Professional Documents
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Johnson (#021527)
Colin Ahler (#023879)
2 Andrew Sniegowski (#03 1664)
Lindsav Shori' (#03 4l' 25)
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J SNELL & WIIMER L.L.P.
One Arizona Center
4 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
5 T 602382.6000
E.
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7 com
Attorneys for
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
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IN AND FOR THE COLINTY OF MARICOPA
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1,2
MARICOPA COLINTY REPUBLICAN
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PARTY, APACHE CpI-]NTY _^ No.
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REPUBLICAN PARTY, NAVAJO
I niã'o t4 COUNTV REPUBLICAN PARTY, and MOTION FOR TEMPORARY
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YUMA COUNTY REPUBLICAN RESTRAINING ORDER AND
,¿ :9s.sq 15 PARTY,' NNOTTON FOR ORDER SETTING
II ?:åä HEARING ON PRELIMINARY
rg)¡ Plaintiff,
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t6 V. INJUNCTION
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1 as Pinal Countv Recorder; SUZANNE
SAINZ, in herbff,rcial capacìty-as Santa
2 Cruz Countv Recorder; LESLIE M.
HOFFMAÑ, in her official capacity- as
J Yavaoai Countv Recorder; ROBYN
srAilwoRTil POUQUETTE, in her
4 official capacity as Yuma CountY
Recorder,
5 Defendants.
7 Under Ariz. R. Civ. P. 65(d), Plaintiffs the Maricopa Republican Party, Apache
Republican
I County Republican Party, Navajo County Republican Party, and Yuma County
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party (the ,,County parties" or "Plaintiffs") hereby move this Court for the issuance of:
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d II oö t6 2. An Order to Set Hearing on Preliminary Injunction ("Order") providing
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defendants Michele Reagan and the State's County Recorders, in their official
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capacities,
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18 with notice of the date and time of the hearing on Plaintiffs' Application for a Preliminary
force and
T9 Injunction as to why a preliminary injunction should not be issuçd in the same
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MEMO RANDUM OF POINTS AN D AUTHO S
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I. FACTUAL BACKGROUND
A. The General Election and Processing of Provisional Ballots'
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to
This action seeks to ensure that Arizona voters are provided an equal opportunity
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invalid early
vote in the form of uniform deadlines by which to rehabilitate their facially
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2
A.R.S. $ 16-211'
1 ballots in connection with November 6,2018 general election. ,See
various
2 An Arizona elector may cast an early ballot, either by mail or in-person at
-542. A batlot returned by
sites throughout every county. see Ariz. Rev. stat. $$ 16-541,
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matches the
4 mail may be processed only if the signature on the accompanying affidavit
signature on file in the putative voter's registration record. See
Ariz.Rev. Stat. $ 16-550(A)'
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immediately
6 County elections off,rcials must conduct the signature verification
..[u]pon receipt,, of the ballot, íd. andall issued early ballots must be received and processed
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ascertain whether the voter actually voted the early ballot and
any reasons why the
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11 signatures may not match," but only "[i]f time permits'" Atiz' Sec'y of State' ELECTION
those
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9I EF 13 On information and beliet however, certain County Recorders-specifically
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early ballots for
of Maricopa and pima Counties-will allow voters to cure non-compliant
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that finds no statutory authorization
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Ø iterË 15 a period of five days afterElection Day, a contingency
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uo and threatens to beget an extended period of confusion and uncertainty following the
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r7 election.
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a voter's
18 The remaining county Recorders, on information and belief, terminate
t9 ability to rehabilitate anearly baltot at7:00 p.m. on Election Day.
facially
20 In implementing and enforcing disparate deadlines by which to rehabilitate
framework securing the
2T defective ballots, the county Recorders are subverting the statutory
22 uniform administration of statewide elections and imperiling voters' right to the equal
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Ariz.58, 63, 804 P.2d 787,7g2 (App. 1990). In evaluating these factors,
"[t]he scale is not
1
but sliding ." Smithv. Arí2. Citizens Clean Elections,2l2 Ariz' 407,410 ï
10' 132
2 absolute,
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J P.3d 1187, 1190 (2006); Arí2. Ass'n of Províders þr Persons wíth Dísabilíties v' State'223
Ariz. 6, lz,n 12,2lg P.3d216,222(App. 2009). Based on this sliding scale' a plaintiff may
4
TRo upon showing either (1) a combination of probabre success on the merits
and
5 receive a
questions going to the
6 the possibility of irreparable harm, or (2)the existence of serious
,.the balance of hardships tipped sharply" in the plaintiff s favor. See shoen,167
7 merits and
Ariz. at63,804 P.2d at792; see Smith,2l2 Ariz. at4lt fT 10, 132 P'3d at 1191 ("The greater
8
9 and less reparable the harm, the less the showing of a strong
likelihood of success on the
merits is weak, the showing
10 merits need be. conversely, if the likelihood of success on the
23 in our constitutional system, to participate in state erections on an equal basis with other
24 quarified voters.,,, Ariz. Mínority coar. þr Fair Redistrictíng v. Arí2. Indep. Redístricting
comm'n,2Il Arlz.337 ,346 (App. 2005) (quoting san Antonio sch. Díst' v' Rodriguez,
4ll
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protection claim:
26 u.s. 1., 35 n.78 (1g73)).Voters that aretreated differentty have an equal
,,Having once granted the right to vote on equal terms, the State may not, by later arbitrary
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undue burden on
I u.s. gg, 104-05 (2000). Further, election laws and practices that create an
460 U'S' 780' 789
2 voters cannot stand under Equal Protection . Anderson v. Celebrezze,
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1. ptaintiffs are likely to prevail on their Equat Protection claims
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alleging disparate treatment (Bush v' Gore)'
ballots on equal
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Equal protection requires that election offrcials review all early
Cty' Bd' of Electíons' 635 F'3d
terms and following similar procedure s. Hunter v. Hamilton
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I 21g,235 (6th Cir. 2011). Plaintiffs' equal protection claims are likely to succeed
here'
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because election off,rcials are prepared to provide Arizona
voters an unequal opportunity to
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t7 be set aside.").
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Z. plaintiffs are likely to prevail on their Equal Protection claims
t9 alleging an undue burden on the right to vote
20 Q{nderson/Burdick).
5
1 disenfranchisement, is a harsh one indeed." Hunter,635 F.3d at243'
particularly
2 The State has no justifiable interest in burdening Plaintiffs' right to vote,
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J when the burden stems not from a "'narrowly drawn state interest of compelling
importance,' but instead from local misapplication of state 14w." Id. at 238
(quoting
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5 crawford v. Marion cty. Etectíon 8d.,553 U.S. 181, 190 (200s)). And when considering
the State's interest, the Court should look skeptically upon vague or speculative
state
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identi$' "precise
7 interests in comparison with the fundamental right to vote; the State must
9 In balancing the plaintiffs' burden with the State's interest, the Court must consider
the race for U'S'
10 the context of the election. See Burdick,504 U.S. at 438-39.In this case,
the time of filing,
11 Senator for the State of Arizon a, for example, has not been finalized at
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t2 and will surely be determined by a small margin of votes. It is of paramount importance,
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especially considering close races such as these, that every voter's ballot be
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,z :9e.gi 15 Compared to the burdens suffered by Plaintiffs, the compatable burden
on the State
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of early
16-550(A)' Further,
ballots immediately "[u]pon receipt" ofthe ballot. See Ariz.Rev. Stat. $
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Recorders'
18 all issued early ballots must be statutorily received and processed by the County
a uniform deadline
T9 offices no later than 7:00pm on Election Day, id. $ 16-5 5 1(c). To require
20 of each County Recorder, for a process that is already required of them, does not impose a
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treatment
1 U.S. 533, 562 (1964). Similarly, all citizens have the right to have fair and equal
(1962) (*A
2 in the exercise of the electoral franchise. See Baker v. Carc,369 U.S. 186, 208
judicially
ô
J citizen,s right to a vote free of arbitrary impairment by state action has been
resulted from . . . a
4 recognized as a right secured by the Constitution, when such impairment
are being disenfranchised and are being disparately treated regarding their
right to vote,
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È, In Hì:q t4 while the Defendants have provided no explanation or compelling argument regarding
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Ê I õö ptaintiffs are likely to prevail on their claims for declaratory and
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injunctive relief.
The plaintifß are likely to succeed on the merits of their claims for declaratory
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injunctive relief. plaintifß are entitled to a declaratory judgment to determine the
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ballots. County
appropriate deadline for voters to rehabilitate their facially invalid early
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elections officials must conduct the signature verification of early ballots
immediately
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,.[u]pon receipt" of the ballot. A.R.S. $ 16-550(A). And all issued early ballots must be
^see
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7:00pm on Election
received and processed by the County Recorders' offices no later than
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Day, id. $ 16-551(C). In the case of discrepant signatures, the county Recorder "may
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voted the early ballot and
attempt to contact the voter to ascertain whether the voter actually
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any reasons why the signatures may not match," but only "[i]f time permits'" Ariz' Sec'y
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of stare, ELECI-ION pRocEDURES MANUAL (2014) at" 166. Only cerrain county
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pima counties, however-impose a f,rve-day window
Recorders-those of Maricopa and
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1 beyond Election Day for the rehabilitation of discrepant early ballots. The remaining
County Recorders terminate this period on Election Day. Accordingly, the Plaintiffs
are
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3 entitled to declaratory relief providing the County Recorders with a uniform deadline before
4 which a voter may rehabilitate his or her facially invalid early ballot.
5 plaintiffs are also entitled to injunctive relief. Arizona voters will be irreparably
9 public poliqy strongly support the issuance of injunctive relief. Accordingly, the Plaintiffs
10 are entitled to injunctive relief enjoining the County Recorder Defendants from
her facially
11 implementing disparate deadlines before which a voter may rehabilitate his or
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t2 invalid early ballot.
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B. plaintiffs Will Suffer Irreparable Harm Unless Defendants Are
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Enjoined.
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F I H-ì:q t4 Absent emergency relief from this Court, Plaintifß will suffer actual and imminent
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harm, which cannot be adequately compensated at law. As described in detail above,
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UDI EË t6 plaintiffs have brought a lawsuit for declaratory action and equitable relief. If voters are not
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t7 provided an equal opportunity to cure their facially invalid early ballots, Arizonavoters
will
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be disenfranchised. Such disenfranchisement cannot be remedied at
law, and the deprivation
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427 U.S. 347 ,373 (1976).
2t c. The Batance of Hardships Tips sharply in Plaintiffs' Favor
22 The hardship to Plaintifß if a temporary restraining order is not granted will vastly
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exceed any hardship felt by the Defendants if they are enjoined. In addition, granting this
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injunction is in the public interest. see Melendres v. Arpaío,695 F.3d 990,1002 (9th cir'
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Z¡lZ)(,,U]t is always in the public interest to prevent the violation of a party's constitutional
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rights.").
27 hardship,
At this time, as described above there is no hardship, let alone substantial
Arizonans are not
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for the Defendants. Plaintiffs, however, will face significant hardships if
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within the
1 entitled to cast a ballot on equal terms, irrespective of their geographic location
2 state.
a
J IIL CONCLUSION
issue a
4 For the foregoing reasons, Plaintifß respectfully request that this Court
enjoining the county
5 temporary restraining order to enjoin the entitled to injunctive relief
a voter may
6 Recorder Defendants from implementing disparate deadlines before which
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DATED this daY ofNovember, 2018'
9 SNE,LL & WILMER L.L.P
- --'"7
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11 By: /s A.u6 L
Brett V/. ohnson 2r5
9 t2 One Arizona Center
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400 E. Van Buren, Suite 1 900
l-i r 1^
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13 Phoenix, Arizona 85004-2202
Telephone 602.382.6000
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Facsimile: 602.382.6070
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