Arizona Democratic Party et al v. Reagan

Filing 39

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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Arizona Democratic Party and Democratic National Committee, 10 Plaintiffs, 11 vs. 12 Michele Reagan, Secretary of State, 13 14 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-16-03618-PHX-SPL ORDER 15 Both the United States and the State of Arizona observe two things: (1) general 16 elections are to take place on the Tuesday following the first Monday in November in a 17 given even number year, see 2 U.S.C. § 1, 7; 2 U.S.C. § 3; Ariz. Const. art. VII, § 11; 18 Ariz. Rev. Stat. § 16-211; and (2) “Columbus Day” is a recognized holiday that falls on 19 the second Monday in the month of October, see 5 U.S.C. § 6103(a); Ariz. Rev. Stat. § 1- 20 301(A)(12). While these well-established events are seemingly non-controversial, this 21 election cycle, Arizona has managed a way to sift out some uncertainty. 22 Arizona law provides that “[n]o elector shall vote in an election... unless the 23 elector has been registered to vote… and the registration has been received… prior to 24 midnight of the twenty-ninth day preceding the date of the election.” Ariz. Rev. Stat. § 25 16-120. Applying this calculation strictly, the Arizona voter registration deadline for the 26 upcoming November 8, 2016 general election was set on the 29th day that preceded it - 27 October 10, 2016, Columbus Day. 28 Plaintiffs the Arizona Democratic Party and Democratic National Committee 1 (“Committees”) filed the instant lawsuit suing Defendant Michele Reagan in her official 2 capacity as the Secretary of State (“Secretary” or “State”). (Doc. 1.) The Committees 3 claim that the Secretary’s decision not to extend the October 10, 2016 voter registration 4 deadline, and to preclude certain voters whose registration applications were received on 5 October 11, 2016 from voting in the November 8, 2016 general election, violated federal 6 and state law, and imposed an unconstitutional burden on voters. The Committees request 7 declaratory and injunctive relief. For the reasons that follow, the Court finds that the 8 Committees prevail on the merits of their claims, in part, but concludes that they are not 9 entitled to relief. BACKGROUND1 10 11 On February 10, 2016, the Secretary published its 2016 elections calendar on its 12 website, listing October 10, 2016 as the “[v]oter registration deadline for General 13 Election.” (Doc. 15-1 at 4-11, ¶ 4; Hr’g Exh. 25 ¶ 4; Doc. 4-5 at 29-33; Hr’g Exh. 7.)2 14 Sometime in the months that followed, “at least one county asked [the Secretary’s 15 Office] for guidance” with respect to the voter registration deadline and the Columbus 16 Day holiday. (Doc. 30, Hr’g Tr. 68:4-17.) As a result, on August 25, 2016, Eric Spencer 17 (“Spencer”), State Elections Director, sent an email to all fifteen counties notifying them 18 that although it was Columbus Day, the voter registration deadline would fall on October 19 10, 2016. (Doc. 15-1 at 4-11, ¶ 6; Hr’g Exh. 25 ¶ 6; Doc. 30, Hr’g Tr. 68:4-17.) 20 On August 26, 2016, the Secretary issued the Arizona 2016 General Election 21 Publicity Pamphlet. (Docs. 4-5 at 40-167; Hr’g Exh. 9;3 Doc. 15-1 at 4-11, ¶ 6; Hr’g Exh. 22 25 ¶ 6.) See also Ariz. Rev. Stat. § 19-123(A) (“the secretary of state shall cause to be 23 printed… a publicity pamphlet”). Following the Secretary’s message to voters, the 24 pamphlet provides in relevant part: 25 1 26 2 27 Unless otherwise noted, the following is not disputed by the parties. Also found at: (last visited November 3, 2016). 3 28 Also found at: (last visited November 3, 2016). 2 1 DEADLINE: October 10 is the registration deadline for the 2016 General Election, if you are not already registered to vote. 2 3 REGISTER ONLINE: Register to vote online by using the EZ voter registration service at A valid Arizona driver’s license or non-operating identification license is necessary. 4 5 PAPER REGISTRATION: Voter registration forms are available: • From the Secretary of State’s website (; • 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. 6 7 8 *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. 9 10 11 12 (Doc. 4-5 at 44 (emphasis in original.) The pamphlet was posted on the Secretary’s 13 website and sent to each household with a registered voter. (Doc. 15-1 at 4-11, ¶ 5; Hr’g 14 Exh. 25 ¶ 5.) 15 On September 19, 2016, Spencer Scharff (“Scharff”), Voter Protection Director 16 for the Arizona Democratic Party, sent letters to all fifteen Arizona county recorders 17 requesting that the deadline be extended to October 11, 2016 pursuant to Ariz. Rev. Stat. 18 § 1-303, because certain voter registration methods would not be accessible to applicants 19 on Columbus Day. (Doc. 5-1 at 4-4; Hr’g Exh. 12; Doc. 30, Hr’g Tr. 22:11-24:18.) 20 Scharff sent a copy of those letters to Spencer. (Doc. 15-1 at 4-11; Hr’g Exh. 25; Doc. 30, 21 Hr’g Tr. 22:15-22.) With the exception of Mohave County, all county recorders 22 responded to Scharff informing him that they would not extend the registration deadline 23 date “as determined by the Secretary of State.” (Doc. 5-1 at 6, 8, 10, 12; Hr’g Exhs. 13- 24 16; Doc. 5 ¶ 3.) The Mohave county recorder responded by email advising that it would 25 extend the voter registration deadline to October 11, 2016 because they were one of the 26 few counties whose offices would be closed on the holiday. (Doc. 5-1 at 14; Hr’g Exh. 27 17.) 28 On September 19, 2016, Arizona House Minority Leader Eric Meyer sent a letter 3 1 to Arizona Attorney General Mark Brnovich requesting a formal opinion as to last day to 2 submit voter registration to be eligible to vote in the general election. (Doc. 5-1 at 16-17; 3 Hr’g Exh. 18.) The letter expressed that the deadline should be extended to October 11th 4 pursuant to Ariz. Rev. Stat § 1-303. (Id.) On September 28, 2016, Deputy Solicitor 5 General for the Arizona Attorney General’s Office, Dominic Draye, responded to 6 Meyer’s letter, declining to issue an official attorney general opinion regarding the 7 “policy decision” of the Secretary. (Doc. 5-1 at 19; Hr’g Exh. 19.) 8 In Arizona, residents may generally register to vote by one of the following 9 methods: in-person at county recorder offices, Ariz. Rev. Stat. § 16-134; in-person 10 through designated public assistance agencies, Ariz. Rev. Stat. §§ 16-134, 16-140; in- 11 person at a Motor Vehicle Division (“MVD”) office, Ariz. Rev. Stat. § 16-112; by mail, 12 § 16-134; or online through the Service Arizona website, (Doc. 13 4-3 at 2-24; Doc. 4-4 at 1-24; Hr’g Exh. 4 at p. 36). 14 On October 10, 2016, post offices and MVD offices were closed. With the 15 exception of Mohave County, all 14 county recorder offices were open and received in- 16 person voter registration applications (Doc. 15-1 at 4-11, ¶¶ 17, 20; Hr’g Exh. 25 ¶¶ 17, 17 20.) Voter registration applications were received online via Service Arizona. The 18 Secretary’s office was open and received voter applications in-person and by email (to 19 Spencer). (Doc. 15-1 at 4-11, ¶ 18; Hr’g Exh. 25 ¶ 18; Hr’g Exh. 22.) Pursuant to an 20 agreement with the counties, one of the headquarters or field offices for each of the 21 democratic and republican parties was open and received in-person voter registration 22 applications which would be accepted by the counties the following day. (Doc. 30, Hr’g 23 Tr. at 116:3-10 and 63:4-8; Doc. 15-1 at 4-11, ¶ 18; Hr’g Exh. 25 ¶ 18.) 24 On October 10th, however, there was a two-hour period of interruption on the 25 voter registration website due to heavy traffic. Counsel for the Arizona Democratic 26 Committee sent a letter to the Secretary concerning this issue and requesting that the 27 voter registration deadline be extended to October 11, 2016. (Doc. 30, Hr’g Tr. 96:9-20, 28 98:10 - 99-18, 117:18-24; Hr’g Exhs. 21, 22.) Spencer, rather than the Secretary, 4 1 responded by email, declining to extend the deadline. (Doc. 30, Hr’g Tr. 99:19-100:23; 2 Hr’g Exh. 22.) 4 3 On October 11, 2016, county recorder offices continued to receive voter 4 registration applications. (Doc. 15-1 at 4-11, ¶ 17; Hr’g Exh. 25 ¶ 17; Hr’g Exh. 22.)5 5 Individuals went to the Committees’ field offices seeking to register to vote for the 6 upcoming election. (Doc. 5 at 4, ¶ 12.) While individuals were provided with applications 7 to complete that would be delivered to the Maricopa County recorder, voters were 8 informed that because the deadline to register fell on October 10, they were too late to be 9 eligible to vote in the general election. (Doc. 5 at 4, ¶¶ 12-13.) 10 On October 19, 2016, nine days after the voter registration deadline had passed 11 and one week into early voting, the Committees filed a complaint initiating the instant 12 action. (Doc. 1.) In the complaint, they claim: that the October 10, 2016 deadline violated 13 the National Voter Registration Act of 1993 (“NVRA”) (Count I); that the Secretary’s 14 refusal to extend the voter registration deadline to October 11, 2016 unconstitutionally 15 burdened individuals’ fundamental right to vote in violation of the First and Fourteenth 16 Amendments to the United States (Count II); and that the October 10, 2016 deadline 17 violated established state law (Count III). 18 In the complaint, the Committees ask the Court to issue an order: (1) “[d]eclaring 19 that all otherwise eligible Arizona voters who submitted a valid voter registration 20 4 21 22 23 24 25 26 27 28 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.) 5 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.) 5 1 application, through any acceptable means, before midnight on October 11, 2016 are 2 eligible to vote in the November 8 Election;” (2) [p]reliminarily and permanently 3 enjoining [the Secretary] from disqualifying any Arizona voter from voting a regular 4 ballot in the November 8 Election solely because he or she did not register by October 5 10, 2016, if he or she submitted a valid voter registration application before midnight on 6 October 11, 2016 and is otherwise eligible to vote;” (3) “[r]equiring [the Secretary] to 7 ensure that voter registration applications submitted before midnight on October 11, 2016 8 are processed in time for eligible voters to be able to vote a regular ballot in the 9 November 8 Election;” (4) “[r]equiring [the Secretary] to identify all eligible Arizona 10 voters who submitted a voter registration application at any time October 11, 2016, and 11 notify such voters that they are eligible to vote in the November 8 Election by: (1) 12 mailing a notice to each voter’s current residential address (post-marked as soon as 13 possible but, in any event, no later than November 1, 2016); and (2) posting a prominent 14 notice to this effect on Defendant’s website;” and (5) “[r]equiring [the Secretary] to 15 provide to [the Committees] (as soon as possible but, in any event, no later than 16 November 1, 2016) a list of all eligible Arizona voters who submitted a voter registration 17 application at any time on October 11, 2016.” (Doc. 1 at 10-11.) 18 The Committees now ask for modified relief, acknowledging the proximity of the 19 upcoming general election. (Doc. 37.) The Committees request that the Court “modify” 20 the relief sought and order the Secretary to: (1) “ensure that voters who registered on 21 October 11, 2016 may vote a provisional ballot in the November 8 Election and that such 22 provisional ballots will be counted upon confirmation that the voter registered on October 23 11 and is otherwise eligible to vote;” and (2) “shall notify all October 11 registrants that 24 they may vote a provisional ballot in the November 8 Election by: (1) immediately 25 mailing a notice (marked as “Official Election Material,” and identifying the voter’s 26 assigned polling place) to such voters’ current residential address; and (2) immediately 27 posting a prominent notice to this effect on [the Secretary’s] website.” (Doc. 37 at 2.) 28 Concurrent with the filing of the Complaint, Plaintiffs filed an emergency motion 6 1 for a temporary restraining order and preliminary injunction. (Doc. 2.) In light of the 2 looming general election, the Court ordered expedited briefing; a Response (Doc. 14), 3 Reply (Doc. 22), and Surreply (Doc. 29) have been filed. The Court placed the parties on 4 notice that the trial on merits would be consolidated with the hearing on the motion (Doc. 5 8), and an expedited trial on the merits was held on October 21, 2016 (Docs. 17, 30).6 6 The parties were provided with an opportunity to present relevant witnesses and 7 testimony as well as oral argument on the controlling issues. The Court heard the 8 testimony of three witnesses: Spencer Scharff, Eric Spencer, and Mary Fontes, a Federal 9 Compliance Officer for Maricopa County. 7 10 Subsequent to the hearing, the Committees filed: (1) a motion to strike exhibits 11 attached to the Secretary’s sur-reply (Doc. 31); (2) a motion to supplement the record 12 with an October 28, 2016 article in which the Secretary purportedly advocated for the 13 inclusion of the 2,069 October 11, 2016 voter registration applications (Doc. 34); and (3) 14 a motion to modify the relief requested (Doc. 37). The Secretary has filed responses 15 6 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 7 1 objecting to both. (Docs. 32, 36, 38.) The Secretary also filed a notice of supplemental 2 authority (Doc. 33). 3 LEGAL STANDARD 4 “To be entitled to a permanent injunction, a plaintiff must demonstrate: (1) actual 5 success on the merits; (2) that it has suffered an irreparable injury; (3) that remedies 6 available at law are inadequate; (4) that the balance of hardships justify a remedy in 7 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 9 1024, 1032 (9th Cir. 2013). See also Arizona Dream Act Coalition v. Brewer, 818 F.3d 10 901, 919 (9th Cir. 2016); eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006); 11 Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987) (“The standard 12 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 14 actual success.”). In contrast to a prohibitory injunction, a mandatory injunction ordering 15 a responsible party to take action should not issue “unless the facts and law clearly favor 16 the moving party,” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994), and 17 “extreme or very serious damage will result,” Marlyn Nutraceuticals, Inc. v. Mucos 18 Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009). See also Park Vill. Apartment 19 Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (“a 20 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. 23 Natural Res. Defense Council, Inc., 555 U.S. 7, 24 (2008). See also eBay, 547 U.S. at 24 391, 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 27 Cir. 2008); Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995); Allstate Ins. Co. v. 28 Herron, 634 F.3d 1101, 1107 (9th Cir. 2011); 28 U.S.C. § 2201 (“In a case of actual 8 1 controversy within its jurisdiction,” the Court may “declare the rights and other legal 2 relations of any interested party seeking such declaration.”). DISCUSSION 3 4 I. Jurisdiction and Venue 5 This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 6 1331, as a case arising under the laws of the United States, 42 U.S.C. §§ 1983 and 1988 7 and 52 U.S.C. § 20510; under 28 U.S.C. §§ 1343(a)(4) and 1357, as a case to secure 8 equitable or other relief under any Act of Congress providing for the protection of civil 9 rights, including the right to vote; and under 28 U.S.C. § 1367, which confers 10 supplemental jurisdiction over the state law challenge. The requests for declaratory and 11 injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, 52 U.S.C. § 20510, and 12 Rules 57 and 65 of the Federal Rules of Civil Procedure. 13 Jurisdiction over the Secretary exists because she is sued in her official capacity as 14 an elected official of Arizona in which she resides, and venue is proper in this district 15 pursuant to 28 U.S.C. § 1391(b) because the events or omissions giving rise to the claims 16 occurred in this district. 17 A. Necessary Parties 18 The Secretary argues that the Court should dismiss Counts II and III of the 19 complaint due to the Committees’ failure to name necessary parties in this case – 20 Arizona county officials. (Docs. 14, 29, 36.) This challenge is rejected. 21 Rule 19 of the Federal Rules of Civil Procedure identifies when an absent party is 22 “necessary” and must be joined in suit if feasible. First, a person is necessary if “the 23 absence of the party would preclude the district court from fashioning meaningful relief 24 as between the parties.” Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 25 F.3d 861, 879 (9th Cir. 2004). See Fed. R. Civ. P. 19(a)(1)(A). The sufficiency of the 26 relief available “is determined on the basis of those persons who are already parties, and 27 not as between a party and the absent person whose joinder is sought.” Angst v. Royal 28 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 5 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 18 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 22 Ariz. Rev. Stat. § 16-142(A). The Secretary has the authority to promulgate rules and 23 procedures for elections, such as voter registration, which encompasses determining voter 24 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 28 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 18 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 22 the county recorder does not provide the requested materials within the applicable 23 9 24 25 26 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), (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 (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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