in the November 8 Election by: (1) immediately mailing a notice
28
(marked as “Official Election Material,” and identifying the voter’s assigned polling
21
1
place) to such voters’ current residential address.” (Doc. 37 at 2.) Further, to any extent
2
that it might alleviate an imminent concern, the modification would merely substitute one
3
problem for another. Rather than altering precinct registers or ePollbooks prior to the
4
election, some mechanism would have to be created to identify the October 11 voter
5
registrations on election day statewide such that it could ensure that those provisional
6
ballots “will be counted upon confirmation.” (Doc. 37 at 2.) The possibility that this
7
would impede the orderly, accurate, and reliable administration of the election is not only
8
likely, it is almost certain. See e.g., Arizona Election Procedures Manual, supra, at pp.
9
143-155, 185-187.
10
Lastly, with regard to the Committees’ request that the Court order the Secretary
11
to ensure that the October 11, 2016 voter registrants may cast provisional ballots, that
12
demand is moot. See Arizona Election Procedures Manual, supra, at p. 156.
13
(“Notwithstanding a determination by the board of election that a voter is not qualified to
14
vote a regular ballot, the voter shall be allowed the right to vote a provisional ballot.”);
15
Ariz. Rev. Stat. § 16-584; (Doc. 4-5 at 49; Hr’g Exh. 9) (“Every person who timely
16
arrives at a polling place has the right to cast a ballot and cannot be turned away. In
17
certain situations, however, a voter may be required to vote a provisional ballot. A
18
provisional ballot is a ballot that will only be counted if the County Recorder can
19
determine the voter’s eligibility.”).
20
In short, the de minimus burden imposed by the deadline does not outweigh the
21
State’s important regulatory and administrative interests. See Arizona Green Party, 2016
22
WL 5335037, at *7 (“Because the record demonstrates that the [voter registration]
23
deadlines imposes no more than a de minimis burden on the [applicants’] constitutional
24
rights, Arizona need only demonstrate that the [] deadline serves ‘important regulatory
25
interests.’”). The Secretary’s decision not to extend the deadline in the final hours was a
26
reasonable, non-discriminatory restriction that advanced an important state interest in
27
administering a fair and orderly election. Therefore, the Committees’ constitutional claim
28
fails on the merits, and will be dismissed.
22
1
B.
Claim under the National Voter Registration Act
2
Article I, Section IV, Clause 1 of the Constitution provides that “[t]he Times,
3
Places and Manner of holding Elections for Senators and Representatives, shall be
4
prescribed in each State by the Legislature thereof; but the Congress may at any time by
5
Law make or alter such Regulations, except as to the Places of chusing Senators.” This
6
provision provides Congress a general supervisory power over federal elections under
7
which it may supplement state regulations or substitute its own. Smiley v. Holm, 285 U.S.
8
355, 366–67 (1932).
9
Under its constitutional authority to regulate federal elections, Congress enacted
10
the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq.
11
(transferred from 42 U.S.C. § 1973gg–6 et seq.) to “increase the number of eligible
12
citizens who register to vote” in federal elections, “enhance[ ] the participation of eligible
13
citizens as voters[,]” “protect the integrity of the electoral process[,]” and “ensure that
14
accurate and current voter registration rolls are maintained.” 52 U.S.C. § 20501(b).
15
“These purposes counterpose two general, sometimes conflicting, mandates: To expand
16
and simplify voter registration processes so that more individuals register and participate
17
in federal elections, while simultaneously ensuring that voter lists include only eligible ...
18
voters.” Common Cause of Colo. v. Buescher, 750 F.Supp.2d 1259, 1274 (D. Colo.
19
2010).
20
Section 8 of the NVRA, 52 U.S.C. § 20507, requires that each state shall “ensure
21
that any eligible applicant is registered to vote in an election” if the applicant has
22
registered to vote “not later than the lesser of 30 days, or the period provided by State
23
law, before the date of the election.” A person is registered to vote for purposes of
24
Section 8 when “the valid voter registration form of the applicant” is: (1) “submitted to
25
the appropriate State motor vehicle authority” in accordance with 52 U.S.C. § 20504
26
(registration by application simultaneous with an application for a motor vehicle driver’s
27
license); (2) submitted by postmarked mail in accordance with 52 U.S.C. § 20505; (3)
28
“accepted at the voter registration agency” in accordance with 52 U.S.C. § 20506 (in23
1
person registration at registration sites or government offices designated by each state); or
2
(4) otherwise “received by the appropriate State election official.” 52 U.S.C. §
3
20507(a)(1)(A) – (D). See also Gonzalez v. Arizona, 677 F.3d 383, 394 (9th Cir. 2012).
4
Here, the Secretary set the voter registration deadline on October 10, 2016, the
5
twenty-ninth day before the November 8, 2016 general election. Post offices were closed
6
on Sunday, October 9th and on Columbus Day, October 10th. MVD offices were also
7
closed from Saturday, October 8th through Columbus Day. Therefore, in effect, the
8
deadline to register by postmarked mail was Saturday, October 8, 2016 – 31 days before
9
the election. The deadline to register in-person at the MVD was Friday, October 7, 2016
10
– 32 days before the election. The voter registration deadline therefore did not ensure that
11
any applicant who registered to vote “not later” than 30 days before November 8, 2016
12
was eligible to vote in the general election.
13
Although the language of the NVRA is plain and leaves little ambiguity as to its
14
application, legislative history reflects Congress’ clear intent to preclude the practice
15
employed by the Secretary. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The
16
Congressional record states:
17
18
19
20
21
22
23
24
25
26
27
28
Subsection (a) provides that any person registered to vote not
later than 30 days, or a lesser period as provided by State law,
before a Federal election shall be permitted to vote. For these
purposes, registration is complete upon submitting the form to
the voting registrar, motor vehicle office, designated agency
or office, or on date of postmark, if mailed. While the Act is
clear with regard to the motor-voter and agency-based
registration deadline requirement, the mail situation may be in
need of some clarification. The reference, “or a lesser period
as provided by State law” means, with regard to mailed
registration application, that the shorter State period would
apply only if it is referenced to “date of postmark”. If the
shorter period provided by State law refers to the date of
receipt in the registrar’s office, the thirty day period provided
for here would apply. It is not intended here to penalize a
registration applicant; thus, if the application is postmarked
after thirty days, but is received before the deadline specified
by State law, it should be accepted. Also, one postmarked
before thirty days but received after the deadline under State
law, should also be accepted as timely.
H.R. Rep. No. 103-9, at 14 (1993), reprinted in 1993 U.S.C.C.A.N. 105, 118. See also
24
1
National Council of La Raza v. Cegavske, 800 F.3d 1032, 1035 (9th Cir. 2015) (the
2
NVRA “seeks to increase registration of ‘the poor and persons with disabilities who do
3
not have driver’s licenses and will not come into contact with the other princip[al] place
4
to register under this Act[, motor vehicle agencies].’”) (quoting H.R. Rep. No. 103-66, at
5
19 (1993), reprinted in 1993 U.S.C.C.A.N. 140, 144).
6
The NVRA directs that eligible voters who register in-person at the MVD or
7
register to vote by postmarked mail up to 30 days before the date of the federal election
8
should be permitted by the state to vote in that election. The deadline set by state’s
9
designated chief elections official here shortened the period expressly prescribed under
10
Section 8. Therefore, the Secretary’s voter registration deadline violated Section 8 of the
11
NVRA.
12
In response, the Secretary defends on the grounds that the Committees’ lack
13
statutory standing due to their failure to comply with the NVRA’s statutory notice
14
provision prior to filing suit.14 The Court agrees with the Secretary, the chief elections
15
official, that at no time prior to the filing this lawsuit did the Committees provide the
16
14
17
18
19
20
21
22
23
24
25
26
27
28
“A person who is aggrieved by a violation of [the NVRA]” may file a lawsuit in
federal court to vindicate their rights. 52 U.S.C. § 20510(b); National Council of La Raza
v. Cegavske, 800 F.3d 1032, 1035 (9th Cir. 2015); see also 138 Cong. Rec. 10,736 (1992)
(statement of Sen. Wendell Ford) (explaining that the language providing for a private
cause of action substituted “person” for “individual” to “permit organizations as well as
individuals… to bring actions under the act”). However, “[a] person who aggrieved by a
violation of [the NVRA]… provide written notice of the violation to the chief election
official of the State involved” prior to bringing a civil action. 52 U.S.C. § 20510(b)(1).
Whether notice is required and how long the person must wait to file suit after providing
notice is contingent on the timing of the next federal election.
When the violation upon which a suit is based occurs a
substantial time before the next federal election, the aggrieved
person must notify the state of the alleged violation and must
then wait 90 days before filing suit. Id. § 20510(b)(1)-(2).
However, “if the violation occurred within 120 days” of a
federal election, the aggrieved person must wait only 20 days
after notifying the state before bringing suit. Id. §
20510(b)(2). “If the violation occurred within 30 days” of a
federal election, the aggrieved person does not need to give
any notice before bringing suit. Id. § 20510(b)(3).
National Council of La Raza v. Cegavske, 800 F.3d 1032, 1035 (9th Cir. 2015).
25
1
Secretary with notice regarding their claim that the October 10, 2016 voter registration
2
deadline violated the NVRA. Cf. National Council of La Raza v. Cegavske, 800 F.3d
3
1032, 1035–36 (9th Cir. 2015) (finding notice of ongoing violation where plaintiffs had
4
sent the secretary of state a letter stating that “Nevada is not in compliance with Section
5
7” and “is systematically failing to provide the voter registration services mandated by
6
the NVRA at its public assistance offices.”). The Court also agrees with the Committees
7
however, that under the present circumstances, they were not required to do so. The
8
“violation” did not occur until October 10, 2016, when Secretary imposed the voter
9
registration deadline and declined to extend it through the following day. Because that
10
violation fell within 30 days of the federal election, no pre-suit notice was required under
11
the NVRA. See 52 U.S.C. § 20510(b)(3).
12
The State maintains that any one of the actions concerning the deadline taken by
13
the Secretary on February 10, August 25, or September 28 was sufficient to trigger the
14
NVRA notice requirement. She maintains that the Committees knew of her position well
15
in advance of the deadline, and therefore it would be contrary to the purpose of the notice
16
provision to promote the timely resolution of disputes in advance of an election. (Doc. 29
17
at 3.) As discussed below, the Committees’ eleventh-hour conduct precludes the relief
18
they seek. However, it does “not alter the meaning and operation of the NVRA.”
19
National Council of La Raza v. Cegavske, 800 F.3d 1032, 1044–45 (9th Cir. 2015).
20
Therefore, the Committees prevail on the merits of their NVRA claim.
21
C.
22
The Committees further claim that the Secretary’s decision not to extend the
23
deadline to October 11, 2016 was contrary to existing state law. (Doc. 22 at 7-8 (citing
24
Ariz. Rev. Stat. § 1-303 (“When anything of a secular nature, other than a work of
25
necessity or charity, is provided or agreed to be done upon a day named or within a time
26
named, and the day or the last day thereof falls on a holiday, it may be performed on the
27
next ensuing business day with effect as though performed on the appointed day”); Ariz.
28
Rev. Stat. § 1-243 (“the time in which an act is required to be done shall be computed
Claim under State Law
26
1
by… including the last day, unless the last day is a holiday, and then it is…excluded.);
2
Ariz. Atty. Gen. Op. 58-74 (1958) (concluding that when the close of voter registration
3
fell on a holiday registration should remain open through the next business day)). The
4
Committees attempt to distinguish Board of Supervisors, infra, by noting that the statute
5
at issue there, Ariz. Rev. Stat. § 16-1104(B), does not involve voter registration and
6
contained the additional words “not less than thirty days prior” to the election. Thus,
7
“[u]nlike the time limit [in Board of Supervisors], the time here is calculated forward,
8
beginning with the day after the [the holiday].” Fisher v. City of Apache Junction, 486,
9
28 P.3d 946, 948 (Ariz. Ct. App. 2001).
10
In response, the Secretary contends that the time provision in Ariz. Rev. Stat. § 16-
11
120 may not be extended because time limits in Arizona election statutes are to be strictly
12
construed. See Board of Supervisors v. Superior Court, 446 P.2d 231 (1968); Smith v.
13
Board of Directors, Hosp. Dist. No. 1, Pinal County, 716 P.2d 55, 56 (Ariz. Ct. App.
14
1985) (“Time elements in election statutes are to be construed strictly and Rule 6(a) does
15
not apply to them”). The Secretary argues that just like in Board of Supervisors, “[i]f we
16
allow an additional day to deliver the [voter registrations] because the last day falls upon
17
a Sunday [or holiday],” 446 P.2d at 233, the voter registrations would no longer be
18
“received…. prior to midnight of the twenty-ninth day preceding the date of the
19
election,” Ariz. Rev. Stat. § 16-120.
20
election statutes, in accord with the drafters’ intent, with the plain language of the statute
21
being the best indicator of that intent. See Zamora v. Reinstein, 915 P.2d 1227, 1230
22
(Ariz. 1996); In re Estate of Winn, 237 P.3d 628, 630 (Ariz. Ct. App. 2010). If the statute
23
is clear and unambiguous, a court need not employ other methods of statutory
24
construction. See State ex rel. Romley v. Hauser, 105 P.3d 1158, 1160 (Ariz. 2005); State
25
v. Riggs, 942 P.2d 1159, 1165 (Ariz. 1997). “Statutes that are in pari materia - those that
26
relate to the same subject matter or have the same general purpose as one another -
27
should be construed together as though they constitute one law.” State v. Gamez, 258
28
P.3d 263, 267 (Ariz. Ct. App. 2011) (citing State v. Barraza, 104 P.3d 172, 175 (Ariz. Ct.
A court must interpret statutes, including
27
1
App. 2005)).
2
Guided by these principals, it is apparent that the Secretary erred in her application
3
of Ariz. Rev. Stat. § 16-120; a strict construction of its time limit is incompatible with the
4
statutory scheme. The requirement that, in order to be valid for an election, voter
5
registration must be “received by the county recorder or his designee pursuant to § 16-
6
134 prior to midnight of the twenty-ninth day preceding the date of the election,” Ariz.
7
Rev. Stat. § 16-120, simply cannot be reconciled with Ariz. Rev. Stat. § 16-134, which
8
explicitly provides that voter registration received after the 29th day can be valid for an
9
election. Ariz. Rev. Stat. § 16-134 reads:
10
11
12
13
14
15
In the case of registration by mail, a voter registration is valid
for an election if it complies with either of the following:
1. The form is postmarked twenty-nine days or more before
an election and is received by the county recorder by 7:00
p.m. on the day of that election.
2. The registration is dated twenty-nine days or more before
an election and is received by the county recorder by first
class mail within five days after the last day to register to vote
in that election.
16
17
Ariz. Rev. Stat. § 16-134 (C) (emphasis added). See also Arizona Elections Procedure
18
Manual, p. 39; (Doc. 30 at 106, Hr’g Tr. 113:24-114:3 (“let me explain this. If [voter
19
registration applications] are dated or signed October 10th and we receive them within
20
the five -- by first class mail five business days, then we, of course, we continue to
21
process those. So it’s not that we had them on the 10th. We process them after that too.”).
22
Likewise, voter registration forms received in-person by county recorders bearing a
23
legible postmark or “otherwise reliable date” are considered “received by the county
24
recorder” on the listed date. Ariz. Rev. Stat. § 16-134 (D). (See also Doc. 30, Hr’g Tr.
25
110: 6-9 (“We have to continue with any voter registration forms that we receive in
26
regardless of the registration deadline. So if we receive them after the deadline, we still
27
have to process them the same as if we received them on the deadline.”).)
28
Indeed, strict construction of the time limit in Ariz. Rev. Stat. § 16-120 would
28
1
render § 16-134 superfluous and void, “contrary to the cardinal rule of statutory
2
construction.” U.S. West Commc’ns, Inc. v. Ariz. Dep’t of Revenue, 972 P.2d 652, 656
3
(Ariz. Ct. App. 1998) (“statutes should be interpreted so that no clause, sentence, or word
4
is rendered superfluous or void”); Sherman v. City of Tempe, 24 P.3d 1285, 1287-88
5
(Ariz. Ct. App. 2001) (“[L]anguage, where clear and unequivocal, controls the statute’s
6
meaning unless it leads to absurd or impossible results.”) vacated by other grounds by
7
Sherman v. City of Tempe, 45 P.3d 336, 340–41 (Ariz. 2002). The time limits in § 16-120
8
need not be employed literally, and do not preclude harmonious application of § 1-303.
9
The Secretary counters that application of § 1-303 would result in a “patchwork”
10
of voter registration deadlines, because some counties remain open on Columbus Day
11
while others do not, is not persuasive. See Ariz. Rev. Stat. § 11-413(A) (“for the purposes
12
of opening county offices for the transaction of business,” counties can decide whether to
13
open their offices on either Columbus Day or the Day after Thanksgiving). The Court
14
believes the opposite; it would provide consistency among all the counties. No county
15
that would otherwise be closed on Columbus Day would be forced to open its doors; the
16
voter registration deadline would fall the next day.
17
The Court however need not determine whether the Secretary was required to
18
extend the deadline here pursuant to § 1-303, because any application of Ariz. Rev. Stat.
19
§ 16-120 that effectively requires that voter registration to be received earlier than 30
20
days before a federal election is superseded by NVRA. “States must ‘establish procedures
21
to register’ voters” in accordance with the NVRA.” Gonzalez v. Arizona, 677 F.3d 383,
22
394 (9th Cir. 2012). See Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct. 2247,
23
2249 (2013) (The “Times, Places, and Manner” provision in the Election Clause “are
24
‘comprehensive words’ which ‘embrace authority to provide a complete code for
25
congressional elections,’ including regulations relating to ‘registration.’”) (quoting Smiley
26
v. Holm, 285 U.S. 355, 366 (1932)). And while states may add additional voter
27
registration requirements that complement and are harmonious with the congressional
28
procedural scheme of the NVRA, they may not employ a requirement that conflicts with
29
1
it. Id. Rather, where state regulation conflicts with the NVRA, “Congress has exercised
2
its power to ‘alter’ the state’s regulation, and that regulation is superseded.” Gonzalez v.
3
Arizona, 677 F.3d 383, 394 (9th Cir. 2012).
4
When implemented in the manner employed by the Secretary, as discussed above,
5
Ariz. Rev. Stat. § 16-120 ceases to operate harmoniously with the procedural scheme for
6
federal voter registration provided for in Sections 7 and 8 of the NVRA. Whether some of
7
the methods prescribed by the NVRA were available within the 30-day or lesser
8
timeframe, is immaterial. Partial compliance does not abrogate the presence of a direct
9
conflict between the Secretary’s October 10, 2016 voter registration deadline and Section
10
8 of the NVRA.
Accordingly, the Committees prevail on the merits of their state law claim.
11
12
III.
Relief
13
The Committees have met the first requirement for permanent injunction; they
14
have demonstrated actual success on the merit. Due to the circumstances presented here
15
however, the Court does not reach the remaining factors. Instead, the Court finds that the
16
Committees’ delay in initiating this action, and the resulting prejudice that has arisen due
17
to that delay, precludes relief.15
18
A.
19
The delay in instituting this action hampered the administration of justice in this
20
case. See Lubin v. Thomas, 144 P.3d 510, 511 (2006) (“In the context of election matters,
21
the laches doctrine seeks to prevent dilatory conduct and will bar a claim if a party’s
22
unreasonable delay prejudices the opposing party or the administration of justice.”);
23
Beltran v. Razo, 788 P.2d 1256, 1258 (App.1990); Sotomayor v. Burns, 13 P.3d 1198,
24
1200 (Ariz. 2000).
25
15
26
27
28
Administration of Justice
The Committees seek declaratory judgment only with regard to the eligibility of
Arizona voters who submitted valid voter registration on October 11, 2016 to vote in the
general election, which as follows, is precluded on equitable grounds. The Committees
do not ask for a declaration regarding the application of state or federal law, and under
the circumstances presented here, such a declaration would amount to no more than an
impermissible “opinion advising what the law would be upon a hypothetical state of
facts.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007).
30
1
The Committees did not file their complaint in this action until more than a week
2
after the voter registration deadline had passed, and only a few weeks before the general
3
election is to take place. This delay was unreasonable. The Committees’ efforts in mid-
4
September do not explain why they did not submit their requests to extend the deadline
5
earlier. The Committees offer no reasoning as to why they were unable to submit their
6
requests during the months that passed after the deadline had been set at the beginning of
7
the year and posted on the Secretary’s website. Their efforts also do not explain why the
8
Committees did not file a complaint prior to the registration deadline at the end of
9
September, when the likelihood that they could persuade the counties or the Secretary to
10
extend the deadline became clearly doubtful, if not surely foreclosed. Instead, their
11
efforts only demonstrate that the Committees knew the basis of their claims in advance of
12
the voter registration deadline and had ample opportunity to seek relief before it passed.
13
Although the Court called for expedited briefing and hearing, that could not cure
14
the prejudice which resulted from the Committees’ delay. By waiting until the last minute
15
to bring their challenge, the Committees “place[ed] the court in a position of having to
16
steamroll through the delicate legal issues.” Sotomayor v. Burns, 13 P.3d 1198, 1200
17
(Ariz. 2000). This “strains the quality of decision making and is ultimately unfair to all
18
involved.” Mathieu v. Mahoney, 851 P.2d 81, 85 (1993). Instead, had the Committees
19
filed suit promptly, a motion for preliminary, prohibitory injunction could have been
20
briefed and decided without unreasonable burden on the Secretary, the Court, or the
21
voters and the election process. While the Court received complete responses from the
22
Secretary that addressed a multitude of issues, she was undoubtedly deprived of
23
reasonable time to consider and develop this case. McCarthy W. Constructors, Inc. v.
24
Phoenix Resort Corp., 821 P.2d 181, 187 (App. 1991). That includes “the opportunity to
25
develop and present [her] own evidence, hire an expert, or prepare [her] cross-
26
examination.” Mathieu, 851 P.2d at 84–85. The Committees’ delay made their claims
27
more difficult to defend against and more complex to adjudicate.
28
B.
Post-Deadline Filing
31
1
The Committees’ delay in seeking an injunction and filing this action after the
2
voter registration deadline itself precludes equitable relief. “[I]n order to create an
3
appropriate incentive for parties to bring challenges to state election procedures when the
4
defects are most easily cured, we have held that ‘[t]he law imposes a duty on parties… to
5
bring their complaints forward for… adjudication” before the violation has occurred.
6
Soules v. Kauaians for Nukolii Campaign Committee, 849 F.2d 1176, 1180–81 (9th Cir.
7
1988) (quoting Chinese for Affirmative Action v. Leguennec, 580 F.2d 1006, 1008 (9th
8
Cir. 1978)). By waiting to file a complaint until after the deadline, the Committees
9
frustrated the very purpose of this lawsuit – to ensure all eligible voters could register to
10
vote in the general election. By filing this lawsuit after the deadline, no relief can be
11
offered to those who did not register on October 11th, understanding the deadline had
12
passed the day before. See National Council of La Raza v. Cegavske, 800 F.3d 1032,
13
1044–45 (9th Cir. 2015) (“It hardly serves plaintiffs’ voter registration purpose to delay
14
notification of the State, for the sooner the State comes into compliance, the more voters
15
will be registered). The dilatory filing also diminished the likelihood that they can secure
16
meaningful relief for those who did register on October 11th. If the state could identify
17
and process those voters in time, there is little promise that the belated notice of voting
18
eligibility would reassure and encourage registrants to vote on election day, rather than
19
confuse and dissuade them.
20
The Committees’ attempt to excuse their failure to seek relief earlier by pointing
21
to the fact that they had been engaging in efforts to persuade the counties and the
22
Secretary to extend the deadline. Their reliance on the inaction of the Secretary however
23
was unreasonable in light of the looming voter registration deadline. See Kay v. Austin,
24
621 F.2d 809 (6th Cir. 1980); Soules v. Kauaians for Nukolii Campaign Committee, 849
25
F.2d 1176, 1180–81 (9th Cir. 1988) (“Although adequate explanation for failure to seek
26
[prior] relief has been held to exist where, for example, the party challenging the election
27
[procedure] had no opportunity to seek such relief… if aggrieved parties, without
28
adequate explanation, do not come forward before the [violation], they will be barred
32
1
from the equitable relief.”) (internal citations omitted).
2
C.
3
“There is no doubt that the right to vote is fundamental, but federal court cannot
4
lightly interfere with or enjoin a state election.” Southwest Voter Registration Educ.
5
Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003). Indeed, the Supreme Court has
6
stated that “[c]ourt orders affecting elections, especially conflicting orders, can
7
themselves result in voter confusion and consequent incentive to remain away from the
8
polls.” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006). Because this action was initiated in
9
the weeks shortly before the election, administering the relief sought by the Committees,
10
as previously addressed, would have the effect of encumbering the election. Thus, even
11
though the Committees may prevail on the merits of some of their claims, because
12
issuing an injunction on the eve of an election itself would cause harm, relief should be
13
precluded. See Id.; Reynolds v. Sims, 377 U.S. 533, 585 (1964) (holding that “under
14
certain circumstances, such as where an impending election is imminent, and a State’s
15
election machinery is already in progress, equitable considerations might justify a court
16
in withholding the granting of immediately effective relief” even where the scheme has
17
already been found unconstitutional); Colon-Marrero v. Conty-Perez, 703 F.3d 134, 145
18
(1st Cir. 2012).
19
Imminent Election
CONCLUSION
20
Any decision that may encroach upon an individual’s fundamental right to
21
participate in our democracy is not taken lightly. The Court is sympathetic to the plight of
22
individual voters who were unable to register in time to vote in the general election, and
23
had this action been filed within a reasonable time before the voter registration deadline,
24
a different outcome would have likely resulted. The Court also observes the possibility
25
that the Secretary set the deadlines this year without first consulting a holiday calendar,
26
and that if she had exercised her discretion (or her rulemaking authority) from the onset,
27
the predicament faced here could have been avoided. However, polling lists have been
28
disseminated, early ballots have been cast, and polls open in a matter of days. Even if the
33
1
inequity imposed on the administration of this case were ignored, it would not alter the
2
fact that the Committees’ inaction compromised the ability to realistically vindicate the
3
voting rights for some without endangering the exercise of that right by others.
4
Accordingly,
5
IT IS ORDERED:
6
1.
That Plaintiffs’ Motion to Strike (Doc. 31) is denied;
7
2.
That Plaintiffs’ Motion to Supplement (Doc. 34) is granted;
8
3.
That the Motion for Temporary Restraining Order and/or Preliminary
9
Injunction (Doc. 2) is denied;
10
4.
That the Motion to Modify the Relief Sought (Doc. 37) is denied as moot;
11
5.
That Plaintiffs’ request for declaratory judgment, permanent injunction is
12
13
14
15
denied; and
6.
That the Clerk of Court shall enter judgment accordingly and terminate
this action.
Dated this 3rd day of November, 2016.
16
17
Honorable Steven P. Logan
United States District Judge
18
19
20
21
22
23
24
25
26
27
28
34
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