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Courtncy I leir
SNlrl-t, & WI
One South Church Avenue, Suite 1500
Tucson, Arizona 8570 1 - 1 630
Te.lerplton c: ( s20) 882-1200

NOv

2014

LI

L.ri'i

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c.henson
Attorneys for Plaintiff

SUPEzuOR COURT OI1 'TI{E STATE OF ARIZONA

COTJNTY OF'PIMA

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and Arizona

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VERIFIED SPECIAL ACTION

COMPLAINT F'OR INJUNCTIVE,
MANDAMUS AND DECLARTORY

Ptaintiff,

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No

C3014

RELIEF'

v,

BRAD NELSON, Pima CountY Election

Director,

l6

Defendant.

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18

For her Special Action Complaint for Declaratory, Mandamus, and Injunctive

t9

Relief (the "Complaint"), Plaintiff alleges as follows:

20

THE PARTIES

2l

l.

Plaintiff Jennifer Rawson ("Plaintiff') is a qualiled elector

ancl taxpayer

of

22

pima County and voted for candiclate Martha Mcsally in Arizona Congressional District

23

in the Nvember 4, 2014 general election, Plaintiff has standing to bring this

24

because, if. the Court does not act to prevent vote dilution and possible fraud, there will be

25

no mechanism by which invalid provisional ballots could be challenged for violations ot

26

Arizona law.

21
28

2.

Def-edant llrad Nelson ("the .Elections l)rector")

Election Director and acted under color of law.

is the Pima

action

County

JURISDICTIO

3.

This Court has jurisdiction

Arizona Constitution and A.R.S. $$ 12-123

2021, et seq. and Rule 1 of the Rules of Spec

4.

6
7

A justiciable controversy exists because, without Court intervention,

10

Arizona Constitution and Arizona statutes and

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and loss of

rights.

GENERL ALLEGATIONS

5,

This actiol arises out of the Elections Director's anticipated prooessing and

counting of an unknown amount of challenged provisional ballots by the Pima County

T2

Elections l)epartment

I4
15

':-a r,

will suffer immediate inury

11

13

the

Elections Director stands to violate the rights of Plaintiff under the U.S. Constitution, the

-{

at

6,

Upon infbrmation and belief, the Elections Director received the Pima

County provisional ballots on or shortly after Election Day.

7,

Upon infbrmation and belief, each provisional ballot was appended with

16

provisional ballot form, in triplicate, on which various items of information should have

17

been inputted. One such required piece of information was the poll workeL's signatute,

18

which is requirecl on the provisional form in order to substantiate which worker processed

l9

the provision ballot at the polling place. See Exhibit

::

20

8,

l.

Upon information and belief the Electious Depafiment separated the white

2l

and yellow copies of each provisional ballot f'orm and transmitted those forms to the Pima

22

'I'he pink copy ol the provisional ballot form

County Recorder's Office for verification.

23

remained appended to the provision ballot at the Eleotions Department.

24

g,

Upon processing the provisional ballot forms, the Recorder became aware

25

that a significant number of provisional ballot forms had not been counter-signed by a

26

Pirna County Agthorized Poll Worker, as required by A.It.S. $$ l6-452, 16-513, and the

27

State of ArizonaElections Procedures Manual (Rev. 20|4)(the "Disputed Ballots").

28

10.

Despite receipt

of a formal protest, the Recorder relised to temporarily

/)

segregate those Disputed Ballots pending further legal advice. See Exhibit 2.

1L

2
3

ballot forms wsre not co-signed in accordance with Arizona law, ancl further rellsed to

halt transmission any previously-verif,red Disputed Ballots to the Elections Director' ,fee

d.

1,2. Upon information

", Ti':
",'?,"ti

u)

all provisional ballot

processing, making the Elections Director the sole

cogrpleted

government ofticial with the responsibility

Ilallots.

to halt further processing of the Disputed

Upon inl'orrnation and belief, despite the clear failure to comply with

13.

Arzona law, the Elections Director-beginning Monday morning, November

l2

inteds to direct his staff to marry the yellow provisional ballot forms with their

t3

corresponcling pink provisional ballot forms, which, in turn,

T4

Disputed Ballots to be counted through the elections tabulating equipment in the next few

l5

hours.

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10,2014-

11

:1

and beliefl the Pima County Recorder's Office has now

10

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Upon information and belief, the Recorder continued to verif, provisional

I6

14.

will

clear the way for those

Plaintiff will be irreparably harmed should this occur, because there is no

l7

mechanism to trace or claw back those particular votes once the Disputed Ballots are fed

18

through the elections tabulating equipment.

19

15,

Should the Elections Director tabulate the Disputed Ballots, PlaintifPs vote

20

in the contest for Congressional District 2, and other ofces on the general election ballot,

2l

will be diluted

22

canclidate, Martha McSally, may not be declared the winner, and because the integrity of

23

the election

24

and negatecl by the Disputed Ballots to such an extent that her chosen

will

16.

be compromised.

Should the Elections Director tabulate the Disputed Ballots,

to

it will

be

match up the Disputed Ballots back w:ith the correct documentation

25

irnpossible

26

reflecting a lack of a signature on the provisional ballot form and ensure that voter fraud

27

has not occurred.

28

17. If

the Elections Director is permitted to process the l)isputed Ballots,

-J-

irreparable harm will result to Plaintif, and all similarly-situated voters in Pima County'
l

2
J

B.

By failing to reject the Disputed Ballots

Failed to perform duties required by law as to which he has no

A.

discretion; and

B.

Proceeded and is threatening to proceed without or in excess of his

jurisdiction or legal authority.

7
8

(42U.S.C,
\-

or

.
20.

10

il

COUNT I
INJUNCTIVE RDLIEF FOR VIOLATIONS
nnBnal EQUAL PROTECTION RTGHTS)
S 1983:

All prior allegations

A.R.S.

are incorporated by reference'

16-452(A) provides

the Arizona Secretary of

State shall

l2

promulgate an Elections Procedures Manual that shall have the force and efect of law

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13

with respect to "the procedures for early voting and voting, and of producing, distributing,

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collecting, counting, tabulating, and storing ballots." See also A'R.S. S 16-513 (requiring

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all elections to be conducted in accordance with the Elections Procedures Manual).

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illegal and invalid, the Elections

Director has:

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16

Failure to cornply with the Elections Procedures Manual is a Class

t.>

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misdemeanor. See $ 16-452(C)'

22.

18

Page 152 of the Election Procedures Manual (Rev. 2014) mandates that

t9

poll worker must "sign the provisional ballot form" before (1) providing the alleged voter

20

2l

provisional baltot and (2) depositing the provisional ballot envelope in the ballot box.

23.

The provisional ballot form must be signed by the poll worker to ensure that

22

proper identification was received and that the alleged voter

23

provisional ballot

24

misconduct.

25

24.

is only receiving a

for an authorized reason, thereby preventing potential

electoral

The requirement for a poll worker signature also ensures that a particular

26

provisional ballot can be traced to a particular poll worker, which is another procedure

27

intended to prevent electoral misconduct.

28

25. If the provisional ballot form is not properly completed, the provisional
4

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Upol information and belief, Cochise County (the other oounty comprising

poll worker, all in accordance with Arizona law'

2t.

Without Court intervention, the Elections Director intends to count

the

Disputed Ballots, in contravention of Arizona law and the standards applied in Cochise

County, thereby depriving the Plaintiff of equal protection of law,

29. If the Elections Director proceeds as intended, he will proximately cause

to

cause

a violation of Plaintiffs right to equal protection uncler the

t1

ancl continue

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Fourteenth Amendment to U.S. Constitution.

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15

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27,

13

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requirement that a provisional ballot form is co-signed by the voter and the poll worker.

Congressional District 2) counted only provisional ballots that had a form co-signed by

10

26. All polling places in Pima County are required to follow the Manual's

t:.

ballot at issue should be rejected. See Elections Proceclures Manual, pg. 186,

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30,

The Eleotions Director at all times acts and continuos to

rct as

a state actor

and under color of state law,

31.

Plaintiff requests that this Court determine and declare her rights

and

interests with respect to the Disputed Ballots and consequential vote dilution.

32.

Plaintiff therefore has a claim, and is entitled to injunctive relief against the

18

Elections Director pursuant to 42 U.S.C. $ 1983, for deprivation of federal rights under

t9

color of state law.

20

33.

Plaintiff requests attorneys' fees and costs pursuant to 42 U.S.C. $ 1988.

2l
22

(A.R.S. $$ 12-1801

COUNT II
1846: DECLARATORY AND INJUNCTION)

25

34, Alt prior allegations are incorporated by reference,

35. Under Azona law, a poll worker must "sign the provisional ballot form"
before (l) providing the alleged voter a provisional ballot and (2) depositing the

26

provisional batlot envelope in the ballot box, Any provisional ballot that does not meet

27

these requirements, therefore, is not eligible to be cast in an Arizona election.

23

24

2B

-5-

36.

I
2

Disputecl Ballots in contravention of Arizona law and in violation of Plaintifls rights.

37.

be counted. There is an actual and justiciable controversy regarding Plaintiff's rights and

interests, and such judgurent or decree

38.

l0

39.
40.

3)i"',
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O)
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There is an actual and justiciable controversy that can be resolved by this

Plaintiff therefore has a claim, and is entitled to declaratory and injunctive

- 1846.

Plaintilrequests attorneys' fees and costs pursuant to A,R.S. $ 12-348 and

T2

the private attorney general doctrine established in Arntld v. Ariz. Dep't of Health Serv's.,

13

160

t4

benofit alarge number of people, (ii) require private enforcement, and (iii) are of societal

15

importance.

l.:

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suoh uncertainty and controversy,

reliet against the Director pursuant to A.R'S. $$ 12-1801

l1

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will terminate

Court entering a declaralory judgment.

ancl

interests r,vith respect to the Disputed Ballots and consequential vote dilution should they

Plaintiff requests that this Court determine and declare her rights

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Without Court intervention, the Elections Director intencls to count the

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18

20

2l
22
23

24
25

26
27
28

be vindicated here (i)

COUNT III
(A.R.S. $$ 12-2021-2030: MANDAMUS AND SPECIAL ACTION RELIEF)
41. All prior allegations are incorporated by reference.

t6

19

Ariz. 593,775P.2d 521 (1989) because the rights sought to

42.

Pursuant

to the Arizona Secretary of State's Election Procedure Manual,

poll worker rnust "sign the provisional ballot form" before (l) providing the alleged voter
a

provisional ballot and (2) depositing the provisional ballot envelope in the ballot box.

43.

The Elpctions Director is responsible for ensuring the integrity of the

election process.

44.

The Elections Director has a non-discretionary duty to only count ballots

that were voted, processed, and transmitted to the Elections Department in accordance

with Arizona law.

45,

Despite protest, the Elections Director does ot intend to perf'orm this non-

discretionary duty.

-6-

46.

Plaintiff has no plain, adequate and speedy remedy at law to cotnpel

reqtrests this Court issue a Writ of Mandamus pursuant to A.R.S. g 12'2021and Rule

the Rules of Procedure for Special Actions to require Defendant reject all of the Disputed

Ballots.

47.

I of

Plaintiff requests attorneys' fees and costs pursuant to A,R.S. $ 12-2030.

PRYER FOR RELIEF

WFIEIEFORE, the Plaintiff demands relief in the following fonns:

1.

A declaration pursuant to A.R.S. $$ 12-1831 -

1846 that the Disputed

10

Ballots are void for failure to comply with Arizona law requiring poll worker must "sign

11

the provisional ballot form" before

l2

(2) <tepositing the provisional ballot envelope in the ballot box;

(l) providing

the alleged voter a provisional ballot and

14

2.
12-1801 -

"':,,

l5

the Disputed Ballots, running the Disputed Ballots tluough any election tabulating

L:'

l6

equipment, duplicating the Disputed Ballots, or otherwise mixing the Disputed llallots

t7

with valid provisional ballots from Pima County;

13
'. .- .: ) ,.
-:'2
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Plaintiff

Defendant Elections Director

^.:,i

to comply with this requirement. Therefore,

'"

A temporary, preliminary, and permanent injunction pursuant to A.R.S,

$$

1830 and Ariz. R. Civ. P. 65 precluding the Elections Director from counting

.:

l8

3.

A mandamus order pursuant to A.R.S. $(i 12-2021 - 2030

and Rule 1 of the

I9

Rules of Procedure for Spccial Actions that the Disputed Ballots shall remain segregated

20

from the remaining provisional ballots in the Elections Director's possession, and shall be

2I

returned to the Recorder to be stored and/or preserved in the like, but separate, manner

22

,provisional ballots that were previously disqualified by the Recorcler;

23

4.

as

An award of reasonable attorneys' fees and costs pursuant fo 42 U,S.C. $

24

1988, A.R,S. $$ 12-348 and 12-2030, fhe private attorney general doctrine and other

25

applicable law.

26

5.

Such other relief as the court deems necessary and appropriate.

27

28

-7 -

DATED this l0th day of November, 2014.

SNELL & WILMER L.L.P,

2
J
4
5

6
7

By

Eric H. Spencer
Brett W. Johnson
Courtnev Henson
One Soth Church Avenue, Suite 1500
Tucson, Arizona 8570 1 -1630
Attorneys for Plaintiff

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'.j't*

VERII{'ICAT'ION

I, Jereifr Fwson, being flrst duly swom upon his oath, deposes end seys:

I have ead tbe foregoing Verified Special Action Complaint and luow the

4
5

.thereot'.. 'l'he allegations

\,

mstters stated therein on inf.bmletion end belief, nich I belie'.'e to be ';e.

of the Ventied Speciat Action Complant are true,

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except

EXHIBIT

P tvl { ,t- Vil[

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E,XHIBIT 2

Hobbs, Tracy
From:

Johnson, Brett W. (PHX)

Sent:
To:

Monday, November I0,2OL4 7:58 AM

Hobbs, Tracy
FW: Challenge to Provisional Ballot Forms With Missing Election Official Signature

Subject:

Fro m : Ch ri s J Roads lma to : Cbris' Boads@re-corder,

AM
I I

ol

ma, gov]

Sent: Sunday, November 09,20L4 10:37

To: Spencer, Eric; F,
Cc;
'i

ka

Rcorder-admin;

; Tweeten, Carlie; Jenkins, Amanda;

ucher(o ustl a w, co m

lr4r.5pencer,
does
I have already responded that we will not stop processng and the reason was clear. Nothing the Recorder's offce

-bect:Rr:challengetoProvisionalBallotFormsWithMissingElectionoffcialSlgnature
or rnay not
to the provisional ballots in any way, shape, or form irnpacts the identification of provisional bailots that rnay
from
be rrrissigpoll workersgnatures. IhereforetheMcSallycampaignwill notinanywaysufferanyrreparableharnr
Recorder's Office contnued :rocessin g'
sigrred by
Even when we have fjnished processing the provisional bllots, the forms readily identify whether they were

poll workerornot. Thereforethereisnolegal reasonwhatsoeverfortheRecorder'sofficetoslopprocessngany

iorms ln our procedures, all forms lrom a single voting area must be handed off together, Therefore stopping

processing one that may not contain a poll worker signature result-s in holding up all forms from that voting area.

processes at the election department may lvell be different and that is where your request should have targeted, not
,rhe Recoder,s office. you included both and I responded for our oTfice, I have not seen a response from the Elections
Oeprtment and I do not know whether or not Brad Nelson is even sittng at his computer to nlonitor the enlails'
I

will not detate you ny further on this issue

Chris Roads
Chief Depuly Recorder/Registrr of Voters
t'>irna Corinty Recorder's OfTice

From: Spencer, Eric Imailto:espencer@swlaw.eom]

SenE Sunday, November 9,20L4 10:21 AM

To:

Chris J Roads; F, Ann Rodrlguez; rad,nel-son@pi.ma,oqv

Cc: Recorder-admln; MErV.l"lartnsonOpirna.qo\a OaL;-Ufkowitz@pcaoneSV;Tweeten, Carlie; Jenkins, Amanda;

lkauEhc@suslew.c
SuUect, nf : Chaltenge to Provisional Ballot Forms With Misslng Election Official Signature

Importance: High
l,'i i . l(lJi.l{l:.,

our
Thank you for your response. However, I do not belicve that your response drectly addressed the issues raised n
cha I lenge.

to clarify tlre response time horizon. The campaign merely aske'd for crnfirmton within 30 minuies
The
th;tthe.:recorcler'sofficeandelectonsdepartmentintendedtoirnplernenttherequestedprotectivemeasures.
minutes.
within
30
campagn certainly did not expct the identification, collection and embargo process to be completed
Fir-t, I woulcl like

Seconcl, the campaign did not request thet // provisional ballot processing cease altogether, as your response appears

to

assume, With rcspect to the recorder's office, the campaign requested:

1,

That ny/ufure provisional ballot found with a rnissing sigrtature be rejected as unverified, and set aside pending
a iegal review. This universe could end up being qute small.

Z.

Thattherecorclr'soffice,inconjunctionwithpoltical
.rovisional ballr:ts

krefore

partyobservers,conductareviewofprevously-verified

those ballots are transmitted to the elections department,

Ths strikes me as a very reasonable and limited request that will not impede your office's statutory processng

deadlines, oncetheballotsnquestionaresegregted,whichagain-couldbeaquitelimiteduniverse-thepartiescan
make a final legal dctermination.
To confirm, the campaign is not requestingthatthe recorder's office cease processing valid provisional ballots.

ln light of these clarifications, and in order to preclude the parties from having to unncessarily seek special action relief
n Super-ior Court, please confirm whether the recorder's will irnplement these targeted protective measures,.
Very truly yours,
Erc Spencer
Eric H. Spencer
Snell & Wlmr:r t.L.P.
One Arizona Center
Phoenix, Arzona B5oo4-2202

Office: 602.382.6573
esp en cer@ sr,vl aw.co

1:r:::*tT

www,swl aw.conr/erc-spencer

tt*ryr

Denver, Las Vegas, Los Angeles, Los Cabos, Orange County, Phoenix, Reno, Salt Lake City, Tucson

From: Chris J Roads InrailtoIChris,Roads@recorder.oima.qov]

Sent: Sunday, November 09,2Ot4 10:05 AM
To: Spencer, Eric; F. Ann Rodriguez; brad,nelson@rirna'gov

Cc: Recorder-admin; Mary,Martnson@nima,oov; Daniel,Jurkowitz(pcao,pma,qov; Tweeten, Carlle; Jenkins, Amanda;

ika ucher@

Subject:

RE: Challenge to Provlsional Ballot Forms With Missing Electlon Official Signature

ustl-aw, co m

Mr. Spencer,
ln response to your clrallenge, the Pima County Recorder's Office will not stop processing the provisional

ballots. Wheterornotthepoll workersignedtheprovisional isclearlyidentifiablefromasimpleexamillationofthe

provisional ballol form whether or not the prr:visional s proccssed by the Recorder's Office, Therefore our processing
2

has no bearirtg s to your challenge. In other worcjs, tlre fact that we processed the provisiorlal

forn wil not impact

yourabilitytoproceecl withyourchallenge. TheRecorder'sOfficeisunderastatutorydeadlinetocolpleteprocessing

tlre pi^ovisional ballots arrcl lve will contnue lo proceed toward meeting that deadline'
UnderArizonalawwehavea
pleasenole thatyourextremclyshortdeadlinesforresponsesareunreasonable,
of less than 30 nlinutes is far lcs
A
deadline
other
matters.
reasr.rnablc tinle l:o respond to public records requests and
than rcasottatlle.
Both canrlidaTes havt: rtiorneys on site in our of fice observing our processcs and tracking the work we are ooing.
Chris Roacls
Chief Deputy t{ccorder/Registrar of Voters
Pima County Recorder's office

From: Spencer, Eric Imailto:espencer(swlaw.com]

Sent: Sunday, November 9,2014 9:47 AM

To: F, Ann Rodriguez; brad,nelson@pima.oov

Cc: Recorder-admin; wla-rv,arttnsonOprna.gov; Danel,JurkowitzGlpcao,oima,gov; Tweeten, Carlle; Jenkins, Amanda;

ikaucher@oustlaw.com
SuUear 6hallenge to Provlslonal Ballot Forms With Missing Election Official Signature

Importance:

High

tVls. Rodriguez

and Mr. Nelson,

The Republcan party/McSally lor Congress campaign (collectively "the campaign") formally challenges the validity of all
provisional ballots that have a provsonal ballotform with a missing election official signature.

pagr 15?- of the Selcretary of Slate's Election Procedures Manual states that, priorto votng a provisional ballot: "An
erlectionofficial orvotercompletesaprovisional bllotform, Thevoterandthe.-glecJionoffiial sienthpgvigional
ballot forrn."
After vc,ting the ballol, "[t]he voter will return the sealed envelope to the election official, who wll verfy the envelope
properly flied out, siened and sealed," ld.

Accordngly, the campagn respectfully requests the following mmediate relief;

The relcorder's officc instruct staff to not verify any provisional ballots with a mssing election offical sgiiature
on ttre provisional ballot form;
The recorder's office cease transrnitting any previously-verified provisional ballots to lhe electir)ns departrrtent,
pending a review of thc provisional ballot forrns for nrissing electjon official signatures;
The e!ections department cease processing any provisional ballots ortransnritting any provisional ballots for
counting, pending a review of the pr<lvisional ballot forms for missing election official signatures; and
Ihe recorder's office and elections department collect and ernbargo any provisional ballots tht contain a
provisional ballotform wth missing election official sgnatures, perrding a final legal review and determnation in

conjuucton v.rith the County Attorney's office.

Give the exgency cf this matter, please confirr by'10:15 a.m. tlratthe recorder's office and elections departmentwll
im med-ateiy im plement these prophylactic procedures'
Very trufy yours,
Eric Spr:nc.er

[lrir; ll. Spcircr:r

5

Snell & Wilmer L.L,P.

One Arizona Center
Phoenlx, Arizona 85004-2202

Oifice: 602.382.6573
espen cer@swlaw.com www. swl aw, com,/eric-spencer

$rrc:ll &.1Viln:cr
Denvr, Las Vegas, Los Angeles, Los Cabos, Orange County, Phoenix, Reno, Salt Lake City, ucson