1 Brett W.

Johnson (#021527)
Colin Ahler (#023879)
2 Andrew Sniegowski (#03 1664)
Lindsav Shori' (#03 4l' 25)
a
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.
6

7 com
Attorneys for
8

9
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
10
IN AND FOR THE COLINTY OF MARICOPA
11

1,2
MARICOPA COLINTY REPUBLICAN
$i
PARTY, APACHE CpI-]NTY _^ No.
o
ñ I q8 13
REPUBLICAN PARTY, NAVAJO
I niã'o t4 COUNTV REPUBLICAN PARTY, and MOTION FOR TEMPORARY
.='
YUMA COUNTY REPUBLICAN RESTRAINING ORDER AND
,¿ :9s.sq 15 PARTY,' NNOTTON FOR ORDER SETTING
II ?:åä HEARING ON PRELIMINARY
rg)¡ Plaintiff,
c-)
I
U) lsÉ
H 3E
t6 V. INJUNCTION
'iI
t7
o
18

19

20

2t
22

¿5

24

25

26

27

28
 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

9
party (the ,,County parties" or "Plaintiffs") hereby move this Court for the issuance of:

10 A Temporary Restraining Order ("TRO") prohibiting Defendants Michele

1.
Reagan, the State's County Recorders, in their official capacities, and their
officers,
11
o
o persons in active
I t2 managers, agents, Servants, affiliates, employees, and attorneys, and those
.v.
a
deadlines
9I Efi 13 concert or participation with them from implementing and enforcing disparate
Ël ãi in connection
before which a voter may rehabilitate his or her facially invalid early ballot
* lH-ì:q l4
L I I õhO

' I eq Cñl
JJoegg
cll I ÈY !t 15 with the November 6,2018, general election;
-n lldiu
0J I 4e
d II oö t6 2. An Order to Set Hearing on Preliminary Injunction ("Order") providing
uD 3¡i

defendants Michele Reagan and the State's County Recorders, in their official
.3
capacities,
17
o
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

20 effect as the Temporary Restraining Order'

2l This Motion is supported by the following Memorandum of Points and Authorities

22 and the complaint for Injunctive and Declaratory Relief.

23
MEMO RANDUM OF POINTS AN D AUTHO S
24

25
I. FACTUAL BACKGROUND
A. The General Election and Processing of Provisional Ballots'
26
to
This action seeks to ensure that Arizona voters are provided an equal opportunity
27
invalid early
vote in the form of uniform deadlines by which to rehabilitate their facially
28

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,
a
J
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)'
5
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
7

by the county recorders' offices no later than 7:00pm on Election

Day' íd' $ 16-551(C)' In
8
o'may attempt to contact the voter to
9 the case of discrepant signatures, the county Recorder

ascertain whether the voter actually voted the early ballot and
any reasons why the
10

11 signatures may not match," but only "[i]f time permits'" Atiz' Sec'y of State' ELECTION

9 t2 PROCEDURES MANIIAL (2014) at 166'

.9_

those
lrrt-^
9I EF 13 On information and beliet however, certain County Recorders-specifically
Hl ÃÈ
early ballots for
of Maricopa and pima Counties-will allow voters to cure non-compliant
lfndðo
=
!
t4
I ï dhô

tr, lË:i3
ì o^
that finds no statutory authorization
ãæ
Ø iterË 15 a period of five days afterElection Day, a contingency
lf ü.r€
--'i
E
Li I
I î,8
uo and threatens to beget an extended period of confusion and uncertainty following the
u>l ÉÍ
t6
.:
r7 election.
o
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

23 protection of the laws, regardless of the county in which they reside'

24 II. LEGAL ARGUMENT

a preliminary injunction when he establishes "1) A strong
25 A plaintiff is entitled to
of irreparable injury
26 likelihood that he will succeed at trial on the merits; 2) The possibility
granted; 3) A balance of
27 to him not remediable by damages if the requested relief is not
pubric poricy favors the injunction." shoen v. shoen, 167
28 hardships favors himserf; and 4)

a
J
 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,
a
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

11 of irreparable harm must be stronger'")'

o before the results
I t2 In elections cases, a plaintiff may seek relief through an injunction
't
(free and equal elections); chavez
of the election are certifie d. see Ariz.const. Art. IL $ 21
li
(.) ldÒ 13
É
p.3d 3g7, 407-08 (App. 2009) (disabled electors
II E?ã=
u>@o t4 v. Brewer, 222 Ariz. 30g, 3rg-20, 2r4
': ¡i
F¡
: gc.sq provide machines that
,z
I ?:rä 15 could bring action against the state for injunction for failing to
I r9*
()
lr
U)
IlsÉ3ã t6 properly tabulated their votes). plaintiffs seek injunctive relief to
protect their fundamental
: TRO'
t7 constitutional right to vote, and satisff each element for issuing a
o
18 A. Plaintiffs Are Likelv to Prevail on the Merits'
.,confidence in the integrity of our electoral processes is essential to the functioning
t9
1, a Q006); see Yick Wo v'
20 of our participatory democr acy." Purcell v. Gonzales,549 U'S'
political right'
21. Hopkins,118 U.S. 356,370 (1836) (recognizing voting "as a fundamental
because fit is] preservative of all rights"). "[T]he right to
vote is 'the protected right, implicit
22

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
25
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
27

and disparate treatment, value one person's vote over

that of another '" Bush v' Gore' 531
28

4
 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,

3 (1983); Burdick v. Takushí' 504 U'S' 428, 434 (lgg2)'

4
1. ptaintiffs are likely to prevail on their Equat Protection claims
5
alleging disparate treatment (Bush v' Gore)'
ballots on equal
6
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
7

I 21g,235 (6th Cir. 2011). Plaintiffs' equal protection claims are likely to succeed
here'

9
because election off,rcials are prepared to provide Arizona
voters an unequal opportunity to

cast a valid ballot, determined solely by their county of

10 residence'
in the Arizona
o
11
Early ballots are processed and verified according to the procedures
o
I procedures are not
Ë
a
T2
Election Procedures Manual. ^S¿e Manu aI, af 59'60, 183-88. When these
Si t-d
() are thereby
followed-or are not applied consistently-vbters are treated differently and
I do
ç I ú9 13
:= I F:ãe
33, 179 Ariz' 178' 178' 877
t4 disenfranchised. See Miller v. Pícacho Elem. Sch' Dist' No'
I u>@o
t E,¡ gï
p.2d277,277 (lgg4) (,,In this case we hold that absentee ballots procured in violation of
,¿ = 3c.gq 15
I ?:rë
|"s{
()
H
U)
Il:á,59
T6
our absentee ballot law are invalid, and if the ballots affect the outcome, the election must
.!

Ê
t7 be set aside.").
o
18
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).

vote, the Court must

2l When the State imposes a "substantial" burden on the right to
22 injury to the rights
weish ,,the character and magnitude of the asserted thê.piaintiff
and eo,rìiéäniñ Rmendments that seeks to
ä.åì?'år"i ùv tn" Firsr"¿rh.-
23 iñåiðätð't'uäåi*f pä;" i"terests puJ forryprd .bv the State as
jusrificationä"öi'îrt. uùi¿å" ñp"'"ã.by.its iule." takins inio consideration
the plaintiffs'
24 o,rhe
exrent iä *rriðn rhosð i"t.r.ãtr *at<é it ne"eséary to birrden
rights."
25
(lgg2) (quoting Anderson v' celebrezze' 460 U 'S'
26 Burdick v. Takushi, 504 u.s. 428, 434

F 723, 729 (gth cir' 2015)'

27 780,78g (1983)); Ariz. Libertarian Party v. Reagan, TgS '3d
procedures, "the penalty,
28 when voters are penali zed forthe arbitrary application of election

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,
a
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
4

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
6
identi$' "precise
7 interests in comparison with the fundamental right to vote; the State must

8 interests" in response to a challenged provision. Burdíck,504 U'S' at 434'

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
I
É
t2 and will surely be determined by a small margin of votes. It is of paramount importance,
a

especially considering close races such as these, that every voter's ballot be
$i processed
()
d. lsÈ 13
ci FX
:= II 3:Ée
I u>@ô l4 uniformly and on equal terms.
rE¡rX
,z :9e.gi 15 Compared to the burdens suffered by Plaintiffs, the compatable burden
on the State
t?:-iä
lJ3'¡
(.)
H
U)
Il:É3s t6 is minimal. The County Recorders must already conduct signature verification
of early
16-550(A)' Further,
ballots immediately "[u]pon receipt" ofthe ballot. See Ariz.Rev. Stat. $
Ë
t7
o
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

2T burden on the County Recorder Defendants'

22 3. plaintiffs are likely to prevail on their Due Process claims alleging

a deprivation of Constitutional Rights (Fourteenth Amendment
of
23
the U.S. Constitution).
24
under the Due process clause of the Fourteenth Amendment of the United
States

25 property' without due

Constitution, no state may "deprive any person of life, liberty, or
26
process of law." The u.S. Supreme Court has repeatedly ruled that the right to vote is a
27 ,,fundamental political right," meaning that any alleged infringement on this right must be
28 v' síms,377
carefully and meticulously scrutinized . see Yíck wo,118 U.S. at370; Reynolds

6
 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

5 refusal to count votes from arbitrarily selected precincts.")

must
6 In order for the government to deprive citizens of a constitutional right, there
have
7 be an appropriately compelling government interest. Yet the County Recorders
a process
8 provided no explanation as to why they arbitrarily impose disparate deadlines for
a fait
9 required of them. The same treatment must be applied to all early ballots to ensure
to do so, without
10 election and to avoid deprivation of due process rights. Defendants' failure

11 a compelling government interest, violates the Due Process Clause'

o
o as they
3 l2 The plaintiffs are tikely to succeed on the merits of their Due Process claim,
.v

are being disenfranchised and are being disparately treated regarding their
right to vote,
9l
trt ãF
;+
13
Ë lgl"3- the
I T 6hô
È, In Hì:q t4 while the Defendants have provided no explanation or compelling argument regarding
ió
.'( r Y3.íl
^ -
" Ilr.'¿-
?:iä 15 necessity of these actions.
=00)l ta
Ê I õö ptaintiffs are likely to prevail on their claims for declaratory and
UDI Êä
s
t6 4.
T7
injunctive relief.
The plaintifß are likely to succeed on the merits of their claims for declaratory
o and
18
injunctive relief. plaintifß are entitled to a declaratory judgment to determine the
T9
ballots. County
appropriate deadline for voters to rehabilitate their facially invalid early
20
elections officials must conduct the signature verification of early ballots
immediately
2l
,.[u]pon receipt" of the ballot. A.R.S. $ 16-550(A). And all issued early ballots must be
^see
22
7:00pm on Election
received and processed by the County Recorders' offices no later than
23
Day, id. $ 16-551(C). In the case of discrepant signatures, the county Recorder "may
24
voted the early ballot and
attempt to contact the voter to ascertain whether the voter actually
25
any reasons why the signatures may not match," but only "[i]f time permits'" Ariz' Sec'y
26
of stare, ELECI-ION pRocEDURES MANUAL (2014) at" 166. Only cerrain county
27
pima counties, however-impose a f,rve-day window
Recorders-those of Maricopa and
28

7
 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
2

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

harmed if the County Recorders are permitted to implement different

processes and
6
ballot, and,
7 deadlines by which an Arizona voter may rehabilitate a facially invalid early
of
I therefore, disparate opportunities to vote. The balance of equities and considerations

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
o
9
.!
t2 invalid early ballot.
a
B. plaintiffs Will Suffer Irreparable Harm Unless Defendants Are
9I
Ët EF
;+
13
Enjoined.
ãL II it.8-
ì66ô

F I H-ì:q t4 Absent emergency relief from this Court, Plaintifß will suffer actual and imminent
,J:oeCR
Ì;:ä 15
harm, which cannot be adequately compensated at law. As described in detail above,
c)lr Oö
te
=
CI
UDI EË t6 plaintiffs have brought a lawsuit for declaratory action and equitable relief. If voters are not
R

É
t7 provided an equal opportunity to cure their facially invalid early ballots, Arizonavoters
will
o
18
be disenfranchised. Such disenfranchisement cannot be remedied at
law, and the deprivation

t9 of any constitutional right "unquestionably constitutes irreparable injury." Elrodv,

Burns,

20
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
23
exceed any hardship felt by the Defendants if they are enjoined. In addition, granting this
24
injunction is in the public interest. see Melendres v. Arpaío,695 F.3d 990,1002 (9th cir'
25
Z¡lZ)(,,U]t is always in the public interest to prevent the violation of a party's constitutional
26
rights.").
27 hardship,
At this time, as described above there is no hardship, let alone substantial
Arizonans are not
28
for the Defendants. Plaintiffs, however, will face significant hardships if

8
 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

7 rehabilitate his or her facially invalid early ballot'

8
DATED this daY ofNovember, 2018'
9 SNE,LL & WILMER L.L.P
- --'"7
10

11 By: /s A.u6 L
Brett V/. ohnson 2r5
9 t2 One Arizona Center
.v
400 E. Van Buren, Suite 1 900
l-i r 1^
9l
;irR
Ht
13 Phoenix, Arizona 85004-2202
Telephone 602.382.6000
É1n"3-
Facsimile: 602.382.6070
tr lË:;: t4
L I T õhô

Attorneys for Plaintiffs

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c(J I ÞV !c: 15
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t6
u)l ÊÈ
.3 4840-88 18-0346

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